WESA AND THE MINNESOTA HUMAN RIGHTS ACT. Minnesota Department of Human Rights

Transcription

1 WESA AND THE MINNESOTA HUMAN RIGHTS ACT Minnesota Department of Human Rights

2 5/7/2015 MDHR 2 Background Governor Mark Dayton signed WESA into law on May 11, WESA amended certain aspects of Minn. Stat. 363A, the Minnesota Human Rights Act (MHRA), as well as other state laws.

3 5/7/2015 MDHR 3 MDHR Overview The Minnesota Department of Human Rights (MDHR) is charged with the responsibility of eliminating unlawful discrimination in the workplace under the MHRA. Slightly more than 60% of the charges filed with MDHR in 2014 concerned employment discrimination. The three most common employment discrimination charges in the last six months of 2014 were: disability (28%), sex (23%) and race (22%).

4 5/7/2015 MDHR 4 MDHR Overview MDHR is also charged with the responsibility of ensuring that certain businesses that contract with the state implement good faith efforts to employ minorities, women, and individuals with disabilities. MHRA requires that businesses obtain a workforce certificate from the MDHR Commissioner prior to executing a contract with the state.

5 5/7/2015 MDHR 5 WESA Overview of Changes to MHRA Familial status added as protected class in area of employment Pregnancy accommodation protections added to DLI; DLI & MDHR now both have oversight over pregnancy accommodation issues Equal Pay Certificate required for state contractors with contracts likely to exceed $500,000

6 5/7/2015 MDHR 6 Familial Status The section of the MHRA prohibiting employment discrimination, Minn. Stat. 363A.08, was amended to include familial status as a protected class. Familial status under the MHRA provides protection for a: Parent, guardian or designee of a parent or guardian that lives with at least one minor or A person who is pregnant or is in the process of securing legal custody of a minor

7 5/7/2015 MDHR 7 Familial Status How is an employee defined under the MHRA? Employee means an individual who is employed by an employer and who resides or works in this state. Employee includes a commission salesperson, as defined in section , who resides or works in this state. See, Minn. Stat. 363A.03, Subd. 15.

8 5/7/2015 MDHR 8 Familial Status How many employees must an employer have to fall within the employment provision of the Act concerning familial status? Employer includes all employers that have one or more employees. See, Minn. Stat. 363A.03, Subd. 16.

9 5/7/2015 MDHR 9 Familial Status An employer can violate the MHRA, on the basis of an individual s familial status, when it: 1. Takes adverse action against the individual, 2. Treats an individual affected by pregnancy or childbirth differently than individuals similar in ability or inability to work, 3. Harasses or creates a hostile environment for the individual, 4. Utilizes a policy that has a disparate impact on such individuals, or 5. Denies the individual a right under the law.

10 5/7/2015 MDHR 10 WESA Pregnancy Accommodation Minn. Stat. 181 WESA created the right to a private cause of action for injunctive relief, damages and attorney fees, Minn. Stat , for employees against their employer for violations of the following new or amended provisions of Minnesota law: Nursing mothers, Minn. Stat Pregnancy accommodations, Minn. Stat Pregnancy and Parental leave, Minn. Stat

11 5/7/2015 MDHR 11 WESA Pregnancy Accommodation Minn. Stat. 181 The new provisions in Minn. Stat. 181 add to the continued protections for women under the Minnesota Human Rights Act. Minn. Stat , Subd. 2 clarifies that the new accommodation protections shall not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish coverage of... any other law.

12 5/7/2015 MDHR 12 MDHR Pregnancy Accommodation Landscape Sex Familial Status Disability

13 5/7/2015 MDHR 13 Sex Discrimination MHRA prohibits employers from discriminating against women on the basis of their gender and on the basis of their ability to become pregnant. Minnesota courts have interpreted the MHRA generally consistent with Title VII and the Pregnancy Discrimination Act. On July 24, 2014, the EEOC issued guidance to employers entitled Pregnancy Discrimination and Related Issues.

14 5/7/2015 MDHR 14 Sex Discrimination An employer can violate the law under the MHRA or Title VII, on the basis of an individual s capacity to become pregnant, when it: 1. Takes adverse action against the individual, 2. Treats the individual differently than individuals similar in ability or inability to work, 3. Harasses or creates a hostile environment for the individual, 4. Utilizes a policy that has a disparate impact on such individuals, or 5. Denies the individual a right under the law.

