Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘EEOC’

Trump blocks Obama effort to combat pay discrimination

Thursday, August 31st, 2017

Former President Obama intended to fight pay discrimination with a rule requiring businesses to track how much they pay different groups of workers. You know the next part, right? Of course you do. Donald Trump is blocking the rule from going into effect as scheduled next spring because it’s just too hard for businesses to report how much they pay their workers.

“It’s enormously burdensome,” said Neomi Rao, administrator of the Office of Information and Regulatory Affairs, which analyzes the cost of federal rules and regulations. “We don’t believe it would actually help us gather information about wage and employment discrimination.”

Which part of that do you think is more important—that it’s burdensome or that they don’t believe it would help gather information? Or the unstated third reason that Donald Trump and his underlings don’t want to hold businesses accountable for discrimination anyway. This burden, by the way, amounts to putting extra information on a form that businesses already fill out. That information about how much women vs. men are paid, or workers of color vs. white workers seems like it would be helpful to uncovering discrimination. The Obama administration certainly thought so:

“We’d learn about a pay-discrimination problem because someone saw a piece of paper left on a copy machine or someone was complaining about their salary to co-workers,” leading others to realize they were being underpaid, said Jenny Yang, who was chairwoman of the EEOC when the rules were drafted, at NYU School of Law’s Annual Conference on Labor in June.

“Having pay data in summary form will also help us identify patterns that may warrant further investigation,” Ms. Yang said.

Self-proclaimed equal pay champion Ivanka Trump is right on board with the messaging against this effort to promote equal pay, by the way.

This blog was originally published at DailyKos Labor on August 30, 2017. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

Ivanka Trump supports her father’s decision to stop monitoring the wage gap

Wednesday, August 30th, 2017

Despite her supposed support for equal pay, Ivanka Trump backed a recent White House decision to end an Obama administration rule that would have required businesses to monitor the salaries of employees of different genders, races, and ethnicities in an effort to prevent employment discrimination.

Ivanka said in a statement that the policy, which would have taken effect this spring, would “not yield the intended results.” She didn’t offer any alternatives to replace the policy or explain why monitoring employees’ salaries would not help close wage gaps.

Ivanka has made a brand out of praising women who work, selling herself as an advocate for women’s rights.In April, Ivanka praised similar legislation passed in Germany requiring companies with 200 or more workers to document pay gaps between employees. She even added that the United States should follow Germany’s example.

“I know that Chancellor Merkel, just this past March, you passed an equal pay legislation to promote transparency and to try to finally narrow that gender pay gap,” she said. “And that’s something we should all be looking at.”

The Obama-era rule would have required companies with 100 or more workers to collect and submit data on employee wages to the Equal Employment Opportunity Commission. Neomi Rao, administrator of the Office of Information and Regulatory Affairs, told The Wall Street Journal that the policy is “enormously burdensome…We don’t believe it would actually help us gather information about wage and employment discrimination.”

The recent move to end the employment discrimination rule is only the latest in a series of failures by Ivanka to stand up for what she claims to be right.

Ivanka — an official White House advisor — has long been regarded as a potential moderating force within the Trump administration. But that image is carefully crafted, through a series of anonymous anecdotes to the media and sound bites that don’t actually fall in line with her father’s policies.

When Trump began the process of rolling back Obama-era clean water regulations just one month into his presidency, Ivanka remained silent. Ivanka also reportedly opposed the United States withdrawing from the Paris Climate Agreement, but she failed to stop her father from backing out of the deal. In June, in honor of Pride Month, she tweeted that she was “proud to support my LGBTQ friends and the LGBTQ Americans who have made immense contributions to our society and economy.” She then stayed silent when her father announced he would ban transgender Americans from serving in the military. (She also hasn’t said anything about the administration’s rollback of protections for transgender students.)

In her recent book, Women Who Work, Ivanka repeatedly touts her lifelong mission as, “Inspiring and empowering women who work — at all aspects of their lives.” But she remained silent on the shortcomings of her father’s paid family leave plan, which would offer six weeks of paid maternity leave to mothers, leaving out fathers and adoptive parents and potentially creating career obstacles for the working women she claims to support.

Wage discrimination in the United States is a serious problem. While the national gender pay gap has decreased since 1980, it still stands at a whopping 17 percent, with women making 83 percent of what men earn. The racial pay gap lags closely behind. In 2015, black workers earned 75 percent as much as white workers, according to Pew Research. The racial disparity is worse for women, who also fall behind men within their own racial or ethnic group.

Inside the White House, there is a surging pay gap, the highest of any White House since 2003, according to the Washington Post. At 37 percent, the White House pay gap is more than double the national gender gap.

This blog was originally published at ThinkProgress on August 30, 2017. Reprinted with permission. 

