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Equal Employment Opportunity Commission

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Title: Equal Employment Opportunity Commission


1
Equal Employment Opportunity Commission
Bienvenidos-October 20, 2011
2
Job Bias Charges Approach Record High in Fiscal
Year 2010, EEOC Reports
  • EEOC Reports Job Bias Charges Hit Record High of
    Nearly 100,000 in Fiscal Year 2010
  • Retaliation Surpasses Race as Most Frequent
    Allegation
  • Agency Obtains 404 Million for Victims
  • News Release Issued January 11, 2011

3
2010 Record High Levels for
  • Disability 25, 165 charges filed representing
    25.2 of new charges
  • Religion 3,790 charges filed representing 3.8
    of new charges
  • National Origin 11,304 charges
  • filed or 11.3

4
Agency Obtains 404 Million for Victims in 2010
  • Through its combined enforcement, mediation and
    litigation programs, the EEOC secured more than
    404 million in monetary benefits from employers
    -- the highest level of monetary relief ever
    obtained through EEOC administrative process.

5
In Fiscal Year 2010
  • The Baltimore Field Office issued 156 violation
    findings.
  • Fiscal Year 2011 figures are still being tallied
    but currently over 100 violations.

6
The Equal Employment Opportunity Commission
  • Our Mission
  • To ensure equal employment opportunity by
    enforcing federal laws prohibiting discrimination
    based on sex, race, religion, color, national
    origin, age or disability.
  • www.eeoc.gov

7
What is illegal discrimination?
  • A person treated differently because of his/her
    race, sex, color, religion, national origin, age,
    disability or genetics.

8
Discrimination Can Occur in the Following
Scenarios
  • Hiring/Firing
  • Wages
  • Promotion/Demotion
  • Harassment
  • Different Terms and Conditions i.e. Job
    Assignments, Benefits, Leave, Training
  • Failure to Accommodate for Disability and Religion

9
Protected Federal Categories
  • Race National Origin
    Color




  • Genetic Information







  • Disability Religion

  • Sex Age lt40

10
Title VII of the Civil Rights Act of 1964 (Title
VII)
  • Private employers, state and local governments,
    education institutions that employ 15
    individuals
  • Private and public employment agencies
  • Labor organizations and joint labor management
    committees controlling apprenticeship and training

11
Title VII prohibits discrimination on the basis
of
  • Race (including ancestry physical
    characteristics discrimination based on
    race-linked illnesses cultural characteristics
    related to race or ethnicity)
  • Color
  • Sex (including pregnancy discrimination)
  • Religion
  • National Origin (including ethnic background and
    traits associated with national origin, i.e.,
    family surname, language or accent)

12
The Age Discrimination in Employment Act (ADEA)
  • ADEA applies to employers with 20 or more
    employees.
  • It also applies to state and local governments,
    employment agencies and labor organizations, as
    well as to the federal government.
  • Protects individuals who are age 40 and over from
    discrimination based on
  • age.

13
The Equal Pay Act (EPA)
  • Employer is covered if one or more employee
  • The Equal Pay Act requires that men and women be
    given equal pay for equal work in the same
    establishment.
  • The jobs need not be identical, but they must be
    substantially equal.
  • It is job content, not job titles, that
    determines whether jobs are substantially equal.
  • Includes fringe benefits.

14
Title I of the Americans with Disabilities Act
(ADA) as amended
  • Prohibits employment discrimination on the basis
    of disability (including having a record of or
    being regarded as disabled)
  • Includes obligation to provide reasonable
    accommodation
  • Covers private employers with 15 or more
    employees
  • State and local employers also covered
  • Federal employers covered by Rehab Act
  • Prohibits retaliation, harassment

15
ADA Accommodation
  • An accommodation is a change in the workplace, or
    in the way things are usually done, that provides
    equal employment opportunities for individuals
    with disabilities
  • No requirement to eliminate an essential function
    of the job
  • No requirement to lower production standards
  • A modification need not be made if it creates an
    unreasonable hardship for the company
  • REQUIRED Interactive Process

