That Was Then. This Is Now.

The Labor Department announced a plan on January 28, 2015 to modernize outdated guidelines on sex discrimination. The proposal addresses a myriad of issues from sexual harassment, pay discrimination and pregnancy accommodations to safeguards for transgender workers and combating hostile work environments. Donna Lenhoff, a civil rights specialist at the Department of Labor, discusses the need for these new rules.

In 1970, less than 0ne-third of married women with children under the age of six participated in the labor force. Today, that figure has more than doubled.

In 1970, some states had “protective laws” that explicitly barred women from certain jobs or, for example, prohibited women from continuing to work once they became pregnant. Employers would advertise jobs in sex-segregated newspaper columns – women’s work separate from men’s work. And it was not uncommon for employers to make their female employees retire at earlier ages than their male counterparts.

In 1970, the Supreme Court had not yet recognized that sex stereotyping and sexually hostile work environments could constitute unlawful sex discrimination. Congress had not yet enacted the Pregnancy Discrimination Act, requiring employers to treat pregnancy the same as other conditions that similarly affect a person’s ability to work.

And in 1970, the Department of Labor’s Office of Federal Contract Compliance Programs adopted its Sex Discrimination Guidelines under Executive Order 11246, which prohibits sex discrimination in employment by federal contractors and subcontractors.

Those guidelines have not been substantially updated since 1970.

Click to view the full-size timeline of laws about sex discrimination in the workplace.

 

OFCCP’s guidelines were designed to address laws and employment practices as they existed 45 years ago. They read almost like a history textbook, a relic of our past. They certainly do not address the changes to the law that have occurred since they were written, nor the barriers to equal opportunity and fair pay that women continue to face in the workplace today.

Today, women who work full-time earn only 78 cents on the dollar compared to men. Sex segregation remains widespread; women are underrepresented in higher-level and more senior jobs. Women still report that they have been discriminated against because of pregnancy. Assumptions that family caregiving responsibilities will interfere with work performance still limit opportunities. Sexual harassment remains pervasive, especially in jobs that are not considered traditional for women.

Progress has been happening on all these fronts – in courtrooms and city halls and state legislative chambers across the country. In the past year alone, Illinois, Delaware, Maryland, Minnesota, New Jersey and West Virginia have enacted legislation requiring employers to provide accommodations, such as stools to sit on or light-duty assignments, to pregnant workers.

Now, it’s time – past time, really – for us to do our part. We announced a proposal to finally revise OFCCP’s Sex Discrimination Guidelines so that they reflect changes in the law and in the workplace that have taken place since 1970. Our Notice of Proposed Rulemaking will be published in the Federal Register this Friday, and we invite you to share your feedback on it by going to www.dol.gov/ofccp/SDNPRM. The comment period closes on March 31.

Our revisions of these guidelines are about good government. They’re about ensuring that both women and men are treated fairly in the workplace. And they will provide employers with much needed clarity in understanding their obligations under the law.

Source: DOL Donna Lenhoff is the senior civil rights advisor in the department’s Office of Federal Contract Compliance Programs.

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



Edgewater Japanese Market to Pay $250,000 to Hispanic Employees Paid less Due to National Origin

Mitsuwa Marketplace Violated Law by Paying Hispanic Workers Less Than Others for Identical Jobs, Federal Agency Charged

Mitsuwa Corporation, which does business as Mitsuwa Marketplace, a large Japanese market in Edgewater, N.J., will pay $250,000 to settle a national origin discrimination lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC's suit, since 2005, Mitsuwa has routinely paid Hispanic employees less than non-Hispanics doing the same work because of their national origin. The case stemmed from a discrimination charge from an individual employee who complained of being underpaid because he was Hispanic. An investigation by the EEOC revealed that a class of Hispanic employees was discriminated against in this way over several years.

Discrimination in compensation based on employees' national origin violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the District of New Jersey in Newark (Civil Action No. 09-CV-04733 [ES][CLW]) after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, signed by federal Judge Esther Salas, Mitsuwa will also give pay increases to current Hispanic employees amounting to a combined total of approximately $30,000 per year for three years.

Mitsuwa is enjoined from discriminating against Hispanic employees. The consent decree provides for a monitor who will periodically review Mitsuwa's compensation practices and discrimination complaints, and will report to EEOC. Mitsuwa has also revised its anti-discrimination policies and will train its managers and employees on Title VII, including the prohibition against compensation discrimination based on national origin.

"Employers everywhere should know that Title VII insures that they cannot pay employees less based on their national origin, just as they cannot discriminate in compensation based on sex or race," said EEOC District Director Kevin Berry.

"The EEOC stands ready to assist employees who are being undercompensated compared to similarly situated co-workers simply because of their national origin," added New York Regional Attorney Elizabeth Grossman.

Eliminating discriminatory policies affecting vulnerable workers who may be unaware of their rights under equal employment laws, or who may be reluctant or unable to exercise their rights, is a national priority identified in EEOC's Strategic Enforcement Plan. These policies can include disparate pay.

