Tag Archives: EEOC

January 2025
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Employment Law

A New Year And A New EEOC

On January 21st President Trump named Commissioner Andrea R. Lucas Acting Chair of the EEOC. And Ms. Lucas made it very clear that she will align the EEOC with President Trump’s platform.

“I am honored to be chosen by President Trump to lead the EEOC, our nation’s premier civil rights agency enforcing federal employment antidiscrimination laws,” Lucas said. “I look forward to restoring evenhanded enforcement of employment civil rights laws for all Americans. In recent years, this agency has remained silent in the face of multiple forms of widespread, overt discrimination. Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single‑sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.”

That statement signifies a definite shift from the EEOC’s strategic initiatives over the last four years. And it offers several takeaways for employers.

Are DEI policies now illegal? Not necessarily, depending on the terms. But you can bet these policies will get intense scrutiny from the EEOC. Do not be surprised if EEOC Requests For Information now include a standard request for any DEI policy. Employers with DEI policies must be prepared to show that hiring and promotion decisions made in accordance with those policies are well supported with objective data which support a legitimate, nondiscriminatory reason for the decision.

Foreign owned employers with operations in the United States should also take heed. Hiring or promoting an employee from your home country over a native US citizen will also get extra scrutiny. Again, be prepared with objective facts which show the decision was based on a legitimate, nondiscriminatory reason.

Finally, Chair Lucas’s statement makes it obvious that any employer that allows transgender or transitioning employees to share a bathroom or other “women’s room” with biological women will have engaged in sex discrimination in the eyes of the EEOC.

It is a new day at the EEOC. Employers should plan accordingly.

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March 2024
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Employment Law

Practical Steps To Avoid And Defeat EEOC Charges

In many instances being ranked second is quite the accomplishment. But in this case it should set off alarm bells for employers.

In 2022 Tennessee ranked second in the nation in the amount of EEOC Charges filed. Tennessee workers filed 6,311 Charges of Discrimination, which is almost 89.5 charges per 100,000 residents. Only Illinois was more litigious than Tennessee, but it was a photo finish. Illinois workers filed 89.7 charges for every 100,000 residents. Retaliation was the most common claim asserted.

While an EEOC Charge is likely inevitable at some point, employers can take several proactive steps to reduce the amount of charges that are filed and defeat those that are filed. These steps include the following:

  1. Train your workforce on applicable laws prohibiting discrimination, harassment and retaliation and include realistic examples of what is and is not allowed under those laws. Separate training for managers and supervisors is also recommended.
  2. Establish clear policies prohibiting discrimination, harassment and retaliation and enforce those policies.
  3. Establish clear lines of communication for reporting discrimination, harassment and retaliation and other complaints about conduct in the workplace.
  4. Investigate all complaints received promptly and thoroughly.
  5. Take prompt, corrective action to address conduct that violates the company’s policies.
  6. Establish good rapport between Human Resources, managers and supervisors. This will lead to better cooperation and reporting of conduct which might violate the company’s policies.
  7. Foster a workplace that promotes teamwork and values the contributions of everyone.

Taking these steps will reduce the time and money spent in litigation and potentially increase the productivity of your workforce. And, hopefully it will result in Tennessee losing its ranking!

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September 2023
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Employment Law

The EEOC’s New Roadmap

On September 21st the EEOC released its Strategic Enforcement Plan (SEP) for the years 2024-2028. The SEP sets the EEOC’s subject matter priorities and is a roadmap to the areas upon which it will focus.

The SEP states that the EEOC will continue its focus on promoting pay practices to prevent discrimination, combatting pay discrimination and advancing equal pay, preventing and remedying systemic harassment and tackling retaliation. The changes to the SEP include:

  • Targeting discrimination, bias, and hate directed against religious minorities (including antisemitism and Islamophobia), racial or ethnic groups, and LGBTQI+ individuals.
  • Expanding the vulnerable and underserved worker priority to include additional categories of workers who may be unaware of their rights under equal employment opportunity (EEO) laws, may be reluctant or unable to exercise their legally protected rights, or have historically been underserved by federal employment discrimination protections.
  • Updating the emerging and developing issues priority to include protecting workers affected by pregnancy, childbirth, or related medical conditions, including under the new Pregnant Workers Fairness Act (PWFA) and other EEO laws; employment discrimination associated with the long-term effects of COVID-19 symptoms; and technology-related employment discrimination.
  • Highlighting the continued underrepresentation of women and workers of color in certain industries and sectors, such as construction and manufacturing, finance, tech and other science, technology, engineering, and mathematics fields.
  • Recognizing employers’ increasing use of technology, including artificial intelligence and machine learning, to target job advertisements, recruit applicants, and make or assist in hiring and other employment decisions.
  • Preserving access to the legal system by addressing overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements when they restrict workers’ ability to obtain remedies for civil rights violations.

