2012
EEOC TRENDS, PRIORITIES AND
UPDATES
Timothy A. Riera
Honolulu Local Office Director
U.S. Equal Employment Opportunity Commission
Agenda
Charge Receipts
 Trends and Priorities
 EEO Cases

THE
COMMISSION
CHAIR
Jacqueline A. Berrien
Commissioner
Constance Barker
Commissioner
Victoria Lipnic
Commissioner
Chai Feldblum
General Counsel
P. David Lopez
EEOC Charge Receipts
NATIONAL (FY 2000 – FY 2011)
105,000
100,000
90,000
85,000
80,000
75,000
70,000
20
06
FY
20
0
FY 7
20
0
FY 8
20
0
FY 9
20
1
FY 0
20
11
FY
20
05
FY
20
04
FY
20
03
FY
20
02
FY
20
01
FY
20
00
65,000
FY
Number of Charges
95,000
Fiscal Year (FY)
U.S. Charge Receipts by Type - FY 2011
40%
Disability
26% Age
24%
35%
30%
25%
National
Origin
12%
20%
15%
Religion
4%
GINA
0.2%
10%
5%
0%
Retaliation Race
37%
35%
Sex
28%
NATIONAL STATISTICS FY 2011


EEOC received 99,947 private sector discrimination
charges, the highest level ever received, and
monetary relief obtained for victims totaled over
$455.6 million ($51 million increase over FY2010.)
For the second time since the EEOC’s inception,
retaliation (37%) exceeded race (35.4%) as the #1
complaint filing.

Mediation 9,831 resolutions $170+million benefits

300 lawsuits = $91 Million in relief (23 systemic
and 67 multiple victims)
EEOC Strategic Plan 2012 - 2016

Strategic Law Enforcement

Education and Outreach

Efficiently Serving the Public
Systemic Program
Systemic discrimination cases are
“pattern or practice, policy and/or class cases
where the alleged discrimination has a broad
impact on an industry, profession, company or
geographic location.”
Systemic Program



Priority for investigations and litigation
Encourage employers to engage in proactive
prevention
EEOC expanded efforts to partner with advocacy
groups, state and federal agencies, employer groups,
the plaintiffs’ bar and other organizations to identify
and address discriminatory practices.
Systemic Program




OGC priority---partnerships among the district
officesShift to more cases on behalf of larger groups
Fewer small cases, strategically selected to have
impact beyond the named individual
More Commissioners’ Charges
Examples of Systemic Discrimination




Racially discriminatory barriers in recruiting and hiring
practices
Exclusion of women from traditionally male dominated
fields of work
Barriers based on race, gender or national origin to
higher level positions
Disability discrimination issues, including unlawful preemployment inquiries
Examples of Systemic Discrimination



Age discrimination in reduction in force and
retirement benefits
Race and national origin discrimination in
management trainee programs
Compliance with customer preferences that result in
discriminatory placements or assignments.
Cases Involving Leave Policies
EEOC v. Supervalu Inc., N.D. Ill. 09-cv-05637
-medical leave of absence
EEOC v. Sears Roebuck, N.D. Ill. No. 04-cv-07282
-workers’ compensation leave policy
EEOC v. Verizon Comms., D. Md. No. 11-cv-1832
-no fault leave policy
Arrest & Conviction Records
EEOC updated guidance on 4/25/2012
http://www.eeoc.gov/laws/guidance/arrest_convicti
on.cfm
Statistics on Criminal Records
Whatever statistics you look at, you
will find that Blacks and Hispanics are:
arrested,
convicted,
and sent to prison at a significantly higher
rate than Whites.
CONSEQUENTLY…


…if an employer demands that all new hires be
“conviction free”…
…this policy or practice may have a
DISPARATE IMPACT on both
African Americans and Hispanics.
CRIMINAL BACKGROUND CHECKS WHY
DOES THE EEOC CARE?
Discrimination based
•
on
RACE or NATIONAL
ORIGIN

Intentional
Discrimination Disparate Treatment
Unintentional
Discrimination –
Disparate Impact
DISPARATE IMPACT
Criminal Background Screening


Step 1: Did the policy disproportionately screen
out applicants based on race, national origin or
another protected factor?
Step 2: Is the exclusion job-related and is there
a business need related to the job in question?
Common Inaccuracies in
CRIMINAL RECORDS

Wrong Person

Multiple Reports of the Same Incident

Uncorrected Identity Theft

Arrests Dropped For Innocence

Expunged Records Still Appear
Is There a Link Between
Conviction and Job?


