United States: Predictions And Practical Tips From EEOC Leadership

Some of our attorneys attended an update meeting with the Equal Employment Opportunity Commission's (EEOC) Miami leadership on June 16, 2017. Mike Farrell is the EEOC Miami District Director, and Bob Weisberg is the EEOC Regional Attorney who heads up litigation for the District. Both spoke about recent trends that will be of interest to Human Resources professionals, in-house counsel, and practitioners. We digest their observations and pass on our own insights in this article.

Predictions

In light of the relatively new presidential administration, employers are wondering whether and how the EEOC and its processes will change. Here are some predictions that the speakers offered– none of these have obviously come true yet, but stay tuned to our blog for future updates on these topics.

  • The EEOC's Acting Chair Victoria Lipnic has made clear she will make changes – but nothing "major." The biggest unknowns at the Agency are who will fill the two empty Republican chairs – and help direct policy for the next four years; and who will become General Counsel – and direct which litigation the EEOC chooses to file or not file.
  • The EEOC already collects data such as race and gender of employees on the form EEO-1. Last year the Obama administration announced that the EEOC will start collecting pay data on the form starting with the 2017 report. Good news prediction is that the EEOC will reverse course and not require pay data reporting.
  • A merger of the EEOC and the Office of Federal Contract Compliance Programs (OFCCP), as the White House wants? This topic is not a new one, but it is "more real" now with the current Department of Labor. There are tremendous hurdles, nonetheless, so the chance of success remains uncertain. If the merger occurs, the EEOC will become the "receiving agency" and OFCCP offices would close.
  • Litigation priorities will continue to focus the EEOC's limited resources on areas of greatest impact, including:

    • immigrants/migrant workers (and as the EEOC speakers noted, Title VII covers undocumented workers);
    • inflexible leave policies under the Americans with Disabilities Act (ADA);
    • employer relationships with staffing companies; with a particular review of the "on demand" economy with its temporary employees and independent contractors;
    • pay disparity, in gender and also in other protected areas; and
    • employer policies that dissuade exercising rights with the EEOC.
  • While the EEOC's current position is that "sex" discrimination includes sexual orientation or gender identity, it was predicted that the "ship has sailed" on the arguments against this position in light of recent a Seventh Circuit ruling and an upcoming Second Circuit review. It will be up to the Supreme Court to ultimately decide.

Practical Tips

The EEOC speakers also provided a number of recommendations, aimed at dealing with the nuts and bolts of responding to EEOC charges and dealing with the Agency. Following are some key points:

  • Remember that as of 2016, the EEOC has been sharing all written position statements that employers submit with the charging party. In other words, if you do not want the employee or their attorney to see certain information, think twice before including it in your position statement. If an employer wishes for the EEOC to keep certain attachments (such as medical information, social security numbers, or confidential business or trade secret information) confidential, make sure to follow specific EEOC guidance to do so.
  • The EEOC is gathering contact names and email addresses for employers so that they can send charges directly to a preferred contact person. You can contact your district office to provide this information in order to ensure accurate receipt of charges.
  • If you receive a charge and a notice that it is not eligible for alternative dispute resolution (ADR), it may be because the charge falls into one of these categories: 1) claims of a discriminatory employment policy that affects many employees, 2) claims of harassment against many employees, 3) claims with egregious allegations, such as a hangman's noose in the workplace. The EEOC will direct their resources to investigating and processing such charges.
  • Employers should remember that Plaintiff-side attorneys often make Freedom of Information Act (FOIA) requests for the EEOC file in the time period between the Charging Party receiving a Right to Sue notice and the 90-day deadline for filing suit. The lawyers often then look at the employer's position statement to see if it is truly a case they want to file. Therefore, it is important to remember that the position statement is a tool to educate not only the EEOC but also opposing counsel.
  • The EEOC periodically issues Enforcement Guidance on various topics for the laws it covers. For example, in 2016, the Agency issued Guidance on national origin and retaliation. They contain numerous fact patterns that can come in handy in dealing with certain employee situations, and in writing a position statement. Citing to them is particularly effective with EEOC investigators.
  • And finally, do not cite to the McDonnell-Douglas burden-shifting standard in your position statements. Everyone at the EEOC already knows it!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions