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Justice Department Settles Immigration-Related Discrimination Claim Against New York Hotel (Nov. 2018)

Monday, November 12th, 2018

The Justice Department today announced that it has reached a settlement with MJFT Hotels of Flushing LLC (MJFT), the management company operating the Hyatt Place Hotel — Flushing/Laguardia Airport in Queens, New York. The settlement resolves a complaint that the company discriminated against a work-authorized immigrant in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA).

The Department’s investigation, initiated based on a worker’s complaint, concluded that MJFT engaged in citizenship status discrimination against an asylee by removing him from the hiring process for a job at the hotel because he was not a lawful permanent resident or U.S. citizen. Asylees have permanent work authorization, like U.S. citizens, U.S. nationals, refugees, and lawful permanent residents, and employers may not discriminate against them in hiring unless they have a specific legal justification for doing so.

Under the settlement agreement, MJFT will pay a civil penalty, train its staff, and be subject to departmental monitoring and reporting requirements for three years.

“In general, employers may not restrict the employment opportunities of asylees because of their citizenship or immigration status,” said Principal Deputy Assistant Attorney General John Gore of the Civil Rights Division. “The Department is committed to enforcing workplace laws that prohibit discrimination to ensure that individuals have an opportunity to be fully and fairly evaluated based on their merits when they apply for jobs.”

The Division’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, is responsible for enforcing the anti-discrimination provision of the INA. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation.

For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov; or visit IER’s English and Spanish websites.

Applicants or employees who believe they were subjected to retaliation; different documentary requirements based on their citizenship, immigration status or national origin; or discrimination based on their citizenship, immigration status, or national origin in hiring, firing, or recruitment or referral for a fee, should contact IER’s worker hotline for assistance.

Justice Department Settles Immigration-Related Discrimination Claim Against New York Hotel (Nov. 2018)

Thursday, November 8th, 2018

The Justice Department today announced that it has reached a settlement with MJFT Hotels of Flushing LLC (MJFT), the management company operating the Hyatt Place Hotel — Flushing/Laguardia Airport in Queens, New York. The settlement resolves a complaint that the company discriminated against a work-authorized immigrant in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA).

The Department’s investigation, initiated based on a worker’s complaint, concluded that MJFT engaged in citizenship status discrimination against an asylee by removing him from the hiring process for a job at the hotel because he was not a lawful permanent resident or U.S. citizen. Asylees have permanent work authorization, like U.S. citizens, U.S. nationals, refugees, and lawful permanent residents, and employers may not discriminate against them in hiring unless they have a specific legal justification for doing so.

Under the settlement agreement, MJFT will pay a civil penalty, train its staff, and be subject to departmental monitoring and reporting requirements for three years.

“In general, employers may not restrict the employment opportunities of asylees because of their citizenship or immigration status,” said Principal Deputy Assistant Attorney General John Gore of the Civil Rights Division. “The Department is committed to enforcing workplace laws that prohibit discrimination to ensure that individuals have an opportunity to be fully and fairly evaluated based on their merits when they apply for jobs.”

The Division’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, is responsible for enforcing the anti-discrimination provision of the INA. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation.

For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov; or visit IER’s English and Spanish websites.

Applicants or employees who believe they were subjected to retaliation; different documentary requirements based on their citizenship, immigration status or national origin; or discrimination based on their citizenship, immigration status, or national origin in hiring, firing, or recruitment or referral for a fee, should contact IER’s worker hotline for assistance.

EEOC Weekly Digest Bulletin | Experts: Holistic Approach Needed to Change Workplace Culture to Prevent Harassment (Nov. 2018)

Monday, November 5th, 2018

WASHINGTON – Employers can take concrete steps to change their workplace cultures to prevent harassment, experts told the U.S. Equal Employment Opportunity Commission (EEOC) at a public meeting today entitled “Revamping Workplace Culture to Prevent Harassment,” held at agency headquarters in Washington, D.C. One year after the #MeToo movement went viral, the Commission heard leaders describe various approaches that aim to prevent harassment and give employers and employees skills needed to respond when they experience or observe harassing behavior.

The EEOC also released final fiscal year 2018 data highlighting its ramped-up efforts to combat and prevent workplace harassment. EEOC reported a 13.6 percent increase in sexual harassment charges and a 50 percent increase in lawsuits filed alleging sexual harassment. Hits on the EEOC’s sexual harassment webpage doubled since the start of the #MeToo movement one year ago. In addition, as an outgrowth of the Report of the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace, the EEOC’s Respectful Workplaces Training Program that teaches the skills to foster respectful interactions, reached more than 9,800 employees and employers across the country.

