EEOC Bans COVID Antibody Test Under ADA

Yesterday,  the EEOC updated its guidance on complying with the ADA and other employment laws during the pandemic and has even included FAQ about issues employers will encounter.  In short, it is prohibiting employers from requiring a COVID antibody test as a condition of returning or remaining at work as inconsistent with business necessity, etc.   Here is the new FAQ added yesterday:

A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Updates Pandemic Guidance

Yesterday, the EEOC updated its March pandemic guidance for employers responding to a myriad of issues.  It added more questions to its Q&A section confirming that employers may ask COVID-related questions, but you must remember to keep records confidential as medical records.  Here are some of the most salient issues:

A. Disability-Related Inquiries and Medical Exams

A.1.  How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic? (3/17/20)

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

A.2.  When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19? (4/9/20)

As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms.  Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

A.3.  When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic? (3/17/20)

Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

A.4.  Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?  (3/17/20)

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

A.5.  When employees return to work, does the ADA allow employers to require a doctor's note certifying fitness for duty?  (3/17/20)

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

B. Confidentiality of Medical Information

B.1.  May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee's temperature or the employee's self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)

The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to this confidential information.  An employer may store all medical information related to COVID-19 in existing medical files.  This includes an employee's statement that he has the disease or suspects he has the disease, or the employer's notes or other documentation from questioning an employee about symptoms. 

B.2.  If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)

 Yes.  The employer needs to maintain the confidentiality of this information.

B.3.  May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)

Yes. 

B.4.  May a temporary staffing agency or a contractor that places an employee in an employer's workplace notify the employer if it learns the employee has COVID-19? (4/9/20)

Yes.  The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.

C. Hiring and Onboarding

C.1.  If an employer is hiring, may it screen applicants for symptoms of COVID-19? (3/18/20)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.  

C.2.  May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam? (3/18/20)

Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.

C.3.  May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? (3/18/20)

Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. 

C.4.  May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? (3/18/20)

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

C.5.  May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19? (4/9/20)

No.  The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer.  However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.

D. Reasonable Accommodation

In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org.  JAN's materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

D.1.  If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19?  (4/9/20)

There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure.  Even with the constraints imposed by a pandemic, some accommodations may meet an employee's needs on a temporary basis without causing undue hardship on the employer. 

Low-cost solutions achieved with materials already on hand or easily obtained may be effective.  If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting. 

D.2.  If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)

Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic. 

As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed. 

D.3.  In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)

Not necessarily.  An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now.  The employer may be able to acquire all the information it needs to make a decision.  If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)

An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship.  For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace.  The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Releases 2017 Fiscal Year Enforcement Statistics

Last week, the EEOC released its annual enforcement statistics for the fiscal year that ended on September 30, 2017.  As I explained earlier this month in my recent presentation to the Human Resources Council of South Central Ohio, there is unlikely to be any radical changes at the EEOC in the near future because of budget cuts and vacancies which still remain in key positions, such as Chair, Commissioners and the General Counsel.   Nonetheless, the EEOC reported that it had reduced its extensive backlog of open charges to the lowest level in 10 years.  Retaliation remains the most common form of allegation made in Charges of Discrimination, being asserted in almost half of all charges filed.  This is followed by race discrimination in over a third of Charges filed, and then by disability and sex discrimination and/or harassment in approximately 30% of filed Charges.  Age discrimination was asserted in only 22% of Charges and the remaining issues were only in the single digits.   (Obviously, Charges may contain more than one type of allegation).   The EEOC more than doubled the number of substantive lawsuits it filed last fiscal year, but dismissed over 70% of Charges for lacking merit – the highest percentage since at least 1997.

The EEOC reported that 84,254 charges were filed, and 99,109 charges were resolved. Almost 2400 of Title VII Charges had been filed in Ohio and the proportion of the types of Charges filed in Ohio was consistent with the national trend: retaliation, followed by race and then sex discrimination. There were approximately 200 fewer Title VII  Charges filed in Ohio in the last fiscal year than in the prior fiscal year.

