Tag: EEOC

EEOC asks court to force Penn response in antisemitism probe
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Dive Brief:
- A Pennsylvania federal district court should force the University of Pennsylvania to comply with a subpoena requesting information in an ongoing investigation of alleged discrimination against Jewish employees at the institution, the U.S. Equal Employment Opportunity Commission said in a Tuesday filing.
- EEOC said it first issued the subpoena in July, to which Penn submitted a petition to revoke the subpoena in its entirety. EEOC denied the petition but served Penn with a partially modified subpoena that it said addressed objections raised by the university. EEOC claimed Penn did not comply with a response deadline of Sept. 23.
- The agency asked the U.S. District Court for the Eastern District of Pennsylvania to direct Penn to produce all requested information, including data pertaining to discrimination complaints made by employees as well as participants in listening sessions held by a Penn antisemitism task force. In an email, a Penn spokesperson denied EEOC’s claims, stating that the university “responded in good faith to all the subpoena requests” but objected to providing personal and confidential information of Jewish employees without their consent.
Dive Insight:

The filing is part of an ongoing EEOC investigation as well as a broader series of inquiries regarding alleged Jewish discrimination and antisemitism at prominent U.S. universities. In a press release, EEOC said Tuesday’s filing stemmed from a 2023 commissioner’s charge filed by Andrea Lucas, its current chair.

Per court documents, EEOC said the charge alleged a pattern of antisemitic behavior and that Penn subjected Jewish employees to a hostile work environment based on national origin, religion and race.

“An employer’s obstruction of efforts to identify witnesses and victims undermines the EEOC’s ability to investigate harassment,” Lucas said in EEOC’s press release. “In such cases, we will seek court intervention to secure full cooperation.”

The Penn spokesperson told HR Dive that Penn “cooperated extensively with the EEOC, providing over 100 documents, totaling nearly 900 pages” but refused to provide lists of, or personal contact information for, Jewish employees, Jewish student employees and persons associated with Jewish organizations.

The spokesperson also denied EEOC’s claims that the university obstructed access to employees who may have submitted discrimination claims and said that it provided the information of employees who consented to doing so. EEOC rejected Penn’s offer to help the agency reach employees who were willing to speak with EEOC, the spokesperson said.

“Penn has worked diligently to combat antisemitism and protect Jewish life on campus,” the spokesperson said.

The agency’s investigation mirrors similar probes of alleged antisemitic discrimination at California State University and Columbia University. Faculty members at Columbia and Columbia-affiliated Barnard College reportedly received text messages from EEOC asking them to complete a survey last April.

Penn and other institutions drew criticism and scrutiny for their handling of on-campus demonstrations and other related incidents amid the Israel-Hamas war. Former Penn President Elizabeth Magill was among the administrators asked to testify before the U.S. House of Representatives in 2023 — just months after the conflict began — on responding to antisemitism. House Republicans later launched their own probe of Penn’s and other universities’ antisemitism responses, Higher Ed Dive reported.

Penn convened an antisemitism task force in response to these developments, which published a report in May 2024 containing findings and recommendations for the university and condemning antisemitism.

Lucas and EEOC have since publicly encouraged workers who have experienced antisemitism on college campuses to submit employment discrimination charges to the agency.
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November 25, 2025
EEOC Initiates Investigation Into Harvard University Over Racial Discrimination – CUPA-HR

by CUPA-HR | May 19, 2025

On April 25, the Equal Employment Opportunity Commission’s Acting Chair, Andrea Lucas, issued a Commissioner’s Charge against Harvard University announcing that the EEOC is investigating whether “Harvard may have violated and may be continuing to violate Title VII [of the Civil Rights Act of 1964] by engaging in a pattern or practice of disparate treatment against white, Asian, male, or straight employees, applicants, and training program participants in hiring, promotion (including but not limited to tenure decisions), compensation, and separation decisions; internship programs; and mentoring, leadership development, and other career development programs.”

The charge also covers “entities managed by, affiliated with, related, or operating jointly with or successors to” Harvard University. This includes the institution’s medical school, school of public health, and school of arts and sciences, as well as the Brigham and Women’s Hospital and Massachusetts General Hospital, among others. The investigation will look back to 2018 for potential discrimination.

