Transcript Best Practices - Salisbury University

Equal Employment
Opportunity Commission
Bienvenidos-October 20, 2011
Job Bias Charges Approach Record High
in Fiscal Year 2010, EEOC Reports
• EEOC Reports Job Bias Charges Hit Record
High of Nearly 100,000 in Fiscal Year 2010
• Retaliation Surpasses Race as Most
Frequent Allegation
• Agency Obtains $404 Million for Victims
•
News Release Issued January 11, 2011
2010 Record High Levels for:
• Disability – 25, 165 charges filed
representing 25.2% of new charges
• Religion – 3,790 charges filed
representing 3.8% of new charges
• National Origin – 11,304 charges
filed or 11.3%
Agency Obtains $404 Million for
Victims in 2010
• Through its combined enforcement,
mediation and litigation programs, the
EEOC secured more than $404 million in
monetary benefits from employers -- the
highest level of monetary relief ever
obtained through EEOC’ administrative
process.
In Fiscal Year 2010
• The Baltimore Field Office issued 156
violation findings.
• Fiscal Year 2011 figures are still being
tallied but currently over 100 violations.
The Equal Employment
Opportunity Commission
Our Mission:
To ensure equal employment opportunity by enforcing
federal laws prohibiting discrimination based on sex,
race, religion, color, national origin, age or disability.
www.eeoc.gov
What is illegal
discrimination?
• A person treated differently because of
his/her race, sex, color, religion, national
origin, age, disability or genetics.
Discrimination Can Occur in the
Following Scenarios:
•
•
•
•
•
Hiring/Firing
Wages
Promotion/Demotion
Harassment
Different Terms and Conditions: i.e. Job
Assignments, Benefits, Leave, Training
• Failure to Accommodate for Disability and
Religion
Protected Federal Categories
Race
National Origin
Color
color
Genetic Information
Disability
Religion
Sex
Age <40
Title VII of the Civil Rights Act of
1964 (Title VII)
• Private employers, state and local
governments, education institutions that
employ 15+ individuals
• Private and public employment agencies
• Labor organizations and joint labor
management committees controlling
apprenticeship and training
Title VII
prohibits discrimination on the basis of:
• Race (including ancestry; physical
characteristics; discrimination based on racelinked illnesses; cultural characteristics related
to race or ethnicity)
• Color
• Sex (including pregnancy discrimination)
• Religion
• National Origin (including ethnic background
and traits associated with national origin, i.e.,
family surname, language or accent)
The Age Discrimination in
Employment Act (ADEA)
• ADEA applies to employers with 20 or
more employees.
• It also applies to state and local
governments, employment agencies and
labor organizations, as well as to the
federal government.
• Protects individuals who are age 40 and
over from discrimination based on
• age.
The Equal Pay Act (EPA)
• Employer is covered if one or more employee
• The Equal Pay Act requires that men and
women be given equal pay for equal work in
the same establishment.
• The jobs need not be identical, but they must
be substantially equal.
• It is job content, not job titles, that determines
whether jobs are substantially equal.
• Includes fringe benefits.
Title I of the Americans with
Disabilities Act (ADA) as amended
• Prohibits employment discrimination on the
basis of disability (including having a record of
or being regarded as disabled)
• Includes obligation to provide reasonable
accommodation
• Covers private employers with 15 or more
employees
– State and local employers also covered
– Federal employers covered by Rehab Act
• Prohibits retaliation, harassment
ADA Accommodation
An accommodation is a change in the workplace, or
in the way things are usually done, that provides
equal employment opportunities for individuals with
disabilities
• No requirement to eliminate an essential
function of the job
• No requirement to lower production standards
• A modification need not be made if it creates
an unreasonable hardship for the company
REQUIRED: Interactive Process
Genetic Non-Discrimination in
Employment Act (GINA)
• Enforcement began November 21, 2009
• GINA applies to:
– Employers covered under Title VII of the Civil
Rights Act of 1964 (15 or more employees)
– Federal executive branch agencies
– State and local government employers
– The Executive Office of the President
– The U.S. House and Senate
Why Genetics?
