2018 Outlook: OFCCP/EEOC Enforcement Activity and Trends - FEBRUARY 8, 2018 PREPARED EXCLUSIVELY FOR OHIO ILG
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2018 Outlook: OFCCP/EEOC
Enforcement Activity and Trends
PREPARED EXCLUSIVELY FOR OHIO ILG
FEBRUARY 8, 2018
Matthew J. Camardella
Jackson Lewis P.C. | Long Island
camardem@jacksonlewis.com | (631) 247-4639
©2018 Jackson Lewis P.C.
Introductory Statement THE MATERIALS CONTAINED IN THIS PRESENTATION WERE PREPARED BY THE LAW FIRM OF JACKSON LEWIS P.C. FOR THE PARTICIPANTS’ OWN REFERENCE IN CONNECTION WITH EDUCATION SEMINARS PRESENTED BY JACKSON LEWIS P.C. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE. 2
About Our Affirmative Action & OFCCP Practice
Group
· Our Affirmative Action & OFCCP Practice group of approximately
40 lawyers, statisticians and data analysts prepares over 4,000
affirmative action plans (“AAPs”) annually for our federal
contactor
clients.
· Since 2013, we have defended over 350 OFCCP audits, with a 99%
success rate. As a law firm, we offer more than consulting
services, we offer strategic thinking and sophisticated legal
representation.
· We employ nine full-time statisticians devoted to preparing
privileged EEO pay analyses.
3About Matthew J. Camardella Matthew Camardella is a Principal in the Long Island, New York office of Jackson Lewis P.C., and Co-Chair of the Firm’s Affirmative Action Compliance and OFCCP Defense Practice Group. He directs the preparation of more than 1,500 AAPs each year and has defended hundreds of OFCCP audits for a broad range of employers across the country. In addition, Mr. Camardella serves as the Practice Group lead on responding to OFCCP allegations of class-based discrimination. He spends significant time counseling clients about the design and implementation of company-wide AAP structures, applicant flow tracking systems, compensation practices and other complex “real world” compliance issues. Mr. Camardella also is General Counsel to the American Association for Access, Equity and Diversity (AAAED) and serves as Counsel to the Philadelphia “Liberty” Industry Liaison Group (ILG). His work with AAAED and ILG keeps him abreast of OFCCP enforcement trends. Mr. Camardella joined Jackson Lewis in September, 1997. He received a B.A. from the College of the Holy Cross in 1993 and graduated with honors from Hofstra University School of Law in 1997. While at Hofstra, he was Editor-in-Chief of the Hofstra Labor Law Journal and received the Award for Outstanding Performance in Labor and Employment Law. He is admitted to the New York State Bar. 4
EEO REGULATION AND ENFORCEMENT:
WHAT TO EXPECT UNDER THE TRUMP
ADMINISTRATION
5Trends under Obama Administration
· Strengthening equal employment
· Actively promoting civil rights
· Aggressive enforcement of EEO
laws
· Focus on expanding the law
6Trump Presidency Background
· As of January 20, 2017, the U.S. has a Republican President,
and both houses of Congress are led by Republican
majorities.
· Candidate-Trump promised to reverse or eliminate many of
the Obama Administration’s employee-friendly enforcement
positions and rules.
· But, Populist Candidate-Trump also carried working class voters.
· Some changes may be delayed while the new administration
focuses on larger initiatives, such as trade, immigration, and
the ACA.
7What’s in and What’s Trump(ed)?
Obama Initiative Trump(ed)
E.O. 13494, 13495, 13496 (workers’
No
rights)
E.O. 13496 (poster) No
Franken Amendment (Act of Congress,
No
not Executive Branch)
8What’s in and What’s Trump(ed)?
Obama Initiative Trump(ed)
VEVRAA (2011 revisions) No
Section 503 (2011 revisions) No
Minimum Wage for Contractors No
9What’s in and What’s Trump(ed)?