“Leadership and accountability set the tone and the expectation that harassment will not be tolerated in a workplace,” said Victoria A. Lipnic, Acting Chair. “Over the past year, we have seen far too many examples of significant gaps in both areas. Our witnesses today stressed how both leadership and accountability must also be driven throughout an organization from the line employees, to the supervisors, to the CEO, and to the Board.”

“Today’s testimony underscores that to really tackle the problem of workplace harassment, we need to change workplace culture, hold people accountable, and have the right policies, procedures, and training,” said Commissioner Chai R. Feldblum, Co-Chair of the EEOC’s Select Task Force on the Study of Harassment in the Workplace. “No one element, alone, will suffice. Instead, it takes a holistic effort that must start at the top with strong and committed leadership.”

The witnesses at today’s Commission meeting focused on innovative training approaches, leadership, and accountability as components of holistic solutions to addressing harassment. Veronica Girón, a janitor and leader in the Ya Basta Campaign, and Alejandra Valles, the Secretary-Treasurer of SEIU United Service Workers West, told Commissioners about their training program that is designed and delivered by janitors to teach them how to respond in the moment to sexual harassment. Janitors who have experienced sexual harassment act out the most common situations they typically confront in the training videos. Over 100 janitors have been trained and they are partnering with employers and state agencies to implement the training program.

David G. Bowman, a partner at Morgan, Lewis & Bockius told the Commission that organizations must utilize a multi-faceted campaign that focuses on leaders setting the right tone, conducting a workplace culture assessment, and implementing different training formats that inspire employees to create a more positive setting that works for everyone. “It is important that organizations create a healthy top-down culture, where managers and leaders actively support the prospect of creating a healthier work environment,” Bowman said.

Anne Wallestad, president and CEO of BoardSource, provided recommendations for board leadership to ensure accountability, from the perspective of nonprofit boards. Wallestad noted that the composition of a board, its complicity in harassment and effective oversight of its CEO are critical factors in determining its role in preventing workplace harassment. “Boards can’t passively address allegations as they arise,” Wallestad said. “Boards needs to proactively examine how their organization’s own culture may be contributing to an environment where harassment and abuse goes unchecked.”

Rob Buelow, vice president of EVERFI, described how web-based training can be a complement to live training and how it fits into an overall harassment prevention program. “Rather than solely messaging to employees about what constitutes illegal behaviors, effective trainings will flip the narrative and focus on the organization’s values and culture, encouraging employees to make decisions that are aligned with those values and reinforcing how positive behavior supports positive culture.”

Business professor Christine Porath of Georgetown University touted the benefits of workplace civility training, which engages all employees by encouraging more positive gestures of respect, dignity or kindness. She added that when leaders are civil, it increases performance and helps employees feel safer and happier. “Incivility is associated with harassment as it creates a culture of disrespect in which harassment behaviors are tolerated,” Porath said.

Another approach promoted by Professor Mary C. Gentile of Giving Voice to Values (GVV) is to assume that most people already want to act on their values, and just need support when it comes to adopting appropriate behaviors. GVV’s curriculum provokes questions like, “WHAT IF” you were this person who wants to act in this values-driven manner (e.g., to respond to and stop harassing behaviors toward oneself or toward others) — “what would you say and do to be effective?” GVV’s goal is to “re-wire” the unconscious process that prevents people from intervening when they see bad behavior using peer coaching to convince employees to behave in ways that advance the success of the organization.

The Commission will hold open the Oct. 31, 2018 Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to: Commissionmeetingcomments@eeoc.gov.

The comments provided will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, comments may be published on EEOC’s public website, or disclosed in response to Freedom of Information Act requests and in the Commission’s library. Providing comments in response to this solicitation equals consent to their use and consideration by the Commission and to their public availability. Accordingly, do not include any information in submitted comments that you would not want made public, like home address, telephone number, etc. Also note that when comments are submitted by e-mail, the sender’s e-mail address automatically appears on the message.

EEOC has posted biographies and statements of all panelists, and will post a video of the meeting within a few days, and a full transcript within a few weeks. These can all be found at https://www.eeoc.gov/eeoc/meetings/index.cfm.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

Investigating Pregnancy-Related Discrimination Complaints by Seena Foster

Friday, November 2nd, 2018

This is an informational paper to assist equal opportunity professionals, and human resource professionals, better understand the differences in disability-based and gender-based discrimination complaints. Given the length of the paper, you may find it useful to download and save in your resource library.

TABLE OF CONTENTS:

An overview

I. Federal laws and pregnancy

A. Disability-related laws

1. In federally-assisted programs and in the workplace

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

B. Gender-related laws

1. In federally-assisted programs

2. In the workplace

II. When to apply disability laws

A. In federally-assisted programs

B. In the workplace

III. When to apply gender laws

A. In federally-assisted programs

B. In the workplace

IV. About Seena Foster

________________________________________________________________

An overview

As the HR/EEO professional for your organization, you receive a complaint from an employee alleging that she was denied access to a workplace training program because she took sick leave, and requested leave under the Family Medical Leave Act (FMLA), for pregnancy-related complications. Or, she was denied access to the training program because her supervisor overheard her say she wanted to “start a family soon.”

