keeping up with the eeoc: emerging trends in employment ...€¦ · eeoc appeal no. 0120120821...

7/28/2015

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Keeping Up with the EEOC:

Emerging Trends in Employment Discrimination in 2015

Jeffrey M. Beemer

Dickinson Wright PLLC

424 Church Street, Suite 1401

Nashville, TN 37219

[email protected]

July 23, 2015

Topics for discussion

• EEOC’s Strategic Enforcement Plan (SEP) for FY

2013-2016 (effective December 17, 2012)

• Recent Enforcement Activity and litigation in

• Transgender/Gender Identity Discrimination

• Employer-sponsored Wellness Programs

• Religious Discrimination

• Reasonable Accommodation under the ADA

and PDA

• Your Questions

EEOC’s SEP Priorities

• Eliminating Barriers in Recruitment and Hiring

• Protecting Immigrant, Migrant and Other Vulnerable

Workers

• Addressing Emerging and Developing Issues

• Enforcing Equal Pay Laws

• Preserving Access to the Legal System

• Preventing Harassment through Systemic

Enforcement and Targeted Outreach

• SEP cases are given the highest priority

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Addressing Emerging and Developing

Issues

• ADA issues: coverage, reasonable

accommodation, qualification standards, undue

hardship, direct threat;

• Accommodating pregnancy-related limitations;

• Coverage of LGBT individuals under Title VII’s

sex discrimination provisions

• List is illustrative and non-exhaustive

Transgender Discrimination

• Title VII of the Civil Rights Act prohibits employers from

discriminating against applicants and employees “because of

such individual’s … sex.”

• Pregnancy Discrimination Act of 1978 amended Title VII such

that discrimination on the basis of pregnancy, childbirth, or

related medical conditions constitutes unlawful sex

discrimination.

• Lesbian, Gay, Bisexual and Transgender are not specifically

listed as protected classifications under Title VII.

• Several states and the District of Columbia prohibit

discrimination based on gender identity.

Transgender Discrimination

• Before 1989, several federal appellate courts held that discrimination against transgender individuals did not fall within the protection of Title VII. E.g., Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982)

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Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

• U.S. Supreme Court held that

discrimination against an employee on the

basis of sex stereotyping – i.e., a person’s

nonconformity to social or other

expectations of that person’s gender –

constitutes impermissible sex

discrimination in violation of Title VII.


• Accounting firm declined to promote a female accountant

to partner because her demeanor did not match her

employer’s expectation of how a woman should look and

act.

• One male partner described her as being “macho.”

• The partner responsible for telling the employee the

firm’s decision not to promote her told her that to

improve her chances for partnership, she should “walk

more femininely, talk more femininely, dress more

femininely, wear make-up, have her hair styled, and

wear jewelry.”


• District Court held that employer had unlawfully

discriminated against her on the basis of sex by

consciously giving credence and effect to partners’

comments about her that resulted from sex stereotyping.

• Supreme Court established that Title VII’s reference to

“sex” encompasses both the biological differences

between men and women, and gender discrimination –

i.e., discrimination based on a failure to conform to

stereotypical gender norms.

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Smith v. City of Salem 378 F.3d 566 (6th Cir. 2004)

• U.S. Court of Appeals for the Sixth Circuit recognized sex stereotyping as impermissible discrimination in a case involving a transgender employee who had worked as a Lieutenant for City Fire Department for seven years without any negative incidents.

• An adverse action taken because of a transgender plaintiff’s failure to conform to sex stereotypes concerning how a man or woman should look and behave constitutes unlawful gender discrimination.

Macy v. Department of Justice,

EEOC Appeal No. 0120120821 (April 20, 2012)

• EEOC has appellate adjudicatory authority in federal sector.

• Complainant, a transgender woman, claimed she was not hired for a position with ATF on the basis of sex.

• EEOC held that discrimination against an individual based on transgender status, gender identity, or because an employee’s transitioning between genders is discrimination based on sex and therefore prohibited under Title VII.

EEOC’s ENFORCEMENT POSITION

• EEOC has instructed its investigators and attorneys that discrimination against an individual because that person is transgender is in violation of Title VII’s prohibition of discrimination based on sex in employment.

