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The Equal Employment Opportunity Commission (“EEOC”) recently implemented nationwide procedures for the release of employer positionConfidential-shutterstock_41997904 statements to Charging Parties upon request.  The new procedures raise concerns about disclosure by the EEOC of non-public personnel and commercial or financial information the employer may disclose to support its position with regard to the Charge.

Before releasing the supporting documents to the Charging Party, the EEOC will review the employer’s submissions and withhold only information the Commission decides should be considered confidential.  The type of information considered confidential by the EEOC includes:

  • Sensitive medical information (except for the Charging Party’s medical information)
  • Social Security Numbers
  • Confidential commercial or confidential financial information
  • Trade secrets
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, e.g., dates of birth in non-age cases, residential addresses, personal telephone numbers, personal email addresses, etc.
  • References to Charges filed with the EEOC by other Charging Parties

The EEOC has stated  that it will not accept an employer’s blanket or unsupported assertions of confidentiality.  If employers present confidential information with their position statements, the EEOC instructs that the information should be segregated from the position statement in separate attachments and bear one of the following designations to signify that the attachment contains information believed to be confidential and subject to protection from disclosure:

  • Sensitive Medical Information
  • Confidential Commercial Information
  • Confidential Financial Information
  • Trade Secret Information

The labels are intended to expedite the EEOC’s review of confidential information and consideration of the justification proffered to maintain confidentiality.  After its review, the EEOC has discretion to redact the information designated by the employer as confidential before releasing the position statement to the Charging Party.

Given the short amount of time often provided to respond to a Charge, and the type of information generally presented to support the position statement—e.g., employment information of non-parties and proprietary, competitive corporate information—employers should familiarize themselves with the EEOC’s new procedures for releasing employer position statements so that they are prepared to properly present and protect confidential information.

The top story on Employment Law This Week is the EEOC’s release of fiscal year 2015 enforcement data.

Retaliation claims were once again the number one type of charge filed, up 5% from last year for a total of 44.5% of all charges. Race claims were second, making up 34.7% of claims. 30.2% of charges alleged disability discrimination, up 6% from last year. Ronald M. Green from Epstein Becker Green (EBG) gives more detail on what’s behind the numbers.

View the episode below or read recent comments about the EEOC’s release, from David W. Garland of EBG.

The U.S. Equal Employment Opportunity Commission (“EEOC”) created the Action Council for Transformation to a Digital Charge System (“ACT Digital”) to enable the electronic submission of documents between the parties to a Charge of Discrimination and the EEOC.  Phase I of the system allows an employer against whom a Charge of employment discrimination has been filed to electronically interact with the EEOC through its online service for respondents, the EEOC Respondent Portal.  The pilot program for Phase I began in May 2015 in the Commission’s Charlotte and San Francisco field offices and rolled out to other offices, including Denver, Detroit, Indianapolis and Phoenix. It is expected that the Respondent Portal will be available in all EEOC field offices by October 1, 2015.

An employer named as a respondent in a Charge of Discrimination filed with the EEOC may receive a Notice of Charge of Discrimination by electronic mail, rather than a paper notice.  The electronic Notice of Charge will include an https://link, Charge number, and unique login information to allow the employer access to the Respondent Portal.  System access by a Charging Party is not currently available.

The Respondent Portal allows the employer to electronically:

  • View and download the Charge;
  • Review an invitation to mediate and respond to the Charge;
  • Submit a position statement to the EEOC; and
  • Provide/verify the employer’s contact information, including the designation of a legal representative.

Extensions of time may not be requested through the Portal.  If the employer has not logged onto the Respondent Portal within 10 days of the emailed Notice, the EEOC will attempt to re-serve the Notice of Charge.  The EEOC has published a User Guide for employers and guidance in the form of Frequently Asked Questions.

Employers may wish to notify their information technology services personnel about the electronic notification system to ensure emails ending with a “.gov” domain are not captured by spam filters.  Employers should also inform their human resources and management personnel about the system and instruct them to forward immediately to the appropriate individuals/department all communications, documents and notices received from the EEOC.

