EEOC issues guidance on "DEI-related discrimination," but doesn't bother to define it

What is "DEI-related discrimination at work?" No one knows, including the EEOC.

Late yesterday, the EEOC released two new policy documents aimed at eliminating "unlawful DEI" in the workplace: What You Should Know About DEI-Related Discrimination at Work and What To Do If You Experience Discrimination Related to DEI at Work (the latter even available as a poster-sized PDF).

The most revealing line appears in the opening sentence of the "What You Should Know" document: 

"Diversity, Equity, and Inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964."

Of course it's undefined, because DEI is not illegal.

This is not normal

THIS IS NOT NORMAL

That was the subject line of an email sent by an EEOC judge to all of her coworkers in response to an agency directive that no orders be issued in LGBTQ+ discrimination cases without first being reviewed by headquarters. The directive was in response to Trump's executive order mandating that the federal government recognize only two sexes.

The judge, Karen Ortiz, urged her colleagues to resist. "It's time for us to embody the civil rights work we were hired to do and honor the oath to the Constitution that we all took," she wrote in her email.

To her surprise, she did not receive a single response. She soon learned why. Her email had been deleted from everyone's inbox. When she followed up, calling for the EEOC's acting chair to resign, the agency cut off her ability to send emails entirely.

EEOC's policy shift to "protect American workers" is all about punishing non-Americans

If you hire non-Americans, the EEOC is coming after your business.

In a press release, Acting Chair Andrea Lucas says the following: 

"The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop.… Many employers have policies and practices preferring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers—in direct violation of federal employment law prohibiting national origin discrimination."

Lucas's statement—while technically correct under Title VII—creates more problems than it solves. 

What the EEOC just said—and didn't say—about the current state of workplace right

"The EEOC is open for business." That's what the agency just declared in a series of frequently asked questions about the impact of Trump's Executive Orders on its operations and the laws it enforces.

The FAQs acknowledge the agency's lack of a quorum and its resulting inability to issue or rescind guidance or policy statements. They also affirm that the EEOC continues to accept and process discrimination charges, conduct investigations, issue right-to-sue letters, and litigate cases.

Trump illegally guts the EEOC of its Democratic members

Remember last week when I told you that Trump would try to dismantle all of our federal workplace discrimination laws?

Well, the first shoe has just dropped—right on the EEOC’s neck.

Late yesterday, news broke that Trump fired two Democratic EEOC Commissioners, Jocelyn Samuels and Charlotte Burrows. This move leaves only two Commissioners on the five-member EEOC: Republican Andrea Lucas (whom Trump had previously named acting chair) and Democrat Kalpana Kotagal and no quorum. Without a quorum, the EEOC is now paralyzed—unable to issue rules, provide legal guidance, or direct staff to take key enforcement actions like pursuing litigation.

Why?

"Jon, why do you post all this stuff about awful things employers do? Aren't you a management-side lawyer and advocate?"

Here's why:

It was the best of opinions; it was the worst of opinions…

Today, the EEOC's regulations interpreting the Pregnant Workers Fairness Act go into effect. Thanks to two very recent federal court opinions from two different federal courts, however, it remains an open issue as to whether the EEOC can enforce those parts of its regulations that require employers to reasonably accommodate employees' elective abortions not necessary to treat a medical condition related to pregnancy.

Sexual harassment, bathroom, and pronouns

"Sex-based harassment includes harassment based on sexual orientation or gender identity, including … repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity … or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity."

That the official position of the EEOC in its just released, Enforcement Guidance on Harassment in the Workplace.

EEOC Commissioner Andrea Lucas disagrees. She voted against the final guidance. She believes that the bathroom guidance is an "assault on women's sex-based privacy and safety," and the pronoun guidance is an assault on "speech and belief rights."

EEOC makes is clear that the Pregnant Workers Fairness Act covers unpaid time off for abortions

From this point forward, if an employee needs an unpaid leave of absence to obtain and recover from an abortion, you better give it her. I realize this topic is divisive, but this issue is no longer subject to debate.

Earlier this week, the EEOC published its final regulations implementing the Pregnant Workers Fairness Act. Pre-publication, agency considered 94,000 comments urging it either to exclude or include "abortion" from the Act's definition of "pregnancy, childbirth, or related medical conditions." The EEOC chose the latter. Here's why.

President Biden’s proposed 2025 federal budget offers a lot for employers to chew on

If you want to learn about a government's priorities, trace the money. 

President Biden's proposed federal budget for FY 2025 contains significant funding that would impact the workplace.

EEOC issues its final updates to its Covid-19 guidance

With the Covid-19 National and Public Health Emergencies now concluded, the EEOC just published what should be its final updates to its COVID-19 technical assistance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

These updates address employers' ongoing obligations to employees related to Covid-19 in the workplace.

