3/13/2015. Mary O Neill Regional Attorney Phoenix District Office U.S. Equal Employment Opportunity Commission March 10, 2015

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1 Mary O Neill Regional Attorney Phoenix District Office U.S. Equal Employment Opportunity Commission March 10, 2015 EEOC Laws Overview EEOC Process EEOC SEP Priorities Criminal Background Checks EEOC Arrest and Conviction Guidance American with Disabilities Act Domestic Violence and Employment Discrimination Laws EEOC enforces: Title VII of the Civil Rights Act of 1964 (race, national origin, color, sex, and religion) Equal Pay Act (including Lilly Ledbetter Fair Pay Act of 2009) Americans with Disabilities Act (ADA) (including Amendments) Genetic Information Nondiscrimination Act (GINA) Age Discrimination in Employment Act (40+) Rehabilitation Act of

2 The Equal Pay Act Sex based wage discrimination (1.5 % of charges-95 charges) Lilly Ledbetter Fair Pay Act of 2009 TITLE VII OF THE CIVIL RIGHTS ACT of 1964 Race -21.3% (1,318) National Origin-16.1% (992) Color-3.6% The Americans With Disabilities Act Americans With Disabilities Act Amendments Act (ADAAA)-31.6% (1,950 charges) Genetic Information Nondiscrimination Act (GINA) of % (18) Sex % (2,047) Religion-4.7% (291) 2

3 Age Discrimination in Employment Act 26.9% (1,664 charges) Age 40 + Employee Temporary worker Job applicant Former employee Undocumented workers too! Photo via flickr/bongo vongo Enforce Federal Employment Discrimination Statutes Issue Regulations and Guidance Interpreting Those Statutes Receive and Investigate Charges of Discrimination Enforce Statutes through Conciliation and Litigation Engage in Outreach and Education Efforts to Constituent Groups Employee can file Third party can file Commissioner s charge Photo via flickr/bongo vongo 3

4 Please immediately complete the entire form and return it to the U.S. Equal Employment Opportunity Commission ( EEOC ). REMEMBER, a charge of employment discrimination must be filed within the time limits imposed by law, generally within 180 days or in some places 300 days of the alleged discrimination. Upon receipt, this form will be reviewed to determine EEOC coverage. Answer all questions as completely as possible, and attach additional pages if needed to complete your response(s). If you do not know the answer to a question, answer by stating not known. If a question is not applicable, write N/A. (PLEASE PRINT) 1. Personal Information Last Name: First Name: MI Street or Mailing Address: Apt or Unit #: City: County: State: Zip: Phone Numbers: Home: ( ) Work: ( ) Cell: ( ) Address: Date of Birth: Sex: Male Female Do You Have a Disability? Yes No Please answer each of the next three questions. i. Are you Hispanic or Latino? Yes No ii. What is your Race? Please choose all that apply. American Indian or Alaskan Native Asian White Black or African American Native Hawaiian or Other Pacific Islander iii. What is your National Origin? Please Provide The Name Of A Person We Can Contact If We Are Unable To Reach You: Name: Relationship: Address: City: State: Zip Code: Home Phone: ( ) Other Phone: ( ) I believe that I was discriminated against by the following organization(s): (Check those that apply) Employer Union Employment Agency Other (Please Specify) 2. Organization Contact Information (Employer or Union Name) Organization #1 Name: Address: County: City: State: Zip: Phone: ( ) Type of Business: Job Location if different from Org. Address: Human Resources Director or Owner Name: Phone: ( ) Number of Employees in the Organization at All Locations: Please Check ( ) One Less Than More than 500 Organization #2 Name: Address: County: City: State: Zip: Phone: ( ) 3/13/2015 Employer/ Employee >15 Employees-Title VII, ADA, GINA >20 Employees-ADEA 300 days to file charge from last act of discrimination 180 days for ACRD 1 or more employees for sexual harassment under the ACRA Intake Questionnaire, Walk-Ins, Mail-Ins MOU between ACRD and EEOC-Geography Intake Interview Charge drafted Charge served on Employer within 10 days EEOC Requests Position Statement from Employer or ADR Mediation? RFIs/ Subpoenas/ Interviews/ Investigation LOD/ Dismissal/ Notice of Right to Sue-90 days/conciliation Litigation FOIA/ Section 83 Disclosure of Files Do a very detailed Intake Questionnaire Have documents and written chronology Have witnesses names, s, addresses, and statements Letters of representation from lawyers must be on file to discuss the case with the agency Give copies of s, texts, audio and videotapes EEOC Intake interviews conducted M-T-Th-Fri from 8:00 a.m. to 3:00 p.m. Unperfected charges will get served. Please have CP cooperate ADR ACRD-appts, walk-ins, online EQUAL EMPLOYMENT OPPORTUNITY COMMISSION INTAKE QUESTIONNAIRE 4

