Uche O. Asonye, CPA, JD, founded the Chicago law firm of Asonye & Associates in 1993. His firm concentrates on workplace issues, immigration law, employment, and civil litigation. His practice includes employment contracts, discrimination, workplace harassment issues as well as immigration, with special focus on physicians, health care workers and medical institutions. The firm relies on advanced technology to provide competent and cost effective representation for clients.
On December 29, 2022, President Joe Biden signed the PUMP Act into effect which sought to expand the rights of pregnant employees and/or employees who are actively nursing. This act grants nursing employees the right to have a private place to pump at work that is free from intrusion, shielded from public view, and not located in a bathroom. Additionally, this act allows nursing employees the right to an additional 20 minute break at the time of their choosing for up to one year after childbirth.
This act applies to all employers and employees. This includes remote workers who will be granted the same rights as onsite employees. The PUMP act took effect on April 28, 2023. Should an employee feel as though their rights have been violated, the individual is encouraged to inform their employer of the violation. Employees can then file a complaint with the Department of Labor or pursue a lawsuit against the employer.
In December of 2022, President Joe Biden signed the Pregnant Workers Fairness Act (PWFA) which came into effect on June 27, 2023. The PWFA expands on the current EEOC protections, rights, and accommodations for covered pregnant employees. To qualify as a "covered employee", the individual's workplace must have over 15 employees. However, the new act only applies to incidents that occurred after June 27, 2023.
The PWFA expands existing anti-discrimination laws to include additional protections for pregnant workers such as the ability to sit and drink water on shift, have flexible hours, be provided with additional break times for rest and eating, extended leave time for childbirth, and the right to be excused from strenuous activities and/or exposure to activities or compounds that may be unsafe for pregnant workers.
The PWFA also prohibits employers from requiring employees to accept accommodations without prior discussion, requiring employees to take leave if other reasonable accommodations are available, and retaliating against employees who report or oppose discriminatory activities.
Attorney General Kwame Raoul and Illinois representative Lillian Jimenez recently introduced a bill that would provide increased legal protections for immigrant and undocumented whistleblowers who want to report workplace violations. Without this bill, unprotected immigrant workers are often intimidated into silence due to fears of being reported to immigration authorities and potential deportation. House Bill 361, also known as the "Illinois Work Without Fear Act" will allow immigrant and undocumented workers to report workplace violations such as sexual harassment or wage theft without the threat of retaliation from their employers. Employers who face claims of workplace violations and immigration-status related retaliation may be subjected to investigations and potential fines. The bill is currently waiting on votes from the Illinois state representatives.
The Illinois Legislature has passed a series of bills that work to improve the working conditions and rights of all employees. The bills became effective on January 1, 2023 and are summarized below.
Illinois Senate Bill 3146 contains amendments to meal and rest breaks. The bill states that employers must provide a 24 hour break period for every 7 consecutive days worked. The bill also states that after 7.5 hours of work, employees must be provided with a 20-minute break every additional 4.5 hours worked during that shift.
During the pandemic, many employees also assumed the role of a caregiver as states passed quarantine requirements or when schools, care facilities, childcare centers or businesses closed. The U.S. Equal Employment Opportunity Commission (EEOC) recognizes that as the country moves away from the changes passed during COVID-19 and towards a "new normal," employees may still have caregiving obligations. As such, the EEOC attempts to ensure that caregivers' rights are upheld and that employers understand the responsibilities their employees hold outside of work.
On March 14, 2022, the EEOC released a document, "The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law" and an update explaining discrimination against employees and job seekers with family caregiving responsibilities.
Among other things, the document serves as technical assistance outlining how discrimination against employees and job applicants with caregiving responsibilities can violate the federal equal employment laws when based on a protected class. It provides pandemic-related examples of discrimination against caregivers. For instance, "it would be illegal if an employer refused to hire an applicant who is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19 out of fear that the employer's healthcare costs would increase." Another example, "it would be unlawful for an employer to refuse to promote a woman based on assumptions that, because she was female, she would focus primarily on caring on her children when they quarantined or attended school remotely."
If employees or job applicants with caregiving responsibilities believe that they have been discriminated against on any protected basis, they may file a charge of discrimination with the EEOC.