About the Author: Elham Khatami is an associate editor at ThinkProgress. Previously, she worked as a grassroots organizer within the Iranian-American community. She also served as research manager, editor, and reporter during her five-year career at CQ Roll Call. Elham earned her Master of Arts in Global Communication at George Washington University’s Elliott School of International Affairs and her bachelor’s degree in writing and political science at the University of Pittsburgh.

EEOC lawsuits allege sex discrimination in physical ability tests

Wednesday, August 9th, 2017

Three different cases. Three different theories of gender discrimination. But one common thread – an old school presumption that certain blue-collar jobs are a “man’s work.”

The Equal Employment Opportunities Commission (EEOC) has filed suit against three U.S. employers for sex discrimination in hiring. The lawsuits allege overt bias against female job candidates in the form of bogus physical tests, physical appearance, and a blatant “no girls allowed” hiring policy.

EEOC takes a strong stand against gender bias

Perhaps it was simply a coincidence of timing. But the EEOC is sending a message in three unconnected cases that gender discrimination will not be tolerated in 21st century America. When the EEOC was unable to resolve each of the cases through pre-litigation channels, it filed suit against a railroad (CSX Transportation), a shipping company (R&L Carriers) and a parking management service.

  • At CSX, female applicants failed physical requirement tests at a substantially higher rate than male candidates. Rather than indicating women are physically unfit for the industry, the EEOC contends that the tests favor men through arbitrary benchmarks.

Apparent rationale: They all take the same test. Not our fault if the ladies can’t cut it.

  • In the Eagle Parking case, a woman was turned down on the presumption – based on nothing more than her appearance – that she could not handle the “physicality” of the job. She was urged to apply for a desk job instead.

Apparent rationale: In the manager’s professional opinion, based on years of parking cars, a woman could not perform such a back-breaking feat.

  • In the R&L Carriers case, the EEOC alleges straight-up discrimination; no women are hired as dockworker and loaders, even when they are qualified candidates.

Apparent rationale: Some jobs are for dudes, and you’re not a dude.

Physical requirements can be an unfair barrier to women

The EEOC litigation will prompt a close look at physical ability requirements in candidate screening and hiring, particularly in traditionally male occupations. Courts have generally upheld the right of employers to use physical ability as a hiring criteria, with a few caveats: (a) physical tests must reflect the actual job duties, and (b) minimum requirements cannot be set arbitrarily high to exclude women.

For instance, only 7 percent of U.S. firefighters are female, chiefly because so few can pass the rigorous obstacle course exams. Through equal opportunity lawsuits, the physical ability standards have been scaled back in many jurisdictions to give female applicants a fighting chance to win the job and prove themselves. Detractors say the revised standards are watered down and compromise safety. Proponents say the standards were based on male demographics and were unnecessarily tough — no firefighter performs all those feats in an actual fire call.

Is the job really that rigorous?

Most blue-collar jobs do not require “American Ninja” strength and agility. Basic physical fitness is typically sufficient, and those who truly can’t do the work will soon quit or be let go. Too often, the barrier to employment is not women’s muscles but men’s outdated attitudes.

This blog was originally published at passmanandkaplan.com on August 8, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

Justice Department brief argues against protections for LGBTQ workers

Thursday, July 27th, 2017

On Wednesday evening, the Department of Justice moved to undermine rights for LGBTQ people to ensure they are treated fairly in the workplace. The department filed a brief arguing that prohibition of sex discrimination under federal law does not include the prohibition of discrimination on the basis of sexual orientation.

The federal law in question is Title VII, which is part of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.

The case before the U.S. Second Circuit Court of Appeals, Zarda v. Altitude Express, centers on a now deceased skydiver. In 2010, Zarda said he was fired because of his sexual orientation. In April, the Second Circuit decided that it would not accept the argument that discrimination on sexual orientation isn’t permitted under Title VII. However, Lambda Legal requested that the ruling be reconsidered, which is why the Justice Department planned to file its amicus brief.

The power of the federal government to influence LGBTQ workplace rights can’t be underestimated, said Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress. ThinkProgress is an editorially independent news site housed in the Center for American Progress Action Fund.

“It is the Justice Department of the U.S. It’s not just anyone, so it’s definitely going to have a lot of weight because it is the position of the U.S. government, so it will be interesting to see how Second Circuit takes those arguments,” Gruberg said.

The role of Title VII in protecting lesbian, bisexual, and gay people against discrimination has been fuzzier than the issue of whether it can protect transgender people from discrimination. The U.S. Equal Employment Opportunity Commission recognized that Title VII protects transgender people from discrimination in 2012. In 2015, the agency also held that Title VII covers claims of discrimination on the basis of sexual orientation. But court decisions on sexual orientation protections have been mixed.