As for the resolution of Charges, 6.4% were resolved through settlement and 5.4% were withdrawn by the Charging Party (without a formal settlement) with benefits.  Fifteen percent were administratively closed (which likely means that the Charging Party could not be located or had stopped returning calls). Over 70% of Charges were dismissed for lacking probable cause (i.e., lacked merit).   While this is the highest percentage of no-merit dismissals since at least 1997, it is not a substantial increase over recent years.  Only 2.9% of Charges (approximately 2900 of the Charges) were found after an investigation to assert probable cause of discrimination.  Again, while this is the lowest percentage since at least 1997 and is substantially lower than in some past years, it is not a substantial decrease over the prior three years.   Slightly more than half of these Charges were successfully conciliated prior to litigation.  The EEOC’s resolution of Charges in the last fiscal year (prior to litigation) resulted in the recovery of $355.6M for Charging Parties, which is consistent with recoveries in five of the last six years.

The EEOC also reported that it had filed 184 substantive lawsuits, including 124 individual suits and 30 suits involving multiple victims or discriminatory policies and 30 systemic discrimination cases.  This was a significantly higher number of enforcement lawsuits commenced than since 2011, when 261 lawsuits were commenced. In contrast, only 86 lawsuits had been commenced in fiscal year 2016.  By the end of its last fiscal year, it had 242 cases on its active docket and claimed a successful outcome in 90.8 percent. It recovered $42.4M on behalf of Charging Parties through litigation, which is less than the prior two fiscal years, but almost twice as much as in 2014.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Finalizes Its Anti-Retaliation Enforcement Guidelines

At the end of August, the EEOC issued its final enforcement guidelines on retaliation claims just a few months after publishing its draft guidelines previously discussed here in February.  The final guidelines contain some additional discussion not previously included, including on the burdens of proof and causal connections required to show retaliation.  As most people know by now, the anti-retaliation provisions of the federal employment discrimination statutes encompass a broader range of employment actions than arise under regular discrimination statutes.   The final guidelines also contain a new section about claims alleging interference with ADA rights, which the EEOC interprets to provide broader protection than even the anti-retaliation clauses.

Protected Activities.  As previously mentioned, the EEOC contends that the “participation” clause in the anti-retaliation provision of Title VII (and other employment discrimination statutes) protects employees from any form of disciplinary action or adverse employment action regardless of the honesty or reasonable belief of the employee during the process.  Further, the EEOC contends that protected “participation” includes not only participation in agency or government proceedings, investigations and lawsuits, but also to internal employer complaint policies and investigations.  The EEOC defends its position because the Supreme Court left the issue open in Crawford v. Metropolitan Government of Nashville whether an employee’s participation as a witness in an internal workplace investigation was “participation” or merely “opposition.”  In contrast to “participation,” an employee’s “opposition” to potentially unlawful conduct must both reasonable and be based on a reasonable belief in order to be protected.   

Opposition can include the following:

·        participating in an internal workplace investigation,

·        refusing to obey an illegal order to discriminate against a subordinate or co-worker,

·        complaining to a union, lawyer, or customer,

·        picketing,

·        stating an intention to file a charge of discrimination

·        complaining after one incident of harassing conduct even though the conduct has not yet risen (i.e., become severe or pervasive enough) to the level of illegal (or actionable) workplace harassment,

·        requesting a reasonable accommodation for a religious belief or disability, and

·        discussing information about co-workers’ compensation to support or determine whether the rates are discriminatory,

The opposition clause applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination. The communication itself may be informal and need not include the words "harassment," "discrimination," or any other legal terminology, as long as circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation. Individuals may make broad or ambiguous complaints of unfair treatment, in some instances because they may not know the specific requirements of the anti-discrimination laws. Such communication is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.

The opposition clause also protects all employees, regardless of their position or responsibility for enforcing EEO laws, so that HR managers are protected to the same extent as any other employee for opposing unlawful conduct. 

The opposition clause does not permit an employee to neglect job duties, make numerous specious complaints, badger co-workers to become witnesses, or coerce a co-worker to change his or her story, etc.

