Download Report

Sex Discrimination: What it
Looks Like in 2015
2015 Employment Law Conference – Session 1
Prepared by:
Susan M. Steward
Cerritos • Fresno • Irvine • Pasadena • Pleasanton • Riverside • Sacramento • San Diego
The Equal Employment Opportunity
Commission
• Federal agency dedicated to stopping
and remedying employment
discrimination on the basis of:
• Sex
• National Origin
• Pregnancy
• Age
• Race
• Disability
• Color
• Genetic Information
• Religion
1
History of the EEOC
• 2015 marks the 50th anniversary of
the EEOC
• Created by the Civil Rights Act of 1964
• Officially opened for business on
July 2, 1965
• Franklin D. Roosevelt, Jr. appointed as
first EEOC Chairman
2
© 2015 Atkinson, Andelson, Loya, Ruud & Romo
1
History of the EEOC
• First EEOC ruling regarding sex discrimination
– Unlawful under Title VII to have separate "help wanted" sections for
men and women (1965)
• EEOC noted lack of public consensus and Congressional guidance on
sex discrimination issues
• First EEOC decision on a charge of sex discrimination
– Corporate policies requiring firing of female employees when they marry
violate Title VII (1965)
3
Current Role of the EEOC
• Current jurisdiction over employment discrimination issues
including:
– Equal Pay Act of 1963 (Fair Labor Standards Act)
– Title VII of the Civil Rights Act of 1964 (“Title VII”)
– Age Discrimination in Employment Act of 1967
– Rehabilitation Act of 1973
– Pregnancy Discrimination Act of 1978 (Title VII)
– Americans with Disabilities Act of 1990 (“ADA”)
– Genetic Information Nondiscrimination Act of 2008
– Lily Ledbetter Fair Pay Act of 2009
4
Strategic Enforcement Plan 2013-2016
• Enforcement Priorities
– Eliminate Barriers in Recruiting and Hiring
• Target class-based exclusionary recruitment
and hiring practices that allegedly steer
individuals into specific jobs due to their status
in a particular group
– Enforce Equal Pay Laws
• Target gender discrimination in compensation
systems
5
© 2015 Atkinson, Andelson, Loya, Ruud & Romo
2
Strategic Enforcement Plan 2013-2016
• Enforcement Priorities
– Protect Vulnerable Workers by Targeting
• Disparate pay, job segregation, harassment,
human trafficking, and discriminatory policies
affecting vulnerable workers who may be unable
or unwilling to enforce their rights
– Prevent harassment through systemic
enforcement and targeted outreach
• Systemic investigations and litigation to deter
workplace harassment
– Preserve Access to the Legal System
6
Strategic Enforcement Plan 2013-2106
• Sex-Based Claims Remain a Priority
– Continued aggressive enforcement of laws
prohibiting discrimination and harassment
based on sex
• 29.4% of EEOC claims filed in 2014 contained
a claim for sex-based discrimination
– Represents a decrease of less than 1% in sexbased claims since 1997
– Sex-based discrimination claims are not likely to
abate during 2015
7
Sex Discrimination and the EEOC: 2015
• Three Focus Areas
– Equal Pay, Benefits, and Terms/Conditions of Employment
– Pregnancy Discrimination and Related Issues re Accommodation
– Emerging Issue: LGBT Rights
8
© 2015 Atkinson, Andelson, Loya, Ruud & Romo
3
Focus on Equality in Pay, Benefits, and
Terms/Conditions of Employment
Equal Pay Act
• Requires equal pay to
men/women who
perform jobs requiring
equal skill, effort, and
responsibility and are
performed under
similar working
conditions in same
establishment
Title VII
• Prohibits
compensation
discrimination based
on sex (as well as
race, color, religion,
national origin, age,
and disability)
Lily Ledbetter Act
• Establishes that the
180-day statute of
limitations for filing
equal-pay lawsuits
resets with each new
paycheck affected by
discriminatory action
9
Focus on Equality in Pay, Benefits, and
Terms/Conditions of Employment
• Litigation on behalf of male employees
– EEOC v. Ruby Tuesday, Inc.