The strongest decision for the recognition of sexual orientation discrimination under Title VII was in Hively v. Ivy Community College, in which the Seventh Circuit held that sexual orientation was covered under sex discrimination in Title VII for three reasons. In that ruling, Chief Judge Diane Wood referenced Price Waterhouse V. Hopkins, a case that is commonly used to support sexual orientation as protected through Title VII by arguing that says sex discrimination includes sex stereotyping. If a stereotypical woman is considered to be heterosexual, then dating women is a failure to conform. Looking at it another way, if a woman were a man dating a woman she would not face discrimination; therefore she is facing discrimination because she is a woman. And yet another way to consider discrimination would to look at the matter of association. The Loving v. Virginia case found that discrimination based on association with someone of a different race is discrimination on the basis of race. In the case of sexual orientation, Wood used this “associational theory” to say that a refusal to promote someone based on their association with someone of the same sex qualifies as sex discrimination.

Gruberg said that with conflicting decisions from the courts, including a March 11th Circuit ruling that Title VII does not cover sexual orientation, and statements from judges such as Chief Judge Robert Katzmann of the Second Circuit U.S. Court of Appeals that discrimination on the basis of sexual orientation is likely covered under Title VII, the issue could come before the U.S. Supreme Court.

“There has been an indication last time they considered this, where Chief Katzmann noted that this is still a developing issue in courts and he felt that court should reexamine whether sex orientation discrimination is covered under Title VII, so it has been mixed,” Gruberg said. “We’re already at a circuit split so it’s something I am convinced is going to be in front of the Supreme Court soon.”

In the brief, the Justice Department noted in Hively, Judge Diane Sykes said sex as “common, ordinary usage in 1964” means “biologically male or female.” Gruberg, who commented before the brief was released, said it would not make sense for the department to address gender identity, given the courts’ past rulings.

“Courts have been much more willing to see that gender identity discrimination is straight up sex discrimination. That has not really been a question. Sexual orientation is a little bit [of a question], so it is shocking that DOJ would bring that [gender identity] up,” Gruberg said. “That is not as contested in federal courts and yet they are bringing it up as an assault on the idea that trans people have civil rights protections.”

Gruberg said that the department will likely take the most prevalent argument against including sexual orientation and say that the statute doesn’t explicitly mention sexual orientation.

“But it doesn’t say sex stereotyping either, and the courts ruled on that, and it doesn’t mention sexual harassment but we now see harassment as covered,” Gruberg said. “What it means under Title VII has been understood as far more broad than what Congress in 60s believed it meant… It is a willful disregard of the evolving definition of sex discrimination.”]

This article was originally published at ThinkProgress on July 26, 2017. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress.

Suggestions to the EEOC for Charge Intake and Processing

Tuesday, May 26th, 2015

Richard Seymour[Editor’s Note: The following is taken from Rick Seymour’s April 23, 2015 Comments to the EEOC on Charge Processing. It lists suggestions for improving EEOC practices in intake of charges. Changes to Mr. Seymour’s original article have been made to improve blog formatting and ease of access.]

Suggestions for Charge Intake and Processing

1. Make it easy for people to file timely charges of discrimination. Put a fillable form on the EEOC website, allow people to sign and file charges electronically and immediately, and serve the charges upon employers immediately. They can always be amended later, and the amendments promptly served. The IRS does it for taxes, and the NLRB does it for unfair labor practice charges. The Commission can do it too.

2. You can lead charging parties to preserve their rights by asking questions, the same way tax preparation software does, and filling out the charge based on answers. Insert the State and local FEPAs automatically, and allow for more than one because coverage remedies differ.

3. Insert a place where the charging party can identify counsel, and have the software ensure that counsel are always notified of events.

4. In any re-writings of charges, train staff so that they stop dropping claims by mistake, neglect, and inadvertence.

5. Put facts into the charges, and end the practice of replacing facts with uninformative boilerplate.

6. Allow charging parties to submit changes of address and changes of counsel online.

7. Do not hurt the agency’s credibility.

  • Stop taking the respondent’s words as golden and incense in front of it. This tells employers and employees alike that the Commission does not care about their facts. Only a real, questioning, examination of facts will restore credibility.
  • Train the Commission’s staff in critical thinking, give them performance standards, and eliminate those who cannot perform.
  • Stop premature kick-outs of charges shortly after they are received. Same-day kick-outs should be barred.

8. Help the agency do more with fewer resources. The agency cannot do it all, and trying to do so just wastes time and resources.

