2015 Atkinson, Andelson, Loya, Ruud & Romo. History of the EEOC. Current Role of the EEOC. Strategic Enforcement Plan

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1 Sex Discrimination: What it Looks Like in Employment Law Conference Session 1 Prepared by: Susan M. Steward Cerritos Fresno Irvine Pasadena Pleasanton Riverside Sacramento San Diego The Equal Employment Opportunity Commission Federal agency dedicated to stopping and remedying employment discrimination on the basis of: Sex National Origin Pregnancy Age Race Disability Color Genetic Information Religion 1 History of the EEOC 2015 marks the 50 th anniversary of the EEOC Created by the Civil Rights Act of 1964 Officially opened for business on July 2, 1965 Franklin D. Roosevelt, Jr. appointed as first EEOC Chairman 2 1

2 History of the EEOC First EEOC ruling regarding sex discrimination Unlawful under Title VII to have separate "help wanted" sections for men and women (1965) EEOC noted lack of public consensus and Congressional guidance on sex discrimination issues First EEOC decision on a charge of sex discrimination Corporate policies requiring firing of female employees when they marry violate Title VII (1965) 3 Current Role of the EEOC Current jurisdiction over employment discrimination issues including: Equal Pay Act of 1963 (Fair Labor Standards Act) Title VII of the Civil Rights Act of 1964 ( Title VII ) Age Discrimination in Employment Act of 1967 Rehabilitation Act of 1973 Pregnancy Discrimination Act of 1978 (Title VII) Americans with Disabilities Act of 1990 ( ADA ) Genetic Information Nondiscrimination Act of 2008 Lily Ledbetter Fair Pay Act of Strategic Enforcement Plan Enforcement Priorities Eliminate Barriers in Recruiting and Hiring Target class-based exclusionary recruitment and hiring practices that allegedly steer individuals into specific jobs due to their status in a particular group Enforce Equal Pay Laws Target gender discrimination in compensation systems 5 2

3 Strategic Enforcement Plan Enforcement Priorities Protect Vulnerable Workers by Targeting Disparate pay, job segregation, harassment, human trafficking, and discriminatory policies affecting vulnerable workers who may be unable or unwilling to enforce their rights Prevent harassment through systemic enforcement and targeted outreach Systemic investigations and litigation to deter workplace harassment Preserve Access to the Legal System 6 Strategic Enforcement Plan Sex-Based Claims Remain a Priority Continued aggressive enforcement of laws prohibiting discrimination and harassment based on sex 29.4% of EEOC claims filed in 2014 contained a claim for sex-based discrimination Represents a decrease of less than 1% in sexbased claims since 1997 Sex-based discrimination claims are not likely to abate during Sex Discrimination and the EEOC: 2015 Three Focus Areas Equal Pay, Benefits, and Terms/Conditions of Employment Pregnancy Discrimination and Related Issues re Accommodation Emerging Issue: LGBT Rights 8 3

4 Focus on Equality in Pay, Benefits, and Terms/Conditions of Employment Equal Pay Act Requires equal pay to men/women who perform jobs requiring equal skill, effort, and responsibility and are performed under similar working conditions in same establishment Title VII Prohibits compensation discrimination based on sex (as well as race, color, religion, national origin, age, and disability) Lily Ledbetter Act Establishes that the 180-day statute of limitations for filing equal-pay lawsuits resets with each new paycheck affected by discriminatory action 9 Focus on Equality in Pay, Benefits, and Terms/Conditions of Employment Litigation on behalf of male employees EEOC v. Ruby Tuesday, Inc. EEOC alleges male employees denied lucrative summer employment at Park City, Utah Employer cites concerns about housing male and female employees together 10 Focus on Pregnancy Discrimination and EEOC Enforcement Guidance on Pregnancy Discrimination (2014) Described when employers actions may constitute unlawful discrimination on basis of pregnancy, childbirth, and/or related medical conditions in violation of Title VII, as amended by PDA Clarified obligation of employers under PDA to provide pregnant workers equal access to employment benefits Opined that PDA requires employers to treat women affected by pregnancy or related medical conditions the same way as nonpregnant applicants or employees of similar ability/inability to work 11 4

