eeoc strategic plan

EEOC Still Seeking Input on FY 2018-2022 Strategic Plan

EEOC Strategic Plan  eeoc strategic plan

The U.S. Equal Employment Opportunity Commission (EEOC) is still seeking public comment on its draft Strategic Plan that covers Fiscal Years 2018 to 2022. The draft plan has not been approved by the Commission as comments are due by 11:59 pm ET on January 8, 2018.  The draft plan can be found at According to the EEOC, the Strategic Plan serves as a framework for the Commission in achieving its mission through the strategic application of the EEOC’s law enforcement authorities, preventing employment discrim­ination and promoting inclusive workplaces through education and outreach, and organizational excel­lence. 

Every four years, Congress requires executive departments and agencies to develop and post a strategic plan on their public website. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future. The Strategic Plan for Fiscal Years 2018-2022 establishes a framework for achieving the EEOC’s mission to “Prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace,” so that the nation might soon realize the Commission’s vision of “Respectful and inclusive workplaces, with equal employment opportunity for all.”

EEOC Strategic Objectives

To accomplish its mission, the EEOC is committed to pursuing the following strategic objectives and outcome goals:

  1. Combat and prevent employment discrimination through the strategic application of EEOC’s law enforcement authorities. The corresponding outcome goals are: 1) Discriminatory employment practices are stopped and remedied, and victims of discrimination receive meaningful relief; and 2) Enforcement authorities are exercised fairly, efficiently, and based on the circumstances of each charge or complaint. 
  2. Prevent employment discrimination and promote inclusive workplaces through education and outreach. The corresponding outcome goals are: 1) Members of the public understand the employment discrimination laws and know their rights and responsibilities under these laws; and 2) Employers, unions, and employment agencies (covered entities) prevent discrimination, effectively address EEO issues, and support more inclusive workplaces.
  3. Organizational Excellence. The corresponding outcome goals are: 1) A culture of excellence, respect and accountability; and 2) Resources align with priorities to strengthen outreach, education, enforcement and service to the public. The plan also identifies strategies for achieving each outcome goal and identifies 12 performance measures (with yearly targets) to track the EEOC’s progress as it approaches FY 2022.

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sexual orientation discrimination california

Supreme Court Refuses to Hear Sexual Orientation Discrimination Case

Sexual Orientation Discrimination sexual orientation discrimination california

On December 12, 2017, the Supreme Court refused to hear a case challenging whether Title VII protects employees from sexual orientation discrimination. In Evans v. Georgia Regional Hospital, Case No. 17-370 (2017), the high court declined to hear Ms. Evans’ appeal, essentially closing the door on her claim and leaving intact a prior appellate court ruling that prevents employees in the Eleventh Circuit from pursuing a claim of sexual orientation discrimination against an employer. The Supreme Court provided no explanation for its decision.


From 2012 to 2013, Jameka Evans worked as a security officer at Georgia Regional Hospital at Savannah (the “Hospital”). Evans, who describes herself as a gay female, presented herself at work in  stereotypically “male” ways—for example, she wore a male uniform, had a short haircut, and wore male shoes. During her time at the Hospital, her supervisors “harassed her because of her perceived homosexuality, and she was otherwise punished because [of her] status as a gay female.” After filing complaints to Human Resources with no changes in working conditions, Evans eventually left her job.

After exhausting her remedies with the Equal Employment Opportunity Commission (EEOC), Evans filed a pro se complaint against the Hospital, Moss, Clark, and Powers in the United States District Court for the Southern District of Georgia. In her complaint, Evans specifically alleged that she was subjected to workplace discrimination because her “status as a gay female did not conform to gender stereotypes associated with women.”

Prior to service of the complaint, Evans’ case was referred to a magistrate judge. The magistrate recommended that the complaint be dismissed with prejudice for failure to state a claim upon which relief could be granted. In the magistrate’s view, Evans’ claim of discrimination based on her sexual orientation failed because Title VII “was not intended to cover discrimination against homosexuals.” The district court adopted the magistrate judge’s report and recommendation without addressing any of Evans’ objections. The district court then dismissed Evans’ case with prejudice.

Evans appealed, and the EEOC filed a supportive amicus brief, maintaining that sexual orientation discrimination “fall[s] squarely within Title VII’s prohibition against discrimination based on sex.”  The Eleventh Circuit Court of Appeals previously dismissed her claim holding that Title VII does not prohibit discrimination based on sexual orientation. Evans appealed to the U.S. Supreme Court. 

