OFCCP Week in Review: October 29, 2018

The OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Jennifer Polcer. In today’s edition, they discuss:

• National Disability Employment Awareness Month
• EEOC To Host Public Meeting on Harassment Prevention
• Transgender – Protected Status Under Title VII?
• Disability:IN Revealed Groundbreaking Data

Monday, October 22, 2018: National Disability Employment Awareness Month

“We’ve always believed in empowering all Americans to build and improve their lives,” stated Victoria Lipnic, Acting Chair of the Equal Employment Opportunity Commission (EEOC). On behalf of the EEOC, her message boldly informed: “When you overlook, underestimate, and, yes, harm people with disabilities, you’re disrespecting and harming America and its values.”

In Fiscal Year 2017 alone, the EEOC handled almost 27,000 disability Charges in the private sector under the ADA, amounting to 31.9% of all Charges – a percentage which has been trending upward for 20 years.

In addition to the EEOC bringing awareness, the U.S. Department of Labor sent out a reminder that it will be hosting an event to recognize this year’s theme, “America’s Workforce: Empowering All.” Seats are filling up, but you can also listen in.

Event Details

Tuesday, October 30, 2018
2:00 p.m. – 3:30 p.m. ET
U.S. Department of Labor
200 Constitution Ave., N.W. ~ Washington D.C.

Register here.

WebEx Link

Meeting password: Welcome!68
Call-In Number: 800-369-3355

Attendee access code: 7858040

Wednesday, October 24, 2018: EEOC To Host Public Meeting on Harassment Prevention

The EEOC announced plans to hold a Public Meeting next week featuring the Select Task Force. The EEOC formed this group in 2015, with the goal to examine the problem of workplace harassment in all of its forms and look for ways by which harassment might be prevented and addressed.

In February of this year, the EEOC Acting Chair Victoria Lipnic reported that charges of sexual harassment HAD NOT increased in light of the #MeToo movement. However earlier this month, at the close of FY2018 on September 30, 2018, the EEOC reported that preliminary numbers for the Fiscal Year show Charges filed with the EEOC alleging sexual harassment HAD increased, by more than 12% from FY2017. Hits on the EEOC’s harassment webpage have reportedly also doubled since the start of the #MeToo movement one year ago.

In the Co-Chairs’ 2016 Report of the Select Task Force on the Study of Harassment in the Workplace, the EEOC issued recommendations to employers on the key components (leadership, accountability, policies, procedures, and training) to change an organization’s culture and prevent unlawful harassment. In the upcoming Public Meeting, the Task Force will discuss these components and how the Task Force believes employers may use these components to foster civil, respectful, and harassment-free workplaces.

Meeting Details

“Revamping Workplace Culture to Prevent Harassment”

Open to public observation

Wednesday, October 31, 2018

9:30 a.m. to 12:00 p.m. ET

EEOC Headquarters, 131 M Street, N.E. ~ Washington, D.C.

Wednesday, October 24, 2018: Transgender–Protected Status Under Title VII?

It depends… In this case, the Department of Justice says “no,”  while Equal Employment Opportunity Commission (EEOC) Chair Victoria Lipnic says “yes.”

The U.S. Department of Justice (USDOJ) filed a brief on behalf of the EEOC (its client) in Opposition to the Supreme Court of the United States (SCOTUS) taking up an appeal involving a victorious transgender funeral home director in Michigan. The USDOJ urged the SCOTUS  NOT to take the case. USDOJ argued that there were other better cases pending before the SCOTUS which raised sexual orientation coverage issues under Title VII which may bear on the way the SCOTUS thinks about gender-identity cases like the EEOC’s Michigan funeral home case. At the same time, while arguing that the SCOTUS should NOT hear the funeral company’s appeal from the Sixth Circuit Court of Appeals decision IN FAVOR of the transgender employee (good for the transgender employee), USDOJ, speaking for the federal government as a whole, made it unequivocally clear that it does NOT believe Title VII makes transgender discrimination unlawful “sex” discrimination within the meaning of Title VII:

 “As the Attorney General’s October 4, 2017, memorandum explained, the Department of Justice ‘must and will continue to affirm the dignity of all people, including transgender individuals,’ and the Department does not ‘condone mistreatment on the basis of gender identity.’ Pet. App. 194a. The Department also ‘has vigorously enforced,’ and ‘will continue to’ enforce, Title VII and other laws that ‘protect against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals,’ as well as laws that specifically prohibit gender-identity discrimination. Ibid. But ‘the Department of Justice must interpret Title VII as written by Congress,’ id. at 192a, and the court of appeals misread the statute and this Court’s decisions in concluding that Title VII encompasses discrimination on the basis of gender identity.” See page16 of the EEOC’s brief in Opposition to the SCOTUS hearing the EEOC’s case.

