Already this year, the EEOC has introduced two very
significant measures that are sure to delight plaintiff lawyers while causing
serious concerns for employers and their management-side attorneys, including
your friends here at Wessels Sherman. The
more troublesome new measure is the EEOC’s proposal to significantly modify the
information employers must report each year as part of the agency’s EEO-1 reporting
requirements. Specifically, starting in
September of 2017 the proposal is to require employers to include additional
information in their annual EEO-1 reports to the government, setting out pay
ranges and hours worked for their employees. It takes little imagination to think of how a
federal governmental agency such as the EEOC might use this kind of information
if employers are made to disclose it, annually. Another new proposal involves new guidelines
on retaliation prohibited under the various laws administered by the EEOC, such
as Title VII, ADA, ADEA and EPA. These
guidelines are designed to educate the public on how the EEOC views retaliation
claims, which continue to be the fastest growing type of claim filed with this
agency. No doubt they also will educate
more plaintiffs on how to sue.
According to the EEOC the additional data gathered under its
proposed new EEO-1 reporting requirement, would be used to assess
discrimination complaints of all types (race, sex, age, disability, religion,
national origin, etc.). If in the course
of such investigations it identifies any pay disparities in the employer’s
EEO-1 reports, the EEOC would expand its investigation to include scrutiny of
the employers wage and hour practices. Under this scenario, while investigating
an individual applicant’s or employee’s charge of discrimination the EEOC would
look at the employer’s EEO-1 reports for any indication of disparity among all
employees regarding pay or hours worked.
The data could be used to launch a full-scale investigation into
potential “systemic pay discrimination,” followed by class-action claims in the
discretion of the EEOC’s investigator and Regional Director. Obviously, if the proposal goes through and
employers are required to disclose pay and hour ranges in their annual EEO-1
reports, employers can expect more lawsuits along with dissemination of
information that is otherwise regarded as proprietary and confidential.
The EEOC’s proposed revisions to its guidance on retaliation
claims are the first since 1998. This
new guidance broadens the definition of the sorts of “adverse employment
actions” employees can challenge as the basis for a claim of unlawful retaliation.
For instance, terminating an employee
has always been regarded as the consummate unlawful “adverse employment action”
if done in retaliation for an employee’s exercise of rights under Title VII,
ADA, ADEA, etc. But what if an employee
claims retaliation based on less severe actions, such as denying a requested
vacation, or being spoken to more harshly by a supervisor? Different courts have addressed this question
with different results and, as one might expect, the EEOC’s proposed definition
is very employee friendly, and even includes non-work related actions, as long
as they might deter reasonable individuals from engaging in protected activity. In addition, the proposed new guidance attempts
to usurp the role of courts to determine how evidence is weighed to prove
retaliation by connecting an employee’s protected activity (e.g., complaining
of discrimination, participating in an investigation, etc.) to a challenged
adverse employment action. This guidance
states that an employee can discredit the employer’s explanation for taking the
adverse action and show a causal connection between the protected activity and the
adverse action through a “convincing mosaic” of evidence that would support a
claim of retaliation.
Both of these actions are just proposals at this point, and
interested employers and other parties can submit comments before any final
action is taken. Comments will be
accepted on the pay data proposal through April 1, and on the retaliation
proposal through February 24. Employers
are advised to use 2016 to audit in preparation for the possibility that
employers may be essentially open to inspection by the federal government, in
2017.
Questions? Contact Mr. Sherman at
(952) 746-1700 or at jasherman@wesselssherman.com.