Or, you serve as the EO professional for an organization operating federally-assisted programs and activities, and a woman files a discrimination complaint alleging that her application to enroll in an educational program was wrongfully denied because she has medical complications from her pregnancy. Or, she alleges her enrollment application was denied because she’s been pregnant twice over the past three years.

How do you investigate these complaints? Depending on the circumstances giving rise to the adverse action at issue, you’ll investigate the complaint as either a disability-based discrimination complaint, or as a gender-based complaint. How you decide this will, in turn, dictate the information you gather and the remedies (if any) you offer.

This paper is designed to help you understand how to identify the type of complaint you have, and what information you’ll need to gather during the investigation.

I. Federal laws and pregnancy

A. Disability-related rights laws

1. In federally-assisted programs and in the workplace

When we talk about disability-related civil rights laws, we are referring to the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (ADA), and the Americans With Disabilities Act Amendments Act of 2008 (ADAAA). Importantly, these laws apply both to workplace discrimination complaints as well as to discrimination complaints arising in federally-assisted programs and activities.

Generally speaking, under these laws, “disability” is defined as a mental or physical condition that “substantially limits” one or more major life activities. Disabilities that are both (1) minor, and (2) transient or temporary (such as having a cold), do not meet the definition of “disability” for purposes of the Rehabilitation Act, ADA, and ADAAA.

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

In addition to the Rehabilitation Act, and the ADA, the Family and Medical Leave Act applies to the workplace. Often, this law is mistakenly thought of as a civil rights law. The FMLA is not a civil rights law, but it was enacted in response to civil rights concerns in the workplace.

Generally speaking, the FMLA provides that, for certain family or medical reasons, an employee of at least one years’ duration may take up to 12 weeks of unpaid, job-protected leave in a 12 month period. These reasons include birth and care of a newborn child, absence due to pregnancy complications, adopting a child or becoming a foster care parent, caring for an immediate family member with a serious health condition, or taking medical leave due to the employee’s inability to work because of a serious health condition.

As noted by the United States Supreme Court in Coleman v. Court of Appeals of Maryland (Mar. 20, 2012):

In enacting the FMLA, Congress relied on evidence of a well-documented pattern of sex-based discrimination in family-leave policies that granted longer periods of leave to women than to men.

Therefore, the FMLA is designed to provide a consistent set of unpaid leave policies to be applied to employees across the board, regardless of gender.

And, the Equal Economic Opportunities Commission offers the following guidance:

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.

Turning to your organization’s leave policies and procedures, it is important to understand these policies are in place for a reason.

As we see from the history behind Congress’ enactments of the FMLA and the PDA, employers must establish leave policies and procedures (sick, annual, FMLA, and so on) that apply to employees across the board, and managers and supervisors must be consistent in their application of these policies and procedures. So, while these policies are not civil rights laws, deviation from established policies and procedures, or discriminatory policies and procedures established by the employer, renders an organization vulnerable to civil rights discrimination complaints on any covered basis (race, color, national origin, gender, religion, disability, age).

B. Gender-related laws

Sometimes, a pregnancy-related discrimination complaint does not involve disabling physical complications or medical restrictions related to the pregnancy. These complaints would be investigated as gender-based discrimination complaints. Why?

The answer is only women are capable of pregnancy and childbirth. So, let’s take a look at the gender-based civil rights laws that may apply to the complaint filed with you.

1. In federally-assisted programs and activities

There are a number of federal laws that prohibit gender-based discrimination in the delivery of federally-assisted aid, training, benefits, and services. As an example, Section 188 of the Workforce Investment Act prohibits discrimination on the basis of gender in federally-assisted operations, such as job referral activities at our Nation’s job banks, delivery of unemployment insurance benefits, and selection of individuals for training, apprenticeship, and certification programs.

As another example, Title IX of the Education Amendments Act (Title IX) prohibits gender-based discrimination in educational programs and activities, regardless of which federal agency provides the funding. And, the U.S. Department of Education (Education) provides excellent guidance for handling pregnancy-related discrimination issues under Title IX. Notably, unless a complaint alleges discrimination based on disabling medical or physical complications, a pregnancy-related discrimination complaint is a complaint alleging discrimination on the basis of gender. Education’s guidance states the following:

[T]he Title IX regulation at 34 C.F.R. § 106.40(a) prohibits recipients from applying ‘any rule concerning a student’s actual or potential parental, family or marital status which treats students differently on the basis of sex.’ The regulation also states, in part, the following:

A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient. 34 C.F.R. § 106.40(b)(l).
In addition, the Title IX regulation states that, in providing financial assistance to any of its students, a recipient shall not ‘apply any rule or assist in application of any rule concerning eligibility for such assistance which treats persons of one sex differently from persons of the other sex with regard to marital or parental status.’ (See 34 C.F.R. § 106.37(a)(3)).