Retaliatory Actions.  While the retaliatory act must constitute a materially adverse job action, this encompasses any action that might deter a reasonable person from engaging in protected activity.   This is also a broader range of activities than can constitute actionable discrimination and can include actions that did not, in fact, deter the victim.  It can, for instance, include warnings, transfers, performance evaluations, reprimands, activities outside of work, disparaging the person to the media, more closely scrutinizing work, and retaliating against a family member, etc.  Trivial actions that would not deter a reasonable person from engaging in protected activity will not be considered as materially adverse.  Harassing acts that might not be severe or pervasive enough to constitute actionable harassment could constitute actionable retaliation.

Causal Connection.  Evidence must show that the employee would not have suffered the retaliatory action but for his or her protected conduct.   This is not a “sole cause” standard because there can be multiple “but for” causes.   Sometimes, an employer denies knowledge of the protected conduct and other times offers a legitimate and non-retaliatory reason for its actions.    A causal connection can be established, for instance, by suspicious timing, comments, comparative treatment, selective enforcement, and inconsistent or shifting explanations for the employer’s action, etc.

ADA Interference.  The ADA’s prohibition against interfering with ADA rights is interpreted by the EEOC as being broader than the anti-retaliation provisions.

Because the "interference" provision is broader, however, it will reach even those instances when conduct does not meet the "materially adverse" standard required for retaliation. Examples of conduct by an employer prohibited under the ADA as interference would include:

·        coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;

·        intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;

·        threatening an employee with loss of employment or other adverse treatment if he does not "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute;

·        issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a fixed leave policy that states "no exceptions will be made for any reason");

·        interfering with a former employee's right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and

·        subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.

The interference provision does not apply to any and all conduct or statements that an individual finds intimidating. In the Commission's view, it only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights. . . .

 . . .A threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Releases 2015 Fiscal Year Charge Enforcement Statistics

Last week, the EEOC released its enforcement statistics for Charges of Discrimination and litigation filed during the fiscal year ending September 30, 2015. There was a slight increase in the number of Charges filed (89,385) over the prior year (88,778) and it resolved more charges (92,641) than it received, unlike the prior year.   Unsurprisingly, retaliation not only remained the most common allegation, but the number of charges alleging retaliation increased and was present in 45% of all private sector Charges filed.  Unlike prior years, the EEOC did not this year release Charge statistics by state. 

Most Charges allege more than one type of illegal employment practice.   Race remained the second most common allegation, but disability overtook sex discrimination and harassment to become the third most common allegation nationally. 

The EEOC filed 142 lawsuits nationwide last year – 9 more than the prior fiscal year.    Following an investigation, 65.2% of Charges were dismissed as lacking reasonable cause.  Almost a third were dismissed without an investigation: 16.7% were administratively closed, 5.7% were withdrawn with benefits and 8.9% were closed following a settlement between the parties.  Only 3.5% of Charges were found to have reasonable cause after an investigation.

The EEOC announced that it obtained$356.6M in pre-litigation settlements, mediation and conciliation, compared to $296.1M last year, $372.1M in 2013, $365.4M in 2012, and $364.6M in 2011.  Litigation settlements last year obtained $65.3M, compared to $22.4M  in 2014, $39M in 2013, $44.2M in 2012, and $91M in 2011. 

Most Charges continue to complain about discharges, harassment, discriminatory terms and conditions of employment, and disciplinary action.  There was a slight decrease in the number of Charges complaining about illegal waivers and wage discrimination.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Releases Updated Employment Retaliation Enforcement Guidance

Last month, the EEOC issued a draft of updated enforcement guidelines covering its investigations of retaliation allegations.   These were last updated in 1998.   As discussed below, the Guidelines take a few positions worth noting by employers. For instance, the EEOC explains that employees who make false allegations during an internal EEO investigation are protected from disciplinary actions.  Similarly, internal or formal complaints about incidents which are not yet severe or pervasive enough to constitute actionable harassment are also protected. However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”  The EEOC also specifically finds that HR employees and managers are protected from retaliation and notes that disciplinary action against employees for violating pay confidentiality policies may be unlawfully retaliatory if the employee was also complaining about pay discrimination.

