The Pregnancy Discrimination Act of 1978

How the Law Protects Pregnant Women at Work

Working pregnant woman

Source: The Balance Career

BY DAWN ROSENBERG MCKAY 

Updated June 11, 2020

The Pregnancy Discrimination Act prohibits employers from making hiring and other job-related decisions that discriminate against women who are pregnant.

Finding out you are pregnant is a very joyous thing for most women—news you will likely look forward to sharing with all your friends and family—but it might be somewhat stressful to tell your coworkers about it. Once they know, your boss will too, and while your colleagues may be wonderfully receptive of this news, not all in the workplace may be. Pregnancy discrimination is a real thing.

The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces federal employment discrimination laws, reports that in fiscal year 2019, it received 2,753 complaints of pregnancy discrimination.2 Many women are fired or passed over for a promotion after they announce their pregnancy. Before sharing your good news in the workplace, know your rights under the law and what to do if a potential or current employer doesn’t abide by them.

How the Pregnancy Discrimination Act Protects Women

The Pregnancy Discrimination Act requires employers to treat pregnant women the same way they do all other workers or job applicants. It is an amendment to Title VII of the Civil Rights Act of 1964 and is covered under sex discrimination. Employers may not make decisions about hiring applicants or firing or promoting workers based on pregnancy, childbirth, or related medical conditions. All companies that employ 15 or more people are subject to this law.3 

Here is how the law protects pregnant job seekers and employees:

  • Employers cannot refuse to hire applicants because of their pregnancy or pregnancy-related conditions. An employer is not required, however, to hire an unqualified candidate or one who is less qualified than another.
  • Employers can’t require pregnant workers to submit to special procedures that determine their ability to perform job duties unless the employer holds all other employees and job applicants to the same requirement.
  • If a pregnancy-related medical condition keeps a worker from performing job duties, the employer must not treat that individual any differently than other temporarily disabled employees in making accommodations.
  • Employers may not prohibit pregnant employees from working and may not refuse to allow them to return to work after giving birth.
  • Employer-provided health insurance plans must not treat pregnancy-related conditions any differently than they do other medical issues.
  • Employers can’t require pregnant workers to pay larger health insurance deductibles than non-pregnant employees.4

What Should Victims of Pregnancy Discrimination Do?

If your employer or prospective employer has discriminated against you, file a claim with the EEOC. It is essential to be able to state what led to your conclusion. Have as much proof as possible to back up your claim including names of witnesses. Otherwise, it is only your word against your employer’s. 

Employees must file a claim within 180 days of the event. This time limit is extended to 300 days if there is a state or local law that also covers pregnancy discrimination. Job applicants must file a claim within 45 days.5

Step-by-Step Guide to Filing Charges:

  1. Go to the EEOC Public Portal to submit an inquiry. Answer the five general questions listed there. Your answers will determine if the EEOC can help you. Alternatively, you can submit an inquiry at one of EEOC’s 53 field offices located throughout the county or by phone at 1-800-669-4000.
  2. If you are using the EEOC Public Portal and are told the agency can help, go ahead and submit your inquiry. Remember that submitting an inquiry is only the first step and is not the same as submitting a charge of discrimination. It allows you to set up an intake interview with an EEOC staff member at one of 53 field offices located around the United States or by phone. Enter your contact information when requested.
  3. After filing your inquiry and scheduling an intake interview, the EEOC will ask supplemental questions to help begin the process of filing charges. This will occur before your interview.
  4. After your intake interview, decide whether to file a charge. Only after filing one, which can be in person or through the online portal, but not over the phone, will the EEOC notify your employer.

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Racial Discrimination is Pervasive in America’s Workplaces

Dreamstime L 139861469

If you don’t think racism permeates American society, just ask an employment attorney.

Source: EHS Today

June 2020

By David Sparkman

It may be difficult to believe for people who haven’t experienced it, but active racism permeates all too many American workplaces. We’re not referring to “microaggressions” or subtle, unthinking bias reflected in hiring and promotion—we’re talking about routine abuse involving racial epithets and displays of symbols that threaten violence.

In every case that has reached America’s court system, another thing is usually made depressingly clear: The employer was informed of this unacceptable behavior and either chose to do nothing to end it, and in some cases actually led and participated in the abuse.

If you doubt this may be true, consider the experience over the years of Richard B. Cohen, an attorney with the law firm of FisherBroyles, who represents employers. He informed us recently: “I’ve written numerous articles and blog posts over the last 15 years about racial animus still rearing its ugly head in the workplace—and involved in virtually every such case where the victim is an African-American there is the presence of the N-word—or worse, a noose. Or both!”

And if you also are tempted to believe that this behavior is waning and that casual racism is little more than a fading relic of the past, you need to understand that this is a problem that persists and continues to manifest itself in almost every part of the country and in widely varying workplaces.

