The California Department of Fair Employment and Housing recently published a model Equal Opportunity Policy.
Under California law, employers are required to “take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.” A part of this obligation includes a requirement that employers develop a harassment, discrimination, and retaliation prevention policy that: Continue reading NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy
The EEOC recently released the national enforcement data for the 2017 fiscal year. According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.
In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces. Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.
Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five. The total breakdown of charges by type is as follows:
|Equal Pay Act
|Genetic Information Non-Discrimination Act
In addition, the EEOC has also released the breakdown of claims received by state. The top 10 states are:
|| Type of Charge
The full state breakdown of claims is available here.
In a recent decision (Xu v. Epic Systems, Inc.), the Wisconsin Labor and Industry Review Commission has held that an employee’s discrimination claims under the Wisconsin Fair Employment Act (WFEA) are not waivable. Specifically, the Commission found:
- Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
- An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.
In this case, a former employee had entered into a severance agreement with his former employer where, among other things, the employee agreed to waive any claims under the WFEA in exchange for a severance payment.
The severance agreement also contained a standard provision intended to comply with federal law which prohibits the waiver of the right to file a charge or complaint with certain federal agencies (e.g., the U.S. Equal Employment Opportunity Commission (EEOC), the Securities and Exchange Commission, the Occupational Safety and Health Administration, the National Labor Relations Board), which stated the following:
Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of such charge with regard to any released claim.
After signing the agreement, the former employee filed a complaint with the EEOC for race discrimination. While the EEOC charge was dismissed, the former employee’s charges were cross-filed with the Wisconsin Equal Rights Division, where the employee claimed that the employer’s conduct also violated the WFEA. Due to the severance agreement, the Division dismissed the claim and the employee appealed the dismissal to the Commission.
The Commission found even though the former employee had waived his right to recover any damages for violations of the WFEA, due to the standard clause (quoted above), he had not waived his right to file a charge with the Division. Moreover, the Commission also concluded that employees cannot be precluded from filing a complaint with the Division.
Watch out employers! The EEOC has joined the digital age by rolling out its new online filing portal, or Public Portal nationwide. With this new tool, employees are now able to easily initiate a charge with the EEOC.
Using this new system, employees are able to file a discrimination charge with the EEOC online. In addition to filing a charge, employees are also able to use this system to manage an EEOC charge that was filed on or after January 1, 2016 if the charge is in investigation or mediation. Specifically, employees who have filed an EEOC charge can use this new portal to:
- Provide and update contact information;
- Upload documents to the charge file;
- Check the status of his or her charge;
- Agree to mediation; and
- Receive charge documents and messages from the EEOC.
The Illinois Human Rights Act (IHRA) was recently amended to include the Religious Garb Law (Public Act 100-0100), which clarifies the religious accommodation requirements under the IHRA.
While the Religious Garb Law does amend the IHRA, it does not appear to impose any new requirements on employers. Instead, it clarifies an employer’s existing obligations with respect to religious accommodation. Specifically, the Religious Garb Law reminds employers that it is unlawful for an employer to require an employee as a condition of employment to violate or forego a “sincerely held practice of his or her religion including, but not limited to, the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion” unless after engaging in the interactive process with the employee, the employer can demonstrate that it cannot accommodate the employee without causing the employer an undue hardship. The Religious Garb Law also clarifies that employers may have dress codes or grooming policies for the purposes of maintaining workplace safety or food sanitation.
It is recommended that all Illinois employers review dress codes and grooming policies to make sure they comply with the amended law.
On June 30, 2017, Missouri Governor Eric Greitens signed Senate Bill 43 into law. This bill amends the Missouri Human Rights Act (MHRA) to more closely align this law with federal employment discrimination law standards and makes changes to rights and remedies for claims under Missouri’s discrimination law and claims for whistleblower retaliation.
These changes go into effect on August 28, 2017 and include the following:
- Change in Standard of Proof to “Motivating Factor”: Plaintiffs must provide that the protected characteristic was the “motivating” factor for the adverse employment action.
- Damage Caps: Compensatory and punitive damages are capped based on the size of the employer (ranging from $50,000 for employers with 100 or fewer employees to $500,000 for employers with more than 500 employees).
- No Individual Liability: Managers, supervisors, and colleagues cannot be held personally liable for violations of these laws.
- Required Summary Judgment: State Courts must use summary judgment to determine whether cases should proceed to trial based on the assembled evidence.
- Business Judgment Defense: Employers are permitted to use a “business judgment defense” and the judge must provide a business judgment jury instruction for every MHRA case.
- Limited Whistleblower’s Protection: Whistleblower claims can no longer be brought against the state and its political subdivisions and only certain employees qualify for whistleblower protections.
These changes only affect claims filed in Missouri state court after August 28, 2017.
Federal law (Title VII) prohibits discrimination based on: race, color, religion, sex (including pregnancy), national origin, mental or physical disability, age, gender, genetic information, and citizenship.