• Many genetic tests now exist that can
inform individuals whether they may be at
risk for developing a specific disease or
disorder. But just as the number of genetic
tests increase, so do the concerns of the
general public about whether they may be
at risk of losing access to health coverage
or employment if insurers or employers
have their genetic information
Some Examples of Genetic Testing:
•
•
•
•
•
•
•
•
•
Newborn Screening
Diagnostic Testing
Carrier Testing
Pre-Natal Testing
Predictive and Pre-symptomatic
Forensic
Parental
Research
Pharmacogenomics
Threat of Genetic Testing
• Loss of Health Benefits
• Loss of Employment
• Fear of Discrimination
7/17/2015
19
Basic Rules Related to
Employment
• Prohibits use of genetic information to
discriminate in employment
• Restricts the acquisition of genetic
information by employers and other
entities covered by GINA
• Requires that covered entities keep
genetic information confidential, subject to
limited exceptions.
Retaliation Prohibited by all
statutes
• It is unlawful to penalize, punish or
deny an employment benefit
because that person opposed
discrimination or participated in
any way in the investigation of a
charge.
EEOC INITIATIVES
Human Trafficking
• Indicators:
• Workers live on or near work site, live in
employer controlled housing
• Guards outside workplace
• Concertina wire facing toward factory (to keep
workers in) rather than facing out
• Restricted and controlled communication and
transportation
• Someone else has possession of documents
(continued)→
Human Trafficking
• Debt owed to employer or agents of employer
• Third party insists on interpreting or being
present for conversations
• Injuries from beatings or weapons
• Untreated infections
• Overly fearful
• Coached to answer questions
• Self blame
• Physically afraid but emotionally attached to
trafficker
Migrant Workers
• Sexual Harassment
• National Origin Discrimination/Harassment
• Disability Discrimination
• Under-served Geographic
Locations
• Underserved Populations
Fair Pay
Lily Ledbetter Fair Pay Act signed
January 29, 2009
Systemic Program
• Addressing systemic discrimination is an
agency-wide top priority for investigations
and litigation.
• Systemic cases are "pattern or practice,
policy and/or class cases where the
alleged discrimination has a broad impact
on an industry, profession, company, or
geographic location."
EEOC Systemic Program-Examples
of Systemic Discrimination
• Racially discriminatory barriers in
recruiting and hiring practices
• Exclusion of women from traditionally male
dominated fields of work
• Barriers based on race, gender or national
origin to higher level positions
• Disability discrimination issues, including
unlawful pre-employment inquiries
•
continued→
EEOC Systemic Program-Examples
of Systemic Discrimination
• Age discrimination in reduction in force
and retirement benefits
• Race and national origin discrimination in
management trainee programs
• Compliance with customer preferences
that result in discriminatory placements or
assignments.
Student Workers
• Promotes equal employment opportunity
for our nation’s next generation of workers.
• Youth@Work Website
• Free outreach events
• Partnership with business leaders, human
resource groups, and industry trade
associations
Caregiver’s Discrimination
• Covered under the EEO laws when based
on a protected characteristic.
e
• Make employment decisions based on
actual work performance, rather than
stereotypes or generalizations.
• Other laws may be implicated.
• EEOC encourages best practices.
Overview: Unlawful Disparate
Treatment of Caregivers Under
Federal EEO Laws
• Gender stereotyping and other sex-based
disparate treatment of women
• Disparate treatment based on pregnancy
• Disparate treatment of male caregivers
• Discrimination against women of color
• Disparate treatment under the ADA
• Hostile work environment
• Retaliation
E-RACE
Eradicating Racism and Colorism
from Employment
• The E-RACE Initiative is designed
to improve EEOC’s efforts to
ensure that workplaces are free of
race and color discrimination.
Under E-RACE
• The Commission will also combine the
objectives of E-RACE with existing EEOC
initiatives.
• For example, the Commission will
integrate the goals of the Systemic
Initiative by addressing race and color
issues with class and systemic
implications.
Arrest and Conviction Records
• If an employer is aware of a conviction or
incarceration, that information should only
bar someone from employment when the
conviction is closely related to the job,
after considering:
• The nature of the job,
• The nature and seriousness of the offense,
and
• The length of time since it occurred.
Arrest Records:
Since an arrest alone does not necessarily mean
that someone has committed a crime, an
employer should not assume that someone who
has been arrested, but not convicted, did in fact
commit the offense.
Instead, the employer should allow the person to
explain the circumstances of the arrest. If it
appears that he or she engaged in the alleged
unlawful conduct, the employer should assess
whether the conduct is closely enough related to
the job to justify denial of employment.
National Enforcement Plan
• ADA Amendments Act
(ADAA)
• Fair Pay/Equal Pay
• Asian American- Pacific
Islander (AAPI)
• Caregiver Disc.