Notes to Non-Lawyers

1) The SCOTUS does not have an obligation to take all of the cases appealed to it. SCOTUS typically hears only about 1% of those cases brought to it for review.

2) The briefs filed October 24th were to fuel the SCOTUS with arguments both against taking the case and in favor of taking it to help the Justices decide whether it was a worthy case to hear and decide.

• The Funeral Home, which lost in the Sixth Circuit Court of Appeals, below, wants the court to hear its case in hopes the SCOTUS will reverse the Sixth Circuit.

• Counter-intuitively, if the SCOTUS adopts the USDOJ’s point of view to not hear this particular case to decide the gender-identity/Title VII coverage issue, the transgender employee’s lower court victory will become final (e., the transgender employee would win!). So, the transgender employee just got a powerful ally (in the form of the USDOJ) in her fight to win – even if for reasons different than those on which the transgender employee has fought the case to date. As in politics, legal fights sometimes beget “strange bedfellows.”

The case: EEOC on behalf of Aimee Stephens v. R.G. & G.R. Harris Funeral Homes, Inc.

How We Got Here

We reported the details back in March. In the first-of-its-kind, a decision by the U.S. Court of Appeals for the Sixth Circuit (Cincinnati), ruled that Title VII protected employees from adverse action because of their sex when transitioning sex from one gender to the other (male to female or female to male). Stated simply, this traditionally conservative and cautious federal appellate court held that transgender discrimination is a form of unlawful sex discrimination (good for the transgender movement).

BUT WAIT! A House Divided!

Even as USDOJ was filing its legal brief with the SCOTUS proclaiming the federal government’s position in the EEOC’s Harris Funeral Homes case that Title VII did not protect transgender employees, EEOC Chair Lipnic gave press interviews explaining that the EEOC would continue to take in Charges alleging transgender discrimination. Chair Lipnic also stated that EEOC lawyers would continue to file cases in the federal courts to argue that transgender discrimination in employment violated Title VII. Here is BNA’s article quoting Chair Lipnic.

Sound Familiar?

Does this legal disagreement between USDOJ and the EEOC sound familiar? It is. You may recall another case where USDOJ and the EEOC are on opposite sides of the legal fence, Zarda v. Altitude Express, Inc. We recapped this story back in March. USDOJ took the position that sexual orientation is NOT protected under Title VII while EEOC believed/believes it is.

NOTE: The Zarda case is one of the cases pending appeal to the SCOTUS and as to which the USDOJ took the occasion in the EEOC’s Harris Funeral Home brief to AGAIN argue that the SCOTUS should hear and decide Zarda instead of the EEOC’s case involving the Harris Funeral Homes.

What now?

With splits in the Federal Circuit Courts as well as the Federal Government, we now await the Court’s decisions about which cases it will hear and not hear. If the Court were to take any one of the two pending sexual orientation/Title VII coverage cases, or the EEOC’s Harris Funeral case, it is not likely SCOTUS will decide that case(s) until the early summer of 2019.

Monday, October 29, 2018: Disability:IN Revealed Groundbreaking Data

Disability:IN reveals the first ever business case for disability inclusion that quantifies results from four years of actual employer data. In a groundbreaking report from Accenture, in partnership with Disability:IN and the American Association of People with Disabilities: “Getting To Equal: The Disability Inclusion Advantage,” digs into data from the Disability Equality Index and shows there is a positive correlation between how inclusive a company is of persons with disabilities and its financial performance. 

Key Finding
“The 45 companies that we identified as standing out for their leadership in areas specific to disability employment and inclusion had, on average over the four-year period, 28 percent higher revenue, double the net income, and 30 percent higher economic profit margins than their peers. Our analysis also revealed that U.S. GDP could get a boost of up to US$25 billion if more persons with disabilities joined the labor force.”

Reminder: Registration for the 2019 Disability Equality Index closes January 11th. Register your company today!

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.