United States Equal Employment Opportunity Commission Boston Area Office

1. United States Equal Employment Opportunity Commission Boston Area Office Strategic Enforcement Plan September 10, 2014 Rockland, Maine

2. Strategic Enforcement Plan 1. Eliminating barriers in recruitment and hiring 2. Protecting immigrant, migrant and other vulnerable workers 3. Addressing emerging and developing issues 4. Enforcing equal pay laws that target compensation practices that discrimination based on gender 5. Preserving access to the legal system 6. Preventing harassment through systemic enforcement and targeted outreach

3. SEP Priority No. 1: Eliminating Barriers in Recruitment and Hiring The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.

4. Arrest & Conviction Records • April 25, 2012, EEOC issued guidance • Reasserts a legal position the Commission staked out more than 20 years ago. It does not create new law • TVII was amended in 1991 to include disparate impact analysis

5. Green v. Missouri Pacific Railroad Company (8th Cir. 1977) • Court said “we cannot conceive of any business necessity which would automatically place every individual convicted of any offense, except minor traffic violations, in the permanent ranks of the unemployed”

6. Arrest and Incarceration Rates • 1 in 17 White men • 1 in 6 Hispanic men • 1 in 3 African American men

7. EEOC Guidance Arrest: • Does not establish that criminal conduct has occurred • Exclusion based on only an arrest is not job related and consistent with business necessity • Employer may make employment decision based on the conduct underlying the arrest if that conduct makes the individual unfit for the position

8. EEOC Guidance (cont’d) Conviction: • Will usually serve as sufficient evidence that a person engaged in a particular conduct • Employer may not rely on conviction record alone (depending on the circumstance) • Private consumer reporting agencies database may not be updated • Individual may not be aware of, or there may be lack of compliance with court order to seal record • Record may lack unique information • Data may be inaccurate • Not current • Spelling (name)/clerical errors • Record should have but was not expunged

9. Business Necessity Defense • The nature and severity of the offense; • The amount of time that has elapsed since the conviction/or completion of the sentence; and, • The nature of the job held or sought.

10. SEP Priority No. 2: Protecting Immigrant, Migrant, and Other Vulnerable Workers The EEOC will target • disparate pay • job segregation • harassment • trafficking • and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

11. SEP Priority No. 3: Addressing Emerging and Developing Issues The EEOC will target emerging issues in equal employment law, including issues associated with • significant events • demographic changes • developing theories • new legislation • judicial decisions • administrative interpretations

12. SEP Priority 3 (cont.): Emerging Developing Issue – ADA/ADAAA Certain ADA issues, including • coverage • reasonable accommodation • qualification standards • undue hardship • direct threat

13. SEP Priority 3 (cont.): Emerging Developing Issue – PDA/ADAAA Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act

14. SEP Priority 3(cont.): Emerging Developing Issue - LGBT Coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply

15. LGBT: EEOC’s Position Adverse employment actions taken against employees or applicants who do not conform to gender norms or stereotypes is discrimination “because of sex”; • Discrimination against an individual who intends to transition, is transitioning or has transitioned, to another gender-including by changing aspects of his or her biological sex or gender expression is discrimination “because of sex”.

16. Resolved EEOC Charge: • Charging Party was a male to female transgender woman • She had worked as a sales assistant for Respondent • Management told her “to dress like a boy” even though she had informed them that she was a transgender female during her first week of work • Management repeatedly called her using the pre-fix “Mr.” and by male names even though she asked them not to use male names or pronouns • Co workers respected her and used female pronouns to address her • One manager made a reference to a “hot tranny mess” in reference to one of the customers in front of Charging Party and other staff, and this was particularly humiliating for her • Terminated on September 8, 2008 in retaliation for bringing internal complaints • Respondent’s own documents state that she was terminated because her complaints had “created an unpleasant atmosphere” and that she allegedly tried to “poison the atmosphere” Outcome: After Respondent submitted its Position Statement the parties successfully privately mediated this charge; Charging Party settled for $240,000

