Tag Archives: Equal Employment Opportunity Commission

EEOC Reports Uptick In Sexual Harassment Claims for 2018

On October 4, 2018, the EEOC announced preliminary sexual harassment data for FY 2018 (which ended September 30, 2018).  The end result — sexual harassment claims are on the rise.

According to the preliminary report,

  • The number of EEOC charges filed alleging sexual increased over 12% in 2018
  • The  EEOC filed 66 harassment lawsuits (41 of which included allegations of sexual harassment), this is a 50% increase from 2017.
  • The EEOC recovered nearly $70 million for victims of sexual harassment through litigation and administrative enforcement (an increase from $47.5 million recovered in 2017).

Continue reading EEOC Reports Uptick In Sexual Harassment Claims for 2018

Utah Employer Learns A $832,500 Lesson About Disability Discrimination

Associated Fresh Market, Inc. has agreed to pay $832,500 to settle a group of disability discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC).

The charges filed against the company by several employees alleged that Associated Fresh Market had a pattern and practice of denying reasonable accommodations to disabled employees.

The EEOC investigated these charges and found that the company had a practice of denying reasonable accommodations under the ADA.  Specifically, the company required employees to have no restrictions or be 100% ready to return to work before an employee was reinstated following a medical leave of absence.  The company also routinely denied leave as a reasonable accommodation.  Finally, the company frequently refused to reassign employees to a vacant position as a reasonable accommodation.

Continue reading Utah Employer Learns A $832,500 Lesson About Disability Discrimination

The EEOC Claims Another Victory in Fight for Disabled Workers

On June 5th, Nevada Restaurant Services, a large Las Vegas-based gaming company that operates slot machines, taverns, and casinos, agreed to pay $3.5 million to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

In the suit, the EEOC alleged that by requiring workers with disabilities or medical conditions to be “100% healed” before returning to work the Las Vegas gaming company violated the Americans with Disabilities Act (ADA). The EEOC argued that this behavior doesn’t adhere to the ADA’s interactive process, let alone its reasonable accommodation requirement.

Furthermore, the EEOC showed that Nevada Restaurant Services went as far as firing employees because it viewed them as disabled or, in some cases, were simply associated with someone with a disability.

The EEOC’s Fight Moves Onward

Continue reading The EEOC Claims Another Victory in Fight for Disabled Workers

2017 EEOC Litigation Data Released

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:

Retaliation 41,097 48.8%
Race 28,528 33.9%
Disability 26,838 31.9%
Sex/Gender 25,605 30.4%
Age 18,376 21.8%
National Origin 8,299 9.8%
Religion 3,436 4.1%
Color 3,240 3.8%
Equal Pay Act 996 1.2%
Genetic Information Non-Discrimination Act 206 0.2%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

   Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 8,827 4,740 2,999 2,642 2,740 1,975
Florida 6,858 3,486 2,153 2,222 2,041 1,366
California 5,423 2,752 1,811 1,915 1,500 1,374
Georgia 4,894 2,434 1,864 1,362 1,596 807
Pennsylvania 4,516 2,133 1,195 1,647 1,293 1,118
Illinois 4,392 2,382 1,663 1,414 1,399 1,032
North Carolina 3,752 1,854 1,447 1,210 1,034 751
New York 3,690 1,711 1,095 1,052 1,142 858
Virginia 2,730 1,201 966 864 818 518
Tennessee 2,640 1,318 970 808 815 528

The full state breakdown of claims is available here.

It’s Time to Complete the 2017 EEO-Survey

ATTENTION EMPLOYERS – the Equal Employment Opportunity Commission recently announced that the 2017 EEO-1 survey is now available on the EEOC website.  For those employers who are required to complete this form, the completed form must be submitted no later than March 31, 2018.

Who is required to complete the EEO-1 Survey?

All companies that meet the following criteria are required to file the EEO-1 report annually:

  • Companies who are subject to Title VII of the Civil Rights Act of 1964 and who employ 100 or more employees; or
  • Companies who are subject to Title VII of the Civil Rights Act of 1964 and who employ less than 100 employees if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
  • Federal government prime contractors or first-tier subcontractors who are subject to Executive Order 11246 and who employ 50 or more employees and who is a prime contract or first-tier subcontract amounting to $50,000 or more.

Are companies required to provide compensation data relating to their employees?

In late August 2017, the Office of Management and Budget stayed the pay data collection requirement for the 2017 EEO-1 report.  As a result, employers are not required to provide pay information on the 2017 EEO-1 form.

What do companies need to do to complete the 2017 EEO-1 Report?

To complete the report, employers must collect a snapshot of their employment data on a date of the employer’s choice ranging from October 1 to December 31, 2017.

$800,000+ Reasons to Curb Sexual Harassment in Your Workplace

With the #metoo movement continuing to make headlines, all US companies should be looking for ways to address (and prevent) sexual harassment in their workplace.  However, if the continuing media coverage of the “sexual harassment problem” has not convinced you, two recently EEOC settlements give employers $890,000 reasons to take immediate action.

