NILG Conference Highlights/Take Aways

Here are some take aways/highlights from the NILG Conference I think will be of interest – some of which will already be familiar but reinforces the direction that is being taken. Note, there were no current, pending regulations in play at this time, as was the case last year.   Therefore topics were more centered around implementation of the regulations and Analysis Strategies. Also, Compensation Analysis was also a major topic as well as Outreach for VETS/IWD’s.

Pay Equity Strategic Enforcement:

• President Obama,  by Executive Order in April, 2014, enacted legislation banning federal contractors from disciplining or otherwise discouraging employees and/or applicants from reviewing pay.  It is also noteworthy, that 11 States now have “Pay Secrecy” laws that prohibit retaliating and/or disciplining employees for discussing pay.
• Steering - an area that OFCCP appears to be delving into more and assessing both ways –  are certain groups upwardly or downwardly steered (i.e. are females steered into smaller sales territories, lower pay positions, given worse sales leads, etc.). Research was reviewed that showed that just because a correlation may exist between  certain jobs and pay – it doesn't mean that the pay is caused by the correlation. However, OFCCP begins to assess correlation and a presumption of discrimination will prevail absent business related justifications and/or documented applicant specified preferences. The emphasis here was that contractors should track applicants’ preferences (i.e. regarding shift’s, locations, position, etc .), which becomes crucial in defending potential steering charges.
• There are two primary Statutes under which to bring forth Pay Equity Discrimination charges. Title VII and the Equal Pay Act (EPA), which pre-dates Title VII.

• Title VII: provides the ability to bring forth lawsuits where employees are “similarly situated” - thus, they do not have to be in the same exact job. Also, the positions do not need to be at the same establishment or location.

• Equal Pay Act: This statute is more rigorous. Employees must conduct “substantially equal work” and must be in the same location.  However, there is a preference toward bringing charges under the EPA rather than Title VII and some of the reasons for this preference are as follows:

• The EPA statute provides for strict liability based on 4 criteria. Thus, proof of the intent to discriminate is not necessary.

• The limitation period was significantly expanded by the Lilly Ledbetter decision vs. Title VII, which requires the charge to be filed within 300 days of the discriminatory act. This is not necessary under the EPA.

• The damages that can be awarded are twice that of those that can be awarded under Title VII – and can extend to discrimination regarding “Employee Benefits, Vacation, Bonuses, etc.” not just pay.

• It is not necessary to file an EEOC complaint first as with Title VII, which does require for a complaint to first be filed with the EEOC.

• Standards for evaluating pay differed between EEOC and OFCCP and caused conflict amongst agencies.  OFCCP is looking to use the same standards as the EEOC.   Thus, the reason for rescinding  prior compensation self evaluation guidelines and referring to Title VII as the new standard.  Goal is to use the same standards as the EEOC:

• OFCCP is usually relying on statistical evidence but the 2 SD rule is not hard and fast – looking for patterns and practices – so does not necessarily have to meet the 2 SD result to be identified as an potential pay discrimination issue.
• Starting pay is an area of focus and where pay issues are often identified.  Also, emphasized that prior job pay is not being accepted as an airtight defense for starting pay differentials – perpetuates the disparity. It needs to be justified based on experience for the position, etc. 
• OFCCP  will run regression analysis and this is  done  at the National Office (with a total of 4 Statisticians only – indicated they are looking to hire more at the district level).  CO can run a few initial tests at district level and then decides whether or not it needs to be referred to National, which does all of the true statistical analysis of similarly situated groups and regression.
• FCCP is looking to see if there are legitimate proxy measures (factors) that should be considered (used in the regression analysis) and for the most part reviewing to assess if practices are consistently and “neutrally” applied. They are also getting away from using the terms “Minority/Non-Minority” and moving more toward “Neutrality” across all groups.
• OFCCP is looking to review comparable employees  based on the contractors Pay Data and information gathered during  an interview with the contractor regarding their compensation system.  OFCCP at times may seek to  create further  aggregations of employees for analysis if it seems reasonable based on the information gathered  during the contractor interview.  They stated that it is often time to eliminate employees from the group and not add any in order to  have the correct focus for pay  comparison purposes.
• Anecdotal evidence becomes very important when dealing with individuals and small groups because SD results not possible with smaller statistical groups.

