Two EEOC regional attorneys, panelists at a Practising Law Institute conference last week, discussed a number of issues which should be of concern to employers regarding the EEOC’s future plans and practices.
Among a wide range of topics, they told the gathering that:
1. The EEOC continues to emphasize systemic litigation, or nationwide/regionwide class cases, because such cases mean “getting a bigger bang for the taxpayer's buck.” Case filings are down at the EEOC, partly because “we are grossly understaffed,” and because of the EEOC's focus on systemic litigation.
2. A strategic enforcement plan (“SEP”) has been drafted by the EEOC which currently has three guiding principles: (1) targeted enforcement; (2) an integrated approach to public sector and private sector enforcement; and (3) accountability. The EEOC considers four primary factors in deciding whether to pursue litigation on a filed charge:
-- does the case potentially affect a large number of claimants;
-- what area of the law does the charge involve;
-- does the charge allege bias against a vulnerable worker or group of workers; and
-- might the case have a significant impact in shaping the law on a particular subject.
3. The EEOC's current litigation priorities are on cases which:
-- allege systemic discrimination, especially in recruitment and hiring;
-- involve immigrant, migrant, or other vulnerable workers;
-- implicate emerging legal issues, including under the ADA Amendments Act, discrimination against members of the lesbian, gay, bisexual, and transgender (LGBT) community, and forced unpaid leave as an accommodation for pregnant workers;
-- preserve individuals' access to the legal system, such as cases involving employers' attempted curtailment of employee job rights, including through overbroad waivers; and
-- combat sexual harassment.
4. The EEOC will likely target the following policies and practices:
-- “fixed-leave” policies, which are unlawful under the ADA amendments, as well as what is known as “100-percent healed policies,” in which an employer requires an employee to be 100 percent healed before returning to work from medical or disability leave. One EEOC attorney said that employers have implemented these types of policies to provide more rigid rules for supervisors to follow, “But they won't work, however. We will be litigating these cases.”
-- using a standard one-size fits-all form request for ADA accommodations. Written accommodation forms may be permissible, but where a standard form is the only acceptable means of requesting an accommodation this runs afoul of the law.
-- Genetic Information Nondiscrimination Act (“GINA”) cases, where the EEOC has made “cause findings” on a number of charges, although most have settled.
-- the use of criminal records in hiring, which the EEOC may pursue as systemic cases.
5. There likely will be no increase in Equal Pay Act cases since, as one EEOC attorney noted, low-income workers can receive better damages under Title VII, which permits compensatory awards.
We will keep you updated on the cases which the EEOC files and whether we detect a pattern or an area which the EEOC is targeting