Skip to content

A Look at the EEOC’s Latest Guidance on National Origin

January 13, 2017

By Rachel A.H. Horton

The U.S. Equal Employment Opportunity Commission has issued new guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964. The enforcement guidance is significantly more detailed than the last iteration of this guidance published in 2002. Although the overarching legal framework of Title VII has not changed much, the EEOC stakes out a number of new positions, which are highlighted here.

Title VII prohibits employers from discriminating against employees because of their real or perceived national origin. National origin is, in turn, a broad concept that includes the place where an individual or her ancestors are from as well as her physical, cultural, and linguistic characteristics. The EEOC has expanded this definition by making it clear that:

  • Employers may not discriminate against employees because they are associated with (for example, has a child with) a person of a different national origin.
  • A member of a particular national origin is capable of discriminating against someone of the same national origin.
  • Employment discrimination based on citizenship status is unlawful if it has the purpose or effect of discriminating based on national origin.
  • Title VII prohibits employers from engaging in “intersectional” discrimination, which is discrimination that targets a specific subgroup of employees, such as African men.

In terms of hiring practices, the EEOC now cautions against imposing a policy that screens out applicants who lack a social security number. Such a practice may have a disparate impact on new lawful permanent residents.

Some of the most significant changes relate to harassment, which was asserted in 37 percent of national origin discrimination claims filed in fiscal year 2015. The EEOC now notes that when a supervisor engages in harassment that includes a tangible employment action, such as firing, the employer is not entitled to assert a defense based on the employee’s failure to take advantage of the employer’s reporting system. Thus, an employer may be deprived of an otherwise-valid defense based on its corrective procedures where one of its supervisors repeatedly mocked a Russian employee’s accent and decided to demote that employee based on his national origin.

The EEOC also added guidance that focuses on human trafficking and discriminatory employment practices that adversely impact workers who have been illegally smuggled into the country. For example, the EEOC explains that it would be actionable retaliation for an employer to threaten to report to the government that its workers are undocumented if the workers participate in an EEO investigation. Similarly, the EEOC notes that compelled labor goes hand-in-hand with a hostile work environment and states that working under the threat of deportation is a factor in determining whether an employer is liable for national origin discrimination.

The guidance ends with a new list of “promising practices” that the EEOC encourages employers to consider implementing to help guard against national origin discrimination. These suggestions include translating policies into the languages spoken by employees and establishing written objective criteria, which are tied to business need, for evaluating applicants and employees.

For more information regarding this or other labor and employment issues, please contact Rachel A.H. Horton, a member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

PA Superior Court Clarifies that Employers May Not Mandate Payroll Cards

October 25, 2016

By Karen Baillie

It is helpful to have this clarification, even if perhaps this is not the news employers have been eagerly awaiting. On October 21, 2016, the Pennsylvania Superior Court weighed in on the issue of mandatory payroll cards. As we previously discussed here, the issue arose in the case of Siciliano v. Mueller. The case is a class action brought the employees of several McDonald’s restaurants operated by the Muellers. The employees claim that they were forced to receive their pay on paycards which charged fees for them to access their own money. (The payroll debit cards allowed only one free withdrawal per pay, and after that, they charged five dollars per withdrawal). The Pennsylvania Superior Court agreed with the lower court and found that mandatory payroll cards are not permitted under the Pennsylvania wage payment collection law.

The court focused on the non-voluntary nature of the cards and the fact the cards carried fees: “The use of a voluntary payroll debit card may be an appropriate method of wage payment. However, until our General Assembly provides otherwise, the plain language of the WPCL makes clear that the mandatory use of payroll debit cards at issue here, which may subject the user to fees, is not.” Siciliano v. Mueller¸No. 1321 MDA 2015, 2016 Pa. Super 229 (October 21, 2016). Therefore, employers of Pennsylvania employees should continue to follow our earlier guidance, to wit, procure employees’ advance written permission before paying them by debit card or direct deposit.

For more information regarding this or other labor and employment issues, please contact Karen Baillie, a member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

EEOC Settles First Sexual Orientation Discrimination Suit

July 6, 2016

By Jo Bennett

The U.S. Equal Employment Opportunity Commission (EEOC) announced last week that it had settled a suit against Pallet Companies (doing business as IFCO Systems) for $202,200.  As we previously discussed here, this suit is one of the first cases filed by the EEOC in which the agency contends that the prohibition of sex discrimination under Title VII of the Civil Rights Act of 1964 extends to sexual orientation.