This differs from Education’s disability-related guidance:

Although pregnant students may be required to obtain a physician’s certification of fitness to continue in the regular education program or activity, a recipient may do so only if it requires such a certification from all students for other physical or emotional conditions requiring the attention of a physician. (See 34 C.F.R. § 106.40(b)(2)). In fact, the Title IX regulation instructs recipients to treat pregnancy or childbirth in the same manner and under the same policies as any temporary disability. (See 34 C.F.R. § 106.40(b)(4)).

This is consistent with how pregnancy-related complaints should be approached in other federally-assisted programs and activities. So, unless the complaint alleges discrimination based on disabling medical complications or restrictions, the pregnancy-related complaint is investigated as alleged gender-based discrimination.

2. In the workplace

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits gender-based discrimination. However, confusion arose regarding how to process pregnancy-related complaints. As a result, Congress sought to clarify that pregnancy-related discrimination complaints in the workplace generally are investigated as alleging discrimination on the basis of gender. To that end, the Pregnancy Discrimination Act (PDA) amended Title VII of the Civil Rights Act to include pregnancy-related complaints under the penumbra of gender-based discrimination.

As noted by the United States Supreme Court in California Federal Savings and Loan Assoc. v. Guerra, 479 U.S. 272, 107 S. Ct. 683, 692 (1987), leading up to enactment of the PDA, “Congress had before it extensive evidence of discrimination against pregnancy,” particularly in the administration of leave policies and procedures by employers. To see the text of the PDA, to go 42 U.S.C. § 2000e.

II. When to apply disability laws

A. In federally-assisted programs and activities

Jane seeks to participate in an on-the-job training program funded by the U.S. Department of Labor. The program begins in 30 days and requires that participants be able to bend, lift, and stand for most of an eight hour day, five days a week. Jane wants to participate in the program, but provides medical documentation from her physician stating, for the next three months, she will be unable to stand for more than ten minutes, and will be unable to bend or lift anything at all. Her application to participate in the program is denied because her pregnancy-related complications prevent her from being able to start the program in 30 days. She files a complaint with you.

You will process Jane’s complaint as a disability-based discrimination complaint. Here, Jane is unable to bend or lift anything for the next three months, and can stand for only ten minutes at a time, due to her pregnancy. She has a “disability” in that her condition “substantially limits” the major life activities of bending, lifting, and standing. To that end, you will determine whether Jane meets the essential eligibility requirements to participate in the program, and whether any accommodations may be offered to Jane to allow her to participate. With regard to accommodations, you would look at the accommodations available for similarly-situated program applicants with temporary disabilities (such as a broken foot, or temporary back condition). The questions you will ask during your investigation would include:

● What are the essential eligibility requirements for participation in the program?

● Assuming, for purposes of this exercise, you find that the essential eligibility requirements include starting the program in 30 days and being able to lift, bend, and stand, you’ll need to ask, “Was Jane treated differently than anyone else (man or woman) with similar temporary limitations, such as a broken leg or the flu, seeking to participate in the training program?”

For questions in a particular complaint involving allegations of pregnancy-related discrimination, you should check with your EO leadership, or with the civil rights office of your federal funding agency for guidance.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of actual or perceived physical limitations or restrictions leading to the view that the person is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an applicant’s training or apprenticeship opportunities because you believe these positions could result in a miscarriage)

Focus on the essential eligibility requirements for the program or activity at issue, and ensure that the applicant/participant is not denied access to these programs if she meets the essential eligibility requirements. Look for accommodations that may be provided to allow participation where the applicant/participant has a temporary disability.

B. In the workplace

In the workplace, figuring out the proper way to investigate discrimination complaints often is complicated by allegations that leave requests (such as sick leave or FMLA leave) were improperly denied, or that these requests adversely affected an employment decision related to the employee. So, let’s sort out these issues in the context of pregnancy-related complaints.

The U.S. Equal Employment Opportunities Commission (EEOC) provides the following guidance:

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.

We’ll illustrate this point with Joan. Joan suffers from “morning sickness,” and has asked for permission to take sick leave or FMLA leave on days she feels particularly bad. Her supervisor denies both of her requests, and she files a complaint with you.

Joan has asked for sick leave or FMLA leave, and she has let you know she suffers from “morning sickness,” you will investigate this as a disabiity-based discrimination complaint. You will look at the policies and procedures pertaining to employees’ requests for the types of leave at issue here, sick and FMLA. You will ask how those policies and procedures have been applied to other employees with temporary disabilities, and whether Joan is being treated differently from any other employee in your organization, male or female, with similar temporary or transient limitations.

