On July 22, 2014, Governor Cuomo signed a bill that amends the New York Human Rights Law by adding a new Section 296-c entitled, “Unlawful discriminatory practices relating to interns.” The amendment prohibits employers from discriminating against unpaid interns and prospective interns on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, with respect to hiring, discharge, and other terms and conditions of employment. The amendment further prohibits employers from retaliating against unpaid interns who oppose practices forbidden under the Human Rights Law or who file a complaint, testify, or assist in a proceeding brought under the Human Rights Law. The amendment also makes it unlawful for employers to compel an intern who is pregnant to take a leave of absence, unless the pregnancy prevents the intern from performing the functions of the internship in a reasonable manner. The amendment also prohibits employers from subjecting interns to sexual harassment or any other type of harassment based on a protected category. This legislation was introduced following a 2013 case in which the United States District Court for the Southern District of New York dismissed a sexual harassment claim asserted by an unpaid intern who alleged that her boss had groped her and tried to kiss her. In that decision, the Court was bound by the language of the statute that existed at that time and the court decisions interpreting that language, which provided that the Human Rights Law only applied to paid employees and did not apply to unpaid interns. The purpose of the legislation is to give unpaid interns the same right to be free from workplace discrimination and harassment as paid employees. Employers who have unpaid interns or expect to have unpaid interns in the future should consider revising their anti-discrimination and anti-harassment policies to explicitly provide that discrimination and harassment against interns will not be tolerated, and that complaints made by interns regarding alleged unlawful harassment will be investigated in the same manner as complaints made by employees. In addition, as we noted in a 2010 blog post, employers should also make sure that unpaid interns truly qualify as unpaid interns, and would not be considered "employees" who are entitled to the minimum wage and overtime protections of the Fair Labor Standards Act and New York wage and hour laws.
As expected, President Obama signed an Executive Order today which amends Executive Order 11246 to prohibit federal contractors from discriminating against employees or applicants based on their sexual orientation or gender identity. The prohibition against discrimination based on sexual orientation is not new to federal contractors who operate in New York State, because the New York Human Rights Law already prohibits employment discrimination based on sexual orientation. Nevertheless, all federal contractors in New York should take this opportunity to review their policies and practices to ensure compliance with the new Executive Order. Specifically, all anti-discrimination and anti-harassment policies should specifically list sexual orientation and gender identity among the protected categories, and all solicitations for employees should include a statement that qualified applicants will receive consideration for employment without regard to sexual orientation or gender identity (in addition to the other protected categories).
The Secretary of Labor has been directed to issue regulations implementing the amendments to Executive Order 11246 within 90 days. The amendments to Executive Order 11246 will apply to federal contracts entered into on or after the effective date of the regulations issued by the Secretary of Labor.
Discrimination claims are expensive to defend and if they reach a jury, the results are often unpredictable. The summary judgment motion, when utilized properly, is an effective risk and cost containment tool available to employers attempting to fend off such claims before they reach a jury. Therefore, employers need to make sure that they do everything within their power to keep this tool available to them if a discrimination lawsuit is filed. A recent New York Court of Appeals decision, Jacobsen v. New York City Health and Hospitals Corp., underscores this point. In Jacobsen, the Court of Appeals held that an employer who does not participate in an interactive process regarding a disabled employee’s accommodation request is thereafter precluded from obtaining summary judgment with respect to any state or city disability discrimination claims related to that request. Both the trial court and the Appellate Division, First Department, held that summary judgment was appropriate because in their view, on the facts of the case, there was no reasonable accommodation available that would have enabled the terminated employee to perform the essential functions of his position. However, there was one dissenting opinion in the Appellate Division’s decision. The dissenter noted, among other things, that the record lacked any evidence that the employer had engaged in a good faith interactive process to determine the existence and feasibility of a reasonable accommodation. Given such failure, the dissenter felt that summary judgment in favor of the employer was inappropriate. The Court of Appeals concurred with that aspect of the dissenter’s opinion, and reversed the decision granting summary judgment to the employer. After examining the legislative history and intent of the statutes, particularly the provisions of the New York Human Rights Law, the Court of Appeals held that employers are required to “give individualized consideration” to a disabled employee’s accommodation request and that:
In light of the importance of the employer’s consideration of the employee’s proposed accommodation, the employer normally cannot obtain summary judgment on a State HRL claim unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation. And the employer cannot present such a record if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee’s request.
