What to Expect from the EEOC in 2013

At the Gibbons Second Annual Employment & Labor Law Conference in February, one panel discussion focused on the Equal Employment Opportunity Commission’s (“EEOC”) recent activity and enforcement priorities. Among the panelists were Corrado Gigante, Director of the Newark Area Office of the EEOC, and Gibbons Directors, Christine Amalfe, Kelly Ann Bird and Susan Nardone.

The panel discussed the EEOC’s late 2012 release of its Strategic Enforcement Plan for the period 2012-2016. The large number of individual, private-sector charges has forced the EEOC to develop a strategic approach to eradicating unlawful employment discrimination. The Plan calls for an “integrated, holistic approach to enforcement from beginning to end, without separating the investigation and conciliation stage of the EEOC’s work from its litigation stage.” According to the Plan, the EEOC will focus on a number of areas, including the protection of lesbian, gay, bisexual and transgender (LGBT) employees, pregnancy discrimination, disability discrimination and reasonable accommodation, equal pay, and recruitment and hiring practices.

Director Gigante noted that while the EEOC continues to address individual claims and charges, going forward it will focus on those matters likely to achieve a broader remedial impact, such as cases involving systemic discrimination. The EEOC will use individual complaints as a basis for conducting a more widespread investigation of the company involved to root out other potential problems. Additionally, Director Gigante indicated that the EEOC is teaming up with other federal agencies, including the Department of Labor, the Department of Justice, and the Office of Federal Contract Compliance Programs, to share information.

The EEOC’s focus on the protection of LGBT employees follows its April 2012 decision in Macy v. Holder, Appeal No. 0120120821 (April 20, 2012), about which we previously blogged, in which the EEOC determined that Title VII affords protection to these employees. The EEOC also takes the position that discrimination based on sex includes discrimination based on a failure “to conform to socially-constructed gender expectations.”

Director Gigante cited the rise in pregnancy-related charges filed by older women and discussed the interplay between the Americans with Disabilities Act, the Americans with Disabilities Act Amendments Act, the Pregnancy Discrimination Act, and the Family Medical Leave Act in pregnancy-related discrimination claims. The EEOC is particularly interested in cases alleging failure to accommodate pregnant employees.

The panel also discussed disability discrimination and failure to accommodate claims, with a particular focus on no-fault attendance and fixed leave policies, both of which have been the subject of litigation by the EEOC. Employers should carefully review their attendance and leave policies to ensure that they do not run afoul of the anti-discrimination laws. Director Gigante emphasized that employers should determine the individual needs of the disabled employee in order to identify reasonable accommodation. While it is important to initiate the accommodation process to ensure compliance, Director Gigante noted that the employer need not accept the specific accommodation requested by the employee and that undue hardship to the employer remains a valid consideration.

With respect to recruitment and hiring, Director Gigante reiterated the EEOC’s continuing concern with facially-neutral pre-employment tests and requirements that have a disparate impact on employees belonging to a protected class. Moreover, employers can expect close scrutiny if they elect to use background checks and criminal history reports to screen applicants. It is critical that employers be familiar with the EEOC’s April 2012 guidance on the use of criminal background checks, including the need to perform individualized assessments, and with any state or local laws that may impose further limitations. In addition, the EEOC’s Plan specifies that it will specifically target a number of additional discriminatory recruitment and hiring practices, including exclusionary practices and policies, channeling/steering individuals into jobs due to their status in a particular group, and restrictive application processes.

For information on how employers can protect their businesses and comply with the law, or for an audit of workplace policies and practices, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

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