On June 2, the Equal Employment Opportunity Commission (EEOC) filed suit in federal court charging the CCC Group Inc. construction company for numerous instances of this kind of behavior that took place at a worksite in the state of New York. In its announcement, EEOC pointed out that “one white supervisor attempted to snare an employee with a noose” while another one “told an African-American employee that for Halloween, ‘You don’t even have to dress up. I will dress in white and put a noose around your neck and we’ll walk down the street together.’”

Jeffrey Burstein, regional attorney for the EEOC’s New York District Office, noted that this was just one of the most recent of numerous examples of abhorrent racial discrimination and harassment that African-American employees have experienced over the years. “The use of a noose is especially vicious,” he said. “Such misconduct violates federal law and common decency.”

This terrible behavior directed at African-American employees hasn’t slowed down, according to Cohen. “The workplace is a microcosm of society; in other words, what happens in the workplace is simply a reflection of the dynamics of society’s tensions and conflicts, as can painfully be seen these days on the streets of hundreds of America’s cities and towns.” 

Johnny C. Taylor, Jr., president and CEO of the Society for Human Resource Management (SHRM), points out, “For many people, the workplace is often the first, and sometimes only, place they encounter people unlike themselves. That experience—what happens in the workplace—shapes our thinking about others, and we take that out into the community and home with us.”

Taylor adds, “Rooting out and exposing bias in our workplaces, especially unconscious bias, can have a transformative effect on the larger world we move through.”

Incidents Pile Up

Consider these incidents of workplace racism that have been reported over the last three years:

● A noose was found in an Ohio foundry, and the EEOC says one of the company’s top officials routinely subjected employees to derogatory racial comments.

● A life insurance company agreed to pay $20.5 million to employees who alleged race, national origin and sex discrimination, and retaliation. African-Americans were referred to as “lazy,” had stress balls thrown at them, and were subjected to racially demeaning cartoons, while a high-level manager called African-American female employees the company’s “resident street walkers.”

● At an Illinois fence installation company, a black employee was repeatedly subjected to racial slurs and comments and other offensive conduct, including the display of a noose. Although the company was aware that racial harassment was occurring, it took no action to stop it., EEOC reported.

● A Georgia grocery store owner allegedly subjected three African-American employees to daily use of the N-word and called them “monkey” and other racial epithets. EEOC said the owner also prominently displayed racially offensive posters in a non-public work area.

● At a Minnesota mattress manufacturer, it was found by EEOC that employees were subjected to racial harassment in the form of displays of KKK hoods, nooses and verbal expressions of racial slurs and jokes.

● A Minnesota construction company settled with the EEOC after being accused of subjecting two African-American employees to racial harassment by a white supervisor, which included making racially derogatory comments and use of the N-word, and making a noose out of electrical wires and threatening to hang them.

● At a Brooklyn-based construction company, black laborers were routinely referred to by the N-word, “gorilla” and similar epithets. An employee who complained was fired—another common experience in these cases.

Not surprisingly, most of these incidents are also accompanied by complaints alleging other kinds of discrimination, particularly when it came to work assignments, promotions and disciplinary actions.

The EEOC and employment lawyers like FisherBroyles’ Cohen are not the only ones losing patience with this sort of behavior by employers and their continuing unwillingness to stamp it out. Federal courts in the past had upheld the idea that the single use of the N-word in a workplace could not constitute legal discrimination unless it was part of a pattern of other discriminatory behavior, but in recent years some courts have begun to hold that it can be.

“The latest events show that racism—overt or implicit—is unfortunately embedded in the very fabric of our society, and therefore, in our workplaces,” Cohen doesn’t hesitate to inform us. “Until racism is eliminated from our society, it will, of course, pop up in our workplaces.”

He makes it clear that employers would be well-advised to take all steps necessary to stamp out acts or expressions of racism by going beyond simply making it clear that this is behavior that will not be tolerated. “I know that many companies have employee handbooks with anti-harassment and discrimination provisions—which all employers should have—but employers must do more.”

Human resources experts say that employers need to insist on including conducting professional training sessions for all employees, much the same as employers are expected to do when it comes to sexual harassment training, which is now required by law in several states.

“Make sure that senior managers are acutely aware of your anti-harassment policies and procedures and provide good role models for the workplace—top-down behavior is perhaps the most important preventive measure which you can take,” Cohen stresses. “Employees look to the executives as role models to see what is or is not acceptable behavior.”

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Race-Based Claims Filed Under 42 USC 1981 Offer Advantages.

By Bryan A. Chapman, Esquire

Section 1981

Originally included as part of the Civil Rights Act of 1866, Section 1981(a) states in relevant part:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other

Race and ethnicity based discrimination claims, as well as, retaliation claims, brought under 42 USC Section 1981 have advantages over similar claims brought under Title VII.

