2015 has been a long, strange year in the employment world. I anticipate 2016 will continue that trend. This is the first installment of a series that will review 2015 and try and predict what will be happening in 2016 for employers in Birmingham, Alabama, and around the country.
EEOC. The EEOC celebrated its 50th anniversary in 2015. Fiscal Year Ending September 30, 2015 proved to be a very lucrative year for the EEOC, with over $525 million recovered for victims of discrimination. Of this amount, $356.6 million was attributed to the private sector and state and local governments, $65.3 million was recovered by charging parties through litigation and $105.7 million was recovered for federal employees and applicants. Over 89,000 complaints were filed concerning the private sector, about 1,000 more than in FYE 2014. 142 lawsuits were filed by the EEOC. At FYE 2015, there were 218 active cases on the EEOC litigation docket. The EEOC continues to focus on systemic investigations: with 268 in 2015, compared to 260 in 2014. The amount recovered as the result of these systemic investigations increased from $13 million in 2014 to $33.5 million in 2015. 36% of these investigations resulted in a finding of reasonable cause.
On December 23, 2015, EEOC Chair Jenny R. Yang released a statement concerning workplace discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern. The entire statement reads as follows:
"America was founded on the principle of religious freedom. As a nation, we must continue to seek the fair treatment of all, even as we grapple with the concerns raised by the recent terrorist attacks. When people come to work and are unfairly harassed or otherwise targeted based on their religion or national origin, it undermines our shared and longstanding values of tolerance and equality for all.
"We commend employers who have already taken steps to issue or re-issue policies on preventing harassment, retaliation, and other forms of discrimination in the workplace, and we encourage all employers to remain vigilant and to communicate their commitment to inclusive workplaces throughout their organizations. Workers who have experienced discrimination at work or in applying for jobs should report these incidents to the appropriate workplace official and to the U.S. Equal Employment Opportunity Commission or its state and local partners. We urge all employees to re-affirm these values of tolerance and equality in their interactions with their co-workers and show that harassment and discrimination will not be tolerated in America's workplaces."
The EEOC also released two resource documents, one for employers and one for employees, explaining federal laws prohibiting employment discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern. These resources can be found through the above link. This is obviously in response to the heated rhetoric arising from the ongoing Presidential campaigns as well as the recent terror attacks, including Paris and San Bernardino.
The EEOC continues to focus on its “Strategic Enforcement Plan”, which sets forth its national priorities as “(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.” The EEOC is pursuing claims alleging that same-sex discrimination violates Title VII, alleged Title VII violations based on the use of background checks in the hiring process, alleged violations of the Americans with Disabilities Act, alleged violations related to Religious discrimination and alleged violations of the Pregnancy Discrimination Act. It should be noted that, notwithstanding the total amount recovered in 2015 by the EEOC, their track record in court is not so great. Unfortunately for Employers, fighting the EEOC is very expensive and time consuming. I anticipate the EEOC will continue to pursue these types of claims in 2016. I believe that the EEOC will continue to expand individual charges/complaints into systemic investigations, liberally using subpoena enforcement actions to obtain records from employers.
One recent case of interest was decided by the U.S. Court of Appeals for the Fifth Circuit, Tyrikia Porter v. Houma Terrebonne Housing Authority Board of Commissioners. Porter submitted her resignation, but before it became effective, she alleged that one of her supervisors sexually harassed her. After she complained to the Board, she was given a one month extension of her employment. After the month expired, Porter requested that her resignation be rescinded. Although her direct supervisor attempted to have the accused supervisor accept the rescission, he refused to do so. Part of her lawsuit alleged retaliation as the result of the Board's refusal to permit her to rescind her resignation. The Fifth Circuit stressed that “the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.” In the context of Porter's lawsuit, the court, based on the facts and circumstances alleged, concluded that the finder of fact could possibly find that Porter “was well dissuad[ed] from making…a charge of sexual harassment if she knew it would destroy the chance that her rescission would be accepted.” Due to the temporal proximity, the court also found that she made a prima facie case of causation and that it was up to the finder of fact to determine if the accused supervisor would have rejected her request to rescind her resignation “but for” the sexual harassment complaint she filed against him.
Practice pointers. During the last year of President Obama's presidency, I expect the EEOC will continue to liberally interpret the applicable laws and regulations as it pursues its agenda. Employers should treat any charge that is filed seriously, and be prepared to face the might, resources and power of the EEOC should they decide to turn an individual charge into a systemic investigation. LGBT and religious issues will be vigorously pursued by the EEOC, in addition to the various other laws it enforces. In responding to the EEOC, any response can and will be used against the employer. As such, any response should be prepared, or at the minimum, reviewed by legal counsel.
Drugs and Alcohol in the workplace. With more states legalizing marijuana, both for medical purposes and for recreational purposes, employers need to decide how to treat applicants and employees who may be using marijuana. According to a recent SHRM survey of employers in states where marijuana use is legal, 82% do not tolerate its use, while 11% have adopted exceptions for medical use. Concerning applicants, 44% will not employ recreational marijuana users. In Alabama, marijuana is a Schedule 1 drug, and thus its use is not permitted for either medical or recreational purposes. Around the country, the use of marijuana is more problematic for employers. The ABA Journal published an in-depth report on the issues surrounding marijuana use and how it impacts employers. It is a must read if you are considering changing your policies concerning its use.
Former USC coach Steve Sarkisian has brought alcoholism to the forefront as the result of his recent termination and filing of a lawsuit alleging USC violated the Americans with Disabilities Act. His 14-count lawsuit, filed in mid-December, sets forth 14 separate counts, including alleged violations of the ADA, a failure to accommodate and a failure to engage in the interactive process. This is a very complicated area of the law, and whether there is a violation of the law requires a very fact dependent analysis. This is definitely an area where legal counsel should be consulted to ensure compliance with the law.
Violence in the workplace. I was attending a Board meeting at a religious institution shortly after the San Bernardino tragedy. As I sat in the conference room, it occurred to me that the doors to the room opened outward, not inward. This meant that, should there have been an active shooter situation, there was no way to barricade the doors to delay or prevent entry. The direction the doors open may seem to be innocuous, but can mean the difference between life and death. As we continue to read about violence in the workplace, seemingly on a weekly basis, it is imperative that employers review or implement appropriate policies and procedures(such as an Emergency Action Plan as required by OSHA), and conduct regular training to minimize threats. For medical providers and social workers, OSHA issued guidelines for preventing workplace violence. Employers, do you educate employees on what do to if there is an active shooter situation? If there is a co-employee who may be showing signs of being violent? Have you reviewed the Department of Homeland Security guidance? Has a security professional visited your workplace to do a security assessment? In Alabama, employees are permitted, if certain conditions are met, to keep a firearm in their personal car on company property. Are you aware of this or does your old policy violate current Alabama law?
Practice pointer. As I have said and written many times, as we end 2015 and begin 2016, now is a good time to review your policies and procedures, including those involving workplace violence. If changes need to be made, inspections done, guidance from various governmental agencies reviewed, etc., there is no better time to engage in this process than the present.