PWFA’s Reasonable Accommodation Requirement

PWFA requires employers to provide reasonable accommodations to qualified employees (including applicants) with “known limitations” related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship. PWFA greatly expands what an employer was previously required to accommodate as it relates to pregnancy-related accommodations.

Under PWFA, a “known limitation” is defined as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions” whether or not the condition meets the definition of a “disability” under the Americans with Disabilities Act (“ADA”). That is, an employee can be entitled to a reasonable accommodation for a known limitation relating to pregnancy, childbirth, or related medical conditions, even if the limitation is not otherwise a “disability.”

An employee is “qualified” if they, “with or without reasonable accommodation, can perform the essential functions of the employment position.” Importantly, however, unlike accommodations for disabilities under the ADA, PWFA allows an employee to be “qualified” even if they cannot perform one or more essential functions of the job if the inability to perform the essential function(s) is “temporary,” the employee could perform the essential function(s) in the “near future,” and the inability to perform the essential function(s) can be reasonably accommodated.

The Final Regulations

The final regulations go into great detail regarding implementation of PWFA and provide numerous examples for reference.  While this article identifies some of the key takeaways from the final regulations, it does not exhaustively identify every regulation or example.

What is a “known limitation”?

Under the final regulations, a “known” limitation is one that has been communicated to an employer.  A “limitation” can include: (1) an impediment or problem that may be modest, minor and/or episodic; (2) a need or problem related to maintaining the employee’s health or the health of the pregnancy; or (3) seeking health care related to pregnancy, childbirth, or a related medical condition itself.

An employee is “qualified” even if unable to perform the essential functions of the position.

Under the ADA, an employee is no longer considered a “qualified employee” requiring reasonable accommodation if the employee, with or without reasonable accommodation, cannot perform the essential functions of the position.

As articulated in the final regulations, PWFA differs from the ADA in its clarification that an employee can still be “qualified” even if an employee is unable to perform one or more of the essential functions of their position if the inability to do so is (1) “temporary,” (2) the employee could perform the essential functions “in the near future,” and (3) the inability to perform the essential functions can be reasonably accommodated. 

“Temporary” is defined as “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’”  With respect to pregnancy, “in the near future” is generally within forty weeks.  However, whether an employee can perform the essential functions of the position “in the near future” in situations other than pregnancy, must be analyzed on a case-by-case basis.

With respect to whether the inability to perform the essential functions of the position can be “reasonably accommodated,” the regulations provide suggested ways a temporary suspension of essential functions can be reasonably accommodated. Depending on the position, the essential functions may be temporarily suspended (with or without reassignment to someone else) and the employee:

• • Continues to perform the remaining functions of the job;
  • May be assigned other tasks to replace the essential functions;
  • May perform the functions of a different job to which the employer temporarily transfers or assigns them; or
  • May participate in the employer’s light duty or modified duty program.

The regulations reiterate that employers are going to need to consider more than one alternative to identify potential reasonable accommodations that do not create an undue hardship when a qualified employee is temporarily unable to perform the essential functions of the position.

What are “reasonable accommodations”?

The regulations identify several specific examples of possible reasonable accommodations:

• • Frequent breaks
  • Sitting/standing
  • Schedule changes
  • Part-time work
  • Paid and unpaid leave
  • Telework
  • Parking
  • Light duty
  • Making existing facilities accessible or modifying the work environment
  • Job restructuring
  • Temporarily suspending one or more essential functions
  • Acquiring or modifying uniforms, equipment, or devices
  • Adjusting or modifying examinations or policies

The regulations also identify modifications that “in virtually all cases” will be found to be reasonable accommodations that do not pose an undue hardship:

• • Carrying or keeping water near and drink, as needed;
  • Taking additional restroom breaks, as needed;
  • Allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
  • Taking breaks to eat and drink, as needed.

What constitutes an “undue hardship”?

Generally, the undue hardship analysis will remain the same as it has been under the ADA, with one important distinction.  Because PWFA provides that an employer may have to accommodate an employee’s temporary inability to perform one or more essential functions of the position, the regulations identify additional factors to consider in determining whether a temporary suspension of one or more essential functions causes an undue hardship:

• • Consideration of the length of time the employee will be unable to perform the essential functions;
  • Whether there is work for the employee to accomplish;
  • The nature of the essential functions, including frequency;
  • Whether the employer has provided other employees in similar positions who are unable to perform the essential functions of their positions with temporary suspensions of those functions and duties;
  • If necessary, whether there are other employees, temporary employees, or third parties who can perform or be temporarily hired to perform the essential functions in question; and
  • Whether the essential functions can be postponed or remain unperformed for any length of time and, if so, for how long.

Can an employer request documentation to support an accommodation request?

An employer is not required to seek supporting documentation from an employee who requests an accommodation. If the employer does, it can only do so if it is reasonable to require documentation under the circumstances in order for the employer to determine whether the employee has a physical or mental condition related to, affected by, or rising out of pregnancy, childbirth, or related medical conditions and needs a change or adjustment at work.

The regulations identify situations where it is not reasonable to request documentation:

• • When the limitation and need for reasonable accommodation are obvious (i.e., when the employee is obviously pregnant);
  • When the employee has already provided sufficient information to substantiate that the employee has a known limitation and that a change or adjustment at work is needed;
  • When the employee is pregnant and the reasonable accommodation is one of the four accommodations that will be deemed reasonable in “virtually all cases”; and
  • When the limitation for which the accommodation is needed involves lactation or pumping.

Even when a request for documentation is reasonable, any such request must be limited to “reasonable documentation.”  “Reasonable documentation” is defined as documentation that is sufficient to confirm (1) the physical or mental condition; (2) that the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and (3)  and that a change or adjustment at work is needed.

What are the prohibited practices under the regulations?

Under PWFA, it is unlawful for an employer to:

1. 1. Not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, absent undue hardship;
   2. Require an employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
   3. Deny employment opportunities to an employee if the denial is based on the need or potential need of the employer to make reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions;
   4. Require an employee to take leave, whether paid or unpaid, if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of the employee, absent an undue hardship;
   5. Take adverse action in terms, conditions, or privileges of employment against an employee on account of the employee requesting or using a reasonable accommodation.

Importantly, the regulations also indicate that:

• • An unnecessary delay in responding to a reasonable accommodation request could constitute a violation of PWFA; and

• • An employer cannot justify the denial or delay of a reasonable accommodation based on an employee failing to provide supporting documentation unless the supporting documentation is reasonable under the circumstances.

Bottom Line  

The final regulations are a good resource for understanding the scope of PWFA and contain numerous examples and illustrations for reference.  This is particularly important given the implementation of PWFA will broaden an employer’s obligation to permit reasonable accommodations beyond prior legal requirements.

Employers should revisit their pregnancy-related accommodations policies.  To the extent such policies are based on the ADA, they will likely need to be revised to comply with PWFA and its implementing regulations.

Note, the PWFA does not replace federal, state, or local laws that are more protective of employees affected by pregnancy, childbirth, or related medical conditions. Minnesota law requires employers provide reasonable accommodations to employees “for health conditions related to pregnancy or childbirth,” unless the accommodation will cause an undue hardship on the operation of the employer’s business.  Minnesota’s pregnancy accommodation statute applies to employers with one or more employees, while PWFA applies to employers with 15 or more employees.

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The EEOC first released its proposed guidance on workplace harassment for public comment in 2017, however it was not considered ‘finalized’. This most recent updated proposed guidance reflects notable changes in the law, including discrimination based on gender orientation and sexual identity and recent social justice developments such as the #MeToo movement.