Under Section 1981:

  • Plaintiffs are not required to submit their claims for review by the Equal Employment Opportunity Commission (EEOC).
  • Employer are exposed to unlimited damages.
  • The statute of limitations can be as long as four years.
  • Both employers and individual employees can be named as defendants.
  • Employers with fewer than fifteen employees can be held liable for damages.

Under Title VII:

  • Plaintiffs must submit their claims for review by the Equal Employment Opportunity Commission (EEOC) and EEOC must issue a “Right to Sue” letter.
  • Employers are exposed to a maximum of $300,000 in compensatory and/or punitive damages.
  • The statute of limitation for filing a complaint with EEOC is generally 180 days.
  • Only employers can be named as defendants.
  • Employers with fewer than fifteen employees cannot be held liable for damages.

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COVID-19: You should not have to risk your life to earn a living.

By Bryan A. Chapman, Esquire

If White House aides and Secret Service agents can become infected with COVID-19, then who is safe? We know that hospitals, nursing homes, jails, prisons, homeless shelters, and meat packing plants are hot spots for COVID-19 infections. But, is any workplace safe from COVID-19 infections?

In the midst of the 2020 COVID-19 pandemic, the country is abandoning stay at home orders and reopening the economy this summer. Millions of workers will be exposed to COVID-19 and, in the absence of a vaccine, thousands will die from COVID-19 infections.

For most workers, a COVID-19 infection will not be fatal. But, for a small group of workers, a COVID-19 infection will be fatal. Numbers show that for older workers with a comorbidity (hypertension, diabetes, heart disease, etc.) a COVID-19 infection can be fatal.

Americans with Disability Act (ADA)

The Americans with Disability Act (ADA) offers protection to workers with disabilities who are at heightened risk from COVID-19. The ADA allows workers with disabilities to request a reasonable accommodation from their employers. Employers are obligated to provide a reasonable accommodation provided doing so does not cause an undue hardship.

In the absence of a COVID-19 vaccine, a reasonable accommodation would involve reducing a worker’s exposure to COVID-19 until an effective COVID-19 vaccine can be administered. The ideal reasonable accommodation would be for the worker to work from home. However, working from home may not be possible.

Under the ADA, the worker and their employer have to engage in an interactive process to determine what kind of reasonable accommodation is available. Employers are expected to act in good faith, but this is not always the case.

An employer may fail to provide a worker with a reasonable accommodation. Retaliation is commonplace. And, it is not unusual for an employee who has been granted a reasonable accommodation to eventually be terminated for not performing the job for which their were hired. Reasonable accommodation claims can be contentious. These claims can end up in litigation.

However, for an older worker with a comorbidity, pursuing a reasonable accommodation can be a matter of life or death.

Word of caution: Consult an experienced civil rights attorney before seeking a reasonable accommodation.

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EEOC Seeks Assurance of Protections in Intersectional Sex–Age Discrimination Claim

Source: EEOC

July 25, 2019

On Tuesday, June 11, 2019, the Equal Employment Opportunity Commission (EEOC) filed an amicus curiae brief in Frappied et al. v. Affinity Gaming Black Hawk, LLC (No. 19-1063; 10th Cir.)—a case involving older casino workers who allege they were illegally terminated due to age under the Age Discrimination in Employment Act of 1967 (ADEA). Of particular note, female plaintiffs in the case additionally claimed they were unlawfully terminated due to the combination of their age (under ADEA) and gender under Title VII of the Civil Rights Act of 1964 (Title VII). In its brief, the EEOC argued that the district court erred in dismissing the older women’s Title VII claim earlier this year. The case is noteworthy in that it represents a rare instance of a cross-statute complaint invoking both the ADEA and Title VII.

Claims of discrimination that involve the combination of two or more protected classes (such as age and gender as in Frappied) have been referred to as “intersectional discrimination” by the EEOC. According to the Section 15: Race and Color Discrimination of the EEOC’s Compliance Manual:

“Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also because of the intersection of two or more protected bases (e.g., race and sex). For example, Title VII prohibits discrimination against African American women even if the employer does not discriminate against White women or African American men. Likewise, Title VII protects Asian American women from discrimination based on stereotypes and assumptions about them ‘even in the absence of discrimination against Asian American men or White women.’ The law also prohibits individuals from being subjected to discrimination because of the intersection of their race and a trait covered by another EEO statute – e.g., race and disability, or race and age.”

The courts have historically referred to such intersectional discrimination claims as “sex-plus” claims (e.g., sex-plus-race), and their interpretation of Title VII as it relates to these claims is complicated and has continued to evolve over the past several decades.

In Frappied, the district court took issue with the age aspect of the sex-plus-age claim, holding that “the scope of liability under the ADEA is narrower than that under Title VII.” However, in its amicus brief, the EEOC points out that in prior cases the “plus” factor in sex-plus claims has included characteristics not protected from discrimination by Title VII or other independent federal statutes (e.g., marital status). The EEOC views the ADEA’s more limited scope as immaterial to whether a sex-plus-age claim should stand and is looking to the Court of Appeals for the Tenth Circuit to reverse the district court’s ruling.

With this filing, the EEOC has signaled its commitment to ensuring that federal courts recognize intersectional discrimination claims under both Title VII and the ADEA. Indeed, in its ADEA @ 50: State of Age Discrimination Report, the EEOC stated that it “has long recognized the theory of ‘intersectional discrimination’ under both Title VII and the ADEA” (see also the 2006 EEOC Compliance Manual). This action also comes on the heels of the Office of Federal Contract Compliance Programs (OFCCP) stating last August in Directive (DIR) 2018-05 that they “may explore the interaction of sex and race” in their regression analyses of contractor compensation data.

Employers may want to watch the outcome of Frappied closely as it could underscore a need to expand the scope of proactive EEO analyses conducted (e.g., on hiring, pay, terminations) to include various combinations of protected classes of individuals that include age. Because intersectional claims of discrimination by definition involve smaller groups of individuals, having sufficiently large samples to conduct relevant statistical analyses may pose an obstacle to both plaintiffs attempting to establish evidence of discrimination and employers looking to conduct proactive analyses. As always, we recommend that employers reach out to their legal counsel to discuss these complex issues.

By Don Lustenberger, Ph.D., Senior Consultant, and Sarah Layman, M.S., Senior Consultant at DCI Consulting Group

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Avoiding Discrimination in Layoffs or Reductions in Force (RIF)

U.S. Equal Employment Opportunity Commission


Making an Employment Decision?

Before implementing a layoff or reduction in force (RIF), review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws.

  • List the employees who would be laid off or terminated based on your layoff/RIF criteria.
  • Determine whether certain groups of employees are affected more than other groups.
    • For example, to determine whether female employees may be affected more than male employees, compare the percentage of female employees scheduled for layoff/RIF to the percentage of female employees in your workforce.
  • If certain groups of employees are affected more than other groups, determine if you can adjust your layoff/RIF selection criteria to limit the impact on those groups, while still meeting your business’s needs.
    • For example, you decide to lay off the most recently hired employees due to budget constraints. Female employees account for 30% of your workforce and 85% of the employees scheduled for layoff. Determine whether you can adjust your layoff criteria in a way that allows you to meet your financial goals while also reducing the impact on female employees. For example, you might determine whether alternative layoff criteria, such as employees’ profitability, productivity or expertise, would enable you to reach the desired financial outcome and result in the layoff of fewer female employees.

This process can be complicated. You may want to consult a lawyer or contact the EEOC for assistance.

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Federal Employees – Discrimination

 

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

2. What if I miss the 45-day deadline?

3. Once I initiate the EEO process at my agency, what happens next?

4. Can I resolve my case during the counseling period?

5. What happens if I am unable to resolve my case within the counseling period?

6. What happens once I have filed a formal complaint?

7. Will my complaint be investigated?

8. Will I have a chance to respond to the Agency’s information?

9. How long will the investigation take?

10. Will discovery be allowed?

11. How do I prove my case during the investigation?

12. What happens once discovery ends?

13. What happens at the EEO hearing?

14. What happens after the hearing is over?

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

16. Should I get a lawyer?

1. I am a federal employee and believe that I have suffered discrimination at work. Do I have a different process to follow than other employees?

Yes. When a federal employee believes she has been the subject of discrimination or retaliation, she must go through an administrative process in an attempt to resolve the situation. The first thing a federal employee must do to start this process is to contact an EEO counselor at the Agency where he or she is employed. This step is called “initiating the EEO process.” You must initiate the EEO process within 45 days of the last discriminatory or retaliatory incident.

2. What if I miss the 45-day deadline?

The law provides that the time limit is extended if you show that:

  • You were not notified of the time limits and were not otherwise aware of them;
  • You did not and reasonably should not have known that the discriminatory matter occurred; or
  • Despite due diligence you were prevented by circumstances beyond your control from contacting the counselor within the time limits.

However, you should assume that you only have 45 days, as it may be difficult to prove that these exceptions should apply to your situation.

3. Once I initiate the EEO process at my agency, what happens next?

The counselor will discuss the claims with you and may have you fill out pre-complaint paperwork. The counselor will advise you about the EEO process, but the counselor should not give legal advice, as the counselor works for the Agency.

EEO counseling generally lasts 30 days, unless you agree to extend the counseling period. During the counseling period, the counselor should advise management of your concerns and attempt to resolve them.

4. Can I resolve my case during the counseling period?

While it is possible to gain resolution informally through the counselor in the counseling stage, it does not occur very often. However, you and the Agency may agree to early Alternative Dispute Resolution (ADR) or mediation during the counseling period, which will extend the counseling period, usually to 60 or 90 days instead of 30 days.

