Category Archives: Discrimination/Equal Rights

SCOTUS Eases the Standard for Proving a Discriminatory Job Transfer under Title VII

By: Oyvind Wistrom

Earlier this week, the U.S. Supreme Court resolved a split in the circuits as to whether an employee is required to show a “significant” injury or harm in connection with a job transfer to meet the threshold for proving an adverse employment action under Title VII of the Civil Rights Act of 1964.  The Court rejected the “significant” injury standard, and adopted a new standard that only requires an employee who is involuntarily transferred from one position to another to show that he/she suffered some harm to satisfy the adverse employment action prong of his/her case.

The case was brought by Jatonya Muldrow, a police sergeant who claimed she was transferred from her job as a plainclothes police officer in the intelligence section of the St. Louis Police Department because she was a woman.  Muldrow worked in the Intelligence Division from 2008 until 2017, where she investigated public corruption and human trafficking cases.  She also oversaw the Gang Unit, served as head of the Gun Crimes Unit, and was assigned as a task force officer with the FBI.  Despite her high employment evaluations, a new unit commander transferred her out of the Intelligence Division, justifying the transfer, in part, by noting that the division’s work was “very dangerous.”  Over her objections, Muldrow was reassigned to a uniformed job in another district where she supervised the activities of neighborhood patrol officers — approving arrests, reviewing reports and handling other administrative matters.

Though her pay and rank remained the same, Muldrow sued the police department, asserting that she had been harmed by the transfer.  Because she was no longer in the Intelligence Division, she lost her FBI status and the car that came with it, and in the new job Muldrow often had to work nights and weekends, instead of the Monday-through-Friday workweek she had worked in the intelligence unit.

Although the district court and the court of appeals both granted summary judgment for the police department, the Supreme Court reversed and remanded the case noting that the words “discriminate against” contained in Title VII refer to “differences in treatment that injure” an employee.  In a typical transfer case, that worse treatment may involve a reduction in pay or benefits, but such economic or tangible effects are not necessarily required where the employee can show that the transfer resulted in some harm.  Writing for the Court, Justice Elena Kagan explained that as long as an employee can show some harm because of sex, race, religion or national origin, that is enough. “Had Congress wanted to limit the liability for job transfers to those causing a significant disadvantage, it could have done so,” wrote Kagan, adding that the court “does not get to make that judgment” by rewriting the statute.

This decision represents a sharp departure from the previous standard that had been followed by the Seventh Circuit Court of Appeals, which covers Wisconsin, Indiana and Illinois.  All employers covered by federal anti-discrimination laws must now be careful to ensure that employment transfers that could be shown to be motivated by the employee’s membership in a protected class do not result in any harm or diminution in responsibilities or status as to avoid liability under Title VII.

ILLINOIS GOVERNOR TO SIGN LEGISLATION PROVIDING MANDATORY PAID LEAVE FOR ALL WORKERS

February 27, 2023

By: Sally Piefer and Alexandra (Sasha) Chepov

On January 10, 2023, both houses of the Illinois legislature passed the Paid Leave for All Workers Act (the “Act”), which requires private employers to provide a minimum of 40 hours of paid leave for employees to use for any reason. Governor Pritzker has indicated that he will pass the Act. Therefore, Illinois employers should take all necessary actions to ensure that their policies and practices are compliant with the requirements imposed by the new law prior to the Act’s effective date, January 1, 2024.

Covered Employees:

The Act applies to all employees who work in the State of Illinois. However, the Act does not apply to employees who are covered by a collective bargaining agreement and work in the construction industry or for an employer that provides services nationally and internationally of delivery, pickup, and transportation of parcels, documents and freight.

Covered Employers:

Any employer who employs at least one employee in the State of Illinois is subject to the requirements of the Act. However, the Act does not apply to any employer that is covered by a municipal or county ordinance, which is in effect on the effective date of the Act, that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Employers in municipalities or counties that enact or amend a local ordinance that provides paid leave, including paid sick leave, after the effective date of this Act must only comply with the local ordinance or other ordinance as long as the benefits, rights and remedies are greater than or equal to that afforded under the Act.

