EEOC Releases New Strategic Enforcement Plan

The Equal Employment Opportunity Commission (EEOC) has announced a new Strategic Plan for 2018 – 2022. The EEOC approved the new plan unanimously and began implementing it last month.

As explained by the EEOC in its announcement, the Strategic Plan serves as a framework for the Commission to achieve its mission through “strategic application of the EEOC’s law enforcement authorities, preventing employment discrimination and promoting inclusive workplaces through education and outreach, and organizational excellence.” For each of these three objectives, the EEOC has identified specific outcome goals as well as performance measures to track the Commission’s progress toward those goals.

The new Strategic Plan continues many of the same priorities found in the EEOC’s previous plan. For example, the plan continues to prioritize systemic investigations and lawsuits, which the Commission believes have greater strategic impact due to their wide influence on industries, occupation, and geographic areas. According to the EEOC, though, the new Strategic Plan sharpens the agency’s focus and updates emerging issues of concern. The Strategic Plan’s performance measures contain perhaps the best evidence of this updated focus, which include greater emphasis on obtaining targeted, equitable relief when resolving charges, and ensuring that charge investigations and conciliations meet certain quality criteria.

Although the EEOC has already begun implementation of the new Strategic Plan, it is not doing so at full capacity: the five-member Commission still has two vacancies, and it is not clear when (or if) President Trump’s nominees for those vacancies will be confirmed.

Another Federal Appeals Court Finds Title VII Prohibits Sexual Orientation Discrimination

Following the Seventh Circuit’s landmark decision last April in Hively v. Ivy Tech Community College, the Second Circuit Court of Appeals has joined in finding that Title VII prohibits discrimination on the basis of sexual orientation. In Zarda v. Altitude Express, decided on February 26, 2018, the Second Circuit concluded that Title VII’s ban on sex discrimination “applies to any practice in which sex is a motivating factor.” Because sex is necessarily a factor in sexual orientation, discrimination based on sexual orientation amounts to banned sex discrimination, reasoned the Second Circuit.

The outcome in Zarda is significant because, unlike many state laws that explicitly prohibit sexual orientation discrimination, Title VII has long been interpreted by federal courts as not reaching such discrimination. The Second Circuit’s decision therefore signals a seismic shift in this long-standing consensus and will likely cause other circuits to reexamine their precedent in light of Title VII’s “evolving” legal framework. Although the Eleventh Circuit hewed close to its precedent in a decision issued shortly before Hively and declined to extend the reach of Title VII to sexual orientation discrimination, the Second Circuit’s decision suggests that the Equal Employment Opportunity Commission’s (EEOC) position on sexual orientation discrimination, which the agency has advanced for several years now, may be gathering steam. For example, in a recent decision from the First Circuit, Franchina v. City of Providence, the court noted that the continuing validity of its “nearly twenty-year-old” precedent on Title VII and sexual orientation discrimination was not at issue in the case, but it also observed (citing Hively) that “the tide may be turning when it comes to Title VII’s protections.” How high the tide goes, and whether it will reach the doors of the Supreme Court, remains to be seen.

Developments in Title VII and Sexual Orientation Discrimination

Many state anti-discrimination laws, such as those in Maine, Massachusetts and New Hampshire, specifically prohibit employers from discriminating against individuals on the basis of sexual orientation. To the surprise of many employers, this explicit prohibition is absent under federal law. However, recent activity in the federal courts may be changing that.

For a number of years now, the EEOC has taken the position that Title VII of the Civil Rights Act prohibits sexual orientation discrimination because it is discrimination based on “sex.” The EEOC even has a webpage summarizing the published decisions where it has taken this position in enforcement actions, including its decision in Baldwin v. Department of Transportation (July 15, 2015) where it concluded that an allegation of sexual orientation discrimination necessarily states a claim for discrimination on the basis of sex. The EEOC’s position has generally been at odds with decisions from federal courts, including the First Circuit Court of Appeals, which held in Higgins v. New Balance Athletic Shoe, Inc. (1st Cir. 1999) that sexual orientation is not a protected class under Title VII.

