EEOC

Employer's Toolbox

EEOC Policy Shift Under the New Administration: Key Changes Employers Must Know

The U.S. Equal Employment Opportunity Commission (EEOC) has recently announced several changes under the leadership of Acting Chair Andrea Lucas. These actions are part of an effort to refocus the agency’s mission on protecting women from sexual harassment and sex-based discrimination by rolling back certain gender identity policies from the previous administration.    The specific measures implemented by Acting Chair Lucas include: Prioritizing the Defense of Biological Sex: Emphasizing compliance, investigations, and litigation that uphold the recognition of biological and binary definitions of sex, including advocating for women’s rights to single-sex spaces in the workplace.  Removing the Pronoun Feature: Eliminating the agency’s “pronoun app,” a feature in employees’ Microsoft 365 profiles that allowed the display of chosen pronouns alongside employee names across platforms like Outlook and Teams.  Ending the Use of the “X” Gender Marker: Discontinuing the option to select an “X” gender marker during the intake process for filing a charge of discrimination.  Modifying Forms to Remove “Mx.” Prefix: Updating the charge of discrimination and related forms to exclude “Mx.” from the list of available prefix options.  Reviewing the “Know Your Rights” Poster: Initiating a review of the EEOC’s “Know Your Rights” poster, which employers are legally required to display in workplaces, with potential revisions forthcoming.  Removing Materials Promoting Gender Ideology: Conducting an ongoing review and removal of materials on the EEOC’s website and training programs that promote gender ideology.    It’s important to note that certain documents, such as the EEOC’s Enforcement Guidance on Harassment in the Workplace (issued by a 3-2 vote in 2024), the EEOC Strategic Plan 2022-2026, and the EEOC Strategic Enforcement Plan for Fiscal Years 2024-2028, cannot be unilaterally modified or removed by the Acting Chair without a majority vote from the full Commission. In her statement, Acting Chair Lucas emphasized, “Sex is binary (male and female) and immutable. It is not harassment to acknowledge these truths—or to use language like pronouns that flow from these realities, even repeatedly.” She also highlighted that “women have … safety interests, that warrant certain single-sex facilities at work and other spaces outside the home. It is neither harassment nor discrimination for a business to draw distinctions between the sexes in providing single-sex bathrooms or other similar facilities which implicate these significant privacy and safety interests.” These actions represent a significant shift in the EEOC’s approach to issues of sex and gender identity under the current administration.  If your business needs guidance on how these EEOC changes impact your workplace policies, Luchansky Law is here to help. Our team stays ahead of evolving employment laws to ensure your company remains compliant and protected. Contact us today to discuss your specific needs and safeguard your workplace. (410) 522-1020 | info@luchanskylaw.com |  www.luchanskylaw.com About Luchansky Law Luchansky Law is a premier labor and employment law firm committed to providing exceptional legal representation and client service. Founded in 2004 by Bruce Luchansky, the firm offers a wide range of legal services to businesses and individuals, focusing on workplace issues, employment disputes, and compliance. Luchansky Law is dedicated to upholding the highest standards of diligence, professionalism, and compassion in its practice. Sources eeoc.gov   https://www.eeoc.gov/newsroom/removing-gender-ideology-and-restoring-eeocs-role-protecting-women-workplace?utm_source=chatgpt.com   https://www.jdsupra.com/legalnews/eeoc-acting-chair-issues-statement-on-8534448/

