Many employees are not aware that before you can you file a lawsuit in court regarding an employment discrimination or employment retaliation case, you generally need to go through an administrative agency first. Typically that is the EEOC. Today, we are going to discuss the who, what, where, when, and why of filing an EEOC Charge of Discrimination.
Read MoreThe U.S. Equal Employment Opportunity Commission (EEOC) will hold a remote, audio-only Commission meeting on Friday, Jan. 15 at 1:00 p.m. (Eastern Time).
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Greyhound Lines Inc.
According to a lawsuit filed earlier this month by the EEOC against Dallas-based Greyhound Lines, the company violated federal law when it refused to accommodate the religious beliefs of a bus driver.
According to the EEOC's lawsuit, a driver who is a practicing Muslim applied for a driver position at Greyhound's Baltimore facility. During the interview the driver told the supervisor for driver operations and safety that her religious beliefs require her to dress modestly by wearing a headscarf and an abaya, a loose-fitting ankle-length overgarment that conceals the outline of the wearer's body. The supervisor told her during the interview, and later during her training after she was hired, that Greyhound would accommodate her religious beliefs.
However, Greyhound later refused to allow her to wear the abaya, claiming it would be a safety hazard, and proposed she wear a knee-length skirt over pants. The EEOC said that the driver was compelled to quit because the skirt-and-pants uniform proposal conflicted with her religious practice of modest dress by revealing the outline of her body.
According to the suit, prior to applying at Greyhound, the driver had successfully completed her commercial driving license training and had satisfactorily completed all Maryland Motor Vehicle Administration examinations while wearing the abaya. She also was employed for one year as a tractor-trailer driver while wearing the abaya.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion and requires employers to reasonably accommodate an applicant's or employee's sincerely held religious beliefs unless it would pose an undue hardship. The EEOC filed its lawsuit in U.S. District Court for the District of Maryland, Baltimore Division (EEOC v. Greyhound Lines, Inc., Civil Action No. 1:19-cv-01651). The lawsuit seeks back pay, reinstatement, compensatory damages and punitive damages, as well as injunctive relief.
"The driver was able to perform her duties safely while wearing her religious garb, but Greyhound unjustly refused to accommodate her religious beliefs," said EEOC Regional Attorney Debra M. Lawrence. "No employee should be forced to choose between practicing her sincerely held religious beliefs and earning a living."
Read more articles about discrimination here.
Chai Feldblum, a member of the Equal Employment Opportunity Commission
GOP senator Sen. Mike Lee, R-Utah has used his power in the Senate to block the reappointment of the EEOC’s only LGBTQ commissioner, Chai Feldblum, because her existence is a "threat to marriage."
This is a real blow to American workers, especially those who are disabled. Feldblum, an Obama appointee who was re-nominated by President Trump, has spent most of her time on the Commission championing the rights of the disabled in the workplace.
In her capacity as an EEOC commissioner, she has little to nothing to do with any laws or policies having to do with marriage. So when it comes down to it Senator Lee doesn't like her because she is a lesbian.
Meanwhile, this will leave the EEOC without a quorum in 2019, making it more difficult for the agency to conduct business.
In my opinion, Sen. Lee is abusing his power as a member of the U.S. Senate. To block a Trump-appointee who has a long track record of being a strong advocate for workers in general and the disabled in particular based on nothing more than one’s personal religious preference is misguided and harmful to an extremely important federal agency.
I don't think anyone should be very happy about it.
Read the entire story here.
Last week the EEOC announced that 11 of its 53 offices will begin a pilot program called ACT Digital to digitally transmit documents between the EEOC and employers regarding discrimination charges. This is the first step in the EEOC's move toward an online charge system that will streamline the submission of documents, notices and communications in the EEOC's charge system. This system applies to private and public employers, unions and employment agencies.
The EEOC receives about 90,000 charges per year, making its charge system the agency's most common interaction with the public. The EEOC's ACT Digital initiative aims to improve customer service, ease the administrative burden on staff, and reduce the use of paper submissions and files.
The first phase of ACT Digital allows employers against whom a charge has been filed to communicate with the EEOC through a secure portal to download the charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify their contact information. The newly designed EEOC notice of a charge will provide a password-protected log in for the employer to access the system in the pilot offices. Employers will also have the option of opting out of the pilot program and receiving and submitting all documents and communications in paper form.
EEOC Chair Jenny R. Yang commended ACT Digital as an innovative first step in streamlining the agency's charge system.