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Recent Lawsuits FILED BY EEOC

• EEOC filed two lawsuits on 9/25/14 against

employers for sex discrimination against

transgender employees:

• EEOC v. R.G. & G.R., Harris Funeral Homes,

Inc., E.D. Mich. No. 2:14-cv-13710 (Defendant’s

Motion to Dismiss denied on April 23, 2015)

• EEOC v. Lakeland Eye Clinic, P.A., M.D. Fla. No.

8:14-cv-2421 (settled in April 2015 for $150,000)

Recent Lawsuits FILED BY EEOC

• EEOC has alleged that the employers fired the

employees because they were transgender,

because they were transitioning from male to

female, and/or because they did not conform to the

employer’s gender-based expectations, preferences,

or stereotypes.

Jamal v. Saks & Co., S.D. Tex. No. 4:14-cv-2782

• Saks filed a Motion to Dismiss in December 2014 in which it argued that transgender individuals are not covered by Title VII.

• EEOC filed Brief as Amicus Curiae on 1/22/15.

• Saks withdrew its Motion one week later, in part because of consumer backlash.

• Case settled in March 2015.

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BUT SEE EURE v. SAGE CORP., W.D. Tex. No. 5:12-cv-1119

• District court granted employer’s Motion for Summary Judgment on 11/19/14 on grounds neither the Supreme Court nor the U.S. Court of Appeals for the Fifth Circuit has held that discrimination based on transgender status alone is actionable under Title VII.

• All testimony employee presented in opposition to employer’s Motion couched alleged discrimination in terms specifically related to employee’s status as a transgender person, not in terms related to her conformance with gender stereotypes.

• Case on appeal to Fifth Circuit Court of Appeals.

BEST PRACTICES

• Include gender identity in your company’s anti-discrimination and anti-harassment policy.

• Educate your supervisors and employees about company policies and transgender issues in the workplace.

• Adopt/update restroom policies to allow access for transgender employees.

• OSHA published guide to restroom access for transgender workers on 6/1/15. Core belief underlying policies is that all employees should be permitted to use the facilities that correspond with their gender identity.

Employer-sponsored Wellness Programs

The dilemma: Employers can implement wellness programs that fully comply with regulations issued by the Departments of Health and Human Services, Labor, and Treasury, and still get sued by the EEOC for violating the ADA.

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• Affordable Care Act (“ACA”) allows employers to provide a reward to employees such as premium discounts when employees meet standards related to their health.

• ACA also allows employers to impose penalties such as premium surcharges and other disincentives.

• An employee who implements a wellness program for tobacco prevention can assess a premium surcharge to a smoker who does not complete the plan’s tobacco cessation program.


• ACA regulations include requirements to ensure that health-contingent wellness programs are nondiscriminatory.

• Wellness program must be reasonably designed to promote health or prevent disease, not serve as a subterfuge to discriminate against an employee based on a health factor.

• Full reward under a health-contingent wellness program must be available to all similarly situated individuals.

• Employer must provide a reasonable alternative standard or waive the standard to qualify for the reward if an employee’s medical condition makes it unreasonably difficult or medically inadvisable to meet the standard.

EEOC Challenges to Employer-sponsored Wellness Programs

• Under the ADA, a covered employer may conduct voluntary medical examinations and inquiries, including voluntary medical histories which are part of an employee health program available to employees at that work site. 42 U.S.C. §12112(d)(4)(B).

• EEOC’s position (before April 2015) – compelling employees to participate in wellness programs by imposing penalties violates the ADA because the program is not voluntary.

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EEOC Challenges to Employer-sponsored Wellness Programs

• ADA has a “safe harbor” provision that exempts certain insurance plans from these prohibitions when administering the terms of bona fide benefit plan that are based on underwriting risks.

• In 2012, the U.S. Court of Appeals for the Eleventh Circuit held that an employer wellness program fell under the ADA’s safe harbor provision and that surcharges imposed on employees who refused to participate in the wellness program were lawful. Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012).

EEOC’s Wellness Program lawsuits

• EEOC v. Orion Energy (E.D. Wis. 2014)

– Blood draws were not voluntary because refusing them carried a significant financial penalty: 100% of insurance premiums + $50 per month. One employee was fired for not participating.

