Written Testimony of Claudia Center, Employment Law Center

Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan

Work is a foundational building block in nearly all of our lives. Work enables us to support ourselves, sustain our families, strengthen our communities, and engage in civic affairs. Work gives us a sense of purpose, belonging, self worth, and identity.

While work is central, many people do not have equal opportunities in the workplace. The Legal Aid Society – Employment Law Center serves low-wage workers. Among our clients are pregnant women, single parents, people with disabilities, immigrants, people of color, survivors of domestic violence, lesbians, gays and transgender persons, and undocumented workers. While serving in jobs essential to our economy, these workers are frequently subject to unlawful employment discrimination.

Without free or affordable legal representation, and without the leadership and enforcement efforts of government agencies like the EEOC, low-wage workers lack the leverage or power to avoid being the victims of illegal practices.

For these and many other reasons, we commend Chair Berrien and the Commission for developing an updated Strategic Enforcement Plan.

Substantive Priorities.

As with a living Constitution, the statutes over which the Commission has jurisdiction may be adapted to address the emerging concerns of our time. This may occur through a renewed understanding of a prohibited form of discrimination, as in the EEOC's recent decision in Macy v. Holder, EEOC Appeal No. 0120120821, Agency No. ATF-2011-00751 (Apr. 20, 2012) (finding that discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII). This may occur through legislative change, as in the ADA Amendments Act and the EEOC's implementing regulations.

As the Commission looks forward to refining and initiating its 2012-2016 strategic plan, we urge that the following areas be granted priority in rulemaking, public policy, and case selection. They are of great importance to the vulnerable clients we serve.

Immigrant Worker Issues.

According to recent census figures, California residents who were not U.S. citizens at birth represent 27 percent, or 10.2 million, of the state's population of about 37 million. About 2.6 million are undocumented; undocumented workers are a substantial minority of the state's low-wage workers. Many of the egregious cases of employment discrimination we see are experienced by our clients who are undocumented.

It has been nearly ten years since the Commission rescinded its guidance on the application of federal employment discrimination laws to undocumented workers. The Commission's action followed the U.S. Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). Since Hoffman, lower courts have affirmed that undocumented workers continue to enjoy many rights and remedies available under the laws enforced by the Commission.

In light of the need for federal leadership, and the post-Hoffman caselaw developments, we urge the Commission to undertake an effort to craft a new enforcement guidance document to replace the 1999 document it rescinded. As part of that effort, we recommend that the Commission convene a working group of immigrant workers' rights stakeholders to discuss the following:

• the relevance of immigration status to remedies (including but not limited to back pay) under laws enforced by the EEOC;
• the propriety of discovery into immigration status in actions brought under these laws;
• the scope of prohibited retaliation, including ICE-related retaliation, under these laws; and
• the Commission's policy position on immigration-related inquiries (by employers and the EEOC) during intake, investigation, conciliation, and litigation.

Related, because of the serious risk of retaliation that undocumented immigrant workers face in the form of threats of reports to ICE or actual reporting to ICE, the Commission should continue to complete U-Visa Certification forms for complainants and witnesses who have been the victims of crimes, including crimes associated with ICE-related retaliation (e.g. witness tampering, obstruction of justice, and the attempt, conspiracy, or solicitation to commit these crimes). While the Commission has exercised leadership in this area, it should work toward streamlining its U-Visa process overall.

We urge the Commission to continue to bring cases and to develop guidance documents and factsheets to deter the imposition by employers of unnecessary "English only" or English proficiency requirements upon groups or sub-sets of immigrant workers.

As well, the strategic plan notes the Commission's plans to further leverage technology, including its web site. The EEOC web site has extensive and useful content for a range of audiences, but appears under-utilized by low-wage workers and their advocates. We endorse the Commission's efforts to make the web site more accessible to the general public. As part of this effort, we urge the Commission to provide all public documents in accessible language, including in alternative languages such as Spanish and Chinese. (Access for deaf workers is discussed below.)

Transgender Worker Issues.

According to the groundbreaking 2011 report Injustice at Every Turn, which surveyed more than 6,450 transgender and gender non-conforming people, transgender workers are particularly vulnerable to employment discrimination. Ninety percent of respondents reported experiencing harassment, mistreatment, or discrimination on the job or hid who they were to avoid it; 47 percent reported being fired, not hired, or denied a promotion; and over one-quarter reported they had lost a job due to being transgender or gender non-conforming. Harassment, mistreatment, and job discrimination was especially devastating for transgender people of color, frequently leading to job loss and unemployment. Latino/a and African American transgender people were unemployed at three and four times the rate of the general population respectively.