Now, it appears that the EEOC’s position may be gaining traction in the federal courts. For example, in October 2016, the Seventh Circuit Court of Appeals announced that its entire panel of judges would rehear arguments in a case decided earlier in the summer, in which a three-member panel held that sexual orientation was not a protected class under Title VII. Oral argument in that case, Hively v. Ivy Tech Community College, was held in November 2016. More recently, in January 2017, the Second Circuit Court of Appeals heard oral argument in Christiansen v. Omnicom Group, Inc., where questions from the Court suggested that it might be willing to reconsider whether Title VII’s prohibitions encompassed discrimination based on sexual orientation. These two appellate court developments followed activity at the district court level, where courts in Pennsylvania (EEOC v. Scott Medical Health Center, P.C. (November 2016)) and Nevada (Roberts v. Clark County School District (October 2016)) extended Title VII’s protection to discrimination based on sexual orientation and gender identity.

Obviously, the outcome of these cases remains to be seen, and it is unclear how the new Trump administration will affect the EEOC’s activities. Employers will therefore want to stay tuned in 2017 for new developments in this area of discrimination law.

Supreme Court Begins New Term with Few Employment Cases

The Supreme Court of the United States will begin its new term on October 3rd with a quiet slate of cases for employers. Among the few employment-related cases set for review include one involving whether the acting general counsel of the NLRB was validly appointed by President Obama under a federal vacancy statute (NLRB v. SW General, Inc.) and another involving the judicial standard of review for enforcing EEOC investigative subpoenas (McLane v. EEOC). Although these cases are not likely to set employers’ hearts afire, it is possible that the Court will add to its docket as it considers other pending petitions for review.

In terms of its composition, the Supreme Court will begin its new term as it ended its last one: with a vacancy. Although President Obama nominated Judge Merrick Garland from the D.C. Circuit Court of Appeals last March to replace Justice Scalia, the Senate has not acted on the nomination. As a result, the eight-member Court continues to risk deadlocking in some cases, as it did last term when considering the constitutionality of compulsory union dues in Friedrichs v. California Teachers Association. In that case – just as it does whenever it deadlocks – the Court affirmed the judgment below, which had held that mandatory “fair share” fees did not violate public employees’ First Amendment rights.

Whether the Court’s composition has played a role in its selection of cases this term is an open question. In this election year, it is also a question that is likely to persist until after November.

EEOC Issues New Enforcement Guidance on Retaliation

Earlier this week, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues.  The new guidance is the first update to the EEOC’s compliance guide on retaliation since 1998, and it marks the end of the process that began in January 2016 when the EEOC first proposed the new guidance.  The new guidance covers retaliation under each law enforced by the EEOC, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, and the Equal Pay Act.

The final guidance reflects the growing trend in retaliation claims – indeed, according to the EEOC, retaliation is the most frequently alleged basis of discrimination and is asserted in nearly 45% of all charges received by the agency.  The new guidance is not likely to slow this trend.  This is because it takes a broader view – and therefore a more employee-friendly view – on each of the three elements that an employee must prove to prevail on a retaliation claim: (1) protected activity; (2) an adverse action by the employer; and (3) a causal connection between the protected activity and the adverse action.

For example, with respect to “protected activity,” the EEOC notes that this can include either “participating” in a complaint process under one of the laws enforced by the EEOC (such as by filing a complaint or serving as a witness), or reasonably “opposing” discrimination made unlawful by one of the laws (such as by complaining about allegedly discriminatory conduct or otherwise communicating a reasonable belief of a perceived violation).  The guidance, however, further clarifies that although protection for “opposition” is limited to those individuals who act with a reasonable belief that the alleged conduct is unlawful, “participation” in an EEO process – including the filing of an internal complaint – is protected regardless of whether the underlying allegation is based on a reasonable belief that discrimination has occurred or is likely to occur.  The EEOC does point out in the guidance that its interpretation does not give employees free rein to file baseless complaints without consequence, but it also cautions that employers who dole out those consequences unilaterally, rather than bringing evidence of bad faith to light in the context of the EEO process, will face greater scrutiny.

The guidance also sets a low bar for what can constitute a materially adverse action.  According to the guidance, a materially adverse action is any action that would reasonably be likely to deter protected activity, which includes not just obvious work-related employment actions like discharge, suspension, refusal to promote or hire, or work-related threats, warnings, and reprimands, but also actions that have no tangible effect on employment or that take place entirely outside of work.  This would include, for example, threatening reassignment, scrutinizing work or attendance more closely than for other employees, or making disparaging remarks about the person to others or the media.