  • Use the information available, instead of turning up the agency’s nose at the available help. The greatest source of information with which to evaluate the position statement is the charging party and her or his counsel.
  • Charging parties and their counsel need to be given copies of respondents’ position statements and all their attachments, and invited to submit responses.
  • The position statements need to be served on the charging party and counsel as soon as they are received, ending the absurd practice in some offices of providing them only after the commission receives a file-stamped copy of the court Complaint.
  • The Commission should end the absurd practice in some offices of having staff members paraphrase the position statements, or re-write them. It burns up staff time and is not nearly as useful as providing the actual documents.
  • Those responses should be a great help to the Commission in focusing its investigation. Its offices should be required to follow up on the responses, instead of ignoring them and accepting the employer’s word as golden.
  • The responses should be provided to the employer for its comments.
  • More than one cycle may be needed. The important point is the Commission [uses] the parties to inform itself as to a lot of the facts, and the responses will allow a narrowing of the dispute.

9. The Commission should again become a national agency, instead of the present system of 50-odd principalities making up their own standards and procedures. The Commission’s pendulum of control tends to get stuck at the extremes, and the present system of letting every office do what it wants has not worked very well.

10. The commission should make it easy to contact every staff member. It should have an online directory of names, titles, locations, mailing addresses, telephone numbers, and e-mail addresses. Agencies like the State Department do this as a matter of routine. I went to www.state.gov and searched for “Telephone Directory” and this led me to [a PDF “Organizational Directory” which lists telephone numbers for many of the staff].

11. Whatever the outcome of Mach Mining, the Commission has major problems in its conciliation efforts. Those need to be tackled seriously. Again, agency credibility is at stake. Think about creating an internal appeal procedure to the Commission whenever a respondent thinks conciliation staff have done it wrong. That will take the commission time, but provide an invaluable insight and, in the event the Commission loses Mach Mining, will reduce the number of matters to be reviewed by the courts. [Ed. Note: The Seventh Circuit’s Mach Mining decision from April 29, 2015 can be found here.]

Reprinted with permission.

About the author: The author’s name is Rick Seymour. Richard Seymour graduated from Harvard Law School in 1968, and has worked in civil rights and employee rights ever since. In the 36 years since leaving the U.S. Commission on Civil Rights in 1969, he has spent more than 90% of his time representing plaintiffs in class actions.

Why Does the EEOC Make Mistakes (Part I)

Monday, March 16th, 2015

Over the years, the U.S. Equal Employment Opportunity Commission has been routinely criticized by charging parties, plaintiffs’ attorneys, respondents, and attorneys for respondents, as to virtually every aspect of the Commission’s activities including the filing,Richard Seymour investigation, and conciliation of charges, and the Commission’s litigation.

The courts have added their voices to the criticisms by charging parties and their counsel, with numerous courts coming to the rescue of charging parties by holding that the EEOC’s interim charge-processing steps are not jurisdictional prerequisites to a private suit and echoing the early words of the Fifth Circuit:

“Significantly, under EEOC regulations, a right to demand and receive such a notice accrues sixty days after the charge is filed regardless of any act or omission by the EEOC. Were this regulation not written, we would read it into the Act lest a claimant’s statutory right to sue in federal court become subject to such fortuitous variables as workload, mistakes, or possible lack of diligence of EEOC personnel.”

Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1140 (5th Cir. 1971) (footnotes omitted). The period for requesting a notice of right to sue was later expanded, of course, to 180 days. 29 C.F.R. § 1628(a).

The courts have also echoed some of the concerns raised by respondents and their counsel, and have sometimes added teeth to the criticisms by sanctioning the EEOC for perceived failures in investigation, conciliation, and litigation. E.g., E.E.O.C. v. CRST Van Expedited, Inc., 2013 WL 3984478, 119 Fair Empl.Prac.Cas. (BNA) 739 (N.D.Iowa Aug. 1, 2013) (No. 07-CV-95-LRR), awarding $4,694,442.14 in defendant’s attorneys’ fees and costs against the EEOC for perceived failures of conciliation and for litigation missteps.

Some employers are using the courts’ criticisms in an effort to tie up the Commission’s enforcement efforts in red-tape preliminaries that could require more effort than the litigation they are trying to stave off. The Courts of Appeals are split as to whether respondents have an affirmative defense for the EEOC’s failure to conciliate reasonably, and the issue is now before the U.S. Supreme Court in Mach Mining, LLC, v. E.E.O.C., No. 13-1019 (scheduled for conference on June 19, 2014). Both sides have agreed that the Supreme Court should take the case and resolve this question, and we will shortly find out whether the Court will grant review. The Seventh Circuit had decided that courts could not enquire into the reasonableness of the EEOC’s conciliation efforts. E.E.O.C. v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013). The Commission’s response to the petition for certiorari, however, shows at pp. 3-4 the degree to which allowing such inquiries will stymie the EEOC’s enforcement efforts:

2. In 2008, a woman who had unsuccessfully applied for a mining position with petitioner filed a charge of unlawful employment discrimination with the Commission. . . . She contended that petitioner, which had never hired a woman for a mining position, refused to hire her based on her gender. . . . The Commission investigated the charge, found reasonable cause to believe petitioner had discriminated against a class of women who applied for mining-related jobs, and invited petitioner to conciliate. . . . From late 2010 to late 2011, the Commission attempted conciliation with petitioner, but no agreement was reached. . . .