16
Genetic Non-Discrimination in Employment Act
(GINA)
  • Enforcement began November 21, 2009
  • GINA applies to
  • Employers covered under Title VII of the Civil
    Rights Act of 1964 (15 or more employees)
  • Federal executive branch agencies
  • State and local government employers
  • The Executive Office of the President
  • The U.S. House and Senate

17
Why Genetics?
  • Many genetic tests now exist that can inform
    individuals whether they may be at risk for
    developing a specific disease or disorder. But
    just as the number of genetic tests increase, so
    do the concerns of the general public about
    whether they may be at risk of losing access to
    health coverage or employment if insurers or
    employers have their genetic information

18
Some Examples of Genetic Testing
  • Newborn Screening
  • Diagnostic Testing
  • Carrier Testing
  • Pre-Natal Testing
  • Predictive and Pre-symptomatic
  • Forensic
  • Parental
  • Research
  • Pharmacogenomics

19
Threat of Genetic Testing
  • Loss of Health Benefits
  • Loss of Employment
  • Fear of Discrimination

20
Basic Rules Related to Employment
  • Prohibits use of genetic information to
    discriminate in employment
  • Restricts the acquisition of genetic information
    by employers and other entities covered by GINA
  • Requires that covered entities keep genetic
    information confidential, subject to limited
    exceptions.

21
Retaliation Prohibited by all statutes
  • It is unlawful to penalize, punish or deny an
    employment benefit because that person opposed
    discrimination or participated in any way in the
    investigation of a charge.

22
  • EEOC INITIATIVES

23
Human Trafficking
  • Indicators
  • Workers live on or near work site, live in
    employer controlled housing
  • Guards outside workplace
  • Concertina wire facing toward factory (to keep
    workers in) rather than facing out
  • Restricted and controlled communication and
    transportation
  • Someone else has possession of documents
  • (continued)?

24
Human Trafficking
  • Debt owed to employer or agents of employer
  • Third party insists on interpreting or being
    present for conversations
  • Injuries from beatings or weapons
  • Untreated infections
  • Overly fearful
  • Coached to answer questions
  • Self blame
  • Physically afraid but emotionally attached to
    trafficker

25
Migrant Workers
  • Sexual Harassment
  • National Origin Discrimination/Harassment
  • Disability Discrimination

26
  • Under-served Geographic Locations
  • Underserved Populations

27
Fair Pay
Lily Ledbetter Fair Pay Act signed January 29,
2009
28
Systemic Program
  • Addressing systemic discrimination is an
    agency-wide top priority for investigations and
    litigation.
  • Systemic cases are "pattern or practice, policy
    and/or class cases where the alleged
    discrimination has a broad impact on an industry,
    profession, company, or geographic location."

29
EEOC Systemic Program-Examples of Systemic
Discrimination
  • Racially discriminatory barriers in recruiting
    and hiring practices
  • Exclusion of women from traditionally male
    dominated fields of work
  • Barriers based on race, gender or national origin
    to higher level positions
  • Disability discrimination issues, including
    unlawful pre-employment inquiries

  • continued?

30
EEOC Systemic Program-Examples of Systemic
Discrimination
  • Age discrimination in reduction in force and
    retirement benefits
  • Race and national origin discrimination in
    management trainee programs
  • Compliance with customer preferences that result
    in discriminatory placements or assignments.

31
Student Workers
  • Promotes equal employment opportunity for our
    nations next generation of workers.
  • Youth_at_Work Website
  • Free outreach events
  • Partnership with business leaders, human resource
    groups, and industry trade associations

32
Caregivers Discrimination
  • Covered under the EEO laws when based on a
    protected characteristic.
  • Make employment decisions based on actual work
    performance, rather than stereotypes or
    generalizations.
  • Other laws may be implicated.
  • EEOC encourages best practices.

e
33
Overview Unlawful Disparate Treatment of
Caregivers Under Federal EEO Laws
  • Gender stereotyping and other sex-based disparate
    treatment of women
  • Disparate treatment based on pregnancy
  • Disparate treatment of male caregivers
  • Discrimination against women of color
  • Disparate treatment under the ADA
  • Hostile work environment
  • Retaliation

34
E-RACE Eradicating Racism and Colorism from
Employment
  • The E-RACE Initiative is designed to improve
    EEOCs efforts to ensure that workplaces are free
    of race and color discrimination.