Some cases are suitable for early ADR. Early ADR is an opportunity to resolve a complaint early on in the process, saving time, money, and resources, for all parties involved. Early ADR may also preserve the working relationship, allowing both parties to interact amicably in the future. However, both parties need to agree to ADR as it is voluntary. Early ADR is best for cases where the facts are relatively straightforward and little further investigation or discovery is necessary.

5. What happens if I am unable to resolve my case within the counseling period?

After the counseling period concludes, if resolution has not been reached, the counselor issues the employee a Notice of Right to File a Formal Complaint, along with a complaint form. The employee has 15 days from receipt of the Notice to file a formal complaint.

The complaint should not be long and detailed. The complaint should simply state the bases of discrimination (for example, sex (male), disability (asthma), and retaliation (prior EEO activity)). The complaint should also state the incidents, or issues, which you believe show discrimination or retaliation, including dates. The complaint should name the individuals alleged to be responsible for the discrimination or retaliation, also called the Responsible Management Officials (RMOs).

The complaint may also ask for the remedy requested. While the employee need not list every remedy specifically, she should state that she desires compensatory damages (up to $300,000, although an amount need not be specified), attorney fees and costs, and any other relief that would make her whole. Punitive damages are not available against the U.S. government in EEO cases.

6. What happens once I have filed a formal complaint?

After filing the formal complaint, the Agency may issue an acceptance letter, an acceptance and partial dismissal letter, or a dismissal letter, accepting or denying the claims in the formal complaint. It is important that you, as the Complainant, review this letter carefully and assure that it covers all the bases and issues you desire. If it does not, you should write a letter within the time period allotted, often 5 or 7 days, to the Agency explaining why the Agency incorrectly determined the bases and/or issues. The Agency very often will not adjust the bases or issues accordingly, but the issue will be preserved for appeal or trial. The issue can be raised again before an EEOC Administrative Judge, in the case of a partial acceptance dismissal, or the EEOC Office of Federal Operations, in the case of a complete dismissal.

7. Will my complaint be investigated?

Yes. Once the complaint has been accepted, the complaint is forwarded on to an EEO investigator, who either works directly for the Agency or works for the Agency on a contract basis. The investigator will interview witnesses and gather documentation regarding the complaint. The investigator may conduct the investigation through in-person interviews, telephonic interviews, or through written affidavits. The investigator often begins his or her investigation with your testimony as the Complainant. You will either meet with the investigator and sign off on a written affidavit or submit written responses, under oath, to the investigator’s questions. It is very important that you give a full and complete version of the facts during the investigation. However, you must also be concise and responsive to the investigator’s questions. You can also provide the investigator with relevant documentation.

Perhaps most importantly, you should tell the investigator, in writing, as part of your affidavit, what supportive witnesses the investigator should interview and to what those witnesses can testify. Finally, you should make sure you tell the investigator, in writing, through your affidavit, why you think the Agency subjected you to discrimination or retaliation, including if others outside of your protected category were treated more favorably, how, by whom, and when.

8. Will I have a chance to respond to the Agency’s information?

Maybe. After the investigator gathers information from witnesses and management, the investigator often gives you a chance to rebut management affidavits. When doing so, you should rebut each affidavit point-by-point in a clear and concise manner. You should always keep in mind that the investigation is the only thing the Administrative Judge (AJ) will have regarding your case for the majority of the case processing, until hearing. You should also keep in mind that the Agency will review the Report of Investigation (ROI) and determine its position on resolution based, in part, on the ROI. Thus, it is very important for you to tell the whole story in the ROI and list all relevant supportive witnesses and facts in a clear and concise manner.

9. How long will the investigation take?

The ROI should be issued within 180 days of when you filed the complaint. Within 30 days of when you receive the receipt or after 180 days from filing has passed, you may request a hearing with an EEOC Administrative Judge (AJ). An AJ will then be assigned to the matter and will issue an order to the parties, setting forth many important deadlines, with which the parties must comply or risk prejudicing their case.

10. Will discovery be allowed?

Yes. The AJ will give the parties the opportunity to conduct discovery, in order for each side to obtain relevant information from the other to aid the preparation of each party’s case. The discovery process includes asking the opposing party for additional information through written questions, written requests for production of documents, written requests for admissions, and depositions. Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyer asking the witness questions about the case. Transcripts from depositions can be used at a hearing to show a witness’s inconsistent testimony or, in certain situations, in lieu of in-person testimony by that witness. It is very important that you as the Complainant prepare for your deposition adequately, reviewing the record and making sure your answers are consistent.

In general, discovery is a very important process because it allows the parties to gain more information to assess their case and to hopefully support their arguments. Based on discovery, the parties can often better assess whether their case meets the legal burdens it will need to meet to be successful at hearing. Discovery usually lasts approximately 90 days.