"The EEOC's pilot of a digital charge system is an important step forward that will benefit the public and our staff," Chair Yang noted. "This will improve our responsiveness to the public, efficiently utilize our resources, and protect the security of documents in our online system. We encourage employers to provide candid feedback and suggestions during the pilots so we can make adjustments to strengthen the system."
The pilot begins May 6, 2015 in the following EEOC offices: Charlotte, Greensboro, Greenville, Norfolk, Raleigh, Richmond and San Francisco. The EEOC offices in Denver, Detroit, Indianapolis and Phoenix will also begin their pilots by the end of May 2015.
About ACT Digital - EEOC's Digital Charge System and Its First Phase of Implementation
Questions and Answers on Phase I of ACT Digital, EEOC's Digital Charge System
The EEOC recently issued Enforcement Guidance on pregnancy discrimination for the first time in over thirty years. The guidance suggests that the Pregnancy Discrimination Act’s (“PDA”) coverage may be much broader and provide workers much more protection than many employers previously thought. The Enforcement Guidance updates prior guidance on this subject in light of legal developments over the past thirty years.
The guidance (full copy of which can be found here) includes discussions of:
when employer actions may constitute unlawful discrimination on the basis of pregnancy, childbirth, or related medical conditions in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act of 1978 (PDA);
the obligation of employers under the PDA to provide pregnant workers equal access to benefits of employment such as leave, light duty, and health benefits; and
how Title I of the Americans with Disabilities Act (ADA), which went into effect over a decade after the PDA and was amended in 2008 to broaden the definition of disability, applies to individuals with pregnancy-related impairments.
The PDA clarifies that discrimination based on pregnancy, childbirth, or related medical conditions is a prohibited form of sex discrimination. It requires that employers treat women affected by pregnancy or related medical conditions the same way they treat non-pregnant applicants or employees who are similar in their ability or inability to work.
Title I of the ADA prohibits employment discrimination on the basis of disability and requires covered employers to provide reasonable accommodations to the known limitations of otherwise qualified employees and applicants for employment. Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past. The ADA also covers pregnant workers who are regarded as having disabilities.
Both the PDA and the ADA apply to private and state and local government employers with 15 or more employees, labor organizations, employment agencies, and apprenticeship and training programs. The PDA applies to employees in the federal sector, as does Section 501 of the Rehabilitation Act of 1973, which applies the ADA’s employment nondiscrimination standards. Beyond these federal laws, state and local laws in some jurisdictions provide additional protections.
With this new guidance in mind, here are some EEOC answers to some commonly asked questions regarding pregnancy discrimination and the Pregnancy Discrimination Act (“PDA”):
General Prohibitions and Requirements
What workplace actions are prohibited under the PDA?
Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).
Does the PDA protect individuals who are not currently pregnant based on their ability or intention to become pregnant?
Yes. The PDA’s protection extends to differential treatment based on an employee’s fertility or childbearing capacity. Thus sex-specific policies restricting women from certain jobs based on childbearing capacity, such as those banning fertile women from jobs with exposure to harmful chemicals, are generally prohibited. An employer’s concern about risks to a pregnant employee or her fetus will rarely, if ever, justify such restrictions. Sex-specific job restrictions can only be justified if the employer can show that lack of childbearing capacity is a bona fide occupational qualification (BFOQ), that is, reasonably necessary to the normal operation of the business. (See also Question 7, below.)
An employer is also prohibited from discriminating against an employee because she has stated that she intends to become pregnant. Thus, demoting an employee with a good performance record two weeks after she informed her manager that she was trying to become pregnant would constitute evidence of pregnancy discrimination.
May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon?
Although Title VII does not prohibit employers from asking applicants or employees about gender-related characteristics such as pregnancy, such questions are generally discouraged. The EEOC will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination. Adverse decisions relating to hiring, assignments, or promotion, that are based on an employer’s assumptions or stereotypes about pregnant workers’ attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful.
Is an employee or applicant protected from discrimination because of her past pregnancy?
Yes. An employee or applicant may not be subjected to discrimination because of a past pregnancy, childbirth, or related medical condition. For example, an employer would violate the PDA by terminating an employee shortly after she returns from medically-related pregnancy leave following the birth of her child if the employee’s pregnancy is the reason for the termination. Close proximity between the employee’s return to work and the employer’s decision to terminate her, coupled with an explanation for the termination that is not believable (e.g., unsubstantiated performance problems by an employee who has always been a good performer), would constitute evidence of pregnancy discrimination.
