The EEOC has released a new version of its prior “EEO is the Law” poster, now called a “Know Your Rights” poster. The new poster is available here. The EEOC encourages employers to substitute it for the current poster as soon as possible. The EEOC has not yet set a deadline for when it must be substituted. For additional information about the changes in the new poster, the EEOC summarized its intended changes in its press release regarding the new poster.
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In EEOC v. Wal-Mart Stores East, L.P., the Seventh Circuit held that an employer need not offer light duty to pregnant workers, even though it offers the same to employees who are on workers compensation, so long as the company does not also offer light duty to those who are ill or injured off-the-job. In so doing, the Seventh Circuit looked to the Supreme Court’s 2015 decision in Young v. UPS, that held, without further explanation, that pregnant workers must be offered light duty if it is offered to other employees with similar restrictions. The Seventh Circuit distinguished a 2016 Second Circuit case, Legg v. Ulster County, that had required light duty for pregnant workers even though it was otherwise reserved for workers comp cases, because, there, the Seventh Circuit held the employer had offered “confused and inconsistent rationales” for its decision to reserve light duty for workers comp cases. The Seventh Circuit didn’t explain why that employer’s rationales were “confused and inconsistent,” whereas, this employer’s were clear and persuasive, except to note that this employer explained that reserving light duty for workers compensation cases helped it to reduce “costs” and “legal exposure,” given the state of Wisconsin’s statutory schemes governing workers compensation claims and the incentives provided therein for light duty.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2022-08-16 15:44:012022-08-16 15:49:35Seventh Circuit Affirms Employer’s Right To Provide Workers Comp Light Duty But Refuse To Provide Light Duty To Pregnant Workers
Following up on its recent informal email announcement, the CDLE has revised its Interpretive Notice and Formal Opinion (INFO) no. 9 interpreting Colorado’s Equal Pay for Equal Work Act’s posting requirements. Because the CDLE does not go through formal rulemaking when it issues INFOs, they do not carry the weight of law; however, they the CDLE’s opinion of how the law should be interpreted and reflect how the CDLE intends to interpret the law when called upon to apply it.
In these revisions, the CDLE confirmed its prior statement that covered employers may not evade the law by simply posting disclaimers in a job posting to the effect that Coloradans are ineligible. The CDLE confirmed here its position that these posting requirements do generally apply whenever Coloradans can access a posting, the work can be performed in Colorado (even if remotely into another state) and certainly when it can only be performed in Colorado. Key new language has been included in the following passages from INFO no. 9:
Covered job postings include any posting by a covered employer for either (1) work tied to Colorado locations or (2) remote work performable anywhere, but not (3) work performable only at non-Colorado worksites — as discussed below, under the header, “Out-of-State Jobs Are Excluded.”
Out-of-State Jobs Are Excluded. Employers need not disclose compensation for jobs to be performed entirely outside Colorado (which includes non-Colorado jobs that may include modest travel to Colorado), even if the job posting is in, or reaches, Colorado. Because the text of the Act excludes no jobs, the out-of-state exception is a merely implied one that must be applied narrowly, only where an out-of-state worksite makes Colorado law arguably inapplicable. The out-of-state exception therefore applies to only jobs tied to non-Colorado worksites (e.g. waitstaff at restaurant locations in other states), but not to remote work performable in Colorado or elsewhere. Thus, a remote job posting, even if it states that the employer will not accept Colorado applicants, remains covered by the Act’s transparency requirements: the Act expressly covers all jobs, so a Colorado-covered employer’s posting of work performable anywhere is not within the narrow implied exception for out-of-state worksites to which Colorado law is arguably inapplicable.
Out-of-State Postings Are Excluded. Employers need not disclose compensation in job postings made entirely outside Colorado. For example, compensation and benefits need not be included in a printed advertisement or posting entirely in another state, but must be included in an online posting accessible by Colorado residents.
The CDLE added language confirming this is true for promotional opportunities as well:
As with job postings generally — see the above section, “Out-of-State Jobs Are Excluded,” as to the scope of the out-of-state exemption applicable here as well — remote jobs do not qualify for this exclusion; promotional opportunity notices for such jobs must include compensation and benefits.
