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Monday, November 2, 2020

New Jersey Employee, I Am Only Minority in My Workplace, Is Lack of Diversity Illegal?

If you are the only minority in a protected class in your workplace, you may wonder if such a lack of diversity is illegal. It is not necessarily illegal. Whether or not it is actionable depends on numerous facts, but one lawsuit has recently been brought against a federal agency to have more transparency in data as to diversity in the workplace, to enable them to identify enforcement priorities as to civil rights in employment. Several States have filed a lawsuit against the Equal Employment Opportunity Commission ( EEOC) over the EEOC’s policy that limits states’ access to employer data on workplace diversity. These states allege that this data is critical for them to be able to enforce discrimination laws by identification of civil rights violations.

California, joined by two other states, filed a lawsuit on October 30, 2020, against the EEOC,  which lawsuit seeks access to the data that the EEOC collects through the EEO-1 Report, an annual survey.  Maryland and Minnesota and joined the lawsuit, alleging the data contained in the EEO-1 Report is crucial for their enforcement of civil rights. In this EEOC survey, workplace diversity information is characterized and organized by not only the employer, but also by race, sex, ethnicity, and job group. California Attorney Xavier Becerra argues that good policy and effective enforcement of civil rights law is built on having accurate facts but that the federal administration is going in the opposite direction, obstructing state and local civil rights agencies.

As stated in their complaint, “ Title VII requires employers to maintain employment information relevant to the enforcement of its anti-discrimination provisions, and to furnish such information to EEOC. Since the 1960s, EEOC has specifically required covered private employers throughout the United States to file an annual report entitled Employer Information Report EEO-1 (EEO-1). 29 C.F.R. § 1602.7. The EEO-1 contains employment data regarding the employer’s industry, headquarters and location, and the composition of the employer’s workforce by job category and sex, race, ethnicity, and other information.”

Prior, state and local anti-discrimination agencies could access and compare the EEOC’s diversity data across industries and employers in their respective jurisdictions.

However, the  EEOC issued in a March 23, 2020 Federal Register notice that now, the agencies must request that diversity data in order to access it, and the requests can only cover data from an individual employer within the state and local agency’s jurisdiction, and only if that employer already has a charge of discrimination brought against it.

In the lawsuit,  California v. Dhillon, N.D. Cal., No. 20-07664, complaint filed 10/30/20, the full Plaintiffs are the State of California, California Department of Fair Employment and Housing, State of Maryland, State of Minnesota, and Minnesota Department of Human Rights, and they challenge that recent action taken by EEOC, alleging it restricts state and local agencies charged with administering and enforcing fair employment practices laws from accessing information from employers within their jurisdictions. The States allege that this change in revealing data as to diversity of protected classes in the workplace is contrary to the clear statutory command of Title VII of the Civil Rights Act of 1964 (Title VII). They allege that the EEOC did not engage in the formal rulemaking required by the Administrative Procedure Act (APA), 5 U.S.C. § 553.

California  alleges that the EEOC’s refusal to provide access to all California employment data significantly undermines California's sovereign interests. CA Attorney General Xavier Becerra as the chief law officer of the State, has authority to enforce state and federal law, including California's strong employment protections, which bar discrimination in employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

The plaintiffs allege that the new EEOC Rule creates additional administrative costs for the state  agencies charged with the administration of legal employment practices to find alternative sources of employment data to guide investigation and enforcement of employment discrimination laws. It notes that employment discrimination, "foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general."

The States allege that the EEOC action limiting access to employment information directly undermines their interest in guaranteeing fair treatment and equal employment opportunities for its residents. They further allege that through a series of actions and statements, the EEOC has  clearly adopted a change of policy that constitutes Rule against sharing employment information with state and local Fair Employment Practice Agencies (FEPAs) unless it relates to an employer that is the subject of a particular charge of discrimination. They allege that Defendants’ Rule is:

  • a departure from past policy and practice,
  • was made without requisite procedures under the APA and Title VII,
  • denies state and local FEPAs their rights to information under Title VII, and
  • prevents the states from carrying out their mission of enforcing state and federal anti-discrimination laws against employers in their jurisdictions.

The plaintiff allege that this information is an important resource for analysis of equal employment opportunity practices in certain industries and regions and that EEO-1 data is necessary to state and local FEPAs, which Congress has recognized as partners in the enforcement of federal anti-discrimination in employment laws. As stated in their complaint, the state and local FEPAs rely on employment information provided by the EEOC to identify priorities for investigation and enforcement and to evaluate and identify employers with potentially discriminatory practices. They allege such data allows their agencies to prioritize their work and allocate resources to most effectively fight employment discrimination in their jurisdictions:

  • Title VII requires that EEOC ‘shall furnish upon request and without cost to any State or local agency charged with the administration of a fair employment practice law information obtained . . . from any employer, employment agency, labor organization, or joint labor management committee subject to the jurisdiction of such agency.’ ...... Pursuant to this unambiguous command in Title VII and the ongoing Worksharing Agreements between EEOC and the FEPAs of Plaintiff States, EEOC shared EEO-1 data for all  employers within the Plaintiffs’ jurisdictions until EEOC’s policy change in 2020.
  • In recent decades, EEOC automatically shared EEO-1 data with many state and local FEPAs by providing them access to EEOC’s Integrated Mission Systems (IMS) database, where FEPAs could access information about all employers within their jurisdictions and input information about particular charges. In or about April 2019, EEOC disabled FEPAs’ access to jurisdiction-wide EEO-1 data in the IMS system, without consultation with or notice to Plaintiffs.
  • In 2020, EEOC abandoned its long-established practice of sharing all EEO-1 data within a particular FEPA’s jurisdiction with that FEPA. In January 2020, Defendant Dhillon issued an agency-wide Order allowing EEOC to share employer information and data with FEPAs only if the information requested related to a particular charge under investigation by the FEPA,
  • In issuing the notice as to the change in procedures for releasing data, the EEOC stated: “The EEOC’s current practice is to share EEO-1 data with a contracted FEPA only upon request and to share EEO-1 data for an employer within the FEPA’s jurisdiction and only when that employer is a respondent to a particular charge of discrimination cited by the FEPA in its data request.

Since January 2020, as alleged in the complaint against the EEOC, Plaintiffs DFEH and Minnesota Department of Human Rights (MDHR) have requested and been refused EEO-1 data for employers within their respective jurisdictions. EEOC changed the scope of information it shares with Plaintiffs without consulting with FEPAs and without observing the notice-and-comment process required for agency action under the APA, 5 U.S.C. § 553. EEOC’s unilaterally and newly imposed restrictions on Plaintiffs’ access to EEO-1 data for employers within their jurisdictions violates EEOC’s obligations under Title VII and long-standing Worksharing Agreements that EEOC has had with FEPAs in the Plaintiffs’ States. They allege this hampering with the release of accurate data as to diversity in the workplace encumbers them in their mission to enforce discrimination laws in the workplace.

What You Can Do

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing persons who were subjected to illegal harassment and retaliation in the workplace and/or were fired. If you have experienced discrimination at work, or if you reported it and no action was taken, if you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in discrimination.

If you are being subjected to workplace discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in southern, central, western and northern NJ to meet with clients.



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