Because of its broader coverage, the Court also held that the “City HRL unquestionably forecloses summary judgment where the employer has not engaged in a good faith interactive process regarding a specifically requested accommodation.” The Court of Appeals made clear that, despite its holding, a plaintiff’s burden at trial remains the same and that he/she still has to prove the existence of a reasonable accommodation that was requested and denied. Moreover, the Court of Appeals rejected the even harsher notion that the failure to engage in a good faith interactive process compels a grant of summary judgment or a verdict in the employee’s favor. The lesson here is simple. Prudent employers should always at least consider a disabled employee’s accommodation request, engage in a dialogue with the employee regarding the feasibility of the accommodation request, and suggest potential alternatives if the initial request is not feasible. Employers should also document their interactions with a disabled employee and the resolution of the employee's accommodation request. That way, employers can ensure that they have a fully equipped tool belt to employ in fending off any potential disability discrimination claims.
On January 13, 2014, the Equal Employment Opportunity Commission (“EEOC”) announced it had reached a settlement with Founders Pavilion, Inc. (“Founders”), a former nursing and rehabilitation center located in Corning, New York. In the lawsuit, the EEOC alleged that Founders violated the Genetic Information Nondiscrimination Act (“GINA”). The lawsuit represented only the third time since GINA was enacted that the EEOC had brought a lawsuit against an employer in which it alleged that an employer violated GINA, and the first lawsuit in which the EEOC alleged that the discrimination was systemic.
In EEOC v. Founders Pavilion, Inc., the EEOC alleged that Founders violated GINA because it conducted post-offer, pre-employment medical exams of applicants, in which it requested a family medical history from the applicants. The EEOC also alleged Founders violated the Americans with Disabilities Act by firing an employee after it refused to accommodate her during the probationary period of her employment, and by firing two women because of perceived disabilities. Further, the EEOC alleged that Founders violated Title VII by firing and/or refusing to hire three women because they were pregnant.
After the lawsuit was filed, Founders ceased operating its business in New York and on or about January 9, 2014, entered into a five-year consent decree in which it agreed to settle the lawsuit. Pursuant to the settlement, Founders agreed to establish a fund of $110,400 for distribution to 138 individuals who were asked to provide their genetic information. Founders also agreed to pay $259,600 to five individuals who the EEOC alleged were fired or whom Founders refused to hire in violation of the ADA and Title VII. In addition, Founders agreed that if it were to resume its business, it must post notices to notify its employees of the lawsuit and consent decree, as well as adopt a new anti-discrimination policy and provide anti-discrimination training to its employees.
While the New York Human Rights Law has prohibited employers from discriminating against an employee on the basis of a predisposing genetic characteristic since 1996, GINA goes a step further and makes it unlawful for an employer to request or require employees to provide their own genetic information or the genetic information of family members. Importantly, GINA and the corresponding regulations broadly define genetic information to include, among other things, genetic tests of the individual or family members and family medical history. For a more detailed discussion of what is prohibited under GINA, see our blog posts on January 14, 2011, December 7, 2010, and November 19, 2009.
In announcing the Founders settlement, the EEOC expressed its intent to continue pursing alleged violations of GINA against employers. This settlement demonstrates the potential liability that an employer could face in the event that the employer violates a provision of GINA. Since GINA and its regulations are relatively new, it is important for employers to consult with their legal counsel to ensure compliance.
Next year, most employers with employees working in New York City will be required to provide reasonable accommodations for pregnant employees. The new requirement is an amendment to the New York City Human Rights Law and takes effect on January 30, 2014.
Under the new law, employers in New York City with four or more employees will be required to provide reasonable accommodations needed due to pregnancy, childbirth, or related medical conditions, provided that the pregnancy or condition “is known or should have been known” to the employer. The law states that accommodations may include, “bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor, among other things.”
Accommodations need not be provided if they would pose an “undue hardship." Factors in determining undue hardship include the nature and cost of the accommodation, the nature of the facility, and the finances of the business.
The law also contains a notice requirement. Covered employers must notify employees of the right to be free from pregnancy discrimination. The notice must be given to all new employees and existing employees. The New York City Commission on Human Rights is expected to issue more specific guidance on the notice requirements. The new law allows employees to file complaints with the Commission or proceed directly to court.
It is fair to say that the New York City law broadens protections for pregnant workers beyond the scope of the Pregnancy Discrimination Act, the Americans with Disabilities Act, and the New York Human Rights Law. Typically, those other laws have not been interpreted to require that employers accommodate a normal, healthy pregnancy. Instead, the right to an accommodation is usually triggered only upon the showing of a particularized need or complicating medical condition, or at the point when the pregnancy becomes disabling (e.g., immediately before and after the birth). The effect of the New York City law is to put a normal, healthy pregnancy on par with a disability for the purpose of workplace accommodations.