What are examples of medical conditions related to pregnancy or childbirth?
Medical conditions related to pregnancy may include symptoms such as back pain; disorders such as preeclampsia (pregnancy-induced high blood pressure) and gestational diabetes; complications requiring bed rest; and the after-effects of a delivery. (For information about the application of the ADA to pregnancy-related medical conditions, see Question 18, below.)
Lactation is also a pregnancy-related medical condition. An employee who is lactating must be able to address lactation-related needs to the same extent as she and her coworkers are able to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs.
In addition to being protected under the PDA, female hourly employees who are breastfeeding have rights under other laws, including a provision of the Patient Protection and Affordable Care Act that amended the Fair Labor Standards Act to require employers to provide reasonable break time and a private place for breastfeeding employees to express milk. The Department of Labor has published a Fact Sheet providing general information on the break time requirement for nursing mothers. The Fact Sheet can be found at http://www.dol.gov/whd/regs/compliance/whdfs73.htm.
Workers with Caregiving Responsibilities
Does the law provide protections for caregivers?
Discrimination based on an employee’s caregiving responsibilities may violate Title VII if it is based on sex. For instance, an employer would violate Title VII by denying job opportunities to women, but not to men, with young children, or by reassigning a woman who has recently returned from maternity leave to less desirable work based on the assumption that, as a new mother, she will be less committed to her job. Although leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions, if an employer provides parental leave, it must be provided to similarly situated men and women on the same terms. In addition, employers covered by the Family and Medical Leave Act (FMLA) must provide eligible employees with up to 12 weeks of job-protected leave to care for and bond with a newborn baby or a recently adopted child. Discrimination based on an employee’s caregiving responsibilities may violate the ADA if it is based on the employee’s relationship with an individual with a disability. See Question 22, below.
Concerns About Safety and Ability to Perform the Job
Will an employer violate the PDA if it takes an adverse action against a pregnant worker based on concerns about her health and safety?
Yes. Although an employer may, of course, require that a pregnant worker be able to perform the duties of her job, adverse employment actions, including those related to hiring, assignments, or promotion, that are based on an employer’s assumptions or stereotypes about pregnant workers’ attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful. Even when an employer believes it is acting in an employee’s best interest, adverse actions based on assumptions or stereotypes are prohibited. For instance, it is unlawful for an employer to involuntarily reassign a pregnant employee to a lower paying job involving fewer deadlines based on an assumption that the stress and fast-paced work required in her current job would increase risks associated with her pregnancy.
An employer may only reassign a pregnant worker based on concerns about her health or the health of her fetus if it can establish that non-pregnancy or non-fertility is a BFOQ as described in Question 2, above. In very few, if any, situations will an employer be able to establish this defense.
May an employer take an adverse action against a pregnant worker because of the views or opinions of co-workers or customers?
No. Just as an employer cannot refuse to hire or retain a pregnant woman because of its own prejudices against pregnant women, it cannot take an adverse action against a pregnant worker because of the prejudices of co-workers, clients, or customers. For instance, an employer may not place a pregnant worker who can perform her job on leave based on her co-workers’ belief that she will place additional burdens on them and interfere with their productivity.
Harassment
Does the PDA protect employees from harassment based on pregnancy, childbirth, or related medical conditions?
Yes. Unwelcome and offensive jokes or name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance that is motivated by pregnancy, childbirth, or related medical conditions may constitute unlawful harassment. Whether the conduct is sufficiently hostile to constitute unlawful harassment depends on factors such as the frequency of the conduct or its severity. Employer liability can result from the conduct of supervisors, coworkers, or non-employees such as customers or business partners over whom the employer has some control.
Equal Access to Benefits
An employer is required under the PDA to treat an employee temporarily unable to perform the functions of her job because of her pregnancy or a related medical condition in the same manner as it treats other employees similar in their ability or inability to work, whether by providing modified tasks, alternative assignments, or fringe benefits such as disability leave.
Light Duty
If a pregnant employee needs light duty (temporary work that is less physically demanding than her normal duties), is the employer required under the PDA to provide it?
Yes, if it provides light duty for employees who are not pregnant but who are similar in their ability or inability to work. An employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries.
Does EEOC’s interpretation of the PDA create preferential treatment for pregnant workers?
