EEOC Guidance on Retaliation

In August, the Equal Employment Opportunity Commission (EEOC) issued its final “Enforcement Guidance on Retaliation and Related Issues,” together with a fact sheet for small businesses.  The guidance is particularly important given that nearly half of all discrimination claims brought to the EEOC are on the basis of retaliation. While not itself enforceable law, the guidance provides helpful insight into the EEOC’s position on pursuing workplace retaliation claims, and how it might seek to tighten legal restrictions in the courts. Principally, the guidance demonstrates that the EEOC is broadening its interpretation of retaliation to include many more possible violations by employers by expanding the definitions of key legal terms, such as “retaliation,” “protected activity,” and “materially adverse action.” These expansions could result in the EEOC finding retaliation in a broader range of situations, such as where an employee may (but has not yet) engaged in protected activity, or where protected activity is not based on a “reasonable, good faith belief” of potentially unlawful conduct. “Materially adverse actions” can now include minor actions having no effect on employment, such as stray remarks or closer work supervision. The EEOC also loosened the causation standard for Title VII and ADEA retaliation cases, and suggested it would be much more aggressive in pursuing claims related to requests for accommodation.

EEOC Guidance on National Origin Discrimination

In November, the EEOC issued its “Enforcement Guidance on National Origin Discrimination,” modernizing its definition of such discrimination and providing insight into the EEOC’s position on unsettled or unaddressed interpretive issues. According to the guidance, national origin discrimination under Title VII is “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”  The guidance provides that Title VII prohibits discrimination based on the perception that an employee or applicant is of a particular national origin group or that the person is associated with someone of a particular national origin group. The guidance addresses other topics, such as English-only policies, examples of situations involving (or not involving) discrimination, insight on how discrimination intersects with workplace harassment, and advice on how to avoid workplace discrimination, including recommended practices. In addition to the guidance, the EEOC released a Q&A and fact sheet for small businesses.

EEOC Resource Document for Applicants and Employees on Mental Health Conditions

In December, the EEOC published a resource document regarding “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” A Q&A directed to applicants and employees, the document provides guidance to those with mental health conditions on their rights under the Americans with Disability Act, including against discrimination and harassment due to their condition, privacy about mental health information, and reasonable accommodation in the workplace. It cautions against the use of stereotypes or assumptions about mental health conditions, encouraging the use of objective evidence in assessing an employee’s ability to perform the essential functions of a position. The resource document advises individuals how to secure a workplace accommodation, underscores the EEOC’s role in enforcing rights, and directs individuals to a fact sheet released earlier this year to aid in the process—The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work.

EEOC 2017-2021 Strategic Enforcement Plan

In October, the EEOC released its Strategic Enforcement Plan for fiscal years 2017-2021. The plan builds on the prior 2013-2016 plan, continuing in its priorities and addressing emerging areas of focus, including:

  • complex employment relationships “focusing specifically on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy;”
  • “backlash discrimination” against Muslims and Sikhs or persons of Arab, Middle Eastern or South Asian descent;
  • extending equal pay priority to reach all workers and address pay disparities based not only on sex but also race, ethnicity, and disability and other protected characteristics; and
  • impact of algorithms or other data-driven employment screening tools on fairness of the hiring and recruitment process.

New EEO-1 Form Will Require Companies to Report Pay Data

The EEOC released an updated EEO-1 form on September 29, 2016, which employers will be required to use as of March 31, 2018. Employers will be required to report pay data for employees, in addition to the already required information about gender, race, and ethnicity. The controversial change is intended to make EEOC investigations into discriminatory pay disparity more effective.  Although the first reports will not be due until 2018, they must encompass 2017 data, so employers should already be preparing to provide this expanded information.  See our Summer 2016 Update for more detail.

Antitrust Guidance Cautions HR Professionals about No-Poaching and Wage-Fixing Pacts and Information Sharing

The Federal Trade Commission and Antitrust Division of the United States Department of Justice (DOJ) jointly issued an Antitrust Guidance for Human Resources Professionals. The 11-page document summarizes antitrust law and the competitive employment market and provides guidance about no-poaching and wage-fixing agreements and other conduct (including information sharing) that could violate antitrust laws. The guidance follows DOJ civil enforcement actions over the last several years against well-known Bay Area technology companies for allegedly entering into “no poach” agreements with competitors. Those actions ended in consent decrees; civil lawsuits followed resulting in multiple significant settlements to allegedly impacted workers. The guidance emphasizes that HR professionals are on the front lines of hiring and compensation practices, and are often in the best position to ensure compliance. Employers should incorporate learning points from the guidance into training for HR and compliance professionals and those involved in recruitment and hiring.

Fair Pay and Safe Workplaces Executive Order 13673—Partially Enjoined

As reported in our June 2015 FEB, President Obama signed into law the Fair Pay and Safe Workplaces order (final text here), which requires companies to, among other things, disclose data about labor violations as part of the bidding and selection process for federal contracts. The law was to take effect October 29, 2016, but a Texas court issued a preliminary injunction partially enjoining the bill, on a national basis, just five days before the scheduled effective date. Specifically, the Court enjoined the imposition of new reporting requirements regarding labor law violations on government contractors and subcontractors and the order’s prohibition on pre-dispute arbitration agreements regarding matters arising under Title VII of the Civil Rights Act and torts based on sexual assault or harassment. The Court based its decision, in part, on the belief that the order’s requirements were not authorized by the underlying statute on which it relies. Many believe that this executive order will be among the first to be eliminated by the incoming presidential administration.