Wednesday, January 11, 2017

EEOC Seeks Public Input on Proposed Enforcement Guidance on Harassment

PRESS RELEASE JANUARY 10, 2017

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) announced that it has voted to release for public input a proposed enforcement guidance addressing unlawful harassment under the federal employment discrimination laws. The proposed Enforcement Guidance on Unlawful Harassment is available for input until Feb. 9, 2017 at https://www.regulations.gov/docket?D=EEOC-2016-0009.

This proposed guidance, which is the product of extensive research, analysis, and deliberation, explains the legal standards applicable to harassment claims under federal employment discrimination laws. The laws enforced by EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information.

Between fiscal years 2012 and 2015, the percentage of private sector charges that included an allegation of harassment increased from slightly more than one-quarter of all charges annually to over 30% of all charges. In fiscal year 2015, EEOC received 27,893 private sector charges that included an allegation of harassment, accounting for more than 31% of charges filed that year. In the same year, federal employees filed 6,741 complaints alleging harassment – approximately 44% of complaints filed by federal employees that year.

“Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces,” said Chair Jenny R. Yang. “The Commission looks forward to hearing public input on the proposed enforcement guidance.”

Preventing systemic harassment has been one of EEOC’s national enforcement priorities since 2013. The Commission reaffirmed this priority in its Strategic Enforcement Plan for 2017-2021.  At a public meeting in January 2015, the Commission established a Select Task Force on the Study of Harassment in the Workplace to analyze workplace harassment and identify innovative and creative prevention strategies. Chaired by Commissioners Chai R. Feldblum and Victoria A. Lipnic and comprised of academic experts, legal practitioners from the plaintiff and defense sides, employers, employee advocacy groups, and organized labor, the Select Task Force met 10 times between April 2015 and June 2016 to hear and consider testimony and public comments. At a June 2016 public meeting, Commissioners Feldblum and Lipnic presented their Report of the Co-Chairs of the Select Task Force on Harassment in the Workplace  (“Harassment Prevention Report”) with findings and recommendations about harassment prevention strategies.

“I am pleased that we are able to follow up on the recommendations in our Harassment Prevention Report with this release of the draft enforcement guidance on unlawful harassment,” said Feldblum.  “This guidance clearly sets forth the Commission’s positions on harassment law, provides helpful explanatory examples, and provides promising practices based on the recommendations in the report.  I believe it will be a helpful resource for employers and employees alike, and I look forward to receiving comments from the public.”

“As we learned from the Harassment Prevention Report this past year, 30 years after the U.S. Supreme Court laid down the law in this area, harassment charges and cases remain a far too dominant part of the work of the Commission,” said Lipnic. “I am pleased the Commission is offering an updated version of its positions on the important legal issues on this topic and look forward to the public input.”

The public is invited to submit input about the proposed Enforcement Guidance on Unlawful Harassment via www.regulations.gov. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  Please provide input in narrative form and do not submit redlined versions of the guidance document. Input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number. The deadline for submission of public input is February 9, 2017.

After reviewing the public input, the Commission will consider appropriate revisions to the proposed guidance before finalizing it.

EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.  Stay connected with the latest EEOC news by subscribing to our email updates.

Friday, January 6, 2017

2016 Ends with a Complaint of Access to Compensation Data Against Internet Giant


On December 29, 2016 M. Patricia Smith (Solicitor of Labor) and Janet M. Herold (San Francisco Regional Solicitor) filed with the Office of Administrative Law Judges (OALJ) a complaint of denial of access to records against Google, Inc. Mountain View, CA (a wholly-owned subsidiary of Alphabet, Inc.).  The Solicitor asserts the records requested are required as part of the Department of Labor’s compliance evaluation initiated in 2015, and Google’s refusal to provide is in violation of Executive Order 11246, Section 503 of the Rehabilitation Act, the Vietnam Era Veterans’ Readjustment Assistance Act, and regulations promulgated thereunder. Google, Inc. is a Federal contractor meeting the size and dollar thresholds for compliance. This is not in dispute. 

