With Democratic President Barak Obama at the helm and a Republican Congress, it remains extremely difficult for any employment law legislation to pass. Nonetheless, the EEOC has been aggressively following up on its Strategic Plan from 2012 and attempting to root out discrimination and harassment while ensuring equal opportunities in the workplace. Here are seven areas the EEOC has been especially focused on of which employers need to be aware:
In January 2016, the EEOC proposed updated enforcement guidance with respect to retaliation under Title VII of the Civil Rights Act. The proposed guidance will make it easier for employees to bring retaliation claims and more difficult for employers to defend them. It expands the definitions of EEO participation, protected opposition, and adverse action and explains that a causal connection between an adverse action and protected activity can be established by a “convincing mosaic of circumstantial evidence” supporting an inference of retaliation, an extremely broad standard.
The proposed guidance advises that an anti-retaliation policy and training are critical components to avoid retaliation claims and that all adverse employment decisions should be carefully reviewed to root out any notion of retaliation.
2. Equal Pay and the EEO-1 Report
Under proposed changes to the agency’s EEO-1 Report, beginning in September 2017, employers, including federal contractors with 100 or more employees will be required to provide compensation and pay data to the federal government on all employees working. This will make it easier for the EEOC to identify and remedy pay disparities and equal pay violations across industries and occupations. It will also assist employers in promoting and ensuring equal pay in the workplace.
If made final, the revised EEO-1 Report will place a tremendous administrative burden on employers so it is best to keep on top of these changes.
3. EEOC Position Statements
Under new procedures applicable to all EEOC charges filed after January 1, 2016, the EEOC will now permit the charging party to obtain a copy of the employer’s position statement upon request as opposed to the charging party merely receiving a description of the statement, or portions of the response, from the EEOC. Efforts will be made to protect confidential information provided by the charging party to refute claims of discrimination, harassment or retaliation. By doing so, the EEOC aims to increase transparency in the investigation process. Thus, it is now more important than ever for employers to be thorough and direct in their responses.
4. Protections for Individuals with HIV
Employers also should be aware that in December 2015, the EEOC released guidance for employees and employers with regard to individuals living with HIV infection. The guidance reiterates that employers are prohibited from discriminating against or harassing individuals based on the fact than an individual is living with the HIV infection or related conditions and that such individuals have a right to reasonable accommodations in the workplace, including:
• Altered break and work schedules;
• Time off to attend medical appointments;
• Ergonomic improvements; and
• The ability to telecommute.
The guidance also illuminates the privacy rights of HIV patients by reaffirming that an employer may only request medical information in limited situations.
5. Protections for Individuals of Muslim and Middle Eastern Descent
In the wake of terrorist attacks around the world and the global war with ISIS, individuals of Muslim and Middle Eastern descent have faced increased incidents of discrimination and harassment in the US workplace. To combat this, the EEOC released a guidance directly addressing this topic with key questions and answers for employers.
The guidance advises employers to be vigilant about slurs and offensive comments about Muslims as terrorists, noting that such remarks amount to workplace harassment. It also stresses that those of Muslim descent should not be subject to more stringent pre-employment security checks and clearance than other employees.
6. GINA and Wellness Programs
The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination based on genetic information. An employer violates GINA by unlawfully requesting that employees undergo medical exams and provide information about their genetic history and family medical history or by wrongfully using genetic history information to make employment decisions. Employee wellness programs also must comply with GINA and employers implementing involuntary wellness programs and wrongfully requesting genetic and medical information will be penalized.
Last fall, the EEOC announced proposed amendments to the GINA regulations specifically pertaining to employee incentives and inducements for wellness programs that will have a significant impact on employers and HR. The rule focuses on spousal information and would permit employers with wellness programs to offer incentives in exchange for an employee’s spouse providing information about his or her health status.
7. Protections for LGBT Individuals
Title VII still does not explicitly consider sexual orientation and gender identity protected classes, and the Employment Non-Discrimination Act (ENDA) has not yet been passed by Congress. However, the EEOC has made clear that it views discrimination based on sexual orientation as well as discrimination against transgender individuals to be a form of sex discrimination. The agency maintains that sexual orientation and gender identity discrimination cannot be defined or understood without reference to sex and that Title VII prohibits unlawful sex stereotyping.
The EEOC recently filed two lawsuits alleging sexual orientation discrimination against gay and lesbian employees, and in 2015, the EEOC sued an employer for sex discrimination against a transgender employee. Thus, it is prudent for employers to prohibit discrimination based on sexual orientation and gender identity.
Which of these issues is of greatest concern to you? Let us know by leaving a comment below.