An employee may not have a right to receive a reasonable accommodation, but they at least have a right to conversation about it

The EEOC has sued Mercy Health St. Mary's for religious discrimination, claiming that it violated Title VII by rescinding a job offer to an applicant who, for religious reasons, refused to obtain a flu vaccine pursuant to hospital policy.

According to the EEOC's lawsuit, the hospital arbitrarily denied the applicant's request for an accommodation from its vaccination policy and rescinded the job offer, without specifying why or how the request for an exemption accommodation was deficient. Instead, the EEOC alleges, it should have offered an opportunity to supplement the accommodation request to address any perceived deficiencies.

Correlation isn’t necessarily causation … except when it is

According to a recently filed EEOC lawsuit, Dollar General violated Title VII by firing a sales employee because of her pregnancy. More to the point, Dollar General, the EEOC alleges, fired her immediately after she advised her manager of her pregnancy. It listed "health" as the reason for her termination on her separation notice, after advising her of concerns for her safety.

Abortion travel benefits don’t discriminate against non-abortion-seeking pregnant workers

Within hours of the Supreme Court releasing its opinion in Dobbs v. Jackson Women’s Health Organization and reversing Roe v. Wade, DICK'S Sporting Goods announced that it will provide up to $4,000 in travel expense reimbursement for an employee, spouse, or dependent enrolled in its medical plan (plus one support person) to travel to the nearest location where abortion care is legally available. 

Last week, America First Legal, an ultra-conservative non-profit legal group run by "patriots" such as Stephen Miller and Mark Meadows, filed a charge of discrimination with the Equal Employment Opportunity Commission asking the agency to conclude that DICK'S offering of abortion travel benefits discriminates against female employees who choose to give birth. According to America First Legal Senior Counselor and Director of Oversight Reed D. Rubinstein, "Subsidizing travel for an abortion, while denying an equivalent benefit to a mother welcoming a new baby, is perverse and unlawful."

“Abortion discrimination” = illegal pregnancy discrimination … even after Dobbs

Is it legal to fire an employee who has an abortion? This is question that a lot of employers and employees will now be asking in light of the Supreme Court's decision in Dobbs v. Jackson Women’s Health Organization that that there is no constitutional right to abortion.

As controversial and divisive of an issue as abortion is (perhaps now more than ever), the law is clear that an employer cannot fire an employee for having one. Nothing the Supreme Court did in Dobbs changes this.

The customer isn’t always right, especially when the customer wants you to discriminate

"I'm afraid we can't hire you because you won't mix well with our customers."

That's what the EEOC alleges a northern Minnesota furniture retailer told a transgender job applicant. It's also the reason that company has agreed to pay a $60,000 settlement. "Title VII does not permit discriminatory employment decisions based on customer preference," says the EEOC.

Coronavirus Update 10-28-2021: EEOC publishes its own internal Religious Accommodation Request form

"Jon, we have so many employees asking us for religious accommodations from our workplace Covid rules, including our vaccine mandate. Do you have a form we can use to document the request?" 

I certainly do. But it's not mine. It's the EEOC's. The Agency just published the internal form it uses for its own employees' religious accommodation requests.

An adverse jury verdict is just a number on a piece of paper

Late last week, a federal jury tagged Walmart with a verdict totaling more than $125 million in a disability discrimination lawsuit the EEOC brought on behalf of an employee with Down syndrome.

The facts were not great for Walmart. 

“Beware systemic discrimination,” says EEOC to employers

Systemic discrimination has multiple meanings, according to the EEOC:

• A "pattern or practice, policy, and/or class cases where the discrimination has a broad impact on an industry, profession, company, or geographic location."
• "Bias that is built into systems, originating in the way work is organized," referring to "structures that shape the work environment or employment prospects differently for different types of workers."
• "Patterns of behavior that develop within organizations that disadvantage certain employees and become harmful to productivity."

Regardless of you define it, in a report published last Friday, the EEOC says that it pursuing systemic discrimination as an enforcement priority to dismantle the pattern, practice, or policy that results in or facilitates discriminatory decisions.

Frivolous litigation has a price … sometimes a big price

In 2005, Monika Starke filed a charge of discrimination with the EEOC alleging that her employer, CRST Van Expedited, Inc., subjected her to sexual harassment. The EEOC expanded that initial charge into a federal-court lawsuit over whether CRST engaged in sexual harassment against myriad of its female driver trainees.

What followed was 14 years of litigation, several trips to the court of appeals, one trip to the U.S. Supreme Court, and an attorney-fee award of over $3.3 million against the EEOC for frivolous, unreasonable, or groundless conduct in the filing and prosecution of the underlying claims.