• EEOC alleges male employees denied lucrative summer employment at
Park City, Utah
• Employer cites concerns about housing male and female employees
together
10
Focus on Pregnancy Discrimination and
Related Accommodation Issues
• EEOC Enforcement Guidance on Pregnancy Discrimination
(2014)
– Described when employers’ actions may constitute unlawful
discrimination on basis of pregnancy, childbirth, and/or related
medical conditions in violation of Title VII, as amended by PDA
– Clarified obligation of employers under PDA to provide pregnant
workers equal access to employment benefits
– Opined that PDA requires employers to treat women affected by
pregnancy or related medical conditions the same way as nonpregnant applicants or employees of similar ability/inability to work
11
© 2015 Atkinson, Andelson, Loya, Ruud & Romo
4
Focus on Pregnancy Discrimination and
Related Accommodation Issues
• EEOC Enforcement Guidance on Pregnancy Discrimination
(2014)
– Title I of the ADA applies to individuals with pregnancy-related
impairments
• Pregnancy itself is not a disability
• Impairments related to pregnancy can be disabilities if they substantially
limit/limited one or more major life activities
• Pregnant workers regarded as having disabilities are protected
12
Focus on Pregnancy Discrimination and
Related Accommodation Issues
• EEOC actively pursues pregnancy-related violations,
including:
– Refusal to hire and failure to promote pregnant workers
• EEOC v. High Speed Enterprise, Inc. dba Subway
• EEOC v. The WW Group, Inc. dba Weight Watchers
– Demoting or firing pregnant workers
– Discharging workers who take leave for pregnancy-related
conditions (such as miscarriage)
• EEOC v. Platinum P.T.S. Inc. dba Platinum Production Testing Services
13
Focus on Pregnancy Discrimination and
Related Accommodation Issues
• EEOC actively pursues pregnancy-related violations,
including:
– Limiting employment opportunities for pregnant woman
• Involuntary leave
• Refusal to allow work beyond a certain point in pregnancy
• Reducing work hours
• Limiting work assignments
– EEOC v. Noodles Asian Bistro, Inc.
– Requiring medical clearances not required of non-pregnant workers
• Latowski v. Northwoods Nursing Center
14
© 2015 Atkinson, Andelson, Loya, Ruud & Romo
5
Focus on Pregnancy Discrimination and
Related Accommodation Issues
• EEOC actively pursues pregnancy-related violations,
including:
– Failing to accommodate pregnancy-related work restrictions where
similar accommodations are/would be available to non-pregnant
workers
• EEOC v. Step Three Ltd.
– Refusing to allow lactating mothers to return to work
• EEOC v. Houston Funding
– Retaliating against pregnant employees (or those close to them)
who complain about pregnancy discrimination
• EEOC v. Engineering Documentation Sys., Inc.
15
Emerging Issue: Focus on LGBT Rights
• No explicit protections under Title VII, but
the EEOC has been active in federal sector:
– Tracking gender identity and sexual orientation
issues
– Issuing federal sector decisions finding
gender identity-related and sexual orientation
discrimination complaints can be brought
under Title VII through EEO complaint
process
– Issuing guidance for processing discrimination
complaints by federal LGBT employees
– Assisting federal agencies to develop gender
transition policies and plans
16
Emerging Issue: Focus on LGBT RightsLitigation by EEOC
• EEOC v. Lakeland Eye Clinic, P.A.
– Alleged termination because employee is transgender
• EEOC v. R.G. & G.R. Harris Funeral Homes Inc.
– Alleged discrimination due to transitioning from
male to female
• EEOC v. Boh Bros. Constr. Co. LLC
– Alleged male subjected to same sex verbal and
physical harassment
17
© 2015 Atkinson, Andelson, Loya, Ruud & Romo
6
Emerging Issue: Focus on LGBT RightsAmici Curiae Briefs Filed by EEOC
• Chavez v. Credit Nation Auto Sales, LLC
– EEOC argued it erred by not initially accepting transgender
individual’s charge of discrimination
• Lewis v. Highpoint Reg’l Health Sys.
– EEOC argued discrimination against a transgender individual for
non-conformance with gender norms is sex discrimination
• Muhammad v. Caterpillar Inc.
– EEOC argued Title VII's anti-retaliation rule protects individuals who
in good faith oppose sexual-orientation discrimination in the
workplace
18
Related Issue: Rights of Same-Sex
Couples Under FMLA
• DOL’s revised definition of “spouse”
under FMLA
– Effective March 27, 2015
– FMLA benefits available to same-sex couples
if legally married in a state that recognizes
same-sex marriage
• “State of Residence” vs. “Place of Celebration”
for all married couples
19
Related Issue: Rights of Same-Sex
Couples Under FMLA
• Department of Labor (“DOL”) revised
definition of “spouse” under FMLA
– Response to U.S. Supreme Court decision
that struck down part of the Defense of
Marriage Act which said a marriage must be
between a man and a woman
• United States v. Windsor (2013) 133 S.Ct.
2675
• Same sex leave rights under CFRA
– Same sex marriages
– Registered domestic partners
20
© 2015 Atkinson, Andelson, Loya, Ruud & Romo
7
Sex Discrimination Litigation is Alive and
Well in California
Rosario Juarez v. AutoZone Stores, Inc.
(U.S. District Court, San Diego)
Ellen Pao v. Kleiner Perkins Caufield & Byers LLC
(San Francisco Superior Court)
21
Conclusion:
• Employers can expect the EEOC to
continue aggressive investigation of
charges of discrimination
• Especially where there exist “systemic barriers
to equal opportunity”
• Employers should train managers and
supervisors to recognize and prevent
discrimination and harassment
• Employers should conduct timely &
effective investigations into claims of
harassment and discrimination and
take appropriate remedial action
22
Thank You
© 2015 Atkinson, Andelson, Loya, Ruud & Romo
8