11. How do I prove my case during the investigation?

It is the employee’s burden to prove by a preponderance (over 50%) of the evidence that a motivating factor of the decision maker was based on the employee’s protected classification such as race, age or disability or, in retaliation cases, because the employee participated in his/her or another employee’s EEO case. This means that after you allege in your EEO complaint that an adverse action was taken against you because of race, for example, the agency has the burden to explain why it took the action and that those reasons are legitimate, nondiscriminatory and nonretaliatory reasons. The burden then switches to the employee to prove there is direct evidence of discriminatory or retaliatory motive (such as the rare statement by the decision maker indicating bias or intent) or indirect evidence (that the reasons offered are not true, but are pretexts for discrimination or retaliation). If you cannot prove that the reasons given for the action are not true or are not credible, you cannot win your EEO claim.

12. What happens once discovery ends?

After the discovery period ends, the parties prepare for the hearing, a session with the administrative judge where both sides present evidence. The parties may also make additional attempts at resolving the case, based on what was uncovered in discovery and their resulting assessment of the case. The AJ may pressure the parties to resolve the complaint. In doing so, the AJ may discuss the merits of settlement with one party or both. The pre-hearing period may consist of motions to decide the case without a hearing (usually brought by the Agency), pre-hearing submissions (listing witnesses, expected testimony, issues to be tried, and exhibits), a pre-hearing conference with the opposing party and the judge, and perhaps a settlement conference or ADR session.

13. What happens at the EEO hearing?

The EEO hearing is conducted by the AJ, either at the EEOC field or regional office, the Agency office, or at a location designated by the AJ. At the EEO hearing both parties are given an opportunity to do a short (often five to ten minutes) opening statement.

In EEO complaints, the Complainant bears the burden of proof at all times, although the burden of persuasion shifts. Therefore you will present your witnesses first, after the opening statements. Your witnesses should probably include:

  • you, as the Complainant;
  • any co-workers who witnessed the treatment alleged and ideally who support your claims of discrimination and/or retaliation;
  • your doctors (especially important in disability cases, but also important as to damages in other cases); and,
  • your family members (to most often testify to damages, such as pain and suffering).

Hearsay is allowed in administrative proceedings.

After you call all of your witnesses, the Agency will call witnesses, likely including the named RMOs. You have a right to properly cross-examine all Agency witnesses, as the Agency has with you and your witnesses. After the Agency witnesses testify, you are given an opportunity for rebuttal. During rebuttal, you should clear up any discrepancies raised in the Agency’s testimony, either through your testimony or the testimony of witnesses.

Both parties may use physical documents or things at the hearing, as long as the parties comply with the AJ’s rules in notifying the AJ of the evidence and getting the AJ’s approval. Each party is given an opportunity to do short closing arguments or written briefs instead of oral closing arguments.

14. What happens after the hearing is over?

After the hearing, the AJ may make a bench decision, which is an oral decision on the record. Otherwise, the AJ will issue a written decision. The written decision must then be accepted or rejected by the Agency in a Final Agency Decision (FAD). After the FAD is issued, you as the Complainant have the opportunity to appeal the decision to the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations. Instructions for such appeals should be contained in the FAD. For more information, please see the EEOC’s Federal EEO Complaint Processing Procedures.

15. Can I file a lawsuit if I am not happy with the EEOC’s resolution of my case?

Yes. You can file a federal court lawsuit if one of the following conditions are present:

 180 days have passed since you filed your formal EEO complaint and the EEO investigation has not been completed.

 You receive a Report of Investigation on your EEO complaint and you choose to file a lawsuit rather than request a final agency decision or request a hearing with an EEOC Administrative Judge.

 You requested an EEOC Administrative Judge hearing and the AJ issued a decision against you or the AJ issued a decision in your favor, but it was rejected by the Agency. In either case, you will have 90 days from the date of the final agency decision based on the EEOC AJ’s decision to file a lawsuit in federal court.

 If you file an appeal of the final agency decision or the EEOC AJ’s decision to the Office of Federal Operations of the EEOC, and the OFO/EEC finds against you, you will have 90 days from the date of the OFO/EECO decision to file a federal court lawsuit.

If you file a federal court lawsuit, it is a “de novo” review by the court. This means that the case starts over, no matter what the decisions may have been by the EEOC AJ or the Agency. You will have the opportunity to conduct discovery and prove your case in a jury trial.

16. Should I get a lawyer?

Getting legal advice as early as possible when you believe you have been discriminated against or retaliated against is highly recommended. A legal consultation with an attorney experienced in federal employee claims will evaluate your facts under current laws and court decisions and give you the pros and cons of your case. There are many factors that go into a case evaluation. You may be going through this EEO process once or twice in your career, whereas the agency personnel and EEO representatives do this every day. If you are not informed on how the process works and what evidence is needed, the agency and management may create a record to defend against your case and you may not understand how to find and present evidence in your favor.