The EEOC guidance offers some “promising practices” for employers to use to reduce the likelihood of a retaliation claim. Chief among those is a clearly written anti-retaliation policy that provides specific examples of what actions may constitute retaliation, as well as a clear explanation that retaliation can be subject to discipline, including termination. Clearly, though, none of these practices will insulate an employer from liability or the obligation to analyze potential retaliation issues on a case-by-case basis.

Supreme Court Will Hear Three Employment Discrimination Cases

The United States Supreme Court held its traditional first of October meeting to determine which cases it will hear during the 2014-15 term.  The Court has accepted three employment discrimination cases.

Young v. United Parcel Service.  The question is whether the employer has to accommodate pregnant employees who are unable to handle some of the physical requirements of the job, i.e. UPS employees who have to carry heavy boxes.  The UPS employee has appealed to the Supreme Court claiming that her needs while pregnant were not accommodated by UPS’s “pregnancy-blind policy”; the policy limited accommodations to employees who were injured on the job, who were defined as “disabled” and who had lost their DOT certification.

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.  “Did Abercrombie and Fitch discriminate against a Muslim job applicant when she was rejected based on her desire to wear a head scarf at work?”  The significant question is whether the employer has to have “actual knowledge” that a practice is religious before it is required to accommodate the practice in the workplace.  Abercrombie claims that the job applicant did not explicitly indicate that her scarf had religious meaning.

Mach Mining, LLC v. EEOC.  This case involves the extent to which courts may enforce the EEOC’s duty to conciliate cases pre-litigation.  Mach moved for summary judgment alleging the EEOC had failed to fulfill its statutory duty to conciliate the case in good faith.  There is a split among the Appellate Circuits as to whether or not the EEOC’s duty to conciliate is reviewable by a court.

Inflexible Leave Policies and the EEOC

The last several years have seen the Equal Employment Opportunity Commission (“EEOC”) take an aggressive stance on inflexible leave policies.  According to the EEOC, these policies – which subject employees to termination after a maximum period of leave – are unlawful because they do not consider whether an additional period of leave might be a reasonable accommodation for individuals with a disability.  The EEOC has achieved considerable success pursuing class-action lawsuits against companies that maintain fixed leave policies, including lawsuits against Supervalu, Inc. and Sears, Roebuck & Co. that settled to the tune of $3.2 million and $6.2 million, respectively.
 
In May, however, the EEOC’s smooth sailing hit some headwinds when the Tenth Circuit Court of Appeals issued its decision in Hwang v. Kansas State University finding that a state university lawfully terminated a professor after she had exhausted her leave under a six-month maximum leave policy.  Although the court readily acknowledged that the professor was a capable teacher, it noted that the professor, by her own admission, had been unable to perform any duties of her position for six months.  Given the length of the absence, the court found it difficult to conceive how an absence so long “could be consistent with discharging the essential functions of most any job in the national economy today.”  And, even if it were, the court concluded that it was still “difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.”

In reaching its conclusion, the court briefly addressed the EEOC’s guidance that employers must modify a “no-fault” leave policy if an employee with a disability needs additional unpaid leave as a reasonable accommodation.  According to the court, the EEOC’s guidance did not address the preliminary question it was trying to tackle, which was:  when is a modification to an inflexible leave policy a reasonable accommodation?  Without giving a definitive answer to that question, the court found that, in this particular case, granting an additional period of unpaid leave beyond six months was simply not reasonable.

Although the Hwang decision has the potential to turn the tide on the EEOC, the agency has not sent out any signals that it sees muddy waters ahead.  Just one month after Hwang, the EEOC announced that it had reached another settlement with Princeton HealthCare Systems for $1.35 million, resolving claims concerning PHCS’s 12-week leave policy.  In its press release, the EEOC noted that “addressing emerging and developing issues under the ADA is one of six national priorities” identified in its Strategic Enforcement Plan.  Whether the EEOC chooses to clarify its position through additional guidance, or through further litigation, remains to be seen.