As Acting Chair Lucas explains in the charge, the allegations “are based on publicly available information regarding Harvard, including, but not limited to, documents and information published on Harvard and its affiliates’ public webpages (including archived pages); public statements by Harvard and its leadership; and news reporting.” The charge references documents that were on Harvard’s website, including resources that tracked its decade-long progress to diversify its faculty, but these documents have since been deleted from the university’s website.

Lucas highlights data showing a 10% drop in white men among “all ladder faculty” from 2013 to 2023 and the corresponding 10% increase in total women, nonbinary, and faculty of color in the same time span. She also points to the increase in the percentage of tenured and tenure-track faculty that are women, nonbinary, and/or people of color. Acting Chair Lucas believes Harvard took “such unlawful action in an effort to achieve, in Harvard’s own words, ‘demographic diversification of the faculty.’” Moreover, Lucas claims, “there is reason to believe that these trends and the underlying pattern or practice of discrimination based on race and sex have continued in 2024 and are ongoing.”

The charge also emphasizes that various programs hosted by the university and its affiliates — including fellowship programs, research opportunities, and other initiatives targeted toward underserved groups, including Black and Native American students — demonstrate disparate treatment by the university and its affiliates against White, Asian, male, and straight applicants and training program participants.

The EEOC’s Commissioner’s Charge is the latest escalation of the battle between Harvard and the Trump administration, which has frozen or paused billions of dollars in federal grants and contracts, threatened to revoke the school’s tax-exempt status, and initiated a task force to investigate the university’s behavior towards Jewish students. The Department of Education and Department of Health and Human Services are also investigating the university, including for race-based discrimination.

In a letter in response to the Department of Education, Harvard explained:

“Employment at Harvard is similarly based on merit and achievement. We seek the best educators, researchers, and scholars at our schools. We do not have quotas, whether based on race or ethnicity or any other characteristic. We do not employ ideological litmus tests. We do not use diversity, equity, and inclusion statements in our hiring decisions. We hire people because of their individual accomplishments, promise, and creativity in their fields or areas of expertise, and their ability to communicate effectively with students, faculty, and staff. And we take all of our legal obligations seriously, including those that pertain to faculty employment at Harvard, as we seek to offer our students the most dynamic and rewarding educational experience that we can.”

CUPA-HR will continue to monitor for updates related to this charge and other relevant enforcement activity at the EEOC.

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May 19, 2025
EEOC and DOJ Issue Technical Assistance Documents on Unlawful DEI-Related Discrimination
by CUPA-HR | March 20, 2025

On March 19, the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) released two technical assistance documents intended to educate “the public about unlawful discrimination related to ‘diversity, equity, and inclusion’ (DEI) in the workplace.” The two documents aim to inform the public about how civil rights rules and laws like Title VII of the Civil Rights Act of 1964 apply to employment policies, programs and practices, including those labeled or framed as “DEI.”

Title VII prohibits employment discrimination based on protected characteristics, including race, color, religion, sex or national origin. As the agencies note in both documents, DEI is a broad term that is not defined under statute. The technical assistance explains that DEI practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated in whole or in part by an employee’s race, sex, or other protected characteristic. The agencies emphasize that Title VII’s protections apply equally to all racial, ethnic, and national origin groups, as well as both sexes, and that unlawful discrimination may exist no matter which employees are harmed.

Technical Assistance Document #1: The EEOC describes what DEI-related discrimination looks like.