According to the complaint, a lesbian employee at IFCO’s Baltimore facility was harassed by her supervisor because of her sexual orientation. When she complained to management and called the employee hotline to report the harassment, she was fired.

Under a consent decree, IFCO Systems agreed to pay $182,200 to the employee and to donate $20,000 to the Human Rights Campaign Foundation to support that organization’s workplace equality program.  The consent decree also requires the company to hire an expert on sexual orientation and gender identity to develop a training program for IFCO Systems’ managers, supervisors and employees.

Protecting lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions is one of six national priorities identified by EEOC’s Strategic Enforcement Plan. Therefore, employers may want to review their EEO policies and amend them where necessary to include LGBT workers. In addition, employers may want to consider training for supervisors and managers on sexual orientation and gender identity issues in the workplace.

For more information regarding this or other labor and employment issues, please contact Jo Bennett, a member of Schnader’s Labor and Employment Practices Group.   

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

Medical Marijuana is Coming to PA: Are you Ready?

June 23, 2016

By Jo Bennett

In April, Governor Wolf signed legislation making Pennsylvania the 24th state to legalize medical marijuana. Though the law went into effect in May, it will be another 18 months before the program is up and running, as the Commonwealth must first develop regulations for marijuana growers, processors, retailers and prescribing doctors. Ultimately, Pennsylvanians will be able to access the medicine in pill, oil, or ointment form upon a doctor’s determination that they suffer from one of 17 serious conditions, including cancer, HIV/AIDS, Parkinson’s Disease, seizures, and multiple sclerosis.

What does all of this mean for employers? Are accommodations required? How will the law affect employee discipline, federal drug testing mandates, and workplace safety? How will it impact health insurance policies?

Join Schnader and The Graham Company on June 30th for a free seminar delving into these topics. For more information and to register, click here.

For more information regarding this or other labor and employment issues, please contact Jo Bennett, a member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

OFCCP Issues Revised Sex Discrimination Rules

June 16, 2016

By Jo Bennett

On Tuesday, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) finalized revisions to its sex discrimination rules, bringing them in line with current Title VII jurisprudence. The current rules were written in 1970, and do not reflect sex discrimination principles that have evolved over the past four decades.

In a statement, OFCCP director Patricia A. Shiu said the agency was bringing the guidelines “from the ‘Mad Men’ era to the modern era.”

The announcement coincided with the White House Council on Women and Girls inaugural “United State of Women” Summit, which focused on gender equality, and included a broad discussion of economic empowerment.

Some highlights of the new rule include:

  • Contractors must provide workplace accommodations to employees due to pregnancy, childbirth and related medical conditions.
  • Contractors are prohibited from paying workers differently because of their sex.
  • The rule prohibits discrimination on the basis of sex relating to benefits such as health insurance, retirement plans, and profit-sharing or bonus plans.
  • Sexual harassment is prohibited.
  • Contractors are prohibited from setting requirements for jobs based on an applicant’s sex unless they can demonstrate that the requirements are a bona fide occupational qualification. A similar prohibition relates to height or weight qualifications.
  • The rules make clear that sex discrimination includes gender identity.

The rules go into effect August 15th.  While the procedures of many federal contractors already conform to the new rules, it is a best practice to review recruitment, hiring, and training policies to ensure compliance.

For more information regarding this or other labor and employment issues, please contact Jo Bennett, a member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

Employers Cannot Shorten Time Frame to Bring Claims Under N.J. LAD

June 16, 2016

By Emily J. Hanlon

In a decision issued yesterday in Rodriguez v. Raymours Furniture Company, the Supreme Court of New Jersey ruled that provisions in employment agreements shortening the limitations period for bringing claims under the New Jersey Law Against Discrimination (LAD) are unenforceable.

At issue in the trial court was the disability discrimination claim of a Raymour & Flanigan employee who, after suffering a work-related injury requiring a five-month absence from work, was terminated as a part of a reduction-in-force just two days after resuming his full-duty responsibilities. In his employment agreement, the plaintiff agreed that “any claim or lawsuit relating to my service with Raymour & Flanigan must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit.” Plaintiff further agreed: “I waive any statute of limitations to the contrary.”

The trial court granted Raymour & Flanigan’s motion for summary judgment based on the six-month contractual limitation provision, as plaintiff had not brought suit until seven months after his termination. The Appellate Division affirmed.