Let’s say that Joan directs your attention to one of her co-workers, Jane who requested, and received approval for, sick leave and FMLA leave when she broke her arm last year. Here, you are looking to see whether Joan and Jane, and any other similarly-situated co-workers with transient or temporary limitations, were treated differently with regard to consideration of their leave requests.

Determinations as to whether folks are “similarly-situated” are made on a case-by-case basis; there are no “bright line” rules. In making such determinations, you want to ensure that your leave policies and procedures are not discriminatory either in favor of, or against, pregnancy-related limitations, and that these policies and procedures are being applied consistently to all employees.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of actual or perceived physical limitations or restrictions leading to the view that the employee is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice before you engage in an adverse employment action because the employee:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an employee’s promotion opportunity because you believe the duties required in the position could result in a miscarriage)

Focus on the bona fide occupational requirements, and the essential job duties, and allow the employee to participate if she meets these requirements. Look for accommodations where the employee has a temporary disability due to childbirth or pregnancy, as you would for someone with a broken foot or the like.

III. When to apply gender-based laws

A. In federally-assisted programs and activities

Denial of a service, aid, benefit, or training on the basis of prior pregnancies is a violation of federal civil rights laws. For example, the case of Pegues et al. v. Mississippi State Employment Service et al., 699 F.2d 760 (5th Cir. 1983) involved denial of an employment referral in a federally-assisted workforce development program. The Mississippi State Employment Service (MSES) reviewed applications of individuals who sought employment referrals to available, higher paying jobs at a local factory. One of the female applicants (Plaintiff) alleged disparate treatment in MSES’ classification, and referral, of her and other women to lower paying positions at the local factory as compared to similarly qualified male applicants.

The court stated, to demonstrate disparate treatment in employment referral, the Plaintiff must prove: (1) she is a member of a protected group; (2) she applied for an occupation for which MSES was making referrals; (3) she failed to secure a referral; and (4) MSES later referred a non-member of the protected group.

On examination of the evidence of record, the court found: (1) the Plaintiff was a member of a protected group (women), (2) she applied for a higher paying position with the local factory, (3) her application was denied, and, (4) based on her education and experience, she “was passed over in favor of other, similarly qualified (male) applicants.” Id. at 775. The court then noted:

By way of rebuttal, Defendants elicited testimony from (Plaintiff) as to her five full term pregnancies between 1970 and 1975, and various benefits in the form of training and referral that Defendants had conferred upon her between 1968 and 1970.
Id. at 775 (emphasis added). The court rejected Defendants’ proffer of rebuttal:
Given her factory experience and enhanced education, we do not believe the reasons articulated constitute a legitimate rationale for Defendants’ failure to reconsider her service classification and provide an opportunity for employment at Travenol. She is entitled to relief.

Id. at 775. The court concluded that Plaintiff successfully established gender-based discrimination.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of the views of the agency, organization, or company involved regarding prior, current, or potential pregnancies?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to gender-based discrimination in the delivery of federally-assisted programs and activities. Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other applicants/participants with similar temporary limitations)

B. In the workplace

An example of gender-based discrimination in the workplace is found in International Union, et al v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196 (1991). Here, the employer had a policy that excluded women of “childbearing capacity” from holding certain “lead-exposed jobs.” Specifically at issue were certain jobs making batteries. Among the class action plaintiffs were (1) a woman “who had chosen to be sterilized in order to avoid losing her job,” and (2) a woman “who had suffered loss in compensation when she was transferred out of her job where she was exposed to lead.”

Concluding that the employer’s policy was “facially discriminatory” in violation of Title VII’s ban on gender-based discrimination, the Court noted the policy improperly “requires only a female employee to produce proof that she is not capable of reproducing.” As a result, the Court noted that the burden shifted to the employer to demonstrate that this discriminatory requirement constituted a bona fide occupational qualification (BFOQ), which the Court found was not present in the case.

Citing to the PDA, the Court stated, “Unless pregnant employees differ from others in their ability to work, they must be treated the same as other employees for all employment-related purposes.” Said differently, women who are as capable of doing their jobs as their male counterparts may not be forced “to choose between having a child and having a job.” Based on the record before it, the Supreme Court in Johnson Controls found that “[f]ertile women . . . participate in the manufacture of batteries as efficiently as anyone else” such that the employer’s policy violated Title VII’s ban on sex discrimination.

The Court made a point of stating that sex discrimination in the workplace has been allowed only under very narrow circumstances, such as definitive danger to others. The Court stressed, under these circumstances, “the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job.”

    The “safety exception” explained.