The first document, “What To Do If You Experience Discrimination Related to DEI at Work,” explains how DEI-related practices may manifest as discrimination under Title VII.
- Title VII bars disparate treatment: Any employment action motivated in whole or in part by race, sex, or another protected characteristic that is taken in the context of the terms, conditions, or privileges of employment may be unlawful.*
- Title VII prohibits limiting, segregating, and classifying: Any action taken that limits, segregates, or classifies employees based on race, sex, or other protected characteristics in a manner affecting their status or depriving them of employment opportunities may be unlawful. Examples of these practices include the establishment of workplace groups (employee resource groups or employee affinity groups) that limit membership to a protected group or groups, as well as the separation of employees into groups based on a protected characteristic when administering trainings or other privileges of employment. The document makes clear that the latter may still violate Title VII even if the separate groups receive the same training or programming content.
- Title VII prohibits workplace harassment: Workplace harassment is illegal when it results in an adverse change to a term, condition, or privilege of employment, or it is so frequent or severe to reasonably be considered intimidating, hostile, or abusive. The document explains that DEI training may give rise to a hostile work environment claim and that harassment may occur when an employee is subject to unwelcome remarks or conduct based on protected characteristics.
- Title VII prohibits employer retaliation: The agencies explain that reasonable opposition to a DEI training may constitute protected activity if the employee provides a fact-specific basis for their belief that the training violated Title VII, and that an employer may not retaliate if an employee participates in an EEOC investigation or files an EEOC charge.
The document reaffirms that Title VII protects employees, potential and actual applicants, interns, and training program participants. It directs individuals who suspect to have experienced DEI-related discrimination to contact the EEOC “promptly” as claimants have 180 to 300 days to file a claim depending on whether a state or local agency enforces a law that prohibits employment discrimination on the same basis.

Technical Assistance Document #2: The EEOC answers additional questions about DEI-related discrimination in the workplace.

The second technical assistance document, titled “What You Should Know About DEI-Related Discrimination At Work,” expands upon the information provided in the technical assistance document discussed above and answers a number of additional questions on how Title VII intersects with DEI-related practices in the workplace.

Notably, the document addresses questions surrounding employers’ DEI-related considerations of race, sex, and other protected characteristics when the protected characteristic wasn’t the “sole or deciding factor” for the employers’ action. The document states that “race or sex (or any other protected characteristic under Title VII) does not have to be the exclusive (sole) reason for an employment action or the ‘but-for’ (deciding) factor for the action” for there to be unlawful discrimination. Additionally, the agencies explain that workers only need to show “some injury” or “some harm” affecting their terms, conditions or privileges of employment to allege a colorable claim of discrimination under Title VII.

The document also makes clear that an employer may not justify an employment action simply on the basis that they have a business necessity or interest in “diversity” as Title VII prohibits employers from using business necessity as a defense against intentional discrimination claims. Likewise, the agencies explain that “client or customer preference is not a defense to race or color discrimination” and that “basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination.”

CUPA-HR will continue to monitor for updates related to Title VII enforcement from the EEOC.

*The terms and conditions of employment include: hiring; firing; promotion; demotion; compensation; fringe benefits; exclusion from training; exclusion from mentoring or sponsorship programs; exclusion from fellowships; selection for interviews (including placement on candidate slates).

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March 20, 2025
EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

by CUPA-HR | May 8, 2024

On April 29, the U.S. Equal Employment Opportunity Commission issued final guidance on workplace harassment and discrimination titled “Enforcement Guidance on Harassment in the Workplace.” The guidance clarifies existing employer obligations to address workplace discrimination and aims to assist employers in recognizing, managing and preventing in-person and online workplace harassment.

Background

The EEOC administers and enforces Equal Employment Opportunity law to protect workers against workplace discrimination. As such, the EEOC issues guidance to help employers and employees understand their obligations and rights under EEO law to a workplace free from discrimination. In October 2023, the EEOC issued its proposed guidance on harassment in the workplace, in which they provided an overview and examples of situations that would constitute workplace harassment. The EEOC received over 38,000 comments from the public in response to the proposed guidance, which they analyzed to develop the final guidance summarized below.

Summary of Final Guidance

The EEOC’s final guidance aligns with and expands upon the proposed guidance and revises previous EEOC workplace harassment and discrimination guidance to address significant legal developments in recent years. Specifically, the guidance includes new overviews of workplace protections against harassment based on sexual orientation and gender identity, which the 2020 Supreme Court Bostock v. Clayton County ruling established as precedent. The guidance also addresses pregnancy, childbirth and related medical conditions as protected characteristics under the scope of “sex.” Though pregnancy has previously been protected against workplace harassment under laws like the Pregnancy Discrimination Act, recent laws like the Pregnant Workers Fairness Act and its implementing regulations have strengthened the protections afforded to pregnant workers, necessitating the need for the EEOC to update its guidance.

In addition to the expanded scope of sex, the EEOC also includes new guidance on potential challenges relating to social media and the workplace. This includes conduct occurring in a non-work-related virtual setting (such as social media platforms or private messaging systems on personal computers or phones) that could impact the workplace. In the guidance, the EEOC provides scenarios in which certain messages shared via private messages on phones or posts shared on social media platforms about employees could create hostile work environments, triggering the requirement for employers to correct the situation.

