EEOC Archives » Biddle Consulting Group News

EEOC is Soliciting Public Comment on Updates to Conciliation Procedures

October 8, 2020 By Matt Nusbaum

Recent federal court cases, most notably the 2015 Supreme Court decision in Mach Mining, LLC v. Equal Employment Opportunity Commission, have prompted the EEOC to issue a new rulemaking to update the agency’s 43 year old conciliation practices.

The proposed rulemaking would commit the EEOC to providing respondents with:

A summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in the event that it is anticipated that a claims process will be used subsequently identify aggrieved individuals, the criteria that will be used to identify victims from the pool of potential class members;
A summary of the Commission’s legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts, as well as non-privileged information it obtained during the course of its investigation that raised doubt that employment discrimination occurred;
The basis for any relief sought, including the calculations underlying the initial conciliation proposal; and
Identification of a systemic, class, or pattern or practice designation.

These requirements would apply to actions brought under all of the EEOC’s authorities that require conciliation efforts, specifically Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Age Discrimination in Employment Act (ADEA).

The proposal would also provide respondents with 14 calendar days to respond to the initial conciliation proposal from the Commission.

The EEOC is seeking public comment on the proposed rulemaking in general, but specifically asks for input regarding whether the Commission should specify that its disclosures must only be done in writing or if it should allow for oral disclosures. Comments must be received by November 8, 2020, and may be submitted online at www.regulations.gov.

2019 EEO-1 Data Collection Delayed Until 2021

May 7, 2020 By Matt Nusbaum

Citing the pandemic, the EEOC has announced that employers will not be required to file their 2019 EEO-1 reports until March, 2021. In other words, there will be no EEO-1 filing this year.

However, the EEOC is not skipping the 2019 reporting cycle—they are significantly delaying it.

Where are we today?

EEO-1 filing deadlines have become confusing enough. The now defunct “Component 2” reporting of compensation data came with a shift in longstanding reporting dates and timeframes. Until just a few years ago, employers filed EEO-1 reports by the end of September each year based on a “snapshot” taken the same year. With the advent of “Component 2,” the reporting scheme changed and employers had to adjust to filing reports by the end of March based on a snapshot taken the prior year.

For example, the “2018” EEO-1 reports, based on a snapshot taken in the last quarter of 2018, were actually filed in March 2019.

Then “Component 2” was shelved, but the reporting deadlines did not revert to the “old” scheme, so employers prepared to file the “old” EEO-1 reports on the “new” March 31 deadline. And then the pandemic hit.

Now the “2019” EEO-1 reports will be filed along with the “2020” EEO-1 reports in March, 2021. Confused yet? Don’t be, because it gets a little worse.

Moving Forward

Employers need to decide whether to prepare their 2019 EEO-1 data for reporting now and get it over with, or wait. If your HR database is capable of delivering in 2021 an accurate snapshot of the employment landscape in 2019, the EEO-1 project may not be a priority. But if there is any question about the potential reliability of that data, employers should consider at least pulling the data now (if they haven’t already). Note that any reconciliation of that data might also be harder to do a year from now, so just pulling and then shelving that data might not be enough. Employers should also consider how burdensome the project might be in 2021 if they are trying to prepare two years’ worth of reports at once.

Employers who contract-out their EEO-1 reporting obligations should consult with their vendors and decide on a path forward. At this point, your vendors have likely done most if not all of the work to prepare your 2019 EEO-1 filing, but may not bill for those services until the reports are actually filed. Budget practices may require a modification of existing agreements to invoice you this year for the 2019 EEO-1 project or a portion thereof. Otherwise, additional monies may need to be allocated to next year’s budget for essentially two EEO-1 filing projects.

Confusing? Yes, but not insurmountably so. To sum up, no one will file EEO-1 reports in calendar year 2020, but we will need to pull our 2020 EEO-1 snapshots at the end of this year. And in March of next year, barring further disruption, we will all be filing our 2019 and 2020 reports. How you get from here to there is largely up to you.

COVID-19 and EEO/ADA Considerations

April 17, 2020 By Marilynn Schuyler

These are unprecedented times. The COVID-19 pandemic has caused us to rethink, retool, recalibrate and reconsider our options – all for the sake of keeping us safe. Let’s consider some of the equal employment opportunity (EEO) and the Americans with Disabilities Act (ADA) considerations.

Americans with Disabilities Act (ADA)

The Equal Employment Opportunity Commission (EEOC) has issued guidelines for employers to follow during the pandemic, which are exceptions to the rules. For example, generally, employers would not be allowed to measure an employee’s body temperature, as it is considered a medical examination. During this pandemic, however, employers are allowed to conduct such wellness checks. Employers are also allowed to directly ask their employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. The information collected is subject to ADA confidentiality requirements.

We know that some people may be more at risk, due to underlying medical conditions. The EEOC has reiterated that employers are still prohibited from asking an employee to disclose whether they have a medical condition that the Center for Disease Control (CDC) says could make them especially vulnerable to COVID-19. However, if an employee voluntarily discloses that they have a specific medical condition or disability that puts the employee at increased risk, the employer may ask the employee to describe the type of assistance that may be needed (i.e. telework or leave for a medical appointment). Note that if the pandemic becomes more severe, employers may be allowed to make disability-related inquiries or require medical exams of asymptomatic employees to identify those at higher risk. Please consult with legal counsel before engaging in such inquiries to confirm that such exceptions are in place.

During the pandemic, employers are allowed to do the following:

Encourage/require telework;
Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal; and
Require employees to wear personal protective equipment.

Note that if an employee with a disability needs a related reasonable accommodation under the ADA (i.e. non-latex gloves), the employer should provide such accommodations, absent undue hardship.

The foregoing guidelines, as well as related topics, are discussed in detail at: https://www.eeoc.gov/facts/pandemic_flu.html

One topic that is not discussed in the EEOC’s guidance is the fact that some underlying medical conditions do not rise to the level of a disability under the ADA. Are employers still required to provide reasonable accommodations for employees making such a request, even though their underlying medical condition puts them at greater risk for contracting COVID-19? Technically, no. But do you really want to be the employer defending that lawsuit?

Equal Employment Opportunity

Race/National Origin Discrimination

Reports indicate that discrimination against Asians, particularly people from China, is on the rise, as a result of the COVID-19 crisis. It is a best practice to remind employees of your nondiscrimination policy and underscore that such discrimination, as well as harassment, will not be tolerated. The EEOC’s statement on this topic is here: https://www.eeoc.gov/eeoc/newsroom/wysk/national_origin_race_discrimination_covid-19.cfm

Age Discrimination

The EEOC has not identified age discrimination as a potential problem with respect to the COVID-19 pandemic, but it seems likely that the incidence of age discrimination complaints are likely to rise during this pandemic. The CDC has identified that increased age can be a significant factor in the impact of contraction of COVID-19. Accordingly, employers may be more reluctant to hire workers in the protected age group (40 years and older). Employers may also be more likely to send older workers home, while younger workers are allowed to come to work. Such practices would likely be considered unlawful discrimination.

EEOC Complaint Processing

The EEOC has modified its process for handling EEO complaints, in part due to limited access to the US Mail. The revisions can be reviewed at: https://www.eeoc.gov/coronavirus/federal_eeo_processing.cfm

Final Notes

The EEOC will likely continue to revise its guidance as the COVID-19 pandemic evolves. Likewise, guidance from public health authorities is likely to change, so employers should continue to follow the most current information on maintaining workplace safety. For comprehensive technical assistance from the EEOC see: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization’s particular circumstances. All original materials copyright © Schuyler Affirmative Action Practice 2020.