The Commission then filed this lawsuit, contending that petitioner engaged in a pattern or practice of unlawful employment discrimination and used employment practices that had a disparate impact on female applicants. . . . In its answer, petitioner asserted a failure-to-conciliate affirmative defense, contending that the complaint should be dismissed because the Commission had failed to expend sufficient efforts on conciliation. . . . The Commission responded that Title VII includes no such failure-to-conciliate affirmative defense, and it moved for partial summary judgment on that basis. . . . In the meantime, petitioner submitted “extensive discovery requests”—including more than 600 requests for admissions of fact—that “s(ought) information about the EEOC’s investigation and conciliation efforts.” . . . . Petitioner also “slowed discovery on the merits” by objecting to the Commission’s merits-related discovery requests on “failure to conciliate” grounds. . . .

(Emphasis supplied.)  The petition, response, and reply can all be downloaded fromhttp://www.scotusblog.com/case-files/cases/mach-mining-v-equal-employment-opportunity-commission/. (ScotusBlog, www.scotusblog.com, is an extraordinarily useful website.) The text of the response makes a compelling case why there is no judicially-enforceable duty to conciliate; a later blog posting will address that question.

In the face of all these criticisms, fair-minded persons need to pause and consider how all these perceived problems came to exist.

First, expectations for the EEOC have always been very high. The Fourth Circuit’s view of the “public avenger” role of the EEOC after the 1972 amendments to Title VII giving it the power to sue in its own name were echoed by many courts in more prosaic opinions. Here is how the Fourth Circuit put it:

“But, unlike the individual charging party, the EEOC, when it sued, did so ‘to vindicate the public interest’ as expressed in the Congressional purpose of eliminating employment discrimination as a national evil rather than for the redress of the strictly private interests of the complaining party. Because of this significant difference, the EEOC’s suit was ‘broader (in scope) than the interests of the charging parties. It follows that the standing of the EEOC to sue under Title VII cannot be controlled or determined by the standing of the charging party to sue, limited as he is in rights to the vindication of his own individual rights. To hold otherwise, as did the District Court, would be to continue treating the sole purpose of the Title to be the correction of individual wrongs rather than of public or ‘societal’ wrongs as well as to deny to the EEOC the right to be any more than a mere proxy for the charging party rather than what Congress by the Amendments of 1972 intended, i.e., the public avenger by civil suit of any discrimination uncovered in a valid investigation and subjected to conciliation under the Act. We find no warrant whatsoever for placing such limitation on the right or standing of the EEOC to bring suit; indeed, were such limitation to be imposed, it would be in our opinion a clear nullification of the legislative intent in enacting the Amendments of 1972. . . . “

Equal Employment Opportunity Commission v. General Electric Co., 532 F.2d 359, 373 (4th Cir. 1976) (footnotes omitted; emphasis supplied).

Second, the EEOC has always been starved for resources, and the starvation has become endemic:.

President EEOC Authorized Staff When He Took the Oath of Office EEOC Authorized Staff When He Left Office Reduction from January 1981: No. Reduction from January 1981: %
Ronald Reagan January 1981:  3,696 January 1989:  3,198 498 14.1%
George H.W. Bush January 1989:  3,198 January 1993:  3,071 625 17.7%
Bill Clinton January 1993:  3,071 January 2001:  3,055 641 18.2%
George W. Bush January 2001:  3,055 January 2009:  2,556 1,140 32.3%
Barack Obama January 2009:  2,556 N.A.   Currently 2,347 1,349 38.2%

Source, EEOC Budget figures, http://www.eeoc.gov/eeoc/plan/budgetandstaffing.cfm, last visited June 8, 2014, with my calculations in the last two columns.

During this same time period, the EEOC has been given very substantial new responsibilities, including the Older Workers Benefit Protection Act of 1990, the Americans with Disabilities Act of 1990, and the Genetic Information Nondiscrimination Act of 2008.

Similarly, the EEOC’s web site shows that 93,727 charges were filed in FY 2013, compared with 72,302 in FY 1992, the earliest year with reported data. That is a 22.9% increase.

Moreover, during this period Congress has required the EEOC to devote a substantial part of its budget to help fund State and local fair employment practice agencies.

Third, the recent difficulties in financing government operations make realistic planning very difficult. Not only do agencies know whether the Office of Management and Budget will recommend budget figures for the next year comparable to those of the current year, the present dysfunction in Congress makes it impossible to tell what will be appropriated. There may be government-wide hiring freezes lasting for years. When those are lifted, agencies hire as many as possible, because they do not know when they will be able to hire again. Meanwhile, salaries and rents increase with inflation, and the training budget is among the first to be cut. The lack of professional training for attorneys, investigators, and others harms many aspects of the Commission’s operations.