• Suggestions:

• Define who is comparable -create the “Pay Analysis Groups” (PAG),  and they made it very clear that this does not equate to “Job Groups”  (interesting comment I thought), although OFCCP will run analysis by Job Groups so contractors should do so as well.
• When developing PAG’s consider similar work schedules, exemption codes, credentials, demands, qualifications requirements, etc.
• Assess for Neutrality across all groups
• Develop a very standard process for establishing Starting Pay that weights the factors considered by importance.  This will provide the documentation and constituency for defending those potential pay differences.

• Outreach/Recruitment VETS/DISABILITY:

• Made it very clear that ESDS Listing is required and not considered Outreach under the regulations. This is the minimum requirement and will not satisfy requirements for conducting good faith outreach/recruitment efforts.
• Recently Separated Vets do not have to be tracked separately.
• First Implementation Year AAP should include the following – although reporting and documentation not yet required:

• Statement of Expected Outreach (will implement)
• Discussion of Audit & Reporting System Plans (will implement)
• Statement of Hiring Benchmark being adapted (will implement)
• Statement of Utilization Goal being adapted (will implement)
• Suggested the use of automated “Trackers” (offered by THOMAS HOUSTON)

• There will be no IRA’s on the new data requested (vets/disability applicants, hires etc.)
• Not meeting Utilization Goal or Hiring Benchmark is not a violation at this time. These are considered “Aspiration Goals” different from Executive Order 11246 requirements.
• Articulate Goals to Management
• Harness Support of VETS on staff
• Not a Charity Initiative – should not be viewed as such – rather makes sense from business perspective
• Build your Brand as an Employers who truly values and embraces Individuals with Disabilities and Protected Veterans.
• Make sure you are engaging employees- it is not just a “once a year” thing – not just giving it “lip service”

• Audit Strategies -Confirmed that Adverse Impact/Hires and Compensation are leading areas in findings of Audit Violations

• Balance Data – Ensure Accuracy
• Cohort Analysis of Comp Data recommended regardless of  Statistical Analysis by PAG results.
• Discuss compensation with Compensation Manager prior to interview with OFCCP
• AI/Review by Stages of Employment process -  OFCCP not to keen on by requisition review – prefer hiring stage analysis.
• Review Availability stats vs. Apps representation – does the availability definition make sense to the applicant flow representation.

by Maribel Gregory, Project Manager, THOMAS HOUSTON

DOJ and EEOC Sign Memorandum Of Understanding to Further the Goals of Title VII of the Civil Rights Act of 1964 in Prohibiting Employment Discrimination in State and Local Governments

The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice's (DOJ) Civil Rights Division yesterday signed a new Memorandum of Understanding (MOU) to further the goals of Title VII of the Civil Rights Act of 1964 in prohibiting employment discrimination in the state and local government sector. The signing ceremony took place on Monday, March 2, at DOJ's headquarters in Washington, D.C., and included remarks from Assistant Attorney General Vanita Gupta of the Civil Rights Division and EEOC Chair Jenny Yang.

EEOC and DOJ share enforcement authority for public sector employers under Title VII. The EEOC receives, investigates and mediates charges of discrimination against public employers. Where the EEOC finds reasonable cause to believe an unlawful employment practice has occurred, the agency works with the employer to negotiate a mutually agreeable resolution to the charge. If conciliation of a charge fails, the EEOC refers the charge and its investigative file to DOJ, which has sole authority within the federal government to file a lawsuit against public employers under Title VII.

The MOU includes provisions for the coordination of the investigation of charges of discrimination on the basis of any characteristic protected by Title VII, while respecting the distinct responsibilities and enforcement priorities of each agency. Further, the MOU includes provisions for sharing information, as appropriate and to the extent allowable under law.
 