Paid Leave:

The Act requires all employers to provide and allow their employees to use and take a minimum of 40 hours of paid leave during a 12-month period. The 12-month period may be any consecutive 12-month period designated by the employer in writing at the time of an employee’s hire or the time the employer implements a policy consistent with the Act’s requirements.

The Act provides two methods by which an employer can offer its employees paid leave. If an employer accrues leave under the Act, the leave accrues at a rate of 1 hour of paid leave for every 40 hours worked up to a minimum of 40 hours. Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act are deemed to have worked 40 hours each workweek for purposes of paid leave accrual. An employee who earns paid leave under the Act on an accrual basis begins to accrue leave at the commencement of their employment or on the effective date of this Act, January 1, 2024, whichever is later.

Employers also have the option of offering their employees a minimum of 40 hours of paid leave at an employee’s time of hire or the first day of the 12-month period.

An employee may take paid leave under the Act for any reason of the employee’s choosing and is not required to provide their employer with a reason for leave. Paid leave under the Act must be provided upon on the oral or written request of an employee in accordance with the employer’s reasonable paid leave policy notification requirements which may include the following:

  • When use of paid leave is foreseeable, employers may require the employee to provide 7 calendar days’ notice before the date the leave is expected to begin.
  • When use of paid leave is not foreseeable, the employee is required to provide such notice as soon as is practicable after the employee is aware of the necessity of leave.

The Act provides that employers who require notice of paid leave under the Act when the leave is not foreseeable must provide a written policy that contains procedures for employees to provide notice. Employers are prohibited from denying the use of leave to an employee because of noncompliance with an employer’s leave notification policies, unless the employer has provided a written copy of its notification policy to the employee. The Act further provides that an employee may not be required to provide documentation or certification as proof or in support of the leave. An employee may also choose whether to use paid leave provided under this Act prior to using any other leave provided by the employer or state law.  Employees may not be required to search for or find a replacement worker to cover the hours which the employee takes paid leave.

Unlawful Retaliation:

Under the Act, it is unlawful for any employer to threaten or take any adverse action against an employee because the employee:

  • Exercises rights or attempts to exercise rights under the Act,
  • Opposes practices which the employee believes to be in violation of the Act, or
  • Supports the exercise of rights of another under the Act.

Further, the Act provides that it is unlawful for employers to consider the use of paid leave by an employee as a negative factor in any employment action that involves evaluating, promoting, disciplining or counting paid leave under a no-fault attendance policy.

Employees who believe that they have been unlawfully retaliated against are entitled to file a claim with the Department and may recover all legal and equitable relief as may be deemed appropriate.

Takeaway:

Many employers already have leave policies. Paid leave under this Act is not intended to be charged or otherwise credited to an employee’s paid time off bank or employee account unless the employer’s policy permits such a credit. However, employers should be cautious if they do so, because this could inadvertently result in having to pay any unused paid leave to an employee upon their separation to the same extent as vacation time under existing Illinois law must be paid.

The extent to which employers subject to the Act’s requirements must modify their existing policy will undoubtedly vary. Employers should ensure that management is informed and appropriately trained on the Act’s requirements, and should ensure that their policies and procedures are compliant with the Act’s provision prior to January 1, 2024.

If you have questions about this material or require assistance in reviewing and updating your policies, please contact Sally Piefer by email at spiefer@lindner-marsack.com or Alexandra (Sasha) Chepov by email at achepov@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

EXPANDED PROTECTIONS FOR PREGNANT AND NURSING EMPLOYEES

January 9, 2023

By: Samantha J. Wood

On December 29, 2022, President Biden signed into law an omnibus appropriations bill, which expands protections for pregnant and nursing employees under The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.

The Pregnant Workers Fairness Act

 The PWFA, which goes into effect in June 2023, extends the protections for pregnant workers in the same manner as is available under the Americans with Disabilities Act (ADA).  Specifically, the new law requires employers with 15 or more employees to provide reasonable accommodations for pregnant employees and prohibits employment practices that discriminate against qualified employees affected by pregnancy, childbirth, or related medical conditions.  The Act makes it unlawful to take any of the following adverse actions:

  • Refuse to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such accommodation would impose an undue hardship on the operation of the business;
  • Require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process;
  • Deny employment opportunities to the employee if such denial is based on the need to make reasonable accommodations;
  • Require the employee to take paid or unpaid leave if another reasonable accommodation can be provided that would enable the employee to continue working; or
  • Take an adverse employment action against the employee because the employee requested or used a reasonable accommodation.