35
Under E-RACE
  • The Commission will also combine the objectives
    of E-RACE with existing EEOC initiatives.
  • For example, the Commission will integrate the
    goals of the Systemic Initiative by addressing
    race and color issues with class and systemic
    implications.

36
Arrest and Conviction Records
  • If an employer is aware of a conviction or
    incarceration, that information should only bar
    someone from employment when the conviction is
    closely related to the job, after considering
  • The nature of the job,
  • The nature and seriousness of the offense, and
  • The length of time since it occurred.

37
Arrest Records
  • Since an arrest alone does not necessarily mean
    that someone has committed a crime, an employer
    should not assume that someone who has been
    arrested, but not convicted, did in fact commit
    the offense.
  • Instead, the employer should allow the person to
    explain the circumstances of the arrest. If it
    appears that he or she engaged in the alleged
    unlawful conduct, the employer should assess
    whether the conduct is closely enough related to
    the job to justify denial of employment.

38
National Enforcement Plan
  • ADA Amendments Act (ADAA)
  • Fair Pay/Equal Pay
  • Asian American- Pacific Islander (AAPI)
  • Caregiver Disc.
  • GINA
  • HBCUs
  • Migrant Workers
  • Human Trafficking
  • Student Workers
  • Partnerships
  • Under-Served Populations
  • Race color
  • Small Business
  • Systemic Discrimination
  • Underserved geographical
  • areas or
  • populations

39
EEOCs New Chair
Chair Jacqueline Berrien- The Chair is
responsible for the administration and
implementation of policy for and the financial
management and organizational development of the
Commission.
40
Commissioner Constance S. Barker
Commissioner Stuart J. Ishimaru
41
Commissioner. Victoria Lipnic
Comissioner Chai Feldblum
42
General Counsel
P. David Lopez
  • The EEOC's General Counsel directs the
    Commission's enforcement and litigation through
    the regional attorneys in the agency's district
    offices who file and litigate the Commission's
    suits throughout the country.

43
How Can I Remember All of This?
44
Invaluable Free Resource
  • www.eeoc.gov
  • 1-800-669-4000

45
  • Tips for Bienvenidos Advocates

46
What Employers Are Covered?
  • Private Employers
  • Labor Organizations
  • Joint Labor-Management Apprenticeship and
    Training Committees (Title VII ADA)
  • Employment Agencies Serving Covered Employers
  • State and Local Governments

47
Which Individuals are Protected?
  • An employee
  • A temporary worker
  • A job applicant
  • A former employee
  • Undocumented workers

48
Coverage for Undocumented Workers
  • Undocumented workers
  • Are protected under federal anti-discrimination
    laws. They have the right to file EEOC charges
    and to have their cases investigated. EEOC may
    afford such workers confidentiality.
  • Are generally entitled to the same remedies
    available to all other workers for violations of
    the laws enforced by the EEOC. (Note Hoffman
    decision affects backpay.)
  • Are protected from retaliation. It is unlawful
    to threaten or to actually report a undocumented
    workers to INS because they have opposed unlawful
    discrimination or participated in a proceeding
    under anti-discrimination laws.

49
What Employment Issues Are Covered?
  • Employers Hiring promotion discharge
    compensation terms, conditions and privileges of
    employment classifying, limiting or segregating
    employees or job applicants
  • Employment Agencies Classification or referral
    of individuals for employment
  • Labor Organizations Limiting, segregating, or
    classifying membership or applicants for
    membership referral of individual for employment

50
Select National Origin Immigrant Worker Issues
51
National Origin Discrimination
  • Discriminatory treatment
  • Because of an individuals or his or her
    ancestors place of origin,
  • Because an individual has the physical, cultural,
    or language characteristics of a national origin
    group,
  • Because of an association with persons of a
  • national origin group

52
Discrimination because of individuals or his or
her ancestors place of origin
  • It does not matter if the person discriminating
    is of the same origin
  • If the negative action is based on the place of
    origin of the harmed person or his/her family, it
    is illegal
  • Discrimination because a person is American is
    also national origin discrimination

