Headlines ….. what you
read in the paper might
not be the whole story
@ the EEOC
Joe Bontke
Outreach Manager & Ombudsman
EEOC Houston District Office
713 651 4994 office
713 907 2855 cell
joe.bontke@eeoc.gov
I know you’re thinking ….
where have I seen him before?
Protected Federal Categories
Race
National Origin
Color
color
Genetic Information
Religion
Disability
Sex
Age 40+
EEOC Cases Filed By All
Discrimination Types – FY 2014
What’s in your
“backpack”
It’s what we “bring” to work
 It’s who I am
 It’s my “stuff”

The box made
it look so very
easy
The 136 page
instructions
said it would
take “three
people
two hours”
1 Happy
Granddaughter
Obligations of Employers
- Make the workplace free of unlawful
discrimination, harassment and retaliation
- Promptly and confidentially investigate
complaints of discrimination, harassment and
retaliation
- Where discrimination, harassment and retaliation
may have occurred, take prompt and appropriate
remedial action (i.e., discipline commensurate
with the offense)
Equal Employment Opportunity Commission
Yesterday
10,000
9,000
8,000
7,000
6,000
5,000
4,000
3,000
2,000
1,000
0
vs
Today
120,000
100,000
99,922
95,402
93,277
FY 08
FY 09 FY 10
Fiscal Year
99,947
99,412
93,727
82,792
Actual
Charges
Projected
80,000
75,768
60,000
40,000
20,000
0
FY 06
Charge Receipts
FY 07
FY 11
FY 12
FY 13
Survey Question:
Over the past 12 months,
has your company
focused more effort on
retaliation prevention?
A. Yes
B. No
C. I’m not sure
Top EEO Risk Area ‐ Retaliation
 EEOC Charge Stats: 37,955 retaliation charges
received in 2014, forming 42.8% of all
charges. For 4th year running, the #1 most
common basis for an EEO charge!
 The underlying claim of harassment or
discrimination doesn’t need to be proved.
Most managers and supervisors don’t
understand retaliation risks!
SEP National Priorities
1.
Eliminate barriers in recruitment and hiring
2.
Protect immigrant, migrant and other vulnerable workers
3.
Address emerging and developing employment discrimination issues
4.
Enforce equal pay laws
5.
Preserve access to the legal system
6.
Prevent harassment through systemic enforcement and targeted
outreach
Headlines & the truth
Plan of Attack?
Enforcement Raids?
Strategic Enforcement Plan Overview
National + Local Priorities = Impact
http://www.eeoc.gov/eeoc/plan/sep.cfm
 Adopted December 2012
 Purpose: To focus and coordinate EEOC programs
to have a sustainable impact in reducing/
deterring discrimination
 Six national priorities
 Integrated enforcement approach
 District plans
 Discretion to investigate and litigate non-SEP issues
Enforcement Focused on Priorities
Strategic enforcement leads to greater impact
thru focused attention on priorities and
allocation of resources
Prioritization means focus, not disregard for
other issues.
Continued Enforcement on other issues where
government action has impact
ENFORCEMENT PRIORITY NO. 1:
Hiring and Recruitment.
Priority to Criminals?
Hire Bad Employees?
Forced Hiring of Convicts?
Criminal Background Checks
• Why is the Commission interested in this?
– Using blanket policies may adversely impact
certain protected groups
– Reports contain errors
– http://www.eeoc.gov/laws/guidance/arrest_
conviction.cfm
• Disparate Treatment
• Adverse Impact:
Criminal Background Checks
• Must show “job relatedness” and “consistent
with business necessity” (Green v Missouri Pacific Railroad)
• Some level of risk is inevitable in all hiring. It’s
ultimately about risk management
• Must accurately distinguish between those
applicants who pose an unacceptable risk and
those who do not (be careful of blanket exclusions)
Criminal Background Checks
Two circumstances where employers will meet
“job relatedness” and “consistent with business
necessity”
– The employer validates the criminal conduct screen
for the position in question
– The employer is considering at least:
• the nature of the crime,
• the time elapsed, and
• the nature of the job ,
Eliminating Barriers in
Recruitment/Hiring
•
•
•
•
Exclusionary Policies & Practices
Restrictive Application Processes
Restrictive Screening Tools
Steering Particular Groups into Specific Job
Types
Background Screening Cases –
Recent Resolutions
EEOC v. Pepsi (2012) (conciliation)
• $3,130,000 to more than 300 African Americans adversely
affected by background screening policy
EEOC v. Kaplan Higher Ed., 732 F.3d 584 (6th Cir. 2013)
• Affirmed dismissal of EEOC case based on exclusion of
expert testimony
EEOC v. Freeman, 961 F.Supp.2d 783 (D.Md. 2013)
• Granted summary judgment to employer in challenge to
background and credit history checks alleged to have a
discriminatory impact on African-American and male
applicants
• On appeal to 4th Circuit
REFERENCE CHECKING
HAVE YOU EVER HAD A “BAD HIRE”?
