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President Trump’s 2018 budget, released on May 23, proposes to merge the Office of Federal Contract Compliance Programs (OFCCP) with the Equal Employment Opportunity Commission (EEOC) by the end of FY 2018.  The proposed merger purports to result in “one agency to combat employment discrimination.”  The Trump administration asserts that the merger would “reduce operational redundancies, promote efficiencies, improve services to citizens, and strengthen civil rights enforcement.”

Both business groups and employee civil rights organizations have opposed the measure, albeit for different reasons.  The OFCCP is a division of the U.S. Department of Labor, while the EEOC is an independent federal agency.  Although both deal with issues of employment discrimination, their mandates, functions and focus are different.  The OFCCP’s function is to ensure that federal government contractors take affirmative action to avoid discrimination on the basis of race, color, religion, sex, national origin, disability and protected veteran status.  The OFCCP, which was created in 1978, enforces Executive Order 11246, as amended, the Rehabilitation Act of 1973, as amended, and the Veterans’ Readjustment Assistance Act of 1975.  The EEOC administers and enforces several federal employment discrimination laws prohibiting discrimination on the basis of race, national origin, religion, sex, age, disability, gender identity, genetic information, and retaliation for complaining or supporting a claim of discrimination.  Its function is to investigate individual charges of discrimination brought by private and public sector employees against their employers.  The EEOC was established in 1965, following the enactment of Title VII of the Civil Rights Act of 1964.

Business groups oppose the OFCCP’s merger into the EEOC due to concerns that it would create a more powerful EEOC with greater enforcement powers.  For example, the OFCCP conducts audits, which compile substantial data on government contractors’ workforces, while the EEOC possesses the power to subpoena employer records.  Combining these tools could provide the “new” EEOC with substantially greater enforcement power.  Civil rights and employee organizations oppose the merger, believing that overall it would result in less funding for the combined functions currently performed by each agency.

Employers’ engagement of independent contractors has increased substantially in recent years.  Short-term projects and the gig economy have fueled the need for workers, who are not looking (or are unable) to find permanent employment, but otherwise possess critical skills or talents desired by start-up and well-established companies.  In light of this reality, New York City enacted the “Freelance Isn’t Free Act” (“FIFA”), which took effect on May 15, 2017.   FIFA applies to all engagements between the “hiring party” and independent contractor that have a value of $800 or more.

FIFA mandates a written agreement between the parties setting forth, among other things, the services to be provided as well as the rate and method of payment.  In addition, it requires that compensation for services be paid no later than 30 days after the completion of such services if the agreement fails to specify when payment is due.  FIFA prohibits a hiring party from conditioning timely payment on the freelance worker’s agreement to accept less compensation than the amount the parties agreed to prior to the commencement of services.   A hiring party is barred from retaliating against a worker for “exercising or attempting to exercise any right guaranteed” under FIFA.  In addition to preventing the harassment, discipline or denial of a work opportunity as retaliation, FIFA prohibits the hiring party from denying a “future work opportunity” to a worker who has engaged in protected activity.

A claim for violating FIFA may be filed with the newly created Office of Labor Standards or by filing a civil action within the appropriate statute of limitations.  A lawsuit for unlawful payment practices or retaliation must be brought within 6 years, while a claim for failing to provide a written contract in accordance with the law is subject to a 2 year limitations period.   In a civil action alleging that the hiring party failed to provide a written contract, the worker must allege that he or she actually requested a written contract before the work began.  FIFA provides for the recovery of reasonable attorneys’ fees and costs, statutory damages of $250, an amount equal to the value of the underlying agreement,  double damages, and injunctive relief for unlawful payment practices.

On May 4, 2017, Mayor Bill de Blasio signed a New York City Council bill that prohibits employers from inquiring about a prospective employee’s “salary history” during any stage of the employment process.  In addition, the new law prevents employers, who happen to be aware of a job candidate’s salary history, from relying on it in making compensation determinations.  The law is aimed at eliminating gender wage gaps, but protects all job applicants, regardless of gender.

The law defines “salary history” broadly to include all wages, benefits or other compensation, but does not include inquiring into a prospective employee’s revenue, sales, or other production reports.  Although employers will not be permitted to ask applicants what they were paid in prior jobs, they are permitted to inform applicants about the job position’s proposed or anticipated salary.  In addition, employers and job candidates can discuss compensation expectations as long as there is no disclosure of prior salary history.

The Local Law amends the Administrative Code of the City of New York, and the New York City Commission on Human Rights will likely issue regulations and guidance to further the law’s purpose.  The law will take effect on October 31, 2017.  Stay tuned for more developments.

 

Title VII prohibits employment discrimination because of sex.  It does not, however, expressly prohibit discrimination based on an individual’s actual or perceived sexual orientation.  Recently, federal courts have started to disregard this distinction in favor of concluding that discrimination on the basis of sexual orientation is a form of sex discrimination because it inherently involves gender stereotyping.  Although the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut and Vermont, has been reluctant to find that sexual orientation discrimination is illegal under federal law, Chief Judge Katzmann of the Second Circuit explained just last month in Christiansen v. Omnicom Grp., Inc., that sexual orientation discrimination should be considered sex discrimination because “such discrimination is inherently rooted in gender stereotypes.”  A prior opinion from the Second Circuit suggested that stereotypical “notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.”  In light of these statements from the Second Circuit, lower courts have started to accept that federal law does, in fact, prohibit sexual orientation discrimination.

Most recently, on May 3, 2017, Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York refused to dismiss a claim for sexual orientation discrimination under Title VII in Philpott v. State of New York, insisting that sexual orientation discrimination is a form of sex discrimination because “sexual orientation cannot be defined or understood without reference to sex.” In refusing to dismiss the claim, Judge Hellerstein stated that he “decline[d] to embrace an ‘illogical and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination. . . .”  The court viewed the plaintiff’s allegations as supporting a claim of gender stereotyping discrimination.  These allegations included statements attributed to the President of SUNY Optometry that referred to the plaintiff as “sensitive,” “flamboyant,” and “frenetic.”  This same official told the plaintiff that “separate but equal treatment of gay people might be best,” and that upon learning that plaintiff’s relationship with his domestic partner had ended, this official told the plaintiff that “this marriage, or whatever you want to call it, is a distraction to the College.”

A finding that Title VII prohibits sexual orientation discrimination as a form of sex discrimination would not affect employers and employees in states such as New York, Connecticut and Massachusetts that already prohibit such discrimination.  Nevertheless, the federal court’s decision in Philpott highlights that even high-level management officials in states like New York, where sexual orientation discrimination is already illegal, require workplace training to instill that stereotyping is discrimination, and cannot form the basis for workplace decisions.

Earlier this week, I reported in Murtha Cullina’s Labor and Employment Group News that the Second Circuit, which covers New York, Connecticut and Vermont, clarified that a single racist comment could support a claim for a discriminatory hostile work environment on the basis of race, where the comment constituted a “severe racial slur.”  To read the full article, simply click on the following link:    A Single Racist Comment Can Create a Hostile Work Environment.