Expert Panelists Testify Before EEOC on “Revamping Workplace Culture to Prevent Harassment”

shutterstock_me tooOn October 31, 2018, roughly one year after the beginning of the #MeToo movement, the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting at agency headquarters in Washington, D.C. entitled “Revamping Workplace Culture to Prevent Harassment.”  The purpose of this meeting was to hear various approaches that different industries are implementing to prevent harassment and provide employers the skills, resources, and knowledge to respond workplace harassment.

Acting Chair Victoria Lipnic began the meeting by noting that the nation is at the apex of a cultural awakening that the EEOC has been tracking for years.  Since the #MeToo movement went viral, hits on the EEOC website Continue reading

Hearings for EEOC Nominees Highlight Potential Shifts in EEOC Policy and Agenda

EEOC PictureOn September 19, 2017, the Senate Health, Education, Labor and Pensions (“HELP”) Committee held confirmation hearings for President Trump’s nominees to fill the two vacant Equal Employment Opportunity Commission (“EEOC” or “Commission”) positions – Janet Dhillon and Daniel Gade.  While a new administration almost always signals a policy shift, change typically occurs over a prolonged period of time.  However, given the immediate changes implemented under the Congressional Review Act, efforts to dismantle Obama-era regulations, and prompt action to curb the Affordable Care Act and immigration policy, industry can likely expect swift policy changes implemented throughout government agencies, including the EEOC.

The EEOC is set-up for perhaps the one of the largest policy shifts that business has seen in decades.  The foundation for such changes lies in the two current vacancies in the Commission.  President Trump’s nominations of Dhillon and Gade will change the makeup of the EEOC leadership to three Republican members and two Democratic members.  Additionally, the perspective that these two nominees will bring to the EEOC is likely to shift the agency’s priorities and help ease regulatory burdens on employers.

The Nominees

Janet Dhillon is the former General Counsel at Burlington Stores Inc. who has a long history of supporting Republican candidates for elected office, including John McCain and Ted Cruz.  Unlike the current Commissioners, Dhillon will bring a unique perspective that will be welcomed by employers.  Her experience as an in-house lawyer at a large company provides the backdrop for a more employer-friendly stance on workplace issues.

Gade is also an intriguing pick to fill the other vacant position at the EEOC.  Gade is a graduate of the United States Military Academy at West Point who served in Iraq.  He was decorated for valor with two purple hearts and most recently served as an assistant professor at West Point.  If confirmed, Gade will be the only non-lawyer on the Commission.  Gade has taken a hard-nosed stance on disability benefits for veterans, and what he believes is a perverse incentive for them to rejoin the workforce.  Although he would be the only Commissioner without any experience enforcing anti-discrimination laws, his views suggest that he would make a concerted effort to address disability claims, especially those concerning veterans.  In FY 2016 alone, disability discrimination charges accounted for approximately 31% of all charges received by the EEOC, which marks an 11% increase since 2001.

Mission to Decrease Burden on Employers

The nominations of Dhillon and Gade certainly reflect President Trump’s firm commitment to decreasing burdens on employers.  Since taking office, President Trump has been adamant on his mission to cut regulation on employers.  President Trump has already reversed one Obama-era EEOC initiative designed to further regulate the workplace.  Specifically, on August 29, 2017, the OMB’s Office of Information and Regulatory Affairs issued a memorandum to the EEOC informing the agency that the revised 2016 pay data requirements were being stayed immediately and directing the agency to submit a new information collection package for the EEO-1 form for OMB’s review.

As a consequence, according to Acting Chair Victoria Lipnic, the earlier approved EEO-1 form remains in effect, and employers with 100 or more employees and federal contractors will be required to submit only the data required before the September 2016 EEO-1 report changes.  The deadline to submit these EEO-1 forms remains March 17, 2018.

Increase in Mediation

Both Dhillon and Gade commented in their opening remarks that they are committed to addressing the substantial backlog of charges currently before the EEOC.  Gade highlighted that his first priority, if confirmed, would be to address the backlog of charges being investigated by the EEOC.  Dhillon commented that it is “a sad reality that too often, justice delayed is justice denied[,]” and that conciliation and education is “critically important to the EEOC’s mission.”

If both candidates are confirmed, the drive to address the existing backlog and pending matters quickly will likely signal an increased emphasis on mediation.  Parties may be under shortened deadlines to submit information, produce documents and supporting evidence, and there will likely be less cases pursued by the EEOC unless it has solid and substantial grounds to bring a case.

Despite the number of large cases brought by the EEOC during the Obama administration, mediation actually accounted for a majority and benefits accumulated for aggrieved parties over the past several years.  The FY 2018 EEOC budget justification echoes this trend – highlighting its increased efforts to focus on mediation, conciliation, and employer outreach, as opposed to litigation, which is listed as the final EEOC priority for FY 2018:

EEOC’s priorities for FY 2018 are to make critical investments needed to make the Commission an agency focused on addressing the needs and challenges of the workplace of the future. As jobs for Americans are increased under this Administration, we as an agency will seek to increase equality of employment opportunity in the workplace through enhanced outreach and education; voluntary compliance efforts; high quality investigations; early and voluntary resolution of matters (including mediation and quality conciliations); and strategic litigation to enforce the laws under our jurisdiction.

