EEOC's Progress Report: Advancing Equal Opportunity for All

U.S. Equal Employment Opportunity Commission
Jenny R. Yang, Chair

January 19, 2017

Introduction

Our country has made great strides in advancing equal opportunity for all. For more than 50 years, the U.S. Equal Employment Opportunity Commission (EEOC) has been an integral part of that progress. Throughout its history, the five-member bipartisan Commission has engaged in a productive exchange of ideas to further the agency's mission and promote a shared vision of equality and justice for all.

Over the past eight years, the agency has played a vital role in expanding opportunity and protecting workers from discrimination. To achieve its mission, the EEOC has undertaken a comprehensive effort to strategically deploy government resources to where they are most needed and to provide excellent service to the public. Guided by its 2012 Strategic Plan and 2013 Strategic Enforcement Plan (SEP), the EEOC has focused on addressing barriers to opportunity and fostering solutions that promote prosperity for workers, employers, and communities across our nation. In 2016, the EEOC updated its SEP, which will guide the agency's work through 2021. Tackling systemic discrimination - situations where a discriminatory pattern, practice, or policy has a broad impact on an industry, company, or geographic area - has been a central focus for the agency. In September 2016, the EEOC issued a report reviewing the impact of its systemic program over the past decade, during which time the program has directly benefited tens of thousands of workers across the country.

To better understand emerging issues and trends, in 2016, the EEOC held public meetings and studied workforce demographics in growing industries such as the high tech sector, as well as the increasing use of big data in employment. Also in 2016, to assist police departments seeking to remove barriers to opportunity, the EEOC, in partnership with the U.S. Department of Justice, released a report highlighting innovative efforts that departments around the country have undertaken to foster diverse and inclusive workplaces.

In July 2015, the EEOC celebrated its 50^th anniversary with a Commission meeting, reflecting on its history and looking towards its future. The agency also issued a report documenting demographic changes in the American workforce over the past half-century. Additionally, in 2015, in Miami, the Commission held its first public meeting outside of Washington, D.C. in more than a decade, which examined race and national origin discrimination 50 years after the EEOC's founding.

To better understand some of our nation's most persistent problems, over the past eight years, the EEOC has held public Commission meetings on issues including: retaliation; workplace harassment; social media in the workplace; national origin discrimination; pregnancy discrimination; veterans with disabilities; arrest and conviction records as a hiring barrier; disparate treatment in hiring; leave as a reasonable accommodation; discrimination against people with mental disabilities; treatment of unemployed job seekers; human trafficking; credit history as a screening tool; age discrimination in the 21^st century; and caregiver discrimination.

Serving as the Chair of the EEOC has been a tremendous honor. It has been a privilege to build on the work of our late Chair, Jacqueline A. Berrien, whose untimely passing in November 2015 was a heartbreaking loss for us all. Chair Berrien and I shared the belief that the EEOC is truly a remarkable agency with passionate and talented public servants dedicated to advancing equality and justice for all. Across the agency, our leadership has made strengthening employee engagement a top priority. Together, we have built a stronger and more inclusive workplace. I am heartened to see that the EEOC now ranks among the mid-sized agencies with the largest increase in scores in the Federal Employment Viewpoint Survey on both the Employee Engagement Index and the Inclusiveness Quotient Index.

Below are just some of the highlights of the agency's work over the past eight years. In the years ahead, I am confident that the EEOC will build on this progress and continue to ensure that all Americans have the opportunity to contribute to the prosperity of our nation.

1) Enhancing Services to Employees and Employers

As the primary federal agency responsible for investigating workplace discrimination, the EEOC interacts with employees and employers in difficult and sometimes contentious situations. In the face of such circumstances, the EEOC strives to ensure that the agency's interactions are respectful, its services are efficient, and its enforcement of the law is consistent. 

In 2015, the Commission adopted a Quality Practices for Effective Investigations and Conciliations plan to strengthen the quality, timeliness, and effectiveness of communication with charging parties and respondents in private sector investigations. And in January 2017, the agency issued Federal Sector Quality Practices to improve the EEOC's federal employee hearings and appeals process and strengthen oversight of agencies' EEO programs.