15 5/7/2015 MDHR 15 Disability Discrimination MHRA prohibits discrimination against employees who are, have a record of, or are regarded as having a disabling impairment. Employers with more than 15 employees are required to accommodate an employee who has a pregnancy-related impairment that rises to the level of a disability unless the accommodation imposes an undue hardship on the employer. See, Minn. Stat. 363A.08, Subd. 6.

16 5/7/2015 MDHR 16 Enforcement Issues - DLI v. MDHR DLI MDHR Employer Size 21+ Gender claims, all employers, disability claims, 15+ Employee Tenure 12 months n/a Statute of Limitation 2 years 1 year Reprisal/Retaliation requesting employee Remedies injunctive relief; penalty; individual remedies only in court action any individual involved individual remedies for compensatory, punitive, & mental anguish damages, attorney's fees, injunctive relief; penalty

17 5/7/2015 MDHR 17 MDHR Partnership with DLI The Minnesota Department of Labor and Industry (DLI) and MDHR are working together to ensure that all provisions of WESA that concern protections afforded to pregnant workers, nursing mothers, and workers that seek pregnancy and parental leave are enforced.

18 5/7/2015 MDHR 18 MDHR Collaboration with EEOC MDHR is also partnering with the EEOC on the EEOC s following strategic enforcement initiatives: 1. Eliminate recruiting and hiring barriers 2. Protect vulnerable workers 3. Enforce equal pay laws 4. Ensure pregnancy accommodations are provided

19 5/7/2015 MDHR 19 Equal Pay Certificate - Background Since 1969, the Minnesota Human Rights Act (the Act) has afforded protection for women from being paid less than men absent a legitimate, non-discriminatory reason. Nonetheless, pay disparities continue to persist at a systematic level where women make an average of 80 cents to the dollar paid to men.

20 5/7/2015 MDHR 20 Equal Pay Certificate - Background The WESA amendments to the MHRA require state contractors to secure an Equal Pay Certificate as of August 1, The requirement for the new Equal Pay Certificate can be found in the Minnesota Human Rights Act at Minn. Stat. 363A.44

21 5/7/2015 MDHR 21 Equal Pay Certificate The Equal Pay Certificate law requires businesses with 40 or more employees, seeking state contracts of over $500,000 to certify: Compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the MN Human Rights Act, and the MN Equal Pay for Equal Work Law. The average compensation for the company s female employees is not consistently below the average compensation for male employees within each of the major categories in the EEO-1 report. Making hiring, retention and promotion decisions regardless of gender Promptly correct wage and benefit disparities. Evaluate wages and benefits to ensure compliance.

22 5/7/2015 MDHR 22 Equal Pay Certificate The contractor s certification doesn t establish it is actually in compliance with the applicable equal pay laws. See, Minn. Stat. 363A.44, Subd. 2(c). MDHR may audit the contractor to evaluate its efforts to comply with the applicable laws. See, Minn. Stat. 363A.44, Subd. 8.

23 Minnesota Department of Human Rights What Contracting Entities are Covered State of Minnesota Departments and Agencies Metropolitan Council Metropolitan Airports Commission Minnesota Sports Facilities Authority Metropolitan Mosquito Control District. 23

24 Jan. 28, 2015 Minnesota State Ethnic Councils 24 Exempt Contracts The following contracts that provide goods and services are exempt: 43A 62A, 62C, 62D, and 62E 256B, 256I, and 256L 268A State Board of Investment Contracts under , Subd Id

25 Minnesota Department of Human Rights Obtaining an Equal Pay Certificate Contractors must submit: The $150 application fee A statement of equal pay compliance signed by the organization s Chief Executive Officer or Chairperson of the Board. 25

26 Minnesota Department of Human Rights Does the Department have a sample equal-pay compliance statement that contractors can use? Yes. The Department has an equal pay certificate application form that contractors can submit as part of their application for an Equal Pay Certificate. 26

27 Minnesota Department of Human Rights Did WESA immediately amend the Human Rights Act when it was signed? No. WESA provisions concerning Equal Pay Certificates did not go into effect until August 1, All solicitations on or after August 1, 2014 are subject to the new Equal Pay Certificate Contracts executed before August 1, 2014 do not require an Equal Pay Certificate. 27

