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End Of Year EEOC Update

Volume 15, Issue 28
December 28, 2016

As we head into 2017, we have set forth below a few EEOC updates employers may find helpful.

1. The EEOC has issued new guidances on retaliation and national origin discrimination.

On August 25, 2016, the EEOC issued its long-awaited revised Enforcement Guidance on Retaliation and Related Issues. While the EEOC takes an expansive view of retaliation, this document can be a useful tool for employers in several ways. First, it provides lots of examples - examples of the types of employee conduct that is protected ("protected conduct") and examples of the types of employer conduct that is prohibited ("adverse action"). Second, it addresses all types of retaliation - retaliation based upon reports of harassment, third-party retaliation, and retaliation that is work based and nonwork based. Third, it sets forth practices that may help an employer avoid a retaliation charge.

On November 18, 2016, the EEOC also published the Enforcement Guidance on National Origin Discrimination. This guidance sets forth the EEOC's position on the scope of national origin discrimination and addresses employment decisions and harassment. It also provides commentary and examples on language and citizenship issues by delving into accent discrimination, fluency requirements and English-only rules. The guidance further sets forth "promising practices" for employers to consider.

We recommend that you review the new guidances so that you understand how the EEOC will analyze a retaliation or national origin charge. Remember, however, that they are not binding laws. The guidances may be given some weight by a court, but they are not controlling upon a court as a regulation, statute, or case would be. Moreover, in some cases where the EEOC disagrees with the courts, the guidances may set forth a position that is contrary to the current state of the law.

2. The EEOC has issued new enforcement priorities.

In October 2016, the EEOC announced the approval of its updated Strategic Enforcement Plan (SEP) for Fiscal Years 2017-2021. In the next five years, the EEOC will focus on:

  • Eliminating barriers in recruitment and hiring, particularly "class-based recruitment and hiring practices that discriminate against racial, ethnic, and religious groups, older workers, women, and people with disabilities." The EEOC is particularly concerned with "[t]he growth of the temporary workforce, the increasing use of data-driven selection devices, and the lack of diversity in certain industries and workplaces such as technology and policing."

  • Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination. The "EEOC will focus on job segregation, harassment, trafficking, pay, retaliation and other policies and practices against vulnerable workers, including immigrant and migrant workers, as well as persons perceived to be members of these groups, and against members of underserved communities."

  • Addressing selected emerging and developing issues, such as "qualification standards and inflexible leave policies that discriminate against individuals with disabilities; accommodating pregnancy-related limitations . . .; protecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex; clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the United States and abroad."

  • Ensuring equal pay protections for all workers, especially "compensation systems and practices that discriminate based on sex, race, ethnicity, age, and for individuals with disabilities, and other protected groups."

  • Preserving access to the legal system, especially "overly broad waivers, releases, and mandatory arbitration provisions . . . ; employers' failure to maintain and retain applicant and employee data and records required by EEOC regulations; and significant retaliatory practices that effectively dissuade others in the workplace from exercising their rights."

  • Preventing systemic harassment because "[h]arassment continues to be one of the most frequent complaints raised in the workplace."

3. The EEOC has revised the EEO-1 Report to collect pay data.

In September 2016, the EEOC announced that it would begin collecting employee pay data from certain employers in 2017 through a revised EEO-1 Report. The EEOC reports that "private employers including federal contractors and subcontractors with 100 or more employees" must begin reporting the following two new types of data:

  • Summary pay data: Employers report the total number of full and part-time employees they had during that year in each of 12 pay bands listed for each EEO-1 job category; employers do not report individual pay or salaries.

  • Aggregate hours worked data: Employers tally and report the number of hours worked that year by all the employees accounted for in each pay band.

While employers are not required to file the 2017 EEO-1 Report until March 31, 2018, preparations for reporting the data will likely need to be made during 2017.

For more information about these changes, click here.

4. The EEOC has issued a publication addressing mental health conditions in the workplace.

Finally, in December, the EEOC issued a publication entitled Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights. This new publication is intended to explain workplace rights for individuals with mental health conditions under the Americans With Disabilities Act. It addresses discrimination and harassment toward employees or applicants with mental health conditions as well as reasonable accommodations for such conditions.

The Commission explains that "charges of discrimination based on mental health conditions are on the rise," and that this new resource document "is part of an ongoing series of publications providing individuals with medical conditions or work restrictions with user-friendly explanations of their rights, and with information that they can give to a health care provider to explain how to provide appropriate medical documentation, if required."

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.