5 EEOC Form 5 (5/01) This form is affected by the Privacy Act of See enclosed Privacy Act Statement and other information before completing this form. State or local Agency, if any FEPA and EEOC Name (indicate Mr., Ms., Mrs.) Home Phone (Incl. Area Code) Date of Birth Street Address City, State and ZIP Code Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others. (If more than two, list under PARTICULARS below.) Name No. Employees, Members Phone No. (Include Area Code) Street Address City, State and ZIP Code Name No. Employees, Members Phone No. (Include Area Code) Street Address DISCRIMINATION BASED ON (Check appropriate box(es).) City, State and ZIP Code RETALIATION AGE DISABILITY OTHER (Specify below.) THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)): I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address or phone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures. I declare under penalty of perjury that the above is true and correct. Date Charging Party Signature DATE(S) DISCRIMINATION TOOK PLACE Earliest Latest CONTINUING ACTION NOTARY When necessary for State and Local Agency Requirements I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief. SIGNATURE OF COMPLAINANT SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (month, day, year) 3/13/2015 CHARGE OF DISCRIMINATION Charge Presented To: Agency(ies) Charge No(s): X EEOC Arizona Attorney General's Office, Civil Rights Division xxx xxx xxx xxx xxx xxx xxx xxx RACE COLOR SEX RELIGION NATIONAL ORIGIN xxx Name, Address, Phone Number of employer Contact Information of someone we can contact other than you Names and Job Titles of all involved officials Comparators Names and Contact Info of all Witnesses Witness Statements Names of others who are similarly situated Employer policies and handbook All documentary evidence notices, pictures, recordings, etc. Written Statement Journal or outline in time sequence What will be the employer s defense Why discrimination and not just unfair 5

6 Description or documentation of disability Description or documentation of what accommodation(s) you need from your employer 2. Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them. Examples? 1. Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities. An example of barriers in Hiring 6

7 Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination based on race, color, religion, sex, or national origin. Total of Million U.S. Adults 64.6 Million U.S. Adults with Criminal Records National Employment Law Project 26 Companies that Perform Criminal Background Checks 19% 7% All job candidates 73% 73% Selected job candidates 19% National Employment Law Project

8 Info widely available: Internet & consumer reporting agencies Most employers use criminal background checks for some or all jobs Legal & social science developments Federal, state, and local governments foster reentry and employment More working-age people have criminal records, especially African Americans and Hispanics 29 Basics are the same as 1987 and 1990 EEOC guidance documents Now responds to employer questions Federal laws requiring background checks and exclusion from jobs Employer best practices Does not prohibit employers from using or obtaining criminal background checks. Does prohibit using that information in a discriminatory way. Avoids bright line rules. Provides detailed examples and best practices. Employers cannot treat job applicants with the same criminal records differently due to race, color, religion, sex, national origin Proof biased statements similarly situated people treated differently inconsistencies in the hiring process CC image courtesy of Jack Spades on Flickr

9 40% 35% 30% African Americans Whites 34% 25% 20% 15% 17% 14% 10% 5% 5% Which one is the convicted felon? 0% Callback (Criminal Record) Callback (No Record) 33 National Employment Law Project 34 Uniform, neutral policy BUT it results in disproportionate, unjustified exclusion DEFENSE: Unless job related and consistent with business necessity, it s illegal. Particular policy or practice Disparate impact based on race, national origin, or another Title VII basis CC image courtesy Gabe Photos on Flickr 35 9

10 Green v. Missouri Pacific Railroad (1977 decision) -- African American Vietnam-era conscientious objector excluded by a blanket exclusion from working for the Missouri Pacific Railroad. El v. Southeastern Pennsylvania Transportation Authority (2007 decision) -- African American 55-year-old paratransit drivertrainee, who was fired when the employer discovered a conviction for a sole, violent offense that occurred 40 years ago. Waldon v. Cincinnati Public Schools (2013 decision) two African Americans were fired for prior convictions after many years of excellent service (along with an additional ten employees, nine of whom were African-American). Little research on the correlation between criminal record and propensity to commit crimes at the workplace. People who were arrested had same risk of being arrested as general population after 4-7 years of no arrests. Alfred Blumstein and Kiminori Nakamura, Redemption in an Era of Widespread Criminal Background Checks, (2009) 37 National Employment Law Project 38 Targeted Screen + Individualized Assessment CC image courtesy of wainwright.photography on Flickr 1) Nature and gravity of the offense or conduct 2) Time that has passed since the offense, conduct and/or completion of the sentence 3) Nature of the job held or sought

11 Employer should Inform the individual that s/he may be excluded due to evidence of past criminal conduct Provide an opportunity for the individual to explain Consider whether the individual s additional information supports or undermines the exclusion Consider Inaccuracy of criminal record Age at conviction Consistency, quality, and length of employment history before and after Rehabilitation efforts Employment/character references CC image courtesy of Auntie P on Flickr Guidance Example 5: Automatic exclusion in online job application Guidance Example 6: Automatic exclusion without individualized assessment for current employees with good record The cost of corrections consumed $74 billion a year in U.S, $9 billion in California. (U.S. Bureau of Justice Statistics, 2007) Reduced output of goods and services of people with felonies and prison records is $57-$65 billions in losses. (CEPR, 2010) One study showed most people recidivated within 3 years after imprisonment. (U.S. Bureau of Justice Statistics, 1994) Employment has been shown to significantly reduce recidivism. 43 National Employment Law Project wwww.nelp.org 44 11