Getting a consultation does not mean the attorney must represent you throughout the process or in federal court. Knowing the strengths and weaknesses of your case as early as possible can save you money and effort and can assist you in documenting and finding the evidence you need to win your EEO case or to find reason to withdraw your EEO case. Finally, if you win your case before the EEOC AJ or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.

 

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This is not your father’s EEOC.

By Bryan A. Chapman, Esquire

The Equal Employment Opportunity Commission (EEOC) was created in 1965 as a result of the Civil Rights Act of 1964 becoming law.  The Civil Rights Act of 1964 marked the end of the 100 year old Jim Crow era in the United States.

Under Jim Crow, Southern states enacted laws that made segregation mandatory in the everyday lives of blacks and whites.  Jim Crow laws were designed to prevent blacks from advancing both socially and economically.  In the Northern states, blacks faced discrimination and segregation in hiring, housing, and education.

The EEOC’s purpose is to protect workers from workplace discrimination and its mandate is to investigate worker’s complaints.  In EEOC’s early years, discrimination and segregation in hiring were routine practices in both Southern and Northern states.  Workplace discrimination occurred in plain sight.  Workers could rely on EEOC to investigate their complaints.  And, these investigations could lead to out-of-court settlements.

Today, almost sixty years later, workers can no longer rely on EEOC to investigate their complaints.  For decades, EEOC has had a backlog of cases because Congress has not provided the funding it needs to investigate an ever increasing number of discrimination complaints.  In order to cope with its backlog, EEOC is prioritizing cases, which means an ever increasing number of cases are dismissed before they can be investigated.  This practice leaves many workers out in the cold.

Workplace discrimination is difficult to prove.  Workplace discrimination is no longer occurs in plain sight as it did in the 1960’s.  Employers take measures to avoid costly discrimination lawsuits.  Outside consultants and HR personnel train management on how to prevent workplace discrimination, as well as, how to cover up workplace discrimination when it occurs.

The employment laws strongly favors employers over workers.  For instance, the employment-at-will doctrine provides employers with a lot of protection against allegations of discrimination.  The doctrine says that an employer can termination (which includes denial of promotion, demotion, and undesirable reassignment) a worker at any time and for any reason, good or bad, provided it is not done for a discriminatory reason.  This means that a worker is burdened with proving that his termination was a direct result of discrimination.

When an employer decides to terminate a worker, it generally places the worker under heightened scrutiny for a period of time in order to generate a paper trail of deficient job performance.  The paper trail is a defense against allegations that the termination was discriminatory.  Furthermore, employers routinely deny all allegations of discrimination.  It means that in the absence of a “smoking gun” workplace discrimination is difficult to prove.

Most workers are aware that federal statutes prohibit workplace discrimination based on race, sex, national origin, religion, age, and disability.  Unfortunately, federal statutes give workers a false sense of security.  The outcome of an actual discrimination case depends on the applicable case law of a particular locality and relevant facts that may be in dispute.  Only, an experienced lawyer can gain access to and make effective use of this kind of information.  As a result, workers who files discrimination complaints with EEOC, without consulting an experienced lawyer, are generally out of their depth.

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Do Companies Try to Settle Harassment Claims Out of Court?

by Ruth Mayhew; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA; Updated March 11, 2019

Do Companies Try to Settle Harassment Claims Out of Court?

Harassment lawsuits are costly, so out-of-court settlements save employers the time and expense of defending their employment practices. The U.S. Equal Employment Opportunity Commission, the agency that enforces employment laws, reports 26,699 charges of workplace harassment during fiscal year 2018. Approximately 7 percent of those claims were settled, and the EEOC recovered more than $134 million in damages, much of it through out-of-court settlements on behalf of employees who filed harassment claims. Out-of-court settlements often are more attractive to employers than gambling with a potentially sympathetic jury.

Early Stage Settlement

When an employee files an initial complaint about workplace harassment, it’s rare that the company is thinking about settlement at this point, unless there have been similar incidents in which the company has been cited or sued for harassment claims found to have merit. At this point, in addition to considering settling claims, the company should also consider organizational changes and mandatory leadership and employee training to eliminate unlawful workplace behavior and unfair employment practices.

Workplace Harassment Investigations

A human resources department staffer, outside consultant or a lawyer typically investigates workplace harassment claims. The person assigned to the investigation must know what constitutes workplace harassment vis-à-vis a thorough understanding of employment laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the National Labor Relations Act and the Taft-Hartley Act. Throughout the fact-finding process, with correct application of statutory law and knowledge of past practices, settlement may be part of the discussion among decision makers in the company.

Investigative Process and Goals

The goal of every workplace investigation is to determine whether the harassment occurred, and if so, to what extent the employer is liable. During the course of an investigation, it might become clear that settling the harassment claim is a wise move – particularly if the investigator discovers evidence of egregious conduct that would make any jury decide in the employee’s favor. But if the investigation reveals that the company’s employment practices are defensible, the organization may decide that settlement is premature.