The DOL/OFCCP asserts that the selection of Google, Inc. for a compliance evaluation was made utilizing its neutral selection system.  On or about September 30, 2015 a Scheduling Letter was sent to Google, Inc. Mountain View, CA. The complaint asserts that after the original submission of the Affirmative Action Program (AAP) and compensation data, additional data requests were made of Google, Inc.  Specifically, the DOL/OFCCP requested:

  • A compensation snapshot (similar to the AAP submission of September 1, 2015) but a year prior (September 1, 2014);
  • Job and salary history for employees in the September 1, 2015 snapshot and the September 1, 2014 snapshot date requested above, including:
    • Starting salary
    • Starting position
    • Starting “compa-ratio”
    • Starting job code
    • Starting job family
    • Starting job level
    • Starting organization
    • Changes to the foregoing
  • The names and contact information for employees in the previously-produced AAP snapshot and the requested September 1, 2014 snapshot. 
     
    On June 17, 2016 Google communicated its refusal to produce the items. On or about September 16, 2016 a Show Cause Notice was initiated against Google, Inc.   After sustained non-compliance, the Department of Labor filed for an expedited hearing on the matter, asserting “Google’s conduct breaches the contractual obligations it accepted in exchange for obtaining business from the federal government.”  The Solicitor is requesting the OALJ permanently enjoin Google (and its successors, officers, agents, employees, etc.) and direct Google to provide the OFCCP with all of the items requested. Absent compliance, the Solicitor is seeking debarment, contract cancellation, and any other relief available.

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Wednesday, January 4, 2017

EEOC ISSUES REGULATIONS ON FEDERAL GOVERNMENT’S OBLIGATION TO ENGAGE IN AFFIRMATIVE ACTION FOR PEOPLE WITH DISABILITIES

New Rule Implementing Section 501 of the Rehabilitation Act Sets Employment Goals for Federal Agencies

 

WASHINGTON (1/3/17) – The U.S. Equal Employment Opportunity Commission (EEOC) today published regulations explaining what federal agencies must do to comply with their legal obligation to engage in affirmative action in employment and otherwise serve as  “model employers” for individuals with disabilities. The regulations do not impose any obligations on private businesses or state and local governments.  EEOC has also published a question-and-answer document on the regulations.
 
Section 501 of the Rehabilitation Act requires federal agencies to create affirmative action plans for the employment of people with disabilities, and to submit those plans to EEOC for approval. On May 15, 2014, EEOC published an Advance Notice of Proposed Rulemaking (ANPRM) asking for public input on how the EEOC should revise its regulations to clarify what an affirmative action plan must include. On Feb. 24, 2016, the Commission proposed regulations based on the input received, and sought further public comment on their proposals in a Notice of Proposed Rulemaking. 

Today, the final regulations reaffirm the federal government’s commitment to being a model employer of people with disabilities. The rule consolidates existing requirements from a variety of sources, such as the existing requirements that federal agencies have written reasonable accommodation procedures and seek out qualified job applicants with disabilities. The regulations also include new representation goals for employees with disabilities in the federal workforce and enhanced support requirements that will enable more persons with disabilities to seek federal employment.

The regulations set goals for federal agency workforces of 12 percent representation for individuals with disabilities and 2 percent for individuals with “targeted” disabilities. Targeted disabilities are defined as  disabilities that the government has, for several decades, emphasized in hiring because they pose the greatest barriers to employment, such as blindness, deafness, paralysis, convulsive disorders, and mental illnesses, among others.The goals apply at both higher and lower levels of federal employment.

The regulations also require federal agencies to provide personal assistance services to employees who need them to perform basic human activities at work, such as eating and using the restroom. These services will allow individuals with significant disabilities to enjoy the opportunity and independence of paid employment, which may reduce the amount of taxpayer funds spent on public disability benefits.

"Increasing employment rates for individuals with disabilities is a national priority for the federal government,” said EEOC Chair Jenny Yang. ”These new regulations provide concrete steps and accountability mechanisms to promote employment and advancement opportunities for people with disabilities across the government. The federal government is committed to leading by example and creating a workplace where people with disabilities can thrive."

Commissioner Chai R. Feldblum, who led an internal work group that developed the regulations, added, “Too many people with disabilities who have the skills and the desire to work remain unemployed or underemployed. These regulations create new opportunities for people with disabilities to achieve the satisfaction and economic self-sufficiency that comes with employment, particularly by setting employment goals for people with targeted disabilities and providing personal assistance services to those who need them in the workplace.”

To give agencies sufficient time to come into compliance, the rule will become effective on Jan. 3, 2018. EEOC also will provide agencies with training and technical assistance to support their compliance efforts.

EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.