Harassment, Race and Sex Bias Major EEOC Concerns in 2016

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Lydell C. Bridgeford

June 13 — Nearly a third of the charges the Equal Employment Opportunity Commission sees involve harassment, with top bases being race, sex and disability, Chair Jenny Yang said at the halfway mark of 2016 enforcement efforts.

The agency meets June 20 to release a report from a 16-member workforce harassment task force led by Commissioners Chai Feldblum (D) and Victoria Lipnic (R), Yang said at a conference for affirmative action, equal opportunity, diversity and human resources professionals in both private and public sectors.

“Workplace harassment is an area that continues to be a significant percentage of our charges,” Yang told participants June 9 during a keynote address.

David Lopez, general counsel of the EEOC, spoke at a session that day highlighting noteworthy litigation involving the agency.

Yang and Lopez also shared insights on the importance of getting stakeholder feedback on subregulatory guidance; why the agency issues new documents when it isn't changing policies; a recent guidance on leave as a disabilities accommodation; and protecting immigrants' job rights.

‘Solutions' a Focus of Meeting

Yang told participants that the June 20 public meeting will include witnesses from the task force and others who have worked on the issue “from a variety of perspectives.”

“We really want to focus on some of the solutions,” she said. A June 13 press release provides details about the agenda.

Yang announced the creation of the task force in January of 2015 to study workplace harassment based on race, sex, disability and other protected bases under the federal anti-discrimination laws. The task force, which includes academicians, lawyers, employers, worker advocacy groups and labor unions, has held three public meetings.

Yang said the group was formed “to look at the question of what we can do to prevent harassment and to fix it when we see a problem.” If the resources were available, the agency would litigate significant harassment cases, she said. But the ultimate aim is prevention, she said.

Feedback Encouraged

During the address, Yang also stressed that employers should participate in the agency’s “new input process” on proposals to revise and update subregulatory guidance.

For instance, the EEOC June 2 invited the public to weigh in on a draft proposal revising its enforcement guidance on national origin discrimination under Title VII of the 1964 Civil Rights Act. It will be the first update of the guidance in 14 years, she said. “We have a 30-day public input process,” she said.

The commission's decision to allow stakeholders to comment on draft proposals updating subregulatory guidance was first put into practice with its proposal to revise the retaliation enforcement guidance back in January.

The agency has received “very helpful feedback” on that and is considering it during the revision, she said. The EEOC plans to issue a final guidance this summer.

Resource Documents Reflect Current Policies

“Promoting equal opportunity is a marathon and not a sprint,” Yang said. The EEOC continues to focus on providing resources to help employers understand how the agency interprets the laws and regulations it enforces, she said.

Yang advised employers “to look out for our resource documents.” A number of resource documents are on the agency website, which may be called fact sheets or technical assistance documents, she said. These documents represent the agency’s current policies; the commission isn't “making new policies” with them, she added.

She explained that the EEOC will issue a new fact sheet or technical resource document on an enforcement topic when it has received a number of questions from employers about a certain topic or is seeing increasing problems in investigations and litigation on a particular issue.

For example, the EEOC released a technical resource document in May discussing leave as a reasonable accommodation under the Americans with Disabilities Act.

Fixed-leave policies “may have an impact on individuals with disabilities who are interested in returning to work after leave,” Yang said.

Part of the reason the agency issued a resource document on leave as a reasonable accommodation is that it “saw a lot of charges addressing fixed-leave policies,” she said. The agency was “spending a significant amount of our litigation resources on these type of charges,” she said.

The new resource document on leave as a reasonable accommodation provides both employers and workers with the EEOC’s views on how employers can address business needs as well as ADA requirements, Yang said.

Immigration Status Not a Roadblock

In its strategic enforcement plan for fiscal years 2013-2016, the EEOC identified protecting the employment rights of immigrant, migrant and other vulnerable workers as one of its top enforcement priorities, General Counsel Lopez said during a session focusing on recent court rulings involving the agency.

The core of the issue is creating “a safe space for people to come forward” with claims of discrimination, he said. This enforcement priority represents “a concerted effort on the agency’s part to address a backlash against immigrant workers,” he said.

Lopez added: “The vast majority of employers try to do the right thing. But we know there are employers who calculate that they can get away with certain types of discrimination because the employees will not complain, either because of fear or linguistic abilities. These employees live in the shadows. Title VII is very clear that you have a right to assert a claim regardless of your immigration status.”

He cited the U.S. Court of Appeals for the Fourth Circuit's April ruling in EEOC v. Maritime Autowash (2016 BL 130507, 129 FEP Cases 1) holding that the EEOC’s subpoena is enforceable against an employer suspected of national origin discrimination. The case involves a Hispanic man who was hired by a carwash as an undocumented worker and subsequently filed an EEOC charge against his employer.

“The company took the position that you can’t enforce the subpoena because the charging party is undocumented,” Lopez said. In essence, the court said “this employer, on one hand, knowingly hires undocumented workers, but then takes the position in litigation that it's not subject to any type of legal accountability because the workers are undocumented.”

Yang and Lopez spoke at the 42nd American Association for Access, Equity and Diversity's annual conference in Vienna, Va. The association was formerly known as the American Association for Affirmative Action.

By Lydell C. Bridgeford

To contact the reporter on this story: Lydell C. Bridgeford in Washington at lbridgeford@bna.com

To contact the editor responsible for this story: Heather Bodell at hbodell@bna.com