Federal Appellate Courts

Federal courts around the country are divided on whether sexual orientation is protected by Title VII. The law does not specifically reference sexual orientation. While some courts, including federal district courts in Pennsylvania have held that discrimination on the basis of sexual orientation is prohibited as a form of “sex” discrimination, other courts ave refused to recognize such a claim holding that it is up to Congress to change the law. 

sexual harassment arbitration

Ending Arbitration of Sexual Harassment

sexual harassment arbitrationAllegations of sexual harassment and misconduct against movie producers, actors, business leaders, and politicians are on the rise across the country.  So much so, a bipartisan group in Congress is blaming the increased use of nonpublic arbitration for keeping allegations quiet. Senators Kirsten Gillibrand, D-NY and Lindsey Graham, R-SC are leading a group of legislators seeking passage of a bill intended to prohibit sexual harassment and gender discrimination cases from being resolved privately in arbitration. The bill, Ending Forced Arbitration of Sexual Harassment, would prohibit businesses from enforcing predispute arbitration agreements of sexual harassment and discrimination claims covered under Title VII of the Civil Rights Act of 1964.


Sexual Harassment

Sexual harassment can occur when a supervisor demands sexual favors from a subordinate in return for positive job treatment (or threats of negative consequences if the employee refuses to comply). Sexual harassment need not only be based on this type of quid pro quo activity however.

Any unwelcome conduct of a sexual nature which is so severe and pervasive that it creates a hostile work environment is also considered illegal harassment. In addition, it is not just a supervisor who can create a hostile environment – co-workers and even customers can create this atmosphere through inappropriate touching, obscene talk or gestures, graffiti, etc. This type of harassment can be perpetrated by females upon males as well as vice versa, and even among members of the same sex.

A “predispute arbitration agreement” is defined by the proposed bill as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” SB 2203 (Gillibrand) targets arbitration agreements that an employee might be asked to sign as a condition of getting hired or remaining employed.  The bill does not seek to eliminate predispute arbitration agreements in connection with other types of discrimination claims.

California Employers
SB 2203 does not address class action waivers, i.e. requiring that claims be asserted individually and not on a class basis. While class action waivers can exist outside the context of arbitration, they are not addressed in the bill. The bill also does not address the use of confidentiality agreements following the settlement of sexual harassment claims.

SB 2203 has just begun its journey in the U.S. Congress and it remains to be seen how it will be received. In the meantime, make sure you have anti-harassment policies in place and that you communicate them to employees in as many ways as possible to include handbooks, policy manuals, intranet sites, etc. And while recent media coverage has focused on sexual harassment, your policies should be broad enough to address harassment of any kind, including conduct based on individuals’ race, color, nationality, religion, disability and the like. Lastly, some employees may be unsure about what constitutes “harassment.” Your policies should describe what types of behavior or actions can constitute harassment, and that in no uncertain terms won’t be tolerated in any way.

California Employees

It is important for employees to know that they must make it clear that any conduct of a sexual nature is unwelcome. In other words, offended employees should tell the offender to stop. If the behavior continues, it should be reported to a supervisor or the human resources department in writing. Employees may be tempted to ignore the harassment, hoping it will not continue, but this frequently only makes the situation worse. And, staying quiet about it can potentially impact the employee’s legal rights here in California as well as in other states.

The labor and employment lawyers at Kingsley & Kingsley are well-versed in representing employees throughout California who have been the victim of sexual harassment. Our lawyers represent employees in civil litigation in state and federal courts, and in mediations and administrative hearings before boards and commissions such as the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC).

Proving sexual harassment can be challenging, but with the right legal team, it can be done. If you have been a victim of sexual harassment, there are a variety of ways that the qualified lawyers at Kingsley & Kingsley can assist you. Take advantage of a free initial consultation to discuss your specific case by calling the toll free number (888) 500-8469 or by clicking here to contact us regarding your case.


Return to Work Policy Costs American Airlines $9.8M

American Airlines and Envoy Air Settle EEOC Disability Suit about Return to Work Policyamerican airlines eeoc return to work policy

American Airlines’ and Enoy Air’s return to work policy has resulted in a $9.8 million settlement with the Equal Employment Opportunity Commission (EEOC). According to the agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee, the airline’s policy violated the Americans with Disabilities Act (ADA) because it meant that employees were not allowed to return to work until they had no disability-related restrictions on their job duties. In short, the EEOC challenged the airline’s policy of requiring workers to be at “100 percent” in order to return to work. 

Allegations of Disability Discrimination

Employees of American Airlines and its largest regional affiliate, Envoy Air filed charges of discrimination with the EEOC alleging violations of the ADA. The employees filing complaints had disabilities such as back and knee injuries, cancer, lupus and asthma. The complaints suggested the employer refused to provide accommodations such as intermittent leave or a stool behind the ticket counter for a worker with a standing restriction, according to the EEOC.  The workers ultimately alleged that the airlines had a “100 percent” return to work policy that required employees to be able to work without any restrictions.