The first section discusses the types of “participation” and “opposition” that could constitute protected activity.  The obvious areas including filing a Charge, threatening to file a Charge, pursuing an internal EEO complaint, participating in an internal or EEOC investigation, rejecting sexual advances, refusing to discriminate against subordinates, and requesting a reasonable accommodation for a disability or religious practice.   However, the EEOC also included in this reporting a sexual assault to the police, reporting alleged discrimination to the news media or the employer’s customers, picketing, and passively refusing to comply with an unlawful direction to discriminate.  Even though an employee engages in protected activity, however, does not mean that he or she is immune from disciplinary action for also engaging in improper conduct or poor job performance.   Accordingly, employees cannot attempt to prevent disciplinary action simply by engaging in protected activity.

Even if the employee is incorrect about whether discrimination or harassment occurred, the employee need only have a reasonable good faith belief that the underlying employment action is illegal to be covered by the opposition clause.   For instance, an employee may protest workplace conduct before it becomes serious and pervasive enough to constitute harassment. (However, there is no protection under the opposition clause for “complaints about trivial matters that no reasonable person could believe could become harassment or other discrimination.”).  The EEOC will consider the employee’s opposition conduct to be protected unless his or her complaint is patently specious.  As an example, the EEOC described an employee who complained about an unfair pay raise, but did not make any comparison to anyone outside his protected class.   Similarly, an employee who complains about not receiving a promotion even though she admittedly did not possess the required degree or license would not have a reasonable belief about possible discrimination. 

That being said, the EEOC does not require a reasonable belief about the legality of the underlying activity when the employee is covered by the participation clause (i.e., filing a charge or participating in an EEOC investigation).  This is true even if the underlying alleged discriminatory action was legal or the Charge was untimely.  It even notes that the employee’s allegations may be malicious, defamatory and wrong, but still be protected.  Even though it recognizes that many federal courts – including the Sixth Circuit which has jurisdiction over Ohio and the Eleventh Circuit with jurisdiction over Georgia – do not consider internal EEO and harassment complaints to be covered by the participation clause unless the employee also filed a Charge with the EEOC, the EEOC explicitly states that it views internal EEO complaints to be protected “participation” which does not require the employee to have a reasonable belief about the validity of the allegations or to even tell the truth.  (Nonetheless, the EEOC continues to discuss situations involving internal EEO complaints under the opposition standard throughout the Guidance).  Accordingly, this would prevent an employer from taking disciplinary action against an employee who provided incorrect (and possibly false and fabricated information) during an internal EEO or harassment investigation:

Thus, the application of the participation clause cannot depend on the substance of testimony because, “[i]f a witness in [an EEO] proceeding were secure from retaliation only when her testimony met some slippery reasonableness standard, she would surely be less than forth-coming.” These protections ensure that employers cannot intimidate their employees into forgoing the complaint process and that those investigating can obtain witnesses’ unchilled testimony. 

Encompasses Internal Complaints. The Commission also views “participation” as encompassing internal EEO complaints to company management, human resources, or otherwise made within an employer’s internal complaint process before a discrimination charge is actually filed with the EEOC or a state or local Fair Employment Practices Agency.  The text of Title VII prohibits retaliation against those who “participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

There were a few areas of protected activity that the EEOC discussed more extensively than others.  First, it emphasized that the actions of HR employees, managers and supervisors would be constitute protected activity even if their job duties involved remedying harassment and discrimination and granting reasonable accommodations, etc.  The EEOC also suggested that an employee’s violation of pay confidentiality policies could constitute protected conduct and notes that the NLRA and certain Executive Orders governing federal contractors and subcontractors cover the confidentiality of compensation information.  However, all of the examples provided in the Guidance involved employees who were protesting pay discrimination based on specific information, which would constitute protected opposition discussed earlier in the Guidance.