53
Discrimination because an individual has the
physical, cultural or language characteristics of
a national origin group.
  • The harmed person does not have to show that
    she/he is actually from a particular country or
    region.
  • Negative treatment may be based on
  • Language Accent
  • Physical looks
  • Cultural dress/appearance

54
Discrimination due to association with persons of
a national origin group.
  • Friends
  • Attendance at schools or places of worship used
    by persons of a national origin group
  • Because an individuals or spouses name is
    associated with a national
  • origin group

55
Intersectional Discrimination
Immigrant women face gender-based discrimination
and other forms of otherness which can further
disadvantage or make them vulnerable
  • Immigrant status foreigner, guest worker,
    undocumented worker, etc.
  • National origin, religion, race, age, etc.
  • Socio-economic status poverty, limited
    education, etc.
  • Traditional attitudes concerning women in society
    in general and in work
  • Limited English proficient Almost half (46) of
    all foreign-born workers in the U.S. are LEP.
    (Nearly 73 of LEP workers speak Spanish.)
  • Domestic violence at home

56
SSN Verification Discrimination
Violations may occur when employers
  • Verify employee SSNs based on their national
    origin -
  • EEOC successfully conciliated cases where
    employer admitted to verifying only the SSNs of
    employees who has foreign-, Latino- sounding or
    otherwise un-American names.
  • Immediately discharge employees based on SSA no
    match letters by assuming the SSN no-match
    letter is indicative of the persons undocumented
    work status.
  • Request SSN cards during the job application
    and/or I- 9 Form process,
  • Verify SSNs after the employee has engaged in
    protected activity, e.g., opposed discrimination,
    participated in union organizing efforts, etc.

57
Potential Adverse Impact Selection Employment
Criteria
  • Height requirements
  • Appearance Discrimination
  • Citizenship Requirements
  • Language Policies - English-only No-Accent

58
Which group contains images of a stereotypical
classic American look?
Group A
Group B
59
Appearance as a Selection Tool
  • What stereotypical traits comprise a classic
    American look?
  • Abercrombie Fitch and other retails defend
    hiring brand representatives or brand
    enhancers as critical in todays competitive
    retail environment.
  • EEOC and private plaintiffs settle their lawsuit
    against Abercrombie Fitch for 50 million along
    with other non-monetary conditions.

60
EEOC Citizenship Requirements
  • Discrimination against a person because he or she
    is not a U.S. citizen does not directly violate
    Title VII.
  • However
  • Such discrimination is a violation of the
    Immigration Reform and Control Act of 1986
    (IRCA).
  • A citizenship requirement violates Title VII if
    it has the purpose of discriminating on the basis
    of national origin, or if it has the effect of
    doing so and is not job related and consistent
    with business necessity.

61
Speak-English-Only Rules
  • The EEOCs policy is that such rules are presumed
    to have an adverse impact.
  • The employer must prove that the English- only
    rule is justified by business necessity.
  • The lawfulness of the rule may depend on whether
    the rule is applied at all times or only at
    specified times.

62
Analyzing a Speak-English Rule
  • Is there a legitimate business necessity reason?
  • What documentation supports the English-only rule
    because of concerns for safe and efficient job
    performance or safe and efficient operation of
    the business?
  • Are there alternatives which would better
    accomplish the business purpose? If so, the
    English-only policy will not be considered a
    business necessity.

63
Analyzing a Speak-English Rule
  • When is the rule applied?
  • At certain times or all times at work? If at
    all times, the EEOC will presume that the rule
    violates Title VII and will closely scrutinize
    it.
  • Was notice of the rule provided to employees?
    Employees should have actual notice of the rule
    including the applicability of the rule, working
    hours, conversations, languages other than
    English, and the consequences of violating the
    rule.