• GINA
• HBCUs
• Migrant Workers
• Human Trafficking
• Student Workers
• Partnerships
• Under-Served
Populations
• Race & color
• Small Business
• Systemic Discrimination
• Underserved
geographical
• areas or
• populations
EEOC’s New Chair
Chair Jacqueline Berrien- The
Chair is responsible for the
administration and
implementation of policy for
and the financial management
and organizational
development of the
Commission.
Commissioner Constance S. Barker
Commissioner Stuart J. Ishimaru
Commissioner.
Victoria Lipnic
Comissioner Chai Feldblum
General Counsel
P. David Lopez
The EEOC's General Counsel directs the
Commission's enforcement and litigation
through the regional attorneys in the
agency's district offices who file and
litigate the Commission's suits throughout
the country.
How Can I Remember All of This?
Invaluable Free Resource:
•www.eeoc.gov
•1-800-6694000
•
Tips for
Bienvenidos
Advocates
What Employers Are Covered?
 Private Employers
 Labor Organizations
 Joint Labor-Management
Apprenticeship and Training
Committees (Title VII & ADA)
 Employment Agencies Serving Covered
Employers
 State and Local Governments
Which Individuals are Protected?





An employee
A temporary worker
A job applicant
A former employee
Undocumented workers
Coverage for Undocumented Workers
Undocumented workers:
 Are protected under federal anti-discrimination laws.
They have the right to file EEOC charges and to have
their cases investigated. EEOC may afford such
workers confidentiality.
 Are generally entitled to the same remedies available
to all other workers for violations of the laws enforced
by the EEOC. (Note: Hoffman decision affects
backpay.)
 Are protected from retaliation. It is unlawful to
threaten or to actually report a undocumented workers
to INS because they have opposed unlawful
discrimination or participated in a proceeding under
anti-discrimination laws.
What Employment Issues
Are Covered?
 Employers: Hiring; promotion; discharge;
compensation; terms, conditions and privileges
of employment; classifying, limiting or
segregating employees or job applicants
 Employment Agencies: Classification or
referral of individuals for employment
 Labor Organizations: Limiting, segregating, or
classifying membership or applicants for
membership; referral of individual for
employment
Select National Origin
& Immigrant Worker
Issues
National Origin Discrimination
Discriminatory treatment:
 Because of an individual’s or
his or her ancestors’ place of
origin,
 Because an individual has the
physical, cultural, or language
characteristics of a national
origin group,
 Because of an association
with persons of a
 national origin group
Discrimination because of
individual’s or his or her ancestors’
place of origin
 It does not matter if the person
discriminating is of the same origin
 If the negative action is based on the
place of origin of the harmed person or
his/her family, it is illegal
 Discrimination because a person is
American is also national origin
discrimination
Discrimination because an individual has the
physical, cultural or language characteristics
of a national origin group.
 The harmed person does not have to
show that she/he is actually from a
particular country or region.
 Negative treatment may be based on:
Language & Accent
Physical looks
Cultural dress/appearance
Discrimination due to association with
persons of a national origin group.
 Friends
 Attendance at schools or places of
worship used by persons of a national
origin group
 Because an individual’s or spouse’s
name is associated with a national
 origin group
Intersectional Discrimination
Immigrant women face gender-based discrimination
and other forms of “otherness” which can further
disadvantage or make them vulnerable:
 Immigrant status – foreigner, guest worker,
undocumented worker, etc.
 National origin, religion, race, age, etc.
 Socio-economic status – poverty, limited education, etc.
 Traditional attitudes concerning women in society in
general and in work
 Limited English proficient – Almost half (46%) of all
foreign-born workers in the U.S. are LEP. (Nearly 73% of
LEP workers speak Spanish.)
 Domestic violence at home
SSN Verification & Discrimination
Violations may occur when employers:
 Verify employee SSNs based on their national origin  EEOC successfully conciliated cases where
employer admitted to verifying only the SSNs of
employees who has foreign-, Latino- sounding or
otherwise “un-American” names.
 Immediately discharge employees based on SSA “no
match” letters by assuming the SSN no-match letter is
indicative of the person’s undocumented work status.
 Request SSN cards during the job application and/or I9 Form process,
 Verify SSNs after the employee has engaged in
protected activity, e.g., opposed discrimination,
participated in union organizing efforts, etc.
Potential Adverse Impact Selection
& Employment Criteria




Height requirements
Appearance Discrimination
Citizenship Requirements
Language Policies - English-only
& No-Accent
Which group contains images of a
stereotypical “classic American” look?
Group A:
Group B:
“Appearance” as a
Selection Tool
 What stereotypical traits comprise a
“classic American” look?
