EEOC-Denver Field Office

Transcription

1 EEOC-Denver Field Office

2 Laws EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII) 15 employees or more Equal Pay Act of 1963 (EPA) At least one other employee of the opposite sex Age Discrimination in Employment Act of 1967 (ADEA) 20 employees or more Americans with Disabilities Act of 1990, as amended 15 employees or more Genetic Information Nondiscrimination Act of 2008 (GINA) 15 employees or more

3 Organizational Structure

4 The Commission 6 presidential appointees: Jacqueline Berrien, Chair Jenny Yang, Comm r Constance S. Barker, Comm r Chai Feldblum, Comm r Victoria Lipnic, Comm r P. David Lopez, General Counsel

5 Two Units: Enforcement and Legal Office of Field Programs (Enforcement Unit) Handles charges & investigations Neutral Office of General Counsel (Legal Unit) Litigates after cause findings Advocates for EEOC as the named plaintiff

6 Enforcement Unit Neutral Different reporting structure: Office of Field Programs, D.C. District Director Enforcement Supervisors Investigators Offers Early Mediation in Select Cases Although part of Enforcement, Mediators are kept separate

7 Legal Unit Not Neutral Separate Reporting Structure: Office of General Counsel D.C. Regional Attorneys Supervising Attorneys Trial Attorneys Occasionally advise investigators Formal involvement begins only after cause finding has been made

8 Charge Processing

9 Intake 1. Intake and Categorize PCHP created 1995 A, B, or C 2. Send Some for Mediation Inquiry 3. Assign for Investigation

10 Investigation 1. Position Statement 2. CP response to Respondent s position statement 3. Request for Information (RFI) 4. Interviews/ On-Site 5. Determination 6. Cause cases only Conciliation

11 Investigation Step 1: Position Statement Be cooperative and civil Position Statement is not evidence; include your proof The Investigator makes recommendation which is most often followed

12 Investigation Step 2: RFI Request for Information Respond fully to RFI Provide additional evidence that supports your client, even if not requested

13 Why should I respond to the investigator s RFI? Subpoena Power

14 What s so bad about a subpoena? Legal Unit Gets Involved Most files otherwise do not come to Legal unless cause has been found Cause 5% of charges We are not neutral

15 Reasons Charges come to Legal Unit Investigator seeks advice on legal question Review of subpoena language Suit to enforce subpoena Investigator believes case is unusually strong or has systemic implications Investigator has recommended a reasonable (NOT probable) cause determination

16 What else is bad about a subpoena? Suit to Enforce Subpoena Loss of Confidentiality

17 Suit to Enforce Subpoena By statute, EEOC investigations are confidential Enforcement lawsuit = public record The law generally favors enforcement

18 Investigation Step 3: Interviews/ On Site Interviews with Decision Makers & Witnesses Inspection of Premises No particular order of proceedings required

19 Investigation Step 4: Determination Pre-determination interview Final opportunity to provide evidence & argument Investigator makes recommendation File is reviewed by supervisor, who makes another recommendation District Director makes determination

20 Determination Two Options Unable to conclude that the information obtained establishes violation of statute NOT a certification of compliance OR Reasonable cause to believe the statute has been violated

21 If unable to conclude violation occurred: Notice of Right to Sue is issued to the Charging Party Suit must be filed within 90 days of receipt of notice

22 If Reasonable Cause is found : EEOC investigator invites both parties to conciliate Investigator is no longer neutral, but an advocate in obtaining an agreement acceptable to the EEOC. EEOC is a separate party with its own interests which are aligned with the CP, but not necessarily identical.

23 Requests to Reconsider Discretionary Director may review if requester alleges: Misconduct by agency official affecting outcome Substantial new evidence may affect outcome Error in interpretation of law may affect outcome

24 Conciliation vs Mediation EEOC may offer pre-investigation Mediation Denver has 3 mediators, separated from Legal and Enforcement At Mediation, Mediator is neutral At Conciliation, EEOC has found cause and is an interested party, seeking separate relief. Legal Unit may be present at Conciliation; never at mediation

25 Samples of Injunctive Relief Sought by Commission in Conciliation Training for HR staff Training for Managers & Supervisors Training for non-supervisory staff Revision of Policies Posting Oversight by Monitor Apology letters Letters of Reference Purging personnel file