In the wake of several high-profile wins for the LGBT community, the U.S. Equal Employment Opportunity Commission (“EEOC”) added employment discrimination protection to the list.  On July 16, 2015, the EEOC ruled that discrimination against employees based on sexual orientation is prohibited by Title VII of the 1964 Civil Rights Act of 1964 (“Title VII”) as discrimination based on sex.

The EEOC held that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  The EEOC noted that sex-based considerations also encompassed gender-based considerations under Title VII. This ruling, if accepted by federal courts, would extend protection under Title VII to decisions made on the basis of sexual orientation. While only the Supreme Court can issue a final, definitive ruling on the interpretation of Title VII, EEOC decisions are given significant deference by federal courts.

Employers across the U.S. should anticipate that overt actions, practices, and harassment that could be construed as discriminatory on the basis of a worker’s sexual orientation will be challenged in federal court and subject employers to potential liability.

My colleague Nathaniel M. Glasser recently authored Epstein Becker Green’s Take 5 newsletter.   In this edition of Take 5, Nathaniel highlights five areas of enforcement that U.S. Equal Employment Opportunity Commission (“EEOC”) continues to tout publicly and aggressively pursue.

  1. Religious Discrimination and Accommodation—EEOC Is Victorious in New U.S. Supreme Court Ruling
  2. Transgender Protections Under Title VII—EEOC Relies on Expanded Sex Discrimination Theories
  3. Systemic Investigations and Litigation—EEOC Gives Priority to Enforcement Initiative
  4. Narrowing the “Gender Pay Gap”—EEOC Files Suits Under the Equal Pay Act
  5. Background Checks—EEOC Seeks to Eliminate Barriers to Recruitment and Hiring

Read the Full Take 5 here.

Since we last reported on the 2012 Equal Employment Opportunity Commission (“EEOC”) decision in Macy v. Holder,[1] the federal government has continued to extend protection under Title VII of the Civil Rights Act of 1964 (“Title VII”) to transgender employees.  In July 2014, President Obama issued Executive Order 13672, prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity.  Two months later, in September 2014, the EEOC filed its first-ever lawsuits alleging sex discrimination against transgender employees under Title VII.  Shortly thereafter, in December 2014, outgoing U.S. Attorney General Eric Holder released a memo announcing that the Department of Justice considers Title VII’s prohibition against sex discrimination to include discrimination based on gender identity, including transgender status.  Finally, earlier this year, on March 30, 2015, the Department of Justice filed its first lawsuit alleging an employer engaged in discrimination and retaliation against a transgender employee in violation of Title VII.

As a result, private employers may increasingly face lawsuits asserting gender identity discrimination claims and should revisit their policies– including employment, non-discrimination, and even dress code policies – to avoid the litigation of such claims.  Just last month, on April 1, 2015, Alexia (formerly “Anthony”) Daskalakis, a former employee of clothing retailer Forever 21, filed a complaint in the Eastern District of New York alleging discrimination, harassment, and retaliation on the basis of her gender, gender identity, gender expression and/or failure to conform to gender stereotypes.  Daskalakis, who was assigned male gender at birth, worked as a visual merchandiser at a Forever 21 store located in Brooklyn.  Daskalakis’s allegations arise from her manager’s conduct after she began transitioning to a woman.  The claims in Daskalakis v. Forever 21, Inc. are currently based on New York State and City non-discrimination laws, but the complaint indicates that plaintiff will file and/or seek leave to amend the complaint to include Title VII claims after receiving a Notice of Right to Sue from the EEOC.

In another recent EEOC decision, Lusardi v. McHugh, Appeal No. 0120133395, Agency No. ARREDSTON11SEP05574 (EEOC Apr. 1, 2015), the EEOC found that the Department of the Army subjected the complainant-employee to disparate treatment and a hostile work environment.  In holding that denying the employee equal access to the common women’s restroom constituted disparate treatment, the EEOC wrote: “The decision to restrict Complainant to a ‘single shot’ restroom isolated and segregated her from other persons of her gender” . . . and “perpetuated the sense that she was not worthy of equal treatment and respect.”  Appeal No. 0120133395 at 13.  Notably, the EEOC stated that co-workers’ confusion or anxiety regarding sharing a restroom with a transgender individual would not justify discriminatory terms and conditions of employment.   Appeal No. 0120133395 at 10-11.  The EEOC found that the Department of the Army had subjected the employee to a hostile work environment because a team leader referred to the employee by male names and pronouns and made hostile remarks after being aware that the employee identified as female.  Appeal No. 0120133395 at 17.