Employment and other actions can be retaliatory even if they do not constitute actionable discrimination because the retaliation standard is broader than the discrimination standard.   An action can constitute retaliation if it would deter a reasonable person from engaging in protected conduct, even if it does not actually deter the plaintiff.  The standard obviously includes various employment actions, but can also include non-employment actions, such as retaliation against someone associated with the protected employee, defamation, bad-mouthing the employee to the media, poor job references, surveillance, closer scrutiny of performance, disclosing confidential information about the employee, etc.   That being said, minor and trivial actions are still not actionable.

An employee’s opposition activity can lose statutory protection when the employee’s opposition manifests itself in an unreasonable manner. As examples, the EEOC discusses employees who make an unreasonable number of specious complaints, badgers a co-worker to provide or change a witness statement, or involves illegal conduct (such as threat of violence).  “Opposition to perceived discrimination does not serve as license for the employee to neglect job duties. If an employee’s protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge.”   

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

  

EEOC Proposes to Revise EEO-1 to Include Data on Annual Pay and Hours Worked

On Friday, the EEOC announced that it planned to revise the EEO-1 form to include burdensome requirements to annually collect and report pay and hours worked by all employees.  Its proposal was published in today’s Federal Register.  Currently, the EEO-1 must be filed before September 30 every year by employers with over 100 employees and contractors/subcontractors with 50 or more employees (and contracts over $50,000).   The forms identify how many employees (by gender and ethnicity) are employed in certain job classifications.  The new requirements would take effect in September 2017 and would require the employer to complete two pages (instead of just one).  One page would identify the number of employees (again by job classification, gender and ethnicity), but would also break them out by twelve identical pay bands in each job classification.   The second page is identical, except that instead of indicating the number of employees, the employer would need to research and insert the number of hours collectively worked by all of the employees in that pay band by job classification, gender and ethnicity.  The EEOC believes that it needs the number of hours to account for part-time and temporary employees.  The form is not requesting information about time in job, seniority, prior experience or education, etc. (which all obviously impact the amount paid).

The EEOC is not proposing to expand the EEO-1 reporting obligations beyond those employers currently required to file them.  The forms will also remain confidential (although by creating such a document, they will become discoverable in all agency investigations and civil litigation).

There are twelve identical pay bands for each job classification (of between $19,239 and $208,000+).  The information is to reflect annual “salaries” based on total W-2 wages earned during the prior twelve months from any work week between July 1 and September 30.  The pay bands are compressed at the low end (i.e., approximately $5,000) and wider at the top end (of over approximately $40,000).  Even though the forms explicitly specify “salary” to be reported, the EEOC actually wants total W-2 compensation and all earned income, including “wages, salaries, fees, commissions, tips, taxable fringe benefits, and elective deferrals” as well as “supplemental pay components such as overtime pay, shift differentials, and nonproduction bonuses (e.g., year-end bonuses, hiring and referral bonuses, and profit-sharing cash bonuses).”  It also wants this information when it wants it and not when employers would typically be generating this information for W-4 forms in January.  However, the EEOC does not expect this to be burdensome and encourages employers to use quarterly payroll reports.

The EEOC is also seeking feedback from employers about how to account for exempt employees for whom employers are not required to track working hours.  It is not proposing that employers be required to track those hours.  It is considering simply requiring employers to estimate 40 hours/week (or 2080/year) for exempt employees.

The EEOC reports that all but three employers nationwide already submit their EEO-1 reports electronically, and therefore, is making electronic submission of the new information mandatory for the new form in 2017 (unless the employer requests an exemption).

The EEOC hopes to analyze this data and to focus its investigations on those employers with statistically anomalous compensation practices:

Analysis of W-2 Pay Data

Statistical tests will be used as an initial check of the W-2 data to be collected on the EEO-1, specifically, statistical significance tests that do not rely on an assumption of a normal distribution. The Pilot Study recommended several statistical techniques to test within-job categories and then suggested further examining companies and establishments with low probabilities that the differences between examined groups, such as men and women, occurred by chance. The Pilot Study also noted that the issue of calibrating error rates (power vs. significance level) needed to be addressed to detect discrimination without suffering too many false positives. This process would include recognition of how sample sizes may influence results and also of judicial precedents regarding definitions of statistical probabilities.