Here are some of the pertinent the components which provide guidance and insight for employers:

• • Anti-Harassment Policies and Procedures. The proposed guidance outlines ways that employers can develop anti-harassment policies, processes, and training as well as implementation. There are additional examples of an employer’s actions that can weigh both for and against a finding of an effective anti-harassment program.
  • Conducting Internal Investigations. The proposed guidance reinforces previous EEOC guidance regarding an employer’s duty to investigate harassment claims internally. However, it additionally notes that an investigation will be considered adequate if it “arrives at a reasonably fair estimate of truth” and is completed by an impartial party free from influence by the alleged harasser. The EEOC will assess the employer’s investigation and subsequent corrective actions based on how the employer utilized the “arsenal of incentives and sanctions” available to it to address the complained of harassment.
  • Systemic Harassment in the Workplace. The proposed guidance recommends that employers retain records of all harassment complaints and investigations in order to best identify patterns of harassment. According to the EEOC, retention of these records can help employers to further improve their harassment prevention measures and training to the extent that employers recognize patterns of practice. It should be noted that the proposed guidance emphasizes employers’ requirement to adopt remedies to address the pattern and practice of harassment rather than just individual complaints.
  • The EEOC Will Likely Pursue More Nuanced Legal Theories. There are a number of instances which suggest the EEOC will pursue more nuanced legal theories. For example, the guidance addresses “associational discrimination,” which has not previously garnered much attention. According to the EEOC, an individual can be harassed because the employee associates with someone in a different protected class or harassed because the complainant associates with someone in the same protected class. Such association may include, but is not limited to, close familial relationships, such as marriage, or close friendship with another individual belonging to a protected group. As another example, the EEOC indicates an individual may be able to establish a hostile work environment in situations where the employee’s job was merely “more difficult” because of the offending conduct. Examples like this suggest there will be an on-going push to expand legal theories and related remedies.

Key Takeaways:

• • Focus on Sexual Harassment. The proposed guidance reflected on updated statistics which place renewed focus on sexual harassment at work. Specifically, the guidance cites a 2021 Associated Press poll which reflected that, while only 35% say sexual misconduct is a very serious problem in the workplace (down from 56% in 2017), 54% say the recent attention to the issue has made them more likely to speak out if they were a victim of sexual misconduct, as well as 58% saying they are more willing to speak out if they were to witness it happening. The guidance also refers to a June 2016 report from the Commission’s Select Task Force on the Study of Harassment in the Workplace, which acknowledged that the severity of harassment may be enhanced if a complainant has reason to believe that the harasser is insulated from corrective action – i.e., where the alleged harasser was a highly valued employee, or the employer has previously failed to take appropriate corrective action in similar circumstances.
  • Emerging Issues Regarding Online Harassment. While the proposed guidance primarily addresses work-related incidents, the EEOC also discussed emerging issues outside of the office such as virtual or online harassment. Given the abundance of digital technology and the advent of social media (and its role in the workplace), the proposed guidance sheds light on the increased likelihood that electronic communications can contribute to a hostile work environment.
  • Updates on Protected Characteristic Standard. Utilizing recent EEO cases, the proposed guidance provides over a dozen detailed examples which address specific factors used to assess  workplace harassment.
  • Clarifications on the Severe-or-Pervasive Standard.  The proposed guidance purports to clarify that the “severe-or-pervasive” standard takes a “middle path” that requires the conduct to be more than merely offensive but does not require that the conduct caused psychological harm.  
  • Single Incidents and Hostile Work Environments. While the proposed guidance provides a number of examples that relate to systemic or repeated incidents of harassment, it also provides examples of conduct that courts have recently found sufficiently severe to establish a hostile work environment based on a single incident.

Bottom Line

As of October 2, 2023, the EEOC invited the public to submit its comments to the proposed guidance. The comment period will remain open until November 1, 2023, and can be found here.

Although the EEOC’s guidance does not have the force of the law, and therefore may be rejected by the court system, employers should nevertheless be aware of how the EEOC may evaluate and apply the law to various fact patterns. In that regard, this new guidance is useful in anticipating issues and the EEOC’s likely approach.

For questions about this new proposed guidance or other concerns regarding harassment in the workplace, please contact a member of our Labor & Employment Practice Group.

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The most important change is the EEOC’s shift on mandatory COVID-19 testing of employees who are or will be in the workplace.  At earlier points in the pandemic, the EEOC did not view mandatory testing to be a violation of the Americans with Disabilities Act (ADA).  However, in light of the decline in COVID-19 cases across the country, the EEOC now states that employers may administer a mandatory COVID-19 test to employees only if it is “job-related and consistent with business necessity.”  This standard is met if employers act consistent with current guidance from the CDC and other federal, state, and local public health agencies in light of current community transmission levels.  Employers must also evaluate employee vaccination status, the transmissibility of a particular rising variant, and the type of contact employees have with others while at work.  The guidance fails to provide any clear point upon which mandatory testing could be implemented.  Instead, the only thing clear from this guidance is the directive that employers cannot simply continue a mandatory employee testing policy with no consideration for the state of the pandemic.  Importantly, the guidance does makes clear that employers can continue to monitor and screen employees for COVID-19 symptoms and require employees to quarantine or work remotely if they are symptomatic or test positive.

The new EEOC guidance also addresses a number of other issues, including:

• Employers can still require employees to be vaccinated and boosted in order to come to the workplace, subject to religious and medical accommodations;
• Employers can require employees to provide a note from a medical professional that confirms they are safe to return to work after being infected with COVID-19;
• Employers cannot require employees to submit to antibody testing to enter the workplace as the CDC has deemed these tests to not accurately determine whether someone is currently infected; and
• The pandemic may temporarily excuse an employer from promptly responding to requests for reasonable accommodations under the ADA, particularly when a worksite reopens as there may be a substantial number of requests to respond to.

Bottom Line

As the pandemic evolves, so too does the EEOC’s position on workplace COVID-19 policies.  Nothing is static and employers must continue to be diligent in monitoring the ever-changing guidance from federal and state authorities, including the EEOC’s most recent guidance directing employers to monitor the spread of COVID-19 both nationally and locally.  Employers must keep an eye on their workplace policies and practices and adjust them as necessary as we continue to live with some version of a pandemic in the years to come.

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What happens once the Tuesday, May 17, 2022 deadline passes? Will I still be permitted to submit my 2021 EEO-1 Component 1 Report(s) if I have been unable to do so by the May 17, 2022 published deadline?

Yes. Following the May 17, 2022 published deadline, the EEOC will enter the “failure to file” phase. All filers who have not submitted and certified their mandatory 2021 EEO-1 Component 1 Report(s) by the Tuesday, May 17, 2022 published deadline will receive a notice of failure to file instructing them to submit and certify their data AS SOON AS POSSIBLE, and NO LATER THAN TUESDAY, JUNE 21, 2022. This additional time, through Tuesday, June 21st, 2022, will be available to ALL filers who have not submitted and certified their 2021 EEO-1 Component 1 Report(s) by the May 17, 2022 published deadline

Please be advised that AFTER the June 21, 2022 deadline passes, NO additional 2021 EEO-1 Component 1 Reports will be accepted, and eligible filers will be out of compliance with their mandatory 2021 EEO-1 Component 1 filing obligation.

Bottom Line

Historically, covered employers have been unable to post their EEO-1 Report after the deadline. Accordingly, though covered employers should diligently prepare their 2021 EEO-1 Component 1 Report with the goal of complying with the deadline, the FAQ may provide covered employers some comfort knowing they will have an additional 35 days to file the Report if necessary.