26 Why Take Conciliation Seriously? Last Chance for Confidential Settlement Avoid risk of being sued

27 If Conciliation Fails Enforcement unit closes file Legal Unit reviews for litigation for public employers, only on age cases, others go to DOJ for litigation review Recommendation reviewed by Commission, General Counsel or General Counsel staff at HQ Commission s Position on Confidentiality Reverses

28 EEOC Litigation Press release issued upon filing EEOC = plaintiff, NOT the employee EEOC seeks injunctive relief & Consent Decree, plus adequate relief for charging party/ class members No confidential settlement because of the public interest

29 Recent Developments

30 EEOC Strategic Enforcement Plan (SEP) Nationwide Priorities

31 Objectives I. Strategic Law Enforcement II. Education and Outreach III. Improve Service

32 Objective I: Strategic Law Enforcement Integrate investigation, conciliation, and litigation Improve case management Identify and attack discriminatory policies and other systemic discrimination

33 Identify and attack systemic discrimination Prioritize systemic cases for litigation and bring fewer individual and small class claims of discrimination, since systemic litigation requires significantly greater resources than other types of litigation.

34 What are systemic cases? Cases that have a broad impact on an industry, occupation, business, or geographic area. Pattern-or-Practice cases Policy cases Class cases

35 Objective II: Improve Education and Outreach Target vulnerable workers and underserved communities by partnering with organizations that represent them Help employers, unions, and employment agencies by partnering with organizations representing small and new businesses

36 Objective III: Deliver Excellent/Consistent Service Improve skill and diversity of EEOC workforce Implement charge and case management systems consistently, under a new QC Plan

37 Current EEOC Issues Use of criminal background checks in hiring Policy of only hiring candidates who are currently employed

38 Current EEOC Initiatives Systemic Initiative cases with: Policies or Practices that may affect a class of employees OR 20 or more alleged victims of discrimination or retaliation Equal Pay Act violations

39 Criminal Background Checks Why Does EEOC Care? Discrimination based on RACE or NATIONAL ORIGIN Intentional Discrimination - Disparate Treatment Unintentional Discrimination Disparate Impact

40 Disparate Impact Criminal Background Screening Step 1: Did the policy disproportionately screen out applicants based on race, national origin or another protected factor? Step 2: Is the exclusion job-related and is there a business need related to the job in question?

41 Common Inaccuracies in Criminal Records Wrong Person Multiple Reports of the Same Incident Uncorrected Identity Theft Arrests Dropped For Innocence Expunged Records Still Appear

42 Is There a Link Between Conviction & Job? Basic question: Does a criminal record suggest an unacceptable risk? Factors to Assess Nature and Gravity of the Offense; How much time has passed? What type of job is involved?

43 Do Not Apply with Any Misdemeanors/Felonies BLANKET BANS Spotless Criminal History

44 Criminal Background Checks Individualized Assessment Consider each person s record based on the potential risk in the particular position Marriage Education Successful Employment History Age at time of release or conviction Rehabilitation Efforts

45 Definition of Disability for Mental Impairments Substantially limits one or more major life activity Without mitigation Covered by ADAAA, unless both transitory (less than six months) AND minor BUT episodic or in remission counts if substantially limiting when active.

46 ADAAA Regs ADAAA regs 29 CFR 1630 Biggest change: what is a disability Physical or mental impairment that substantially limits a major life activity Rejects old standard for substantially limits, adds rules of broad construction for expansive coverage 29 CFR (j)(1)

47 Mental Impairments Virtually Always Covered Intellectual disability (developmental disability) Major depressive disorder Post-traumatic stress disorder Obsessive compulsive disorder Schizophrenia

48 When can a Mental Illness be accommodated? Performing job functions Meeting production standards Interacting with co-workers OR customers

49 Mental Impairments Common Issues Attendance Concentration Emotions Co-worker Interaction

50 Mental Impairments Accommodation Not Required Direct Threat with or without accommodation Disruptive Behavior Undue Hardship

51 What if a Mental Illness interferes but is not disclosed? Production standards can be enforced Suspected Mental Illness? Focus on unacceptable performance Ask if there is a reason performance is lagging DO NOT ASK Do you have a disability?

52 Mental Impairments Fitness for Duty Exams Reasonable belief Objective evidence Medical issue is likely the cause Refer for fitness for duty: narrowly tailored

53 What if a Third Party Discloses Mental Illness? Don t follow-up with employee to confirm rumors. Don t try to seek additional information without a specific request from the employee If there are performance or behavior problems, focus on the fixing the problem

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