 The EEOC and OFCCP plan to develop a software tool that will allow their investigators to conduct an initial analysis by looking at W-2 pay distribution within a single firm or establishment, and by comparing the firm's or establishment's data to aggregate industry or metropolitan-area data. This application would highlight statistics of interest.

Finally, the EEOC is seeking public comments from the private sector about these planned changes to the EEO-1 form:

1. Evaluate whether the proposed collection of information is necessary for the proper performance of the Commission's functions, including whether the information will have practical utility;

2. Improve the accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

3. Enhance the quality, utility, and clarity of the information to be collected; and

4. Minimize the burden of the collection of information on those who are required to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Litigation Snares Two Nearby Employers

Last week, the EEOC announced a settlement and one court verdict involving two different nearby employers.  One involved an employee’s religious objections to having his hand biometrically scanned as part of a new payroll system and an award against that employer for more than $585,000 in compensatory damages, lost wages and benefits.  The other involved an $80,000 settlement of an EEOC lawsuit alleging a racially hostile work environment by a Chagrin Falls, Ohio employer. 

In the first case, the EEOC brought suit against a coal company and its parent alleging that a long-time employee had been forced to resign because the employer refused to accommodate his religious beliefs.  In particular, the employee believed that the employer’s new biometric hand scanners – which had been implemented to track employee attendance – constituted the mark of the beast (i.e., the antichrist).  He objected to being subjected to the technology and notified the employer on a number of occasions.  The employer refused to accommodate his religious beliefs and informed him that he would be disciplined and terminated if he refused to scan his hand.    The EEOC alleged that the employee was forced to retire due to the employer’s refusal to accommodate his religious beliefs.

In January, a federal court jury in West Virginia found that the employer violated the employee’s religious beliefs and awarded the employee $150,000 in compensatory damages.  Last month, the federal judge awarded an additional $436,860 in back pay, and front pay.  The Court also enjoined the employer for three years from denying religious objections to the biometric hand scanner and required them to be trained about religious accommodations.

The other case involves allegations of offensive language by the general manager towards African-American employees and less favorable treatment (such as less frequent breaks than white employees).    The EEOC complaint also alleged that an African American supervisor was subjected to a racially and sexually hostile work environment and retaliation when she opposed the mistreatment.  The settlement provides $44,500 to the supervisor and $35,000 to the remaining employees.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Unanimous Supreme Court Approves Limited Review of EEOC Conciliation Efforts

Yesterday, a unanimous Supreme Court held that the mandatory conciliation efforts required by Title VII before the EEOC files any lawsuit is subject to narrow federal court review.  Mach Mining v. EEOC, No. 13-1019 (U.S. 4-29-15).   However, because the discussions held during conciliation process are confidential and the EEOC has “extensive discretion to determine the kind and amount of communication with an employer is appropriate in any given case,” the court’s review is very limited and typically can be satisfied by an affidavit that the EEOC has described to the employer in the reasonable cause determination letter the alleged discrimination it has perpetuated and who has been harmed and that the employer had been given an opportunity to remedy the alleged discriminatory practice before the suit was filed.   Nonetheless, if the employer disputes that it had been sufficiently informed or given an opportunity to conciliate, the court may engage in limited factfinding.  In any event, the remedy for inadequate conciliation is only to order the EEOC to engage in conciliation.

According to the Court’s opinion, a woman filed a Charge alleging that the defendant employer had not hired her on account of her sex.  The EEOC conducted an investigation and concluded that reasonable cause existed that the employer had discriminated against her and a class of other female applicants.   In announcing its decision, the EEOC invited the parties to engage in informal dispute resolution and promised that an EEOC employee would soon contact them to begin the conciliation process. About a year later, the employer received a letter announcing that conciliation had failed and further efforts would be futile. The EEOC then filed suit.  In response, the employer asserted in its Answer that the EEOC had failed to satisfy the requirement that it first attempt to conciliate the dispute in good faith before filing suit.  When the EEOC moved for summary judgment, it argued that the court could only inspect the two letters sent to the employer, but the employer prevailed in arguing that the court should consider whether the EEOC engaged in sincere and reasonable efforts to conciliate.  On appeal, the Seventh Circuit reversed, finding no review or only cursory review was permitted. The Supreme Court reversed again.

