Category: Discrimination

EEO-1 Compensation Data

EEO-1 Compensation Data Update

In April 2019, a federal judge ruled that all employers required to file the annual EEO-1 report must include 2018 compensation data by September 30, 2019. The court ruling left some open questions for employers regarding the EEO-1 compensation data requirements. The U.S. Equal Employment Opportunity Commission (EEOC) has answered some of those questions, as we’ll explain here.

What Is the EEO-1?

U.S. employers with at least 100 employees and some smaller companies with federal government contracts must file the EEO-1 each year. The annual reports identify numbers of employees by job categories and demographic characteristics.

The EEO-1 job categories are:

  • Executive/Senior Level Officials and Managers
  • First/Mid-Level Officials and Managers
  • Professionals
  • Technicians
  • Sales Workers
  • Administrative Support Workers
  • Craft Workers
  • Operatives
  • Laborers and Helpers
  • Service Workers

Within these job categories, employers must provide the number of employees based on sex and race/ethnicity from among these options:

  • Hispanic or Latino
  • White
  • Black or African American
  • Native Hawaiian or Pacific Islander
  • Asian
  • Native American or Alaska Native
  • Two or more races

EEO-1 Compensation Data Requirement

In February 2016, the EEOC modified the Form EEO-1 to include wage and hours data beginning March 31, 2018. In 2017, however, the Office of Management and Budget (OMB) informed the EEOC that it was suspending the new pay data collection requirements pending further review. This prompted litigation.

The plaintiffs in a lawsuit against the government prevailed. The judge is requiring the EEOC to collect the new EEO-1 compensation data from covered employers for at least two years. One of these years is 2018. The judge allowed the EEOC to decide whether the second year would be 2017 or 2019. The EEOC has selected 2017 as the second year.

For now, it’s not clear whether the EEO-1 compensation data requirement will continue beyond this year. It is possible that the EEOC will formally revise the forms going forward.

What Do Employers Need to Know?

1. What Is the Deadline for the 2018 EEO-1?

The filing period for the traditional EEO-1 survey (without the compensation data) ends May 31, 2019. Covered employers must submit the standard job category and demographic surveys by that date.

However, companies will have to submit separate new reports with the EEO-1 compensation data.

[Click here to file your EEO-1 or get more information directly from the EEOC.]

2. When Can We File the EEO-1 Compensation Data?

The EEOC expects to open filing for the new EEO-1 compensation data in mid-July 2019. When available, filers apparently will need to submit wage and hour information for both 2018 and 2017.

3. What Compensation Statistics Will We Need?

Employers will need to submit W-2 wage data and hours worked for employees within 12 specified pay bands:

  • <$19,239
  • $19,240-$24,439
  • $24,240-$30,679
  • $30,680-$38,999
  • $39,000-$49,919
  • $49,920-$62,919
  • $62,920-$80,079
  • $80,080-$101,919
  • $101,920-$128,959
  • $128,960-$163,799
  • $163,800-$207,999
  • $208,000+

Employers will report wages earned based on W-2 “Box 1” year-end earnings and hours worked.

Hours worked will be actual hours for non-exempt employees. For exempt employees, employers can report an estimate if they do not maintain actual time records. The estimate will be computed at 40 hours per week for full-time exempt employees and 20 hours per week for part-timers. Employers will report aggregate hours for all employees in each pay band and job category by ethnicity.

Employer Concerns

One concern many employers have is how much hassle it will be to satisfy this new filing requirement. That answer depends on factors like the size of the workforce and sophistication of the payroll system. Some companies will be able to generate the data quickly from computers. Others will have to analyze individual employee records to compile the necessary EEO-1 compensation data.

Another question is how the EEOC will use this new information. For various reasons, the limited aggregated payroll data might not give an accurate snapshot. Yet, the EEOC may use the numbers to evaluate potential discrepancies along gender, racial, or ethnic lines. Although the EEOC probably will not make every employer’s EEO-1 compensation data public, the reports could come out in litigation. This may include use by private plaintiffs whose attorneys could obtain the data from the EEOC by subpoena, for example.

Don’t Wait for July!

Employers who will have to file the new EEO compensation data should not wait until July to prepare. Companies should at least evaluate their ability to generate the information necessary when the filing period opens. Plus, employers should start analyzing whether the data is going to paint a picture that might cast their compensation practices in a bad light. If so, they might want to review and modify their practices or start preparing the explanation for why the EEO-1 report is misleading, as many will be given many statistical limitations in the way employers must report on wages.