Source: EEOC

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

EEOC Reports Nearly 100,000 Job Bias Charges in Fiscal Year 2012

The U.S. Equal Employment Opportunity Commission (EEOC) today announced that it received 99,412 private sector workplace discrimination charges during fiscal year 2012, down slightly from the previous year. The year-end data also show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges. The fiscal year runs Oct. 1 to Sept. 30. The fiscal year 2012 enforcement and litigation statistics, which include trend data, are available on the EEOC's website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

Additionally, the EEOC achieved a second consecutive year of a significant reduction in the charge inventory, something not seen since fiscal year 2002. Due to a concerted effort, the EEOC reduced the pending inventory of private sector charges by 10 percent from fiscal year 2011, bringing the inventory level to 70,312. This inventory reduction is the second consecutive decrease of almost ten percent in charge inventory. Also this fiscal year, the agency obtained the largest amount of monetary recovery from private sector and state and local government employers through its administrative process - $365.4 million.

In fiscal year 2012, the EEOC filed 122 lawsuits including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits. The EEOC's legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million.

EEOC also continued its emphasis on eliminating systemic patterns of discrimination in the workplace. In fiscal year 2012, EEOC completed 240 systemic investigations which in part resulted in 46 settlements or conciliation agreements. These settlements, achieved without litigation, secured 36.2 million dollars for the victims of unlawful discrimination.

To read the full article, click here.

Source: EEOC

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

Transportation Company Allowed Environment of Racial Abuse

Emmert International agreed to settle an employment discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) that charged the company harassed and retaliated against employees in violation of federal law, the EEOC announced on 1/7/13.

The EEOC's lawsuit, Equal Employment Opportunity Commission v. Emmert Industrial Corp., d/b/a Emmert International, No. 2:11-CV-00920CW, charged Emmert International with harassing Jonathan Redmon and John Brainich during Emmert's work on the Odd Fellows Hall project in Salt Lake City. The lawsuit alleged that the foreman and other Emmert employees repeatedly harassed Redmon and Brainich. Emmert's foreman and employees regularly used the "n-word," called Redmon "boy," called Brainich a "n---- lover," and made racial jokes and comments. The EEOC also alleged that Emmert International retaliated against Redmon for complaining about the harassment.

To read more, click here.

Source: EEOC

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

It's time for employers to review their workplace investigation policies and procedures

Source:  Lexology article by Scott T. Silverman of Akerman Senterfitt

You are investigating a claim of workplace discrimination in which an employee has alleged that her supervisor gave a promotion to an under-qualified male employee. You interview the supervisor, complainant, promoted employee and a witness familiar with the relative merits of the candidates. Pursuant to best human resource practices, you instruct all of these individuals to keep the allegation and investigation confidential. You may be shocked to know that you may have just violated the law!

In recent months, the National Labor Relations Board ("Board") has held that standard employer social media policies, "at-will" employment disclaimers and arbitration provisions may all violate the law, even where the employer is non-union. The Board has even launched a webpage advising employees of their rights under federal statutes.

In keeping with this current and disturbing trend, the Board has now held that the common directive to employees to not discuss matters under investigation with co-workers may be unlawful. In Banner Health System d/b/a Banner Estrella Medical Center and James Navarro, Case No. 28-CA-023438 (2012), the Board held that it was impermissible to maintain a "blanket" policy forbidding employees from discussing a matter under investigation with co-workers.

In Banner, an employee refused to follow his supervisor’s instructions, on the basis of health and safety concerns, and thereafter received a "coaching" for insubordination. In connection with the "coaching," the employee complained, and the employer's human relations consultant used a standard "Interview of Complainant Form" to request the employee to not discuss the matter with co-workers while the investigation was ongoing.

The Board held that a "blanket" rule of providing confidentiality directives in connection with internal complaint interviews violates employees’ federal rights. Rather, a prohibition on employee discussion must be supported by a legitimate business justification.

An employer’s "generalized concern with protecting the integrity of its investigation" is too broad, said the Board. Rather, an employer may prohibit employee discussion only if it has a specific need for confidentiality tied to the individual investigation. This must be determined at the beginning of the investigation on a case-by-case basis, which might include, but is not limited to: witness protection; evidence is in danger of being destroyed; testimony is in danger of being fabricated; or a cover-up needs to be prevented.

Employers should recognize the potential conflict of the Board's ruling with the EEOC's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors. The Enforcement Guidance states that an employer's anti-harassment policy should contain "assurance that the employer will protect the confidentiality of harassment complaints to the extent possible . . information about the allegation of harassment should be shared only with those who need to know about it."

If an employer's policy must contain a broad assurance of confidentiality, that would arguably require the employer to tell the alleged harasser and witnesses to maintain secrecy. However, any such directive may conflict with the Board's standard. Further, if information about the allegation of harassment must only be shared with those who need to know about it, this would also arguably require an employer to prohibit sharing of information with co-employees. Again, such a directive may violate the Board's requirement that an employer have a specific legitimate business justification for confidentiality.

Overall, there is clear tension between the NLRB rule of limited confidentiality and the EEOC guidance of maximum possible secrecy. Accordingly, all employers must carefully review their investigation procedures. According to the Board, employers may no longer have a broad rule of confidentiality in all workplace investigations. Further, any confidentiality directives may only be instituted where justified by a legitimate business concern on a specific, individual basis. Of course, the Board law could change as early as next year depending on the results of the presidential election in November. But until then, the Board has now stated the current law, and employers must be aware of it and be prepared to respond in the event an unfair labor practice charge is filed.

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

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