After investigating, the EEOC filed suit asserting that since at least Jan. 1, 2009, American Airlines engaged in a practice of violating the statute by refusing to accommodate employees with disabilities, terminating employees with disabilities and failing to rehire employees. The policy required that employees who are no longer able to do their job without reasonable accommodation find other jobs, apply for other jobs or compete for other American Airlines jobs. The policy did not require consideration of job reassignment as a reasonable accommodation.  

According to the EEOC’s complaint, American 1) did not provide intermittent leave as an accommodation, 2) refused to provide a stool behind the ticket counter to accommodate an employee with a standing restriction, 3) terminated several of the charging parties or placed them on unpaid leave, and 4) told other disabled employees they could not return to work until they had no restrictions related to their injuries and/or disabilities.

American Enters a Consent Decree

American Airlines denied all of the allegations and maintained that they provide equal employment opportunities for all workers. Even with this stance, American entered a consent decree to settle the charges. The consent decree contains the following provisions:

  1.  The EEOC will hold an unsecured claim in American Airlines’ Fourth Amended Joint Chapter 11 Plan in the amount of $9.8 million. The ultimate dollar value of the settlement will depend upon the trading price of the airline’s stock, the parties acknowledged, with the decree fully enforceable no matter the trading price;
  2. American took responsibility for administration costs up to $150,000;
  3. American and Envoy will conduct additional ADA training for all employees, with extra time allotted for human resources workers and ADA coordinators, and a newly designated position will have responsibility for overseeing American’s compliance with the statute and the consent decree;
  4. American and Envoy will refrain from taking part in any employment practices that discriminate or retaliate on the basis of disability and will engage in the interactive process with employees who request a reasonable accommodation;
  5. The airlines will end the challenged return to work policy accommodation and remove references to the litigation from the charging parties’ personnel files; and 
  6. American will provide equitable relief to the complainants.

EEOC Deputy General Counsel James L. Lee said, “We are pleased the parties were able to resolve this important case without resorting to prolonged and expensive litigation, and we are proud of the Commission’s long record of protecting people with disabilities from workplace discrimination.”

Click here to read the entire consent decree filed on November 3, 2017 in Equal Employment Opportunity Commission v. American Airlines, Inc.

California Employment Lawyers

Given the outcome of this investigation, employers should take heed of the EEOC’s position regarding 100% return to work policies. Subsequently, employers should be extremely cautious about requiring employees to return to work without restrictions when returning from medical leaves of absence. Should you have questions about the ADA, or employees having the ability to return to work with or without restrictions, don’t hesitate to contact the experienced California employment lawyers at Kingsley & Kingsley. To discuss these laws, or a potential claim on your behalf, feel free to call us toll-free at (888) 500-8469 or contact Kingsley & Kingsley via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)


California’s Latest Ban the Box Law

ban the boxBan the Box

On October 14, 2017, Governor Jerry Brown signed AB 1008 into law, enacting a broad “Ban the Box” law that takes effect on January 1, 2018. The new law prohibits most California public and private employers from asking an applicant about criminal conviction history until after a conditional offer of employment has been made. Therefore, within less than 2 months, California employers will have to modify job applications and ensure criminal background checks are not conducted prior to an employer making a conditional offer of employment.

Background on Ban the Box Legislation
The passing of AB 1008 follows a recent history of related California legislation. In 2013, California enacted Labor Code section 432.9, which prohibited public employers from inquiring about criminal conviction history until the employer has determined that the applicant met the minimum qualifications for the job. Changes in local laws followed, as the cities of Los Angeles and San Francisco enacted their own “ban-the-box” ordinances, applicable to private employers doing business in those cities. Then, in June 2017, the California Fair Employment and Housing Council promulgated new regulations that limit an employer’s ability to consider the criminal history of a job applicant or employee when making employment decisions.

Who is Impacted by AB 1008?
AB 1008 amends the California Fair Employment and Housing Act (FEHA), which covers all California employers with five or more employees. Only the following positions are exempted: (1) positions for which a government agency is required by law to conduct a conviction history background check; (2) positions with criminal justice agencies; (3) Farm Labor Contractors (as defined by the Labor Code); and (4) positions for which a state, federal, or local law mandates that an employer conduct a criminal history background check for employment purposes, or restricts employment based on criminal history.

When does it go into effect?
AB 1008 goes into effect on January 1, 2018.

