2020 EEO Policy Updates (Archived)

Speaker: Karin Ranta-Curran, J.D.

Recorded: June 8th, 2020

     Hello, and welcome to the EEO update portion of your training. My name is Karin Ranta-Curan. I am a labor and employment attorney and I'm based in Denver, Colorado. I've been practicing in the areas of employment and labor law for about twenty-five years. And my specialty is really focused on workplace investigations of state and federal equal opportunity employment, claims. 

 

     In this session, we are going to be highlighting some overall trends and some issues that were forecasted to be big, advances or developments in the area of equal employment opportunity for 2020. Of course our country is experiencing, the COVID 19 pandemic and protests against, police brutality and race discrimination. So I'm going to be highlighting how those issues should impact the enforcement of equal employment opportunity laws, in the coming year. 

 

     Before we begin, looking at the developments that we're expecting for the rest of 2020, I want to take a quick look back at 2019 and some of the trends that, occurred, during that calendar year. So just very high level over 72,000 discrimination claims were filed in 2019, 72,675 to be exact. And these, claims fell in all of the categories of discrimination. and really what we saw in 2019 is that the number of claims, across all categories dropped, meaning the number of claims that were filed fell, with the exception of equal pay act claims so those continued to rise.

 

     Experts really don't know specifically why, the discrimination claims have fallen. And this is the, I think the second year that they've fallen, in terms of the number of claims, but they do believe that the strong labor market was in at least a part of the reason why individuals were not filing as many claims in 2019. Of course, retaliation claims continue to be the highest number of claims, which makes sense, because of course, retaliation claims are often coupled with an underlying discrimination claim or are filed independently once a discrimination claim has already been filed. So, again, a lot of trends stayed the same, but we did see an overall drop in the number of discrimination claims filed. 

 

     Fiscal year, 2019 really did present a series of challenges for the EEOC. The commission was not fully operational for the first part of the year, due to the government shut down, and then some attendant political issues really dealing with the makeup of the commission itself. However, the, during the 2019 fiscal year, the EEOC continued to pursue various types of litigation and certainly settlements. And so they had higher rates of closure cases, closed through litigation and settlements as well. Also the new EEOC political appointees are now settled into their roles. And for those of us who watch the EEOC closely do expect that the fiscal year 2020 is going to include some pretty significant changes to the EEOC strategic direction. Primarily because now there are quite a few Trump administration appointees on the commission itself. So that's our quick look back at 2019. 

 

     Let's talk about the forecasted issues for 2020. so these were the issues that we knew that the EEOC was going to be dealing with, and that there were going to be some impacts on, basically the area of equal opportunity employment law. So on March 10th, 2020, the EEOC released the resolution concerning the commission's authority to commence or intervene in litigation and the commission's interest in information concerning appeals. That's a very long title. And basically it just announced that, the commission was taking back some previously delegated, powers that they had given to the EEOC general counsel. So the purpose of the resolution curtails, many of those powers that were vested with the EEOC general counsel, and then by extension to the regional attorneys who have historically been, held considerable discretion over the types of lawsuits that the EEOC would file and the legal positions that the EEOC would advance.

 

     This new resolution makes it clear that the commissioner is not the general counsel is going to make those types of decisions. And specifically what kinds of lawsuits they're going to start or intervene in. And for those of us who pay close attention to the EEOC, this is a really big change, a really big deal. The general council in the past has had really broad discretion over the types of cases that the EEOC would file and as well as the series of law that it would pursue. And also the litigation tactics that it employees, often the general counsel would delegate that authority to regional attorneys across the country. Basically the attorneys who were the heads of, the regional offices, in our country. And, I'll be frank with you, that approach, resulted in some fragmented district by district approaches to EEOC enforcement.

 

     I think a good expectation to have from this result is said the EEOC is going to be far more, consolidated in terms of the approaches it takes to litigation and, hopefully investigations as well. So internally at the EEOC, that that shows a pretty significant change, but we're also expecting some changes from the Supreme Court. And these areas are probably going to be the most significant changes that you all will have to be aware of, as practitioners as investigators, because they do impact, the types of claims that fall under the EEOC, purview. 

 

The first set of cases that, you should be on the lookout for really deal with, sexual orientation discrimination, as well as transgender discrimination. There are a series of different cases that were all heard at the same time by the Supreme Court. And they are really focused on the question of whether title 7s sex protections are inclusive of claims of sexual orientation, discrimination, and transgender discrimination. So, very critical decision. We’re actually expecting it at the end of June and oral arguments were held in October. So, they've had some time to think about it, again we are expecting it by the end of the month. 

 

A quick pointer on this issue of sexual orientation and transgender, discrimination. Several states have employment protections for sexual orientation. Other states have protections for transgender status. And many states do have protections for both, including the state of Colorado. So, just keep in mind, depending on where you're working, you may need to look at these state's civil rights laws and determine what types of protections exist in state law. So whatever the kind of Supreme Court’s decision may be for the federal law, the state protections will continue.

