The end of the federal government fiscal year (September 30) always produces a flurry of activity from the EEOC, and this year was no different. Of the 157 lawsuits filed by the EEOC in fiscal year 2015, approximately 62 of them were filed between September 1 and September 30, 2015. The Fiscal year provides a good time to assess EEOC priorities and potential implication for employers.
ADA enforcement continues to be a high priority. The EEOC filed a total of 38 lawsuits based, at least in part, on disability discrimination. Several of these cases involve alleged discrimination against applicants based on perceived disabilities.
For example, in EEOC v. Bedford Weaving, Inc. the EEOC alleges that Bedford Weaving, a loom fabric manufacturer, violated both the ADA and the Genetic Information Nondiscrimination Act (GINA) by asking applicants questions about their family medical history as well as the applicant’s personal medical history. The EEOC alleged that the company violated the ADA by making disability-related inquiries of an applicant before issuing a job offer and then refusing to hire the applicant based on her perceived disability because of the information she reported about her medical history.
The EEOC further alleged that the company violated GINA by requesting genetic information in the form of requesting family medical history during the hiring process.
Not surprisingly, cases involving discrimination against transgender individuals also are an emerging area of emphasis. The EEOC filed three lawsuits this year based on transgender/sex discrimination. In December 2014, the U.S. Attorney General announced that the Department of Justice takes the position that Title VII’s prohibition against sex discrimination is extends to the statute’s protection to claims based on an individual’s gender identity, including transgender status, as discussed in our prior alert.
On March 30, 2015, the EEOC filed its first complaint based on the Attorney General’s announcement. In this complaint, the EEOC alleged that the Southeastern Oklahoma State University (Southeastern) and the Regional University System of Oklahoma (RUSO) violated Title VII of the Civil Rights Act of 1964 by discriminating against a transgender employee on the basis of her sex and retaliating against her when she complained about the discrimination.
According to the complaint, the subject of the complaint was hired by Southeastern in the role of Assistant Professor in 2004. When this Assistant Professor was hired in 2004, he presented as a male. In 2007, the Assistant Professor began presenting herself as a female at work. In 2009 she applied for a promotion to become tenured. Despite good performance evaluations and recommendations by her department chair and other tenured faculty, Southeastern denied her application and later terminated her employment because she had not attained tenure.
The EEOC alleged that Southeastern violated Title VII’s prohibition on sex discrimination based on the theory that e Title VII’s prohibition of discrimination on the basis of sex includes a prohibition against discrimination because of gender identity or because an employee has completed a gender transition or is undertaking a gender transition. The EEOC further alleged that Title VII prohibits an employer from discriminating against an employee because the employee’s behavior or appearance does not conform to traditional gender stereotypes.
The Chicago district office which covers Illinois, Minnesota, Iowa, North Dakota, South Dakota, and Wisconsin filed 26 of these type of complaints in the 2015 fiscal year. One case of note was filed through a joint effort by the EEOC and the Justice Department. The lawsuit alleges that the Chicago Board of Education discriminated against pregnant teachers at Scammon Elementary School by subjecting them to adverse employment action shortly after they announced their pregnancies. The Justice Department is seeking an order that would require the Board of Education to develop and implement policies that would prevent employees from being subjected to discrimination due to their pregnancies as well as individual relief for the teachers that were directly harmed by the alleged discrimination.
We will continue to provide updates as the case makes its way through the courts.