What constitutes prohibited actions?
The following conduct is now prohibited before an employer makes a conditional offer of employment:

  • Including in any application (whether written or oral) any question that seeks the disclosure of an applicant’s conviction history;
  • Considering an applicant’s conviction history;
  • Considering, distributing, or disseminating information about any of the following while conducting a conviction history background check in connection with any application for employment:
    • arrest not followed by conviction (except as provided in Labor Code § 432.7(a)(1) and (f))
    • referral to or participation in a pretrial or post-trial diversion program; and
    • convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

What’s allowable following a conditional offer of employment?
After extending a conditional offer of employment, the employer may conduct a background check and obtain a record of the applicant’s criminal history. If the criminal record reveals information that the employer feels necessary to reject the applicant solely or in part because of the applicant’s conviction history, the employer must evaluate if the conviction history would have a “direct” and “adverse” relationship with the specific duties of the job. As part of the evaluation, the employer should consider the nature and gravity of the offense or conduct, the time that has passed since the conduct and completion of the sentence, and the nature of the job held or sought.

If the employer makes a preliminary determination that the offense is worthy of disqualification, the employer is required to notify the applicant in writing and include numerous required elements such as the disqualifying conviction(s), a copy of the conviction history report, and an explanation of the applicant’s right to respond. After the notification is provided, the applicant has five days to respond.

All California employers should review recruitment policies, procedures and forms to ensure they adhere to the latest “Ban the Box” law, especially the revised prohibitions and processes required for applicant notification and disqualification. Employers should also ensure the proper classification of jobs and the determination of those jobs that may be exempt from the provisions within AB 1008. 

Should you have questions about the Ban the Box law, or any of California’s labor laws, don’t hesitate to to contact leading employment lawyers at Kingsley & Kingsley prior to AB 1008’s effective date of January 1, 2018. Feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

California’s “New Parent Leave Act” for Smaller Employers

new parent leave actOn October 12, 2017, Governor Jerry Brown signed into law Senate Bill 63, or the New Parent Leave Act, effective January 1, 2018. The intent behind SB 63 is to provide employees of small companies job-protection leave similar that of the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) which currently apply to employers with 50 or more employees.  

Who is Covered?

An employee is eligible for the leave if he/she 1) has at least 12 months of service with the employer, 2) has at least 1,250 hours of service with the employer during the previous 12-month period, and 3) works at a worksite in which the employer employs at least 20 employees within 75 miles. The new law does not apply to an employee who is covered under both CFRA and the FMLA.

What type of leave is provided to employees?

The New Parent Leave Act (SB 63) requires employers with between 20 and 49 employees to provide up to 12 weeks of unpaid job-protected parental leave to bond with a new child. Parents may take this leave within one year of the child’s birth, adoption or foster care placement. If, before the start of the leave, the employer does not provide the employee with a guarantee of employment in the same or a comparable position following the leave, they will be deemed to have refused to allow the leave. In other words, a covered employer is required to provide up to 12 weeks of “job-protected” unpaid leave to covered employees for new parental responsibilities. Similar to FMLA and CFRA, an employee is entitled to utilize accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off negotiated with the employer, during the period of parental leave. 

The bill specifies it will be an unlawful employment practice for an employer to:  

  • Refuse to allow an eligible employee to take up to 12 weeks of the bonding leave; 
  • Refuse to provide a guarantee of employment in the same or a comparable position before the start of the leave;
  • Refuse to maintain and pay for continued group health coverage for employees during the duration of the parental leave at the same level and under the same conditions that would have been provided had the employee continued to work; 
  • Refuse to hire, or to discharge, fine, suspend, expel, or discriminate against an individual because:
    • An individual’s exercise of the right to bonding leave;
    • An individual’s giving information or testimony as to his or her own bonding leave, or another person’s bonding leave, in an inquiry or proceeding concerning the bonding leave.
  • Interfere with, restrain, or deny the exercise of, or the attempt to exercise any right provided with respect to the bonding leave.  

Mediation Pilot Program

To avoid the same fate as a similar bill last year (SB 654-Jackson provided 6 weeks of parental leave), SB 63’s author, Senator Hannah-Beth Jackson, inserted language creating a parental leave mediation pilot program. Under the program, if an employer receives notice regarding an employee’s claim of violation of the parental leave law, the employer may request to mediate the dispute in a special Mediation Division Program within the Department of Fair Employment and Housing (DFEH). An employee may not pursue any civil action concerning the parental leave until the mediation is complete. The pilot program will be in effect until January 1, 2020. 

Impact on California Employers

First, something that could fall under the “frequently asked questions” category–what happens if an employer covered by SB 63 employs both parents entitled to the leave? In this case, the employer is not required to grant bonding leave that would allow the parents leave totaling more than 12 weeks. Second, what happens if a covered employee becomes disabled by pregnancy, childbirth, or a related medical condition? In this case, the employee is eligible for up to four months of pregnancy disability leave and up to 12 weeks of bonding leave.

California employers with between 20 and 49 employees should closely examine and revise their leave policies to reflect the new requirements of SB 63. Should you have questions about the New Parent Leave Act, or any of California’s labor laws, don’t hesitate to to contact leading employment lawyers at Kingsley & Kingsley prior to SB 63’s effective date of January 1, 2018. Feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)