Impending Litigation Outside of EEOC Activity

Some harassment claims that the EEOC investigates are found to have merit, and even though an employee files a charge of discrimination with the EEOC, she can move forward with legal representation and seek redress through the courts. An employee has to file a charge of discrimination with the EEOC first, but she doesn’t have to wait until the agency completes its investigation to file a lawsuit – she can request a right-to-sue letter from the EEOC if she wants to move forward with litigation. In some instances, employees immediately retain legal counsel with the desire to press forward with litigation as quickly as possible.

The decision concerning whether to file a lawsuit before the EEOC has finished investigating the claim is up to the employee and her legal counsel, if any, and in some cases, whether the employer’s actions were especially egregious. Once a formal lawsuit is filed and the discovery process is underway to uncover details about the employee’s claim, the company’s investigative approach and past practices, the cost of litigation compels some employers to consider out-of-court settlement before the trial begins.

Costs to Settle a Claim

The cost to settle a harassment claim out of court can be far lower than damages that a court might award. Small businesses that lose harassment lawsuits could be liable for upwards of $50,000 in damages – and larger organizations, up to $300,000. In addition, depending on how the employer postures its case, a jury could award much higher amounts for punitive damages – some headlines report jury awards in the millions of dollars. In addition, employers consider the intangible costs of fighting a harassment suit instead of settling it.

Settling harassment claims can save the organization from bad publicity, which can lead to business losses, plummeting employee morale and a sullied reputation in the business community.

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How Does an EEOC Complaint Hurt an Employer?

by Cam Merritt; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA

Updated March 1, 2019

When the federal Equal Employment Opportunity Commission (EEOC) receives a complaint that an employer illegally discriminated against its workers, that employer may be in for a rough ride. The ensuing months can bring time-consuming official requests for information, intrusive investigations, large legal bills, negative publicity and, if the complaint is upheld, expensive damages.

The EEOC Ground Work

The EEOC investigates complaints of discrimination based on race, color, national origin, religion, sex, age and disability. In general, only employers with 15 or more employees are subject to EEOC oversight. Any employee can file an EEOC complaint, not just those who have been victims of discrimination.

Inspection Procedure

Regardless of whether an EEOC complaint has merit, the employer is going to have to invest time, effort and sometimes money to deal with it. When a worker files a complaint, the EEOC notifies the employer and asks it for a “statement of position,” in which it offers its side of the story. The EEOC follows up with a formal request for the employer to supply documents and other information relevant to the case, such as copies of company human resources policies and personnel files.

EEOC staff may also visit the workplace, something that the agency itself acknowledges can be disruptive to company operations. While on site, the staff may ask the employer to make employees available for interviews. The employer can say no, but the EEOC can still contact them away from work – without the employer’s knowledge or permission.

A Typical Investigation Proceedings

All of this activity so far is simply fact-finding; the EEOC will use the information it turns up to determine whether the complaint merits further action. If so, it moves on to a formal investigation, which will chew up more time and money. The investigators have the authority to subpoena company documents, prohibit the employer from destroying any documents of any kind without permission and compel employees to provide statements.

The EEOC says the typical investigation lasts six months. If the employer doesn’t have an attorney involved in the case by now, it needs one to advise management of its rights and responsibilities. Robin Shea, a partner at the national employment law firm Constangy Brooks & Smith, says employers operating without a lawyer can turn even a seemingly trivial complaint into a major investigation by unintentionally admitting that a violation occurred or providing too much information.

Mediation or Costly Litigation

An employer may be able to avoid a formal EEOC investigation by agreeing to try to resolve the matter through mediation or by settling the complaint. Doing so will probably bind the employer to changing its policies and procedures, and the employer may have to compensate employees who complained. But the employer doesn’t have to admit any guilt or liability, and any agreements can remain confidential.

If the employer declines to mediate, or if the EEOC concludes that the case is too serious for mediation, the EEOC may sue the employer. Even if the EEOC decides not to sue – or take any action – the employees who filed the complaint reserve the right to sue. Regardless of whether the EEOC or the worker does the suing, litigation means not only considerable legal expense for the employer, but also bad publicity.

Penalties and Indemnifications

Penalties for an EEOC complaint – whether resolved through mediation, settlement or litigation – start with providing relief for workers who suffered discrimination. That includes paying workers’ back wages, reinstating them or even promoting them, depending on the nature of the complaint. Employers can be ordered to pay complainants’ legal and court costs. Things get worse if the case goes to trial and the employer loses.

The court can award compensatory and punitive damages to the employees who filed the complaint. Such damages are capped at $50,000 per person when the defendant is an employer with 15 to 100 employees; $100,000 for employers with 101 to 200 employees; $200,000 for 201 to 300 employees; and $300,000 for more than 300 workers. However, in cases of age discrimination and of sex discrimination in pay, the damages are limited to an amount equal to the complaining employees’ lost wages.

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