28 Jan. 28, 2015 Minnesota State Ethnic Councils 28 Date First Report Due On January 31, 2016, the Department shall submit a report to the governor and the chairs and ranking minority members of the committees in the senate and the house of representatives with primary jurisdiction over the Department concerning the activities in the area of equal pay. The Department shall subsequently submit reports every even number calendar year on January Minn. Stat , Subd. 10

29 Jan. 28, 2015 Minnesota State Ethnic Councils 29 Elements of the Report The Department s report shall: Indicate the number of equal pay certificates issued The number of audits conducted The processes used by contractors to ensure compliance with subdivision 2, paragraph (a) Set forth a summary of its auditing efforts 3 3 Id

30 Jan. 28, 2015 Minnesota State Ethnic Councils 30 Consult with Economic Status of Women The Department shall consult with the Legislative Coordinating Commission Office on the Economic Status of Women in preparing the report. 4 4 Id

31 Jan. 28, 2015 Minnesota State Ethnic Councils 31 Revoking a Certificate The Department may revoke a certificate if: Fails to make good faith efforts to comply with Title VII, Equal Pay Act, MHRA, or Minnesota Equal Pay Has multiple violations of Title VII, Equal Pay Act, MHRA, or Minnesota Equal Pay Fails to make good faith efforts to comply with this section of the Act Prior to revoking the certificate, the Commissioner must first seek to conciliate with the business regarding wages and benefits due to employees 5 5 Minn. Stat , Subd. 4

32 Jan. 28, 2015 Minnesota State Ethnic Councils 32 Commissioner may revoke a contract The Commissioner may revoke a contract if a contract is awarded to a business and: (1) The Business does not have an equal pay certificate (2) The Business is not in compliance with subdivision 2, paragraph (a) Prior to taking action to void the contract, the Commissioner must notify the contract award entity. 6 6 Minn. Stat , Subd. 5(a)

33 Jan. 28, 2015 Minnesota State Ethnic Councils 33 Contracting entity may abridge or terminate a contract A contracting entity may abridge or terminate a contract awarded upon receiving notice that the commissioner has suspended or revoked the contractor s equal pay certificate. 7 7 Minn. Stat , Subd. 5(b)

34 Jan. 28, 2015 Minnesota State Ethnic Councils 34 Administrative Review A contractor may obtain an administrative hearing by filing a written request for hearing 20 days after notice by the (1) commissioner of suspension or revocation of the certificate or (2) contract award entity s decision to abridge or terminate the contract. 8 8 Minn. Stat , Subd. 6

35 Jan. 28, 2015 Minnesota State Ethnic Councils 35 Technical Assistance The Department must provide technical assistance to any business that requests assistance regarding Minn. Stat. 363A Minn. Stat , Subd. 7

36 Jan. 28, 2015 Minnesota State Ethnic Councils 36 Audit The Commissioner may obtain the following information from a contractor with respect to the employees expected to perform work under the contract in each of the major job categories in the EEO-1 report Minn. Stat , Subd. 8

37 Jan. 28, 2015 Minnesota State Ethnic Councils 37 Audit (1) Number of male employees (2) Number of female employees (3) Average annualized salaries paid to male employees and female employees within each major job category (4) Information on performance payments, benefits or other elements of compensation (5) Average length of service for male and female employees (6) Other information identified by the contractor or commissioner needed to determine compliance Id

38 Jan. 28, 2015 Minnesota State Ethnic Councils 38 Government Data Commissioner s decision to issue, not issue, revoke or suspend an equal pay certificate is public data. Data submitted to the commissioner related to equal pay certificates are private data on individuals or nonpublic data with respect to persons other than department employees Minn. Stat , Subd. 9

39 DATE TITLE OF EVENT 39 The Equal Pay Act: Contractor Defenses In establishing a valid defense to differential pay, a contractor faces a heavy burden. See, Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 SRN/SER, 2014 WL (D. Minn. Dec. 31, 2014). MDHR Investigators should be prepared to seek solid documentation to support a contractor s defense. A defense based on any other factor than sex must nonetheless be job-related. See, Id. MDHR Investigators should closely scrutinize this defense.

40 Jan. 28, 2015 Minnesota State Ethnic Councils 40 Contact the Minnesota Department of Human Rights For more information, visit or call: TTY