What is truth?
Finished files are the result of years of scientific study combined with the
experince of many years
of experts.
Finished files are the result of years of scientific study combined with the
experince of many years
of experts.
Is your perception …. Sometimes your truth?
• Sometimes we have to take another look at what
we think we know
Immigrant, Migrant and
Other Vulnerable Workers
Immigrant, Migrant and
Other Vulnerable Workers
•
•
•
•
Disparate Pay
Job Segregation
Harassment
Trafficking
• Vulnerable workers
are those who are
unaware of their
rights or reluctant or
unable to exercise
them
• Individuals with
intellectual disabilities
• Youth in their first jobs
Immigrant, Migrant and Other Vulnerable
Workers: Selected EEOC Cases
EEOC v. Global Horizons (D. Hawaii 2011)
 District Court ruled in favor of EEOC in March 2014 – finding
unlawful harassment, discrimination and retaliation against
hundreds of Thai workers in the US
 Alleges physical abuse, exploitation, and barbaric security
measures
 Trial to determine damages set for November
 5 farms settled claims for $$ and accountability measures
 Washington case set for trial on Sept. 15; District Court
granted judgment to 2 growers and dismissed claims against
them (2014 WL 2207866 E.D.Wash. 2014).
EEOC v. Signal Int’l (S.D. Miss. filed Apr. 2011)
 Alleges 500+ Indian employees subjected to labor trafficking
and hostile work environment
EEOC v. Henry’s Turkey Service
(W.D. Iowa 2013)
http://www.nytimes.com/interactive/2014/03/09/us/100000002755950.app.html?_r=0
EEOC v. Henry’s Turkey Service
• $240,000,000 jury verdict in favor of EEOC for 32 intellectually
disabled men
• Highest verdict in the history of the EEOC; second highest in
U.S. history under federal anti-discrimination laws
• Court granted summary judgment in favor of EEOC on its wage
discrimination claims in the amount of $1,300,000
• $7,500,000 each to 32 disabled victims ($2,000,000 in punitive
damages and $5,500,000 in compensatory damages)
• Verdict reduced to $1,600,000 (0.67 of jury verdict per person)
Veterans: Employment
– As of 2011, there were 21.6 million veterans in the U.S.
– 2.4 million veterans have served during the Gulf War II
period. 17% of these veterans are women.
– As of the end of Fiscal Year 2011, Gulf War II veterans
are experiencing significant unemployment rates:
Example: 18-24 year old male Gulf War II vets: 29%
(non-vet males of same age: 17%)
– Unemployment rates for veterans
generally – about 8%
Veterans: Disabilities
• Gulf War Veterans are more likely to report a serviceconnected disability than other veterans (26% versus 14%
for all veterans) About 3 million veterans have serviceconnected disabilities.
• Unemployment rates for all veterans – those with
disabilities and those without – are about the same – about
8%.
• Unemployment rates for Gulf War II veterans with and
without disabilities are about the same – about 12%.
Post-Traumatic Stress Disorder
& Traumatic Brain Injury
• Approximately 5000 combat deaths Iraq and Afghanistan
• 30,000 suicides each year – 20% veterans
• State of Minnesota study of returning Guard troops:
– 25% ran red lights
– 25% drove down center of road
• DOD lists approximately 32,000 casualties (Iraq/Afghanistan)
• 2008 study - 300,000 vets with PTSD and 320,000 vets with Traumatic
Brain Injury
• VA estimates approximately 400,000 vets Iraq/Afghanistan have PTSD
• PTSD: Vietnam = 30%, Iraq/Afghanistan = 20%
• 19% of soldiers Iraq/Afghanistan sustained brain injury from explosive
device
• Limited Traumatic Brain Injury is not the result of overt trauma, and the
soldier may not even be aware of the injury
• Limited Traumatic Brain Injury and PTSD exhibit similar symptoms
EEOC Charge Statistics
Fiscal Year
EEOC Charge Statistics
TBI
Fiscal Year
Post-Traumatic Stress Disorder &
Traumatic Brain Injury
•
Possible Symptoms:
– Short-term memory loss
–
–
–
–
–
–
•
Lack of concentration
Trembling
Irritability
Restlessness
Sensitivity to noise
Heightened sense of suspicion
Possible Accommodations:
–
–
–
–
–
–
–
–
–
More written instructions
More reminders
Organizers
Allow to tape meetings
Reduce distractions
Allow I-pod/MP3 Player
Natural light
Break large assignments into smaller ones
Not an exhaustive list (see Accommodating Employees with PTSD and Accommodating
Employees with TBI, Office of Disability Employment Policy, Veterans’ Employment and Training
Service)
“Presumed PTSD”
Veterans advocacy organizations and media
reports have indicated a bias against
veterans in the form of a presumption that
they have mental health issues, such as
PTSD.