The Equal Pay Act of 1963 prohibits sex-based wage discrimination between men and women in the same workplace who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions. Under this Act, employers may not pay disproportionate wage to employees of the opposite sex for equal work. Since this Act's enactment, many states have passed their own equal pay laws. While it has been more than 50 years since the Equal Pay Act, wage inequality between sexes is still a relevant topic. Since the 1970s, the wage disparity has decreased. However, according to the Bureau of Labor Statistic data, in 2020, women's annual earnings were 83.3% of men's. This gap is even greater for many women of color.
Locally, the State of Illinois has updated its equal pay reporting and compliance requirements again. Effective since June 25, 2021, the Illinois Equal Pay Act has been amended to expand certain reporting requirements. Under this act, covered employers must regularly apply for an equal pay registration certificate, submit a statement certifying their compliance, submit their most recent Employer Information Report EEO-1, and compile and submit demographic data and wage records.
On the federal level, the Biden administration was expressed support with Congress's legislative focus to strengthen pay equity between men and women. The Paycheck Fairness Act addresses wage discrimination on the basis of sex. Among other things, this act limits an employer's defense that a pay difference is based only on bona fide job-related factors, enhances nonretaliation prohibitions, and makes it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee's wages. This bill also increases civil penalties for violations of equal pay provisions. This bill has passed the house of representatives and awaits the Senate's approval.
The Equal Employment Opportunity Commission (EEOC) and the U.S Department of Labor's Office of Federal Contract Compliance Program (OFCCP) launched a joint initiative called Hiring Initiative to Reimagine Equity (HIRE). HIRE is a multi-year collaborative effort to expand access to good jobs for workers from underrepresented communities and help address key hiring and recruiting challenges.
HIRE will 1) host convenings on organizational policy and practices to reimagine equity and expand opportunity in hiring, 2) identify strategies to remove unnecessary barriers to hiring and to promote effective, job-related hiring and recruitment practices to cultivate a diverse pool of qualified workers, 3) promote equity in the use of tech-based hiring systems, and 4) develop resources to promote adoption of innovative and evidence-based, recruiting and hiring practices that advance equity.
This initiative aims to expand access to good jobs by developing a better understanding among employers of the needs and challenges faced by various underrepresented communities. By addressing key hiring and recruiting challenges and identifying strategies to remove hiring barriers along the lines of race, color, ethnicity, gender, LGBTQ+ status, religion, disability, age and veteran status.
Currently, HIRE is engaging with employers, federal contractors, worker and civil rights organizations, social scientists, and others working to develop innovative recruiting and hiring initiatives. Only time will tell whether this initiative will truly address COVID-19's disproportionate impact, our country's history of systemic inequality and the struggles of underrepresented communities in the workplace.
On December 14, 2021, the U.S Equal Employment Opportunity Commission (EEOC) announced that it added a new section in its COVID-19 technical assistance clarifying under what circumstance COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA).
COVID-19 is an actual disability under the ADA if the person's medical condition or any of its symptoms is a physical or mental impairment that substantially limits one or more major life activities. This assessment is done on a case-by-case basis and is a fact specific inquiry. EEOC provides few examples of individuals who would and would not qualify to have a COVID disability. An ADA disability does not apply to an employee whose COVID-19 result in mild symptoms that resolve in a few weeks and have no other effect on the person.
Furthermore, an employee who is disabled due to COVID is only entitled to a reasonable accommodation when their disability requires it and the accommodation does not pose an undue hardship for the employer.
After filing a charge with EEOC, a notice of the charge will be sent to the employer within 10 days of the filing date. In some cases, both you and the employer will be asked to take part in mediation. In this process, a mediator will try to help achieve a voluntary settlement by discussing the concerns of both sides. Mediators don't decide or pick sides, rather they suggest ways to solve problems and disagreements.
If the charge is not sent to mediation or if the situation is not resolved, the employer is usually asked to submit a "Respondent's Position Statement." After the statement is available to you, you must provide a response within 20 days.
EEOC will investigate the charge by holding interviews of supervisors and co-workers or by asking for documents. On average, an investigation can take about 10 months to complete, depending on the information needed to be gathered and analyzed.
You can amend your charge after you file it if new discriminatory events take place. You also have the option to file a new charge of discrimination. After the amendment or new charge of discrimination is filed, the document will be sent to the employer and the new events will be investigated with the original charge.
If the charge is filed under Title VII or under the Americans with Disabilities Act, you will need a Notice of Right to Sue from EEOC before filing a lawsuit in federal court. However, you must allow EEOC 180 days to resolve the charge.