Obama Initiative Trump(ed)
E.O. 11246 – Pay Secrecy No
OMB Stayed
EEO-1 Pay Data Collection
Indefinitely
E.O. 11246 – LGBT protections Not yet*
10What’s in and What’s Trump(ed)?
Obama Initiative Trump(ed)
E.O. 13673 – Fair Pay and Safe
Yes
Workplaces
E.O. 13706 – Paid Sick Leave No
Discrimination based on sex No
11EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
12Equal Employment Opportunity Commission
· Under President Obama, the EEOC took aggressive
enforcement efforts and pursued significant litigation in such
a reas as criminal background checks, systemic
discrimination, and LGBT protections.
• A Republican Congress may allocate fewer funds toward
EEOC enforcement efforts.
• Under President Trump, agencies such as the DOL, EEOC, OFCCP,
OSHA , and NLRB are expected to focus more on achieving
employer compliance and less on enforcement.
13Equal Employment Opportunity Commission
· President Trump nominated Janet Dhillon to fill the Chair
position in June 2017 and Daniel Gade to fill remaining
seat.
· Expect EEOC to continue its aggressive litigation stance :
Lipnic has stated publicly that she believes EEOC did not file
enough lawsuits in 2016.
• Acting EEOC chairwoman Victoria Lipnic said that the EEOC
"remains committed to strong enforcement of our federal equal
pay laws," and the decision "will not alter EEOC's enforcement
efforts."
14Equal Employment Opportunity Commission
• President Trump appointed Janet Dhillon,
Republican, to fill the Chair position
· General counsel and Corporate Secretary for
Burlington Stores, Inc.
· Unlikely to support the initiatives of the previous
administration given business background
· Prior to Burlington, Dhillon served as in-house
counsel for J.C. Penny Co. Inc. and U.S.
Airways.
· Contributed to the campaigns of Republican
candidates for elected office, including John
McCain, Rick Perry and Ted Cruz
15Equal Employment Opportunity Commission
• President Trump has appointed Daniel M. Gade to the last
open spot on the EEOC
• Decorated war veteran who was wounded twice during
service in Iraq leading to the amputation of his entire right
leg
• Holds an M.P.A. and Ph.D. in public administration and
policy from University of Georgia and teaches at his alma
mater, West Point, making him the only non-lawyer on the
commission
• Worked on veterans’ issues, military healthcare, and U.S.
disability policy in the George W. Bush administration
• Appointed by John Boehner in 2015 to serve on the
National Council on Disability
• Has been an outspoken critic of disability pay for wounded
veterans
16Equal Employment Opportunity Commission
• EEOC Strategic Enforcement Plan 2017-2021
· Includes: (1) eliminating barriers in recruitment and hiring; (2) protecting
vulnerable workers; (3) addressing emerging issues; (4) ensuring equal
pay; (5) preserving access to the legal system; and (6) preventing systemic
harassment
· However, shift from expanding the law � enforcing the law
as it exists
· For example, under Obama, EEOC expanded the law and took position
that Title VII protects workers from discrimination based on sexual
orientation and gender identity
• Circuits are still undecided on the issue
· Fewer new regulations likely, in favor of enforcing those already in place
17EEOC LITIGATION 18
EEOC Targeting Certain Industries
u For FY 2017, the EEOC has filed suit most often against
five industries.
• Retail Trade (15 lawsuits)
• Accommodation and Food Services (14 lawsuits)
• Health Care and Social Assistance (13 lawsuits)
• Manufacturing (10 lawsuits)
• Administrative and Support and Waste Management and
Remediation Services (7 lawsuits).
19EEOC Becoming More Aggressive Under New
Administration?
u 86 EEOC case filings in FY 2017 was a major increase
from the 31 case filings brought in September 2016.