EEOC v. Indi’s Fast Food Restaurant, Inc., and Evanczyk Brothers, LLC

On January 8, 2018, the EEOC issued a press release announcing that this case (a 15-plaintiff case) had settled for $340,000.  According to the EEOC, managers of four of this restaurant chain’s locations subjected the plaintiffs (many of whom were minors at the time they worked for the restaurant) to “long-standing sexual harassment, including requests for sexual favors, sexually offensive comments and unwanted sexual touching.”

In addition to paying this settlement, the company must also take the following measures:

  • Provide letters of apology to the women,
  • Implement new policies,
  • Conduct extensive training for employees and management,
  • Post an anti-discrimination notice at all workplaces, and
  • Report compliance to the EEOC for a five-year period.

EEOC v. The GEO Group, Inc.

On the same day, the EEOC issued a second a press release announcing that this case (a class action case) had settled for $550,000.  According to the EEOC, female employees were subjected to a pattern and practice of sexual harassment (including sexual assault) between 2006 and 2012.  The harassment included the following type of behavior:

  • Sexual assault

o   A male manager grabbing and pinching the breasts and crotch of a female correctional officer, and

o   A male employee forcing a female employee onto a desk, shoving her legs apart, and kissing her.

  • Verbal harassment

o   Male officers asking female officers for sex,

o   A male officer calling a female officer “bitch” and “f—ing bitch” daily,

o   Supervisors and officers making sexually explicit comments (including “All I want to see of you is the top of your head bobbing up and down while you are on your knees”) to female officers.

o   A supervisor frequently saying that women should be barefoot and pregnant.

o   A male employee making gestures while talking dirty, and

o   Officers using profanity

  • Unwanted physical contact

The female employees also faced retaliation (e.g. discipline, forced resignation, termination, or placement in unsafe conditions in the prison) when they complained about the harassment.

In addition, to paying this settlement, the company must also take the following measures:

  • Send letters of regret to the women and provide employment references for them.
  • Review its equal employment opportunity (EEO) policies,
  • Ensure that all complaints of sexual harassment and retaliation are immediately and thoroughly investigated by a neutral employee,
  • Ensure that the complainant is informed of the results of the investigation
  • Designate certain alleged harassers as ineligible for rehire,
  • Post notices of the consent decree in its Florence facilities,
  • Conduct anti-discrimination training, and
  • Include EEO compliance when evaluating its managers.

Take Home For Employers

These recent settlements send two very important messages to employers.

Most importantly, employers should know that they cannot “stick their heads in the sand” when in receipt of a sexual harassment complaint (or when they have knowledge of potential sexual harassment – regardless of whether a complaint has been made).  Instead, employers must conduct investigations into these situations and take steps to address sexual harassment.  To ignore sexual harassment in the workplace will prove expensive to employers.

Also, these cases show that the EEOC (and state agencies) take this type of claim very seriously and will aggressively pursue charges of sexual harassment.

NEW GUIDANCE – EEOC Issues Guidance On Workplace Harassment

In the wake of the recent sexual harassment scandals, the Equal Employment Opportunity Commission (EEOC) recently published new guidance materials (entitled  “Promising Practices for Preventing Harassment“) which provides employers with numerous suggestions regarding best practices employers can adopt to help prevent workplace harassment (including sexual harassment).

Highlighted in this new publication is the importance of employers developing strong anti-harassment policies and providing regular anti-harassment training to all employees (with a additional recommendation that employers provide their managerial employees with more detailed training).

With respect to anti-harassment policies, the EEOC recommends that employers develop an anti- harassment policy that is comprehensive, easy to understand, and regularly communicated to all employees

This policy should include the following elements:

  • A statement that the policy applies to employees at every level of the organization, as well as to applicants, clients, customers, and other relevant individuals;
  • An unequivocal statement that harassment based on, at a minimum, any legally protected characteristic is prohibited;
  • An easy to understand description of prohibited conduct, including examples;
  • A description of any processes for employees to informally share or obtain information about harassment without filing a complaint;
  • A description of the organization’s harassment complaint system, including multiple (if possible), easily accessible reporting avenues;
  • A statement that employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy;
  • A statement that the employer will provide a prompt, impartial, and thorough investigation;
  • A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible and permitted by law, consistent with a thorough and impartial investigation;
  • A statement that employees are encouraged to respond to questions or to otherwise participate in investigations regarding alleged harassment;
  • A statement that information obtained during an investigation will be kept confidential to the extent consistent with a thorough and impartial investigation and permitted by law;
  • An assurance that the organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and
  • An unequivocal statement that retaliation is prohibited, and that individuals who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation.

The EEOC further recommends that employers provide their anti-harassment policy to its employees in several different ways, including:

  • At hire;
  • In the employee handbook;
  • At any anti-harassment training; and
  • Posting the policy in the workplace.

Finally, the EEOC recommends that employers translate the policy into all languages commonly used by employees.

With respect to training, the EEOC recommends that employers provide regular interactive, comprehensive anti-harassment training to all employees.