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Earlier this month, the EEOC announced the opening of the 2021 EEO-1 Component 1 data collection, meaning certain federal contractors and private employers can now file their 2021 EEO-1 Report.

Federal contractors and first-tier subcontractors with 50 or more employees and a federal government contract/subcontract amounting to $50,000 or more are obligated to file an EEO-1 Report. Likewise, private employers with 100 or more employees are also obligated to file an EEO-1 Report. The deadline to file the 2021 EEO-1 Report is May 17, 2022. To meet this deadline, the EEOC strongly encourages eligible filers to begin the filing process as soon as possible.

The 2021 EEO-1 Report must be filed using the EEOC’s online filing system.

OFCCP Contractor Portal Certification

Supply and service federal contractors and subcontractors who (a) hold a federal government contract/subcontract amounting to $50,000 or more and (b) employ 50 or more employees must register and certify that they are meeting their requirement to develop and maintain applicable annual affirmative action programs on or before June 30, 2022, through the OFCCP Contractor Portal. Though certifications are not due until June 30, covered contractors/subcontractors are strongly encouraged to register now through the OFCCP Contractor Portal even if they are not prepared to provide the requisite certifications for each of its establishments and/or functional/business unit, as applicable, at this time, and should not wait until June 30 to provide the requisite certifications due to potential issues with the portal due to high-volume usage.

Bottom Line

The deadlines for these reports and certifications are quickly approaching. If you are a federal contactor or employer with questions, please do not hesitate to contact a Felhaber Larson attorney.

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Title VII’s Broad Definition of Religion

Title VII defines religion broadly to include “all aspects of religious observance and practice as well as belief.”  Religion is not limited to mainstream denominations such as Christianity, Judaism or Islam, and includes nontraditional, uncommon, or even seemingly illogical or unreasonable religious beliefs.  While adherents of the satirical Church of the Flying Spaghetti Monster may be out of luck, employers should keep an open mind when presented with an accommodation request relating to an unfamiliar religion.  However, the definition of religion is not limitless.  “Social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.”

The Burden is on the Employee/Applicant to Request an Exception

The EEOC clarified that the onus is on the employee or applicant to request a religious exception, though employers should be aware that employees are not required to use any “magic” words such as “religious exception” or “sincerely held religious belief”.  Instead, employees must “notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.”

Employers Should Trust, But Can Verify

Employers facing a major influx in religious exception requests may be wondering whether they can challenge these requests.  While employers should typically accept an employee’s claim that their religious beliefs are sincerely held, that is not the final word on the matter.  Employers can request verification from an employee or applicant when it has an objective reason to doubt an employee’s sincerity of the religious belief, the religious nature of the objection to the vaccine, or an employee’s explanation of how their religious beliefs conflict with the vaccine mandate.

Religious Exceptions That Create an Undue Hardship May be Denied

The EEOC clarified that if a request for religious exception to the vaccine causes an undue hardship on the employers’ operations, the request may be denied.  Some examples of situations where courts have found undue hardship include when the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.  However, before an employer denies an exception request due to undue hardship, the company should consider whether alternative accommodations, such as continuing to allow telework, would be feasible.

Bottom Line

Employers who implement vaccination mandates must be prepared to evaluate requests for religious exceptions.  Understanding when an employer can seek verification relating to an employee’s religious beliefs and whether a particular request can be denied based on undue hardship will be important.  Employers can avoid potential issues by creating processes for applicants and employees to request religious exceptions, training up a centralized team who can review and approve or deny the requests, and ensuring decisions are made as objectively and consistently as possible while documenting all actions taken in the accommodation request process.

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The Bostock Decision

The Bostock case was a consolidation of three cases alleging discrimination against LGBTQ+ workers, which the Supreme Court decided together in a single opinion.  Gerald Bostock, a child welfare services coordinator, was fired after his employer learned he joined a gay softball league.  Donald Zarda was fired from his position as a skydiving instructor after his employer learned that he was gay.  Aimee Stephens, a funeral director, was fired after her employer learned she was going to begin presenting as female after undergoing gender reassignment surgery.

The Supreme Court held that employment discrimination based on sexual orientation or transgender status constitutes discrimination “because of sex” and, therefore, violates Title VII.  The Court acknowledged that, in 1964 when Title VII was enacted, few would have expected the law to apply to discrimination against gay and transgender persons.  However, the majority of the Court found its holding inescapable given the plain language of the statute unambiguously prohibits the discriminatory practice.  As Justice Gorsuch, writing for the majority, explained, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The Guidance

The Guidance provides added clarity about the obligations of employers and the rights of LGBTQ+ workers, including the following:

• • Employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.  “In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.”
  • In certain circumstances, use of pronouns or names that are inconsistent with an individual’s gender identity may be considered unlawful harassment.  While accidental misuse of a transgender employee’s preferred pronouns does not violate Title VII, “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”
  • Employers cannot require a transgender employee to dress in accordance with the employee’s sex assigned at birth.  “Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.”
  • Employers are prohibited from discriminating against an employee because that employee does not conform to a sex-based stereotype about feminine or masculine behavior (regardless of whether the employer knows the employee’s sexual orientation or gender identity).
  • Employers cannot justify discriminatory action based on customer or client preferences.  Employers may not fire, refuse to hire, or otherwise discriminate against someone because customers or clients would prefer to work with people who have a different sexual orientation or gender identity.  For example, an employer cannot keep LGBTQ+ employees out of public-facing positions or direct those employees toward certain stores or geographic areas.
  • Non-LGBTQ+ applicants and employees are also protected against sexual orientation and gender identity discrimination.  For example, employers are prohibited from discriminating against employees because they are straight or cisgender.

Bottom Line

While the EEOC stated that the information in the Guidance was not new policy, it is an important reminder to employers and workers alike of the rights of LGBTQ+ individuals to be free of discrimination in the workplace.  Employers must be aware that Title VII’s prohibition of discrimination based on sex includes sexual orientation and gender identity.

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Religious Discrimination and Accommodation Under Title VII

By brief background, Title VII prohibits an employer from discriminating against an employee because of their religion. Additionally, Title VII requires employers to accommodate employees’ sincerely held religious beliefs, practices, and observances, unless doing so imposes an “undue hardship” (i.e. a more than de minimus cost or burden) upon the business.

These two requirements often find themselves in conflict with one another. Indeed, the Compliance Manual recognizes that “some employees may perceive proselytizing or other religious expression as unwelcome based on their own religious beliefs and observances, or lack thereof” while simultaneously noting that in certain circumstances, an employee’s desire to proselytize may itself need to be accommodated. To that effect, the revised Manual provides some additional guidance for employers in navigating this issue.

“Religious Discrimination” Includes Discrimination Against the Secular

First, the revised Compliance Manual now notes in the definition section’s “overview” that “[i]ndividuals who do not practice any religion are also protected from discrimination on the basis of religion or lack thereof.” Courts have long interpreted Title VII to prohibit discrimination and harassment against an employee due to their “lack” of religion, and this was recognized in the prior version of the Manual as well. However new language in the revision more prominently reiterates this point.