While the Lusardi decision has no precedential effect for private employers, it is predictive of a potential enforcement position in the event of a transgendered employee’s charge of discrimination against a private employer.  Notably, the EEOC did not declare that in all situations an employer should designate the gender-corresponding common restroom for the transgender employee’s use, but rather that the employer should develop individualized transition plans appropriate for the employee’s circumstances.  Appeal No. 0120133395 at 10.  Such a transition might even “include a limited period of time where the employee opts to use a private facility instead of a common one.”  Id.

To reduce the risk of litigating claims of gender identity discrimination and retaliation, it is important for employers to confer with counsel to ensure that all policies comply with the employer’s obligations to transgender employees under Title VII.

[1] Macy v. Holder, Appeal No. 0120120821, Agency No. ATF-2011-00751 (EEOC, Apr. 20, 2012).

To register for this complimentary webinar, please click here.

I’d like to recommend an upcoming complimentary webinar, “EEOC Wellness Regulations – What Do They Mean for Employer-Sponsored Programs? (April 22, 2015, 12:00 p.m. EDT) presented by my Epstein Becker Green colleagues Frank C. Morris, Jr. and Adam C. Solander.

Below is a description of the webinar:

On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) released its long-awaited proposed regulations governing employer-provided wellness programs under the American’s with Disabilities Act (“ADA”). Although the EEOC had not previously issued regulations governing wellness programs, the EEOC has filed a series of lawsuits against employers alleging that their wellness programs violated the ADA. Additionally, the EEOC has issued a number of public statements, which have concerned employers, indicating that the EEOC’s regulation of wellness programs would conflict with the regulations governing wellness programs under the Affordable Care Act (“ACA”) and jeopardize the programs currently offered to employees.

During this webinar, Epstein Becker Green attorneys will:

  • summarize the EEOC’s recently released proposed regulations
  • discuss where the EEOC’s proposed regulations are inconsistent with the rules currently in place under the ACA and the implications of the rules on wellness programs
  • examine the requests for comments issued by the EEOC and how its proposed regulations may change in the future
  • provide an analysis of what employers should still be concerned about and the implications of the proposed regulations on the EEOC’s lawsuits against employers

Who Should Attend:

  • Employers that offer, or are considering offering, wellness programs
  • Wellness providers, insurers, and administrators

To register for this complimentary webinar, please click here.

The federal Equal Employment Opportunity Commission (“EEOC” or “Agency”) has been spending a fair amount of time in recent months challenging the validity and legality of employers’ separation agreements. This is apparently part of the EEOC’s core priorities, including “targeting policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement efforts.” Retail employers have not been exempted from the agency’s scrutiny. A summary of recent lawsuits follows:

EEOC v. Baker & Taylor

In a complaint filed last year in Illinois, EEOC v. Baker & Taylor, Civil Action No. 13-3729 (N.D. Ill. 2013), the EEOC alleged that a company violated Title VII of the Civil Rights Act of 1964 (“Title VII”) by conditioning severance on employees signing agreements that provided, in part:

  • I further agree never to institute any complaint, proceeding, grievance, or action of any kind at law, in equity, or otherwise in any court of the United States or in any state, or in any administrative agency of the United States or any state, country, or municipality, or before any other tribunal, public or private, against the Company arising from or relating to my employment with or my termination of employment from the Company, the Severance Pay Plan, and/or any other occurrences up to and including the date of this Waiver and Release, other than for nonpayment of the above-described Severance Pay Plan (emphasis added).
  •  I agree that I will not make any disparaging remarks or take any other action that could reasonably be anticipated to damage the reputation and goodwill of Company or negatively reflect on Company. I will not discuss or comment upon the termination of my employment in any way that would reflect negatively on the Company. However, nothing in this Release will prevent me from truthfully responding to a subpoena or otherwise complying with a government investigation (emphasis added).