While the EEOC’s strategic objective to reduce the backlog may mean more involvement initially, the long-term effect of this policy shift will decrease burdens on employers and facilitate a less adversarial relationship with the EEOC.

Potential Shift in Title VII Policy on LGBT Discrimination

Another issue that employers are watching closely, due largely to the current uncertainty throughout the legal system, is LGBT protections under Title VII.  Under the Obama Administration, the EEOC took the position that sexual orientation and gender identity were a protected category under Title VII.

The new Administration has already made several moves within the first 8 months of taking office to reverse these protections.  Notably, within the first month of the new Administration, in February 2017, President Trump withdrew Obama-era protections for transgender students in public schools that called for them to be permitted to use bathrooms and facilities corresponding with their gender identity.  The backlash that arose from this policy change led the Department of Education to issue an internal memo directing attorneys to continue to examine discrimination claims brought by transgender students and not automatically reject them due to this change in policy.  More recently, on August 25, 2017 President Trump issued a memorandum to the Secretary of Defense and Secretary of Homeland Security banning transgender individuals from serving in the United States military.

The Administration’s shift in policy with respect to sexual orientation and transgender protections will similarly make its way to the forefront of issues needed to be addressed by the EEOC sooner rather than later.  With the anticipated shift in the makeup of the EEOC leadership, the EEOC is more likely to reverse the Obama-era stance on sexual orientation and transgender protections.  This would be a momentous change in the employment law context, as former Commissioner Jenny Yang labeled the Commission’s work on sexual orientation discrimination one of the greatest successes of her career at the EEOC.

During the confirmation hearings, neither Dhillon nor Gade would confirm that they would interpret Title VII as protecting LGBT workers.  When questioned during the hearing, Dhillon’s comments suggested that she may be ready to overturn findings of LGBT protections on the basis the that the U.S. government should speak with one voice on the issue.  When questioned by Sen. Patty Murray (D-Wash.), the top Democrat on the Senate HELP Committee, Dhillon expressed a lack of commitment to upholding the EEOC’s determination Title VII applies to LGBT workers, although the nominee said she’s “personally opposed” to anti-LGBT discrimination.  Gade was also tentative in his response on the issue, noting that he is “personally opposed to discrimination on the basis of . . . sexual orientation or gender identity” but that he is “committed to enforcing the law as its written and as the court interpreted it.”

Conclusion

The anticipated new viewpoints and a Republican-favored Commission will be welcomed by employers.  Ultimately, the commitment to decreasing the regulatory burden on employers and increasing educational outreach will provide more opportunities for employers to learn how to best manage their employees and operate their workplace, and it will also lend itself to a less adversarial relationship with the agency.

Although changes are expected in the near future, employers should nonetheless remain cautious about EEOC investigations and enforcement actions.  The new administration is not fully established throughout the agencies, and uncertainty regarding many issues, including Title VII interpretations and pay equity, are currently hot issues before the courts.  Therefore, employers should maintain and continue to enforce their employment policies, as they had under the Obama Administration, and ensure that they foster a welcoming environment for all of their employees.  Given the rapidly changing landscape in the EEOC and the areas of law it enforces, employers are encouraged to stay in communication with legal counsel prior to making any policy changes.

 

 

OMB Suspends New EEO-1 Reporting Data Requirement

Employers throughout the nation who have been preparing to comply with the revised Employer Information Report (EEO-1) will be pleased to learn that the Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) has indefinitely suspended the new report’s compliance date.

By way of background, as explained hereEEOC Picture, in February 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced a major revision to the EEO-1 Form reporting requirements, requiring all employers with more than 100 employees (and federal contractors with more than 50 employees) to submit compensation data based on certain demographic information such as gender, race, and ethnicity to the EEOC beginning in 2017.  Following that announcement, employers in all industries voiced numerous concerns about those changes, including the increased time and money that would be required to complete the new report, confidentiality issues, data security and privacy issues, the range of false positives that would result from the submission of pay data, and the enforcement actions that would inevitably arise from these false positives.  Although the EEOC thereafter issued a “revised” Final Rule in September 2016, the revised rule changed very little from the original, aside from moving the due date for submission to March 31, 2018.

However, on August 29, 2017, the OIRA stopped the new EEO-1 rule in its tracks, stating in a memorandum to the EEOC that among other things, it is “concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

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EEOC Issues Guidance on Mental Health Discrimination and Reasonable Accommodations

On December 12, 2016, the EEOC issued a resource document, titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights,” reminding employers of workplace rights for employees and applicants with mental health conditions and clarifying the protections afforded by the Americans with Disabilities Act (“ADA”).

Employers should carefully review the resource document given the rise of discrimination complaints based on mental health conditions.  During fiscal year 2016 alone, the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions.  The EEOC has taken a hard stance on employers’ duties to provide reasonable accommodations for employees with mental health conditions, especially in light of the number of veterans who have returned home with service-connected mental health issues, such as depression and post-traumatic stress disorder.

