Wyatt Employment Law Report


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EEOC Releases Its FY 2014 Performance Report

By Sharon L. Gold

On November 17, 2014, after the end of EEOC’s fiscal year (FY 2014), the EEOC released its Performance and Accountability Report (PAR) that discussed the agency’s goals and outcomes and provided statistics for the past year. Some highlights of the PAR:

  • According to the PAR, in FY 2014, the EEOC met, partially met or exceeded its target results in all 14 measures of its 2012-2016 Strategic Enforcement Plan. The EEOC obtained $296.1 million in monetary damages for claimants alleging employment discrimination in the private and state and local government sector. The EEOC obtained $22.5 million through litigation involving private sector employers and $74 million for public sector employees.
  • There were 88,778 charges in FYI 2014, which was down about 5,000 from FY 2013. The EEOC claims that fewer charges were resolved than in FY 2013 (9,810 less) because of the government shut-down and sequestration. Although there was a hiring freeze early on in the year, the EEOC hired 300 new employees at the end of the year. EEOC Chair Jenny R. Yang states in the PAR that she hopes that increased hiring and investments in technological advances will help with the agency more quickly and efficiently investigate charges.
  • In FY 2014, the EEOC’s education and outreach program sponsored 3,512 free trainings and events.    The National Training Institute trained over 18,000 people at 420 events. The NTI focuses on the Strategic Enforcement Plan priorities.
  • The EEOC’s mediation program resolved 7,846 disputes out of the 10,221 mediations that were conducted, resulting in $144.6 million in compensation for the claimants.
  • The EEOC filed 133 lawsuits this year, which included 105 individual suits, 11 non-systemic class suits, and 17 systemic suits.  The 136 merits lawsuits were resolved and obtained $22.5 million for the claimants.   At the end of the year, the EEOC had a backlog of 228 cases on its active docket.
  • The EEOC continued to focus on systematic enforcement, completing 260 systemic investigations that resulted in 78 settlements and $13 million in monetary relief.
  • Systemic lawsuits make up the largest proportion of active suits, consisting of 25 percent of all active merits suits and 13 percent of total merits filings this year.

The main takeaway from the EEOC’s PAR is that it is evident that the EEOC is continuing to aggressively pursue systematic discrimination claims. Also, it is apparent that the EEOC’s backlog continues to be a problem for both parties involved in the dispute. Hopefully the additional staff hired this year will decrease the time a charge is pending.

The Press Release about the Performance and Accountability Report is available at:

http://eeoc.gov/eeoc/newsroom/release/11-18-14.cfm

 

The Performance and Accountability Report is available at:

http://www.eeoc.gov/eeoc/plan/upload/2014par.pdf

 


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EEOC’s New Guidance on Use of Criminal Records in Employment Decisions

By Rachel K. Mulloy

On April 25, 2012, the United States Equal Employment Opportunity Commission (EEOC) issued Guidance regarding the use of criminal records in employment decisions under Title VII of the Civil Rights Act of 1964.  The Guidance discusses whether an employer’s use of criminal history violates Title VII, focusing specifically on disparate impact claims based on neutral screening policies and practices that have the effect of disproportionately screening out a group protected under Title VII.  While having a criminal history is not a protected category under Title VII, given the increase over the past 20 years of people in the working-age population who have criminal records and given national data finding criminal record exclusions have a disparate impact based on race and national origin, the EEOC is concerned that using criminal records to evaluate employees could create barriers to employment that violate Title VII. 

Employers can avoid liability for disparate impact claims under Title VII by showing the policy or practice is “job related for the position in question and consistent with business necessity.” To establish that an exclusion based on criminal conduct that has a disparate impact is job related and consistent with business necessity, “the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.”  The EEOC provides two circumstances in which it believes employers can “consistently meet the ‘job related and consistent with business necessity’ defense.” 

First, the employer can validate the exclusion based on criminal conduct “in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors).”

Second, the employer can use a “targeted screen.”  There are two steps to the “targeted screen” process: (1) the employer creates a targeted screen “considering at least the nature of the crime, the time elapsed, and the nature of the job,” and (2) the employer provides an opportunity for an “individualized assessment” of the employee.  An “individualized assessment” consists of notice to the employee that she has been screened out because of a criminal conviction, an opportunity for the employee to demonstrate the exclusion does not apply based on her particular circumstances, and consideration by the employer as to whether the information provided warrants an exception to the exclusion. The employee’s showing may include information indicating she was incorrectly identified in the criminal record, the record is inaccurate, facts surrounding the offense, the number of offenses for which she was convicted, older age at the time of conviction or release from incarceration, evidence that she performed the same type of work post-conviction without incident, the length and consistency of employment before and after the offense, her efforts at rehabilitation, any references, and whether she is bonded under a state or federal bonding program.  While an individualized assessment is not always required it may help employers avoid liability by allowing them to consider more complete information on individual employees.

The Guidance notes that even if an employer successfully demonstrates its policy or practice is job related for the position in question and consistent with business necessity, a Title VII plaintiff could still prevail by demonstrating there is a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice but which the employer refused to adopt.

Additionally, the Guidance acknowledges that individuals with certain kinds of convictions may be barred by federal law from certain types of employment; compliance with such laws is a defense to discrimination. 

The Guidance concludes by offering the following best practice tips for employers who consider criminal records when making employment decisions:

  • Eliminate policies or practices that absolutely exclude people from employment based on any criminal record;
  • Train managers, hiring officials, and decisionmakers on Title VII and its prohibition on employment discrimination;
  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct;
  • Limit inquiries about criminal records to those for which exclusion would be job related for the position in question and consistent with business necessity; and
  • Keep information about employees’ criminal records confidential and only use it for the purpose for which it was intended.

 


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EEOC Announces Contingency Plans in the Event of a Shutdown

By Edwin S. Hopson

The U.S. Equal Employment Opportunity Commission posted on its website its contingency plan in the event of a federal government shutdown.  Pursuant to that plan, it will continue to:

–docket new charges and federal sector appeals;

–litigate lawsuits where a continuance has not been granted;

–examine new charges to determine whether prompt judicial action is necessary to protect life or property and, if appropriate, file such action to obtain preliminary relief;

–maintain the integrity and viability of EEOC’s information systems;

–maintain the security of its offices and property; and

–perform necessary administrative support to carry out those excepted functions. 

The bulk of this work will be handled by EEOC field office staff.

EEOC’s activities that will not take place during any shutdown are:

–staff will not be available to answer questions from the public or respond to correspondence from the public;

–investigation of charges will not take place;

–insofar as the courts grant EEOC’s requests for extensions of time, EEOC will not litigate in the federal courts;

–mediations will be cancelled;

–federal sector case hearings will be cancelled, and federal employees’ appeals of discrimination complaints will not be decided;

 –outreach and education events will be cancelled; and

 –no Freedom of Information Act requests will be processed.