The Johnson Controls Court cited its prior opinion in Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720 (1977) to illustrate the “safety exception” to gender-based discrimination. In Dothard, it was the employer’s policy to hire only male guards at a maximum-security male penitentiary. The Court held this was permissible as “employment of a female guard would create real risks of safety to others if violence broke out because the guard was a woman.” Under the facts of that case, the Court found that “sex was related to the guard’s ability to do the job-maintaining prison security.” In Johnson Controls, the Court emphasized, “in order to qualify as a BFOQ, a job qualification must relate to the ‘essence’ . . . or to the ‘central mission of the employer’s business.’”

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of the views of the supervisor, agency, organization, or company regarding prior, current, or potential pregnancies, and the “safety exception” does not apply?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to based discrimination in the workplace in violation of Title VII. Think twice if you seek to engage in an adverse employment action because the employee:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● is taking pregnancy or parental leave
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other employees with similar temporary limitations)

IV. About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development and educational programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her Web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews.

Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.”

And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster’s series of on-demand webcasts for equal opportunity professionals has received rave reviews, and she offers training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws.

Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “very relevant,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” Ms. Foster is certified in “Federal Workplace Mediation” through the Northern Virginia Mediation Service.

She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

NOTICE: This paper is for informational purposes only. We do not offer legal advice. Specific questions should be directed to your legal counsel, or to the civil rights experts within your organization, agency, or company.

HUD CHARGES NEW JERSEY CONDO ASSOCIATION WITH DISCRIMINATING AGAINST RESIDENT WITH DISABILITIES (Oct. 2018)

Wednesday, October 31st, 2018

Dear Colleague,

WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) today charged Hudson Harbour Condominium Association, Inc., in Newark, NJ, with discriminating against a resident with disabilities.

Specifically, HUD’s charge alleges that the condo association only allowed the resident, who is sight and hearing impaired, to use the service door instead of the main entrance to the development or the common areas when accompanied by her assistance animal. HUD’s charge further alleges that the condominium association charged the resident’s daughter a fee because she walked her mother’s assistance animal in the development’s common areas. Read the charge.

The Fair Housing Act prohibits housing providers from denying or limiting housing to persons with disabilities or from refusing to make reasonable accommodations in policies or practices.

“Subjecting someone to different residency requirements because they use an assistance animal prevents that person from fully enjoying their home and is against the law,” said Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity. “Condo associations have an obligation to comply with the requirements of the Fair Housing Act when it comes to reasonable accommodations and HUD is committed to ensuring that they meet that obligation.”

The case came to HUD’s attention when the daughter of a condominium resident who uses an assistance animal filed a complaint alleging that the condominium association refused to waive its requirement that residents transport pets in carriers when in common areas, and was fined $100 for walking the animal in the development’s common areas. Because of the resident’s mobility impairments, her daughter was primarily responsible for walking the dog. Additionally, when the resident was with her assistance animal, she was required to use the service door to enter and exit the building.

“Rules that limit access to condominium common areas for persons with disabilities who need an assistance animal violate the Fair Housing Act,” said J. Paul Compton Jr., HUD’s General Counsel. “This charge represents HUD’s commitment to ensuring that persons with disabilities are allowed to fully use and enjoy their homes.”

The charge will be heard by a United States Administrative Law Judge unless any party elects for the case to be heard in federal court. If the administrative law judge finds after a hearing that discrimination has occurred, he or she may award damages to the individual complainant for his or her loss as a result of the discrimination. The judge may also order other injunctive or equitable relief, as well as payment of attorney fees. In addition, the judge may impose civil penalties to vindicate the public interest.

Last April, HUD marked the 50th anniversary of the Fair Housing Act, joining local communities, housing advocates, and fair housing organizations across the country in a coordinated campaign to enhance awareness of fair housing rights.

Persons who believe they have experienced discrimination may file a complaint by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 (voice) or (800) 927-9275 (TTY).

New! Updates to FTA’s Environmental Review Regulations and Section 4(f) Regulations Published (Oct. 2018)

Wednesday, October 31st, 2018

FTA, in cooperation with the Federal Highway Administration and the Federal Railroad Administration, announces publication of its latest rulemaking effort: an update to environmental regulations and Section 4(f) regulations to reflect MAP-21 and FAST Act changes. The rule was published today in the Federal Register and will go into effect on November 28, 2018.

Major changes include:

Cross-Agency Categorical Exclusion (CE). FTA may now apply an FHWA or FRA CE to an FTA project or action should FHWA or FRA have a CE that better matches the project activity (see 23 CFR 771.118(e)).
Operational Right-of-Way (ROW) CE. The “existing operational ROW” definition at 23 CFR 771.188(c)(12) has been broadened in this revision to the rule.
Combined Final Environmental Impact Statement/Record of Decision section (see 23 CFR 771.124).
Coordination Plan and Schedule requirement. FTA and the project sponsor must establish the coordination plan, including schedule, within 90 days of publishing the notice of intent (see 23 CFR 771.123(b)(2)).
Three new Section 4(f) Exemptions (see 23 CFR 774.13(a)).