• July 2017 (20 case filings) � July 2016 (8 case filings)
• August 2017 (20 case filings) � August 2016 (8 case filings)
20EEOC Litigation Statistics FY 2014 - 2017
2014 2015 2016 2017
All Suits Filed 167 174 114 201
Merits Suits 133 142 86 184
Suits with Title VII 76 83 46 107
Claims
Suits with ADA 49 53 36 76
Claims
21Recent EEOC Cases and Settlements
• Equal Employment Opportunity Commission v. Jones Lang LaSalle
Americas, Inc., Civil Action No. 1:17-CV-4017-ELR-JSA
- ADA violation when Company rescinded job offer from applicant after applicant disclosed diagnosis
of PTSD and requested to work remotely once a week to attend medical appointments.
• Reliable Nissan Agrees to Settle EEOC Race, Religion and National
Origin Harassment Case
- Conciliation between EEOC and Reliable Nissan over claims that two managers repeatedly used
racial epithets during sales meetings and referred to African American, Native American, Muslim,
and Hispanic employees in a demeaning manner. EEOC found that the Company failed to take
prompt action to stop the harassment and that employees who complained were retaliated against.
• Broussard v. First Tower Loan, LLC, Case No. 2:15-cv-01161
- Former employee filed charge after being fired due to his transgender status. EEOC brought suit on
behalf of Broussard and entered in an 18-month consent degree by which the Company must
implement a new anti-discrimination policy addressing transgender status and sex or gender
preferences, expectations, or stereotypes.
• EEOC v. Evergreen Motors, dba Evergreen Kia , Civil Action No. 17-cv-
07084
- EEOC alleges that owner of Evergreen Kia harassed a car salesperson for suffering from Crohn’s
disease and for being homosexual.
22THE OFFICE OF FEDERAL
CONTRACT COMPLIANCE
PROGRAMS (OFCCP)
23New OFCCP Director – Ondray T. Harris
• OFCCP Director, effective December 10,
2017
• Senior Advisor at DOL Employment and
Training Administration
• Executive Director of the D.C. Public
Employee Relations Board
• Director DOJ Community Relations Service
• Deputy Chief of Employment Litigation at
Department of Justice, 2005-2007
• Partner at LeClairRyan, practiced labor and
employment law
24OFCCP Stakeholder Meetings
u OFCCP conducted a series of meetings with employer
representatives, civil rights groups, and government
contractors
u Ondray Harris, Craig Leen (Special Advisor), and Debra
Carr (Director of Policy)
u Acknowledged that OFCCP should operate with with
more transparency during audits and collaborate with
contractors
u Emphasis on apprenticeship programs
u More incentives for voluntary compliance
25OFCCP Approach
• Under President Trump-appointed DOL and OFCCP
leadership, OFCCP may move away from aggressive,
controversial enforcement methods and return to
traditional theories of discrimination recognized by federal
courts, as was the case under the OFCCP during the George
W. Bush Administration.
26GAO Report on OFCCP
The General Accounting Office recently issued a report critical of various controversial OFCCP
enforcement methods, including relying solely on statistical “red flags” without any
anecdotal evidence to support claims of systemic discrimination.
Recommendations in GAO Report:
1. Make changes to scheduling list to focus on contractors with greatest risk of non-compliance
2. Develop mechanism to monitor AAPs on a regular basis (collecting electronic AAPs and contractor
certification of annual updates)
3. Change scheduling list to address changes in human capital and does not rely exclusively on
location
4. Provide timely and uniform training to new staff and additional training opportunities for
Compliance Officers
5. Review outreach and compliance assistance efforts and identify options for enhance contractor
understanding of nondiscrimination and affirmative action requirements
6. Assess existing contractor guidance to ensure contractors have information that helps better
understand responsibilities regarding nondiscrimination and affirmative action.
27Targeting Tech: GAO Report
• Diversity in the Technology Sector: Federal Agencies Could
Improve Oversight of Equal Employment Opportunity
Requirements (November 2017)
• Why the focus on tech?
� What does this mean?