Recently Palantir Technologies in Palo Alto, CA settled a claim of $1.66 million for discrimination against Asian applicants in the hiring and selection process of their engineering positions, even though they employed and hired several Asian candidates. We can take away two lessons from this case:
- Take care when using an Employee Referral Program in your recruitment process.
- Although your best employees may refer great applicants, they may not refer an adequate flow of diverse applicants. The EEOC found that Palantir’s preference for referrals in the screening process resulted in disproportionate number of non-Asians in the applicant pool (adverse impact).
- If you use an Employee Referral Program, find ways to assure you are encouraging a diverse applicant pool and test your results.
- Look at the numbers.
- The hiring ratio for 3 of Palantir’s engineering positions were found to be grossly discriminate.
- Check your hiring ratio’s.
- One way to check your hiring ratio’s is by using the 4/5ths rule (or 80% rule). Although use of this test will not assure that the EEOC will not pursue a claim, it is one tool that they have used to show positive or negative diversity in the hiring process.
- More recently the EEOC has been using a different hiring test. In the case against Palantir the EEOC compared the company’s hiring rate of Asian candidates to the rate that would likely occur if Palantir simply selected from the qualified candidate pool randomly. In this case, the position of Quality Assurance Engineer Intern Palantir hired 17 non-Asian’s and 4 Asian applicants (19%) from a pool of 130 qualified applicants (73% of the applicants were Asian). The EEOC concluded the likelihood that they would choose an Asian was 1 to 1 Billion.
Additional Information For Employers
U.S. Steel Tubular Products, Inc., a subsidiary of United States Steel Corporation, has agreed to pay $150,000 to settle a religious discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). In this lawsuit, the EEOC claimed that the company engaged in religious discrimination during its pre-employment drug screening process.
Specifically, according to the EEOC, the company had hired Stephen Fasuyi a member of the Nazirite sect of the Hebrew Israelite faith, as a utility technician. The job offer was contingent upon Fasuyi passing a pre-employment drug test. The test used by the company was a hair follicle drug test, which requires cutting hair from the subject’s scalp, which went against Fasuyi’s sincerely held religious beliefs (the Old Testament forbids him from cutting hair from his scalp). In accordance with this belief, Fasuyi refused to allow the drug testing company to cut hair from his scalp and, instead, offered alternatives — like pulling hair from his beard. The company refused to entertain Fasuyi’s proposed alternatives, sent him home and, later, revoked the offer of employment.
In its charge, the EEOC maintained that Fasuyi’s religious beliefs should have been accommodated during the pre-employment testing.
This settlement serves as a reminder to all employers that they are required to consider providing religious accommodations to job applicants when such accommodations are requested.
The EEOC recently filed a lawsuit against a South Carolina trucking company for religious discrimination.
The company refused to grant religious accommodation to a Hebrew Pentecostal truck driver who told them that he could not work on the Sabbath for religious reasons. Rather than engage in the interactive process and discuss potential accommodations, the company fired the employee.
Why Should I Care?
Within the past year, the EEOC has pursued several religious discrimination claims relating to an employer’s failure to accommodate an employee’s religious belief and many of those claims involved an employee requesting an accommodation to not work on the Sabbath.
In light of this trend, employers need to remember that an employee’s religious practices and beliefs must be accommodated by an employer — unless it creates an undue burden for the company. In addition, employers are required to engage in the interactive process with the employee to determine the type of accommodation that can be provided. In short, as noted by the EEOC, “employers have an obligation to endeavor to fairly balance an employee’s right to practice his or her religion and the operation of the company.”
The EEOC has developed information to educate employers, employees, and the public about religious discrimination, including Questions and Answers: Religious Discrimination in the Workplace and Best Practices for Eradicating Religious Discrimination in the Workplace. Last December, EEOC released documents for employees and employers that focused on discrimination against people who are or are perceived to be Muslim or Middle Eastern, and an accompanying background summary.
It is recommended that employers review these materials and provide training to their management staff regarding providing religious accommodation.
The EEOC has long-taken the position that an employee’s request for religious accommodation is protected activity and, under Title VII, employees are protected against retaliation for making such a request. This position is reflected in both the EEOC’s Enforcement Guidance on Retaliation and in its Questions and Answers: Religious Discrimination in the Workplace.
Despite this guidance, in a recent case (EEOC v. North Memorial Health Care), an employer has taken the position that an employee’s request for a religious accommodation is not protected from retaliation under Title VII because it does not fall under the two categories of Title VII protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.
While this employer’s argument has not yet been ruled on by the Court (the Court is currently considering the employer’s motion for summary judgment relating to this point), there are lessons that employers can learn from this case – the most important being that an employee’s request for religious accommodation may be construed as protected activity under Title VII.
As such, it is recommended that employers follow these best practices when responding to an employee’s request for religious accommodation:
- Establish policies and processes for handling requests for religious accommodation and provide training to managers and HR regarding these policies and processes;
- Review any request for religious accommodation on a case-by-case basis;
- Ensure that any adverse employment actions taken against employees are taken for legitimate, nondiscriminatory reasons.