The EEOC further recommends that an employee-level training program should the following elements:

  • Descriptions of prohibited harassment, as well as conduct that if left unchecked, might rise to the level of prohibited harassment;
  • Examples that are tailored to the specific workplace and workforce;
  • Information about employees’ rights and responsibilities if they experience, observe, or become aware of conduct that they believe may be prohibited;
  • Encouragement for employees to report harassing conduct;
  • Explanations of the complaint process, as well as any voluntary alternative dispute resolution processes;
  • Explanations of the information that may be requested during an investigation, including: the name or a description of the alleged harasser(s), alleged victim(s), and any witnesses; the date(s) of the alleged harassment; the location(s) of the alleged harassment; and a description of the alleged harassment;
  • Assurance that employees who report harassing conduct, participate in investigations, or take any other actions protected under federal employment discrimination laws will not be subjected to retaliation;
  • Explanations of the range of possible consequences for engaging in prohibited conduct;
  • Opportunities to ask questions about the training, harassment policy, complaint system, and related rules and expectations; and
  • Identification and provision of contact information for the individual(s) and/or office(s) responsible for addressing harassment questions, concerns, and complaints.

With respect to managerial-level anti-harassment training, the EEOC recommends that these employees receive more in-depth training that also includes the following elements:

  • Information about how to prevent, identify, stop, report, and correct harassment, such as:
    • Identification of potential risk factors for harassment and specific actions that may minimize or eliminate the risk of harassment;
    • Easy to understand, realistic methods for addressing harassment that they observe, that is reported to them, or that they otherwise learn of;
    • Clear instructions about how to report harassment up the chain of command; and
    • Explanations of the confidentiality rules associated with harassment complaints;
  • An unequivocal statement that retaliation is prohibited, along with an explanation of the types of conduct that are protected from retaliation under federal employment discrimination laws, such as:
    • Complaining or expressing an intent to complain about harassing conduct;
    • Resisting sexual advances or intervening to protect others from such conduct; and
    • Participating in an investigation about harassing conduct or other alleged discrimination; and
  • Explanations of the consequences of failing to fulfill their responsibilities related to harassment, retaliation, and other prohibited conduct.

It is recommended that all employers review these new guidance materials and consider adopting most, if not all, of the EEOC’s recommended best practices.

NEW TOOL: The EEOC Makes It Easier For Employees To File Discrimination Charges

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.

REMINDER — Engaging In The Interactive Process Is An Ongoing Duty

The interactive process is not a “one and done” affair.  This is something that employers tend to forget when trying to provide a reasonable accommodation to a disabled employee.  To properly comply with the Americans with Disabilities Act (ADA), sometimes employers must engage in the interactive process numerous times to meet their statutory obligations.  Failure to do so can prove costly – as one medical center recently learned.

What Happened?

On September 13, 2017, the EEOC announced that a Mississippi medical center (Vicksburg Healthcare, LLC, dba River Region Medical Center) agreed to pay $100,000 to settle a federal disability discrimination lawsuit filed against it by the EEOC.

According to the lawsuit, the medical center refused to engage in the interactive process with an employee who had requested an accommodation for a disability.  The employee had taken approved sick leave in order to have shoulder surgery.  Before her sick leave expired, the employee contacted her employer and requested a reasonable accommodation of an extension of her leave, or to return to work on light duty – because her healthcare provider had said she needed more time to fully recover from the surgery.

Rather than engage in the interactive process with the employee, the medical center refused to extend the employee’s leave of absence and also refused to temporarily place the employee in an available light-duty position for which she was qualified.  Instead, the medical center terminated the employee.

What’s wrong with that?

While the employer had already provided the employee with one reasonable accommodation for her disability (time off from work to undergo surgery), the Americans with Disabilities Act requires employers to engage in an “interactive process” with an employee who has a disability to determine what kind of reasonable accommodations it can provide.

As the title to this article suggests – this is an ongoing duty.  Employers cannot “rest on their laurels” once one accommodation is provided and refuse to consider providing additional accommodations when the one provided is no longer sufficient.  Instead, the employer must re-engage in the interactive process to determine whether an alternative accommodation can be provided.

Most importantly to employers (and of critical significance in this case), when a leave of absence is provided as a reasonable accommodation, employers cannot be inflexible in the amount of leave provided.  An employer cannot simply provide a fixed amount of leave to an employee and, when that leave is exhausted, refuse to provide any other accommodation.  Instead, the employer must re-engage in the interactive process with the employee and possibly consider extending additional leave or some other type of accommodation.

Final Thoughts

Providing reasonable accommodation to disabled employees is not a “one-size fits all” process.  Different employees have different needs when it comes to accommodation.  Two employees with the same disability can require different accommodations to perform the essential functions of the position.  One employee might only require one accommodation, while another employee might require multiple accommodations or even new accommodations at a later date.  The only way to determine what will reasonably accommodate an employee is to engage in the interactive process with the employee as many times as necessary to determine what type of accommodation, if any, will work for this particular employee’s situation.

Remember Employers — Religious Accommodation Is Not Optional

The EEOC recently filed a lawsuit against a South Carolina trucking company for religious discrimination.

The Claim

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.