• EEOC v. Flambeau (W.D. Wis. 2014)

– Program is not voluntary because the penalty for non-compliance was termination of coverage.

• EEOC v. Honeywell (D. Minn. 2014)

– Wellness program satisfied HIPAA, but the program is not voluntary because the penalty for non-compliance was: loss of seed dollars for a health savings account, an annual surcharge of $1,500 to premiums, and an additional surcharge of $1,000 for smokers.

EEOC v. Honeywell INTERNATIONAL, INC. D. Minn. No. 0:14-cv-4517

• EEOC took the unusual step of filing a Motion for Preliminary Injunction seeking to enjoin Honeywell from imposing penalties against any employee who refused to undergo biomedical testing in conjunction with Honeywell’s wellness program.

• The court denied the EEOC’s motion for a preliminary injunction, but noted in its opinion that great uncertainty persists as to how the ACA, ADA, and other federal statutes are intended to interact.

• In April 2015, the EEOC released proposed guidance regarding the ADA’s effects on employer wellness programs.

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EEOC Proposed Wellness Programs Guidance

• Definition of “voluntary”

• Programs are voluntary if an ADA covered employer does not:

– Require employees to participate;

– Deny coverage under any of its group health plans or limit the extent of such coverage to employees who refuse to participate in a wellness program (except for allowed incentives); AND

– Take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees who do not participate or fail to achieve certain health outcomes.

EEOC Proposed Wellness Programs Guidance Privacy Concerns

• If a wellness program has any disability related inquiries or medical exams, the employer must provide employees with a notice clearly explaining: – What information will be obtained;

– How that information will be used;

– Who will receive that medical information;

– What restrictions there will be on its disclosure; and

– What methods the employer uses to prevent improper disclosure.

• Confidentiality requirements – Compliance with HIPAA Privacy Rule for PHI.

– Medical information may be provided to the employer only in aggregated terms that do not disclose or are not reasonably likely to disclose the identity of specific individuals, except as needed to administer the plan.

EEOC Proposed Wellness Programs Guidance Other Limitations

• Disability-related inquiries and medical examinations must be reasonably designed to promote health or prevent disease.

– There must be a reasonable chance of improving the health of, or preventing disease in, participating employees.

• The wellness program may not be overly burdensome or time consuming.

• The program may not be a subterfuge for violating the ADA or other employment discrimination laws.

– The program must reasonably accommodate employees where necessary.

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EEOC Proposed Wellness Programs Guidance Incentives Limits

• Limits on incentives (either in form of a penalty or benefit):

– May not exceed 30% of the total cost of employee-only coverage (no mention of family coverage);

– Extends to participatory programs, not just those that require certain health benchmarks;

– Includes programs with tobacco incentives if those programs include any disability related inquiries or medical exams (i.e. blood testing for nicotine);

• Tobacco incentives without disability-related inquiries or medical exams may offer incentives as high as 50% of the total cost of employee coverage.

EEOC Proposed Wellness Programs Guidance

• EEOC Examples of Proper and Improper Wellness Policies:

• Good: conducting a health risk assessment or screening for the purpose of alerting participants to health risks; developing disease management programs based on assessments and screening.

• Bad: collecting information without follow-up advice, tools, or info; requiring an overly burdensome amount of time or requiring intrusive procedures as a condition for reward.

Religious Discrimination

• EEOC issued guidance on “Religious Garb and Grooming in the Workplace: Rights and Responsibilities” on March 6, 2014.

• EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015).

• Employer refused to hire applicant, a practicing Muslim, because the headscarf she wore to her interview was prohibited by Employer’s “Look Policy,” which prohibited “caps.”

• Employer believed applicant wore the head scarf because of her faith. However, the employer never asked her why she wore it, and applicant never asked for an accommodation to be allowed to wear the headscarf at work.

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Religious Discrimination

• Employer’s argument: applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the need for an accommodation.

• Tenth Circuit Court of Appeals awarded employer summary judgment.