Employers with employees in New York City are advised to review their policies and procedures concerning pregnancy and to educate supervisors and managers regarding the scope of these new protections.
As previously reported, the elimination of barriers in recruitment and hiring was identified as one of the Equal Employment Opportunity Commission’s six priorities in its 2013-2016 Strategic Enforcement Plan (“SEP”). Accordingly, the EEOC is focusing its enforcement efforts and resources on eradicating both class-based intentional discrimination, as well as facially-neutral recruitment and hiring practices that have a discriminatory effect on particular groups. To this end, the EEOC has been aggressively challenging employers’ use of criminal and credit background checks in recruitment and hiring, alleging that such practices have a disparate impact on certain applicants in protected classes. However, in a significant victory for employers, the EEOC’s efforts were recently thwarted in a decision issued by the United States District Court for the District of Maryland.
In EEOC v. Freeman, the EEOC challenged the defendant’s use of criminal background and credit checks, alleging that, although facially-neutral, the practice had a discriminatory effect on African-American and male applicants. In granting the defendant’s summary judgment motion dismissing the complaint, the court held that the EEOC and their experts failed to identify a specific policy causing an alleged disparate impact and “something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks.” The court further admonished the EEOC’s lack of factual support, stating that:
[b]y bringing actions of this nature, the EEOC has placed many employers in the "Hobson’s choice" of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.
To further underscore the importance of background checks to employers, the court pointed out that ironically, even the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90% of its positions.
The Freeman court explained that it is not the “mere use” of background checks that presents Title VII concerns, but rather “what specific information is used and how it is used.” Here, Freeman’s use of criminal and credit checks were not used as automatic exclusions and were conducted only for specific types of jobs. The Freeman court held that the use of these screening tools is a “rational and legitimate component of a reasonable hiring process.”
Although this decision is an important victory for employers defending their right to refuse to hire applicants whose backgrounds call into question their character and qualifications for employment, it is unlikely to stop the EEOC’s enforcement efforts completely. The SEP, together with the EEOC’s April 2012 Enforcement Guidance on criminal background checks, make clear that the EEOC is determined to seriously limit the use of background checks, if not prohibit their use altogether. Therefore, employers should consult with legal counsel to ensure that any use of background checks is both job-related and consistent with business necessity, and that such use does not result in automatic exclusions. Background checks should also be limited only to those positions where there is a direct correlation between the background check and the job involved.
On June 24, 2013, the U.S. Supreme Court issued its decision in Vance v. Ball State University, which addressed the issue of who is a "supervisor" under Title VII of the Civil Rights Act. Under Title VII, an employer can be held liable for harassment perpetrated by a non-supervisory employee only if it was negligent in controlling working conditions. If the harassment is perpetrated by a "supervisor," and the harassment results in a tangible adverse employment action, the employer is strictly liable. If the harassment is perpetrated by a "supervisor," but no tangible adverse employment action is taken, the employer can avoid liability by establishing that it exercised reasonable care to prevent and correct harassing conduct and that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that were provided.
In a 5-4 majority opinion authored by Justice Alito, the Supreme Court affirmed a decision rendered by the Seventh Circuit Court of Appeals granting summary judgment to Ball State University in a claim filed by an employee alleging that a co-worker had created a racially hostile work environment. Both the District Court and the Seventh Circuit had held that the co-worker was not a supervisor because she lacked the authority to hire, fire, demote, promote, transfer, or discipline the plaintiff. Accordingly, the District Court and the Seventh Circuit analyzed the case under the standards for non-supervisory harassment under Title VII, and determined that Ball State University could not be held liable, because it was not negligent with respect to the alleged conduct by the plaintiff's co-worker.
The Supreme Court specifically held that "an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" The Supreme Court also held that the "ability to direct another employee's tasks is simply not sufficient" to establish an employee as a supervisor for purposes of Title VII liability. According to the Supreme Court, what makes a person a supervisor is the ability to function as an agent of the employer "to make economic decisions affecting other employees under his or her control."
The Supreme Court majority explicitly rejected the definition of "supervisor" set forth by the Equal Employment Opportunity Commission ("EEOC") in its Enforcement Guidance, finding that definition to be "a study in ambiguity." The EEOC's Enforcement Guidance provides that an employee, in order to be classified as a supervisor, must have a level of authority "of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment." The Supreme Court majority declared that it was adopting a more workable standard that could be more easily applied, so that parties would know early in the litigation which employees will be considered "supervisors" under Title VII.