ENFORCEMENT PRIORITY NO. 3:
Enforcement Guidance on
Developing & Emerging Issues
Emerging and Developing Issues
These can change over time
as EEOC responds to:
– demographic changes
(e.g., an aging
workforce),
– recently enacted
legislation,
– developing judicial
and administrative
interpretations and
theories, and
– significant events
(e.g., the Boston
attacks)
Currently prioritized:
1.
2.
3.
Specific ADA issues:
qualification
standards, reasonable
accommodation
practices
Accommodating
pregnancy-related
limitations; the
intersection of the
ADAAA and the PDA
Sex Discrimination
against LGBT
individuals under
Title VII
Are You Kidding Me?
Internet Addiction?
• Addictions can be covered by ADA
– Drug
– Alcohol
• Does not mean, however, employee can show up to
work high or drunk.
• Likewise, an employer would not have to allow a
person time to be on the internet.
High School Dropouts Disabled?
• EEOC did not say high school dropouts are disabled
• A person who may not have completed high school
because of a learning disability may, however, be
covered by the ADA.
Emerging and Developing Issues:
Commission Activities
Commission Meetings:
 Unlawful Discrimination Based on Pregnancy and
Caregiver Responsibilities (February 2012)
 Use of Leave as Reasonable Accommodation (June
2011)
 Employment of People with Mental Disabilities
(March 2011)
ADAAA Regulations Issued (3/25/2011)
Anyone Know the Difference between a
Performance Standard and an Essential Function?
Did We Really Say That?
Pregnancy Is (NOT) The Newest
Disability
• You can see the article at the Wall Street
Journal: http://online.wsj.com/articles/thenewest-disability-1406501509
• EEOC issued pregnancy guidance on July 14,
2014
Emerging and Developing Issues Pregnancy Accommodations Cases:
Latowski v. Northwoods Nursing Ctr., 2013 WL 6727331 (6th Cir.
2013)
• Required employee to get doctor's note when pregnant;
• terminated her after her doctor imposed lifting restriction;
• employee passed several “essential functions” tests both
before and after becoming pregnant.
Young v. United Parcel Serv., 707 F.3d 437 (4th Cir. 2013);
Supreme Court review granted June 2014
• Issue: Legal treatment of workplace accommodations for
nonpregnant employees with work limitations and pregnant
employees who are “similar in their ability or inability to
work.”
Emerging and Developing Issues:
Sex Discrimination Against LGBT Individuals
Macy v. Holder (EEOC Decision 2012)
• EEOC held that Title VII’s prohibition of sex
discrimination covers claims of discrimination based
on transgender status (or gender identity).
Don’s Valley Market (Sept. 2013)
• public conciliation agreement
• $50,000 and other relief to resolve charge alleging
former employee was fired for being transgender
EEOC v. Boh Bros. Constr., 731 F.3d 444 (5th Cir. 2013) (en
banc)
• affirming jury verdict for EEOC in same-sex harassment
case; gender-stereotyping evidence can be used
LGBT Coverage
New area of enforcement for the EEOC
Attempt to conform sex coverage to other
forms of coverage: e.g., Race, National Origin,
Age, Disability, and Religion
Gender Stereotyping
• In Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), the Supreme Court found that actions
taken because of sex stereotyping are actions
made on the basis of gender and therefore
violate Title VII.
Gender Stereotyping
• The EEOC takes the position that transgender
discrimination is sex discrimination because it is based on
gender stereotyping
• May be helpful to review these policies:
–
–
–
–
–
–
–
Harassment
Codes of conduct
Dress codes and appearance standards
Background and security clearance
Changing ID cards, names, personnel records
Non-disclosure of medical information
The use of restrooms, locker rooms and other genderspecific facilities
Transgender Coverage
• Sex discrimination claim exists if the employer
discriminates…
• because the individual has expressed gender in a
non-stereotypical fashion
• out of discomfort because the person has transitioned or
is in the process of transitioning;
• because the employer simply does not like that the person
is identifying as a transgender person
*Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012)
F re q u e nt ly A ske d Qu e st io n s
Q) Is a transgender individual
required to inform an employer or
prospective employer about his or
her birth gender?
