U.S. Equal Employment Opportunity Commission. Elaine McArthur Outreach and Training Manager

U.S. Equal Employment Opportunity Commission Elaine McArthur Outreach and Training Manager November 14, 2013

U.S. Equal Employment Opportunity Commission www.eeoc.gov The EEOC is the key civil rights agency responsible for enforcing federal laws that prohibit employment discrimination.

Authority & Role The EEOC has the authority to investigate charges of discrimination against employers who are covered by the law. Our role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding.

EEOC Mission Statement Our mission is to promote equal opportunity in employment through: outreach and education, compliance and/or voluntary settlement, and, where necessary, the rigorous enforcement of the federal civil rights employment laws through administrative and judicial actions.

Obligations of Employers Make the workplace free of unlawful discrimination, harassment & retaliation Promptly and confidentially investigate complaints of discrimination, harassment & retaliation Where discrimination, harassment & retaliation may have occurred, take prompt and appropriate remedial action (i.e., discipline commensurate with the offense)

EEOC carries out its work through its headquarters offices in Washington, D.C. and through 53 field offices serving every part of the nation.

EEOC National Statistics Total Charges of Discrimination filed FY2012 = 99,412 Total Charges of Discrimination filed FY 2011 = 99,947 Retaliation = 37,836 or 38.1% Race = 33,512 or 33.7% Sex = 30,356 or 30.5% Disability = 26,379 or 26.5% Age = 22,857 or 23.0% National Origin = 10,883 or 10.9% Religion = 3,811 or 3.8% Color = 2,662 or 2.7% Equal Pay = 1,082 or 1.1% GINA = 280 or 0.3% NOTE: Because individuals sometimes file charges claiming more than one type of discrimination, the number of Total Charges Filed will be less than the sum of the nine types of discrimination listed above.

Florida Trends: FY 2012 The Miami District EEOC (Miami, Tampa and San Juan offices) received 7,996 private sector discrimination charges Miami 4,900 Tampa 2,633 San Juan 463 Monetary relief obtained for victims totaled nearly $32 million

Florida Charge Filings: FY2012

SEP National Priorities 1. Eliminating barriers in recruitment and hiring 2. Protecting immigrant, migrant and other vulnerable workers 3. Addressing emerging and developing employment discrimination issues 4. Enforcing equal pay laws 5. Preserving access to the legal system 6. Preventing harassment through systemic enforcement and targeted outreach

The EEOC Charge and Investigative Process

The EEOC investigates complaints of employment discrimination based on religion, race, sex, color, national origin, age, disability, and genetic information.

The Civil Rights Statutes Title VII of the Civil Rights Act of 1964 The Age Discrimination in Employment Act of 1967 (ADEA) Title I of the Americans with Disabilities Act of 1990 (ADA) The Equal Pay Act of 1963 (EPA) Genetic Information Non-Discrimination Act (2008) (GINA)

Discrimination Complaints Come to Us: Through the Mail Over the Phone By Fax Via the Computer In Person From Attorneys/Other Reps From our National Help Center

Types of EEOC Charges Charging Parties (individual or class allegations) Third Party Charges, (i.e., NAACP, LULAC) Commissioner Charges (Title VII, ADA) Directed Investigations (ADEA, EPA) Complaints Transferred to EEOC from other Fair Employment Practice Agencies (FEPAs) Federal Sector Discrimination Complaints (filed by federal employees and applicants for federal employment)

Charge Categories Category A: Good evidence of discrimination; potential that EEOC will file suit Category B: Some merit but more investigation is needed before a decision can be made Category C: Closed immediately because charge is nonjurisdictional, unsupported, self-defeating, or, it is unlikely that further investigation will disclose evidence of discrimination. (Information current as of 9/14/13)

What is Illegal Discrimination? Race Color Religion Gender National origin Age (over the age of 40) Disability Genetics Retaliation for opposing discrimination or participating in the complaint process

EEOC Form 5 The Charge of Discrimination ISSUE(S): Termination, Failure to Hire, Demotion, Failure to Promote, Denial of Training, Denial of Pay Raise, Harassment, Failure to Accommodate, Discipline, Different Terms and Conditions of Employment, Unequal Pay, etc. BASIS/BASES: Religion, Race, Sex, Color, National Origin, Age, Disability, Genetic Information

First Thing Don t get frustrated. We don t know what you know, and you don t know what we have. Don t hesitate to bring up jurisdictional questions at this time. Request for information with the charge call if confusing or overly burdensome. Talk with us.

Mediation Employers who use this free service generally love it Quicker resolution than investigation Parties have more control over the process No Right-to-Sue Notice if successfully mediated Sets a positive tone Confidential and no fault

Investigations

Position Statement Your Side of the Story (what happened and why) Too little or too much? Follow the Elements of Proof Remember, in most cases the position statement helps balance the complainant s story and begin our investigation.

Elements of Proof Disparate Treatment o Complainant is a member of a protected class, o Complainant was harmed, o Other employees of a different class were not harmed under similar circumstances, o The employer articulates a legitimate, nondiscriminatory reason for the harm, o The reason articulated by the employer is a pretext to hide discrimination.

Disparate Treatment odirect Evidence - Evidence of a close causal relationship between a protected characteristic and an employment decision. ocircumstantial (indirect) Evidence - Evidence from which disparate treatment can be inferred.

Disparate Treatment (made simple) Is there anyone similar to the complainant? (not harmed) Is the supervisor s articulated reason believable? Is there any connection between employment harm and complainant s membership in a protected class?

Disparate Treatment (some factors to consider for similarly situated) If it is a hiring or promotion case, do the comparators have similar qualifications? Are the charging party and comparators both hourly employees? Are both bargaining unit or non-bargaining unit employees? Are both non-supervisory employees or managers/supervisors? Are both in the same department or do they have similar functions?

Disparate Treatment (cont d) (some factors to consider for similarly situated) Are both probationary or non-probationary employees? (Except where the issue of the charging party being placed on probation for disciplinary reasons is the issue.) Are both at the same stages of the disciplinary process? Did both individuals commit rule violations known to the employer or were the comparator s violations unknown to the employer? NOT EXHAUSTIVE

Disparate Treatment Generally, the term similarly situated is used to describe a person in the same job category as the harmed party. However, the pool of who is considered similarly situated may expand depending on the policy infraction. For example, policies dealing with behavior often times don t distinguish between management and non-management; thus, expanding the pool of similarly situated persons.

Adverse (Disparate) Impact A neutral employment practice or policy that has a disproportionate adverse effect on members of a protected class as compared to non-members of the protected class. Only becomes illegal if the employer cannot justify the employment practice/policy as "job related for the position in question and consistent with business necessity

Adverse Impact Word of mouth referrals Recruiting from homogenous recruitment sources (predominantly white or black schools or areas) Arrest and Convictions records Appearance or grooming standards Credit history Education requirements (Griggs v. Duke Power Co., 401 U.S. 424, 433 (1971))

With any Investigation May be additional requests for information May be on-site investigation Review records Interview management witnesses Tour of the facility Request copies of additional documents May be off-site interviews (of nonmanagement personnel)

Are we there yet??? Dismissal Right-to-Sue Notice Issued Finding of discrimination Conciliation efforts (unlike mediation or settlement, we will insist on certain terms) Litigation possible

QUESTIONS???

Elaine McArthur Outreach and Training Manager U.S. Equal Employment Opportunity Commission Tampa Field Office (813) 202-7924 (direct line) elaine.mcarthur@eeoc.gov