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Employer's Toolbox

AI in Hiring: Key Lessons from the Workday Bias Suit for Employers

As artificial intelligence (AI) continues to reshape hiring practices, employers are increasingly facing legal challenges related to potential discrimination. The recent Workday AI Bias Lawsuit serves as a significant reminder of the risks associated with automated decision tools (ADTs). In this case, Workday was accused of using an AI system that allegedly discriminated against minority job applicants, raising questions about the fairness and transparency of AI tools in recruitment. AI Discrimination and Regulatory Landscape The Workday lawsuit is part of a growing body of legal cases addressing the role of AI in hiring decisions. While AI offers efficiency and speed, it can also perpetuate or amplify biases if not properly monitored. This has caught the attention of lawmakers and regulators, leading to stricter guidelines around AI use in employment. States like New York and New Jersey have already introduced legislation requiring employers to conduct annual bias audits on their AI tools to prevent algorithmic discrimination. These laws mandate that AI tools must undergo independent reviews, and employers are required to notify candidates if AI is used in the hiring process. Best Practices for Employers Using AI in Hiring In light of the Workday lawsuit and the evolving regulatory environment, there are several key steps employers should take to minimize the risk of discrimination claims: Conduct Bias AuditsEmployers must ensure that their AI systems undergo regular bias audits to identify any potential discriminatory outcomes. These audits help safeguard against violations of federal and state anti-discrimination laws, including Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA). Ensure Human OversightAI tools should not be the sole decision-maker in hiring processes. Employers need to maintain human oversight to review decisions made by AI and ensure fairness, especially in cases where candidates from protected classes might be affected. Transparency and Employee NotificationEmployers should be transparent with applicants and employees about the use of AI in hiring. This includes notifying candidates when AI tools are used and providing them with the opportunity to request a review or challenge the decision. Comply with Federal and State GuidelinesEmployers should stay informed about both state-specific and federal guidelines on the use of AI in hiring. For example, the Department of Labor (DOL) recommends that employers using AI tools regularly test these systems to ensure they do not violate laws related to wage calculations or disability accommodations. Looking Ahead As AI tools become more common in hiring, employers must be proactive in addressing the risks of algorithmic bias. The lessons from the Workday case, along with new state and federal regulations, underscore the need for transparency, regular auditing, and human oversight. By taking these steps, employers can leverage the benefits of AI while minimizing the risk of discrimination claims. About Luchansky Law  Luchansky Law is a premier labor and employment law firm committed to providing exceptional legal representation and client service. Founded in 2004 by Bruce Luchansky, the firm offers a wide range of legal services to businesses and individuals, focusing on workplace issues, employment disputes, and compliance. Luchansky Law is dedicated to upholding the highest standards of diligence, professionalism, and compassion in its practice. Please call (410) 522-1020, email us at info@luchanskylaw.com, or stop by our office at 606 Bosley Avenue, Suite 3B, Towson, Maryland, 21204.  References  Bias Audits and Federal Anti-Discrimination Laws: https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence Human Oversight Recommendations: https://www.ftc.gov/business-guidance/blog/2021/04/aiming-truth-fairness-equity-your-companys-use-ai Transparency and Employee Notification: https://nvlpubs.nist.gov/nistpubs/ai/NIST.AI.100-1.pdf State and Federal Compliance: https://www.dol.gov/newsroom/releases/osec/osec20241016 Future Considerations on Algorithmic Bias: https://www.brookings.edu/articles/the-eeoc-wants-to-make-ai-hiring-fairer-for-people-with-disabilities/  

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EEOC versus MCCR: Taking Your Case to Court

The following article will be the first in a series discussing cases filed with the United States Equal Employment Commission (“EEOC”) and the Maryland Commission on Civil Rights (“MCCR”). One interesting difference between the two agencies is the timeline and procedure for taking your case to court. Under the EEOC, if the investigation is ongoing, you can request a Notice of Right to Sue, and, upon receipt, you have 90 days to file in federal court.  Similarly, if the EEOC concludes its investigation and does not find probable cause of discrimination, you will typically be issued a Notice of Right to Sue which will enable you file in federal court – within 90 days of receipt of the Notice of Right to Sue. Pretty straight forward. Under the MCCR laws, it gets a little trickier – specifically with respect to filing in state court.  In order to bring the case to court, at least 180 days must have elapsed since the filing of the administrative complaint, and the action must be filed in state court within two years after the “unlawful employment practice” occurred. For example, if the “unlawful employment practice” was a termination, that, hypothetically happened almost two years ago – this means that – even if the investigation is still ongoing, the two year deadline from the termination is a hard and fast deadline – regardless of the status of the investigation. Contrast this with the EEOC process: if the EEOC investigation is still ongoing – there is no clock ticking for you to file the claim in federal court – you only need to keep an eye on the EEOC’s progress.  If you are pursuing a discrimination case in Maryland and would like guidance on how to navigate this uncertain arena, contact our firm to schedule a consultation.