In 2012, the LGBT community welcomed the Commission's recognition in the Macy decision that discrimination based on gender identity is a form of sex discrimination prohibited by federal law. Consistent with its commitment to justice, the Commission must launch a vigorous campaign to enforce Title VII on behalf of transgender workers. We urge the Commission to develop and issue guidance documents, factsheets, internal policy documents, and other communications detailing the principles announced in Macy. As part of this essential process, the Commission should hold a public stakeholder meeting on gender identity discrimination that includes federal agencies, the employer community, and the LGBT community.

To further develop this area of law, the Commission should issue additional decisions on gender identity, engage in affirmative litigation after a finding of discrimination, and file amicus briefs in ongoing litigation.

It is critical that the Commission educate its intake and investigative staff, the employer community, federal agency stakeholders, and the public, that it is the policy and determination of the EEOC that discrimination based on gender identity is prohibited by Title VII. This effort will require sustained attention.

We further urge the Commission to prioritize charges and complaints brought by transgender people, as well as lesbian, gay and bisexual people, under the principles of Macy. The Commission should consider engaging in targeted outreach to transgender workers who been deterred from filing a charge of discrimination or who have had their charges rejected due to the misunderstandings of intake staff. Related, it is critical that the Commission provide cultural competency training on the LGBT community to its staff who interact with the public.

The Commission's strategic plan commits to steps to improve the diversity of its workforce. While in many areas of diversity the Commission serves as a national leader, this is not the case with respect to LGBT employees. It is only in very recent years that the Commission has begun to recognize that this is an area that requires its attention. The Commission must continue its efforts to create and maintain a workplace that respects and values LGBT employees and applicants.

Domestic Violence and Employment.

Every year, nearly 3 million people are victimized by intimate partners, and as many as 400,000 individuals are victims of rape. Nearly one in four women reports being physically or sexually abused by a husband or boyfriend at some point during her lifetime. Similarly, between one-third to one-fourth of lesbian, gay, bisexual, and transgender (LGBT) people in relationships experience domestic violence. A 2005 national survey of 1200 employed adults (age 18 and over) identified themselves as victims of intimate partner violence. While persons of any gender may experience domestic violence, the vast majority of victims are women.

Such crimes often occur on the job. Even when not committed in the workplace, domestic and sexual abuse can have significant effects on victims' employment. Studies indicate staggering rates of job loss and other problems at work for domestic and sexual abuse victims.

When abuse enters the workplace, employers may have a duty under Title VII to protect the victim from harassing conduct based on sex. The unwarranted failure to assist a female worker who is experiencing domestic violence may itself constitute sex discrimination, given the disproportionate numbers of women who experience these crimes. See Sharon Terman and Anya Lakner, "Employment Protections for Survivors of Domestic Violence, Sexual Assault, and Stalking" (BNA, Daily Labor Report, 2011).

As well, many survivors experience disabilities caused or aggravated by domestic or sexual violence, such as depression, post-traumatic stress disorder, brain injuries, and orthopedic disabilities. Employers have an obligation under the ADA to provide these workers with time off or other accommodations to recover from injuries or to seek treatment. Id.

Over more than 15 years of assisting survivors with their employment-related legal problems, we have found that the overwhelming majority of employers and employees lack any awareness of the state and federal laws that may apply.

We urge the Commission to issue a guidance document reviewing the application of Title VII, the ADA, and Section 501 to the critical needs of employees experiencing domestic violence.

Job Seekers with Criminal Records.

As a result of historically high and disparately imposed incarceration rates, millions of job seekers are burdened with criminal records and other indicia of incarceration.

The Commission has long recognized that criminal background checks can impose adverse impacts upon communities of color. See 1987 EEOC Policy Statement on the Issue of Conviction Records. These impacts have only intensified over the past decades, as has been detailed in Michelle Alexander's galvanizing The New Jim Crow. Last year the National Employment Law Project reported that as many as 65 million job seekers are excluded from jobs based on their criminal records. Michelle Natividad Rodriguez and Maurice Emsellem, March 2011.

On July 26, 2011, in response to the community's call for attention to this pressing issue, the Commission held a public meeting which examined the use of criminal background checks in employment, and their impact upon the hiring and retention of qualified individuals. On April 25, 2012, the Commission issued a guidance document reiterating that an employer's use of criminal records in making an employment decision may violate Title VII because of its disparate impact on African American and Hispanic males.

We urge the Commission to continue its leadership in challenging the unnecessary use of criminal background checks in employment, including in its case selection. With its unique enforcement powers, the Commission may be able to reform discriminatory employment practices that are difficult to reach through private litigation.