Although pregnancy accommodation requirements have been recognized since 2015 pursuant to the U.S. Supreme Court’s decision in Young v. UPS, 575 U.S. 206 (2015), that decision only required employers to accommodate pregnant workers in the same manner as it accommodated other similarly situated non-pregnant employees.  Therefore, if an employer did not accommodate employees with temporary conditions, it did not have to accommodate pregnancy-related limitations under federal law.  The PWFA takes this decision one step further by requiring employers to accommodate pregnant employees irrespective of what the employer does for employees affected by other temporary conditions.  Under the PWFA, pregnant workers will be entitled to accommodations regardless of whether similarly situated non-pregnant workers were given accommodations.

Further, the PWFA provides that employees may seek enforcement and relief under this Act in the same manner as pregnancy discrimination claims under Title VII of the Civil Rights Act.  In the coming months, the Equal Employment Opportunity Commission (EEOC) is expected to adopt rules providing examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth and related medical conditions.

Providing Urgent Maternal Protections for Nursing Mothers Act

 The PUMP Act, which went into effect on December 29, 2022, expands workplace protections for employees who need to express breast milk following the birth of a child.  Since 2010, federal law has required that employers provide non-exempt employees with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child.  Employers with less than 50 employees are exempt from this requirement if it would impose an undue hardship on their business.

The PUMP Act expands the 2010 requirements by requiring that employers provide reasonable break time and a private place (other than a bathroom) to express breast milk to both exempt and non-exempt employees.  The break time may remain unpaid, unless the employee is not completely relieved from duty during the entirety of the break.

The PUMP Act further provides that before commencing an action against an employer, the employee must notify the employer of its non-compliance.  The employer then has up to ten (10) days to come into compliance with the required accommodations.

Employers should ensure management is notified and appropriately trained on these changes, and should also ensure that their policies and procedures are updated and in compliance with these new laws. We will continue to monitor the EEOC’s issuance of rules relating to the PWFA and will provide updates when those rules have been made available.

If you have questions about this material, please contact Samantha J. Wood by email at swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

LINDNER & MARSACK, S.C., ANNOUNCES 2022 SUPER LAWYERS AND 2023 BEST LAWYERS DESIGNATIONS

Lindner & Marsack, S.C., today announced team members acknowledged by Super Lawyers magazine. Honorees include Douglas Feldman, Gary Marsack, Daniel Pedriana, Andrew Quartaro and Oyvind Wistrom, along with Melissa Stone and Samantha Wood who were named by the organization as “Rising Stars.”

U.S. News & World Report and Best Lawyers also announced their designations for 2023, which includes Feldman and Wistrom as well as Daniel Finerty and Jonathan Swain.

“Our primary goal is to help employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges,” said Wistrom, Firm President. “First and foremost, we’re dedicated to advancing the interests and success of our clients. To be recognized for that work by leading industry publications and rankings adds another element of pride and satisfaction for our entire team.”

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Attorneys are selected using a rigorous, multi-phase rating process in which peer nominations and evaluations are combined with third party research. The objective of the program is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

Similarly, Best Lawyers rankings are based on a rigorous process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

 

EMPLOYER NOT REQUIRED TO OFFER LIGHT DUTY POSITIONS TO PREGNANT EMPLOYEES

By:  Oyvind Wistrom

The Seventh Circuit Court of Appeals in EEOC v. Wal-Mart Stores East, L.P., No 21-1690 (7th Cir. Aug. 16, 2022) recently recognized that an employer has the right to exclude pregnant workers from its light duty work program created for employees injured on the job.  While the case addressed only the exclusion of pregnant workers under the Pregnancy Discrimination Act (PDA) and Title VII of the Civil Rights Act of 1964, the decision may also have implications under the Americans with Disabilities Act (ADA).

Walmart’s light duty program provided that employees with lifting restrictions caused by a work injury could be offered temporary light duty work while they healed.  However, Walmart did not extend its light duty to workers injured off the job or to pregnant workers.  Instead, it required pregnant workers with lifting or other physical restrictions to take a medical leave of absence. The U.S. Equal Employment Opportunity Commission (EEOC) sue Walmart over the policy on behalf of a class of workers who were denied light duty positions during their pregnancy, and the U.S. District Court for the Western District of Wisconsin granted summary judgment for the employer.