5 Focus on Pregnancy Discrimination and EEOC Enforcement Guidance on Pregnancy Discrimination (2014) Title I of the ADA applies to individuals with pregnancy-related impairments Pregnancy itself is not a disability Impairments related to pregnancy can be disabilities if they substantially limit/limited one or more major life activities Pregnant workers regarded as having disabilities are protected 12 Focus on Pregnancy Discrimination and EEOC actively pursues pregnancy-related violations, including: Refusal to hire and failure to promote pregnant workers EEOC v. High Speed Enterprise, Inc. dba Subway EEOC v. The WW Group, Inc. dba Weight Watchers Demoting or firing pregnant workers Discharging workers who take leave for pregnancy-related conditions (such as miscarriage) EEOC v. Platinum P.T.S. Inc. dba Platinum Production Testing Services 13 Focus on Pregnancy Discrimination and EEOC actively pursues pregnancy-related violations, including: Limiting employment opportunities for pregnant woman Involuntary leave Refusal to allow work beyond a certain point in pregnancy Reducing work hours Limiting work assignments EEOC v. Noodles Asian Bistro, Inc. Requiring medical clearances not required of non-pregnant workers Latowski v. Northwoods Nursing Center 14 5

6 Focus on Pregnancy Discrimination and EEOC actively pursues pregnancy-related violations, including: Failing to accommodate pregnancy-related work restrictions where similar accommodations are/would be available to non-pregnant workers EEOC v. Step Three Ltd. Refusing to allow lactating mothers to return to work EEOC v. Houston Funding Retaliating against pregnant employees (or those close to them) who complain about pregnancy discrimination EEOC v. Engineering Documentation Sys., Inc. 15 Emerging Issue: Focus on LGBT Rights No explicit protections under Title VII, but the EEOC has been active in federal sector: Tracking gender identity and sexual orientation issues Issuing federal sector decisions finding gender identity-related and sexual orientation discrimination complaints can be brought under Title VII through EEO complaint process Issuing guidance for processing discrimination complaints by federal LGBT employees Assisting federal agencies to develop gender transition policies and plans 16 Emerging Issue: Focus on LGBT Rights- Litigation by EEOC EEOC v. Lakeland Eye Clinic, P.A. Alleged termination because employee is transgender EEOC v. R.G. & G.R. Harris Funeral Homes Inc. Alleged discrimination due to transitioning from male to female EEOC v. Boh Bros. Constr. Co. LLC Alleged male subjected to same sex verbal and physical harassment 17 6

7 Emerging Issue: Focus on LGBT Rights- Amici Curiae Briefs Filed by EEOC Chavez v. Credit Nation Auto Sales, LLC EEOC argued it erred by not initially accepting transgender individual s charge of discrimination Lewis v. Highpoint Reg l Health Sys. EEOC argued discrimination against a transgender individual for non-conformance with gender norms is sex discrimination Muhammad v. Caterpillar Inc. EEOC argued Title VII's anti-retaliation rule protects individuals who in good faith oppose sexual-orientation discrimination in the workplace 18 Related Issue: Rights of Same-Sex Couples Under FMLA DOL s revised definition of spouse under FMLA Effective March 27, 2015 FMLA benefits available to same-sex couples if legally married in a state that recognizes same-sex marriage State of Residence vs. Place of Celebration for all married couples 19 Related Issue: Rights of Same-Sex Couples Under FMLA Department of Labor ( DOL ) revised definition of spouse under FMLA Response to U.S. Supreme Court decision that struck down part of the Defense of Marriage Act which said a marriage must be between a man and a woman United States v. Windsor (2013) 133 S.Ct Same sex leave rights under CFRA Same sex marriages Registered domestic partners 20 7

8 Sex Discrimination Litigation is Alive and Well in California Rosario Juarez v. AutoZone Stores, Inc. (U.S. District Court, San Diego) Ellen Pao v. Kleiner Perkins Caufield & Byers LLC (San Francisco Superior Court) 21 Conclusion: Employers can expect the EEOC to continue aggressive investigation of charges of discrimination Especially where there exist systemic barriers to equal opportunity Employers should train managers and supervisors to recognize and prevent discrimination and harassment Employers should conduct timely & effective investigations into claims of harassment and discrimination and take appropriate remedial action 22 Thank You 8

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