This MOU codifies a pilot project launched in 2009 by DOJ and EEOC. The pilot, which began with four of EEOC's district offices, has been expanded over the years and now includes the Chicago, Indianapolis, Los Angeles, New York, Philadelphia and San Francisco District Offices, as well as the Washington, D.C. Field Office, among others. Over the years, the pilot has served to enhance the effectiveness of the nation's equal employment opportunity enforcement program in the public sector, ensuring the efficient use of resources and a consistent enforcement strategy.

"The MOU brings to life our vision to approach our shared Title VII enforcement responsibilities as a partnership," said Acting Assistant Attorney General Gupta. "It institutionalizes that partnership and provides a concrete framework for expanding our collaborations and increasing our effectiveness in protecting the employment rights of public sector workers."

"Our state and local governments provide essential services that affect all of us every day in every part of our lives," said EEOC Chair Yang. "One of the greatest tools that our public institutions have for inspiring trust and credibility in our communities is to ensure that all public employees enjoy equal opportunity at work. That is the significance of the MOU we sign today."

There have been several successful examples of the existing partnership between EEOC and DOJ, including the settlement of Murphy-Taylor v. State of Maryland, et al., a sexual harassment and retaliation lawsuit involving the Queen Anne's County Sheriff, in which the United States intervened; the settlement with the Board of Education, Berkeley School District 87, Cook County, Illinois, over religious accommodation discrimination; and a settlement with Clark County, Nevada, for wage discrimination and retaliation against an African-American female manager resulting in $179,000 in monetary relief.

The MOU is just one example of the enforcement partnership between the EEOC and DOJ. The agencies collaborate on several interagency taskforces and working groups, including the Federal Interagency Reentry Council, the National Equal Pay Enforcement Taskforce, the Curb Cuts to the Middle Class Initiative, the Task Force to Monitor and Combat Human Trafficking, the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws, and most recently an interagency working group on police force diversity.

The MOU and information about Title VII and other federal employment laws is available on the Employment Litigation Section of the Civil Rights Division's website or the U.S. Equal Employment Opportunity Commission's website.

Source: Department of Justice and Equal Employment Opportunity Commission

This information is intended to be educational and should not be considered legal advice on any specific matter.

Day & Zimmerman Resolve EEOC Racial Discrimination Claims for $190,000

The Equal Employment Opportunity Commission (EEOC) and Day & Zimmerman NPS, a leading supplier of maintenance, labor, and construction services to the power industry, yesterday filed a consent decree resolving EEOC's claims that Day & Zimmerman violated federal law by creating a hostile work environment for an African-American laborer. In the lawsuit, EEOC alleged that Day & Zimmerman, through its foreman at the Poletti Power Plant in Astoria, Queens, N.Y., had subjected Carlos Hughes to physical and verbal racial harassment.

According to the EEOC, Day & Zimmerman's foreman subjected Hughes to daily harassment for almost a year and a half. The harassment included racial insults and derogatory stories referring to African Americans as stupid and incompetent, as well as frequently tripping Hughes, and once kicking him in the buttocks. The foreman also told racist jokes in the workplace, and made negative comments about African Americans; including that Sean Bell (shot by the police at a nightclub) deserved to be shot, and threatened that candidate Barack Obama would be shot before the country allowed a black president.
 
EEOC alleged that Hughes complained to management many times for more than a year regarding the harassment, and that when Day & Zimmerman finally arranged a meeting in response, it disciplined Hughes less than an hour later, and then fired him that same day, citing a false safety violation as a reason.
 
This alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, including racial harassment, and protects employees who complain about such offenses from retaliation.

"Race harassment has absolutely no place in any workplace. Derogatory and hateful language poisons the work environment and creates a serious emotional toll on affected employees," said Elizabeth Grossman, regional attorney in the EEOC's New York District Office.

Kevin Berry, director of the EEOC's New York District Office, said, "EEOC is particularly concerned when repeated complaints of race harassment are met not with a solution but with retaliation. We will pursue retaliation claims against those employers who punish employees who come forward to complain of harassment or discrimination."
 