The Supreme Court's decision significantly curtails the universe of employees whose actions may be imputed to employers for purposes of Title VII liability. This decision will certainly have a profound effect on Title VII litigation in the future.
On May 15, 2013, the U.S. Equal Employment Opportunity Commission ("EEOC") issued updated guidance documents on how the Americans with Disabilities Act ("ADA") applies to applicants and employees who have cancer, diabetes, epilepsy, and intellectual disabilities.
Each of the publications addresses the expansive definition of "disability" under the ADA Amendments Act ("ADAAA"), and provides that an individual with any one of the four specified conditions "should easily be found to have a disability" under the ADAAA. For instance, individuals with diabetes are substantially limited in the major life activity of endocrine function and individuals with cancer are substantially limited in the major life activity of normal cell growth. The publications also reiterate that because the determination of whether an impairment is a disability must be made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin or some other medication controls a person's blood glucose levels.
The publications, which are provided in a Q&A format, include some general background information on each of the four specific disabilities and provide much of the same information in each guidance. The updated guidance documents provide employers with some important reminders. For example, an employer may not ask an applicant who has voluntarily disclosed that he/she has cancer or some other medical condition any follow-up questions about the disability, its treatment, or its prognosis unless the employer reasonably believes that the applicant will require an accommodation to perform the essential functions of the job. Thus, questions during the interview/application process should be focused on the requirements of the particular job, not the applicant’s medical condition. At the pre-offer stage, an employer is also prohibited from asking a third party (such as a job coach, family member, or social worker attending an interview with an applicant who has an intellectual disability) any questions that it would not be permitted to ask the applicant directly.
The publications also tackle issues such as: (1) when an employer may obtain medical information from applicants and employees; (2) when an employer may ask an applicant questions about his/her disability and potential reasonable accommodations; and (3) steps an employer should take to prevent and correct disability-based harassment. The publications refer employers who may be trying to identify reasonable accommodations for a specific disability to the website for the Job Accommodation Network ("JAN"), which provides information about many types of accommodations for various disabilities, including intellectual disabilities, diabetes, cancer, and epilepsy.
Finally, the publications address two notable issues concerning diabetes and epilepsy: (1) if another federal law prohibits an employer from hiring a person who uses insulin or who has had a seizure within a certain period of time for certain jobs, the employer will not be liable under the ADA for not hiring that individual, unless the other federal law includes an applicable waiver or exemption; and (2) employers are entitled to obtain periodic updates that an employee is still able to perform his/her job safely if the employee is in a safety-sensitive position.
On February 20, 2013, the U.S. District Court for the Western District of Pennsylvania dismissed a lawsuit filed by the Equal Employment Opportunity Commission ("EEOC") alleging that U.S. Steel's policy of conducting random breath alcohol tests on probationary employees violated the Americans with Disabilities Act ("ADA"). The Court agreed with U.S. Steel's contention that the random alcohol testing policy was job-related and consistent with business necessity, and specifically rejected provisions of the EEOC's Enforcement Guidance as unpersuasive.
In general, the ADA prohibits an employer from requiring an employee to undergo a medical examination (which includes an alcohol test) unless the medical examination is shown to be job-related and consistent with business necessity. In the U.S. Steel Corp. case, the Court recognized that maintaining workplace safety is a legitimate and vital business necessity, and found that U.S. Steel had met its burden of demonstrating that the policy of randomly testing probationary employees for alcohol was consistent with the business necessity of maintaining workplace safety. The Court noted that the employees at U.S. Steel's Clairton, Pennsylvania, coke manufacturing facility are in extremely safety-sensitive positions, and that some of the hazards they face include molten coke which can reach a temperature of up to 2,100 degrees Fahrenheit, dangerous heights, massive moving machinery, and superheated gasses that are toxic and combustible. In light of these work-related hazards, the Court stated that "employees must be alert at all times" and that "no level of intoxication is acceptable on the job in these circumstances."
The Court also noted that the policy of randomly testing probationary employees for alcohol was negotiated with the union representing the employees and was contained in the Basic Labor Agreement between U.S. Steel and the union. According to the Court, this highlighted the consensus by all parties that such testing was consistent with maintaining workplace safety.
