Equality In The Workplace

Transcription

1 All Things EEOC 2013 Update Melanie V. Pate Phone: Cell: FY12 Charge Statistics 99,412 total charges filed in FY 2012 Slight decrease from FY Race/Color: 36.4% -- Gender: 30.5% -- National Origin: 10.9% -- Disability: 26.5% (highest % ever) -- Retaliation: 38.1 (highest % ever) 2013 Lewis and Roca LLP 1

2 Trends Over Last 5 Years Race, National Origin and Age charges have decreased slightly Gender and Disability charges have increased Largest percentage increase is in Retaliation charges (34.3% to 38.1%) EEOC Litigation Statistics Total lawsuits filed down from 300 in FY 2011 to 155 in FY 2012 Title VII and ADEA lawsuits down significantly May be related to election year activities and priorities 2013 Lewis and Roca LLP 2

3 Enforcement Priorities Strategic Enforcement Plan: Hiring / Employment Screening Equal Pay for Equal Work Harassment in the Workplace Protecting immigrant, migrant and other vulnerable workers Addressing emerging and developing issues Preserving access to the legal system Enforcement Priorities Systemic bias cases: Pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area. Strategic plan proposes a minimum quota for systemic cases, but no limit set yet Class can be as small as two employees 2013 Lewis and Roca LLP 3

4 Employment Screening Screening based on arrest and conviction records: Cannot have blanket policies Must do individualized assessment Must be job related and consistent with business necessity (ie. employee has control over employer finances or works primarily with children) Equal Pay for Equal Work Lilly Ledbetter Fair Pay Act of 2009 EEOC has filed only two Equal Pay Act lawsuits in the last two fiscal years Could be an area where EEOC uses Commissioner charges that are initiated by the EEOC and not due to a specific charge filed by an employee. Employers should conduct pay audits 2013 Lewis and Roca LLP 4

5 Workplace Harassment Preventing harassment through enforcement and targeted outreach Many large settlements of sex and race harassment cases ($1 mil. to $11 mil.) One-third of EEOC s systemic cases in the past four years have targeted workplace harassment Emerging and Developing Issues ADA Issues: Coverage, reasonable accommodation (LOA), undue hardship and direct threat Accommodating pregnancy-related limitations under the ADA and PDA Coverage of lesbian, gay, bisexual and transgender persons under the Title VII sex discrimination provisions 2013 Lewis and Roca LLP 5

6 Preserving Access to the Legal System Targets policies/practices that discourage employees from exercising their rights or that impede EEOC investigations Confidentiality requirements could violate Title VII s protection of employee s right to oppose discrimination (Buffalo, NY, 8/12) Includes overly broad waivers and settlement provisions that prohibit employees from filing charges with EEOC Priority Charge Handling Procedures (PCHP) Strategic Enforcement Plan cases are the highest priority ( red flag cases ) Will receive greater investigatory attention and resources from the EEOC Where further investigation likely would result in a cause finding. Where irreparable harm will result unless processing is expedited Lewis and Roca LLP 6

7 Age Discrimination in Employment Act (ADEA) Applies to employers with 20 or more employees Applies to labor organizations, employment agencies and government entities. Prohibits discrimination against employees age 40 or older; not illegal to favor older worker over younger one, even if both are 40 or older. Discrimination can occur when the victim and the discriminating person are both over 40. ADEA Changes New final rule issued in 2012 that amends the ADEA regulations about disparate impact claims and the reasonable factors other than age (RFOA) affirmative defense. If employee can show that an employer practice has a disparate impact on older workers, employer must show that the practice is justified by reasonable factors other than age Lewis and Roca LLP 7

8 How do you prove RFOA? Involves a fact-intensive inquiry Defense is not available for disparate treatment claims; it is only available for disparate impact claims that involve a facially-neutral policy or practice that has an allegedly disparate impact on older workers. RFOA Defense Employer must show: The employment practice was reasonably designed to further or achieve a legitimate business purpose, AND It was administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known to the employer Lewis and Roca LLP 8

9 RFOA Considerations Extent to which factor is related to employer s stated business purpose Extent to which employer defines, applies and trains staff about the factor Extent to which employer limits supervisors subjective discretion in applying the factor RFOA Considerations Extent to which employer assessed the potential adverse impact on older workers Degree of harm to older workers and extent to which employer took steps to reduce the harm. No specific combination of considerations must be present to establish defense, and presence of one consideration does not automatically establish the defense Lewis and Roca LLP 9

10 RFOA Examples City grants a larger raise to lower echelon employees for the purpose of bringing salaries in line with those of surrounding police forces; legitimate goal of retaining police officers. Employer requires passage of physical fitness test that is directly relevant to the safe and successful performance of the particular job. Questions??? 2013 Lewis and Roca LLP 10