 Abercrombie & Fitch and other retails
defend hiring “brand representatives” or
“brand enhancers” as critical in today’s
competitive retail environment.
 EEOC and private plaintiffs settle their
lawsuit against Abercrombie & Fitch for
$50 million along with other non-monetary
conditions.
EEOC & Citizenship
Requirements
 Discrimination against a person because he or
she is not a U.S. citizen does not directly
violate Title VII.
 However:
Such discrimination is a violation of the
Immigration Reform and Control Act of 1986
(IRCA).
A citizenship requirement violates Title VII if
it has the purpose of discriminating on the
basis of national origin, or if it has the effect
of doing so and is not job related and
consistent with business necessity.
Speak-English-Only Rules
 The EEOC’s policy is that such rules are
presumed to have an adverse impact.
 The employer must prove that the
English- only rule is justified by business
necessity.
 The lawfulness of the rule may depend
on whether the rule is applied at all times
or only at specified times.
Analyzing a Speak-English Rule
 Is there a legitimate business necessity
reason?
What documentation supports the
English-only rule because of concerns for
safe and efficient job performance or safe
and efficient operation of the business?
Are there alternatives which would better
accomplish the business purpose? If so,
the English-only policy will not be
considered a business necessity.
Analyzing a Speak-English Rule
 When is the rule applied?
At certain times or all times at work? If at all
times, the EEOC will presume that the rule
violates Title VII and will closely scrutinize it.
 Was notice of the rule provided to employees?
Employees should have actual notice of the rule
including the applicability of the rule, working
hours, conversations, languages other than
English, and the consequences of violating the
rule.
Justifications for
English-Only Rules
Note: the employer must prove the need
for an English-only rule.
 Communication among coworkers
where close coordination is required
 Communication between employees
and English speaking customers
 Communication between employees
and supervisors
Accent Discrimination
 Distinctions based on accent are permissible
only when accent interferes materially with job
performance.
 Employers should ask themselves two
questions:
Does the ability to communicate in fact
materially relate to the ability to perform the
job?
Does the individual’s accent in fact interfere
with that necessary ability to communicate?
Jobs Where the Ability to
Communicate in English Have Been
Found Essential
 Jobs requiring extensive contact with clients,
e.g., hotel desk clerk job
 Managerial jobs requiring clear communication
of job requirements to subordinates, e.g.,
foreman at a construction site
 Jobs requiring frequent response to
emergency situations where clear, succinct
communication is necessary, e.g., hospital staff
Sexual Harassment &
Farmworker Women
 A study done for California State University
found that more than 90% of farmworker women
reported sexual harassment on the job as a major
problem.
 Domestic violence connection?
A 1995 survey of farmworker women
conducted by the Migrant Clinicians Network
found that 1 in 3 had experienced domestic
violence in the last year.
LACK OF COMPLAINTS by
National Origin Groups – Why?
•
•
•
•
•
•
•
Cultural
Language
Lack of Education
Shame/Embarrassment
Fear of Retaliation
Fear of Governmental Entities
Regulatory Process
EEOC’s Publications Available in
Many Languages:
•
•
•
•
•
•
•
•
Arabic
Chinese
Haitian-Creole
Korean
Russian
Spanish
Vietnamese
. . .and more
Not EEOC But Helpful:
• Department of Justice, Office of Special Counsel
for Immigration-Related Unfair Employment
Practices (OSC)
Prohibits:
• Citizenship status in hiring, firing or recruitment
or referral for a fee;
• National origin discrimination in hiring, firing or
recruitment referral for a fee;
• Document abuse (unfair documentary practices)
during employment eligibility verification, Form I9, process; and,
• Retaliation and intimidation
• http://www.justice.gov/crt/about/osc/
• Worker Hotline: 1-800-255-7688
CONTACT EEOC 24/7
[email protected]
How to contact the EEOC
Maryland Employers:
The Baltimore Field Office
• 10 South Howard Street, 3rd floor
• Baltimore, MD 21201
• The Baltimore Field Office’s jurisdiction
is all employers located in Maryland.
• (800) 669-4000
(800) 669-6820 TDD
•
www.eeoc.gov
How to contact the EEOC
Delaware Employers:
• The Philadelphia District Office
• 801 Market Street, Suite 1300
• Philadelphia, PA 19107
(800) 669-4000
(800) 669-6820 TDD
www.eeoc.gov
Outreach to Advocates, Employer,
Employee Training in Maryland
• Trish Tanner- (410) 209-2721
• Outreach, Education and Training
• [email protected]
Questions??