Religious Expression in the workplace

An employee may experience an actionable hostile work environment if they are subjected to conduct “sufficiently severe or pervasive” “to alter the conditions of [the victim’s] employment and create an abusive working environment” as a result of their religious beliefs or lack thereof. The revised Manual adds a new example to help clarify where the “severe or pervasive” line is, specifically adding the following scenario:

“Isolated Practices Not Enough to Constitute Hostile Environment

Tran owns a restaurant serving Asian-fusion cuisine.  The restaurant is decorated with Vietnamese art depicting scenes from traditional religious stories.  Tran keeps a shrine of Buddha in the corner by the cash register and likes to play traditional Vietnamese music and chants. Linda has worked as a waitress in the restaurant for a few months and complains that she feels harassed by the religious symbols and music.  As long as Tran does not discriminate on the basis of religion in his hiring or supervision of employees, the religious expression would likely not amount to practices that are severe or pervasive enough to constitute a hostile work environment based on religion.”

Additionally, the revised Manual adds the following point with respect to employees who allege that they are subjected to a religious hostile work environment based upon the social media activity of their coworkers:

“A coworker having a difference of opinion with an employee’s religious views does not establish a hostile work environment when there is no other evidence of harassment.  This would include when a coworker disagrees with the religious views that an employee expresses outside of the workplace, for example on social media, when there is no evidence it is linked to the workplace.”

Bottom Line

While the revised Compliance Manual does not contain any major changes with respect to the EEOC’s views regarding discrimination on the basis of religion or the duty to accommodate religious beliefs, its issuance provides a good reminder for employers that, under certain circumstances, accommodations may be needed regarding an employee’s religious beliefs, even if those accommodations have some impact on other employees.

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Then, envision a settlement meeting where the EEOC announces that they also are negotiating for five other employees whom they say suffered the same type of discrimination, yet they refuse to divulge their names or the details of their claims.

That is how the EEOC has done things for years. Not surprisingly, this process has resulted in what even the EEOC acknowledges to be a disappointingly low percentage of settled cases.  In fact, fully one-third of all employers who receive adverse rulings refuse even to participate in such settlement discussions, and EEOC’s overall success rate in settling cases after issuing findings against the employer is just a shade over 25%.

New Proposal

In the hope of drawing more employers into the process, and reduce their reliance on costly litigation, the EEOC has announced a proposed change to their conciliation rules that they believe will “provide greater clarity to the conciliation process [and]….enhance the effectiveness of the process.” This proposal entails providing the employer with the following information:

– A summary of the facts and non-privileged information relied upon to reach the adverse ruling;

– A summary of the legal basis for finding against the employer, including an explanation as to how the law was applied to the pertinent facts;

– The criteria used to identify other employees for whom relief will be sought;

– The basis for any damages or other relief sought for the claimant, including the calculations underlying the initial settlement proposal; and

– Identification of any systemic, class, or pattern or practice designation that might prompt the EEOC to seek class-based relief.

The changes would apply to all charges under the various laws that EEOC administers, including Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) and the Genetic Information Nondiscrimination Act (GINA).

Employers would have at least 14 calendar days to review and respond to EEOC’s initial settlement proposal.

Initial Reactions

Interestingly, some employee advocates believe that this proposed change will work to the employer’s advantage by giving them a head start on preparing their defenses to the employee’s claims.  They also worry that divulging the names of other employees whom the EEOC believes to have been wronged places those persons in danger of possible retaliation.

Management representatives see things differently, arguing that more information will almost certainly lead to more settlements.  After all, if the EEOC can credibly articulate their critique of the employer’s position, while also proposing reasonable settlement terms tied to the specifics of the case, a reasonable employer is likely to give greater consideration to the benefits of a possible settlement.  In short, a more fruitful settlement process can be envisioned if the EEOC comes to the table with more than just “take our word for it.”

Bottom Line

The EEOC is proposing to implement this change after a shortened public comment period (30 days instead of the customary 60), in an apparent effort to finalize the new process before a possible change in administration after the election next month.

We will update you if and when his proposal becomes effective.

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Let’s look at the Chair’s five stated priorities:

Priority No. 1 – Continuing to Provide Excellent Customer Service

This is said to include handling charges promptly, embracing technology and data collection methods, and support for their “front-line employees.”  Please forgive a bit of cynicism but an agency known for taking a year or more even to initiate their investigations probably should not be trumpeting their intent to continue this brand of excellent (?) service.

Priority No. 1 really just says “Let’s keep doing what we have been doing.”  Bold thought indeed.

Priority No. 2 – Continuing to Provide Robust Compliance Assistance

There’s that word “continuing” again.  Apparently we are to believe that the EEOC has been working hard as the employer’s partner – our good buddy – who helps us stay on the correct side of the law.  Raise your hand if you have benefitted from EEOC’s robust help.  Anyone?

Interestingly, this priority includes updating their written guidance documents and rescinding those that are “out-of-date, raise the potential for confusion among our stakeholders, or exceed[s] the Commission’s statutory authority.”

So, perhaps Priority No. 2 can be interpreted as “We’re going to keep doing what we have been doing but we are going to try not to be so wrong about it.”

Priority No. 3 – Enhancing Our Efforts to Reach Vulnerable Workers

This is actually a new commitment, and kudos to Chairperson Dhillon for focusing on the need to “re-examine our efforts to reach vulnerable workers in our society and make adjustments as necessary.” One problem, though, is that the Chair did not identify who these vulnerable workers are.  That leads us to suspect that the 2021 priorities list will include: “Continuing our efforts to identify and reach vulnerable workers.”

Therefore, Priority No. 3 can be summarized as “We will make an effort to reach out to vulnerable workers just as soon as we figure out who they are.”

Priority No. 4 – Strategically Allocating Commission Resources

The EEOC plans to place greater efforts on mediation and conciliation, spend less time suing people, and refrain from seeking to “enforce statutes outside of our jurisdiction or seek remedies that are not authorized under the laws that the EEOC is authorized to enforce.”  This last item presumably means that the EEOC will back away from their efforts to apply Title VII to claims of sexual orientation discrimination.

Priority No. 4 interpretation – We’re going to work hard just on settling the cases we have without trying to make more work for ourselves.

Priority No. 5 – Continuing EEOC’s Efforts to be a Model Workplace

The EEOC wants to be a model of an effective, inclusive workforce.  That’s great but this shouldn’t this just be a minimal expectation for the agency that is devoted to telling all of us that we should be effective, inclusive employers?

Priority No. 5 is just code for “Wouldn’t it be embarrassing if we got sued for discrimination?”

Bottom Line

Final Tally:

3 priorities that focus just on continuing to do what they do.

1 priority centered on helping a particular group of people but not identifying who those people are.

1 priority of just keeping their own house in order.

Perhaps EEOC is of the opinion that it is best to meet limited expectations than to fall short of loftier goals. If so, this should be a banner year for them.

The post EEOC Chair Offers Modest (At Best) Priorities for 2020 appeared first on Felhaber Larson.

As we reported in EEO-1 Pay Data is Now Due By September 30, the Obama Administration adopted “Component 2” of the EEO-1 report requiring the submission of comprehensive data on employee pay and hours worked to the EEOC.  This required approval from the federal Office of Management and Budget (“OMB”), and approval was granted to obtain the data for years 2017 and 2018.

EEOC Says Never Mind

With the change in administrations in Washington, the OMB stayed the implementation of the Component 2 requirement but various advocacy groups sued in federal court to get the stay lifted.  In April 2019, a federal district court judge concluded that OMB did not have a valid basis for blocking the implementation of the Component 2 requirement and ordered covered employers to submit the Component 2 data by September 30, 2019.

Meanwhile, OMB’s approval of the overall EEO-1 Report is set to expire at the end of this month.  This prompted EEOC to file this week with OMB to renew their request to require completed EEO-1 reports (which require data on race and gender within designated job groupings).  However, the EEOC request clarified that they are NOT seeking to renew the request for Component 2 data collection.  This very likely signals the end of Component 2 reporting.