Regarding promotional opportunities, INFO no. 9 continues to require that, if not actually provided to employees, the posting — such as on an intranet site — “must be posted for long enough that employees can reasonably access it.” The CDLE does not give further guidance on how long that would be.
Unfortunately some of the new language is likely to increase not decrease confusion about this new law. Consider for example this sentence (emphasis added), which apparently was meant to confirm that a simple Help Wanted sign is not a “posting” and need not contain information about compensation, benefits, etc.
A “posting” is any written or printed communication (whether electronic or hard copy) that the employer has a specific job or jobs available or is accepting job applications for a particular position or positions, but not a “Help Wanted” sign or similar communication indicating only generally, without reference to any particular positions, that an employer is accepting applications or hiring.
Did the EEOC really intend to require that a small family-owned restaurant who hangs a “Cooks Wanted” sign in the window has to print the salary range, benefits, etc., on the sign? Consider a sign at a larger company saying “Drivers Wanted”; how could such a sign even contain all the information that is encompassed in a driver’s position?
Missed my recent webinar on vaccines in the workplace? Email me or send me a message through this website if interested in the complimentary on-demand presentation. In the meantime, check out this article on Law 360 (no subscription required). Interesting topics include a look at some of these new lawsuits, the need to provide certain accommodations, the importance of considering state laws, and the confusion caused by current vaccines EUA status.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-07-18 03:40:002021-07-18 03:40:00Vaccine lawsuits rising
Delayed in 2020 so that HR professionals would not have to go into their workplaces during the start of the pandemic, the EEOC has now opened its portal for filing EEO-1 Component 1 data. The deadline for filing Component 1 data is July 19, 2021. The EEOC announced the opening of its portal, as follows:
Update: 2019 and 2020 EEO-1 Component 1 Data Collection is NOW OPEN
After delaying the opening of the 2019 EEO-1 Component 1 data collection because of the COVID-19 public health emergency, the EEOC has announced that the 2019 and 2020 EEO-1 Component 1 data collection is NOW OPEN. Eligible employers have until Monday, July 19, 2021 to submit two years of data.
Filers should visit the newly launched EEO-1 Component 1 website at https://EEOCdata.org/eeo1 for the latest filing updates and additional information. By visiting the Filer Support Center located at https://EEOCdata.org/eeo1/support, filers can request assistance as well as find helpful resources, including fact sheets and FAQs.
Employers are reminded that Component 1 data is the demographic data that employers have been used to filing with breakdowns by various protected classes. In contrast Component 2 data was the paydata previously and controversially under consideration.
Generally, it is larger employers and government contractors who are required to file, as the EEOC explains here:
The following companies are required to file the EEO-1 Component 1 Report annually:
Private employers who are subject to Title VII of the Civil Rights Act with 100 or more employees.
Private employers subject to Title VII affiliated through common ownership and/or centralized management with other entities in an enterprise with a total employment of 100 or more.
Federal government prime contractors or first-tier subcontractors subject to Executive Order 11246, as amended who are not exempt as provided for by 41 CFR 60-1.5, with both 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more.
Employers that serve as a depository of Government funds in any amount or as a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Savings Notes and have 50 or more employees.
Only those establishments located in the District of Columbia and the 50 states are required to submit an EEO-1 Component 1 Report. No reports should be filed for establishments in Puerto Rico, the Virgin Islands, or other American Protectorates.
State and local governments, public primary and secondary school systems, institutions of higher education, American Indian or Alaska Native tribes and tax-exempt private membership clubs other than labor organizations are also exempt from the EEO-1 Component 1 Report. However, non-profits and not for profit organizations are required to file the EEO-1 Component 1 Report.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2021-04-28 15:30:532021-04-28 15:30:53EEOC opens portal for filing EEO-1 Component 1 data
The Americans with Disabilities Act recognizes several types of claims that a disabled worker might file against their employer. Typically statutory employment claims include a requirement that the plaintiff prove an adverse employment action, meaning that they suffered harm to their employment, such as being discharged, promoted or other material impact on the significant terms and conditions of employment. The adverse employment action element poses a threshold against de minimis claims.