Day & Zimmerman is one of the largest providers of plant maintenance, modification and construction services to the fossil and nuclear power generating industries throughout the United States. Last year it boasted annual revenues of $2.1 billion and a global workforce of over 24,000 across 150 worldwide locations. As part of the consent decree, Day & Zimmerman agreed to additional training of its managers at the Poletti Power Plant and to encourage use of its telephone hotline number by employees who believe they have been subjected to discrimination or harassment.

Eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP).

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

Owner of Detroit-Area Comfort Inn & Suites to Pay $27,500 to Settle EEOC Pregnancy Bias Suit

Ramin Inc., the owner of a Comfort Inn & Suites in Taylor, Mich., will pay $27,500 to settle a pregnancy discrimination lawsuit (EEOC v. Ramin, Inc., 2012-cv-15015) filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC's suit, Ramin fired a housekeeper after she reported her pregnancy to them. Management stated it could not allow the employee to continue to work as a housekeeper because of the potential harm to the development of her baby, the EEOC said.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), protects female employees against discrimination based on pregnancy. Under the statute, an employer may not exclude pregnant women from employment based on the employer's supposed concerns about the safety of the mother or unborn fetus. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

In a consent decree filed with the U.S. District Court for the Eastern District of Michigan, the company agreed to pay $2,500 in back pay and $25,000 in compensatory and punitive damages. In addition, Ramin agreed to a permanent injunction enjoining it from discriminating against an employee due to her pregnancy or requiring a pregnant employee to provide medical documents that releases her to work. The decree requires that Ramin provide training to all of its managerial and non-managerial employees on sex and pregnancy discrimination; draft a new employee policy regarding sex and pregnancy discrimination; post a notice regarding the suit for all employees; and report to the EEOC for four years. The injunction, training, policy revisions, and EEOC monitoring constitute targeted, equitable relief that aims to prevent similar violations in the future.
 
As detailed in its Strategic Enforcement Plan for Fiscal Years 2012-2016, the EEOC has made obtaining targeted, equitable relief one of its top priorities.

"This is a favorable resolution for everyone," explained EEOC Trial Attorney Lauren Gibbs Burstein. "We appreciate that Ramin worked with us to resolve this case before we had to engage in lengthy discovery and litigation proceedings."

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

EEOC Sues QSI / Stellar Management Group for Sex Discrimination

Stellar Management Group, Inc., doing business as QSI, a contract sanitations services company that provides sanitation services to meat processing facilities in middle Georgia, violated federal law when it fired a female supervisor because of her sex, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

According to the EEOC's suit, Civil Action No., 5:13-tc-05000, filed in U.S. District Court for the Middle District of Georgia, the employee was promoted by QSI in or around December 2010 to a sanitation supervisor position. The employee was QSI's only female supervisor and her cleaning team was assigned to work at the Perdue chicken plant in Perry, Ga. According to the EEOC, QSI's area manager stated that he wanted to terminate the employee because, he said, women did not belong in supervisory positions. In late October 2011, the employee missed three days of work due to a personal legal matter. The EEOC said that her time off work was initially approved by company management. However, on Nov. 3, 2011, QSI fired her for allegedly failing to inform the company of her whereabouts during her absence. The EEOC also said that immediately after the female employee was fired, QSI placed a male supervisor in her position.

Employment discrimination based on sex is prohibited by Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement. As part of the suit, the EEOC is seeking back pay and compensatory and punitive damages, as well as injunctive relief prohibiting the company from engaging in any further employment practices that discriminate on the basis of gender.

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

Federal Court Grants Injunction Against A.C. Widenhouse in EEOC Race Harassment Cast

Following on the heels of a legal victory for the U.S. Equal Employment Opportunity Commission (EEOC), a North Carolina federal court has awarded more than $243,000 and injunctive relief against A.C. Widenhouse, Inc., a Concord, N.C.-based trucking company, in a race harassment and retaliation case, the agency announced today.

