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SHRM Newsletter: EEOC CONCLUDES THAT GENDER IDENTITY BIAS IS SEX DISCRIMINATION

05/25/2012

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May 25, 2012

 

This is Utah SHRM Legal-mail no. 2012-12 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 

CONTENTS:

-  EEOC CONCLUDES THAT GENDER IDENTITY BIAS IS SEX DISCRIMINATION

-  DOL INCREASES WAGE AND HOUR ENFORCEMENT

-  FEDERAL ALERT ON PAYCHECK FAIRNESS ACT


EEOC CONCLUDES THAT GENDER IDENTITY BIAS IS SEX DISCRIMINATION:  Acting in a federal administrative proceeding, the Equal Employment Opportunity Commission (EEOC) has ruled that claims of gender identity discrimination can be asserted as claims of sex discrimination. The case involved a federal agency’s decision not to hire a male applicant who was transgendering into a female. The applicant alleged gender identity and sex bias. When the case reached the EEOC during administrative proceedings, the EEOC ruled that the gender identity issues were validly asserted under existing law because “gender discrimination occurs any time an employer treats an employee differently for failing to conform to any gender-based expectations or norms.”  Thus, the EEOC concluded that discrimination based on transgender status in and of itself is sex discrimination.  The agency explained that this is true regardless of whether the employee’s bias is due to discomfort about an employee’s expression of gender in non-traditional ways or because of a gender transition process. Employers should carefully consider this analysis when dealing with issues of employee gender identity at work, for this ruling could increase the number of gender identity claims filed with the EEOC. Here is an excellent article on the subject: http://www.seyfarth.com/publications/si051012

DOL INCREASES WAGE AND HOUR ENFORCEMENT:  Recent commentators have noted an increase in wage and hour law enforcement by the United States Department of Labor (DOL).  Industries recently targeted in such actions have included: residential construction, hospitality, janitorial. Home health care, child care, transportation, warehousing, meat/poultry processing, staffing companies and gentlemens’ clubs.  The increased scrutiny has typically included analysis of exempt classifications, automatic meal deductions, off-the-clock work and supervisor edits of employee time.

FEDERAL ALERT ON PAYCHECK FAIRNESS ACT: Here is a federal legislative alert from national SHRM...

YOUR ASSISTANCE IS NEEDED! Please e-mail your senators to OPPOSE S. 3220 because it would significantly restrict the way employers of all sizes compensate their employees.

The U.S. Senate is scheduled to vote on S. 3220, the so-called "Paycheck Fairness Act (PFA)," during the week of June 4-8. If enacted, the bill would:

  • significantly restrict the factors HR professionals use to compensate their employees,
  • authorize the Equal Employment Opportunity Commission and the Department of Labor to collect wage information from employers, and
  • encourage employees to publicly disclose their colleagues' wages.

Please Take This Action:
Write your U.S. Senators using SHRM's HRVoice program by following these steps:

  1. Log onto the SHRM HRVoice Advocacy Action Center by clicking HERE
  2. Personalize your message with your own story
  3. Include your home mailing address.

Issue

HR professionals who manage compensation use their professional judgment to consider a number of legitimate factors in creating fair and equitable compensation systems. These include experience, profitability, merit, productivity, prior salary history and location.  But the PFA would allow the Federal government to second-guess employer pay practices in three primary ways. The PFA would:

  1. Restrict employer flexibility in pay decisions – The PFA would effectively prohibit employers from using many legitimate factors to compensate their employees, including professional experience, education, training, employer need, local labor market rates, hazard pay, shift differentials and the profitability of the organization. The PFA would permit employers to base pay decisions only on production, merit and seniority.
  2. Require collection of employer wage data – The PFA would authorize the Equal Employment Opportunity Commission and the Department of Labor to collect compensation data from compensation managers.
  3. Reduce employee privacy – The PFA would effectively encourage employees to discuss or publicize their co-workers' wages by preventing employer retaliation against an individual who publicly discloses the wages of other employees.

Outlook

Senator Barbara Mikulski (D-MD) introduced S. 3220, the Paycheck Fairness Act, on May 22, 2012. The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions, but it has not been the subject of a hearing or markup during the current Congress. The Senate plans to vote on S. 3220 during the week of June 4-8.

SHRM Position

SHRM and its membership are committed to preventing and resolving any form of workplace discrimination, including pay disparities between women and men. SHRM strongly supports the two federal laws that already protect employees from gender-based pay inequity: (1) Title VII of Civil Rights Act of 1964 and (2) the Equal Pay Act of 1963 (EPA). The proposed Paycheck Fairness Act would amend the Equal Pay Act, which is part of the Fair Labor Standards Act of 1938.

SHRM believes that compensation programs should be designed to ensure fair treatment of employees, but should be determined by the market and employer needs, not by the government. Instead, SHRM encourages organizations of all sizes to regularly perform compensation or job evaluation audits to ensure such systems do not discriminate based on gender in order to comply with current federal law.

SHRM believes the Paycheck Fairness Act, however well-intentioned, would be an unnecessary expansion of the Equal Pay Act. By significantly restricting the factors used in setting compensation, the Paycheck Fairness Act would threaten the tools that HR professionals use to reward and retain their employees. The bill could lead to employers cutting back on incentive pay programs, because of the pay disparities between employees that would naturally result. The bill would also have a negative impact on employee privacy by encouraging employees to publicize their colleagues' wages.

Should you have any questions regarding the Paycheck Fairness Act, please contact Michael Layman, SHRM's Government Relations Senior Associate, at michael.layman@shrm.org.

If you encounter any problems with the advocacy site, please contact David Lusk, SHRM's Senior Associate, Member Advocacy, at 703-535-6158.

 
Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

 

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.