New digital services now make it easier for employers and employees to exchange information with the agency:

• The EEOC's Respondent Portal enables employers to receive digital notices of charges and to submit online responses.
• Online Check Status allows charging parties and employers to confidentially and conveniently check the status of charges online.
• The Federal Sector EEO Portal (FedSEP) enables Federal agencies to transmit hearings and appeals files securely to the EEOC.
• Requests for information under the Freedom of Information Act can now be made by the public online.

Achieving voluntary resolution of charges of discrimination has been an important priority for the agency. In recent years, the EEOC has attained some of the highest mediation and conciliation success rates in its history. Last year, the agency's mediation program reached a success rate of over 76 percent. Additionally, 97 percent of participants reported that they would mediate future charges with the agency. The EEOC has also made significant strides in its conciliation of those charges where the agency found reasonable cause to believe discrimination occurred - increasing its success rate to 44 percent over the past two years, up from 27 percent in FY 2010.

The overwhelming majority of the agency's work is accomplished through voluntary resolutions. When litigation has been necessary, the EEOC's litigation program has been highly effective. Over the past six years, under the leadership of former General Counsel P. David Lopez, the agency obtained favorable results in over 90 percent of its cases.

Reduction in pending charges is another area where the agency has made progress. In FY 2016, the EEOC resolved 97,443 charges, an increase of more than 5 percent over the prior year. The agency reduced the workload of pending charges by 3.8 percent to 73,508 - the lowest pending charge workload in three years.

To assist small businesses, in September 2016, the agency launched the online Small Business Resource Center, a one-stop shop for small business owners to access information about employer responsibilities. The Small Business Administration Ombudsman's most recent report rating federal agencies' assistance to small business gave the EEOC an overall "A" rating.

2) Ensuring Fair Hiring Practices

The EEOC protects everyone's right to fair access to employment. The agency has opened doors to opportunity by eliminating barriers in recruitment and hiring in a wide range of occupations. For example, the EEOC has expanded opportunities for women in traditionally male jobs including: truck drivers; dockworkers; laborers; auto sales representatives; and auto mechanics. In addition, the agency's enforcement efforts have challenged staffing agencies that have referred applicants based on client preferences for employees of a certain race, color, sex, national origin, age, or absence of disability. These actions have created opportunities for many by providing job placement for persons who had not been previously referred for employment.

The agency has also been a leader in ensuring that arrest and conviction background screens are not used to deny opportunities based on race or national origin. In 2012, the Commission updated its policy guidance on the use of these screens, leading to significant changes in employer policies. In part as a result of the EEOC's outreach, education, and enforcement efforts, employer adherence to the guidance increased. For example, one year after the guidance was issued, a survey of nearly 600 HR professionals found that just 32 percent of their organizations had applied the updated guidance to their hiring process. The following year, a similar survey reported that 88 percent of employers had adopted the EEOC's guidance.

3) Protecting Workers on the Job

The EEOC has worked to identify solutions to some of our country's most difficult and persistent problems. To achieve this, the agency has updated regulations and issued guidance and resource documents highlighting promising practices to prevent discrimination. For example, the EEOC has issued a number of regulations to protect against discrimination based on factors such as genetic information, disability, and age. In November 2010, the EEOC issued a final regulation implementing Title II of the Genetic Information Nondiscrimination Act (GINA). In March 2011, the EEOC issued its final regulations implementing the Americans with Disabilities Act (ADA) Amendments Act, which expanded the definition of disability under the ADA. In March 2012, the agency updated regulations under the Age Discrimination in Employment Act of 1967 (ADEA) to assist employers in ensuring that neutral policies and practices do not result in discrimination based on age.

The agency has also worked collaboratively with its federal sector partners to advance equal opportunity across the federal government. In January 2017, the EEOC released a new rule implementing Section 501 of the Rehabilitation Act, which explains what federal agencies must do to comply with their legal obligation to engage in affirmative action and serve as model employers for individuals with disabilities. In August 2015, the Commission updated Management Directive 110, which provides guidance on the federal sector complaint process.

Understanding the challenges employers and employees face is essential to the agency's work. The EEOC recently created a new public input process to increase transparency and provide the public an opportunity to submit feedback on proposed guidance. Using this new process, in August 2016, the Commission updated its guidance on retaliation, the most frequent workplace complaint, and in November 2016, updated its guidance on national origin discrimination, which addresses issues ranging from human trafficking to workplace harassment.