On appeal, the Seventh Circuit agreed with the lower court and affirmed the grant of summary judgment.  The panel of three judges determined that Walmart provided a legitimate reason for only offering light duty to workers injured on the job.  The Court noted that “offering temporary light duty to workers injured on the job pursuant to a state worker’s compensation law is a ‘legitimate nondiscriminatory’ justification for denying accommodations … to everyone else, such as individuals not injured on the job, including pregnant women.”  Because the company acted pursuant to a neutral worker’s compensation program that benefited employees injured on the job while limiting its labor costs and exposure to worker’s comp claims, the policy did not violate the PDA or Title VII.

Notwithstanding its ruling, the Seventh Circuit noted that employers that offer light duty to employees with job-related injuries may violate the PDA when they also provide light duty work to other groups of workers, but not to pregnant employees.  For example, if an employer implements a light duty program in which it offers light duty to employees with temporary restrictions from work-related and non-work-related injuries, but specifically excludes pregnant workers from its policy, such a policy would violate the law.  There was no evidence in the record, however, that Walmart offered light duty to workers whose injuries did not occur on the job.

While the case did not expressly address the ADA, it should be noted an employer has an obligation to provide a reasonable accommodation to a worker with a disability.  In this regard, an employer must apply its policy of creating a light duty position for an employee when s/he is occupationally injured on a non-discriminatory basis.  While the Seventh Circuit’s decision only addressed a claim of pregnancy discrimination, the decision would appear to allow employers to restrict its light duty policy to employees with occupational injuries and exclude employees with non-work-related restrictions (including workers with disabilities).  This is especially so where the company’s light duty work program does not have a set number of positions, but rather positions are created, as necessary, for each worker who sustains an occupational injury.

If you have questions or need assistance, please contact the Lindner & Marsack attorney with whom you regularly work.

U.S. SUPREME COURT RULES THAT TITLE VII PROTECTS LGBTQ WORKERS FROM DISCRIMINATION

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June 15, 2020

By:  Samantha J. Wood

Today, the U.S. Supreme ruled that Title VII of the Civil Rights Act bars discrimination on the basis of gender identity and sexual orientation.

Title VII makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1).  An employer, therefore, violates Title VII when it intentionally terminates an individual based, in part, on his or her sex.

In Bostock v. Clayton County, No. 17-1618 (June 15, 2020), which involved three consolidated cases, three employees sued their former employers, alleging sex discrimination under Title VII, after they were terminated on the basis of their homosexual or transgender identity.  The employers did not dispute that they fired the employees as a result of their homosexual or transgender identity.  Rather, they argued that Title VII does not extend protection to the employees on such basis.

The Supreme Court, however, disagreed, holding that an employer who fires (or otherwise discriminates against) an individual for being homosexual or transgender necessarily and intentionally discriminates against that individual, in part, because of sex.  “Sex plays a necessary and undisguisable role in the decision,” which is exactly what Title VII forbids. Accordingly, an employer who intentionally treats individuals differently because of their homosexual or transgender identity, penalizes those individuals on the basis of their sex in violation of Title VII.

While the Seventh Circuit (covering Wisconsin, Illinois, and Indiana) already extended Title VII protection on this basis (see here), this case serves as a reminder to employers that their policies and practices must provide protections to LGBTQ employees.

If you have questions about this material, please contact Samantha J. Wood by email at swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

SEVENTH CIRCUIT ISSUES ADA REASSIGNMENT GUIDANCE

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By: Kristofor L. Hanson & Christopher J. Saugstad

November 25, 2019

The Seventh Circuit Court of Appeals recently clarified its position concerning reassignment as an accommodation under the Americans with Disabilities Act (the “ADA”). Under the ADA, employers have an affirmative duty to reasonably accommodate an employee’s disability. While engaging in the interactive process to find a reasonable accommodation, in situations where an employee is unable to perform the essential functions of his or her job even with reasonable accommodations, employers are required to evaluate reassignment to a vacant position as an accommodation. Previously, in EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012), the Seventh Circuit explained that the ADA requires employers to appoint disabled employees to vacant positions for which the employee is minimally qualified, unless the reassignment would pose an undue hardship to the employer or there is a bona fide seniority system in place. Pursuant to this decision, employers cannot force the disabled employee to go through a competitive process to be placed into a vacant position as a reasonable accommodation.

