On September 29, 2023, the EEOC released its Proposed Enforcement Guidance on Harassment in the Workplace. If adopted following the rule-making process, this will be the first time the EEOC has provided guidance on workplace harassment since 1999.
On January 24, 2023, the Equal Employment Opportunity Commission released updated guidance on how the Americans with Disabilities Act applies to job applicants and employees with hearing disabilities. The Q&A resource comes on the heels of the EEOC’s announcement of two settlements—one for $44,250 and the other for $180,000—with two employers accused of adverse employment actions against deaf individuals in violation of the ADA. Although the EEOC guidance does not contain new legal mandates, it is an important reminder to educational employers of how the agency will apply existing legal standards in cases involving individuals with hearing disabilities. Employers should review the guidance and their policies, procedures, and practices to mitigate the risk of challenges of employment discrimination by applicants and employees with hearing disabilities. The following is a summary of the major points from the guidance that employers should know.
Just in Time for Veterans Day, Federal Agencies Provide Military Service Members and Veterans with Guidance on Unlawful Employment Discrimination
On November 10, 2022, the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP), the U.S. Department of Labor Veterans’ Employment and Training Service, and the U.S. Department of Justice Civil Rights Division jointly released a comprehensive resource document detailing federal laws and other authorities that specifically protect service members and veterans from workplace discrimination. In its press release, the EEOC described the jointly authored “Protections Against Employment Discrimination for Service Members and Veterans” as the first-of-its-kind single publication intended to “help veterans and service members determine which laws and federal agencies are responsible for enforcing their workplace rights and where to seek assistance if they believe those rights have been violated.”
Just How Hard is it to Prove Pretext? SDTX Holds that EEOC “Cause” Finding and Allegations of Falsified Evidence are Not Enough
On August 30, 2022, the Southern District of Texas issued its opinion in Love v. University of St. Thomas, a case that highlights the significant burden that employees must overcome in the burden shifting analysis used by courts in employment discrimination and retaliation claims. In the absence of direct evidence of discrimination or retaliation, courts follow the United States Supreme Court’s McDonnell-Douglas framework to determine whether an employer engaged in illegal conduct. Under this framework, an employee challenging an adverse employment action must first establish a prima facie case of discrimination or retaliation before the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action taken. Once the employer proffers such a reason, the burden shifts back to the employee to show that the stated reason is a pretext for discrimination or retaliation.
Recent data published by the EEOC shows a continuing downward trend in the number of employment-related charges. For example, EEOC data shows a decline of more than 27,000 charges filed annually in 2021 as compared to the number of charges filed in 2014. There are a number of factors contributing to this decline, including the impact of COVID-19 and the resulting labor shortages and—until recently—the relative ease of finding new employment. As the country continues to recover from the pandemic and face uncertain economic conditions, however, digging a little deeper into the data can reveal a few trends that may help guide educational employers in addressing areas of employment challenges that are certain to continue.