In our blog of December 17, 2013 we reported that the EEOC continues to implement its Strategic Plan for FY 2012-2016 and began implementing its Strategic Enforcement Plan (“SEP”). See: http://www.eeoc.gov/eeoc/plan/index.cfm.
EEOC Zeros In On Pregnancy and Disability Discrimination
On October 3, 2013, we wrote that in furtherance of the SEP, “two EEOC officials told a PLI audience as to what areas the EEOC intended to target in its future litigation. … the EEOC said that it would file more suits relating to: vulnerable workers (i.e., immigrants and migrants); emerging legal issues under the ADA Amendments Act and ADA accommodations, discrimination against members of the lesbian, gay, bisexual, and transgender (“LGBT”) community; accommodation for pregnant workers; sexual harassment; Genetic Information Nondiscrimination Act (“GINA”) cases; and the use of criminal records in hiring (emphasis added).”
Indeed, when the EEOC closed fiscal year 2013, it appeared to us that of the lawsuits filed in the last year by the EEOC, two areas stand out: more than a third of the EEOC’s filed lawsuits related to the ADA, and a third came from sex and pregnancy discrimination claims. We then issued our own subtle warning: “Got that employers? The vast majority of recent EEOC lawsuits have dealt with ADA ,and sex and pregnancy discrimination claims.”
The EEOC has now announced the settlement of two lawsuits: one a pregnancy case, and the other a disability case. Surprised?
Can An Employer Ask An Applicant If She Is Pregnant?
In the first case, an Annapolis internal medicine practice agreed to pay $22,500 – it was alleged that it hired a medical receptionist who told a supervisor of her pregnancy and asked her not to disclose this. “However, management failed to honor her request and also began subjecting her to unequal treatment. When [she] complained, Annapolis Internal Medicine gave [her] a counseling report about ‘the value of being honest’ instead of addressing her concerns about discrimination,” and “continued to treat [her] more harshly because of her pregnancy” and fired her.
Takeaway: The EEOC District Director said that “An employer should not ask an applicant during the interview whether she is pregnant, and an applicant absolutely has no obligation to disclose her pregnancy during the interview or early in her employment — it is simply not relevant to the hiring decision or her job.”
Employer: Applicant With Prostate Cancer “Would End Up Wearing Diapers”
In the second case, a Chicago company which provides logistical services to the refrigerated and frozen food markets agreed to pay $80,000 for refusing to hire an applicant with prostate cancer. It was reported that the company owner made “derogatory statements” about the applicant, such as “that he could not hire [him] because he had cancer,” and, in a final sensitive touch, said that “in a best-case scenario, [he] would end up wearing diapers.”
An EEOC attorney commented: ”There is hardly a family in America that has not been touched by cancer in one form or another. Through the crucible of that experience, those families and most employers have learned that cancer patients and survivors can and do work, and work well.”
Got that employers? The vast majority of recent EEOC lawsuits have dealt with ADA ,and sex and pregnancy discrimination claims.