No. Consistent with the language of the law, the EEOC’s position is that the PDA requires only that an employer treat pregnant workers the same as it treats workers who are not pregnant but who are similar in their ability or inability to work. Thus, an employer may offer light duty to pregnant employees on the same terms that it offers light duty to other workers similar in their ability or inability to work. For example, if an employer’s policy places certain types of restrictions on the availability of light duty positions, such as limits on the number of light duty positions or the duration of light duty, the employer may lawfully apply the same restrictions to pregnant workers as it applies to non-pregnant workers. If an employer does not provide light duty to employees who are not pregnant, it does not have to do so for pregnant workers.
Leave
May an employer require a pregnant employee who is able to perform her job to take leave at any point in her pregnancy or after childbirth?
No. An employer may not force an employee to take leave because she is or has been pregnant, as long as she is able to perform her job. Requiring leave violates the PDA even if the employer believes it is acting in the employee’s best interest. If an employee has been absent from work as a result of a pregnancy-related condition and then recovers, her employer may not require her to remain on leave until the baby’s birth; nor may an employer prohibit an employee from returning to work for a certain length of time after childbirth.
May an employer impose greater restrictions on pregnancy-related medical leave than on other medical leave?
No. Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer:
may not fire a pregnant employee for being absent if her absence is covered by the employer’s sick leave policy;
may not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions;
may not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.
An employer must also hold open a job for a pregnancy-related absence for the same length of time that jobs are held open for employees on sick or temporary disability leave. If the pregnant employee used leave under the Family and Medical Leave Act (FMLA), the employer must restore the employee to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
Note that under the ADA, an employer may have to provide leave in addition to that provided under its normal leave policy as a reasonable accommodation for someone with a pregnancy-related impairment that is a disability. (For more information about the obligation to make reasonable accommodations under the ADA, see Questions 23–25, below.)
Must an employer provide leave to bond with, or care for, a newborn (called “parental leave” in the Guidance)?
Under the PDA, leave related to pregnancy, childbirth, or related medical conditions may be limited to women affected by those conditions, but parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth, it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose. In addition, the FMLA requires covered employers to provide 12 weeks of job-protected leave for covered employees to care for and bond with a newborn baby or a recently adopted child.
Health Insurance
Are employers who provide health insurance benefits required to provide insurance that includes coverage of pregnancy, childbirth, or related medical conditions?
Yes. Employers who have health insurance benefit plans must apply the same terms and conditions for pregnancy-related costs as for medical costs unrelated to pregnancy. If the plan covers pre-existing conditions – as all health plans are required to do as of January 1, 2014, under the Patient Protection and Affordable Care Act – then it must cover the costs of an insured employee’s pre-existing pregnancy. If the plan covers a particular percentage of the medical costs incurred for nonpregnancy-related conditions, it must cover the same percentage of recoverable costs for pregnancy-related expenses.
Employers can violate the PDA by providing health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. To comply with Title VII, an employer’s health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer’s health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, or prescription drugs to prevent high blood pressure or to lower cholesterol levels, then prescription contraceptives also must be covered.
May employers covered by the PDA refuse to provide coverage of prescription contraceptives if they have religious objections to doing so?
In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court recently ruled that the Patient Protection and Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act (RFRA) as applied to closely held for-profit corporations whose owners had religious objections to providing certain types of contraceptives. EEOC’s Enforcement Guidance explains Title VII’s prohibition of pregnancy discrimination; it does not address whether certain employers might be exempt from Title VII’s requirements under the RFRA or under the Constitution’s First Amendment.
Proof of Pregnancy Discrimination
How can a pregnant worker prove that an adverse action was the result of pregnancy discrimination under the PDA?
A PDA violation will be found if an employee’s pregnancy, childbirth, or related medical condition was a motivating factor in an adverse employment action. Evidence of discriminatory motive may include an explicit policy that treats pregnant workers less favorably; statements of decision-makers demonstrating pregnancy bias; close timing between an adverse action and a decision-maker’s knowledge of the employee’s pregnancy, childbirth, or related medical condition; and more favorable treatment of employees of either sex who are not affected by pregnancy but who are similar in their ability or inability to work.
Discrimination may also occur when a neutral policy or practice has a disparate (or disproportionate) impact on pregnant employees if an employer cannot show that the policy or practice is job related and consistent with business necessity. Examples may include policies that exclude all or substantially all pregnant employees from access to light duty or leave.