64
Justifications for English-Only
Rules
Note the employer must prove the need for an
English-only rule.
  • Communication among coworkers where close
    coordination is required
  • Communication between employees and English
    speaking customers
  • Communication between employees and supervisors

65
Accent Discrimination
  • Distinctions based on accent are permissible only
    when accent interferes materially with job
    performance.
  • Employers should ask themselves two questions
  • Does the ability to communicate in fact
    materially relate to the ability to perform the
    job?
  • Does the individuals accent in fact interfere
    with that necessary ability to communicate?

66
Jobs Where the Ability to Communicate in English
Have Been Found Essential
  • Jobs requiring extensive contact with clients,
    e.g., hotel desk clerk job
  • Managerial jobs requiring clear communication of
    job requirements to subordinates, e.g., foreman
    at a construction site
  • Jobs requiring frequent response to emergency
    situations where clear, succinct communication is
    necessary, e.g., hospital staff

67
Sexual Harassment Farmworker Women
  • A study done for California State University
    found that more than 90 of farmworker women
    reported sexual harassment on the job as a major
    problem.
  • Domestic violence connection?
  • A 1995 survey of farmworker women conducted by
    the Migrant Clinicians Network found that 1 in 3
    had experienced domestic violence in the last
    year.

68
LACK OF COMPLAINTS by National Origin Groups
Why?
  • Cultural
  • Language
  • Lack of Education
  • Shame/Embarrassment
  • Fear of Retaliation
  • Fear of Governmental Entities
  • Regulatory Process

69
EEOC Options Response
  • EEOC Coverage for undocumented workers
  • EEOC Third-Party Commissioner Charges
  • EEOC investigative tools TRO, subpoenas
  • Improved internal processes bilingual staff,
    charge prioritization
  • Outreach Education
  • liaisons with consulates
  • partnerships with legal services and community
    groups
  • Spanish media
  • Outreach materials

70
IMMIGRANT WORKERS SEXUAL HARASSMENT
71
Vulnerability in all Phases of Migration
Immigrant women are vulnerable to violence during
all phases of migration
  • At home
  • When being recruited for migrant work
  • While in transit
  • And, once in the destination country at work

72
Violence Domestic Workers
Heightened vulnerability for women domestic
workers who
  • Live in close proximity to - often inside the
    homes of - their employers.
  • Are often completely dependent on their employer
    isolation, confiscate travel work documents,
    etc.
  • Face violence in the household at the hands of
    their employer their relatives (teenage sons),
    family guests, associates and male employees.
  • In one study, half of all foreign domestic women
    workers interviewed reported that they were
    victims of verbal or physical (including sexual)
    abuse.

73
Population in the Fields
Every year an estimated 500,000 women work in
U.S. fields.
74
EEOCs Publications Available in Many Languages
  • Arabic
  • Chinese
  • Haitian-Creole
  • Korean
  • Russian
  • Spanish
  • Vietnamese
  • . . .and more

75
Not EEOC But Helpful
  • Department of Justice, Office of Special Counsel
    for Immigration-Related Unfair Employment
    Practices (OSC)
  • Prohibits
  • Citizenship status in hiring, firing or
    recruitment or referral for a fee
  • National origin discrimination in hiring, firing
    or recruitment referral for a fee
  • Document abuse (unfair documentary practices)
    during employment eligibility verification, Form
    I-9, process and,
  • Retaliation and intimidation

76
  • http//www.justice.gov/crt/about/osc/
  • Worker Hotline 1-800-255-7688

77
CONTACT EEOC 24/7
info_at_eeoc.gov
78
How to contact the EEOC Maryland Employers
  • The Baltimore Field Office
  • 10 South Howard Street, 3rd floor
  • Baltimore, MD 21201
  • The Baltimore Field Offices jurisdiction is all
    employers located in Maryland.
  • (800) 669-4000 (800) 669-6820 TDD
  • www.eeoc.gov

79
How to contact the EEOC Delaware Employers
  • The Philadelphia District Office
  • 801 Market Street, Suite 1300
  • Philadelphia, PA 19107

(800) 669-4000 (800) 669-6820 TDD
www.eeoc.gov
80
Outreach to Advocates, Employer, Employee
Training in Maryland
  • Trish Tanner- (410) 209-2721
  • Outreach, Education and Training
  • mary.tanner_at_eeoc.gov

81
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