In total, the guidance provides 77 examples to explain harassment and discrimination in the workplace, hostile work environments, employer liability and obligations to correct workplace harassment and discrimination, and systemic harassment. As the EEOC noted in the proposed rule, the guidance and its examples “do not have the force and effect of law and are not meant to bind the public in any way.” Instead, the guidance is “intended only to provide clarity to the public regarding existing requirements under the law or agency policies.”

In addition to the guidance, the EEOC also published educational materials for employers and employees seeking direction and support on harassment prevention strategies, including a summary of key provisions, an FAQ for employees, and a fact sheet for small businesses.

CUPA-HR will keep members apprised of further EEOC guidance on discrimination and harassment in the workplace.

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May 8, 2024
EEOC Issues Long-Awaited Regulations on Implementation of the Pregnant Workers Fairness Act – CUPA-HR

by CUPA-HR | April 17, 2024

On April 15, 2024, the Equal Employment Opportunity Commission issued its long-awaited final regulations and interpretative guidance on the implementation of the Pregnant Workers Fairness Act (PWFA). The EEOC states in its press release that the final rule is intended to offer “important clarity that will allow pregnant workers the ability to work and maintain a healthy pregnancy and help employers understand their duties under the law.” It provides guidance to employers and workers “about who is covered, the types of limitations and medical conditions covered, and how individuals can request reasonable accommodations.” The regulations will be published in the Federal Register on April 19 and go into effect 60 days later.

The PWFA, which was signed into law in December 2022, requires most employers with 15 or more employees “to provide reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity.” It passed Congress with strong bipartisan support.

Known Limitations

Under the regulation, “limitations” include both physical and mental conditions related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. The regulations specify that the definition of a limitation “shall be construed broadly to the maximum extent permitted by the PWFA.” A limitation “may be a modest, minor, and/or episodic impediment or problem” and can be related to current or past pregnancies, potential or intended pregnancies, and labor and childbirth.

The examples of limitations provided in the rule include miscarriage or stillbirth, migraines, lactation, postpartum depression, and pregnancy-related episodic conditions, such as morning sickness, but the list is not intended to be exhaustive. The limitation may be “a need or a problem related to maintaining [the worker’s] health or the health of the pregnancy,” and it “need not be caused solely, originally, or substantially by pregnancy or childbirth.” Related medical conditions can include conditions that existed before pregnancy or childbirth but are exacerbated by the pregnancy or childbirth.

The employee or their representative must communicate the limitation to the employer to receive a reasonable accommodation. The employee and employer should engage in an interactive process to determine if a worker’s limitation qualifies for a reasonable accommodation and the appropriate accommodation.

Reasonable Accommodations

Under the final rule, “reasonable accommodations” have the same definition as under the Americans with Disabilities Act. They include modifications or adjustments to the application process, to the work environment or how the work is performed, and that allow the employee to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without known limitations. It also includes modifications or adjustments to allow a covered employee to temporarily suspend one or more essential functions of the job.

The rule provides several examples of reasonable accommodations that may be appropriate under the act. These include but are not limited to additional breaks, allowing the worker to sit while they work, temporary reassignment or suspension of certain job duties, telework, or time off to recover. Leave can be requested even if the employer does not offer leave as an employee benefit, the employee is not eligible for the employer’s leave policy, or the employee has used up their allotted leave under the employer’s policy.

Reasonable accommodations are limited to the individual who has a PWFA-covered limitation; it does not extend to an individual who is associated with someone with a qualifying limitation or someone with a limitation related to, affected by, or arising out of someone else’s pregnancy, childbirth, or related medical condition. The regulations specifically clarify that “time for bonding or time for childcare” are not covered by the PWFA.

Undue Hardship

The rule explains that an employer does not have to provide a reasonable accommodation if it would cause an “undue hardship,” or a significant difficulty or expense. The rule includes a variety of factors that should be considered when determining if a reasonable accommodation would impose an undue hardship, including the nature and net cost of the accommodation; the overall financial resources of the facility or covered entity; the type of operations of the covered entity; and the impact of the accommodation on operations, including on the ability of other employees to perform their duties or the facility’s ability to conduct business.