A)
No. Possible Exception: security clearance
What about bathrooms?
• Access to adequate sanitary facilities required for all
employees
• Once transitioning employees begin living and
working full-time in the gender that reflects his or
her gender identity, employers should allow access
to restrooms and (if provided to other employees)
locker room facilities consistent with his or her
gender identity.
Finish this statement.
A woman’s place is
in the ___________
4. Enforcing Equal Pay Laws
Equal Pay Day
was
April 14, 2015.
This date symbolizes
how far into 2015
women must work
to earn what men earned
in 2014.
Why focus on
Equal Pay

Despite significant gains in labor force participation and
educational attainment, women still are paid an average of
only 78 cents for every dollar paid to men

The gap is even greater for women of color and women
with disabilities

In 2014, there was an 11 cent wage gap between men and
women in the federal sector workforce
?
Enforcing Equal Pay Laws
• EEOC targeting compensation systems and practices
that discriminate based on gender
• Directed investigations and Commissioner Charges
will be encouraged to facilitate enforcement
Enforcing Equal Pay Laws
Commission Activities
• White House Inter-Agency Equal Pay Task
Force
• Agency has increased directed
investigations and monetary resolutions
since 2009
Equal Pay: Selected Cases
EEOC & United States v. Tex. Dep’t of Agric. (W.D.
Tex.)
• Settled Nov. 2012 for $175,000
• three female program specialists paid less than
comparable male
EEOC v. Checkers (E.D. Pa. filed Aug. 2013)
• Alleges lower wages paid to female cashiers
• Alleges schedules manipulated to depress wages
of female employees
Preserving Access to The Legal System
Preserving Access
• EEOC will target
policies and
practices that:
– discourage or
prohibit
individuals from
exercising their
rights, or
– impede EEOC’s
investigative and
enforcement
efforts
These include:
• Retaliatory actions
• Overly broad waivers
• Settlement provisions
that prohibit filing
charges with EEOC or
providing information
for an investigation or
prosecution of
employment
discrimination
• Failure to retain
records required by
EEOC regulations
Preserving Access: Challenges to
Releases and Waivers
EEOC v. CVS (filed Feb. 2014)
 Alleges an overly restrictive severance agreement
interfered with employees’ right to file
discrimination charges and/or communicate and
cooperate with the EEOC
EEOC v. Cognis, 2012 WL 1893725 (N.D. Ill. 2012)
 summary judgment for EEOC granted in part,
denied in part, involving a last chance agreement
prohibiting the filing of an EEOC charge
Amicus - Challenging Mandatory
Arbitration
Jock v. Sterling, 646 F.3d 113 (2d Cir. 2011)
 agreement permitted class proceeding in arbitration
Sutherland v. Ernst & Young, 726 F.3d 290 (2d Cir. 2013)
 class action waiver in a mandatory arbitration
agreement enforceable
D.R. Horton, Inc. & Cuna, 737 F.3d 344 (5th Cir. 2013)
 mandatory arbitration agreement must be enforced
according to its terms
 NLRB properly required employer to clarify with its
employees that arbitration agreement did not
eliminate their rights to pursue claims of unfair labor
practices with NLRB
Preventing Harassment:
Systemic Enforcement &
Targeted Outreach
Harassment: Selected Cases
EEOC v. DHL Global (N.D. Tex. 2012)
• class national origin harassment
• consent decree for $201,000 and significant non-monetary relief
EEOC v. Widenhouse (D.N.C.)
• jury verdict in 2013 for $243,000 in race harassment case on behalf of two
victims
• 4th Circuit Court of Appeals affirmed in June 2014
EEOC v. AA Foundries (S.D. Tex. 2013)
• jury verdict of $200,000 in punitive damages for race harassment to three
claimants
EEOC v. Endoscopic Microsurgery (D. Md. 2012)
• Jury verdict of $350,000 in compensatory and punitive damages to 3
sexual harassment claimants)
Secret Deal?
Memorandum of Understanding
• EEOC has signed MOUs with a number of consulates
and tribes.
• Publicized in news releases and on website.
• Fosters cooperation and education regarding
workplace discrimination.
HOT TOPIC – Interference in Union Organizing Activities or
“Concerted Actions”
Cat’s Paw Theory
Questions?
Thank You!
Joe Bontke
EEOC Houston District
joe.bontke@eeoc.gov
713.651.4994
713 907 2855 cell