• OFCCP not compelled to follow GAO recommendations but report can
be influential
28Targeting Tech: GAO Report
u Recommendations in GAO Report:
• Chair of EEOC should develop timeline to complete effort to clean IMS data for
a one-year period and add missing industry code data
• OFCCP Director should analyze internal process data from closed evaluations
to better understand cause of delays and improve
• OFCCP Director should require contractors to disaggregate placement goals
into subminority groups
• OFCCP Director should assess quality of methods used by OFCCP to
incorporate industry disparities into process for selecting contractors for
compliance evaluations. It should use this assessment to finalize procedures
for identifying establishments at greatest risk for non-compliance
29Targeting Tech: GAO Report
u Recommendations in GAO Report (continued):
• OFCCP Director should evaluate the current approach for choosing contractors
for audits and determine whether modifications are needed to reflect current
workplace structures and locations or to ensure subcontractors are included
• OFCCP Director should evaluate the FAAP to assess its usefulness as an
effective alternative to an establishment-based program and determine what
improvements, if any, could be made to better encourage contractor
participation
30RECENT OFCCP CASES AND
SETTLEMENTS
31OFCCP Discrimination Settlements Break
Records in 2017
u In the past fiscal year federal contractors paid $23 million
to settle workplace discrimination charges.
u The current total more than doubles the settlements
recovered by the OFCCP in 2016.
• $10.5 million recovered in 2016 v. $23 million recovered in 2017.
u Although there has been an increase in settlement
amounts, the number of audits conducted and closed
decreased due to a focus on in depth contractor reviews
into companies’ pay practices.
32Recent OFCCP Lawsuits
u OFCCP v. Google: OFCCP sought to obtain a considerable amount of records and
data from Google. Google did not comply with OFCCP’s demand and filed suit
against Google.
• On July 14, 2017, Judge Steven Berlin issued a recommended decision and order,
finding that a demand for data about Google employees made the OFCCP is “over-
broad, intrusive on employee privacy, unduly burdensome, and insufficiently
focused on obtaining the relevant information.” OFCCP appealed.
u OFCCP v. Oracle: On January 18, 2017, the DOL filed suit alleging that Oracle had a
systemic practice of paying white male workers more than their fellow co-workers
in the same job title, which led to pay discrimination against female, African
American, and Asian employees. Currently in mediation.
u OFCCP v. JPMorgan Chase: OFCCP alleged that since May 15, 2012, JPMorgan paid
at least 93 women less than men in comparable positions, even after other
legitimate factors that would lead to salary differences were taken into account.
332017 OFCCP Cases and Settlements
u State Street: $5 million settlement to more than 300 black and
female executives to settle allegations by OFCCP that it was paying
them less than their with and male colleagues.
u LexisNexis Risk Solutions: $1.2 million settlement of compensation
discrimination claims for 211 females in exempt, non-
commissioned operational leadership roles in their Florida and
Georgia offices.
u Bank of America: $1 million settlement for alleged failure to hire
Black applicant for entry-levels positions back in 1993.
u B&H Foto: $3.2 million settlement to resolve allegations of systemic
hiring and compensation, and promotion discrimination, as well as
harassment to more than 1,300 affected class members.
u Splunk: $2.7 million settlement of claims that Splunk failed to hire
Blacks and Asians for Technical and Administrative Professional
positions.