Employers, you now know where the EEOC will focus in the years ahead. Now is the time to be proactive and make sure you are compliant in those areas. Take steps such as conducting internal EEO and pay audits, expanding recruiting areas and reviewing and revising policies and procedures. The failure to take those steps now could prove costly in the future.

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December 2020
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Employment Law

Can an employer require its employees to take the COVID-19 vaccine?

In November, pharmaceutical companies Pfizer, AstraZeneca and Moderna announced that they had each developed a coronavirus vaccine.   This is, obviously, wonderful news.  Under the current vaccine distribution plan for the State of Tennessee, residents and employees of nursing homes and long-term care facilities will receive the vaccine first, followed by first responders, low exposure healthcare workers and people with two (2) or more high-risk comorbidities. 

These vaccines will likely not be available to the general public for several months.  Many people will take the vaccine voluntarily.  But as an employer, can you require your employees to be vaccinated against the coronavirus as a condition of employment? 

The answer is likely yes, with some exceptions.  The EEOC has not yet issued any guidance on this issue.  However, the EEOC has previously issued guidance on whether employers can require all employees to take the flu vaccine.  With respect to the flu vaccine, the EEOC states that an employer can require an employee to be vaccinated unless the employee should be exempted because of an ADA disability or his or her sincerely-held religious beliefs. 

If the employee has an ADA disability that prevents the employee from taking the flu vaccine, the employer must analyze whether it can reasonably accommodate this disability without undue hardship.  For example, can the employer reasonably accommodate the employee’s disability and address the health and safety concern by having the employee wear a mask or PPE at all times when the employee is around others?  If this reasonable accommodation will not create an undue hardship, then the employer must provide that reasonable accommodation.

An employee’s sincerely-held religious belief, practice or observance may also prevent that employee from taking a vaccine, whether it is the flu or the coronavirus vaccine.  For those employees, the employer must also determine whether it can provide a reasonable accommodation, such as the mask or PPE requirement, or working remotely, that will not impose an undue hardship on the employer.  The EEOC goes on to state that “generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”

Given that COVID 19 appears to be more deadly to some and more contagious than the flu, the EEOC might change its position on the issue.  Certain industries may also have obligations to vaccinate employees, such as those employers in the healthcare industry.  For now, most employers should assume that they will not be able to require vaccinations for those employees who have an ADA disability or sincerely-held religious belief that prohibits vaccination and will have to consider whether those employees can be reasonably accommodated without undue hardship. 

Employers considering mandatory vaccination policies should review relevant EEOC, CDC and any state guidance and consult legal counsel to ensure that they meet their goal of protecting the health and safety of their workforce without violating applicable laws.   

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June 2014
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Employment Law

Christian Care Center of Johnson City to Pay $90,000 to Settle ADA Case Filed by EEOC

The EEOC has the power to, and will,  sue employers who it believes have violated the laws it enforces.  It recently sued the Christian Care Center of Johnson City, Tennessee for disability discrimination based on the Center’s firing of an HIV positive LPN.  The case settled for $90,ooo.  You can read more about it in the EEOC Press Release which is linked below.

www.eeoc.gov/eeoc/newsroom/release/5-9-14.cfm?utm_content=bufferc501c&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

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April 2014
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Employment Law

EEOC Equal Pay Directed Investigation

Recently I attended a presentation given by Shirley Richardson, the Deputy Director for the EEOC – Memphis District. Ms. Richardson focused on the EEOC’s current Strategic Initiatives. I previously wrote about those initiatives here.