The EEOC explained their non-renewal of Component 2 reporting by noting that they are obligated to “balance the utility of the data it collects against the burden the data collection…imposes on the employers who must submit it.”  The burden in this instance stems from their original prediction that the total cost for completing both Components 1 and 2 of the EEO-1 was between 53 and 54 million dollars.  However, EEOC now says that their “more accurate methodology” for calculating the burden places it at over 600 million dollars for both 2017 and 2018.  They concluded that the limited value of the Component 2 data did not justify this enormous expense for employers.

Accordingly, covered employers still need to meet the September 30 deadline for submitting the 2017 and 2018 data but after that, the coast seems clear.

Bottom Line

The end result is that even though the current administration was not interested in the data, a court forced them to collect it anyway.  It is unlikely that they will use the data and they do not intend to seek it in the future, meaning that all those employers who developed systems for collecting and sorting the data now find those systems already obsolete.  To top it off, the total cost for this grand experiment was more than 10 times the original estimate.

One final kicker – the court decision finding that OMB did not have a valid basis for staying implementation of Component 2 data collection is still on appeal.  If the Appeals Court does not find the issue moot, they could reverse the district court and conclude that OMB actually did have the right to stay implementation.  This would mean that the Component 2 data that the administration did not want to collect should not have been collected at all, and that all of the time, effort and expense of collecting it could and should have been avoided.

What a long strange trip it’s been.

The post EEOC Announces That Pay Data Reporting Will Be Discontinued appeared first on Felhaber Larson.

In our post entitled Will Employers Have to Begin Reporting Pay Data to EEOC?, we recounted how the Office of Management and Budget had (OMB) imposed a stay on the Obama administration’s plan to require employers to submit pay and hours data as part of the EEO-1 Report. The National Women’s Law Center, among others, filed a lawsuit challenging OMB’s decision and D.C. District Court Judge Tanya S. Chutkan ruled that the stay was must be lifted.

The Department of Justice has appealed Judge Chutkan’s ruling but the lifting of the stay on the requirement to submit pay data remains in effect.  In other words, the data must be submitted.

What has to be submitted

That then left the questions of what data had to be submitted and when.   We now have the answers:

– Employers must collect the pay and hours data for calendar years 2017 and 2018.

– The deadline for submitting the data is September 30, 2019.

The EEOC plans to open their portal to retrieve the information electronically sometime in July of this year.

What Employers Should Do Now

First, start figuring out how to collect all of the requested data and what obstacles you might have to overcome if it is not readily attainable.

Once you have the data, see if any disparities leap out at you.  If so, consider how you might remedy those disparities.  Even if you cannot do so by September 30, the fact that you have a plan in place and are implementing it should help avoid citation by the EEOC.

Do your best to comply with the September 30, 2019, but recognize that many employers will be unable to do so and the EEOC is expected to be pretty forgiving on this first go-around.

Watch for a decision on the DOJ’s appeal.

Bottom Line

If you have not already done so, put in place an HR system that will track this data effectively from now on.  It appears that this requirement is here to stay.

The post EEO-1 Pay Data is Now Due By September 30 appeared first on Felhaber Larson.

The Obama administration proposed adding pay and hours data to the EEO-1 Report, the annual report on job categories by race/ethnicity and gender that all employers of 100 or more employees (and all federal contractors and subcontractors with at least 50 employees) must file on an annual basis.  This was intended to assist the EEOC and the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in tracking pay disparities within specific occupations and industries.

When the Trump administration took office, the Office of Management and Budget (OMB) issued a stay on the requirement for pay data on the grounds that it was too burdensome for employers.  However, the National Women’s Law Center, among others, filed a lawsuit challenging OMB’s decision.  On March 4, 2019, D.C. District Court Judge Tanya S. Chutkan ruled that the stay was “arbitrary and capricious” and ordered OMB to lift it.

What Does This Mean?

Determining next steps is complicated.  The EEO-1 Reports are supposed to be filed by May 31, leaving covered employers with precious little time to gear up for the collection of the additional pay data.  While it is possible that the OMB could appeal the ruling, an appeal is not at all certain, nor is it clear that the judge’s ruling would be held in abeyance even if an appeal is filed.   Thus, employers might face the prospect of having less than 90 days to collect and submit pay data that they originally had 15 months to assemble.

Meanwhile, the EEOC awaits confirmation of a new Chair.  If that happens, the EEOC’s political make-up might shift enough to result in their decision to discontinue the order seeking the pay data altogether.  It is also possible that the EEOC could extend the deadline for submitting this data in light of the tortured path that the requirement has traveled thus far.

Bottom Line

One thing is certain in all of this – nothing is certain.  We do not know if the data will have to be collected or when it will be due if indeed it is required.  On the other hand, the May 31 deadline is currently in place so the clock may indeed be ticking.

It may be a good idea for covered employers to begin collecting and reviewing their pay data.  Ordinarily, we would suggest seeking assistance in the process from the EEOC’s previously-issued guidance and instructions but alas, they have been removed from the EEOC website.  Let’s hope employers get a little more guidance on all of this soon.  We will be watching for it.

The post Will Employers Have to Begin Reporting Pay Data to EEOC? appeared first on Felhaber Larson.

Charge Filing

The fact that the government has shut down does not affect statutorily-determined filing periods. Therefore, the EEOC’s notice reminds potential charge-filers of the filing period (300 days in most states, including Minnesota).  It then directs the individual to download, complete and submit the EEOC Pre-Charge Inquiry.   This must be done by mail or fax to the nearest EEOC office since their electronic portal for document submission is not operative during the shut-down.

Interestingly, the notice states that once the form is submitted and it appears that the filing period will expire within 30 days, someone will contact the individual and make sure that the charge is properly filed despite the shut-down.  Thus, it would seem that there is at least one EEOC staffer continuing to work at the various offices to review incoming questionnaires and arrange for charge-filing if the deadline is approaching.

The notice further states that if the filing period is set to expire within 30 days, the individual can file a charge directly by sending EEOC a dated and signed letter stating the following information:

• The filer’s name, address and phone number;
• The name, address and phone number of the employer, union, or other entity that allegedly discriminated against the individual;
• The job action that the individual believes was discriminatory, when it occurred, and which protected classification forms the basis of the allegation; and
• A request for the EEOC to take remedial action.

If intake appointments had been previously scheduled, they are being cancelled on a daily basis as each day of the shut-down passes.   However, if the filing period for the charge will expire 30 days, the EEOC will proceed with the intake interview.

Charge Processing

The notice states that all charges filed during the shutdown will be sent to the employer and/or other entity named in the charge just as is done during normal EEOC operations.  It says nothing, however, about whether the Respondent must observe the required time frame for responding to the charge (typically 30 days).  While it seems reasonable to assume that the response period will not been forced during the shut-down, it seems more reasonable not to take anything for granted.  Thus, employers are well advised to file those responses in a timely manner.

Remember, though, that the electronic portal is closed during the shut-down so the response should be mailed or faxed to the office issuing the charge (and proof of service should be maintained).  Once the shut-down ends, the EEOC might still request that the response be uploaded into the electronic portal but at least your bases will have been covered in the interim.

Investigations and mediations of pending charges are currently on hold and will resume once the shut-down concludes. However, if a party having received a decision wishes to file a request for reconsideration, the notice states that those requests must still be submitted within the required time frame.  However, no action will be taken on those requests until the shut-down ends.