 

     If you're not sure about the state law protections that may exist a great place to look for that kind of information is the human rights campaign website, which is HRC.org. And they have a section on their website that, allows you to explore. And they have an actual map that shows, and cites the specific state laws that grant protection for sexual orientation, as well as transgender status. So just a quick way to get that information and find out what state law might be in effect where you're working. 

 

     Okay. Another issue that the Supreme Court is going to be settling for us involves the EEOC 2012 enforcement guidance that concerns the use of arrest and conviction records in employment decisions. if you're familiar with that guidance, that it directed employers, to not deny someone employment due to criminal history information, without considering the nature and gravity of the offense, the time passed since the conviction, or completion of the sentence, also, the EEOC required employers to look at the nature of the job held or sought and how that may or may not be impacted by the specific criminal, offense.

 

 The case that the Supreme Court is looking at is called state of Texas versus EEOC. And in that case, the fifth circuit held that the EEOC is limited in its rulemaking and enforcement powers with respect to title 7. And, it really clarified that in the fifth circuit. 5th circuit's opinion, the EEOC may issue procedural regulations implementing title 7, but it cannot promulgated substantive rules, which is a pretty dramatic reversal of what the EEOC has been doing over the past, period of years, and decades in fact. So it did, the enforcement guidance said issue even in this case is, almost, 10 years old. So pretty remarkable change if the Supreme Court agrees with the fifth circuit.

 

In this case to the fifth circuit said that the EEOC overstepped its authority in issuing the guidance, as it did, and the EEOC may not treat the guidance as binding in any respect. So again, this decision could have a lasting impact on the EEOC ability to make rules and how it enforces, the title 7 law.

 

     For the last topic that we cover in the section that I call the forecasted, set of issues for 2020, involves the concept of preemptive disability and I've included this case, because I do think that it does give us a sense of what to expect coming in 2020, and then in future years as well, especially when we're dealing with the issues involving infectious disease. And obviously that's more relevant now than it was in 2019, given the COVID 19 pandemic. The case that, I'm referring to in this section involves, the 11th circuit and the case is called EEOC vs. STME LLC. So that's a whole lot of acronyms or, or abbreviation. So let me say that one more time EEOC vs. STME LLC. 

 

This case was heard in 2019, and the 11th circuit held that an employer's fear that an employee might contract Ebola, the Ebola disease, during a planned future trip to Ghana could not give rise to a claim of disability discrimination. So in this case, the commission argued that the employee should be regarded as having a disability because her employer believed that she would become disabled at some point in the future. However, the 11th circuit held that the regarded as having disability prong, because, with ADA, you can either have a disability that qualifies or your employer regards you as having that disability. The ADA requires that a disability be present physically or mentally at the time that the claim is made. So that prong did not extend to an employer's belief that an employee might contract or develop an impairment at some point in the future. Just to quickly sum up, in other words, there is no disability discrimination when an employee does not have a disability at the time of termination.

 

     Now before the COVID-19 pandemic, I probably would not have included this case in an EEO update because of the limited circumstances. Of course, now this case may have either application when employees are facing employee travel, especially travel to areas that may have be impacted by the COVID-19 or other, other diseases. So important one to keep on your radar for that those purposes. 

 

     The next section of this training is going to deal with two unanticipated or unforecasted, issues that have come up in 2020 that we weren't expecting. I think all of us can agree that the COVID-19 pandemic, as well as the, social impacts of the killing of George Floyd have had an impact on wider society. And I certainly think that we're going to see that, impact, being felt in the workplaces as well. So, let's tackle the issue of COVID-19 first, because I think we have a lot more certainty in terms of expectations for equal employment opportunity and how, COVID-19 has impacted the workplace. obviously COVID-19, with a lot of the, employment, furloughs and layoffs, certainly anytime you have a kind of mass disruption of the workforce, you are going to have a number of different types of claims that employers did not make appropriate decision-makings when they engaged in their furloughs or they furloughed the wrong people, or they furloughed people on the basis of protected statuses.

 

I do anticipate that there are going to be a series of different discrimination claims, heading towards the EEOC and to state civil rights offices, as a result of the significant numbers of Americans who have lost their jobs as a result. We’ve also seen, in some circumstances, a very significant repurposing or transition from working in offices or employer provided work locations to working from home. And I do think we're going to see a whole lot of different cases coming out on in terms of how employers have dealt with, the new expectations for a working from home workforce. And I think we can expect claims related to who was, chosen to work from home, basically, who is deemed to be essential versus non-essential, technology issues, ergonomic issues related to work equipment, expectations on work hours, those types of things all can have an impact on equal opportunity, employment laws.

 

     I think the clearest way to get, the information you need to do appropriate investigations or other types of inquiries is to look at the EEOC guidance itself. And basically, right around the time that COVID 19 became a significant national issue the EEOC published a guidance, related to COVID-19 and how it was impacting the work environment. And it covers a wide variety of different topics. It has been updated on a pretty continuous basis, and you can easily find the guidance at, the EOC website, which is EEOC.gov, and look for a document called what you should know about COVID-19. It’s moved a bit each time I look for it, it seems to find a different location on the website, but I've never had difficulty finding it. So, really good to take a look at that and see what kind of advice they're giving.