If EEOC determines that the employer violated the law, EEOC may try to reach a voluntary settlement with the employer.
On March 23, 2021, Governor J. B. Pritzker signed into law S.B. 1480, which amends certain sections of the Illinois Human Rights Act (IHRA).
Among three amendments, one change adopted by this law makes it a civil rights violation for any employer to use a conviction record when making employment decisions such as hiring, promoting, discharging, and renewing employment unless specified exceptions apply. Employers may consider a conviction record if there is a substantial relationship between the criminal offense and the employment or the employment would involve an unreasonable risk to property or to the safety or welfare of a specific individual.
If employer's preliminary employment decision is based on a person's conviction record, the employer must notify the person in writing. This notification requires specific information to be disclosed: 1) the disqualifying conviction(s) and employer's reasoning for the disqualification, 2) copy of the conviction history report and 3) explanation of the individual's rights to respond to the notice.
The employee or job applicant gets at least 5 business days to respond before employer makes a final decision. If employer makes a final employment decision based on the conviction, the employer must notify the employee in writing with the following: 1) notice of the disqualifying conviction and employer's reasoning, 2) existing procedures to challenge the decision or request reconsideration with the employer and 3) the right to file a charge with the Illinois Department of Human Rights.
This change imposes a firmer requirement on the use of a conviction record when employers make employment related decisions.
In early April 2017, the 7th Circuit Court of Appeals in Chicago ruled that employer discrimination against an employee's sexual orientation is illegal. In an 8-3 decision, the 7th Circuit held that Title VII of the Civil Rights Act of 1964 affords the same protections to sexual orientation as it does to sex.
Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate on the basis of race, religion, national origin, color, and sex. For many years, the 7th Circuit understood that Title VII's prohibition on discrimination on the basis of sex excluded sexual orientation. While the Supreme Court of the United States never expressly answered this question, the Supreme Court's recent decisions regarding sex discrimination convinced the 7th Circuit to look at the language of Title VII with fresh and modern eyes.
The Supreme Court's decisions over the last two decades broadly interpreted discrimination on the basis of sex to include interracial marriages, sexual harassment in the workplace (including same-sex sexual harassment in the workplace), and discrimination based on gender or sex stereotyping. The 7th Circuit used the Supreme Court's framework and analysis when reviewing Hively v. Ivy Tech Community College of Indiana.
In Hively, the Plaintiff was an openly married lesbian woman who worked for the Defendant as a part-time Adjunct Professor for fourteen years. Between 2009 and 2014, the Plaintiff sought and applied for a full-time position at Ivy Tech at least six times. In 2014, her part-time contract was not renewed and the Plaintiff filed a charge with the EEOC, believing that the Defendant was spurning her employment opportunities because of her sexual orientation.
The 7th Circuit interpreted the language of Title VII's prohibition on discrimination on the basis of sex to mean that the Plaintiff was being disadvantaged because she was a woman and did not conform to "gender stereotypes." Simply put, if the Plaintiff was born a man but everything else stayed the same, the Defendant would have not discriminated against her. The 7th Circuit believed allowing a policy on sexual orientation discrimination was based on assumptions about what was considered proper and normal behavior for someone of a given sex. The 7th Circuit reasoned this can no longer stand in light of the Supreme Court's 2015 decision regarding same-sex marriages as a fundamental liberty that is protected by the Equal Protection Clause and Due Process Clause of the United States Constitution.
This is a landmark and historical ruling for the protection of sexual orientation in the workplace.
Employers Employing More Than 50% in The H-1B or L-1 Classification To Pay Additional $2,000 or $2,250 Filing Fee
Effective August 14, 2010 through September 30, 2014, employers that employ more than 50% of its employees in the H-1B or L-1 visa classifications face an additional filing fee of $2,000 or $2,250 for each H-1 or L-1 application. The new fees apply to petitioners with a total of 50 or more employees. The fee is required for an initial application to employ an alien or change employers in one of these categories.
September 2010 - Black Dockworkers and Janitors Subjected to Nooses, Racist Graffiti, and Adverse Working Conditions
CHICAGO – Federal Magistrate Judge Susan E. Cox has granted preliminary approval to a $10 million, five-year consent decree in connection with the race harassment and discrimination lawsuit against Roadway Express and YRC, Inc that had been brought by the EEOC. In addition, the decree enjoins future discrimination at the facilities and requires the appointment of a monitor to oversee its implementation.