Monday, October 24, 2016
Thursday, October 20, 2016
On Monday, the EEOC announced its updated strategic enforcement plan for fiscal years 2017 through 2021. The updated plan contains the organization’s priorities and strategies for enforcing laws and regulations on equal opportunity and freedom from discrimination in the workplace. The EEOC reaffirmed six priorities identified in its previous strategic plan, released in 2012:
- Eliminating barriers in recruiting and hiring, including diversity in technology and the increasing use of data driven screening tools;
- Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;
- Addressing selected emerging and developing issues;
- Ensuring equal pay protections for all workers;
- Preserving access to the legal system; and
- Preventing systemic harassment.
These priorities have been refined to “recognize additional areas of emerging concern.” Most notably, the EEOC will put particular focus on two additional areas:
- Issues related to “complex employment relationships in the 21st century workplace”
- Backlash discrimination against those who are Muslims or Sikh, or individuals of Arab, Middle Eastern, or South Asian descent, and persons perceived to be members of these groups.
So what does the EEOC mean by “complex employment relationships in the 21st century workplace?” That’s the “gig” economy, within which employers reject traditional employment relationships in favor of leased, temporary, or contract workers. Industries that rely heavily on independent contractors, such as Uber and Lyft, and those that rely on temporary workers and staffing agencies may find themselves the subject of much closer scrutiny. As we have noted in earlier posts, use of temporary and leased employees and reliance on independent contractors can provide benefits but also pose legal risks.
The EEOC says it intends to focus on clarifying the employment relationship and will study how to apply workplace protections against discrimination to temporary workers, staffing agencies, and independent contractor relationships in the on-demand economy. Some commentators have argued that increased enforcement and litigation will drive the gig economy into the ground.
The Commission’s second priority—backlash discrimination—reflects the likelihood of workplace bias against and harassment of individuals perceived to be associated with the perpetrators of tragic events in the United States and abroad. Complaints of discrimination based on Middle Eastern ethnic origin and religion have increased markedly since the attack on the World Trade Center in 2001, and the EEOC expects that trend to continue.
Monday, October 17, 2016
Friday, October 14, 2016
Federal and state laws prohibiting workplace discrimination do not limit their protections based on the gender of the harasser or the victim, and prohibit all forms of sexual harassment equally. In Oncale v. Sundowner Offshore Services, Inc., decided in 1998, the U.S. Supreme Court acknowledged that Title VII protects both men and women from discrimination based on sex and that sexual harassment by someone of the same gender can be illegal under Title VII. The EEOC offers extensive guidance on recognizing and dealing with all forms of sexual harassment. Nevertheless, employers may not recognize less typical forms of harassment, leaving themselves vulnerable to legal liability that could be avoided by taking timely and appropriate responsive action.
Private lawsuits alleging less typical forms of harassment are not uncommon. In addition, federal and state agencies charged with the enforcement of laws prohibiting harassment are just as interested in such claims as they are in “traditional” sexual harassment cases. The EEOC recently sued a Nashville manufacturer for allowing its male supervisory staff to subject male employees to sexual harassment, and earlier this year the agency sued a wireless phone company for same-sex sexual harassment, alleging that a female sales associate was harassed by a female colleague.
For employers, it’s critical to educate managers and supervisors about what sexual harassment is (and isn’t), and to respond to all complaints of harassment in the same way. Employers should:
- Take all allegations of harassment seriously. A complaint or concern should never be dismissed because the affected employee is a man, the alleged perpetrator is a woman, the employees involved are of the same gender, or the circumstances involve peers or co-workers.
- Never assume that certain language or behavior is more acceptable to employees of one gender.
- Never assume that men are better able to defend themselves against harassment than women.
It’s also important to recognize that legal liability for employers and individual harassers does not arise only under anti-discrimination laws. The facts and circumstances that give rise to an allegation of sexual harassment in the workplace can also be the basis for other legal claims. Employers and individuals accused of harassment can be sued for civil assault, civil battery, false imprisonment, or intentional infliction of emotional distress. Employers can be sued for negligent hiring or negligent supervision in certain instances. Some allegations of harassment may also be the basis for criminal prosecution of the harasser for stalking or criminal sexual assault or battery. The standards for these theories of liability and definitions of criminal conduct vary from state to state, but because they can apply to instances of workplace harassment, employers should be aware of them.
Because the majority of victims are women, the majority of perpetrators are men, and the majority of claims involve individuals of the opposite sex, it’s easy to forget that statutory, civil and criminal laws address the conduct involved in sexual harassment, and not the gender, sexual orientation, or status of the employees involved. Employers protect themselves best—and create the most respectful and productive workplaces—when they understand all the variations on the theme of sexual harassment.
Monday, October 10, 2016
- The Huffington Post discussed the potential of branded apps to transform workplace communications and productivity.
- HR Dive discussed recruiting technology that helps reduce bias, highlighting Microsoft’s program for interviewing and recruiting candidates with autism.
- Data from wearable fitness trackers can provide important evidence in workplace litigation.
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