The EEOC argued (citing its own Enforcement Guidance), that a medical examination is not job-related and consistent with business necessity unless the employer has a reasonable belief (based on objective evidence) that an employee's ability to perform essential job functions will be impaired by a medical condition or that an employee will pose a direct threat due to a medical condition. The Court determined that the EEOC's Enforcement Guidance was not persuasive and not entitled to any deference. The Court stated:
The EEOC's vision of the ADA would defy common sense by prohibiting random alcohol testing on new employees under the counterinuitive and unsupported premise that they are not more likely to engage in risky behavior like abusing alcohol at work. Such an outcome could result in a work environment that is less safe and would do nothing to further the purposes of the ADA . . . .
Although the Court's decision in U.S. Steel is certainly a positive one for employers, the decision does not necessarily mean that all policies requiring random drug or alcohol testing in all work environments will withstand a challenge under the ADA. Random drug or alcohol testing of employees who do not hold safety-sensitive positions may still be found to violate the ADA if it is determined that such testing is not job-related or consistent with business necessity. In addition, employers whose employees are represented by a union should make sure to satisfy any bargaining obligations they may have under the National Labor Relations Act before implementing a drug or alcohol testing policy. Employers who are considering implementing a drug or alcohol testing policy should consult with their labor and employment counsel.
In a prior blog post, we wrote about the utility of using pre-trial motions to dismiss employment discrimination complaints that are cobbled together with nothing more than conclusory allegations. The focus of the pre-trial motions in those cases is to convince the Court that an employer should not be forced to incur the costs of discovery and/or trial when a plaintiff states only that he/she is a member of a protected class and was allegedly fired for being in the protected class. A recent case discussed below creates another avenue for making a pre-trial motion, this time in the unique circumstance when an employee, fishing for a lawsuit, tries to artificially create his/her own adverse employment action.
It is well-settled that in order to state a prima facie case of employment discrimination, a plaintiff must plead and prove an adverse employment action. What constitutes an adverse employment action in a context other than an actual termination, however, is not always immediately clear. In certain situations an overzealous would-be plaintiff may resign herself right out of court. This was the situation in Weisbecker v. Sayville Union Free School District, where Judge Bianco of the U.S. District Court for the Eastern District of New York dismissed pregnancy discrimination claims brought by an employee who resigned after being recommended for termination, but before the recommendation was officially acted upon. Our law firm represented the employer in the case.
In Weisbecker, the plaintiff was a probationary elementary school teacher employed by the Sayville School District on Long Island. Shortly after plaintiff went out on her second maternity leave, the Superintendent of Schools was informed that the plaintiff failed to submit her students’ grades for their report cards prior to taking leave. An ensuing investigation revealed that while plaintiff had enough time to submit her grades prior to her leave, she failed to do so. As a result of the findings from the investigation and in accordance with the procedures set forth in the New York Education Law, the Superintendent of Schools informed the plaintiff in writing of her recommendation to the Board of Education to terminate plaintiff’s employment. Rather than avail herself of pre-termination opportunities to present her side of the story to the Board (as set forth in the Education Law), plaintiff simply resigned and filed her discrimination claims.
The issue facing Judge Bianco on the school district’s summary judgment motion was whether the termination recommendation by the Superintendent of Schools in and of itself constituted an adverse employment action and/or a constructive discharge. In a well-reasoned decision, Judge Bianco held that a recommendation for termination that is subject to further approval is not an adverse action or a constructive discharge. Rather, when a process is in place for a final review of the decision to terminate, a plaintiff cannot short-circuit that process on the assumption that the recommendation will automatically ripen into a termination. Here, the Board of Education, not the Superintendent, had the final decision-making authority. In reaching his conclusion, Judge Bianco cited a Seventh Circuit Court of Appeals case holding that a court should not assume that the final layer of approval for a termination is a “sham” entitling a plaintiff to leapfrog directly into litigation.
The decision in Weisbecker may be of significant benefit to entities that have multi-tiered layers of review before a final termination decision is made and becomes effective. For those entities, a plaintiff’s failure to wait for the completion of the full process could very well mark the death-knell for any subsequent discrimination claim.
Bond recently published its 2012 Study of Employment Discrimination Litigation in the Northern and Western Districts of New York. Bond’s first Study on Employment Discrimination Litigation was issued in 2001, with a follow up Study issued in 2007. This latest Study reviews Northern and Western District cases for the January 1, 2007 through December 31, 2011 period, and then compares those findings with the 1991 through 2000 data in its original Study, as well as with data for 2001 through 2011, and cumulative data for the 1991 through 2011 period.
