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United States Equal Employment Opportunity Commission
Boston Area Office
Strategic Enforcement Plan
September 10, 2014
Rockland, Maine
Strategic Enforcement Plan
1. Eliminating barriers in recruitment and hiring
2. Protecting immigrant, migrant and other vulnerable
3. Addressing emerging and developing issues
4. Enforcing equal pay laws that target compensation
practices that discrimination based on gender
5. Preserving access to the legal system
6. Preventing harassment through systemic
enforcement and targeted outreach
SEP Priority No. 1: Eliminating
Barriers in Recruitment and Hiring
The EEOC will target classbased recruitment and hiring
practices that discriminate
against racial, ethnic and
religious groups, older workers,
women, and people with
Arrest & Conviction Records
April 25, 2012, EEOC issued guidance
Reasserts a legal position the Commission
staked out more than 20 years ago. It
does not create new law
TVII was amended in 1991 to include
disparate impact analysis
Green v. Missouri Pacific
Railroad Company (8th Cir. 1977)
Court said “we cannot conceive of
any business necessity which would
automatically place every individual
convicted of any offense, except
minor traffic violations, in the
permanent ranks of the
Arrest and Incarceration Rates
1 in 17 White men
1 in 6 Hispanic men
1 in 3 African American men
EEOC Guidance
Does not establish that criminal conduct
has occurred
Exclusion based on only an arrest is not
job related and consistent with business
Employer may make employment
decision based on the conduct underlying
the arrest if that conduct makes the
individual unfit for the position
EEOC Guidance (cont’d)
Will usually serve as sufficient evidence that a person
engaged in a particular conduct
Employer may not rely on conviction record alone
(depending on the circumstance)
Private consumer reporting agencies database may not
be updated
Individual may not be aware of, or there may be lack
of compliance with court order to seal record
Record may lack unique information
Data may be inaccurate
Not current
Spelling (name)/clerical errors
Record should have but was not expunged
Business Necessity Defense
The nature and severity of the
The amount of time that has
elapsed since the conviction/or
completion of the sentence; and,
The nature of the job held or
SEP Priority No. 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.
SEP Priority No. 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
administrative interpretations
SEP Priority 3 (cont.): Emerging
Developing Issue – ADA/ADAAA
Certain ADA issues, including
 coverage
 reasonable accommodation
 qualification standards
 undue hardship
 direct threat
SEP Priority 3 (cont.): Emerging
Developing Issue – PDA/ADAAA
Accommodating pregnancy-related
limitations under the Americans with
Disabilities Act Amendments Act
(ADAAA) and the Pregnancy
Discrimination Act
SEP Priority 3(cont.): Emerging
Developing Issue - LGBT
Coverage of lesbian, gay, bisexual
and transgender individuals under
Title VII's sex discrimination
provisions, as they may apply
LGBT: EEOC’s Position
Adverse employment actions taken
against employees or applicants who do
not conform to gender norms or
stereotypes is discrimination “because
of sex”;
Discrimination against an individual who
intends to transition, is transitioning or has
transitioned, to another gender-including by
changing aspects of his or her biological sex
or gender expression is discrimination
“because of sex”.
Resolved EEOC Charge:
Charging Party was a male to female transgender woman
She had worked as a sales assistant for Respondent
Management told her “to dress like a boy” even though she had informed
them that she was a transgender female during her first week of work
Management repeatedly called her using the pre-fix “Mr.” and by male names
even though she asked them not to use male names or pronouns
Co workers respected her and used female pronouns to address her
One manager made a reference to a “hot tranny mess” in reference to one of
the customers in front of Charging Party and other staff, and this was
particularly humiliating for her
Terminated on September 8, 2008 in retaliation for bringing internal
Respondent’s own documents state that she was terminated because her
complaints had “created an unpleasant atmosphere” and that she allegedly
tried to “poison the atmosphere”
Outcome: After Respondent submitted its Position Statement the parties
successfully privately mediated this charge; Charging Party settled for
Resolved EEOC Charge (cont’d):
February 2006-Charging Party hired. At that time she went by her male birth name and
presented in accordance with her biological sex, male
October 2009-Charging Party informed management that she was going to transition to
female and asked that the staff be trained on sensitivity around such matters
Some managers responds with: “you look like a male”, and “you have a strong jaw
Early November 2009, Charging Party started changing appearance, including wearing
November 10, 2009-Charging party came to work presenting as a female including by
wearing a wig and female clothing. Charging Party asked that they refer to her with her
female name. Charging Party was asked to go home and was not allowed to come back
in that attire for six days.
