Employment Law Update

By Mark D. Tolman

Starved for developments arising from the federal Equal Employment Opportunity Commission (EEOC)? Hoping for an email update focused exclusively on the EEOC? This update is for you! We are covering several key EEOC developments, all published over the last two weeks.

EEOC and WHD Collaborate on Fair Pay

On Sept. 14, 2023, the EEOC and the U.S. Department of Labor’s Wage and Hour Division (WHD) published a joint Memorandum of Understanding (MOU) on their collaboration to combat fair pay issues, including but not limited to, issues arising from the newly-enacted Pregnant Workers Fairness Act and PUMP Act. WHD enforces the Fair Labor Standards Act, including its minimum wage, overtime, recordkeeping and nursing mother provisions. The EEOC enforces federal anti-discrimination laws, including the Equal Pay Act and Title VII of the Civil Rights Act of 1964. The MOU is focused on the intersection of these laws. According to the MOU, its purpose “is to maximize and improve the enforcement of the federal laws administered by DOL/WHD and by the EEOC. This MOU will encourage enhanced law enforcement and greater coordination between the agencies through information sharing, joint investigations, training, and outreach.” In other words, if the EEOC determines that an employer has engaged in unfair pay practices, you likely should expect a call from the WHD and vice versa.

EEOC Releases its Strategic Enforcement Plan for 2024 to 2028

On Sept. 21, 2023, the EEOC released its Strategic Enforcement Plan Fiscal Years 2024 - 2028 (SEP). This report, published every several years, provides key insight on the EEOC’s priorities and objectives. Employers hoping to stay out of the EEOC’s crosshairs would do well to tailor their policies and practices in consideration of the EEOC’s strategic objectives. Among many other initiatives, the EEOC will prioritize combating discrimination against religious minorities (including antisemitism and Islamophobia); expanding resources to educate vulnerable workers of their rights; and updating approaches to protect workers affected by pregnancy, childbirth or related conditions (in light of the Pregnant Workers Fairness Act). The SEP also reflects the EEOC’s continued support of diversity, equity and inclusion initiatives. In its press release, the EEOC stated that the “new SEP also commits the EEOC to supporting employer efforts to proactively identify and address barriers to equal employment opportunity, cultivate a diverse pool of qualified workers and foster inclusive workplaces.”

EEOC Publishes Disability Accommodation Resource Guide for Federal Contractors and Other Recipients of Federal Funding

On Sept. 26, 2023, in commemoration of 50 years of the Rehabilitation Act, the EEOC and U.S. Department of Labor published a resource guide entitled, “Employment Protections Under the Rehabilitation Act of 1973: 50 Years of Protecting Americans with Disabilities in the Workplace.” Enacted more than two decades before the Americans with Disabilities Act, the Rehabilitation Act prohibits federal contractors and recipients of federal funds (e.g., state and local government employers) from discriminating against disabled employees and requires them to provide disability accommodations. According to the EEOC’s press release, the “resource guide includes important information about the Rehabilitation Act for workers and employers, where to turn for help, examples of best practices, links to relevant agency publications, and additional resources.”

Question Corner

Workplace Accommodations for Prayer and Worship

By Garrett M. Kitamura

Q.      Do employers need to provide a space for employees to worship and pray in the office?

A.      Many religions require their followers to pray at fixed times of the day. Islam, for example, has five sets of mandatory prayer times: dawn, after midday, afternoon, sunset and nighttime. Title VII of the Civil Rights Act requires an employer with 15 or more employees to reasonably accommodate an employee’s (or applicant’s) “sincerely held” religious beliefs, if doing so would not pose an “undue hardship” to the employer. This mandate to accommodate extends to providing employees a space for worship and prayer in the office—again, so long as the religious beliefs are sincerely held, and the accommodation would not pose an undue hardship. Furthermore, accommodations are only required once the employer has been put on notice of the need for accommodation, such as a direct request from the employee.

Determining whether an employee’s belief is sincerely held is a fact-intensive inquiry. A sincerely-held belief can encompass spiritual, ethical or moral beliefs that may not fall squarely within a traditional, organized religion. Thus, establishing whether a belief is sincerely held is largely a matter of individual credibility. As for whether accommodating the belief would pose an undue hardship, the United States Supreme Court recently clarified in Groff v. DeJoy (2023) that “undue hardship” is evaluated “in the overall context of an employer’s business.” This context-driven analysis considers “all relevant factors,” including “the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.” Establishing the existence of an undue burden falls to the employer.