At the same time, the Commission continues to overlook the other status disparately affected by incarceration – persons with disabilities. Compared to the general population, the inmate population has at least double the rate of intellectual disability, four times the rate of learning disability, and five times the rate of HIV/AIDS. As any lawyer who works on litigation challenging unlawful prison conditions will confirm, persons with psychiatric disabilities are particularly overrepresented among persons who are or who have been incarcerated. Due to the traumatic and often unconstitutional conditions of custody, many inmates acquire psychiatric disabilities such as PTSD or experience a worsening of existing mental health conditions. About three-quarters of all prisoners have a history of substance abuse: the ADA specifically includes rehabilitated drug addicts and alcoholics within its core protections. See Letter of Claudia Center to EEOC (Aug. 8, 2011).

We urge the Commission to broaden its view of the ways in which the use of criminal background checks in employment may constitute unlawful employment discrimination, and to understand that such practices may not only violate Title VII but also the ADA and Section 501.

Discrimination Based on Pregnancy.

Although federal laws forbidding pregnancy discrimination have been in effect for over 30 years, pregnancy discrimination against low-wage workers persists and frequently remains blatant. We have heard and continue to hear from countless women who were fired immediately after announcing their pregnancy, and whose employers expressly told them that pregnancy was the reason for their discharge.

Pregnancy-related harassment is also commonplace in low-wage workplaces, with employers making offensive remarks about pregnant women, asking intrusive questions about workers' sex lives and childrearing plans, and unduly criticizing women's work performance following disclosure of pregnancy.

Women who disclose their pregnancy are often placed on involuntary, unpaid leave based on the assumption that she can no longer safely perform her job – even when there is no medical need for leave. Employers often deny modest workplace accommodations to pregnant workers, such as a lifting restriction or more frequent bathroom breaks. This denial occurs even though accommodations are made to other temporary conditions, and despite the obvious adverse impact on pregnant women. When the worker is forced to go out on leave early, she may use up all of her allotted leave before she can return to work, risking termination.

The Commission has taken a leadership role in advancing these issues. On February 15, 2012, it held a public meeting entitled "Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities."

We urge the Commission to follow up on this meeting with a guidance document that includes the following important principles:

• employers violate the Pregnancy Discrimination Act (PDA) when they base adverse actions on stereotypes of pregnant women's capacity to work; no comparator is required;
• reasonable accommodations and a good-faith interactive process are required for pregnancy- and childbirth-related disabilities under the ADA, as amended;
• even when pregnancy-related conditions do not meet the definition of disability under the ADA, accommodations may be required under the PDA; and
• a hostile work environment based on pregnancy constitutes sex discrimination.

Additional Emerging Disability Discrimination Issues.

Above, we note the application of the ADA and Section 501 to the needs of pregnant women, persons who have experienced domestic violence, and job seekers with criminal records, and we urge the Commission to take steps to highlight and advance these applications.

We further urge the Commission to continue its leadership role in several emerging areas of disability discrimination law:

Post-Amendments Act Litigation, Rulemaking and Guidance.

In March 2011, the Commission issued the final regulations implementing the ADA Amendments Act, after extensive communication and collaboration with stakeholders. We urge the Commission to build upon this rulemaking by bringing law reform cases under the amended ADA and the new regulations.

Such post-amendment cases should include claims of discrimination brought under the expanded "third prong," and should also include claims brought by low-wage workers who have experienced on-the-job orthopedic and/or RSI injuries. (Unsurprisingly, workplace injury rates are far higher among poor workers than among other workers. Many work in dangerous conditions and acquire disabilities on the job.) Other issues for litigation might include the ADA's coverage of persons with learning disabilities and of persons experiencing weight discrimination.

As well, now that many of the "definition of disability" battles have been resolved, the Commission should focus on important issues regarding the "merits" of disability discrimination. These include, as Brian East noted, litigation and other initiatives underscoring the individualized nature of reasonable accommodation. Particularly important are law reform efforts that challenge blanket employer policies interfering with reasonable accommodation as well as unnecessary eligibility criteria that screen out or tend to screen out persons with disabilities. Further guidance on the ADA safety defenses would also be welcome.

A further area for Commission attention is the development of caselaw and guidance to strengthen the important but under-considered reasonable accommodation of job restructuring. When employers adopt unnecessary but trendy "cross training" requirements, labeling all job duties "essential," employees with disabilities frequently experience job loss. (These were the underlying facts of the Toyota v. Williams case, decided by the U.S. Supreme Court on other grounds in 2001.) Caselaw assessing challenges to the employer's designations of rotating or alternative job duties as "essential" is rare at best. Cf. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1117 (9th Cir. 2000) ("Although U.S. Air argues that this accommodation would require the elimination of essential functions of the cargo job, it may only have required reassignment of functions among personnel."), reversed on other grounds, Barnett v. U.S. Airways, 122 S. Ct. 1516 (2002). Additional clarification would be of great use to low-wage workers, particularly those who work in dangerous assembly line jobs.