The rule provides several factors to consider when analyzing whether an accommodation involving the temporary suspension of essential functions of the position qualifies as an undue hardship. These include the length of time the employee will not be able to perform the essential function; whether there is work for the employee to accomplish; the nature of the essential function; the employer’s history of providing temporary suspensions to other, similarly situated employees; whether other employees can perform the functions; and whether the essential functions can be postponed.

Other Provisions

The rule also encourages “early and frequent communication between employers and workers” in order “to raise and resolve requests for reasonable accommodation in a timely manner.” Employers are also instructed that they are not required to request supporting documentation when an employee asks for a reasonable accommodation; they should only do so when it is reasonable under the circumstances.

Controversies Surrounding the Regulations

While the PWFA was passed by Congress with strong bipartisan support, the EEOC has faced significant pushback about the implementing regulations.

The EEOC’s delay in issuing these regulations caused considerable frustration from employers. The PWFA went into effect in June 2023, which was when employers were required to comply with the law and the EEOC began accepting claims of discrimination under the act. Without the implementing regulations, however, employers had no certainty as to how to comply, leaving them exposed to potential liability.

The most significant criticism stemmed from the regulation’s implications around abortion. In fact, of the nearly 100,000 comments the EEOC received in response to its notice of proposed rulemaking on the regulations, over 96,000 discussed the regulation’s inclusion of abortion. The final rule clarifies that “having or choosing not to have an abortion” qualifies as a medical condition under the regulations. Several Republican members of Congress accused the EEOC of using the regulations to further the Biden administration’s pro-choice agenda. EEOC Chair Charlotte Burrows, however, defended the language, saying it is consistent with legal precedent and the agency’s interpretations of other civil rights statutes under their jurisdiction. The regulation clarifies that employers will not be required to pay for abortions or travel-related expenses for an employee to obtain an abortion. The EEOC specifies they expect the most likely accommodation related to abortion will be leave to attend a medical appointment or recover from a procedure. Several conservative organizations are threatening legal action against the final rule.

Litigation Challenging the PWFA

On February 27, 2024, a federal district court in Texas ruled that the House of Representatives lacked a quorum when it passed the PWFA, because over 200 representatives voted by proxy. The Constitution required that a quorum be present for the House to conduct business, but in response to the COVID-19 pandemic, the House allowed for proxy voting. The court found Congress violated the Constitution when it passed the law and blocked enforcement of the act against the state of Texas and its agencies. The law is in effect elsewhere in the United States, but other legal challenges may follow Texas’s approach.

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April 17, 2024
EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR
by CUPA-HR | October 27, 2023

On September 28, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published new proposed guidance for employees and employers on navigating and preventing workplace harassment. “Enforced Guidance on Harassment in the Workplace” highlights and upholds existing federal employment discrimination laws and precedence, such as the Pregnant Workers Fairness Act (PWFA) and the Supreme Court’s Bostock v. Clayton County decision.

The Updated Guidance

The proposed enforcement guidance provides an overview and examples of situations that would constitute workplace harassment. Of particular interest are provisions included that reflect new and existing protections from harassment under federal laws and precedence, as well as emerging issues surrounding the workforce. The guidance discusses the following notable provisions for consideration:

Pregnancy, childbirth and related medical conditions. The guidance states that sex-based harassment includes harassment revolving around pregnancy, childbirth or related medical conditions, all of which are protected under federal laws like the Pregnancy Discrimination Act and the recently enacted PWFA.

Sexual orientation and gender identity. The guidance provides several examples of discrimination and harassment on the basis of sexual orientation and gender identity, which is considered sex-based discrimination under Title VII of the Civil Rights Act after the Supreme Court’s 2020 Bostock v. Clayton County decision.

Virtual and online harassment. The guidance states that conduct within a virtual work environment can contribute to a hostile environment, providing examples such as harassing comments made during remote calls or discriminatory imagery being visible in an employee’s workspace while in a work-related video call. Additionally, the guidance provides examples of conduct on social media outside of work-related contexts that may contribute to hostile work environments if such conduct impacts the workplace.

In the proposed guidance, the EEOC reminds stakeholders that the final guidance will “not have the force and effect of law” and that such guidance is “not meant to bind the public in any way.” Instead, the document “is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.”