The Tenth Circuit held that a disabled plaintiff who asserts their employer failed to provide a reasonable accommodation need not prove an adverse employment action. In the case before it, the jury found that, even if the employer may have failed to reasonably accommodate the plaintiff’s disability, it did not result in her discharge, demotion or other harm to the terms and conditions of her employment. Initially a panel of the Tenth Circuit affirmed, but, re-hearing the case en banc, the Tenth Circuit held, over a strong and sizable dissent, that no adverse employment action need be proven because a failure-to-accommodate is itself actionable.
Source: Exby-Stolley v. Weld County, No. 16-1412, — P.3d —, 2020 BL 417137 (10th Cir. 10/28/20)
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-11-18 03:26:022020-11-11 15:45:31Tenth Circuit holds no adverse employment action is required in a failure-to-accommodate case
On 9/22/2020 President Trump issued Executive Order 13950, which appears to prohibit government contractors who are subject to Executive Order 11246 (OFCCP jurisdiction) from undertaking EEO training that, merely reading the order on its face, might possibly even implicit bias trainings. In today’s Federal Register, 85 FR 67375, the OFCCP initiated rulemaking under the new Executive Order by soliciting “comments, information, and material” re such trainings.
In a widely reported and documented speech, U.S. Secretary of Labor Eugene Scalia confirmed that Executive Order 13950 does not prohibit common EEO trainings, even those that include training on implicit bias.
I should be clear about what the President’s new Order does not do. It does not prohibit workplace training about non-discrimination and equal opportunity—that training is important, the Labor Department encourages it, and in some instances we require it. Nor does the Order prohibit the diversity training offered by countless American employers; training that, like my remarks today, emphasizes the importance of recognizing the value and worth of people of all races and creeds. American employers should value diversity and take extra strides to assure opportunity for those who in the past have been denied it—although they must do so in a way that does not discriminate against others based on race, ethnicity, or other protected characteristics. Finally, the President’s Order does not prohibit trainings about pre-conceptions or biases that people may have—regardless of their race or sex—about people who are different, and which could cause slights or even discrimination that’s not intended. What the Order does prohibit, though, is instruction in which federal contractors tell workers that because of their particular race or sex, they are racist, morally culpable, or less worthy of being heard.
Rather, he announced, and the OFCCP’s regulatory publication today confirms, that Executive Order 13950 is getting at something it calls “race or sex scapegoating.” It is not clear what this term means since, as today’s regulatory publication confirms it has long already been prohibited as a subset (just one kind, or one example, of) what was already prohibited: “race or sex stereotyping.” The OFCCP explains this in today’s rulemaking publication, as follows:
As used in this request for information, “race or sex stereotyping” means “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.”  “Race or sex scapegoating” means “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex,” and includes claims “that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”
In short, Executive Order 13950 apparently does not prohibit the common kinds of EEO training, including on implicit bias, that companies currently use to combat race and sex discrimination, including unlawful harassment. It does apparently prohibit training that accuses the members of a particular gender or race of being “inherently inclined to oppress others.”
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-10-22 15:21:372020-10-22 15:21:43OFCCP clarifies and requests comments on Executive Order 13950 re EEO training by government contractors
The EEOC has formally acknowledged its own limitations on its authority to bring a “pattern or practice” lawsuit against an employer. When the EEOC brings such a lawsuit, it is not acting in a representative capacity on behalf of any particular employees (as it does in a so-called sec. 706 claim, citing Title VII’s relevant section), rather it is suing (under sec. 707) as the government itself asserting the employer has a pattern-or-practice of discrimination, which according to the Supreme Court requires it, in short, to prove that the employer’s “standard operating procedure” is to discriminate, quoting Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977). Previously the EEOC has argued that, when it sues under sec. 707 it does not have to comply with a number of pre-lawsuit requirements. In a recent opinion letter, the EEOC reversed course on that argument and acknowledged that, no, it must comply with those pre-lawsuit requirements.
