2012EEOC TRENDS, PRIORITIES AND

UPDATES

Timothy A. RieraHonolulu Local Office Director

U.S. Equal Employment Opportunity Commission

Agenda

Charge ReceiptsTrends and Priorities EEO Cases

General Counsel

P. David Lopez

THECOMMISSION

CHAIR Jacqueline A. Berrien

Commissioner Commissioner Commissioner

Constance Barker Victoria Lipnic Chai Feldblum

EEOC Charge ReceiptsNATIONAL (FY 2000 – FY 2011)

65,000

70,000

75,000

80,000

85,000

90,000

95,000

100,000

105,000

FY 200

0 

FY 200

1 

FY 200

2 

FY 200

3 

FY 200

4 

FY 200

5 

FY 200

6 

FY 200

7

FY 200

8

FY 200

9

FY 201

0

FY 201

1

Fiscal Year (FY)

Nu

mb

er o

f C

har

ges

Retaliation 37%

Race 35%

Sex 28%

Disability26% Age

24%

NationalOrigin12%

Religion4% GINA

0.2%

0%

5%

10%

15%

20%

25%

30%

35%

40%

U.S. Charge Receipts by Type - FY 2011

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.”

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

Systemic Program

OGC priority---partnerships among the district offices-

Shift 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 pre-employment 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 absenceEEOC v. Sears Roebuck, N.D. Ill. No. 04-cv-

07282-workers’ compensation leave policyEEOC 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_conviction.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 C R I M I N A L R E C O R D S

Wrong Person

Multiple Reports of the Same Incident

Uncorrected Identity Theft

Arrests Dropped For Innocence

Expunged Records Still Appear

Is There a Link Between C o n v i c t i o n a n d J o b ?

Basic question: Does a criminal record suggest an unacceptable risk?

Factors to Assess

Nature and Gravity of the Offense;

How 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 work-family 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 Groups Advocacy

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

RETALIATIONThompson 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 RightsEEOC 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 EXCEPTIONEEOC 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+ DisclosureEEOC 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 VIIMacy 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.

TRANSGENDER (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

T RA N S G E N D E R 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 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)

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 VIIAS A SEX DISCRIMINATION CLAIM

L G B I N V I D U A L 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 INV IDUAL 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 VIIAS 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_conviction.cfm

OPM Guidance on the Employment of Transgender Individuals: www.opm.gov/diversity/Transgender/Guidance.asp