Finally, requests for data under the Freedom of Information Act will still be taken via e-mail, fax or US mail but will not be acted upon until the shut-down ends.

Litigation

 If EEOC is currently litigating a claim on behalf of an employee, that litigation is suspended unless the court in which the trial is held has declined to provide a continuance.

Bottom Line

 For an agency continually beset by backlogs and delays, this isn’t helping.

The post What’s Happening at EEOC During the Shut-Down? Not Much. appeared first on Felhaber Larson.

In the typical case, a charge from the EEOC is accompanied by an information request seeking a list of employees with various identifying information, including home address and telephone number.

Often, these requests are burdensome and seem to be mere fishing expeditions because they seek a large amount of data about departments, facilities and job classifications that are unrelated to the charge at hand.

Hand Over Everything

In the case that the Supreme Court reviewed, Damiana Ochoa took a maternity leave from her physically demanding job with the employer. When she sought to return, the company applied its standard rule of requiring a physical evaluation of everyone hired into that job or returning to it after more than 30 days.

Ochoa failed the evaluation three times and was subsequently terminated, leading her to file a charge of sex discrimination with the Equal Employment Opportunity (EEOC). As part of their investigation, the EEOC issued a relatively standard information request seeking the names, addresses, telephone numbers and other identifying information of every employee who had been required to undergo the evaluation. However, when they expanded the inquiry to cover the company’s entire national operations (and also to request information regarding possible age-based motivations), the company declined to respond, leading the EEOC to issue subpoenas for the requested information.

Still, the company balked, leading the EEOC to file an action with the federal district court to enforce the subpoenas. The District Judge declined, finding that the requested information to be irrelevant to the claims since the employees whose addresses and phone numbers were sought would not have any insight into whether the company’s practices were or were not illegal.   The Ninth Circuit Court of Appeals reversed, leading to an appeal to the Supreme Court seeking a ruling on the correct standard to apply in evaluating the legitimacy of an EEOC subpoena.

A High Bar is Set

The Supreme Court declared that an EEOC subpoena should always be enforced unless a court concludes that it was an abuse of their discretion to issue it in the first place. This abuse-of-discretion threshold is a very high bar to meet, and is consistent with what the Supreme Court has already deemed proper for the  National Labor Relations Board (“NLRB”), another federal agency that issues subpoenas under similar circumstances.

The Supreme Court did, however, give employers a little breathing room on this issue. They ruled that the decision to enforce an EEOC subpoena is not to be decided according to precise or standardized rules of what is or is not an abuse of discretion.  Instead, each subpoena must be reviewed on a case-by-case basis according to the particular circumstances of the case at hand, and employers will still get a shot at proving that the subpoena seeks irrelevant information, is excessively burdensome or in some other manner is completely inappropriate.

Bottom Line

This was a disappointing decision for employer that will make defending EEOC charges more time-consuming and difficult.

Still, employers should continue trying to limit the scope of EEOC information requests through negotiation and compromise in the hope that the agency is not interested in receiving excessive information any more than you are in providing it.

The post Supreme Court Affirms Broad EEOC Subpoena Powers appeared first on Felhaber Larson.

CMS of Mobile, Alabama, hired Chastity Jones as a customer service representative.  The job was performed solely via telephone and computer with no personal interactions with customers.  However, when the company told Jones, an African American, that she would have to cut her dreadlocks,  Jones refused.  The company then rescinded the job offer.

Dreadlocks Don’t Make the Cut

CMS maintained a grooming policy that read:

“All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. . . [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.

Jones filed a charge of race discrimination with the Equal Employment Opportunity Commission (EEOC) who found in her favor.  They then sued CMS in Federal court on Jones’ behalf, claiming that enforcing the grooming policy to preclude dreadlocks was an act of intentional race discrimination against African Americans.

The District Court dismissed the case, determining that Title VII protects against discrimination only on the basis of immutable characteristics, i.e. those that people typically cannot change, such as race, color, or natural origin. Notwithstanding that a particular hairstyle (or manner of dress or other cultural attribute) may be very closely associated with a certain race, it is a changeable matter of personal choice that the law simply does not protect. EEOC then appealed to the 11^th Circuit Court of Appeals.

A Matter of Style And Substance

In reviewing the matter, the Appeals Court emphasized that the EEOC chose not to argue the case under the theory of disparate impact.  A disparate impact claim requires a showing that an otherwise neutral employment policy has a disproportionately adverse effect upon a protected group, and that the business purpose of such a policy does not justify the discriminatory impact. Therefore, EEOC could not attack the grooming policy on the grounds that it unfairly screened out African Americans from employment with CSM.

Instead, EEOC claimed that by deciding that dreadlocks were not “professional” or “businesslike” as the grooming policy requires, CSM intentionally sought to keep black persons from working for them.  They agued that race is more than merely a set of physical characteristics.  Instead, the concept is a social construct that encompasses cultural manifestations such as hair, clothing and “grooming practices.”

In particular, although not exclusive to black persons, EEOC suggested that dreadlocks are generally viewed as a racial characteristic of black people due to the unique texture of their hair and how well it adapts to that type of styling.   When black persons “choose to wear and display their hair in its natural texture in the workplace, rather than straightening it or hiding it, they are often stereotyped as…not sufficiently assimilated into the corporate and professional world of employment.” Such stereotyping is precisely what Title VII was enacted to address.

EEOC’s Claim Gets Sheared

The Court of Appeals disagreed, noting that while Title VII does not define the term “race”, it seems likely that Congress intended it to apply to “common physical characteristics shared by a group of people and transmitted by their ancestors over time.” They concluded that it is “not much of a linguistic stretch” to find that this refers to traits that are a “matter of birth, and not culture.”

The court acknowledged that there might be a fine line between what are immutable and mutable characteristics of race but in light of the complexity of race issues today, it would be best to let Congress resolve what Title VII actually means when it refers to “race.” Until then, the court’s job is to interpret and apply the law as it exists, and they felt that the law did not offer protection to voluntary choices of how employees choose to dress or wear their hair.

Bottom Line

It is not clear why EEOC elected not to pursue this matter as a disparate impact case.  Perhaps the policy’s ban on all “excessive hairstyles or unusual colors” suggested to them that dreadlocks would only be one of many hairstyles to be outlawed, and that the racial impact of the policy would be diluted.

Do not be surprised if EEOC considers issuing new regulations or guidance advising us that banning dreadlocks or other cultural manifestations of racial identity constitute unlawful racial discrimination.  This would give them a little more support if they choose to take up this challenge again in a future case.

The post Court Upbraids EEOC For Contesting No-Dreadlocks Policy appeared first on Felhaber Larson.

The Resource is not a new policy.  It simply consolidates the EEOC’s existing views in response to what they consider “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.”

Equal Access to Leave…and Beyond

The Resource starts by reminding us that employees with disabilities must have the same access to leave as all other similarly situated employees. The Resource explains, for example, that if an employer allows paid leave without requiring explanation for the absence, a disabled employee must be allowed the same right without either having to provide a medical reason or being relegated to using a particular sick leave benefit.

The Resource then addresses leave as an accommodation, noting that the “purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.” Thus, employers must consider an unpaid leave of absence as a possible reasonable accommodation even when:

–  the employer does not offer leave as an employee benefit;

–  the employee is not eligible for leave under the employer’s policy; or

–  the employee has exhausted the leave the employer provides as a benefit (including legally mandated leave such as the Family and Medical Leave Act or similar leaves under state law).