On November 15, 2019, the Seventh Circuit revisited the issue of reassignment under the ADA in Ford v. Marion Cty. Sheriff’s Office, No. 18-3217, 2019 U.S. App. LEXIS 34072, (7th Cir. Nov. 15, 2019). Ford worked as a deputy at the county sheriff’s office until her hand was seriously injured in a car accident while on duty. Ford was reassigned to light duty for about a year until she accepted a position as a jail visitation clerk; Ford was given the option to accept the visitation position, resign, or be fired. After Ford’s reassignment, she alleged she suffered disability-based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials. Ford brought an action against Marion County for violations under the ADA.

The Seventh Circuit found the district court properly granted summary judgment on Ford’s claim regarding reassignment to the visitation clerk position and explained a “demotion can be a reasonable accommodation when the employer cannot accommodate the disabled employee in her current or prior jobs or an equivalent position.” The Court pointed out EEOC guidance regarding reassignment and demotion states: “An employer may reassign an individual to a lower graded position if … there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”

The Court noted that if there had been a vacant position that more closely matched Ford’s previous position, under the ADA, Marion County would have been obligated to reassign her to that position.

Significantly, the Seventh Circuit suggested that Marion County, as the employer, had an obligation to “to canvass available positions and, if a vacant job existed that Ford was qualified to perform with or without reasonable accommodations, to offer it to her.” Employers should review their current process regarding reassignment as a potential reasonable accommodation. Once reassignment becomes a potential accommodation, employers should actively canvas their current vacancies in relation to the disabled employee’s qualifications. If there is a match, the employee should be offered the job. Merely inviting employees, without any employer assistance, to apply for any vacant positions for which they think they may be qualified is insufficient.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about the ADA, reasonable accommodation and the possibility of reassignment, or any other labor or employment issue involving your business, please contact us at any time.

Title VII Now Covers Discrimination Based on Sexual Orientation

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By:  Kristofor L. Hanson

The Seventh Circuit Court of Appeals has determined that Title VII of the Civil Rights Act bars discrimination on the basis of sexual orientation.  On April 4, 2017, the Chicago-based court, which presides over federal matters in the states of Wisconsin, Illinois and Indiana, became the first federal court of appeals to determine that the protections of Title VII extend to sexual orientation.

The case, Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), was brought by Kimberly Hively, a lesbian and a part-time adjunct instructor at Ivy Tech, a public institution in Indiana with thirty campuses statewide. She alleged that the college refused to hire her for six full-time positions she sought over five years and then refused to renew her part-time contract because of her sexual orientation.

In its decision, the court held that consideration of sexual orientation centers on the issue of gender and sexual stereotypes, meaning that an employer who takes an adverse action against a homosexual employee is taking an action based upon that employee’s gender or sex, which are covered by Title VII, and the employee’s failure to conform to a particular gender stereotype.  Hively argued, and the court agreed, that had Hively been a man married to, dating, or cohabitating with a woman, Ivy Tech would not have taken the actions it did.  The court stated that while this decision may appear to write into the law the term sexual orientation, it actually does no such thing as the law already protects an individual from discrimination on the basis of sex, which cannot be separated from sexual orientation.

This decision, issued following oral argument before the full panel of Seventh Circuit judges, overruled the Circuit’s previous decision in the same case and the lower court’s decision which granted Ivy Tech’s motion to dismiss, both of which held that Title VII did not cover sexual orientation.  This decision means that Hively now has the opportunity to litigate her claims in the district court.  Whether she ultimately will prevail is to be determined, but now, in the Seventh Circuit at least, it is clear that she has a viable claim to litigate under federal law.