EEOC v. Abercrombie & Fitch Stores, Inc. 575 U.S. _______ (2015)

Holding:

• An applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.

• Title VII requires no knowledge requirement. (But the ADA does.)

• An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

EEOC v. Abercrombie & Fitch Stores, Inc. 575 U.S. _______ (2015)

• Case settled July 2015 for $25,670.53 in damages and $18,983.03 in court costs.

• Abercrombie has replaced its “Look Policy” and has changed its hiring practices “to not consider attractiveness.”

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Reasonable Accommodation under the ADA Telecommuting

• EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. 2015)

• Issue: Whether employer’s denial of employee’s telecommuting request as a reasonable accommodation violates the ADA.

• Employee worked as a resale buyer of steel.

• Employee had Irritable Bowel Syndrome.

• Employee was a poor performer with attendance issues.

• Job required frequent team meetings and regular on-site attendance.


• Employee had three previous failed telecommuting attempts, including a period where she worked four 10-hour days per week with telecommuting as needed.

• Employee requested leave to work up to four days per week from home.

• Employer rejected this telecommuting request, but offered to move her office closer to the restroom or look for jobs more suitable for telecommuting, which the employee refused.


• Holding:

• Regular and predictable on-site job attendance was an essential function of the Plaintiff’s job, and in most jobs.

• Technology has advanced enough for employees to perform at least some essential job functions from home, but technology has not changed so as to make regular in-person attendance marginal for the Plaintiff’s job.

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Reasonable Accommodation Under the ADA

• EEOC v. UPS, Inc., N.D. Ill. No. 1:09-cv-5291

• EEOC v. ValleyLife, D. Ariz. No. 2:15-cv-340

• EEOC challenges employers’ inflexible maximum 12-month leave policies.

• EEOC has not issued guidance on how long employer must provide unpaid leave as a form of reasonable accommodation.

Reasonable Accommodation Under the PDA Young v. UPS 575 U.S. ____ (2015).

• Plaintiff worked as a driver for UPS.

• After she became pregnant, her doctor imposed a 20 lb. lifting restriction.

• Her job required her to lift up to 70 lbs.

– UPS at the time offered temporary work assignments to:

• Drivers who were injured on the job;

• Drivers who had lost their Department of Transportation certifications; and

• Drivers who suffered from an ADA-qualifying disability.

– Young did not qualify under UPS’ policy and had to take an unpaid leave of absence.

Reasonable Accommodation Under the PDA Young v. UPS 575 U.S. ____ (2015).

• Note: this case was decided before the 2008 ADA amendments took effect. Under the amendments, the definition of “disability” includes physical and mental impairments that substantially limit an individual’s ability to lift, stand or bend. As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job.

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Reasonable Accommodation Under the PDA Young v. UPS, 575 U.S. ____ (2015).

• Issue: Whether employers must provide light duty and other workplace accommodations to pregnant employees in the same manner they provide accommodations to employees similar in their inability to work.

• UPS Argument: UPS policy is non-discriminatory because it followed a pregnancy-blind policy. Because the Plaintiff did not fall in any of these three categories, it had not discriminated against her on the basis of pregnancy.


• Majority Opinion: • Twist on the McDonnell Douglas burden-shifting framework for disparate

treatment cases in the PDA context only.

• Employee: 1) belongs to a protected class; 2) sought an accommodation; 3) was not accommodated; and 4) shows the employer accommodated others “similar in their ability or inability to work.”

• Employer: must offer a legitimate, non-discriminatory reason for denying that accommodation. That reason cannot be that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accomodates.

• Employee: shows employer’s reason is a pretext for intentional discrimination by showing a “significant burden” on pregnant workers, and that the employer’s legitimate, non-discriminatory reasons are not “sufficiently strong” to justify that burden.


• Court’s question on remand: Why would the employer categorically exclude pregnant women from an accommodation that it provides to large numbers of other workers?

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What else is new at the EEOC?

• EEOC announced on May 6, 2015 that 11 of its 53 field offices are beginning a pilot program for an on-line charge system.

• System going on-line in mid-August 2015.

QUESTIONS?

keeping up with the eeoc: emerging trends in employment ...€¦ · eeoc appeal no. 0120120821...

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