 

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Workplace Bullying

Workplace Bullying

Most agree that all bullying is inappropriate, but is workplace bullying unlawful? Technically, it usually isn’t. While physical attacks are illegal, mere insults, shouting, generating rumors, or giving “the cold shoulder” typically are not enough to produce a valid legal claim. However, there are some notable exceptions. Under certain laws, bullying may be a basis for a lawsuit if it is directed towards legally protected characteristics.

Generally, bullying is defined as intentional harmful conduct towards others. This can include verbal harassment, threats, insults, or physical violence. Bullying can also occur in the form of coercion, such as manipulation, generating rumors, or blackmail. This conduct can also extend to outside the workplace, such as stalking. Although there can be one singular occurrence, workplace bullying tends to occur in patterns. There is often an imbalance of power between the harasser and victim, such as a supervisor harassing employees.

Effects of Workplace Bullying

Clearly, bullying can cause physical and psychological distress for the victim. Moreover, bullying can also have harmful effects on an organization as a whole. If offensive conduct continues, it can lead to an organizational culture that accepts this type of behavior. This leads to lower employee morale and higher turnover. It can also lessen overall productivity.

Workplace Harassment

Harassment based on protected characteristics is a type of discrimination. Title VII of the Civil Rights Act of 1964 protects employees from harassment based on sex, color, national origin, race, and religion. This includes protection from sexual harassment. Other federal laws, such as the Age Discrimination and Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act also prohibit harassment. State laws also prohibit discrimination on these and other characteristics.

Harassment involves conduct that results in changing the terms or conditions of the victim’s employment. If offensive comments are directed at an employee’s protected characteristic or only to employees of a specific characteristic, there may be a basis for legal action. The standard for determining harassment is how a reasonable employee perceived the comment or statement. The speaker’s intent is not a relevant factor.

If an alleged victim can prove that unlawful harassment occurred, the employer can be held liable for the conduct. This could be the case even if the employer was unaware of the behavior, if the court finds that they should have known.

For more, read “What Makes Workplace Harassment Unlawful?”

Equal Opportunity Harasser Defense

Employers occasionally assert an “equal opportunity harasser” defense to refute the assertion that the offensive conduct was directed at a protected characteristic. For instance, a supervisor shouts at all employees regularly. When an employee attempts to bring a lawsuit where one of the allegations is harassment due to his race, etc., the employer will respond the conduct was not directed towards any protected characteristic because that supervisor shouts at all employees regardless of race. This can be a legally valid and effective defense to a claim of harassment. However, allowing this management style is not necessarily good for employee morale or deterring harassment complaints in the first place.

Common Law Tort Claims

Even if the conduct does not relate to a protected category, there is still a risk of litigation. If the offensive conduct becomes sufficiently outrageous, employees might have grounds for a tort claim. The legal standard for these claims is usually higher for plaintiffs than under the employment discrimination statutes. Where successful, damage calculations in these cases relate to the alleged mental suffering by the plaintiff as a result of the defendant’s conduct.

Protected Concerted Activity

The National Labor Relations Act protects employee activity in furtherance of collective goals. This means harassment, intimidation, or bullying of other employees on behalf of union objectives is protected under this federal law that applies to many private employers even if their employees are not unionized. For example, employees who repeatedly pressure other employees to call in sick on a particular day to stage a “sick-out” protest of company policy may have protection from discipline. This protection even extends to workplaces without unions, so long as the activity at issue aims at benefitting employees collectively in their employment.

Workplace Civility Policies

Although workplace bullying is not illegal, employers often have workplace civility policies. These prescribe discipline or termination of employees who bully other employees. These policies are most effective when there are clear definitions of terms like “bullying” and “harassment.”

Potential Workplace Bullying Laws

So far, at least 29 states have introduced bills aimed at making workplace bullying illegal. However, none of these bills have passed, so bullying in the workplace is currently not expressly illegal in any state. Remember, however, that many states have harassment laws similar to or more extensive than federal laws.

New York is one state where the Legislature might finally pass anti-bullying legislation before too much longer. There, the “Healthy Workplace Bill” has been reintroduced several times, but has not yet passed. If the bill ever succeeds, it will create a legal claim against employers who allowed bullying to occur.