34PAY EQUITY 35
OFCCP Directive 307
· Under the Obama Administration, OFCCP removed all
constraints on how the Agency can identify and investigate
pay equity issues
· Under Directive 307, OFCCP looked to aggregate multiple
jobs into “pay analysis groups”
· Bigger, more dissimilar groups are more likely to produce findings
· Avoids contractor attempts to “slice and dice” data
· Contrary to Title VII case law
· Under Trump, expect a retreat on these issues – enforce the
law as it exists – not push the boundaries of the law
36Aggressive State Pay Laws
• With potential retreat on equal pay initiatives at federal
level, states rushing to fill void
The New Concepts:
• Pre-Hire Inquiry Ban on Salary History
• Comparable Work vs. “Equal Work”
• Total Compensation
• Pay Transparency
• Anti-Retaliation
• Defenses
• Damages
• Recent lawsuits against Google, Microsoft and Uber
37Obama’s Pay Transparency E.O
· Cannot fire or otherwise discriminate against employees or
applicants for asking about, discussing, or disclosing pay (includes
supervisors)
· Employees who have access to compensation information as part
of their essential job function are NOT allowed to discuss this
information with those who would not otherwise have access,
UNLESS:
· In response to formal complaint
· In furtherance of investigation
· Consistent with contractor’s legal duty to furnish information
· While easily rescinded with a countervailing executive order, not
seen as particularly controversial or burdensome – is still in effect
38New EEO-1 Report (Just Kidding)
· Would have required employers with at least 100 employees to
submit summary pay data including W-2 pay and hours worked for
their entire workforces.
· Filing deadline would have been moved to March 31 of every year
instead of September 30.
· Workforce snapshot – pay period between October 1 and December 1 of
reporting year instead of July – September
· EEOC intended to publish pay data by industry and geography for
employers to “benchmark” against
· Who else would have used the pay data? Unions, plaintiffs’ counsel,
competitors, the press...
39Status of New EEO-1 Report
u Office of Management and Budget (OMB) Staged Component
2 (pay and hours data) on July 31, 2017
u EEOC Directives for 2017 filing
• Deadline of March 31, 2018
• Reports must be based upon payroll period from October, November,
or December 2017
• Use the same form used in 2016
40Changes Associated with New EEO-1 Report
u “How to File an EEO-1 Report” and “2017 EEO-1 User Guide”
released
u Employers with employees who “regularly report to client
sites” must report such employees on an appropriate EEO-1
report using the address of the client site.
u What does regularly report mean?
u Risk of audits if file Type 4 EEO-1 report for client location
41PAID LEAVE
Paid Sick Leave for Federal Contractors
· Effective as of January 1, 2017
· Applicable to limited types of contracts
· Must provide 1 hour of paid sick leave for every 30 hours worked on or in
connection with a covered federal contract, up to 56 hours (7 days) in a year
or at any point in time.
• Employees can carry over up to 56 hours of unused paid sick leave from year
to year
• Employees may use paid sick leave for:
• Their own illness or other health care needs, including preventive care;
• The care of a family member or loved one who is ill or needs health care, including
preventive care; or
• Purposes resulting from being a victim of domestic violence, sexual assault, or stalking –
or to assist a family member or loved one who is such a victim.
43Paid Family Leave
· President Trump: “My administration wants to work with
members of both parties to make child care accessible and
affordable [and] to help ensure that new parents have paid
family leave.”
· During campaign, Trump proposed a plan during a speech
that suggested 6 weeks of paid maternity leave to mothers
who do not receive it through their employers.
· Contrasts with traditional Republican opposition to federally
mandated paid leave
44SEXUAL ORIENTATION & GENDER IDENTITY
LGBT Rights Under Obama
· Executive Order 13672
· Signed by President Obama
· Prohibits federal contractors from discriminating on the basis of
sexual orientation and gender identity
· Dear Colleague Letter on Transgender Students
· Issued by Department of Education and Department of Justice
· Protects the rights of trans students in schools and interprets the
laws to allow students to align with gender identity
46LGBT Rights Under Trump
· In January, President Trump vowed to leave intact President
Obama’s LGBT Executive Order protecting rights for individuals on
the basis of gender identity and sexual orientation.
§ Department of Education and Department of Justice rescinded the
Obama Administration’s Dear Colleague Letter
· Trump also signed an executive order related to religious liberty
instructing Attorney General Sessions to provide guidance to
agencies on interpreting religious liberty protections.
§ DOJ filed a brief with the U.S. Supreme Court against including sexual
orientation as protected under Title VII of the Civil Rights Act.
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48THANK YOU
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