Please share this important update to these two regulations with colleagues and customers who are involved in the environmental review process.

Links:
Federal Register: Environmental Impacts and Related Procedures: A Rule by FHWA, FRA and FTA FTA’s Environmental Programs

DENTON COUNTY TO PAY $115,000 AFTER JUDGMENT IN EEOC EQUAL PAY LAWSUIT

Sunday, October 28th, 2018

Denton County Paid Female Doctor Less Than a Male Doctor in Health Department

DALLAS – Denton County will pay $115,000 to a female former county doctor after a federal court entered judgment in favor of the U.S. Equal Employment Opportunity Commission (EEOC) in a pay discrimination lawsuit (EEOC), the federal agency announced today.

According to the lawsuit, Dr. Martha C. Storrie worked as Primary Care Clinician in the Denton County Public Health Department beginning in October 2008. The job duties of her position were primarily to provide medical treatment for Denton County residents in clinics operated by the County. In August 2015, Denton County hired a male physician to perform the same duties as her. However, when the newly hired clinician was brought onboard, the county set his starting annual salary at more than $34,000 higher than hers. The Denton County director of public health then failed to take remedial measures in response to Storrie’s complaint about the unequal pay.

Such alleged conduct violates the Equal Pay Act and Title VII of the Civil Rights Act of 1964, which both prohibit unequal pay disparities which are based on gender as opposed to other factors such as qualifications and job duties. The Equal Pay Act makes it unlawful for employers to pay women less than men for a job requiring the same skill, effort and responsibility, performed under similar working conditions.

The EEOC filed suit in August 2017 in the U.S. District Court for the Eastern District of Texas, Sherman Division (EEOC v. Denton County, Civil Action No. 4:17-CV-614) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

“Dr. Storrie was a very well qualified and competent physician for Denton County,” said EEOC Dallas District Office Supervisory Trial Attorney Suzanne M. Anderson. “Dr. Storrie was board certified in adult and pediatric urology, hospice and palliative medicine and a certified correctional healthcare professional. She received cards and letters from many of her patients, thanking her for her competent and caring treatment, so she expressed surprise when she learned the county paid her less than the new hire.”

The final judgment and order issued by Federal District Judge Amos L. Mazzant III on Oct. 24, 2018 awards Dr. Storrie $115,000 in damages. It also requires Denton County to implement a new written policy regarding the compensation policy for all new physicians in the public health department in Denton County. Denton County is also to provide training on equal pay for women and the posting of a notice at Denton County facilities.

“The EEOC is pleased with the county’s commitment in the final judgment which requires the implementation of a new compensation policy for the public health department,” said EEOC Regional Attorney Robert Canino. “The EEOC is hopeful the County’s renewed efforts may also lead to other departments or areas within the County’s workforce being reviewed and considered periodically to determine equal opportunities are given to both men and women.”

Equal Pay discrimination is one of six national enforcement priorities highlighted in the EEOC’s Strategic Enforcement Plan, accessible at https://www.eeoc.gov/plan/sep-2017-cfm.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

EEOC HOLDS PUBLIC MEETING ON OCTOBER 31, 2018: STEPS TO TRANSFORM WORKPLACE CULTURE TO PREVENT HARASSMENT

Sunday, October 28th, 2018

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on Wednesday, October 31, from 9:30 a.m. to noon ET at agency headquarters, 131 M Street, N.E. Washington, D.C. The meeting, entitled “Revamping Workplace Culture to Prevent Harassment,” will be open to public observation.

Earlier this month, the EEOC released preliminary fiscal year 2018 data reporting increases in harassment charges and litigation. Hits on the EEOC’s harassment webpage doubled since the start of the #MeToo movement one year ago.

In the Co-Chairs’ 2016 Report of the Select Task Force on the Study of Harassment in the Workplace, EEOC issued recommendations to employers on the key components (leadership, accountability, policies, procedures, and training) for changing an organization’s culture and preventing harassment. During this meeting, witnesses will discuss these components and how they can be used to foster civil, respectful, and harassment-free workplaces. The Commission will hear from the following panelists during the meeting:

• David G. Bowman, Partner, Morgan, Lewis & Bockius
• Rob Buelow, Vice-President, EVERFI
• Mary C. Gentile, PhD, Giving Voice to Values/ University of Virginia, Darden School of Business
• Veronica Giron, Ya Basta Campaign
• Christine Porath, Associate Professor, Georgetown University, McDonough School of Business
• Alejandra Valles, Secretary-Treasurer, SEIU United Service Workers West (USWW)
• Anne Wallestad, President and CEO, BoardSource

Seating is limited. Visitors are encouraged to arrive at least 30 minutes before the meeting to be processed through security and escorted to the meeting room. Visitors should bring a government-issued photo identification card to facilitate entry into the building.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at https://www.eeoc.gov/. Stay connected with the latest EEOC news by subscribing to our email updates.