In addition, the EEOC has issued a number of resource documents to promote compliance on issues including: workplace religious accommodation; mental health conditions in the workplace; employment of veterans with disabilities; religious garb and grooming; discrimination faced by Muslims and those perceived to be Muslim; workplace rights of people with HIV; rights of pregnant workers; and youth at work.

The agency has engaged in robust, comprehensive outreach to both the private and federal sectors. The EEOC is committed to providing training, resource documents, outreach and education programs to assist employers, employees and stakeholder groups in understanding and preventing discrimination.

Harassment in the workplace remains an urgent problem. Over 30 percent of the charges the agency receives each year allege harassment, which spans industries and workplaces. Harassment takes a toll on employees, their families, employers, and the economy - it can lower productivity, increase turnover, and harm the reputation of individuals and organizations. For these reasons, the EEOC identified addressing systemic harassment as a national enforcement priority.

To tackle this problem, I asked Commissioners Chai R. Feldblum and Victoria A. Lipnic to lead the EEOC's Select Task Force on the Study of Harassment in the Workplace. The Task Force convened experts from the employer, advocate, and academic communities to identify innovative and effective strategies to prevent and remedy harassment in the workplace. Commissioners Feldblum and Lipnic issued a report in June 2016 with recommendations for harassment prevention, from workplace policies to strategies for outreach and future research. Additionally, in January 2017, the EEOC released proposed guidance on harassment for public input explaining legal standards applicable to harassment claims and providing effective practices based on the Task Force report.

Additionally, through its litigation program, the agency has successfully challenged workplace harassment. In April 2015, the agency resolved Patterson-UTI Drilling Company LLC, a nationwide race and national origin discrimination case involving more than 1,000 African Americans, Native Americans, Hispanics, Asian Americans, and biracial employees who the agency alleged were subjected to pervasive racial and ethnic slurs, assigned to the lowest level jobs, denied training and promotions, and disproportionately disciplined and demoted, and retaliated against. The company agreed to significant policy changes and a $14.5 million settlement fund for affected workers. In EEOC v. Yellow Freight Sys., Inc., the EEOC challenged racially hostile displays, including nooses and racist graffiti and alleged that the employer disciplined African American employees more severely than their peers. In resolving this lawsuit, in June 2012, the agency obtained $11 million and other relief for more than 300 African American workers. The EEOC has also successfully challenged widespread sexual harassment of female farmworkers in cases such as EEOC v. Zoria Foods, Inc., Z Foods, where the agency charged that the company allowed male supervisors to sexually harass a group of female employees and then fired male and female employees when they complained. In July 2016, the court awarded $1.47 million, the maximum allowed by the statute.

Pay discrimination has also been one of the agency's strategic enforcement priorities. The EEOC served as a key contributor to the National Equal Pay Task Force, established by President Obama in 2010.  Since the creation of the Task Force, the EEOC has received more than 32,000 charges of pay discrimination on the basis of sex, race, or ethnicity, and the agency has obtained over $184 million in monetary relief for victims of pay discrimination.

To more effectively combat pay discrimination, in September 2016, the EEOC announced that it will collect summary pay data from employers with 100 or more employees. Collecting this information marks a significant step forward toward ensuring that American workers are paid fairly. This information will assist employers in evaluating their pay practices to prevent discrimination and also strengthen the agency's enforcement of federal laws.

4) Addressing Developing Legal Issues that Impact the Rights of Workers with Disabilities, Pregnant Workers, and LGBT Workers

To address critical emerging and developing discrimination issues, the EEOC monitors trends and updates in the law, workplace practices, and labor force demographics. In its SEP for FY 2013-2016, the agency prioritized emerging or developing issues in need of agency attention and coordination. The EEOC renewed and updated this priority in its SEP for FY 2017-2021.

People with disabilities continue to face significant barriers to employment, retention, and advancement in the workplace. To help employers design and implement leave policies that comply with the ADA, the EEOC issued a new resource document on leave as a reasonable accommodation. Additionally, the agency has successfully challenged inflexible employment policies that failed to provide reasonable accommodations to qualified individuals with disabilities. For example, in July 2011, the EEOC settled a lawsuit with Verizon, which revised its attendance policy to accommodate employees with disabilities and secured $20 million in relief for 800 individuals who had allegedly been fired as a result of this policy. In May 2016, the agency also settled a nationwide lawsuit with Lowe's, which alleged that the company failed to provide reasonable accommodations to individuals with disabilities and fired them when their medical leaves exceeded Lowe's maximum leave policy. The EEOC obtained $8.6 million for affected workers. 

Pregnancy discrimination remains a persistent barrier to opportunity in the workplace. Still today, when women become pregnant, they continue to face harassment, demotions, decreased hours, forced leave, and even termination. Last year, women filed more than 3,500 charges alleging pregnancy discrimination, and in two-thirds of those charges, women said they were fired as a result of their pregnancy. In many situations, women were denied accommodations that would have permitted them to remain on the job. To address such concerns, in 2014, the EEOC issued the first comprehensive update of its pregnancy guidance in over 30 years, addressing issues including pregnancy accommodations under the ADA Amendments Act. The EEOC updated the guidance in 2015 in response to the Supreme Court's decision in Young v. United Parcel Serv., Inc., to explain that under this precedent, pregnant employees should be treated the same as non-pregnant employees who are similar in their ability or inability to work.

Protecting the rights of LGBT people in the workplace under Title VII's sex discrimination provisions has been a strategic priority for the EEOC. Since 2013, the EEOC has issued a series of federal sector decisions finding that discrimination based on gender identity is a form of sex discrimination, and that denying a transgender person access to the restroom consistent with his or her gender identity is a form of sex discrimination. In addition, the agency has concluded that discrimination based on sexual orientation is a form of sex discrimination under Title VII. In private sector cases, the EEOC has taken positions consistent with these federal sector precedents, and a number of courts have cited these federal sector decisions in concluding that discrimination based on gender identity and sexual orientation are forms of sex discrimination. Over the past four years, from FY 2013 through FY 2016, charges filed by LGBT individuals alleging sex discrimination have steadily increased. During this time, the agency has resolved nearly 4,000 such charges and recovered $10.8 million for victims of discrimination.

5) Protecting Vulnerable and Underserved Communities

The EEOC has made protecting vulnerable and underserved workers a national priority. The agency filed suit against Henry's Turkey Service to protect the rights of 32 men with intellectual disabilities at a turkey evisceration plant in Iowa. The EEOC alleged that the employer subjected these men to years of confinement, abuse, deplorable conditions, and reduced pay. In May 2013, a jury awarded $240 million (later reduced because of statutory caps). Their story has been described as a "watershed moment for disability rights in the workplace," and has been featured in the book The Boys in the Bunkhouse: Servitude and Salvation in the Heartland.

Combatting labor trafficking has also been a priority for the agency. Recently, the EEOC resolved two lawsuits involving hundreds of victims of labor trafficking subjected to race and national origin discrimination at work. In May 2016, a court ordered Global Horizons to pay more than $7 million to 67 Thai farmworkers in Washington state. In a companion case in Hawaii against Global Horizons and five farms, a court, in December 2014, awarded 82 workers over $12 million in total damages. In December 2015, in the EEOC's case against Signal International, LLC, a ship building and repair company, the company agreed to pay $5 million to 476 workers recruited from India through the federal H-2B guestworker program. These individuals lived in segregated labor camps in Texas and Mississippi in the aftermath of hurricanes Katrina and Rita and alleged they were subjected to forced labor and race and national origin discrimination by the company and its agents.

Freedom from religious discrimination has been an area of important progress. The EEOC brought to the Supreme Court a case against Abercrombie & Fitch to protect the rights of Samantha Elauf, a teenager from Oklahoma, who wears a headscarf, or hijab, as part of her Muslim faith. In June 2015, the Supreme Court ruled that an employer may not refuse to hire an applicant to avoid accommodating a religious practice.  

Closing Statement

Over the past eight years, the EEOC has advanced opportunity for all of America's workers. The agency has also played a critical role in helping employers build stronger workplaces. Despite significant progress, the agency's work remains unfinished. Across the country, we continue to see discrimination in both overt and subtle forms. The ongoing challenge of combating employment discrimination is what makes the EEOC's work as critical today as it was at the agency's founding. In the years ahead, the EEOC will continue to play a vital role in promoting equality and justice for all.