Twenty-two states have laws that bar discrimination based on sexual orientation, including Wisconsin, Illinois and Minnesota.  Employers in these states, therefore, have already been prohibited from discriminating against employees on the basis of sexual orientation.  The Seventh Circuit’s extension of federal protection to sexual orientation creates additional means for employees claiming such discrimination to seek remedies before the Equal Employment Opportunity Commission and in federal court.  In federal court, compensatory (i.e. emotional distress) and punitive damages may be available to plaintiffs where before state agencies such damages are generally unavailable.  Therefore, if this decision changes anything for those in states already prohibiting discrimination, it potentially increases the risk for employers who run afoul of the law.

Even though many employers have known that sexual orientation is a protected class in their states, this decision serves as a reminder that employers should make sure their handbooks, policies, and employee and supervisor training include reference to this protected class.

GOVERNOR WALKER PROPOSES TO ELIMINATE THE LABOR AND INDUSTRY REVIEW COMMISSION

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By:  Jonathan T. Swain

February 13, 2017

In his recently published proposed biennial budget for fiscal years 2018 and 2019, Governor Walker has proposed to eliminate the Wisconsin Labor and Industry Review Commission (LIRC).  LIRC is an independent three member commission appointed by the Governor that currently handles all appeals of Administrative Law Judge (ALJ) decisions for unemployment compensation cases, worker compensation claims, as well as state fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  LIRC would be phased out over the next three fiscal years.

Presently, LIRC has the authority to affirm, overturn and remand ALJ decision in these areas.  LIRC decisions are appealable to the State’s circuit courts.

Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators.  In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly.

Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.  Further, stakeholders in the business, labor and legal community have yet to weigh-in on the Governor’s proposal.  As this issue advances, we will keep you up to date and informed.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CHANGES COURSE ON RELEASING EMPLOYER POSITION STATEMENTS TO CHARGING PARTIES

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By: Daniel Finerty & Oyvind Wistrom

Employers that have endured the Equal Employment Opportunity Commission’s charge process concerning allegations of discrimination, harassment or retaliation know that an effective, persuasive position statement responding to a charge is critical to securing a successful outcome. For years, employers could be assured that the EEOC would not share its position statement or attachments with a charging party. In doing so, this procedure complied with Section 709(e) of Title VII, which provides:

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.

Notwithstanding this statute, the Commission announced a reversal of course, as of January 1, 2016, and advised that it intends to release employer position statements:

EEOC has implemented nationwide procedures that provide for the release of Respondent position statements and non-confidential attachments to a Charging Party or her representative upon request during the investigation of her charge of discrimination. … These procedures apply to all EEOC requests for position statements made to Respondents on or after January 1, 2016. … The new procedures provide for a consistent approach to be followed in all of EEOC’s offices, which enhances service to the public. The procedures will also provide EEOC with better information from the parties to strengthen our investigations.

In contrast to this new practice, the Commission will not share the charging party’s position statement with the employer. While the Commission has recognized that employer EEO-1 reports are confidential under Section 709(e) (“[a]ll reports and information from individual reports will be kept confidential, as required by Section 709(e) of Title VII. Only data aggregating information by industry or area, in such a way as not to reveal any particular employers statistics, will be made public.”), it has not explained this new interpretation or how Section 709(e) permits its one-sided disclosure of employer position statements.

The protections for information and documents deemed “confidential” by an employer is limited. The Commission’s clear delineation of the information it will consider confidential is limited to sensitive medical information, social security numbers, confidential commercial or financial information, trade secrets information; non-relevant personally identifiable information of witnesses, comparators or third parties (for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.), and any reference to charges filed against the employer by other charging parties. “Sensitive medical information” excludes the charging party’s medical information relating to the investigation. It is critical for employers to consult with labor and employment counsel to correctly categorize confidential information and justify such designation(s) to ensure confidentiality can be secured. “[T]he agency will not accept blanket or unsupported assertions of confidentiality.”

Further, upon receipt of information deemed confidential by an employer, the Commission has indicated that it will not withhold; rather, “EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.”

Employers need to be mindful of the Commission’s new procedure when responding to EEOC discrimination charges. Confidential information should be withheld (when permissible) or should be designated as “confidential.” Additionally, employers should keep in mind, when drafting position statements, that a charging party or his or her attorney may receive a copy of the position statement and any attachments.

If you have questions about this new practice by the EEOC, please contact Daniel Finerty, Oyvind Wistrom, or your Lindner & Marsack contact attorney at 414-273-3910.