Posts Tagged ‘EEOC’
The EEOC conducted a public meeting yesterday on national origin employment discrimination. Noting the diversity in the US workplace (including language diversity), and the increase of immigrants in the workforce, the panelists discussed “various recruitment and hiring issues; discriminatory treatment in assignments; pay discrimination; language and accent issues; effective communication and access issues; harassment; and retaliation.” Panelists included attorneys for Mexican American and Asian American advocacy groups and attorneys for employee and employer groups.
We have noted many times that the EEOC is already targeting with lawsuits employers who discriminate and allow harassment of “vulnerable workers,” such as migrant farm workers, and this was underscored yesterday.
EEOC Commissioner Jenny R. Yang said that “National origin discrimination — whether it takes the form of harassment against farm workers, segregation of Vietnamese workers in lower-paying factory jobs, or not hiring a qualified applicant from Iran because she didn’t conform to a retailer’s preferred image — should be tackled through coordinated enforcement, outreach, and training efforts.”
An EEOC press release commented that the testimony of the Deputy Director of The National Employment Law Project (NELP) described national origin discrimination as “different from other forms of discrimination because it involves not only a person’s place of birth or origin of ancestors, but also cultural or linguistic characteristics.” Moreover, retaliation against such employees may include the “devastating” use of the “deportation card” – “when individuals are threatened with deportation or examination of their immigration status as a threat to keep them from complaining about discrimination.”
One panelist on behalf of Mexican-Americans described a common complaint of bilingualism creating workplace segregation. The subject of English-only policies led to a request that the EEOC create clear guidelines, and a management attorney complained that “my clients have a hard time understanding why people who are capable of speaking English, who are bilingual, should have the right to do so, to speak their own language in the worklace.”
The EEOC release said that an Ogletree management attorney described “The multi-cultural workplace [which] presents challenges for employers. … Cultural norms in an employee’s background may make it difficult for a man to accept supervision from a woman for example. [He] cited the need for extensive education about both rights and responsibilities under the law. He suggested that the EEOC develop training modules in a variety of languages as well as a model anti-harassment policy, and make them available on its website for employers to download.”
Employers beware: we predict a slew of new suits in this area.
See the panelists’ statements, biographies and a transcript of the meeting at: www.eeoc.gov/eeoc/meetings/index.cfm.
Expert Article by Jaime A. Maurer
An area of employment law that has been gaining increased attention from the Equal Employment Opportunity Commission (“EEOC”) in recent times are lesbian, gay, bisexual and transgender (“LGBT”) issues. In particular, the EEOC has recently adopted certain shifts in policies to find sexual orientation and gender identity coverage under Title VII. The rationale for finding such coverage is twofold: (i) the conduct at issue is discriminatory because of sex and (ii) the conduct is discriminatory because the employer uses gender stereotypes. Interestingly, the EEOC is not only reviewing LGBT Charges of Discrimination, but is actively soliciting the filing of such Charges.
Most recently, in Mia Macy v. Eric Holder (Appeal No. 0120120821, April 20, 2012), Macy, a male veteran police detective with an extensive law enforcement background, applied for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Macy was informed that he would be hired pending a background check. During the background check process, Macy informed ATF that he was in the process of transitioning from male to female. A few days later, Macy was notified that the position was no longer available due to budget reductions, when, in fact, another person had been hired for that position.
Macy filed a complaint with the EEOC against ATF alleging discrimination on the basis of “gender identity” and “sex stereotyping.” The EEOC found that employment discrimination against transgender individuals is a form of sex discrimination under Title VII and, in doing so, the EEOC clarified that “claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII’s sex discrimination prohibition . . . .”
Although not binding on courts, this decision and larger approach by the EEOC will be given great deference when courts assess the scope and breadth of discrimination claims based upon sex under Title VII. As such, employers should be mindful of this new development, stay abreast of local laws, maintain an open dialogue with employees on these issues, and provide information and training when appropriate to ensure that staff understand the implications of their actions with regard to members of the LGBT community.
Expert Article by Emily Ciecka Wilcheck
The United States District Court for the Western District of New York inEEOC v. Sterling Jewelers Inc., W.D.N.Y., No. 1:11-mc-00028, 2011 WL 5282622, recently enforced a subpoena issued by the Equal Employment Opportunity Commission (EEOC) to Sterling Jewelers Inc. (doing business as Jared the Galleria of Jewelry) requesting information on the company’s policies barring employees from discussing their pay, as well as information on employees disciplined under such policies.
Diane Thielker, a former employee of Sterling, filed a charge of discrimination with the EEOC alleging that she was discriminated against in pay and promotions because of her age and gender. The EEOC sued Sterling on behalf of Ms. Thielker, alleging that Sterling engaged in unfair employment practices nationwide by maintaining a system for making promotions and compensation decisions that is excessively subjective and has a disparate impact on female sales employees.
As part of the investigation into her charge, Ms. Thielker provided the EEOC with a copy of a counseling report issued to her by Sterling. This counseling report stated in part as follows:
Any discussion regarding payroll need only to be made between said employee and mgr. Having inappropriate discussions only contribute to and fosters ill will amongst team members as well as being a direct violation of Sterlings [sic] code of conduct.
The report also included Ms. Thielker’s comments that she believed that she was being discriminated against based upon her gender due to the fact that the company paid male employees more than it paid female employees.
A few months after receiving a copy of the report, the EEOC served a subpoena upon Sterling requesting information on (1) the code of conduct referred to in the counseling report and any other policies prohibiting employees from discussing pay; (2) all disciplinary notices, reports, or warnings reflecting enforcement of Sterling’s policy prohibiting discussions of pay; and (3) information related to the individuals disciplined under such policy.
In upholding the EEOC’s right to enforcement of the subpoena, the court held that the nationwide scope of the information requested was relevant to the EEOC’s pattern or practice claims against Sterling, and legitimately arose from statements on the counseling report indicating that Sterling had a company-wide policy prohibiting discussions about pay. Significantly, the court further concluded that, even without the counseling report referencing such a policy, information regarding Sterling’s nationwide policies prohibiting discussions of pay is relevant to Thielker’s individual charge.