Mental Health Conditions and the Americans with Disabilities Act

Under the ADA, job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their mental health condition, and may have a right to a reasonable accommodation at work.  Many employers are aware of different types of accommodations for people with physical and communication disabilities, but are generally less familiar with accommodations for individuals with disabilities that are not visible, such as mental health conditions.

Over the last few years, increasing numbers of employers have expressed a desire and need for information and ideas on accommodations for individuals with psychiatric disabilities.  The resource document, although framed for employees or applicants seeking assistance, describes some types of the available accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.

Under the ADA and other laws, including the Family Medical Leave Act (“FMLA”), it is illegal to discriminate against an employee or applicant because he or she has a mental health condition.  This includes firing an employee, rejecting an employee for a job or promotion, and forcing an employee to take leave because of his or her mental impairment, which includes “[a]ny mental or psychological disorder, such as . . . emotional or mental illness.”  Some examples of “mental or psychological disorders” include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.

Reasonable Accommodation

Title I of the ADA requires a private employer with 15 or more employees to provide a reasonable accommodation qualified individuals who are employees or applicants for employment, unless to do so would cause undue hardship.  Reasonable accommodations are adjustments to a work setting that make it possible for qualified employees with disabilities to perform the essential functions of their jobs.

To be eligible for a reasonable accommodation for any mental health condition, an individual must demonstrate that his or her mental health condition would, if left untreated, “substantially limit” his or her ability to concentrate, interact with others, communicate, eat, sleep, care for them self, regulate his or her thoughts or emotions, or do any other “major life activity.”  The EEOC highlighted that the fleeting nature of the presence or severity of a mental health condition symptoms is irrelevant to evaluating whether a mental health condition is substantially limiting.  What matters is how limiting the symptoms are when they are present.  Although the resource document provides a few mental health conditions that it believes should easily qualify as substantially limiting, including major depression, post-traumatic stress disorder, bipolar disorder, schizophrenia, and obsessive compulsive disorder.

If an individual eligible for a reasonable accommodation, the ADA requires employers to engage in an interactive process to determine what, if any, reasonable accommodation can be made by analyzing the purpose and essential functions of the job, and working with an individual to identify what barriers exist to that individual’s performance of a particular job.  After engaging in the interactive process, employers can evaluate the effectiveness of each accommodation and the preference of the individual to be accommodated, and then determine whether the various accommodations would pose an undue hardship upon the employer.  The resource document provides a non-exhaustive list of potential reasonable accommodations for employees or applicants with a mental health condition, including altered break and work schedules; quiet office space or devices that create a quiet work environment; changes in supervisor methods; specific shift assignments; and permission to work from home.  The Department of Labor Office of Disability Employment Policy has also issued detailed guidance with further information on reasonable accommodations that have helped employees and applicants with mental conditions.

While employers must engage in the interactive process to find a reasonable accommodation for an individual, the guidance document recognizes an employer does not have to hire or keep people in jobs that they cannot perform, or employ people who pose a “direct threat” to safety – (i.e. a significant risk of substantial harm to self or others).  However, an employer cannot rely on myths or stereotypes about a person’s mental health condition when deciding whether an individual can perform a job or poses a significant safety risk.  There must be objective evidence that an individual cannot perform the essential job duties, or that he or she would create significant safety risk, even with a reasonable accommodation.

Employee Privacy Rights

The resource document also addresses privacy rights, noting that an individual may keep his or her condition private in most situations.  However, an employer is allowed to ask certain medical questions, including questions about mental health, in four situations:

  1. When an employee asks for a reasonable accommodation;
  1. After an employer has made an applicant a job offer, but before employment begins, so long as everyone entering the same job category is asked the same question;
  1. For affirmative action for people with disabilities (such as an employer tracking the disability status of its applicant pool in order to assess its recruitment and hiring efforts, or a public sector employer considering whether special hiring rules may apply), in which case the individual may choose not to respond; and
  1. On the job, when there is objective evidence that an employee may be unable to do the job or that the individual poses a safety risk because of his or her condition.

Other laws may also require an employee to discuss his or her condition to establish eligibility for benefits under those laws, such as the FMLA.  However, an employee does not necessarily have to disclose his or her specific diagnosis.  Even if an individual is required to disclose his or her medical condition under one of the situations above, it may be enough to describe the condition generally (e.g., anxiety disorder) and, if requested, submit documentation from a medical provider to that effect.

Conclusion

Given the increasing focus on mental health conditions in the workplace, employers should be up to speed of the ADA’s requirements.  If an employer knows that an employee has a mental health condition, the employer’s knowledge and observation of an employee’s symptoms could trigger the employer’s duty to provide an accommodation or determine whether a reasonable accommodation exists.  Employers can address this issue within their employee handbooks by establishing policies that advise employees of their rights with respect to mental health conditions impacting their work performance and to have an open dialogue, specifically, and encourage employees to notify their employers if they believe they have a mental health issue.