Fourth, while many EEOC staff members are extremely well-skilled and dedicated, not all meet those criteria. The EEOC has never taken seriously the idea in the Civil Service Reform Act of 1978 that it should adopt truly objective and fair performance standards, train staff to meet those objective standards, and terminate staff who either cannot or will not come up to objective and fair performance standards. It has routinely refused to take action against unwilling or incompetent employees, and incoming Chairs have sometimes withdrawn pending disciplinary charges against large numbers of employees in a misguided effort to build good will, and an understandable but still mistaken effort to avoid the large amounts of management time that would have to be devoted to cleaning house.

Now consider: What private firm would have a chance of meeting its goals under these conditions: heavily increased workload, almost a 40% reduction in staff, little technology to make up the slack, no money for training, an inadequate effort to identify and get rid of poor performers, and the need to give a lot of discretion to untrained staff regardless of their performance?

It is close to a miracle that the EEOC can accomplish anything at all. Yet it has provided very useful guidance to employers, unions, and employees, and has recovered substantial amounts in resolutions of charges and in litigation.

When we criticize the agency, we need to be mindful of the difficulties under which it labors.

About the Author: Richard Seymour graduated from Harvard Law School in 1968, and has worked in civil rights and employee rights ever since. In the 36 years since leaving the U.S. Commission on Civil Rights in 1969, he have spent more than 90% of my time representing plaintiffs in class actions.

"Bow at the Altar . . . of Political Correctness"

Thursday, October 24th, 2013

philip_miles_smallGender stereotyping claims, meet the super-manly world of ironworkers – men’s men. Macho men. Masculine men. What “real men” should be (you get the idea). In EEOC v. Boh Brothers Construction Co. (opinion here), the Fifth Circuit, sitting en banc, provided us with 68 pages of analysis on same-sex gender stereotyping harassment.

Let’s start with the harassing conduct. The crew superintendent called the plaintiff “pu–y,” “princess,” and “fa–ot”; often approached him from behind and simulated intercourse; exposed his penis while urinating in front of him; and teased him for using Wet Ones instead of toilet paper because (and I quote) that’s “kind of gay.”

The majority concluded that the evidence was sufficient to support a jury verdict that the defendant was liable for the harassment under Title VII. The divergent opinions in this case highlight a rift among judges when analyzing “shop talk” types of cases. One particular dissent pulled no punches in its condemnation of the majority (pardon the lengthy cut-and-paste, but this really highlights the differences among the judges):

By deftly extending the applicable law, Judge Elrod and the en banc majority—with the best of intentions—take a deep bow at the altar of the twin idols of political correctness and social engineering. Because that is a demonstrable departure from reason and experience and imposes an unsustainable burden on private employers in Texas, Louisiana, and Mississippi, I respectfully dissent . . . .

In a world in which comments on Wet Wipes or pink shirts can be considered discrimination on account of sex, the American workplace becomes more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one’s speech is chilled as a condition of keeping one’s job. As Judge Jones accurately observes, the majority opinion “portends a government-compelled workplace speech code”—“a ‘code of civility’ [imposed] on the American workplace.” Instead of resisting such an Orwellian regime, in which Big Brother (in the form of the EEOC or otherwise) constantly monitors the worksite to detect “improper” words and thoughts, the en banc majority fosters it without Congressional mandate.

The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines—if even just a little bit—an important part of what is good about private employment in the United States. Societies, and the legal systems of which they are mutually supportive, decline slowly, but ultimately with tragic consequence: “Not with a bang but a whimper.”

Wow, tell us how you really feel! So, what’s the takeaway for employers? Crackdown on same-sex harassment and gender stereotyping. The dissent demonstrates that employers might have a receptive ear in litigation – but trust me, if you’re counting votes at a circuit court in an en banc review of a jury verdict then you’ve already lost even if you win. That type of legal battle doesn’t come cheap.

This article was originally printed on Lawffice Space on October 11, 2o13.  Reprinted with permission.

About the Author: Philip K. Miles III, Esq. is the creator of Lawffice Space.  He is an attorney with McQuaide Blasko, a full-service law firm headquartered in State College, Pennsylvania.  He belongs to the Labor and Employment, and Civil Litigation Practice groups.  Lawffice Space is an independent law blog focusing on labor and employment law.

Hijab accommodation: Will Abercrombie's victory stand?

Wednesday, October 9th, 2013

robin sheaAbercrombie & Fitch has won a huge victory in one of its Muslim hijab-accommodation cases — but will the decision stand? As you know, the Equal Employment Opportunity Commission has filed two lawsuits against Abercrombie in California — both of which have now settled — but there was another one in Oklahoma, and it may be the most interesting of them all.

