On December 23, 2023, a federal District Court in California issued an order compelling the OFCCP to produce formerly-withheld EEO-1 reports to a news organization who submitted Freedom of Information Act (FOIA) requests for the reports. This order is significant because it compels the OFCCP to produce the EEO-1 reports for all federal contractors between 2016 and 2020. The plaintiff news organization submitted four FOIA requests to the OFCCP between 2019 and 2022 requesting all EEO-1 reports submitted by all federal contractors from 2016 through 2020. OFCCP published a notice in the Federal Register informing all contractors of the requests and an opportunity to object. OFCCP released all EEO-1 reports from all non-objecting contractors. The instant litigation relates to the EEO-1 reports of the objecting contractors.
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EEOC
Employers Take Note: Harassment Will Soon Have a Broader Meaning with the EEOC
The U.S. Equal Employment Opportunity Commission (“EEOC”) published proposed enforcement guidance for workplace harassment for public comment on October 2, 2023. The proposed guidance can be found on the EEOC’s website. While the EEOC attempted to provide updated harassment guidance under the Trump administration in 2017, final guidance was never issued and if this new guidance is finalized it would represent the first time the EEOC has updated its workplace harassment guidance in nearly a quarter century. …
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EEOC Belatedly Proposes Rules for the Pregnant Workers Fairness Act
Although the Pregnant Workers Fairness Act (“PWFA” or the “Act”) has been in effect since June 27, 2023, the Equal Employment Opportunity Commission (“EEOC” or the “Commission”) last week, published proposed rules regarding the enforcement of the Act. The PWFA has been covered in a previous blog post, but in short, the law requires employers to provide a reasonable accommodation for pregnant employees, regardless of whether that pregnancy has resulted in a disability as was the case under the Americans with Disabilities Act. …
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TikTok “Bytes” the Dust for Federal Contractors and Other Important Updates
Federal contractors have had a flurry of headlines to keep up with over the last few months. Most prominent among them is the Federal Acquisition Regulatory Council’s interim rule barring federal agencies and contractors from using TikTok or any other ByteDance product (the “Covered Applications”). …
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EEOC Issues Guidance Following Expiration of COVID-19 Public Health Emergency
On May 15, 2023, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19-related technical guidance in response to the Biden administration’s termination of the COVID-19 public health emergency on May 11, 2023. The updated guidance cautions employers about their continuing obligations under the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, and other equal employment opportunity laws. …
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EEOC Issues Guidance on Use of AI in Employment Decisions
As of late, it seems we can hardly go a day without hearing about the rise of artificial intelligence (“AI”) and its potential to disrupt all manner of industries. But awareness of AI’s potential implications to our careers has only recently hit the mainstream. Many employees may be surprised to learn that a number of employers have already been using AI to make employment decisions for some time, especially in the hiring process. And the number of employers using AI in the workplace has been growing rapidly. Some employers are even using AI to make promotion decisions.
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EEOC Pushes for Greater Enforcement on AI
On January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) published a draft of its Strategic Enforcement Plan (“SEP”) in the Federal Register, which outlines the enforcement goals for the Commission for the next four years. While the Agency aims to target a number of new areas – such as underserved workers and pregnancy fairness in the workplace – it is notable that it listed as priority number one the elimination of barriers in recruitment and hiring caused or exacerbated by employers’ use of artificial intelligence. …
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New Year – New Hurdles
As employers know, the federal government’s New Year’s resolutions often do not make employers’ lives easier. The following are recent developments of which employers should be aware. …
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Failure to Check Box on EEOC Charge Proves Fatal to Harassment Claims
A Virginia federal court last week dismissed a plaintiff’s hostile work environment claims because the plaintiff failed to check the “continuing action” box or specifically mention “harassment” or “hostile work environment” in her EEOC charge.
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Excluding Pregnant Workers from Light Duty Did Not Violate the Pregnancy Discrimination Act, 7th Circuit Holds
On August 16, 2022, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment to Wal-Mart Stores East, L.P. (Walmart), who was accused by the Equal Employment Opportunity Commission (EEOC) of engaging in sex discrimination under the Pregnancy Discrimination Act and the Civil Rights Act of 1964 by offering temporary light duty to employees who were injured on the job, but denying a similar accommodation to pregnant employees. …
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