Under Title VII, if during the EEOC’s investigation of a Charge of Discrimination, it determines that reasonable cause exists that unlawful discrimination occurred, it may file suit to eliminate and remedy the discriminatory practice.  However,

 it must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” §2000e–5(b). To ensure candor in those discussions, the statute limits the disclosure and use of the participants’ statements: “Noth­ing said or done during and as a part of such informal endeavors” may be publicized by the Commission or “used as evidence in a subsequent proceeding without the writ­ten consent of the persons concerned.” Ibid. The statute leaves to the EEOC the ultimate decision whether to accept a settlement or instead to bring a lawsuit. So longas “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission” itself, the EEOC may sue the employer. §2000e–5(f)(1). [underlining added for emphasis).

The Court rejected the EEOC’s argument that the conciliation process was not subject to any judicial review because there is a rebuttal presumption that all agency actions are subject to judicial review.   In stronger terms, judicial review “is the norm.”  While Title VII gives the EEOC “abundant” discretion, that discretion merely limits the scope of review, not the fact of review.   The mandatory conciliation actions

neces­sarily involve communication between parties, including the exchange of information and views. . . . That communication, moreover, concerns a particular thing: the “alleged unlawful employment practice.” So the EEOC, to meet the statutory condition, must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. See also infra, at 13. If the Commission does not take those specified ac­tions, it has not satisfied Title VII’s requirement to at­tempt conciliation.

As for the scope of the judicial review, the Court rejected the employer’s argument that the conciliation process should be similar to the good faith bargaining process in the  union context and rejected the EEOC’s argument that only certain documents – such as the two letters sent to the defendant employer – could be reviewed.

 . . . But review of that kind falls short of what Title VII demands because the EEOC’s bookend letters fail to prove what the Government claims. Contrary to its intimation, those letters do not themselves fulfill the conciliation condition: The first declares only that the process will start soon, and the second only that it has concluded. The two letters, to be sure, may provide indirect evidence that conciliation efforts happened in the interim; the later one expressly represents as much. But suppose an employer contests that statement. Let us say the employer files an affidavit alleging that although the EEOC promised to make contact, it in fact did not. In that circumstance, to treat the letters as sufficient—to take them at face value, as the Government wants—is simply to accept the EEOC’s say-so that it complied with the law. And as earlier ex­plained, the point of judicial review is instead to verify the EEOC’s say-so—that is, to determine that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge. should be examined.

   . . . .

To begin, however, we reject any analogy between the NLRA and Title VII. The NLRA is about process and process alone. It creates a sphere of bargaining—in which both sides have a mutual obligation to deal fairly—without expressing any preference as to the substantive agreements the parties should reach. See §§151, 158(d).By contrast, Title VII ultimately cares about substantive results, while eschewing any reciprocal duties of good-faith negotiation. Its conciliation provision explicitly serves a substantive mission: to “eliminate” unlawful discrimination from the workplace. 42 U. S. C. §2000e– 5(b). In discussing a claim with an employer, the EEOC must always insist upon legal compliance; and the em­ployer, for its part, has no duty at all to confer or exchange proposals, but only to refrain from any discrimination. Those differences make judicial review of the NLRA’s duty of good-faith bargaining a poor model for review of Title VII’s conciliation requirement.

In addition, Title VII gives the EEOC wide flexibility.  It need only “endeavor” to “informally” conciliate.  Moreover, a NLRB-type review would violate the confidentiality rules which govern conciliation.

In practice, the EEOC typically satisfies its obligation to give notice to the employer of the allegations in the reasonable cause determination letter. After that,

the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory prac­tice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct concil­iation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provi­sion, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what hap­pened (i.e., statements made or positions taken) during those discussions.

A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. . . . If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.  . . . Should the court find in favor of the employer, the appro­priate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.