Basic question: Does a criminal record suggest
an unacceptable risk?
Factors to Assess
 Nature
 How
and Gravity of the Offense;
much time has passed?
 What
type of job is involved?
Veterans with Disabilities

2.28.2012 EEOC updates publications on Employment
of Veterans with Disabilities
 Guide
for Employers – compares requirements under
 Americans
with Disabilities Act (ADA)
 Uniformed Services Employment and Reemployment Rights Act
(USERRA)
 Guide

for Wounded Veterans
11.16.2011 EEOC public meeting
“Overcoming Barriers to the Employment of Veterans
with Disabilities”
Small Business

EEOC Small Business Task Force
•
•
•
•
Use new technology to expand outreach
Develop targeted technical assistance and training
Aid for small businesses owned by women and minorities
Enhance small business resources at www.eeoc.gov
Focus:
 Newly-established
 Too
small to afford lawyers or human resource personnel
WHITE HOUSE
EQUAL PAY TASK FORCE




President Obama pledged to crack down on violations
of equal pay laws.
White House Administration created the National Equal
Pay Task Force to address the issue and promote workfamily balance for families.
The Task force calls for interagency coordination
between EEOC, DOJ, DOL, and OPM
Recommendations released in July 2010 to expand
coordination, collect data, undertake a public education
campaign, strategize on making the federal government
a model employer.
TRI-AGENCY COLLABORATION

Partnerships emphasized between:
 U.S.
EEOC
 U.S. Department of Labor’s Office of Federal Contract
Compliance Programs (OFCCP)
 U.S. Department of Justice, Civil Rights Division
Agency Interaction & Collaboration

Memorandum of Understanding (MOU)
 DFEH
 OFCCP

(updated 11.7.2011)
Partnerships for outreach and education
 Employer
 Advocacy
Groups
COMMISSION FOCUS
February 15, 2012: Commission meets on
PREGNANCY & CAREGIVER DISCRIMINATION
DISCRIMINATION AGAINST WORKERS
WITH CAREGIVING RESPONSIBILITIES
Changing workplace demographics
Parental/caregiver status not protected group
Unlawful where caregiver is subjected to
discrimination based on sex/color/race
Unlawful under ADA if based on association
with an individual with disability
Unlawful discrimination against Caregivers


Treating male caregivers more favorably than female
caregivers
Sex-based stereotyping of working women
Reassigning woman to less desirable projects
 Reducing female employee’s workload
 Subjective decision-making




Assumptions about pregnant workers: limiting job
duties
Discrimination against working fathers
Hostile work environment
RETALIATION
Thompson v. North American Stainless



Regalado filed EEOC sex discrimination charge. 3
weeks after charge served,
her fiancé Thompson was fired.
Thompson sued.
Is an employee relative of a charging party
protected by Title VII’s anti-retaliation provision?
RETALIATION: Waiver of Rights
EEOC v. Cognis Corp.
•
Cognis required employees to sign agreement to
never to file charges.
Whitlow signed, but later refused to comply.
•
Soon after, Whitlow was fired.
•
•
Was it retaliation to terminate an employee for
refusing to agree to unlawful terms?
MINISTERIAL EXCEPTION
EEOC v. Hosanna-Tabor