According to the EEOC's lawsuit, Contonius Gill and Robert Floyd, Jr., African-Americans, worked as truck drivers for A.C. Widenhouse. From as early as May 2007 through at least June 2008, Gill was repeatedly subjected to unwelcome derogatory racial comments and slurs by the facility's general manager, (who was also his supervisor), the company's dispatcher, several mechanics and other truck drivers, all of whom are white. The comments and slurs included the "N" word, "monkey" and "boy." Gill testified that on one occasion he was approached by a co-worker with a noose and was told, "This is for you. Do you want to hang from the family tree?" Gill further testified that he was asked by white employees if he wanted to be the "coon" in their "coon hunt."

Floyd testified that he also was subjected to repeated derogatory racial comments and slurs by the company's general manager and white employees. Floyd testified that when was hired in 2005, he was the only African-American working at the company. According to Floyd, the company's general manager told Floyd that he was the company's "token black." Floyd testified that on another occasion the general manager told Floyd, "Don't find a noose with your name on it" and talked about having some of his "friends" visit Floyd in the middle of the night. Gill repeatedly complained about racial harassment to the company's dispatcher and general manager and Floyd complained to an owner of A.C. Widenhouse, but both men testified that the harassment continued.

Gill intervened in the lawsuit and in addition to the EEOC's claim of racial harassment, Gill alleged that his employment with A.C. Widenhouse was terminated based on his race and in retaliation for complaining about racial harassment. The jury also returned a verdict in favor of Gill on both of his discriminatory discharge claims.

Race discrimination, including racial harassment, and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit (Equal Employment Opportunity Commission v. A.C. Widenhouse, Inc., 1:11-cv-00498) in U.S. District Court for the Middle District of North Carolina after first attempting to reach voluntary settlement.

On Jan. 28, a Winston-Salem jury of eight returned a unanimous verdict finding that Gill and Floyd, Jr. had been harassed because of their race, and that Gill had been fired because of his race and in retaliation for complaining about racial harassment.

In a judgment and injunction entered by the court on Feb. 22, the court ruled that the EEOC should recover $50,000 in compensatory and punitive damages on behalf of Floyd, and that Gill should recover $193,509 in compensatory and punitive damages, back pay, and pre-judgment interest. The court further enjoined A.C. Widenhouse from discriminating against any person on the basis of race or in retaliation for opposing practices unlawful under Title VII of the Civil Rights Act of 1964. The three-year injunction also requires A.C. Widenhouse to implement a written anti-discrimination policy; conduct training on Title VII to all employees and to all owners involved in the company's operations; post the anti-discrimination policy and a notice to employees regarding the lawsuit; and provide the EEOC with periodic reports regarding complaints about racial harassment.

"We are glad that the court saw fit to enter an injunction in this case," said Lynette A. Barnes, regional attorney for the EEOC's Charlotte District Office. "Among other things, the injunction mandates training for Widenhouse employees and owners involved in the company's operations. Education is the first step toward preventing racial harassment."

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

EEOC Commissioner, Lawyers Discuss Rights of LGBT Employees

Protections for lesbian, gay, bisexual, and transgender workers continue to emerge, but still more can be done to stop discrimination, an Equal Employment Opportunity commissioner and others said Feb. 13 during an employment law webinar sponsored by the American Bar Association.

Meanwhile, in a letter sent to the White House Feb. 14, 37 U.S. senators urged President Obama to issue an executive order banning federal contractors from discriminating against workers on the basis of sexual orientation and gender identity.

During the early years of Title VII of the 1964 Civil Rights Act, the courts “created the myth that there was little legislative history behind the inclusion of sex” as a protected trait under the statute, EEOC Commissioner Chai Feldblum said during Trends in Employment Discrimination Against LGBT Individuals. But after that, protections for LGBT employees began to be recognized, she said.

To read the complete article, click here

Source: BNA.com

This information is intended to be educational and should not be considered legal advice on any specific matter.