Less May Actually Mean More: EEOC Stats on 2020 FilingsThe EEOC has released its annual report on discrimination charges filed across the country for the fiscal year 2020. So, how does the data line up with the 2019 data (a rundown of which can be seen here)?

Charges Are Down Overall

Yet again, workplace discrimination charges are down – there were 67,448 new charges in 2020. The decrease could be related to the COVID-19 pandemic but it may not be. The EEOC has seen a downward trend in charges filed in recent years (76,418 in 2018 and 72,675 in 2019).

Retaliation Claims Are Still No. 1

Like last year’s data, retaliation claims took the lead as the most frequently cited category, coming in at 55.8% of all charges. Although the number for retaliation claims is likely highest because it is often an add on to other discrimination claims, it is still way out front. Disability (36.1%), race (32.7%), sex (31.7%), and age (21%) were the next highest categories, with equal pay claims at 1.5% and genetic information claims at 0.7% of all charges.

EEOC Is Still Collecting Money for Charging Parties and Others

Yet, even with the decrease in overall charges, resolution in favor of the charging party pre-litigation was up from 15.6% in 2019 to 17.4% in 2020. When it comes to litigation, the EEOC reports that it recovered over $106 million for charging parties or other aggrieved individuals — the highest amount in the past 16 years. Overall, the EEOC reported securing $439.2 million for aggrieved individuals in 2020 via voluntary resolutions and litigation. So, while the number of charges may be down, the price employers had to pay may actually have increased.

For a breakdown of statistics by state, see the EEOC’s statistics here.

What Does This Mean?

Like we said last year, the continued reduction in charges does not necessarily mean that there has been an overall reduction in employees who believe their employer discriminated against them. In fact, the EEOC reported that it responded to over 470,000 calls and 187,000 inquiries in field offices, including over 120,000 via the online system. Those numbers, along with the amount recovered for aggrieved individuals, should remind us to be ever vigilant in making sure discriminatory acts are not happening in the workplace and that decisions about employees are defensible. Take the time now to think about your rules and ways to better your process for preventing and/or reporting discrimination and retaliation. As always, reach out to your local employment lawyers to assist with any questions.

Should I Stay or Should I Go? Ninth Circuit Finds Gender Discrimination in Retention RaiseAn Equal Pay Act plaintiff must show that employees of the opposite sex were paid different wages for equal work. Pretty simple — right? However, there are many factors that go into deciding what is “equal work” or whether the difference in wages is really tied to sex. In Jennifer Joy Freyd vs. University of Oregon, the Ninth Circuit recently explained just how complicated some of those questions can be.

Differences in the Psychology Department?

Dr. Jennifer Freyd was a well-recognized expert on trauma at the University of Oregon. She was the editor of an academic journal, an investigator at a dynamics lab named after her, and also taught classes. In 2014, she learned that she was being paid between $14,000 to $42,000 less than four of her male colleagues who shared her rank and tenure.

The University of Oregon could increase professor salaries in two ways. First, a professor could get a merit increase based on performance for the last three years. Second, a professor being recruited by another academic institution could get a retention raise. If a professor sought a retention raise, the university would consider specific factors in offering a raise and how much. Dr. Freyd had never sought a retention raise because she was happy at the University of Oregon and her family wanted to remain there. Her male colleagues were not such happy campers and needed raises to keep them at the university.

Dr. Freyd did a regression analysis on the salaries of professors in her department. Her analysis showed that six out of the eight male professors were above the average on salaries while five out of the six female professors were below average. The university did its own study that showed that the average difference in pay between male and female professors was $25,000. The university study also showed that the pay difference was primarily the result of retention raises and that when those raises were removed from the analysis, the gender difference disappeared. It was significant that if a professor received a retention raise, none of the salaries of other similarly tenured professors were adjusted.

Dr. Freyd presented this information to the university and asked that they grant a retroactive merit raise to compensate for the pay inequity between the male and female professors. The university denied the request and stated that Dr. Freyd’s compensation was not “unfairly, discriminatorily, or improperly set.” Dr. Freyd then sued the university under the Equal Pay Act, Title VII and several state statutes.

Lower Court Says You Are Not the Same

The district court granted the university’s motion for summary judgment on the Equal Pay Act claim on the grounds that Dr. Freyd failed to show that she and the male professors performed substantially equal or comparable work. The court also denied her Title VII disparate impact claim holding that Dr. Freyd failed to show adequate statistical data and because the university showed that the retention raises were not based on sex but were job-related and a business necessity.

The Ninth Circuit Weighs In

The Ninth Circuit reversed the lower court on the Equal Pay Act and Title VII disparate impact claims. With regard to the Equal Pay Act, the court noted that a plaintiff does not have to show that the jobs being compared are “identical,” but only “substantially equal.” While the district court had gone into a very detailed analysis of each professor and how they were different, the Ninth Circuit said that you should look to the “overall job” and the “common core of tasks” to see if the positions were equal. The court held that Dr. Freyd and her male comparators all conducted research, taught classes and advised students. The court said that due to this commonality, a court should not find as a matter of law that the positions were not substantially equal. The court held that the Equal Pay Act claim must go to a jury.