One contractor called her, “it” and “the thing.” Another stated “I have no use for this
Charging Party complained again in March 2010 about harassment and asked for staff
Respondent eliminated Charging Party’s position in April 2010 in retaliation for her
Outcome: EEOC found cause on the hostile work environment and retaliation claims.
Successful conciliation included $225,000 to the Charging Party, a mutually agreeable
letter of reference, annual training for 5 years on EEOC statutes including those related
to transgender status, issued of a revised EEO Policy and posting a Notice to Employees.
Emerging Issue (cont.): GINA
Genetic Information Nondiscrimination Act of 2008
(GINA)prohibits use of genetic information to
discriminate in employment
GINA prohibits discrimination based on the
possibility that someone will acquire a condition in
the future
ADA protects individuals who currently have
impairments or who are perceived as having
impairments, if they meet the definition of
Expanded definition of “disability” under ADAAA
makes it far less likely that individuals will be
without protection under either statute.
GINA Settlements
EEOC v. Founders Pavilion Inc., W.D.N.Y., No. 13-6250,
complaint filed 5/16/13, alleged that a Corning, N.Y., nursing
home violated GINA by asking prospective and current employees
for their family medical histories during required pre-employment
and annual medical exams. As part of a five-year consent decree
resolving the suit in January 2014, the employer agreed to
provide a fund of $110,400 for distribution to the 138 individuals
who were asked for their genetic information, and to pay
$259,600 to the five individuals who the EEOC alleged were fired
or denied hire in violation of the ADA or Title VII.
EEOC v. Fabricut Inc., N.D. Okla., No. 13-248, consent decree
entered 5/14/13. Settled for $50,000 and injunctive relief. Victim
was a temporary employee denied a permanent job after a postoffer medical exam at which she was required to fill out a
questionnaire about her family medical history.
SEP Priority No. 4: Equal Pay
The EEOC will target compensation
systems and practices that
discriminate based on gender.
Among the many strategies to
address these issues, the
Commission particularly encourages
the use of directed investigations and
Commissioner Charges to facilitate
SEP Priority No. 5: Preserving
Access to the Legal System
The EEOC will also target policies and
practices that discourage or prohibit
individuals from exercising their
rights under employment
discrimination statutes, or which
impede the EEOC's investigative or
enforcement efforts.
Preserving Access to Legal System (cont.)
These policies or practices include:
 retaliatory actions
 overly broad waivers
 settlement provisions that prohibit filing
charges with the EEOC or providing
information to assist in the investigation or
prosecution of claims of unlawful
 and failure to retain records required by
EEOC regulations
SEP Priority No. 6: Preventing Harassment Through
Systemic Enforcement and Targeted Outreach
Harassment is one of the most
frequent complaints raised in the
Harassment claims based on race,
ethnicity, religion, age and disability
combined significantly outnumber
even sexual harassment claims in
the private and public sectors.
What? I have a Charge of
Timeline: When a Charge of
Discrimination is Filed
Case assessed
Notice to the Employer
Statement of Position
Request for Information
Interviews with Witnesses
On Site Visits
Determining the Merits of the Charge
No reasonable cause
Dismissal and Notice of Rights
Reasonable cause
Letter of Determination
Tips on EEOC Investigations
Anger accomplishes nothing
Try mediation
Respond promptly
If you have questions, ask them
If you need an extension, call the
If you know of other information that is more
relevant than requested information, call the
If the information requested is too
voluminous, call the Investigator
Remember “it’s not personal, it’s just