The Healthy Workplace Bill, as previously proposed, would make it unlawful for employers to subject employees to an “abusive work environment.” This is defined as “a workplace in which an employee is subjected to abusive conduct that is so severe that it causes physical or psychological harm to such employee, and where such employee provides notice to the employer that such employee has been subjected to abusive conduct and such employer after receiving notice thereof, fails to eliminate the abusive conduct”. Potential remedies under this bill include reinstatement, removal of the harasser from the plaintiff’s work environment, back pay, medical expenses, punitive damages, and attorney fees.

Employer Precautions

Although workplace bullying itself isn’t (yet) per se illegal, it’s not something employers should tolerate. If nothing else, with so many protected categories under state and federal employment discrimination statutes, any bullying could prompt a harassment complaint. Of course, beyond the risk of litigation, bullying hurts employee morale and hence productivity.

Still, anti-bullying laws would be very burdensome for employers. They would go far beyond traditional legal risks. Employers would need to become even more proactive in ensuring employees are nice to each other. That will be a tall task for many companies on short notice. That’s another good reason to start now in trying to improve interpersonal relationships between co-workers and with their supervisors. And, hopefully, there would be many positive impacts on the business beyond avoiding lawsuits.

 

Special thanks to University at Buffalo Law School student Erin Killian for her work on the preparation of this article.

Hair Discrimination

New York City Styles Hair Discrimination

On February 18, 2019, the New York City Commission on Human Rights released enforcement guidance about discrimination based on hair. “Hair discrimination” is not per se illegal under either New York State or New York City law. However, this guidance notes that race discrimination, especially anti-black discrimination, takes many explicit and implicit forms. Thus, the New York City Commission’s guidance explains that discriminating against someone because of their hair can constitute employment discrimination.

This appears to be the first legal guidance of this nature in the United States. It focuses on “anti-Black” hair discrimination.

What Is “Hair Discrimination”?

The new guidance proclaims that:

“The New York City Human Rights Law (“NYCHRL”) protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.”

The guidance contains more detail, noting “this includes the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”

Source of Legal Protections

The New York City Human Rights Law does not specifically prohibit hair discrimination. It does broadly prohibit race discrimination in employment and other areas.

This guidance from the New York City Commission on Human Rights does not modify the law itself. Instead, it addresses how discrimination based on hairstyle implicates existing protections. In addition to race, the guidance mentions prohibitions against religion, disability, age, and gender-based discrimination. If an employer uses hair as a proxy for any of these protected characteristics, their actions might violate the NYCHRL. But the guidance focuses on race, and specifically Anti-Black, discrimination.

The NYCHRL applies to employers in New York City with at least 4 employees.

The separate New York State Human Rights Law covers employers throughout the entire State. Though similar legal arguments might be available under the State law, this guidance only pertains directly to the NYC law.

Black Hairstyles as Protected Characteristics

Again, the NYC Commission on Human Rights hasn’t actually changed the law itself. An employee who tries to file a complaint based on their hair will still need to check a different box, such as “race,” as the basis of the discrimination. Nonetheless, this enforcement guidance does go so far as to assert that “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.”

The full scope of this newly identified protection remains uncertain. Employers defending against claims based on hair discrimination will likely challenge aspects of the guidance in the future.

According to the guidance: “There is a strong, commonly-known racial association between Black people and hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs, and employers are assumed to know of this association.”

Does this mean that employment decisions based on these hairstyles are automatically discriminatory?

Impact on Employee Grooming Policies

There’s little doubt from reading this new guidance that the NYC Commission on Human Rights takes a very broad view on hair discrimination prohibitions. Despite allowing that an employer might have legitimate business reasons for requiring employees to have neatly groomed hair, virtually any restriction that disadvantages anyone with a hairstyle “associated with Black communities” will be legally suspect. To this end, the guidance observes, “an employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”

[Click here to review the full guidance document.]

What Does This Mean for New York Employers?

As the New York City Commission on Human Rights concludes in this guidance, employers within NYC should promptly review their grooming and appearance policies. The Commission further encourages employers to “ensure [these policies] are inclusive of the racial, ethnic, and cultural identities and practices associated with Black and historically marginalized communities.”

Outside of New York City, employers throughout the State should still heed this guidance as a warning. The New York State Division of Human Rights has not issued related guidance on this topic. But it may proceed with similar enforcement sentiments. The state employment discrimination laws protect the same underlying characteristics (including race) that the NYC Commission relies on to ban hair discrimination.

 

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