17. Resolved EEOC Charge (cont’d): • February 2006-Charging Party hired. At that time she went by her male birth name and presented in accordance with her biological sex, male • October 2009-Charging Party informed management that she was going to transition to female and asked that the staff be trained on sensitivity around such matters • Some managers responds with: “you look like a male”, and “you have a strong jaw line.” • Early November 2009, Charging Party started changing appearance, including wearing make-up • November 10, 2009-Charging party came to work presenting as a female including by wearing a wig and female clothing. Charging Party asked that they refer to her with her female name. Charging Party was asked to go home and was not allowed to come back in that attire for six days. • One contractor called her, “it” and “the thing.” Another stated “I have no use for this freak.” • Charging Party complained again in March 2010 about harassment and asked for staff training • Respondent eliminated Charging Party’s position in April 2010 in retaliation for her complaints Outcome: EEOC found cause on the hostile work environment and retaliation claims. Successful conciliation included $225,000 to the Charging Party, a mutually agreeable letter of reference, annual training for 5 years on EEOC statutes including those related to transgender status, issued of a revised EEO Policy and posting a Notice to Employees.

18. Emerging Issue (cont.): GINA • Genetic Information Nondiscrimination Act of 2008 (GINA)prohibits use of genetic information to discriminate in employment • GINA prohibits discrimination based on the possibility that someone will acquire a condition in the future • ADA protects individuals who currently have impairments or who are perceived as having impairments, if they meet the definition of “disability” • Expanded definition of “disability” under ADAAA makes it far less likely that individuals will be without protection under either statute.

19. GINA Settlements • EEOC v. Founders Pavilion Inc., W.D.N.Y., No. 13-6250, complaint filed 5/16/13, alleged that a Corning, N.Y., nursing home violated GINA by asking prospective and current employees for their family medical histories during required pre-employment and annual medical exams. As part of a five-year consent decree resolving the suit in January 2014, the employer agreed to provide a fund of $110,400 for distribution to the 138 individuals who were asked for their genetic information, and to pay $259,600 to the five individuals who the EEOC alleged were fired or denied hire in violation of the ADA or Title VII. • EEOC v. Fabricut Inc., N.D. Okla., No. 13-248, consent decree entered 5/14/13. Settled for $50,000 and injunctive relief. Victim was a temporary employee denied a permanent job after a post-offer medical exam at which she was required to fill out a questionnaire about her family medical history.

20. SEP Priority No. 4: Equal Pay Laws The EEOC will target compensation systems and practices that discriminate based on gender. Among the many strategies to address these issues, the Commission particularly encourages the use of directed investigations and Commissioner Charges to facilitate enforcement.

21. SEP Priority No. 5: Preserving Access to the Legal System The EEOC will also target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts.

22. Preserving Access to Legal System (cont.) These policies or practices include: • retaliatory actions • overly broad waivers • settlement provisions that prohibit filing charges with the EEOC or providing information to assist in the investigation or prosecution of claims of unlawful discrimination • and failure to retain records required by EEOC regulations

23. SEP Priority No. 6: Preventing Harassment Through Systemic Enforcement and Targeted Outreach • Harassment is one of the most frequent complaints raised in the workplace. • Harassment claims based on race, ethnicity, religion, age and disability combined significantly outnumber even sexual harassment claims in the private and public sectors.

24. What? I have a Charge of Discrimination?

25. Timeline: When a Charge of Discrimination is Filed • Case assessed • Notice to the Employer • Mediation • Settlement • Investigation • Statement of Position • Request for Information • Interviews with Witnesses • On Site Visits • Determining the Merits of the Charge • No reasonable cause • Dismissal and Notice of Rights • Reasonable cause • Letter of Determination • Conciliation • Litigation

26. Tips on EEOC Investigations • Anger accomplishes nothing • Try mediation • Respond promptly • If you have questions, ask them • If you need an extension, call the Investigator • If you know of other information that is more relevant than requested information, call the Investigator • If the information requested is too voluminous, call the Investigator • Remember “it’s not personal, it’s just business”