12 Eliminate across-the-board policies. Identify essential job requirements, how jobs are performed, and target specific offenses that demonstrate unfitness for job. Train managers, hiring officials, & decision makers. Do not ask about convictions on job applications. Provide opportunities for explanations When asking questions about criminal records, limit inquiries to convictions for which exclusion would be job-related and consistent with business necessity. 46 Document the policy s rationale Employers may want to record justification for policies and procedures Keep a record of consultations and research used to craft policy Keep criminal record information confidential. For additional information about the topics we discussed during the presentation, please reference the following sites: Enforcement Guidance: fm Qs and As: n.cfm What You Should Know Fact Sheet: iction_records.cfm 47 12

13 65 Million Need Not Apply /SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1 Cities Pave the Way: Promising Reentry Policies U.S. Department of Labor Civil Rights Guidelines Governing Background Checks and Federally-Funded Workforce Development Programs Webinar: Understanding New DOL Guidance /SCLP/Webinar/Webinar_DOL_WIA_CrimRecGuidelines.pdf?nocdn=1 FCRA Factsheet, What to Know When You Look for a Job 2. Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them. U.S. Reentry Council Reentry MythBusters TRY_MYTHBUSTERS.pdf National Employment Law Project 49 EEOC v. Henry s Turkeys-Iowa jury-$240 million for a class of men with intellectual disabilities NOTE: charge filed by a third party! EEOC v. Global-LA/ Hawaii-$19 million verdict for exploited Thai workers. EEOC v. Spud Seller-COLO-sexual harassment of potato workers. EEOC v. Harris Farms -CA-sexual harassment of farmworker woman 13

14 3. Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations. EXAMPLES: LGBT Issues ADA/Title VII Pregnancy, Reasonable Accommodation Issues Issues under Qualification Standards under the ADA 4. Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender. 5. Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC s investigative or enforcement efforts. 6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace. 14

15 EEOC v. Sonic-NM-$2 million EEOC v. IHOP-NM-$1 million EEOC v Pitre Buick-NM-over $2 million EEOC v Dart Energy-COLO-$1.2 million Holmes & Holmes-UT-statutory caps We took 6,176 charges, resolved about 3,000. Enforcement got almost $8,000,000 in monetary. benefits FY Average caseloads are over 100. Legal got over $8,900,000 in benefits in FY ADR has over 78% resolution rate; 96.7% would use EEOC ADR again. ADR conducted over 290 mediations; R Acceptance 32%; 78% CP Acceptance. Many, many people covered.(i.e. people with mental health issues, intellectual disabilities, epilepsy, diabetes, cancer..) Prohibits overt discrimination-hiring, terms & conditions, firing. Requires Employers to provide Reasonable Accommodations for known impairments unless undue hardship! Medical Inquiries limited Confidentiality Anti-Retaliation Provisions 15

16 A physical or mental impairment that substantially limits a major life activity; A record of such an impairment; Being regarded as having such an impairment Definition of disability construed broadly Mitigating measures (other than ordinary corrective lenses) would not be considered Impairment can be disability even if episodic or in remission Mitigating measures include: (1)medication, medical supplies and equipment, low vision and hearing devices, prosthetics, mobility devices, etc. (2)Use of assistive technology (3)Reasonable accommodations (4)Learned behavioral or adaptive neurological modifications Include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 16

17 The term major life activities also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Broader definition of regarded as disabled that would cover anyone subjected to an action prohibited by this Act because of a real or perceived physical or mental impairment Regarded as would exclude impairments that are transitory (less than six months) and minor Individuals regarded as disabled not entitled to reasonable accommodation Employers, absent undue hardship, must provide reasonable accommodation requested for Actual disability - physical or mental impairment that substantially limits one or more major life activities (which include major bodily functions) Record of a disability - past history of a substantially limiting impairment. Impairment substantially limiting needn t be a high degree of functional limitation A change in the workplace or in the way things are usually done that an individual needs because of a disability May include Time off for treatment, Modified work schedules, or Reassignment to a vacant position. 17

18 ADA prohibits different treatment or harassment at work based on an actual or perceived impairment. Could include impairments resulting from domestic or dating violence, sexual assault or stalking. Employer has to provide reasonable accommodations for disabilities. ADA prohibits different treatment or harassment at work based on an actual or perceived impairment. Could include impairments resulting from domestic or dating violence, sexual assault or stalking. Employer has to provide reasonable accommodations for disabilities. W h y R e p o r t workplace discrimination & harassment? The ADA prohibits retaliation for protected activity. The ADA also prohibits interference with an employee s exercise of his or her rights under the statute. Breach of confidentiality under ADA. EEOC can investigate, find a solution in court or out of it, and try to make sure it doesn t happen again to anyone else. Do it for yourself, but also for your friends and co-workers, your family and children. Third Parties can file charges. Commissioner s charges. 18

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