Looking Ahead

The proposed guidance is open for public comments through November 1, 2023. Once the comment period closes, the EEOC will review all feedback they received and make changes to address the comments prior to issuing a final rule. CUPA-HR will keep members apprised of any updates on this EEOC guidance, as well as new and existing laws falling under the EEOC’s jurisdiction.

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October 27, 2023
EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR
by CUPA-HR | August 28, 2023

On August 7, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule to implement the Pregnant Workers Fairness Act (PWFA). The proposed rule provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

In December, the PWFA was signed into law through the Consolidated Appropriations Act of 2023. The law establishes employer obligations to provide reasonable accommodations to pregnant employees so long as such accommodations do not cause an undue hardship on the business, and makes it unlawful to take adverse action against a qualified employee requesting or using such reasonable accommodations. The requirements of the law apply only to businesses with 15 or more employees.

Purpose and Definitions

Under the proposed rule, the EEOC states that employers are required to “provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.”

Most definitions included in the EEOC’s proposed regulations follow the definitions provided under the Americans with Disabilities Act (ADA). The proposed rule, however, expands upon the definition of a “qualified employee or applicant” to include an employee or applicant who cannot perform an essential function of the job so long as they meet the following criteria:
- Any inability to perform an essential function is for a temporary period
- The essential function could be performed in the near future
- The inability to perform the essential function can be reasonably accommodated
The rule continues by defining “temporary” as the need to suspend one or more essential functions if “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” Accordingly, “in the near future” is defined to extend to 40 weeks from the start of the temporary suspension of an essential function.

Additionally, the terms “pregnancy, childbirth, or related medical conditions” include a non-exhaustive list of examples of conditions that fall within the statute, including current or past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion. The proposed rule specifies that employees and applicants do not have to specify the condition on the list or use medical terms to describe a condition to receive an accommodation.

Reasonable Accommodations

The proposed rule states that requests for an accommodation should both identify the limitation and indicate the need for an adjustment or change at work. The rule adopts the interactive process for approving and adopting reasonable accommodations for employees or applicants as implemented under the ADA, meaning employers and the qualified employee or applicant can work together to reach an agreement on an appropriate accommodation.

The proposed rule also offers a non-exhaustive list of examples of reasonable accommodations that may be agreed upon during the interactive process. These include frequent breaks, schedule changes, paid and unpaid leave, parking accommodations, modifying the work environment to make existing facilities accessible, job restructuring and other examples.

Additionally, the proposed rule introduces “simple modifications,” which are presumed to be reasonable accommodations that do not impose an undue burden in almost all cases. The four simple modifications proposed are:
- Allowing employees to carry water and drink, as needed, in the work area
- Allowing employees additional restroom breaks
- Allowing employees to sit or stand when needed
- Allowing employees breaks, as needed, to eat and drink
Supporting Documentation

The proposed rule states that covered employers are not required to seek documentation to prove the medical condition or approve an accommodation, further stating that the employer can only request documentation if it is reasonable in order to determine whether to grant an accommodation for the employee or applicant in question. Under the regulations, “reasonable documentation” is that which describes or confirms the physical condition; that it is related to, affected by, or arising out of pregnancy, childbirth or related medical conditions; and that a change or adjustment at work is needed for that reason. Examples of situations where requesting documentation may be determined to be unreasonable include when the limitation and need for an accommodation are obvious; when the employee has already provided sufficient documentation; when the accommodation is one of the four “simple modifications”; and when the accommodation is needed for lactation.

Remedies and Enforcement

The proposed rule establishes the applicable enforcement mechanisms and remedies available to employees and others covered by Title VII of the Civil Rights Act of 1964 for qualified employees and applicants covered under the PWFA. The rule also proposes several anti-retaliation and anti-coercion provisions to the list of protections granted to those covered by the PWFA.

Next Steps

The EEOC’s proposed rule marks the agency’s first step toward finalizing PWFA regulations. Although the timing is uncertain, the EEOC will likely aim to issue the final regulations by December 29 — the deadline Congress gave the agency to finalize a rulemaking to implement the law. Notably, however, the PWFA went into effect on June 27, meaning the EEOC is now accepting violation charges stemming from PWFA violations without having a final rule implemented.