In its complaint, the EEOC asserted that the forgoing provisions interfered with the rights of employees.  The EEOC’s position on the illegality of such provisions is consistent with its “Enforcement Guidance on Non-Waivable Employee Rights Under EEOC-Enforced Statutes,” published in 1997 (the “Guidance”), which provides that “[a]n employer may not interfere with the protected right of an employee to file a charge, testify, assist, or participate in any manner in an investigation, hearing, or proceeding under [Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act (“ADEA”), or the Equal Pay Act].”  In the Guidance, the EEOC explained that its position is premised on the anti-retaliation provisions of the relevant statutes, as well as the concept that interference with such rights would be “contrary to public policy.” 

The Baker & Taylor case was resolved.  As part of the settlement, the employer agreed to revise its severance agreement to include a disclaimer that the agreement is not intended to limit an employee’s right or ability to file discrimination charges with the EEOC or its state and local counterparts as well as affirmative statements regarding these employee rights.  Foreshadowing its later efforts, the EEOC, in its press release announcing the Consent Decree that was part of the settlement, stated that “the issue raised by this case and its resolution relate to a legal right that is of critical importance to all employees: the right to file a charge of discrimination and communicate with the EEOC and local Fair Employment Practices Agencies.” 

EEOC v. CVS

More recently, in February 2014, the EEOC filed a complaint against CVS Pharmacy, Inc. (“CVS”), asserting violations of Title VII.  Specifically, the complaint alleged that CVS had unlawfully conditioned the receipt of severance pay on employees signing “overly broad, misleading and unenforceable Separation Agreements” in violation of Section 707(a) of Title VII, which provides that when the U.S. Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by Title VII, the Attorney General may bring a civil action seeking relief.  The Agency alleged that these separation agreements interfered with employees’ rights to file charges with the EEOC or state fair employment practices agencies (“FEPAs”) and to communicate voluntarily with and participate in proceedings with the EEOC or state FEPAs. 

The EEOC’s complaint highlighted the following allegedly improper separation agreement provisions:

  • Cooperation clause requiring the employee to “promptly notify the Company’s General Counsel by telephone and in writing” upon receiving a subpoena, deposition notice, interview request, or other inquiry regarding among other things an administrative investigation.
  • Non-Disparagement clause providing that the employee will not make statements that disparage the business or reputation of the company.
  • Non-Disclosure of Confidential Information provision by which the employee agrees not to disclose confidential information, including “information concerning the Corporation’s personnel, including the skills, abilities, and duties of the Corporation’s employees, wages and benefit structures, succession plans, information concerning affirmative action plans or planning….”
  • General Release of Claims which released, among other things, “charges” and included as released “any claim of unlawful discrimination of any kind.”
  • No Pending Actions; Covenant Not to Sue provision in which the employee agrees “not to initiate or file or cause to be initiated or file, any action, lawsuit, complaint or proceeding asserting any of the Released Claims against any of the Released Parties….”

In its complaint, the EEOC found that the following disclaimer was insufficient: “Nothing in this paragraph is intended to or shall interfere with employee’s right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this agreement prohibit employee from cooperating with any such agency in its investigations.” 

What is notable is that the disclaimer language used by CVS essentially tracked language suggested by the EEOC in the Guidance.  Similarly, a Consent Decree entered into by Kodak with the EEOC in EEOC v. Eastman Kodak Co., no. 06-cv-6489 (W.D.N.Y. 2006), included the following language:

Except as described below, you agree and covenant not to file any suit, charge or complaint against Releasees in any court or administrative agency, with regard to any claim, demand, liability or obligation arising out of your employment with Kodak or separation therefrom.  You further represent that no claims, complaints, charges, or other proceedings are pending in any court, administrative agency, commission or other forum relating directly or indirectly to your employment by Kodak.

Nothing in this Agreement shall be construed to prohibit you from filing a charge with or participating in any investigation or proceeding conducted by the EEOC or a comparable state or local agency.  Notwithstanding the foregoing, you agree to waive your right to recover monetary damages in any charge, complaint, or lawsuit filed by you or by anyone else on your behalf.

