Our Firm was recently fortunate to have a Senior Trial Attorney from the EEOC, Jeffrey Burstein, speak to us about the EEOC’s national enforcement priorities. We wanted to thank Mr. Burstein for his time and willingness to respond to questions. We also wanted to pass along these priorities to you.
1. Eliminating Barriers in Recruitment and Hiring — Although background check issues still seem to be lingering as the EEOC announced two high-profile lawsuits last summer against employers’ use of such checks, an interesting new recruiting issue is one of the EEOC’s focuses: steering. “Steering” involves guiding minority applicants to lower paying positions or positions with less promotional opportunities.
2. Protecting Immigrant, Migrant and Other Vulnerable Workers — We have written in the last several days about this one. (See June 5th post on Thai farmworkers).
3. Addressing Emerging and Developing Issues – This is sort of the catchall category and includes sex stereotyping claims. Although an issue, employers are more likely to face scrutiny over another “emerging issue,” which centers around ADAAA policies. We were advised that the EEOC is taking a hard look at employers with “100% healed” policies or fixed leave of absence policies. In the latter case, the EEOC takes the position that even where such policies are extraordinarily generous, having an absolute cut-off where leave can never be granted beyond that date violates an employer’s duty to engage in the interactive process.
4. Enforcing Equal Pay Laws – the Equal Pay Act was the subject of a lot of attention when President Obama first took office. Several bills were quickly introduced in Congress to make it more difficult for employers to defend against such claims by, for example, broadening the definition of what positions are “similarly situated.” Those bills died as the economy was floundering, but there seems to be a renewed push in this area.
5. Preserving Access to the Legal System – We may have buried the lead with this one. The EEOC is taking a hard look at employers’ waivers and challenging what they feel are overly broad provisions that prevent an employee from suing the employer or soliciting other employees to sue the employer. Most employers, however, logically do not want to pay an employee only to have them still have the ability to sue. Litigation was filed a couple of months ago by the EEOC against a national retailer challenging similar provisions in its releases. We’re keeping an eye on this one.
6. Preventing Systemic Harassment – These are “class” and multiple plaintiff cases and are going to be the expensive ones for employers to defend.
In the words of Sgt. Phil Esterhaus on Hill Street Blues: “Hey, let’s be careful out there.”