Of course, as with all accommodations, leave can be denied if providing the leave would impose an undue hardship.

A Request For Leave Must be Treated as a Request for Reasonable Accommodation

The Resource states that a request for leave due to a medical condition must be treated as a request for a reasonable accommodation, which therefore requires initiation of the interactive process required by the EEOC.

For this reason, employers must be wary of using one-size-fits-all approaches to leaves. For example,

–  While employers may establish maximum durations for leaves, a leave beyond the stated maximum may have to be granted as an accommodation for an employee with a disability.  In other words, this may be one of those times when the employer must ignore its own policy in order to accommodate a disability.

–  The use of “form letters” telling employees they will be fired if they do not return by a specified date is problematic.  Instead, the Resource states that such letters should inform employees that if more time off is needed as an accommodation for a disability, they must notify the employer as soon as possible.

–  Preventing employees from returning to work unless they have no medical restrictions (often referred to as “100% healed” policies) is not permissible. Instead, the relevant question is whether the employee can return to work with a reasonable accommodation.

–  An employer may not deny a return to work on the grounds that the employee’s medical restrictions pose a safety risk unless the employer can prove that the employee poses a “direct threat”, defined as “a significant risk of substantial harm to self or to others that cannot be eliminated or diminished with a reasonable accommodation.”

Conducting the Interactive Process.

As noted above, the EEOC asserts that a request for medical leave is by definition a request for accommodation.  If the request falls within the confines of FMLA, workers comp or some other applicable law, leave may be granted under those requirements.  Otherwise, the employer should undertake what the EEOC’s calls the “interactive process”, a collaborative inquiry where the employers obtains input from the employee, the employee’s health care providers and other relevant contributors to determine whether and to what extent a leave or other accommodation might be needed.

In most cases, the interactive process regarding a leave request should zero in on the following information:

–  Why the accommodation is needed (e.g. surgery, physical therapy, counseling);

–  Whether the time off will be continuous or on an intermittent basis; and

–  When will the leave end.

In most cases, this information will be sufficient to permit the employer to make an appropriate decision on an accommodation request.

The Right to Return to Work

The Resource makes clear that the right to a leave includes the right to return to work.  However, there may be times when an employee’s need for a leave (or the need for a leave to continue) presents an undue hardship requiring that the employee’s job be filled.  The Resource is not terribly helpful on this point, saying only that if the job is filled via promotion, the employer might conclude that the employee on leave is qualified for the position that the newly-promoted individual vacated, and that holding that job open for the employee on leave would be an appropriate accommodation.

However, the Resource did not address the more common situation where the employer must fill the vacant job with someone on the outside such that there is no other job to hold open for the employee on leave.  It seems likely that in such cases, the EEOC would still find that a continuing obligation to accommodate exists and that the employer must continue to keep the disabled employee on a leave for a reasonable period to see if a suitable vacancy might exist if and when the employee is cleared to return.

The Resource also reaffirmed the critical right of employers to decide that indefinite leaves (those where an employee cannot say whether or when they will be able to return to work at all) constitute an undue hardship and do not have to be accommodated.

Bottom Line:

Although the Resource does not establish new law or policy, the examples that it contains are instructive for employers, and the consolidation of agency policy gives employers a good starting point in evaluating whether a leave of absence might be a required accommodation in any particular situation.

The post EEOC Issues Guide on Leaves as ADA Accommodation appeared first on Felhaber Larson.

Entitled “Bathroom Access Rights for Transgender Employees Under Title VII”, the Fact Sheet first restates EEOC’s position adopted in their ruling in Macy v. Holder that discrimination based on transgender status violates Title VII’s prohibition against sex discrimination.   It then cites their decision in Lusardi v. Dept. of Army that announced the following three principles:

–  denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;

–  an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,

–  an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

The publication of the Fact Sheet appears to be EEOC’s effort to preempt different viewpoints that might lead to workplace conflict.  In this regard, the Fact Sheet explicitly states that employees should be able to use the bathroom that conforms with their own gender identity, and “[g]ender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment.”

Finally, should a state seek to legislate a different conclusion, as North Carolina did recently, the Fact Sheet pointedly warns that “[c]ontrary state law is not a defense” to complying with Title VII.

But What Does the Law Say?

Remember, EEOC’s pronouncements do not have the force of law; they are merely expressions of intent from the government agency responsible for administering a particular statute.  Still, any employer following a different path can anticipate an eventual battle with EEOC, who is not at all reluctant to go to extreme lengths merely to prove their point.

EEOC’s position on this issue seems to draw support from the general view of the rights of transgender individuals in federal and state discrimination law.  Although Title VII does not expressly address transgender status, courts applying its ban on sex discrimination are increasingly agreeing with the EEOC in ruling that discrimination based on transgender status violates Title VII because it is based on perceptions of how men or women should behave.

The Minnesota Human Rights Act, our state equivalent to Title VII, goes even further in setting forth an explicit ban on sexual orientation discrimination.  The term “sexual orientation” is defined to include persons “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.”

Bottom Line:

The current trend in both the courts and governmental agencies is to interpret laws banning sex discrimination to include protections for transgender people.   The EEOC’s Fact Sheet makes their position very clear, and we can be very certain that EEOC will be aggressive in enforcing their opinion whenever the opportunity arises.

The post EEOC Opens the Bathroom Door appeared first on Felhaber Larson.

The workers, who are mostly Somalian immigrants, allege that the Cargill facility in Fort Morgan, Colorado, restricted them from leaving their work stations for brief prayer sessions. They contend that this deviated from a long-standing practice that was more lenient in regard to prayer breaks.

Workers Lose Faith in Employer Practice 

The issue came to a head in December last year when the workers claimed that they were not allowed to leave their work stations to pray. Thereafter, they walked off their jobs and then refused to report for work or call in for three consecutive days, which violated the company’s attendance policy.  As a result, Cargill terminated their employment.

The discrimination charges were filed with the Equal Employment Opportunity Commission (EEOC) and revolve around an employer’s obligation under Title VII of the Federal Civil Rights Act to afford reasonable accommodation to the religious beliefs of their applicants and employees. Possible accommodations might include flexible scheduling, relaxed dress or grooming standards or granting unpaid time off for religious observance.  Flexible scheduling to permit employees time to pray during the working day has frequently been identified as one such accommodation.

However, it is also clear under Title VII that accommodation need not be provided if it results in an undue hardship to the employer. Unlike the elevated threshold under the Americans with Disabilities Act (ADA), the standard for showing undue hardship for religious accommodation is rather minimal.  The EEOC explains that hardship exists if there is more than a minimal cost or disruption to the business, and that hardship may be present “if a requested accommodation is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

Company Preaches Productivity

When this story was first reported, Cargill announced that there had not been any change in their approach to prayer breaks and that such breaks were allowed for small groups of workers.  They added that accommodating larger groups who wanted to pray together was difficult because it interfered with its operations as a USDA-inspected plant that processes meat.  They have not commented publicly since the charges were filed.

Cargill is not alone in finding themselves defending these claims. Employers across the country, in large and small communities, are struggling with how to accommodate the increasing diversity in the workforce while maintaining their businesses’ productivity.  In many instances, workers feel dissatisfied with the efforts made to accommodate their religious needs while employers become frustrated in trying to meet ambitious production schedules without enough workers on the assembly line.

Unfortunately, there is no bright line rule for defining when an accommodation request is “reasonable.” While the threshold for proving hardship is relatively low, employers are still obligated to consider accommodation requests in good faith and in recognition that they must undertake some effort to find a workable solution.