THE AMERICANS WITH DISABILITIES ACT
Covered Disabilities
Are pregnant employees covered under Title I of the ADA?
In some circumstances, employees with pregnancy-related impairments may be covered by the ADA. Although pregnancy itself is not an impairment within the meaning of the ADA and thus is not a disability, pregnant workers and job applicants are not excluded from the ADA’s protections. Changes to the definition of the term “disability” resulting from the enactment of the ADA Amendments Act of 2008 make it much easier for individuals with pregnancy-related impairments to demonstrate that they have disabilities and are thus entitled to the ADA’s protection.
Pregnancy-related impairments are disabilities if they substantially limit one or more major life activities or substantially limited major life activities in the past. Major life activities that may be affected by pregnancy-related impairments include walking, standing, and lifting, as well as major bodily functions such as the musculoskeletal, neurological, cardiovascular, circulatory, endocrine, and reproductive functions. The term disability should be construed broadly, and the determination of whether someone has a disability should not demand extensive analysis. An impairment does not have to prevent, or severely or significantly restrict, performance of a major life activity to be considered substantially limiting, and impairments of short duration that are sufficiently limiting can be disabilities.
The ADA also covers pregnant workers who are regarded as having disabilities. An employer regards a pregnant worker as having a disability if it takes an adverse action against her (e.g., refuses to hire or terminates her) because of an actual or perceived pregnancy-related impairment, unless the employer can demonstrate that the impairment is transitory (lasting or expected to last for six months or less) and minor.
What are examples of pregnancy-related impairments that may be substantially limiting within the meaning of the ADA?
Examples of pregnancy-related impairments that may substantially limit major life activities include pelvic inflammation, which may substantially limit the ability to walk, or pregnancy-related carpal tunnel syndrome affecting the ability to lift or to perform manual tasks. Impairments that may substantially limit reproductive functions include disorders of the uterus or cervix that may necessitate certain physical restrictions to enable a full term pregnancy, or may result in limitations following childbirth. Pregnancy-related impairments that may substantially limit other major bodily functions include pregnancy-related sciatica limiting musculoskeletal functions; gestational diabetes limiting endocrine function; and preeclampsia, which causes high blood pressure, affecting cardiovascular and circulatory functions.
When does an employer discriminate against a pregnant applicant or employee based on a record of a disability?
An employer discriminates against an applicant or employee on the basis of her record of a disability when it takes an adverse action against her because of a past substantially limiting impairment. For instance, an employer would violate the ADA by denying employment to a job applicant based on a history of gestational diabetes that resolved itself following the birth of her child three years earlier.
When does an employer regard someone who is pregnant as having a disability?
An employer regards a pregnant applicant or employee as having a disability if it takes a prohibited action because of an actual or perceived pregnancy-related impairment that is not both transitory (lasting or expected to last six months or less) and minor. For instance, if an employer makes an adverse employment decision such as involuntarily reassigning a pregnant employee to a lower paying, less physically demanding position because it believes that the employee is experiencing pregnancy-related “complications,” it regards the employee as having a disability. The employer would be liable for discrimination if the employee is able to do the essential functions of her job without posing a “direct threat” (i.e., a significant risk of substantial harm) to herself or others.
Does the ADA protect the parents of a newborn with a disability?
Yes. The ADA prohibits discrimination against individuals who have a known “association” with an individual with a disability. Thus, for example, an employer would violate the ADA by refusing to hire the mother or father of a newborn with a disability because it was concerned that the applicant would take a lot of time off to care for the child or that the child’s medical condition would impose high health care costs.
Pregnancy and Reasonable Accommodation
What is a reasonable accommodation?
A reasonable accommodation is a change in the workplace or in the way things are customarily done that enables an individual with a disability to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment.
Must an employer provide a reasonable accommodation to a worker with a pregnancy- related impairment who requests one?
Yes, if the accommodation is necessary because of a pregnancy-related impairment that substantially limits a major life activity. An employer may only deny a needed reasonable accommodation to an employee with a disability who has asked for one if it would result in an undue hardship. An undue hardship is defined as an action requiring significant difficulty or expense.
What are some accommodations a pregnant worker may need?
Examples of reasonable accommodations that may be necessary for someone whose pregnancy-related impairment is a disability include:
Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited;
Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
Allowing a pregnant worker placed on bed rest to telework where feasible;
Granting leave in addition to what an employer would normally provide under a sick leave policy;
Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
Temporarily reassigning an employee to a light duty position.