The EEOC won summary judgment against Abercrombie, but two judges on a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit  reversed, finding not only that the EEOC was not entitled to summary judgment against Abercrombie, but also that Abercrombie was entitled to summary judgment against the EEOC.

Ouch, baby. Very ouch.

I would love to hear what you think about this case. If you aren’t already familiar with it, you may want to read about Abercrombie’s “Look policy” here. (It is my understanding that the store has adapted its policy since these lawsuits were filed.)

Samantha Elauf, a Muslim, interviewed for a job at an Abercrombie store in Tulsa. She wore a black hijabto her interview. The interview, with a store assistant manager, went fairly well. Although religion and the hijab were never discussed, the assistant manager assumed that Ms. Elauf was Muslim and wore ahijab for religious reasons. The assistant manager rated Ms. Elauf eligible for hire. However, after the interview, the assistant manager sought some guidance about the hijab and the Look policy, and eventually consulted with her district manager. According to the assistant manager, they discussed the fact that Ms. Elauf was, in all likelihood, Muslim.

Uh-oh.

The district manager instructed the assistant store manager to lower Ms. Elauf’s job interview scores so that she would not be hired. They never contacted her first to determine whether a religious accommodation was needed or possible.

I can see how someone would find that the EEOC was entitled to summary judgment on these facts, can’t you?

Well, Abercrombie appealed, and the decision came down this week. The EEOC lost big, and the court said that it was because Ms. Elauf had not informed Abercrombie of her need for a religious accommodation.

Here is what the court said, in so many words:

*Generally, the obligation for an employer to provide religious accommodations does not kick in until the employee requests an accommodation. The belief or practice must be a requirement (as opposed to a nice thing to do), the requirement must be “religious” in nature (as opposed to “cultural,” or an ethical or political belief, or a matter of personal preference), and the religious requirement mustconflict with a workplace requirement — otherwise, no accommodation would be necessary. In most cases, none of these things is self-evident, even if the employer knows that the employee is an adherent of a particular faith.

So far, I’m with the majority. This is an accurate statement of the law and also makes perfect sense.

*It is generally unlawful for an employer to consider religion in making employment decisions(unless you’re interviewing for your next pastor, rabbi, or imam), and therefore it is generally unlawful for an employer to ask about an applicant’s religion in a job interview. Therefore, it’s not fair to penalize an employer for not affirmatively asking about religion or religious accommodation needs in the hiring process.

Agreed. Still with ya.

*Therefore, an employee or applicant is not entitled to religious accommodation unless the employer has actual, particular knowledge of the employee’s or applicant’s accommodation need.This would usually require that the employee or applicant specifically tell the employer about the need.

Here’s an example as to why: Let’s say an applicant wears a crucifix necklace to her job interview and has on her resume that she’s a member of Our Lady of Reasonable Accommodations Catholic Church. Would this be enough for the employer to know that she needed to take All Saint’s Day off every year? Probably not. First, the employer may not be Catholic and may not know anything about this kind of thing. Second, even though All Saint’s Day is a holy day of obligation, most Catholics work as usual, and go to Mass either the evening before, or at lunch time, or the evening of. Some even skip Mass. (Not that I’m condoning that!) So, even if the employer knew something about the Catholic faith (or was Catholic him- or herself), the employer would not know of the applicant’s particular need based only on the known fact that she was Catholic. The employer would have to know how this particular individual interpreted her religious obligations.

I am still with the majority on the Tenth Circuit panel.

Until I get to the facts of this Oklahoma case, and then I hit a wall.

Here is my problem with this case. Ms. Elauf wore the hijab to her job interview. The hijab itself conflicted with a policy (the Look policy) of the employer. The assistant manager went over the Looks policy with Ms. Elauf but did not ask whether she had to wear the hijab as a requirement of her religion. In fact, the hijab was never discussed at all.

I am still OK with this because the assistant manager considered Ms. Elauf eligible for hire. Why go there if you don’t have to?

But then the assistant manager took it up with her boss, who apparently did not want a hijab-wearing employee in his store.

At this point, don’t we have a “conflict” between the applicant’s presumed religious beliefs and the workplace requirement? A conflict of which the employer is, or should reasonably be, aware?

So, at this point, doesn’t Abercrombie have the duty to call Ms. Elauf back and start talking about whether she needs to wear the hijab at all times, and if so, whether her need is a requirement that is religious in nature, and if so, whether accommodations are possible?

Before unilaterally reducing her interview scores and rejecting her as an applicant?

I think so. So did the EEOC. So did the lower court judge. So did the dissenting judge on the Tenth Circuit panel. Of course, this doesn’t mean I am right – only that I have company.