The best way to start is with an interactive process with the affected employees to determine the precise contours of what they need.  Effective compromise often results from a reasoned discussion of what the employees and employer need.  After that, the employer should evaluate the impact of granting the accommodation.  While mere inconvenience is not a sufficient basis for denial, a real impact in terms of cost, safety, production or morale probably will be

Bottom Line:

The EEOC charges were just filed so there may be a long wait before anything develops in this case.  Still, this is a valuable reminder that with their increasingly diverse workforce, employers must listen to employees’ requests for religious accommodation and seek ways to grant those requests without burdening the business.

It may not be easy to satisfy both sides of the discussion, but a reasonable compromise is usually better than a pile of EEOC charges and possible litigation.

The post Cargill Case Is Battle of Prayer v. Production appeared first on Felhaber Larson.

EEOC also heralded the implementation of their new nation-wide e-mail charge notification process and Respondent electronic portal.

The EEOC Had a “Good” Year

Two thirds of the $525 million in payouts came from settlements of claims against private employers, state governments and municipalities. Another $65 million came from judgments in lawsuits and the remainder – a whopping $105 million – was obtained for federal employees and applicants, representing a curious form of asset reallocation by our federal government.

The 15,000 charges that resulted in payments to claimants represented only about 16% of all cases filed with EEOC – the remainder were all dismissed without further action.  Of course, this does not mean that all of those dismissed cases were found to be without merit.  Many of them resulted in findings against the employer but the EEOC was unable to successfully conciliate the matter.  In most such cases, the EEOC chooses not to initiate litigation and instead just dismisses the case to let the claimant pursue the case in court privately.

The EEOC reported gains in the percentage of cases resolved through formal settlement discussions.  Settlements were achieved in almost 80% of those cases where both parties agreed to participate in pre-investigation mediation.  This high percentage almost certainly reflects that both sides are motivated, for various reasons, to settle the matter early.   Interestingly, almost half (44%) the matters where the EEOC found against the employer following investigation were settled in the post-determination conciliation process.  As noted above, the remaining cases presumably are dismissed and the claimants then must decide whether to hire an attorney and continue the fight on their own.

Retaliation claims represented the largest single category of charges filed with the agency, representing almost 45% of all cases filed. The next largest groupings were race (31%) and disability (30%).  Before you wonder about EEOC’s math skills, remember that many of the charges that they receive identify multiple protected classifications as the claimed motivation for the discriminatory act.  Thus, a single charge alleging racial bias, disability discrimination and illegal retaliation would be counted three different times in the EEOC’s statistics.

Harassment was most frequently cited as the adverse employment action, being mentioned in more than 30% of all cases filed.  The prevalence of harassment charges in recent years has led to the formation of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, which will examine the various forms of workplace harassment and identify and promote strategies to prevent it.

Charge Service By E-mail

One big change that all employers will see is the EEOC’s new Digital Charge System, which is now up and running nationwide. Instead of the hard copy delivered by US Mail, employers charged with discrimination will be notified by e-mail, with instructions for logging onto an online portal to view the charge, instructions for submitting a response and the invitation to participate in pre-investigation mediation.  This portal is also the means by which EEOC communicates all further notices relating to the charge, and is the place for employers to designate their legal counsel so that important documents are copied to them as well.

The use of electronic notice in this fashion raises some questions about what might happen if the charge is caught in a spam filter or is addressed to the wrong person. EEOC has stated that if they do not hear from a charged employer within 10 days of the e-mail, they will attempt service again.  Presumably, this will be done by regular mail and will not shorten or otherwise affect the employer’s time for responding to the charge.  The agency also has said that they will also re-notify the employer if responses are not received to subsequent requests for information or documents.

It does not appear that use of the portal is mandatory.  While it may make responding to an EEOC charge more efficient in the long run, government web sites and electronic communications systems tend to have a few bugs in the system so it may be a while before we actually see a more efficient charge-processing system.  Claimants do not presently have access to the portal but plans are in place for this to happen at a later date.  EEOC’s User Guide  and Q&A offer helpful insight on this new process.

Bottom Line

To make sure that you do not encounter problems with this new EEOC electronic charge portal, remember that managers and supervisors may be the initial employer contact that EEOC has in their file.  Therefore, be sure to tell them not to ignore e-mails from EEOC.

If e-mails (or subsequent mail reminders) from EEOC are received, have them forwarded to Human Resources, legal counsel or whomever else is responsible for answering EEOC charges.  Then, be sure to check the portal regularly in case e-mail notices are still being held up.

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This new Guidance offers the EEOC’s views on what constitutes illegal retaliation, and much of it is nothing new.  However, they do introduce a seismic shift in the standard for proving illegal retaliation.  What was once a precise, focused analysis of causation is now a hodgepodge of subjective factors making it more difficult for employers to prevent retaliation claims while allowing employees to press forward with scattershot allegations.

A retaliation claim requires proof that (1) the employee engaged in a protected activity, such as reporting harassment or objecting to perceived discrimination; (2) the employee suffered an adverse employment action; and (3) a “causal connection” between the two.

Comparing the Old and New Standards

Currently, proof of a causal connection is a “but for” test – the employee must show that but for the protected activity, the adverse employment action would never have occurred.  This often depends showing that employer knew about the protected behavior and that the adverse action followed very swiftly thereafter.

Under the new EEOC Guidance, the employee need only present a “convincing mosaic of circumstantial evidence that would support the inference of [retaliation].” This “mosaic” can include not only the more obvious types of employer actions (e.g. termination, demotion or disciplinary action) but also behaviors such as:

• “Badmouthing” the employee;
• Threatening to reassign the employee;
• Micromanaging the employee’s work;
• Removing job responsibilities;
• Abusive physical or verbal behavior; or
• Any other behavior that might deter a reasonable person.

In fact, the EEOC now seems unconcerned with whether the employee in question actually felt threatened or deterred from pursuing further protected activities.  Instead, it will be enough that a reasonable person (whoever that might be) would have been affected by the employer’s behavior.  The agency also seems intent on forging a path away from a recent United States Supreme Court decision announcing continuing support for the “but for” test for causation.

This new “mosaic” standard seems likely to encourage employees to forage through fragments of supervisory comments and behavior to concoct artful retaliation claims where no real evidence of  illegal motive actually exists.

EEOC Suggests Best Practices

The EEOC did offer up a list of “best practices” for employers to follow if they wish to prevent retaliation cases from cropping up.  They include:

1. Establishing and maintaining a “written, plain-language anti-retaliation policy” examples of retaliatory behavior, proactive steps to avoid illegal behavior and a reporting mechanism for complaints;
2. Training for the entire workforce on the anti-retaliation policies with emphasis on issues specific to that particular workplace;
3. Providing anti-retaliation advice and individualized support for managers and employees alike;
4. Proactive follow-up; and
5. Review of all consequential employment actions to insure EEO compliance.

The period for public comment ends on February 24, 2016, and a final version of the Guidance can be expected later this year.

Bottom Line

This new Guidance is still just a proposal, and even if adopted it represents merely EEOC’s view of what it takes to prove illegal retaliation.  However, since EEOC will be the agency investigating and enforcing these claims, employers are faced with the prospect of more claims and more unfavorable EEOC determinations.

The EEOC’s suggestions of best practices may be a good resource for employers to begin shoring up a proactive approach to heading off retaliation claims.  Start with a good policy, frequent reminders to supervisors to avoid comments and actions that might appear to be threatening, and consistent review of personnel moves to insure that retaliatory motives have not crept into the decision-making process.

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