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EEOC Issues Fact Sheet to Assist Employers in Applying Employment Discrimination Laws to Scenarios Involving Domestic Violence, Sexual Assault and Stalking

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based upon race, color, gender, religion or national origin.  The Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability.  However, neither of these statutes—or any other federal statute—specifically prohibits discrimination against individuals who are the victims of domestic violence, sexual assault or stalking.  Nevertheless, a EEOC Guideance Article published by the Equal Employment Opportunity Commission (“EEOC”) has employers in Maryland scrambling to revise their non-discrimination policies and training materials in order to incorporate the examples listed in that publication.  The EEOC article sets forth an assortment of examples involving victims of sexual assault and domestic violence that result in potentially actionable disparate treatment, harassment and retaliation claims under Title VII and the ADA. An illustration provided by the EEOC of an employment scenario which may violate Title VII includes an employer who fires, or simply decides not to hire, a woman who was the subject of domestic violence out of a concern  for “drama battered women bring to the workplace.”   The EEOC describes this as “disparate treatment.”  Another example provided involves a supervisor who learns that a subordinate has been the subject of domestic abuse and, viewing her as vulnerable, makes sexual advances towards her.  This is prototypical illegal harassment.  And in an example involving unlawful retaliation, the Guidance describes a scenario in which a supervisor threatens not to issue a pay raise to an employee who reported the supervisor for improperly disseminating the employee’s medical information. Illustrations of circumstances which potentially violate the ADA include an employer who performs an internet search of an applicant and discovers that the applicant previously witnessed a rape and, thereafter, required psychological treatment for depression.  The employer, in turn, decides not to hire the applicant out of a concern that she will “require future time off for continuing symptoms.”  This is an example of discrimination based upon a “perceived disability,” which is in violation of the ADA.  In another example, a manager informs an employee’s colleague that the employee suffers from posttraumatic stress disorder resulting from incest.  This is a straightforward instance of violating the ADA by unlawfully disclosing confidential medical information.  The EEOC also describes a case where an employer threatens to illegally retaliate against an employee who complains about the employer improperly disseminating her medical information. Finally, in a scenario which most employers would not immediately recognize as a violation of the ADA, the EEOC describes a situation where an employee does not have any accrued sick leave and is not eligible for leave pursuant to the Family Medical Leave Act (“FMLA”), yet proceeds to request leave from work in order to receive professional treatment for depression resulting from sexual assault.  When the employer refuses to grant the leave on the basis that the company “applies leave and attendance policies the same way to all employees,” the EEOC declares that the employer acted in violation of the ADA by failing to provide the employee with a reasonable accommodation. Here are the takeaways for Maryland businesses from the EEOC’s recent publication:  Employers should carefully review the issues addressed in the EEOC’s article and consider adding them to their anti-discrimination and non-harassment policies and training seminars. Employers must recognize that scenarios involving both employees and applicants for employment that involve domestic violence, sexual assault and stalking create unique situations to which the legal protections of various anti-discrimination laws may apply, requiring employers to approach these cases with particular sensitivity to legal compliance. While EEOC guidance does not constitute legal authority, it nevertheless provides awareness as to how the EEOC interprets applicable statutes, in this case Title VII and the ADA.  Employers must be aware that other federal laws, such as the FMLA, may also apply to employees and applicants who are the victims of sexual assault, domestic violence or stalking.  Employers should consult with their legal counsel to ensure that they are in compliance with all Federal laws, as well as all applicable State and local laws as well.  Maryland employers or employees who have any additional questions about Title VII, the ADA, FMLA or any other issues that might arise in the workplace are welcome to contact attorney Judd G. Millman.  Mr. Millman is licensed to practice law in both Maryland and Texas, and his practice focuses exclusively on employment law.  He regularly counsels both employees and employers on the myriad of legal issues which arise in the workplace.  He can be reached directly at (410) 522-1020, or at judd@luchanskylaw.com.  

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