One of the EEOC’s Strategic Initiatives is enforcing equal pay laws. One method the EEOC can use to enforce equal pay laws is an Equal Pay Directed Investigation. A Directed Investigation can be conducted without an EEOC Charge being filed.

Basically, the EEOC will send a letter to the employer stating that it is conducting an investigation and will ask to review the pay records for male and female employees. The Directed Investigation is similar to an audit by the Department of Labor, but the focus is on whether discrimination has occurred on the basis of gender.

Employers should conduct an internal audit of their payroll records to ensure that men and women are paid equally for equal work. Discrepancies in pay between men and women must be tied to legitimate, non- discriminatory reasons which are applicable to the job. These reasons could include differences in education, experience and seniority.

The failure to conduct an internal equal pay audit may result in problems for the employer if it faces an EEOC Charge or Directed Investigation. Be proactive and conduct the audit now to avoid problems in the future.

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September 2013
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Employment Law

What To Do When The EEOC Comes Knocking

Recently the EEOC listed the 10 states which produced the most charges of discrimination in 2012.  To my suprise Tennessee was 10th on the list.

If your business receives an EEOC Charge (or a charge from a state human rights agency such as the Tennessee Human Rights Commission) you should take the following steps:

1. Litigation Hold- Immediately take steps to preserve all documents which might be relevant to the allegations in the charge.  This process, commonly referred to as a litigation hold, requires you to preserve hard copies as well as electronically stored information, and to suspend normal document retention/destruction practices and policies.

2. Notify your insurer- If you have Employment Practices Liability Insurance send the carrier written notice of the charge.  The failure to do so could result in the insurer denying coverage based on your failure to promptly notify it of the allegations.

3. Notify your attorney- Because statements made in the position statement and the response to the request for information are admissions which can be used against you, and the failure to assert certain defenses might result in  a waiver,  it is important that you get your attorney involved at the outset. If you have EPLI insurance the insurer will likely provide an attorney for you.

4. Investigate- If the charge presents allegations which are new or that have not previously been investigated a prompt, thorough investigation should be conducted.

5. Need to Know- In order to reduce “water cooler gossip” and to avoid retaliation claims,  you should only provide information about the charge to those who have a legitimate need to know the information.

The EEOC charge is often the first stage of what becomes lengthy, costly litigation.  Make sure you are taking the proper steps at the outset to give your business the best possible chance of prevailing.

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June 2013
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Employment Law

Fifth Circuit Holds Title VII Protects Nursing Mothers From Being Fired For Expressing Breast Milk

Recently the U.S. Court of Appeals for the Fifth Circuit held that Title VII, as amended by the Pregnancy Discrimination Act,  protects nursing mothers from being fired for lactating or expressing breast milk.  The plaintiff was allegedly fired after asking to use a breast pump at work.  In reaching its decision the Court held that firing someone because of lactation or breast pumping is sex discrimination.

This is a big victory for the EEOC, who brought the case on behalf of the plaintiff.  This win also highlights one of the EEOC’s priorities in its Strategic Enforcement Plan, which is to identify emerging areas in equal employment law, including pregnancy-related issues.

Most employers know that the Fair Labor Standards Act was amended in 2010 to require them to provide both a reasonable break time and a place, other than a bathroom, for an employee to express breast milk for up to a year after a child’s birth.  The Fifth Circuit has now made it clear that Title VII also protects employees who are fired for expressing breast milk.

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January 2013
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Employment Law

What to expect from the EEOC in 2013

Late last month the EEOC issued its Strategic Enforcement Plan for 2013.  The Plan sets forth 6 priorities:

1. Eliminating Barriers in Recruitment and Hiring;

2. Protecting Immigrant, Migrant and Other Vulnerable Workers;

3. Addressing Emerging and Developing Issues;

4. Enforcing Equal Pay laws;

5. Preserving Access to the Legal System; and

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

Based on these priorities I recommend employers take the following steps:

1. Conduct an internal “equal pay audit” to ensure that male and female employees are being paid the same for equal work;

2. Conduct anti-harassment training for your entire workforce;

3. Conduct an internal audit of your compliance with immigration laws, including Form I-9, and;

4. Conduct an internal audit to ensure that there are not discriminatory differences in pay for any employees.

Any issues that are discovered should be corrected.

Happy New Year!

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