This latest Study shows that in the Northern and Western Districts defendants continued to prevail most of the time in cases that went to trial before a jury (more than 57% of the time in the 2007 through 2011 period, showing a slight decline over other periods). Defendants prevailed by a much greater percentage in cases tried before a judge (87.5% of the time in the 2007 through 2011 period). Fewer cases actually made it to trial and, perhaps not surprisingly given the preceding numbers, of those that did go to trial, far fewer cases were tried before a judge. While the percentage of cases that settled declined a bit in the 2007 though 2011 period, the percentage of cases disposed of by substantive motion actually increased.
In the 21 jury trials that were tried to verdict in the Northern and Western Districts during the 2007 through 2011 time period, plaintiffs prevailed nine times with an average jury award of just under $295,000.
Based upon the manner in which the federal courts track cases, and in a change from prior periods studied, among the categories of age, disability, race and sex, race claims were the most common claims in litigation during the latest 2007 through 2011 period (followed by disability claims which have been growing in number over the years). In prior years, sex-based claims held that top spot. The most significant increase in claims asserted was the general category of “employment discrimination,” which includes retaliation claims. Somewhat surprisingly, age claims were on the decline. By comparison, race claims, followed by sex claims, were the most common claims filed by EEOC and New York Division of Human Rights complainants for the 2008/09 and 2009/10 periods (the latest periods for which statistics were available).
As has been the case for all periods studied, Bond represented more defendants in employment discrimination litigation in the Northern and Western Districts of New York than any other law firm, and in the 2001 through 2011 period, it appeared in almost twice as many cases as the next most frequent defense law firm.
Finally, the Study reveals that the length of time it took for a case to go from filing to verdict after trial increased, and significantly. In the Northern and Western Districts combined, a jury trial took an average of just over four years to conclude during the 2007 through 2011 period, compared to 2.2 years during the 1997 through 2000 period. Bench trials took even longer, at more than six and one-half years for the 2007 through 2011 period, compared to just under two years for the 1997 through 2000 period. Of course, given the relatively small number of bench trials in particular, a lengthy delay in just one or two cases can skew these numbers.
To obtain a complete copy of the Study, click here.
On December 18, 2012, the Equal Employment Opportunity Commission ("EEOC") announced the approval of its 2013-2016 Strategic Enforcement Plan. The Plan’s purpose is to “focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.” The Plan sets forth six agency priorities:
Eliminating Barriers in Recruiting and Hiring. The EEOC will target discriminatory policies and practices that still exist at the hiring stage, such as exclusionary policies and procedures, the practice of steering individuals into certain jobs based on their status in a particular group, and the use of certain screening tools (pre-employment tests, background checks, and date-of-birth inquiries).
Protecting Immigrant, Migrant, and Other Vulnerable Workers. This priority will focus on practices that affect groups of vulnerable workers who are often unaware of their rights, or reluctant to exercise them. The Plan specifically identifies disparate pay, job segregation, harassment, and trafficking practices as issues faced by this population of workers.
Addressing Emerging and Developing Issues. The Plan identifies several priority issues under this heading, including coverage and reasonable accommodation under the Americans with Disabilities Act ("ADA"), accommodating pregnancy-related limitations under the ADA, and coverage of lesbian, gay, bisexual, and transgender individuals under Title VII.
Enforcing Equal Pay Laws. The EEOC will focus on compensation systems that discriminate based on gender.
Preserving Access to the Legal System. This priority includes policies and practices that discourage or prohibit individuals from exercising their rights under the law, or impede the EEOC’s enforcement efforts, such as retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges or providing information to the EEOC, and failure to retain records required by EEOC regulations.
Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC identifies harassment as one of the most common workplace complaints, and will continue to focus its efforts in this area.
The Plan reflects a targeted approach that will place a greater share of the EEOC’s resources on these six priority areas. Charges that fall within these six areas will be given priority attention.
One key theme that can be discerned from this Plan is the EEOC’s strong interest in cases that could potentially affect more than just the charging party. The EEOC intends to take the greatest investigative interest in charges that reference or otherwise involve employment policies or practices with potential class-wide impact -- even if the charging party does not specifically allege that more than one employee has been affected. In assessing the risk or exposure associated with any given EEOC charge, employers must consider the possibility that the EEOC will broaden its investigation beyond the particular employee who filed the charge. The EEOC's Plan serves as another reminder that employers should periodically evaluate whether their standard employment policies and practices might unintentionally have a discriminatory impact on any protected group, or might otherwise need to be improved or amended.
