EEOC Still Very Active

The Equal Employment Opportunity Commission ended its Fiscal Year 2015 on a relatively high note. There were a total of 89,385 Charges filed during Fiscal Year 2015. Those Charges reflect the following breakdown:

• Retaliation Charges: 39,757 (44.5% of all Charges filed)
• Race: 31,027 (35.7%)
• Disability: 26,968 (30.2%)
• Sex: 26,396 (29.5%)
• Age: 20,144 (22.5%)
• National Origin: 9,438 (10.6%)
• Religion: 3,502 (3.9%)
• Color: 2,833 (3.2%)
• Equal Pay Act: 973 (1.1%)
• Genetic Information Non-Discrimination Act: 257 (.3%)

It should be noted that if one were to add up the actual percentages, this would reflect more than 100% because some Charges are predicated on multiple basis filings.

Also, during Fiscal Year 2015, the Equal Employment Opportunity Commission resolved a total of 92,000 Charges of Discrimination and secured in excess of $527,000,000 for victims of discrimination (356.6 million for victims of discrimination in Private Sector and State and Local Government workplaces; 65.3 million through litigation and 105.7 million for Federal Employees and Applicants). 

It should also be noted that the Equal Employment Opportunity Commission is pursuing, very aggressively, discrimination against an individual because of his/her sexual orientation and pursuing this on the basis that this type of discrimination is predicated on sex. The EEOC has also been aggressively pursuing, through litigation, the protection of transgender individuals in the workplace, both in the job protection venue and in the day-to-day interaction in the workplace (i.e. use of facilities). Fiscal Year 2016 will see a big push in this arena. 

So there is no confusion on anyone’s part, from Fiscal 1997 through Fiscal 2015 the EEOC handled a total number of 1,637,396 Charges or, on a Fiscal Year average, a little over 86,000 Charges per year. Obviously, every Employer, be that a Private Employer, State or Local Government Employer, or Federal Government Employer, should take notice that the Equal Employment Opportunity Commission is a very aggressive Agency in protecting the rights of individuals under the auspices of Title VII and other Laws.

Questions? Contact Attorney Walter J. Liszka at (312) 629-9300 or by email at waliszka@wesselssherman.com.

Transgender Workplace

When I did my presentation at the Wessels Sherman 15th Annual Labor and Employment Law Power Seminar on May 1, 2015 (Winds Of Changing Seasons – When Harry Became Sally), I had no idea that this topic would have such a major impact on business operations and that the impact would continue to grow into 2016. For any Employer to “stay ahead of the curve” regarding Transgender Issues, those Employers must start adopting more inclusive policies and procedures in their operations. To date, nineteen (19) States and the District of Columbia have adopted specific Laws prohibiting discrimination in Employment and/or Public Accommodations based on both Gender Identity and Sexual Orientation. The Federal Government, acting under the auspices of President Obama in the issuance of Executive Orders, are specifically requiring Federal Contractors and Subcontractors to prohibit any and all discrimination against Employees based on Gender Identity or Sexual Orientation. The Equal Employment Opportunity Commission has taken a very aggressive posture commencing a number of lawsuits against Employers, under the auspices of Title VII on the basis of Sex Discrimination, when an Employer has disciplined and/or fired a Transgender Employee. Congress is again considering specific legislation adding “Gender Identity and Sexual Orientation” as specific grounds of discrimination to Title VII.

Every Employer must begin to become proactive and start thinking of ways to create a work environment that provides safety to its Employee Complement and is free of discrimination when dealing with Gender Identity and Sexual Orientation. Simply stated, Employees who may be in the process of transition without informing their Employers or, in the alternative, when an Employee presents himself/herself in a newly Identified Gender without advance notice, it is important that Employers have established non-discrimination and accommodations for Transgender individuals.

Here are some suggestions for Employers going forward:

1. Draft Employment Policy Sections which specifically address Transgender Employees. Simply stated, Employees who are not transitioning may be unaware of what transitioning entails and what, in fact, constitutes discrimination. For example, it may be considered as harassment if a Transitioning or Transgender Employee is referred to by a wrong pronoun (Harry, who is transitioning to Sally, is consistently called “He” by other Employees).
2. Be aware that the provisions of the Family Medical and Leave Act do, in fact, cover Employees who are taking Medical Leave for transition-related purposes, either for themselves or a family member. As in every other case, do not ask a Transitioning Employee for a Medical Record to prove that the Employee is, in fact, transitioning. 
3. Outline any and all Medical Benefits that are available for Transitioning Employees and their spouses. Even after an individual has completed the transition process, that Employee’s marital and parental status does not change and that Employee’s “spouse and dependents” are still covered by insurance. 
4. In any hiring situation, be aware of asking an individual for information about previous names in a non-judgmental way. Also be aware of Employees’ job responsibilities and assignments. If you specifically place a Transitioning Employee in a position with little to no client interaction, it can be perceived as evidence of discriminatory intent if other similarly situated individuals have customer or client contact.

Every Employer must be aware that situations dealing with Gender Identity/Sexual Orientation may arise and understand that prior preparation, training and information may be the best cure for these sometimes difficult morale or legal related issues.