While the Kodak Consent Decree language had previously been acceptable to the EEOC and used by employers accordingly, the Agency apparently now wants more from employers. 

EEOC v. CollegeAmerica  

Most recently, on May 5, 2014, the EEOC filed a complaint asserting violations of the ADEA against CollegeAmerica Denver, Inc. (“CollegeAmerica”), in the U.S. District Court for the District of Colorado for conditioning an employee’s receipt of severance on an “overly broad, misleading, and unenforceable agreement.”  Among other things, the EEOC took issue with the separation agreement’s “Release of All Claims,” which released, among other things, claims for discrimination” as well as the agreement’s provisions regarding cooperation, non-disparagement, and compliance disclosures. Perhaps the CollegeAmerica case can be distinguished from other circumstances, since the EEOC took particular umbrage with the fact that CollegeAmerica affirmatively sued its former employee for violating the non-disparagement clause of its separation agreement and then sought discovery on the governmental agencies with which the former employee had communicated regarding CollegeAmerica. In addition, unlike most agreements typically now used by employers, the agreement also allegedly lacked a “carve out” for filing charges with or cooperating with the EEOC or state and local FEPAs.  

In light of the recent spate of EEOC separation agreement lawsuits, employers should strongly consider reviewing their form separation agreements. For some suggestions, please see our recent Act Now Advisory.

By Amy Messigian

After settling two religious discrimination suits with the Equal Employment Opportunity Commission (“EEOC”) last month, clothing retailer Abercrombie & Fitch scored a big win this week in another religious discrimination case before the Tenth Circuit Court of Appeal, which found that the EEOC did not prove its failure to accommodate claim for a Muslim job applicant denied hire by an Abercrombie store in Oklahoma because she wore a hijab (a religious headscarf), reversing a lower court.

Ordering judgment for Abercrombie, the Tenth Circuit found that the EEOC failed to show that the applicant neither informed Abercrombie of a conflict between her “inflexible religious belief” and a work rule nor requested an accommodation from compliance with the rule.  While the EEOC argued that Abercrombie was on constructive notice of a conflict between the applicant’s religious beliefs and the company’s “Look Policy,” which prohibits sales associates from wearing “caps,” the Tenth Circuit held that Title VII requires a showing that the applicant was the “source of the employer’s notice of a need for a religious accommodation.”  Because religion is “uniquely personal,” the court reasoned that only an employee or applicant will know whether the religious belief or practice is inflexible or whether he or she is observing the belief “for cultural or other reasons that are not grounded in that religion.”

This ruling comes on the heels of Abercrombie’s settlement last month of two separate religious discrimination cases brought by the EEOC on behalf of two Muslim teens for wearing hijabs.

In one matter, a district court found Abercrombie liable for religious discrimination when it fired a Muslim teenager from her “impact associate” (stockroom employee) position because she refused to remove her hijab, which Abercrombie claimed violated its “Look Policy.” Abercrombie asserted that it would harm the Abercrombie brand to allow a variance from the policy.  Observing that the job applicant had been interviewed and hired while wearing the hijab and had worked without incident for four months, the court dismissed Abercrombie’s argument.

In the other matter, a separate district court rejected Abercrombie’s defense of undue hardship on summary judgment.  There, it was alleged that a Muslim job applicant informed Abercrombie during her interview that she wore a headscarf for religious reasons.  She was later denied the job on the basis that Abercrombie claimed to be unable to accommodate her religious dress.  The retailer asserted that it could not accommodate the request to wear a hijab because of the impact of such an accommodation on store performance.

As part of the settlement between Abercrombie and the EEOC, Abercrombie has agreed to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations may be available, and provide manager training on religious dress.

Given the aggressive stance that the EEOC has taken of late in prosecuting religious dress accommodations cases, it would seem likely that the EEOC will appeal the Tenth Circuit decision.  In the meantime, retailers would be cautioned against excluding a religious job applicant from employment on the basis of a dress code policy simply because the applicant does not affirmatively request an accommodation.