This opens a number of possible defenses by employers faced with pattern-or-practice lawsuits, including arguments that the EEOC failed to satisfy pre-lawsuit requirements such as the following:
The requirement for an actual charge to have been filed first.
The requirement for an investigation of that charge.
The requirement for good faith conciliation efforts by the EEOC prior to filing its lawsuit.
This also permits employers to assert that
They acted in good faith, and/or
They modified or rescinded the pattern-or-practice.
Arguably the latter gives employers the ability now to moot any pattern-or-practice lawsuit by the EEOC by modifying or rescinding the practice, even after the EEOC has filed its lawsuit.
In its opinion letter, the EEOC also took the position that it can no longer use the pattern-or-practice process to challenge employer actions that are not themselves discriminatory. Specifically this seems to be a concession on its part that, contrary to its litigation efforts to-date, it does not actually have the authority to challenge mandatory pre-dispute arbitration agreements, even if they ultimately had the effect of limiting a worker’s ability to participate in governmental investigations.
Because the EEOC’s opinion letter was not issued through the formal rule-making process, future EEOC Commissioners could re-reverse course. However, this opinion letters is publicly available and at least establishes a dispute over the EEOC’s jurisdiction in pattern-or-practice cases, which, if re-reversed by an EEOC under the leadership of a Democratic President, could be seen by the courts as arguably at least in part political in nature and therefore deserving of Congressional clarification.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2020-09-04 12:52:452020-09-04 12:52:51The EEOC has limited its own authority to file “pattern or practice” lawsuits
The EEOC has increased the mediation and conciliation opportunities available to employers as part of its charge-handling procedures.
Mediation is the process employers are most familiar with. Some, but not all, charges are automatically eligible for mediation when a charge is filed with the EEOC. Employers will have noticed receiving a written offer to mediate (instead of investigating) with most charges. Although the EEOC hasn’t yet disclosed details, the EEOC has announced it will increase the types of charges automatically eligible for mediation. Employers are reminded that, when they receive notice of a charge without an offer to mediate, it is often an indication that the EEOC believes the charge raises possibly very severe allegations. Employers are always free to request mediation of such charges too, though the EEOC reserves the right to decline to undertake mediation in lieu of investigation.
Conciliation is less common. The EEOC is generally required to undertake conciliation before, itself, filing suit against employers in court. As part of its new initiative, and again without yet disclosing details, the EEOC has announced it will expand its conciliation efforts, including by requiring management within the EEOC to review settlement demands before they are even communicated to employers.
Employers facing charges of discrimination, or even possible litigation by the EEOC, should consider the availability of mediation and conciliation, especially under these expanded opportunities.
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The Supreme Court held that LGBTQ status is already protected within Title VII’s meaning of the word “sex.”
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
In authoring the majority opinion, Justice Gorsuch observed that the word “sex” would likely not have been read that way by the drafters of Title VII in 1964, but the majority held that the term is unambiguous as drafted; according to well-established precedent, resort to legislative history is not permitted when a statutory text is unambiguous.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
The majority confirmed that, while Title VII’s “sex” protections directly protect such traits/classes, plaintiffs may also assert sex-stereotyping claims related to such traits/classes, just as plaintiffs can assert sex-stereotyping claims based on male-female cys-gendered status.
To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a different matter.
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As the new year begins, employers should consider reviewing their training regimen. A number of jurisdictions require sexual harassment and/or EEO-related training, including California, Connecticut, Delaware, Maine, New York State, and New York City. Even more encourage employers to provide training, and in all 50 states and the federal judicial system, training is a vital component of a possible defense in the event of litigation.
Employers are reminded not to simply engineer their own training programs, as some jurisdictions, such as California, specify minimum content and training qualifications.
Likewise, employers should not assume that recent training will suffice. For example, in 2018 California, which has confirmed it requires such training for both non-supervisors and supervisors, amended its 2004 sexual harassment training law, to require training, at least every two years, to all new and current employees, starting in 2019, even if the employee was also trained on sexual harassment in 2018.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2019-01-22 09:40:342019-01-22 09:42:11Reminder to provide compliant sexual harassment and other EEO-related training