Reversing the trial court’s decision, the Supreme Court focused on the public policy interests embodied in the LAD, noting that the Appellate Division had focused only on cases that generally dealt with private agreements to shorten statutes of limitations pertaining to common law actions, and had not “engage[d] in any searching analysis of whether public policy was contravened by the shortening of a limitations period for a public interest statute.”

The Supreme Court reviewed the legislative history of the LAD and decisional law recognizing the private and public interests in eradicating discrimination that are intertwined in and furthered by the LAD, also noting that the Legislature has acted only to strengthen the LAD over time, adding more protections and for more classes of individuals. The court concluded that contractual shortening of the LAD’s two-year limitations period is not simply shortening a limitations period for a private matter, and rather is contrary to the important public policy expressed in and by the LAD.

The Court further reasoned that because discrimination claims take time to pursue, shortening the limitations period effectively eliminates claims. The Court also noted that shortening of the limitations period “would seriously affect an employer’s ability to protect itself,” given that there are powerful incentives on employers “to first receive workplace complaints, investigate them, and respond appropriately to limit their liability,” and that such investigations take time.

Additionally, the Court reasoned that shortening the limitations period would foreclose plaintiffs from choosing alternative avenues of relief in tandem. The LAD permits employees to first file a complaint in the Division on Civil Rights within six months of the employment action, and then withdraw the DCR claim and proceed in Superior Court at any time before the DCR makes a final determination and within the two-year statutory limitations period. Shortening the limitation period to six months forces plaintiffs to choose between filing an administrative claim or a claim in Superior Court within that time period, cutting off the option of filing first in the DCR and then later in the Superior Court.

For employers who have agreements shortening the limitations periods under the NJ LAD, such agreements are now unenforceable. Also, be aware that this decision may impact time-shortening agreements under other New Jersey employer protection statutes, such as the Conscientious Employee Protection Act.

For more information regarding this or other labor and employment issues, please contact Emily J. Hanlon, a member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

 

New York City Commission on Human Rights Publishes Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy

May 10, 2016

By Scott J. Wenner

The New York City Human Rights Law (“NYCHRL”) is New York City’s local law that prohibits discrimination in employment, public accommodations and housing. The New York City Commission on Human Rights (“Commission”) has authority to enforce the NYCHRL, which applies to employers with four (4) or more employees in New York City. Among the forms of discrimination that the NYCHRL prohibits is discrimination on the basis of pregnancy, childbirth, or related medical condition. All three of these forbidden bases for taking adverse employment action are considered discrimination on the basis of gender. Wilcox v. Cornell University, 986 F. Supp. 2d 281, 285 (S.D.N.Y. 2013). The New York City Council augmented the protection of pregnant workers in enacting the Pregnant Workers Fairness Act, Local Law 78, in 2013. N.Y.C. Admin. Code § 8-107(22)(a). Now covered employers must reasonably accommodate the needs of an employee for her pregnancy, childbirth or related medical condition regardless of whether she is disabled under the NYCHRL, as was previously required.

On May 6th, in time for Mothers Day, New York City’s Mayor De Blasio announced the release of a new legal guidance discussing the Commission’s interpretation of the NYCHRL’s prohibition of discrimination based on pregnancy, childbirth or related medical conditions, and the duty to reasonably accommodate. This new legal guidance can be found here. While it is careful to disclaim any intention of cataloguing all possible violations of the NYCHRL related to pregnancy and childbirth, the guidance provides a useful overview of how the Commission expects to enforce the law in this increasingly important and active area. What makes the guidance particularly useful to New York City employers is its highlighting of the broader, more exacting requirements imposed by the NYCHRL compared to federal and state laws that prohibit discrimination and mandate accommodations in this area. One example the guidance cites is that the NYCHRL flatly requires employers to make reasonable accommodations for pregnancy, childbirth, or related medical condition. Whether, to what degree and for what reason it accommodates other employees is not a consideration under the local law. In contrast, the federal Pregnancy Discrimination Act is less absolute, and requires equal treatment for all workers “similar in their ability or inability to work.”

As many New York City employers are more familiar with the federal requirements, and because the NYCHRL is construed more harshly against employers than are any of the federal or state employment discrimination laws, the guidance is an important resource for developing an understanding of what the Commission’s view is of the obligations the law imposes on employers in the important and highly visible area of pregnancy and childbirth.

For more information regarding this or other labor and employment issues, please contact Scott J. Wenner, past chair of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

 

%d bloggers like this: