Discrimination Charges, State by State

The federal Equal Employment Opportunity Commission (EEOC) released an online chart that allows you to view the number and types of workplace discrimination charges by state.  

The EEOC’s previous database allowed viewing only of the nationwide totals. The new chart contains statewide figures for fiscal years 2009-2011. 

California had 7,166 total charges in fiscal year 2011 which represents 7.2 percent of the nationwide total. Only Texas (10 percent) and Florida (8.1 percent) ranked higher in terms of percentage of nationwide claims. These figures are not surprising given the large populations of these states. 

By an overwhelming majority, retaliation is the number one EEOC charge filed in California, constituting 44.6 percent of all EEOC charges filed in the state. Retaliation charges were followed by race (33.1 percent), disability (29.4 percent) and age (25 percent). 

The state statistics mimic a nationwide trend. For two years in a row, retaliation has been the number one type of EEOC charge filed throughout the United States. 

These types of claims should be of real concern for employers. Employees have the right to complain of unlawful discriminatory or harassing treatment in the workplace. Retaliation takes many forms and includes adverse employment actions, such as demotions or terminations, following complaints of unlawful conduct. Subtle forms of retaliation, such as ostracism, may not be unlawful but can create morale problems and decreased productivity. 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

HRCalifornia subscribers can visit the HR Library’s Retaliation page and Discrimination page for more information about preventing discrimination and harassment in the workplace, including preventing claims of retaliation.

Or, consider attending CalChamber’s next live seminar, HR Boot Camp: Silicon Valley, where our employment law experts will cover a range of important HR topics.

EEOC Updates Enforcement Guidance on Arrest/Conviction Records

Today, the Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance document on employer use of arrest and conviction records in employment decisions under federal law (Title VII ).

The EEOC voted 4-1 to approve the guidance document. The EEOC also issued a Question-and-Answer document about the new enforcement guidance.

Among other topics, the guidance discusses how an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII. For example:

• “A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).”
• “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).”

The guidance also discusses:

• Differences between the treatment of arrest records and conviction records; 
• Compliance with other federal laws and/or regulations that restrict and/or prohibit the employment of individuals with certain criminal records; and 
• Best practices for employers.

The EEOC previously issued three policy statements on this issue and has investigated and decided Title VII charges from individuals challenging the discriminatory use of criminal history information since at least 1969.

The EEOC also issued a press release concerning the updated guidance document.  

HRCalifornia will provide updated information regarding application of this guidance for California employers.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel 

Proposed Amendments to Pregnancy Regulations and Disability Regulations

The California Fair Employment and Housing Commission (FEHC) is proposing amendments to California’s pregnancy regulations (Title 2, CCR secs. 7291.2-7291.16) and disability discrimination regulations (Title 2, CCR secs. 7293.5-7294.1). 

The FEHC is seeking public comments on the proposed amendments. Visit the FEHC’s website for more information, including the text of the proposed amendments and the Initial Statement of Reasons:

• Proposed pregnancy regulations  
• Proposed disability discrimination regulations 

Public Hearings

The FEHC will hold public hearings on both sets of proposed regulations. Hearings will occur in Los Angeles and San Francisco with the pregnancy regulations on the calendar for the morning and disability discrimination regulations on the calendar for the afternoon:

• Los Angeles: April 17, 2012 at 10 a.m. (pregnancy regulations) and 1 p.m. (disability regulations) at the Ronald Regan State Office Building Auditorium, 300 South Spring Street, ground floor.
• San Francisco: April 19, 2012 at 10 a.m. (pregnancy regulations) and 1 p.m. (disability regulations) at the Hiram Johnson state Building Auditorium, 455 Golden gate Avenue, basement level.

Any person may present oral or written statements at these public hearings.

Written Comments

Written comments, including suggested alternative language, may also be submitted to the FEHC by April 19, 2012 at 5 p.m. Comments must be received at the FEHC offices by that time to be considered. Comments can be delivered in person, by mail, or via email. The FEHC stated a preference to receive comments electronically (via the below email) and in Word format:

• The email address for comments on the pregnancy regulations is preg.regs@fehc.ca.gov.
• The email address for comments on the disability regulations is disability.regs@fehc.ca.gov.
• Send written comments on either set of proposed regulations to: 
  Ann M. Noel
  Executive and Legal Affairs Secretary
  Fair Employment and Housing Commission
  455 Golden Gate Avenue, Suite 10600
  San Francisco, CA 94102

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Stay tuned to HRWatchdog for updated information on these proposed regulations.

EEOC Issues Final Age Discrimination Regulations

The Equal Employment Opportunity Commission issued its final regulations relating to the Age Discrimination in Employment Act (ADEA) and an important defense available to employers under the ADEA.

The ADEA prohibits discrimination against individuals who are 40 years of age or older.

The final regulations discuss a defense available to employers facing “disparate impact” claims. A disparate impact claim arises when an employer’s policies that are neutral on their face, such as certain screening tests, harm older workers more than younger workers. An employer can defend itself against a disparate impact claim if the employer can show that the policy or practice is based on a “reasonable factor other than age” (RFOA).

The final regulations explain the meaning of the RFOA defense to employers. According to the EEOC, an employment practice is based on an RFOA if it is “reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.”

The final regulations and a Questions and Answers document prepared by the EEOC discuss how this test is applied, including factors to be considered and examples.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

CalChamber members can visit the HR Library's page on employment discrimination claims and the defenses available to employers. Not a member? Take a look at what HRCalifornia offers.

Wal-Mart Decision Applied to Costco Workers

Earlier this year, the U.S. Supreme Court issued its landmark decision in Wal-Mart Stores, Inc. v. Dukes. The decision blocked one of the largest class action lawsuits ever, involving 1.5 million female Wal-Mart employees. The nation’s high court ruled that that the large class of employees from stores nationwide did not share common questions that could be resolved in a single class action suit.

Now, a federal appeals court in San Francisco has applied the Dukes ruling to block a class action lawsuit filed by female Costco employees. The case is Ellis v. Costco Wholesale Corp.

The facts are similar to Dukes. Three female employees alleged Costco discriminated against women by refusing to promote them to high-level management positions, general manager and assistant general manager, in Costco stores. These employees sought to expand their discrimination lawsuit by bringing a class action on behalf of a group of female Costco employees nationwide.

The lower court allowed the class action lawsuit to proceed. Costco challenged that ruling, arguing that the employees were unable to show common questions of law and fact that applied to the large nationwide class and that the lower court was wrong in light of the U.S. Supreme Court’s decision in Dukes.

The Ninth Circuit agreed with Costco, and overruled the lower court. The Ninth Circuit said that the lower court needed to engage in the “rigorous analysis” required under Dukes to determine if there were common questions of law and fact among the large class of employees. The Ninth Circuit sent the case back to the lower court to apply the correct standard articulated by the high court in Dukes.

To proceed as a class, the plaintiffs must show that they can somehow connect the many individual promotional decisions that were made: Was there a common pattern or practice that could affect the class as a whole? Was the entire class subject to the same allegedly discriminatory practice?

This case shows the impact of the Dukes decision on employers, especially those with multi-state locations. Employees who want to bring large class action discrimination lawsuit may not be able to withstand the required rigorous analysis to proceed as a class. 

Employees bringing smaller class action claims based on a local or regional practice may find it easier to proceed. Again, the issue will be whether there is any “glue” to hold together the claims. Companies may see a shift back to individual discrimination lawsuits, instead of the class action.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

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