I would be surprised if the EEOC didn’t petition for rehearing by the full Tenth Circuit, and they might even try to take the case to the Supreme Court. Of course, Abercrombie may just go ahead and settle this one now, too, while it has some leverage.

What do you all think about this decision, or about religious accommodation in general? I would love to hear from you. Meanwhile, you may be interested in this recent bulletin by my law partner, Tommy Eden, about religion and the “Mark of the Beast.”

This article was originally printed on Employment & Labor Insider on October 4, 2013.  Reprinted with permission.

About the Author: Robin Shea is a partner at Constangy, Brooks & Smith, LLP.  She has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations.

Runkel: Supreme Court Jumping the Gun on Section 1983 ADEA Case?

Saturday, October 5th, 2013

secunda-paulAt RossRunkel.com today:

SCOTUS: Can public sector employees skip the ADEA and sue directly under the constitution?

Or should this case even be before the Supreme Court?

Madigan v. Levin [Briefs at SCOTUSblog] is set for argument [this Monday] October 7.

‘Harvey Levin, a state employee, claimed he was fired because of his age. He sued his boss under the ADEA and the constitution. The boss claimed qualified immunity.

The trial court threw out the ADEA claim, kept the constitutional claim, and decided the boss did not have immunity.

The boss brought an interlocutory (pre-trial) appeal to the 7th Circuit, which decided (1) no immunity and (2) Levin can go ahead with his constitutional claim.

Primary issue: Whether a public sector employee can bring an age bias claim directly under the Constitution without following ADEA procedures. That’s the issue everyone is talking about. For a good explanation, see Lyle Denniston’s discussion at SCOTUSblog.

Wait, wait, one more issue: Notice that the appeal to the 7th Circuit was interlocutory. Unusual. Allowed here because of the immunity issue. But the 7th Circuit also went forward with the ADEA-vs-constitution issue. I’d like to see the Court kick this case back to the 7th Circuit, telling them they jumped the gun. Wait for a trial to take place, and then appeal from a final judgment. Am I trying to be too orderly here?

FWIW, I think the Court should kick back the case for a trial before deciding the case on appeal.  I am very much a proceduralist on such matters.

As far as whether a public employee should be able to bring a constitutional claim based on age discrimination in addition to a claim under the ADEA, I think they should be able to do so. My primary thinking is that you can get individual liability in a Section 1983 case, whereas you cannot under the ADEA.  Also, in light of Grosschanging the causation standard to “but for” in ADEA cases, there might be an easier cauasation standard under Section 1983.  In any event, this analysis is supported by a similar conclusion come to by the Court in the Title IX realm in the Barnstable case a few years ago.

The one difference between this case and Barnstable is that you do not have to exhaust administrative remedies in Title IX cases like you do under the ADEA, so that may be a distinction which might make this case come out differently.  Court might place importance on the gatekeeping function the EEOC plays in ADEA cases and this may be seen as an end-around for some public employees (though Madigan brought both claims so must have exhausted administrative remedies).

This article was originally printed on Workplace Prof Blog on October 3, 2013.  Reprinted with permission.

About the Author: Paul Secunda is an associate professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

It’s the Final Countdown: How the Government Shutdown Affects Labor and Employment Law

Tuesday, October 1st, 2013

HymanJonathanTIn case you haven’t heard, as of 12:01 a.m. this morning, the federal government is closed. Your business will feel this shutdown in many ways, including in your interactions with the federal agencies that enforce the various labor and employment laws. Each has posted on its website a contingency plan for operations during the shutdown.

For example, the Equal Employment Opportunity Commission:

  1. Will accept and docket new charges, and examine if immediate injunctive relief is necessary.
  2. Will not conduct any investigations.
  3. Will not mediate any charges.
  4. Will not have staff available to answer questions or respond to correspondence.
  5. Will not litigate, unless a court denies a request for extension of time.
  6. Will not process any FOIA requests.

The Department of Labor and the National Labor Relations Board have each posted their own detailed shutdown plans. The bottom line, however, is that except for services that are absolutely essential, federal agencies will be closed until Congress works out its financial issues.

Federal courts, meanwhile, will remain open for business as usual for at least 10 business days, after which the Judiciary will reassess the situation.

Other federal services impacting employers that will be temporarily shuttered include e-Verify and the IRS.

While it difficult to predict how long this shutdown will last.The last shutdown of the federal government, spanning the end of 1995 to the beginning of 1996, lasted 28 days.

For now, if you have active matters with any federal agencies, expect for them to be on hold. Please remember is that while the EEOC and other agencies might be temporarily out of business, the laws that they enforce are not.

This article was originally printed on Ohio Employer’s Law Blog on October 1, 2013.  Reprinted with permission.

About the Author: Jonathan Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz.

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