 

     A list of topics that the EOC is covering in this guidance is, is pretty useful to know. So, the EEOC has covered, expectations around disability claims and medical exams, when employers can demand those, as well as medical confidentiality rules for that employers are expected to abide by. They have expectations for hiring and onboarding, furloughs and layoffs and return to work, expectations as well as, they outline expectations for reasonable accommodations and also tackle the topic of, pandemic related harassment. And we're seeing those types of claims based on national origin, particularly against people of East Asian descent, and other protected statuses as well. So it's a very comprehensive document. It's again, being updated on a regular basis. It's a good document to know first that it exists and also to review. So you know what the expectations around COVID-19 involve. 

 

     Let’s talk about a few highlights, with, the EEO guidance, and, I'm going to talk about disability and then national origin and racial discrimination expectations. So the disability expectations, are pretty much just, status quo. So the EEOC said that ADA protections do apply to employees. So they're not required to disclose any sort of medical conditions to their employers. But employers can ask, if employees are experiencing symptoms of COVID-19 and can require temperature checks as well. So, public health often will overcome individual rights. So that is something that, the EEOC has, has given employers express, permission to do.

 

     Similarly employers can require medical certifications for return to work, and then all medical information, related to COVID 19 or any of the, related, issues that can come from a COVID-19 diagnosis have to, be treated as confidential by the employers. So same protections, just, making sure that, employers know that there are some things that they can do, some steps that they can take to ensure that their work environments are safe. 

 

      Another area I'd like to highlight in the guidance, involves, kind of a reiteration of the protections around national origin and regs. So the EEOC has been super clear that employers can help reduce the chance of harassment of particularly East Asian, employees by explicitly communicating to their workforce, that the fear of COVID-19 should not be misdirected against individuals because of their protected characteristics, including national origin, race, and other statuses. The EEOC has also said that an employer may remind all employees that it is against federal EEO laws to harass or otherwise discriminate against coworkers based on race national origin, color, sex, religion, age, disability, or genetic information. 

 

     The EEOC has also said that it may be helpful for employers to advise supervisors and managers, of their roles in watching for stopping or reporting harassment or other discrimination. And that, they just communicate their, commitment to reviewing any allegations of harassment or discrimination and taking appropriate action in those cases that do involve harassment. So again, this is going to be an evolving area of the law and the EEOC has been very good, I think in terms of trying to get some information out to employers in terms of how to manage this, at least from an equal employment opportunity perspective. So be sure to regularly check the EEOC website for their, these updates.

 

     The last topic we're going to be discussing, in this training involves, the social implications of the social ramifications of the killing of George Floyd by a Minneapolis police officer on May 25th, 2020. So just for reference, I am recording this on Monday, June 8th, 2020. So about two weeks after that horrible event. Now, as of this date, the EEOC has not issued any guidance related to Mr. Floyd's death or any of the social unrest that has resulted from, from that event. That said, I fully anticipate that this event is going to have an impact on the American workplaces but the extent of that impact remains to be seen. Historically what we've seen after events, really involving, any sort of, kind of mass, trauma. And that's really what I think this event involves. We have seen an increase in discrimination claims.

We've also seen an increase in disability, accommodation requests, and I think that's, those are really the expected outcomes or the expected impacts on the American workplace. 

 

     There may also be some unexpected outcomes or impacts. I think given the, number and length of community actions or protests that have taken place across the country, there may be some implications in the American workplace as well. I can think of, a situation maybe where an employer doesn't approve an employee's, off duty conduct, in being involved in or organizing a protest and taking action, some sort of negative action against them. usually you the EEOC doesn't go into that level of detail or, or doesn't really go beyond it's kind of expected, areas of jurisdiction, but that is a possibility that we could see those types of claims coming up, and, seeing if there's some sort of protection, through the EEO, laws of this country.

 

I think 2020 is presenting, some really remarkable challenges for, American employers, American employees. I think by extension, we're going to see a whole series of different kinds of claims flowing to, EEO, investigators and attorneys. So I think it will be, very interesting in many ways to see what the workplace looks like in the coming months and years, how that implicates or how that impacts, enforcement of EEO expectations by employers and by extension, the EEOCs enforcement actions themselves. 

 

so I think the best advice I can give you from here, given that 2020 has been so, unexpectedly, turbulent is to just make sure that you're going to the EEOC website on a regular basis, seeing what kinds of resources they're putting out, making sure you're taking those into account and seeing what, advice they're giving to employers and knowing what the expectations that they're outlining as we confront these various societal challenges. 

 

     With that, I will wrap up, I think the 2020 recap is going to be fascinating. I don't know what the next six months holds for us as a nation. We're certainly hoping that, we will be able to catch up with some of these larger issues and have, some certainty around everyone's lives, not just their work life. So thanks for your attention. I appreciate, you listening to this update and hope you found it valuable. Thanks.