Teacher taught math, language arts, social studies, science, gym
art, computers, music and a religion class 4 days for 30 minutes.
Led class in prayers 3x day for 5 minutes.
Took disability leave for narcolepsy; gets full medical release;
tells principal that she wants to return to work.
Board fired her because of alleged “insubordination and
disruptive behavior.”
Exempt from ADA as a “ministerial employee”?
DISABILITY: HIV+ Disclosure
EEOC v. C.R. England




Truck driver trainer voluntarily disclosed
HIV status to HR
Did not object to the company requiring trainees to sign form
“agreeing” to train with HIV+ trainer
Later fired for refusing a load and ‘deadheading’ home without
proper advance notice
Was disclosure of HIV status to trainees and
requiring the acknowledgement form unlawful?
What was the adverse action?
TRANSGENDER: Title VII
Macy v. Holder



Police detective Macy applies for job as
contract ballistics tech
After job offer, Macy tells contractor of plans
to transition to female
Contractor tells ATF, ATF withdraws offer because of
“budget”

ATF refuses to investigate “gender stereotyping claim”

Is gender stereotyping covered by Title VII?
GENDER IDENTITY : CORE CONCEPTS
•
•
•
•
•
Gender: Social or cultural aspects of masculinity and femininity.
Sex: A person’s anatomy. Sex terms are male, female, transsexual, and
intersex. Sex is biological; social views of sex are cultural.
Gender Identity: An individual's internal sense of being male or
female. Everyone has a gender identity which may or may not be the
same as her or his sex.
Gender Expression: External characteristics and behaviors – such as dress,
grooming, mannerisms, speech patterns and social interactions – that are
socially identified with a particular gender.
Sexual Orientation: Who an individual is attracted to.
T R A N S G E N D E R (OR TRANS)
•
•
A broad term that encompasses people who
experience and/or express their gender
differently from conventional or cultural
expectations.
Many transgender people desire to live life
as the gender different than birth, but not
all.
GENDER TRANSITION
Process of modifying one’s gender expression and/or
physical characteristics to match one’s identity.
Different for everyone. Can include:
• A name change
• Changing clothing style
• “Real Life Experience”
• Counseling, hormone therapy, or surgery
TRANSGENDER
COVERED BY T I T L E V I I
Sex discrimination claim exists if the employer
discriminates…
•
•
•
because the individual has expressed gender in a nonstereotypical 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)
HETEROSEXUAL (“STRAIGHT”) PERSON
WITH A SEX-STEREOTYPING CLAIM
•
•
Price Waterhouse – An “aggressive” female who talks,
dresses and/or acts the way men in our society are
stereotypically “supposed” to act.
A “metro-sexual” male, who cares about his outfits,
accessories and hair products.
COVERED BY TITLE VII
AS A SEX DISCRIMINATION CLAIM
LGB INVIDUAL
WITH A SEX-STEREOTYPING CLAIM
•
•
•
The person does not act in line with stereotypical
notions of male and female.
A gay or bi-sexual man who walks or carries himself in
an “effeminate” manner.
A lesbian or bi-sexual woman who has very short hair
and wears men’s clothes and shoes, for example.
COVERED BY TITLE VII AS
A SEX DISCRIMINATION CLAIM
TRANSGENDER INVIDUAL
WITH A SEX-STEREOTYPING CLAIM
•
•
•
The person does not present in line with stereotypical
notions of how males / females are “supposed” to
appear.
A male to female (MTF) who dresses in women’s clothing
or wears make-up or jewelry.
A female to male (FTM) who wears shirts and ties or
men’s shoes or otherwise acts “unladylike.”
COVERED BY TITLE VII
AS A SEX DISCRIMINATION CLAIM
Resources




EEOC website (www.eeoc.gov)
Arrest and Court Records Enforcement Guidance:
http://www.eeoc.gov/laws/guidance/arrest_conviction.
cfm
Qs and As on Arrest and Court Records:
http://www.eeoc.gov/laws/guidance/qa_arrest_convict
ion.cfm
OPM Guidance on the Employment of Transgender
Individuals:
www.opm.gov/diversity/Transgender/Guidance.asp