THE FAMILY AND MEDICAL LEAVE ACT
Does the Family and Medical Leave Act (FMLA) provide additional protections for pregnant workers and parents?
Yes. Although Title VII does not require an employer to provide pregnancy-related or child care leave if it provides no leave for other temporary illness or family obligations, employers covered by the FMLA (those with 50 or more employees) must provide eligible employees with up to 12 weeks of leave in a 12-month period for the birth of a child and to care for a newborn child, for the placement with the employee of a child for adoption or foster care or to care for the newly placed child, for the employee’s own serious health condition, or for the employee to care for a spouse or child who has a serious health condition. Employees with such a need for family or medical leave are eligible if they worked for a covered employer for a year and for at least 1,250 hours during the immediately preceding year. The FMLA is enforced by the U.S. Department of Labor. For more information about the FMLA see http://www.dol.gov/whd.
The Equal Employment Opportunity Commission (EEOC) today released a comprehensive set of fiscal year 2014 private sector data tables providing detailed breakdowns for the 88,778 charges of workplace discrimination the agency received. The fiscal year ran from Oct. 1, 2013, to Sept. 30, 2014.
The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings--which included the period of the shutdown--were 3,000 to 5,000 less than the other quarters.
Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.
The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.
"Behind these numbers are individuals who turned to the EEOC because they believe that they have suffered unlawful discrimination," said EEOC Chair Jenny R. Yang. "The EEOC remains committed to meaningful resolution of charges and strategic enforcement to eliminate barriers to equal employment opportunity."
The updated data include the popular tables of Statutes by Issue and Bases by Issue. "Bases" refers to the protected characteristics giving rise to the discrimination, such as sex or age. In contrast "issue" is the discriminatory action, such as discharge or failure to promote.
More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.
Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
Race (including racial harassment): 31,073 (35 percent)
Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
Disability: 25,369 (28.6 percent)
Age: 20,588 (23.2 percent)
National Origin: 9,579 (10.8 percent)
Religion: 3,549 (4.0 percent)
Color: 2,756 (3.1 percent)
Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII's sex discrimination provision
Genetic Information Non-Discrimination Act: 333 (0.4 percent)
These percentages add up to more than 100 because some charges allege multiple bases, such as discrimination on the bases of race and color, or sex and retaliation.
In fiscal year 2014, 30 percent of the charges filed with EEOC alleged the issue of harassment on various bases, such as race harassment or harassment on the basis of disability. Preventing harassment through systemic enforcement and targeted outreach is a priority issue for the Commission. The January 14, 2015 Commission meeting focused on Workplace Harassment. The new table for All Harassment Charges includes sexual harassment as well as other forms of harassment. Sexual Harassment still remains as a separate table, joined by new tables showing charges of Race Harassment as well as Charges Alleging Harassment Other than Sexual Harassment.
Discharge continues to be the most common issue for all bases under Title VII, the ADEA and the ADA. Allegations of harassment for all bases were the next most frequently cited issue, with the exception of race. For the basis of race, discriminatory terms and conditions of employment was the second most frequently cited issue (9,332), with harassment being the third (9,023).
The updated tables also include Charges by State. The greatest number of charges were filed in Texas (8,035), followed by Florida (7,528) and California (6,363).
The fight rages on with regard to the EEOC’s position on hiring checks based on criminal backgrounds. In a very high profile cases addressing this issue filed against the EEOC by the State of Texas, Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas issued a decision in State of Texas v. EEOC, Case No.5:13-CV-255 (N.D. Tex. Aug. 20, 2014), granting the EEOC’s motion to dismiss the state’s lawsuit.
The state’s lawsuit was based on the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Under Title VII” and argued that the agency did not have the authority to issue the Guidance and that the EEOC’s position that Title VII trumps conflicting state laws violates Texas’ state sovereignty. Judge Cummings rejected the State’s arguments in this first-of-its-kind attack on the EEOC’s authority.
It should be noted that the state went to some lengths to file the case in such a way as to have it come before Judge Cummings, presumably because the state’s legal team believed he would be sympathetic to their argument. His dismissal of the action at a very early stage of the litigation should, therefore, send a strong signal as to how federal judges will likely view suits of this nature against the EEOC.
The McKinney Law Firm represents clients in San Antonio, Central Texas and South Texas in employment law cases including discrimination, sexual harassment, wrongful termination, breach of contract and overtime claims.
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