Leaves and Time Off As a Reasonable Accommodation; Related Employer Policies.

In our thirty years of serving workers with disabilities in California, access to leaves of absence and time off from work has been an area of consistent need from employees. The Commission has taken a number of important systemic cases challenging employer policies that function to deny leave to workers with disabilities. As well, in June 2011, the Commission held a public meeting on leaves of absence as a reasonable accommodation under the ADA and Section 501. We urge the Commission to follow up on this meeting, including by issuing a unified guidance document on leaves of absence as an accommodation. We further urge the Commission to continue litigating systemic cases challenging blanket employer leave policies.

Weight Discrimination Under the ADA and Section 501.

For many people who are labeled as "obese" (a medical term), weight loss significant enough to eliminate obesity is not realistic, even with the investment of significant effort and resources. Weight loss attempts including dieting and surgery are associated with increased risk of illness and death, and studies show that up to two-thirds of dieters gain back more weight than they lose. See Traci Mann, et al., "Medicare's Search for Effective Obesity Treatments: Diets Are Not the Answer" 62 Am Psychol 220-233, April, 2007. The mortality and morbidity rates associated with weight loss surgery are significant. (For example, one study showed that of 16,155 Medicare beneficiaries who had weight-loss surgery, one-year mortality rates were nearly 5 percent. See David R. Flum, MD, MPH, et al., "Early Mortality Among Medicare Beneficiaries Undergoing Bariatric Surgical Procedures," JAMA, 294(15), 1903-1908, 2005.

For these and other reasons, disability nondiscrimination laws are increasingly construed to include persons subject to adverse employment actions based on their weight. The Commission has played an important role in supporting these developments. For example, in its final regulations construing the 2008 amendments, the Commission removed language from the interpretive guidance to its regulations that had been construed to suggest that obesity is not a covered disability. 29 C.F.R. Part 1630, App., Section 1630.2(j), at 74 Fed. Reg. 48431, 48446-48; see also EEOC Compliance Manual, Definition of the Term Disability, section 902.2(c)(5)(ii) ("[S]evere obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.").

The Commission has also successfully litigated a case on behalf of a Louisiana woman subject to weight discrimination. See E.E.O.C. v. Resources for Human Development, Inc., 827 F.Supp.2d 688, 694-95 (E.D. La. 2011) (recognizing that severe obesity qualifies as a disability under the ADA); EEOC Press Release (Apr. 10, 2012), at http://www.eeoc.gov/eeoc/newsroom/release/4-10-12a.cfm (quoting from EEOC General Counsel David Lopez: "It is important for employers to realize that stereotypes, myths, and biases about [severe obesity] should not be the basis of employment decisions.").

With the "war on obesity" a topic of daily media attention, employees labeled as obese are increasingly vulnerable to discrimination, including disability-based harassment and unnecessary weight-loss directives. We urge the Commission to continue this important and difficult work.

Communication Access For Deaf Workers.

Effective communication with deaf workers who use ASL as their native language nearly always requires the use of qualified sign language interpreters at times, particularly in important face-to-face communication events such as staff meetings, trainings, performance reviews, and counseling sessions. For some deaf workers – particularly those who are immigrants from other countries – a certified deaf interpreter may be needed to communicate important information.

As well, many deaf persons who are native ASL signers are not fluent in written English. For these employees, access to important documents at work, such as personnel policies, benefit information, and job rules and procedures, require the assistance of a sign language interpreter. See E.E.O.C. v. UPS Supply Chain Solutions, 620 F.3d 1103, 1114 (9th Cir. 2010) (discussing use of sign language interpreter as accommodation for understanding employer's harassment policy).

We urge the Commission to undertake pattern-and-practice cases against large employers that fail to provide their deaf workers with effective access to important communication events and documents at work.

As well, we urge the Commission to work with deaf advocacy organizations, and certified deaf interpreters, to create and host on its web site ASL video versions of its factsheets and of other important public documents.

On-Line Charge Communications.

We are excited to read that the Commission intends to implement systems that will allow charging parties and their representatives to check the status of a charge on line, and that will also permit the electronic filing of investigation-related documents. This will assist greatly in overcoming the communication barriers that continue to burden the administrative process.

Thank you for the opportunity to participate in this public meeting, and to share the interests and experiences of the LAS-ELC and its clients.

Sincerely,

Claudia Center