The EEOC invites interested stakeholders to submit comments in response to the proposed rule by October 11. Comments will be considered by the agency before issuing its final rule for the PWFA.

CUPA-HR will keep members apprised of any activity relating to the PWFA regulations.

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August 28, 2023
President Biden Nominates Kalpana Kotagal to Serve as EEOC Commissioner – CUPA-HR
by CUPA-HR | April 11, 2022

On April 1, President Biden announced his intention to nominate Kalpana Kotagal to serve as a commissioner on the Equal Employment Opportunity Commission (EEOC). If confirmed, Kotagal would give the EEOC Democratic control for the first time under the Biden administration, as she would fill the seat currently held by Janet Dhillon, a Republican appointee whose term expires on July 1.

Kotagal is currently a partner at Cohen Milstein Sellers & Toll and is a member of the firm’s civil rights and employment practice group and chair of their hiring and diversity committee. In her time with Cohen Milstein, she has worked on several high-profile cases, including:

a class action lawsuit representing over 69,000 female employees against Sterling Jewelers alleging gender discrimination and Equal Pay Act violations — a case that may reach the Supreme Court; and

a class action against AT&T Mobility Services in which the company’s sales representatives allege that the company’s attendance and late policy amounts to pregnancy discrimination and violates the Pregnancy Discrimination Act, Americans with Disabilities Act and Family and Medical Leave Act.

Kotagal is also a co-author of the Inclusion Rider, which is a legal template that individuals in the entertainment industry can add to their contracts to demand diversity and inclusivity on projects. She and her co-authors drafted the rider and made it public so anyone in the industry can use it.

In addition to her work with Cohen Milstein, Kotagal sits on the board of directors of A Better Balance, a nonprofit that litigates pregnancy discrimination claims and advocates for “supportive policies,” including paid sick, family and medical leave, fair scheduling and accessible, and quality childcare and education. She is also a board member for the Public Justice Foundation, a nonprofit focused on “high-impact lawsuits to combat social and economic injustice, protect the earth’s sustainability and challenge predatory corporate conduct and government abuses.”

Kotagal is also a co-chair of the alumni advisory board on equity and inclusion at the University of Pennsylvania Law School, a member of the American Constitution Society Task Force on #MeToo in the legal profession, and serves on the advisory counsel of the People’s Parity Project, which focuses on reforming the legal system.

CUPA-HR will monitor and keep members apprised of any updates to her nomination during the confirmation process.

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April 11, 2022
EEOC Adds Technical Assistance Guidance to Clarify When COVID-19 Is Considered a Disability Under the ADA – CUPA-HR
by CUPA-HR | December 22, 2021

On December 14, the Equal Employment Opportunity Commission (EEOC) released additional COVID-19 technical assistance to clarify certain circumstances under which employers and employees may consider COVID-19 a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The guidance, which is presented in a Q&A format, focuses broadly on the definition of disability under the ADA and Rehabilitation Act and provides examples detailing how an individual diagnosed with COVID-19 or post-COVID-19 conditions could be considered to have a disability under these laws.

According to an EEOC press release, the technical assistance adds the following key guidance:

An applicant’s or employee’s COVID-19 may cause impairments that can be considered disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.

An applicant or employee with mild COVID-19 symptoms that resolve in a few weeks with no other consequences will not have a disability as defined under the ADA that would make them eligible to receive a reasonable accommodation.

Applicants or employees with disabilities under the ADA are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. They are not automatically entitled to reasonable accommodations under the ADA. Employers can choose to do more than the ADA requires.

Employers risk violating the ADA if they prevent employees from returning to work once the employee is no longer infectious and is medically able to return to work without posing a threat to infect others.

The EEOC also clarifies that this technical guidance differs from July guidance from the Department of Justice (DOJ) and the Department of Health and Human Services (HHS), which addresses “Long COVID” as a Disability under Sections 504 and 1557 of the ADA. According to the press release, the DOJ and HHS guidance only focuses on long COVID, while the EEOC’s new technical assistance focuses more broadly on COVID-19 in the context of Title I of the ADA and Section 501 of the Rehabilitation Act, which covers employment.

CUPA-HR will continue to keep members apprised of any COVID-19 guidance as it relates to disability and discrimination under EEO law.

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December 22, 2021