On the Title VII disparate impact claim, the Ninth Circuit found it significant that Dr. Freyd was not just challenging the retention raise practice, she was complaining about the university’s failure to increase the salaries of other professors with comparable merit and seniority when it granted a retention raise. She also had presented evidence that female faculty members, for various reasons related to gender, were less willing to move and less likely to seek a retention raise, which resulted in a significant discriminatory impact. She showed that in a 10-year period, only four of the 20 retention negotiations held in the department were with female professors.

The lower court had also held that even if Dr. Freyd had met her statistical burden, summary judgment was appropriate because the university had shown that the retention raises were a ‘business necessity.” The Ninth Circuit did not buy this argument as meriting summary judgment. It noted that Dr. Freyd had presented an alternative solution that involved evaluating all faculty when a retention raise was sought. The Ninth Circuit held that this created an issue of material fact and that summary judgment was not proper.

What Should We Learn from This?

This case, although fairly narrow in scope, shows that employers need to self-audit their pay practices. Changes in individual salaries that appear to be innocent may ultimately result in a disparate impact based on gender (or race). That an employee negotiated a higher increase may not be a legal defense to an Equal Pay Act or disparate impact claim. It is also important to see that courts may have a broader view of what constitutes “equal work” among employees.

Don’t forget that if you are going to review your pay practices, get your lawyer involved to invoke your attorney-client privilege. You don’t want to do a self-audit that ends up being Exhibit A for the plaintiff.

Vaccinations Offer Hope, But What Should Employers Consider When Designing COVID-19 Vaccine Incentive Programs?On March 2, 2021, President Biden announced that there will be enough COVID-19 vaccines for “every adult” in the United States by the end of May 2021. Given the current lack of vaccine availability, this announcement signals a light at the end of the tunnel for everyone, not the least of which are employers eager to get employees back to in-person work.

Many employers have been considering the best way to implement a vaccination program to maximize the number of employees that get vaccinated. Some of the most common questions about these programs include:

  • Can you make it mandatory? (Read more on this question here and here.)
  • Can you offer incentives? (Keep reading for answers!)
  • What are the legal implications of a vaccination program?

COVID-19 Vaccination Incentives: What’s Permissible?

In January 2021, the EEOC proposed rules that provided guidance on vaccine incentive programs that do not run afoul of the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), or Title VII of the Civil Rights Act. The proposed rules stated that employers could offer a “de minimis” incentive for employees to receive a COVID-19 vaccination. While the EEOC did not clearly define “de minimis,” the proposed rules offered a few examples of acceptable incentives, like water bottles or a gift card of “modest value.”

However, because the January 2021 proposed rules were not published in the Federal Register by the inauguration date, the Biden administration formally withdrew them. While this leaves a gap in the current guidance from the EEOC, the proposed rules still provide a useful roadmap to employers who want to develop a COVID-19 vaccination incentive program.

Vaccination Incentive Programs: Considerations

Any vaccination incentive program must take into account those employees who cannot or will not receive a COVID-19 vaccine as a result of medical conditions or religious beliefs. Keep in mind that the ADA requires employers to provide accommodations to employees with disabilities to ensure those individuals enjoy the same “benefits and privileges of employment,” and Title VII requires similar accommodations for employees’ sincerely held religious beliefs. Additionally, under GINA, an employer may not use genetic information to make decisions related to the terms, conditions, and privileges of employment.

With this in mind, if you plan to create a vaccination incentive program for employees, you must be sure that the incentive is not too valuable but valuable enough to encourage participation. If that sounds confusing, it is. The EEOC proposed regulations noted that an incentive that was more than de minimis could coerce employees to divulge confidential medical information to get the incentive. So, stick to water bottles and the like (although some employers have announced that they are paying regular wages for a set amount of time to get the vaccine). Similarly, if the incentive is really valuable,  employees who decline to receive a vaccination on disability or religious grounds may be denied an “employment benefit” as a result. Because of this, you should consider alternative ways for those employees to earn the incentive, such as additional COVID-19 training.

While these are the baseline legal considerations, you should also pay attention to whether your incentive program qualifies as a “wellness program” that implicates HIPAA’s non-discrimination provisions or whether the program implicates GINA’s prohibition against employers using genetic information to make decisions related to the terms, conditions, and privileges of employment.

Takeaways

The EEOC may have withdrawn its guidance, but the withdrawn rules themselves provide a brief sketch of the considerations an employer must take when designing a vaccine incentive program. While these considerations are not exhaustive, they serve as a useful starting point for employers eager to see their employees vaccinated and back to the “new normal.”

In the coming months, as the vaccine becomes more available, be sure to pay close attention to any additional guidance from the EEOC or the DOL regarding vaccine programs. In the meantime, remember to consider those employees who will not or cannot receive the vaccine as you design and implement your program.