Employment law developments: A busy EEOC and a quick hit

Blog Post

Showing no signs that it’s ready for a summer vacation, the EEOC has been issuing new rules, guidance, and fact sheets at a rapid pace. Employers who in recent weeks have been focused on the new FLSA salary pay rule may have missed other notable employment law developments in May and early June. Here’s a rundown… get ready because it’s going to be a busy summer.

In conjunction with the White House’s United State of Women Summit, the EEOC issued new fact sheets on June 14 addressing equal pay for women and pregnancy discrimination. In a Q&A format, the documents on pregnancy discrimination provide employees and healthcare providers with guidance on appropriate treatment and accommodations for pregnant employees in the workplace. The equal pay document reiterates the agency’s earlier proposal to collect workplace pay data in a revised EEO-1 report and reminds employees of their rights under the Equal Pay Act.

The EEOC published a new rule on June 2, 2016, that more than doubles the monetary penalty for employers who fail to comply with the notice-posting requirements of Title VII and other nondiscrimination statutes. The EEOC requires employers covered by Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act to post workplace notices “in prominent and accessible places” where notices to employees and applicants are “customarily maintained.”

Effective July 5, 2016, the maximum penalty for violating the notice posting requirements will increase to $525 per violation. That’s an increase of more than double the current penalty of $210 per violation.

The EEOC’s “Equal Employment Opportunity is the Law” poster is available on the EEOC’s website in English, Spanish, Chinese, and Arabic.

Employers should take this increased penalty as a reminder that it’s time to review their postings to ensure that up-to-date notices are located in conspicuous places. Employers should also consider placing postings on an Intranet site for remote workers.

Continuing its focus on key issues in its Strategic Enforcement Plan, on June 2 the EEOC issued proposed enforcement guidance on national origin discrimination. The new guidance covers a broad range of issues that employers face with increasingly diverse workforces, including handling situations involving English-only requirements, accent discrimination, human trafficking, and harassment. The public can comment on the new guidance through July 1.

The new guidance provides insight into how the EEOC evaluates claims involving national origin discrimination. The guidance focuses particular attention on the interrelated issues of race, religion, and retaliation that are often tied to complaints involving national origin. This comprehensive national origin guidance follows two Q&A fact sheets issued by the EEOC in December 2015 related to treatment of employees and applicants who are, or are perceived to be, Muslim or Middle Eastern. The Q&As provided employers and employees with specific steps for addressing potential harassment and discriminatory employment practices related to religion and national origin. This is a hot-button issue for the EEOC, and recent events will ensure that it remains a top enforcement priority.

By now you must be wondering if anyone at the EEOC ever sleeps! It’s a good question. Earlier in May 2016, the EEOC released a fact sheet on how business owners can provide transgender bathroom access in compliance with Title VII of the Civil Rights Act.

Following the parameters of a 2015 EEOC decision on transgender bathroom access, the EEOC fact sheet provides this guidance: 

1. Denying an employee equal access to a common restroom corresponding to the employee's gender identity is sex discrimination;
2. An employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it); and
3. An employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure.

In an apparent reference to the North Carolina bathroom law, the EEOC’s fact sheet further notes that contrary state law is not a defense under Title VII. 

Ready to move on from the EEOC? Then, let’s take a look at the employment implications of the new Ohio medical marijuana law. On June 8, 2016, Governor John Kasich signed a bill allowing the use of medical marijuana in Ohio for those with a doctor's referral. 

While there are many issues that remain to be sorted out regarding the new law, a “burning” question for employers and employees is whether workplace substance abuse policies remain enforceable if medical marijuana is legal. 

The answer is yes. The Ohio law allows employers to terminate employees who violate workplace policies against marijuana use – even if the marijuana was recommended by a physician. This aspect of the Ohio law is consistent with interpretations of medical marijuana laws in the 25 other states that permit medical marijuana use. However, because employees often misunderstand the employment related restrictions in state medical marijuana laws, employers should ensure that their substance abuse policies make clear what is – and is not – acceptable.

With state and federal agencies eager to complete their agendas, employers should expect a continued high level of activity in the form of rules, guidance, and fact sheets. This means you may be reading EEOC fact sheets by the pool… so much for the lazy days of summer.