MESSAGE BY EEOC ACTING CHAIR VICTORIA LIPNIC NATIONAL DISABILITY EMPLOYMENT AWARENESS MONTH (Oct. 2018)

Sunday, October 28th, 2018

“America’s Workforce: Empowering All” is the official theme for this year’s National Disability Employment Awareness Month (NDEAM).

If that strikes a resonant vibration in our hearts here at the EEOC, it’s because that could be our slogan for everything we do. We’ve always believed in empowering all Americans to build and improve their lives.

This commemoration had its origin in 1945, when Congress declared the first week in October each year “National Employ the Physically Handicapped Week.” In 1962, the word “physically” was dropped to acknowledge individuals with all types of disabilities. In 1988, Congress expanded the week to a month and changed the name to NDEAM. Later the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) assumed responsibility for NDEAM.

Nomenclature and sensibilities have changed over the years, but not the core mission and motivation behind this commendable observance.

The EEOC has backed that mission for years, namely through enforcement of the Rehabilitation Act and the Americans with Disabilities Act (ADA). In fiscal year 2017 alone, we handled almost 27,000 disability charges in the private sector under the ADA, amounting to 31.9% of total charges – that number has been trending upward for 20 years.

And we’ve put our muscle where our heart is. The agency’s ADA suit filings have risen from 36% of our litigation in FY 2014 to 42% in FY 2018, and for several years our ADA litigation has ranked second among statutes we enforce, behind only Title VII.

We know our work is making a difference, but we also know there’s more to do. In terms of overall employment, the U.S. Bureau of Labor Statistics (BLS) reports that in 2009, the first year for which it recorded annual statistics for disability employment, only 19.9 percent of non-institutionalized people with disabilities were employed. Since then that number has fluctuated between 17 and 19 percent, and for 2017 it was 18.7. That’s compared to an employment rate of 65.7 percent for people without a disability in 2017. On the other side of the ledger, BLS reports that the unemployment rate for people with a disability is currently 7.3 percent, more than twice that of those without a disability (3.4 percent). People with severe, “targeted” disabilities, of course, face even greater employ­ment challenges.

What all this tells us is that we have to work harder, with steely determination to ensure employment opportunity for these Americans. And, it all comes back to a core principle that we can never stop reminding people of: When you overlook, underestimate, and, yes, harm people with disabilities, you’re disrespecting and harming America and its values.

So, this National Disability Employment Awareness Month, I urge each of you to celebrate the contributions of employees with disabilities, and to draw upon this year’s NDEAM theme, “America’s Workforce: Empowering All,” for inspiration in the important work that you do.

FAIR HOUSING NEWS (Oct. 2018)

Tuesday, October 23rd, 2018

Dear Colleague,

WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) today charged Heathermoor II, LLC, and Valhalla Management & Real Estate, LLC, both of Westerville, Ohio, with discrimination for refusing the request of a resident with disabilities to have a designated parking space. Read HUD’s Charge.

The Fair Housing Act prohibits housing providers from denying or limiting housing to persons with disabilities or from refusing to make reasonable accommodations in policies or practices.

“For many individuals with disabilities, certain accommodations are necessary in order for them to fully enjoy their home,” said Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity. “HUD will continue to take action to ensure that housing providers recognize and meet their obligation to comply with the nation’s fair housing laws.”

HUD’s charge alleges that the owners of Heathermoor II Apartments in Weirton, West Virginia, refused to grant a designated parking space to a resident with disabilities, despite the woman providing medical documentation attesting to her need for the accommodation. As a result, the woman and her children had to move to a different complex.

“When a resident needs a designated parking space as an accommodation for her disability and providing one will not be an undue burden or fundamental alteration, a housing provider must do so,” said Paul Compton, HUD’s General Counsel. “We want housing providers to know what their legal responsibilities are and to follow them. If they don’t, we will bring charges like this one.”

HUD’s charge will be heard by a United States Administrative Law Judge unless any party to the charge elects to have the case heard in federal district court. If the judge finds that discrimination has occurred, he may award damages to the complainant for harm caused by the discrimination. The judge may also order injunctive relief and other equitable relief, as well as payment of attorney fees. In addition, the judge may impose fines to vindicate the public interest. If the matter is decided in federal court, the judge may also award punitive damages.

Last April, HUD marked the 50th anniversary of the Fair Housing Act, joining local communities, housing advocates, and fair housing organizations across the country in a coordinated campaign to enhance awareness of fair housing rights. Persons who believe they have experienced discrimination may file a complaint by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 (voice) or (800) 927-9275 (TTY). Read more.