A recent assessment of the Equal Employment Opportunity Commissions 2013 actions points to a trending change among discriminatory enforcement in disability policies that will most likely lead to additional headaches among companies trying to stay above water.
The EEOC noted late last year that it received a total of 93,727 private sector charges related to discrimination during the fiscal year that ended Sept. 30, 2013, a 6,000 charge decrease. Also, 14,000 fewer charges were resolved, which the Commission credits to the federal government shutdown, a time period during which 21 enforcement days were lost.
However, according to Littler Mendelsons analysis, the EEOC made up for lost time when it recovered $40 million for charging parties and others during the fiscal year, which was a $4 million increase.
Last year, the EEOC said it was focusing its actions on specific areas that can stop and remedy unlawful employment discrimination so that the nation can achieve our ultimate vision of justice and equality in the workplace. The Commissions strategic plan for fiscal year 2012-2016 includes strategic law enforcement, education and outreach.
Barry Hartstein, a shareholder in the Chicago office of law firm Littler Mendelson, and co-chair of its hiring and background check practice, said at the time that several priorities will become focused. He noted that systemic issues will likely circle around hiring and recruiting, harassment, emerging and developing issues, equal pay, immigrant and vulnerable workers' rights and preserving access to the legal system.
As for what occurred in 2013, Hartstein says that it is no secret where the EEOC is putting its time and attention, referencing the systemic issue and priorities over hiring practices. But he notes that the EEOC had some some false starts in getting criminal discrimination. The annual report lists that only 300 systemic investigations were completed.
Hartley references EEOC cases against Peoplemark, Kaplan Higher Learning Education Corp. and Freeman, where the Commission charged that the employer was not hiring applicants due to criminal and credit history.
The court has not been particularly receptive to the EEOCs approach, Hartstein says. The EEOC is obviously still in the learning stages of working through that area.
While the EEOC is still building up its focus area, region was not a specific determining factor in equal employment actions. Littler says EEOC lawsuits were not concentrated in one specific area or region. The top spot in 2013 was North Carolina with 15 lawsuits, Illinois and Maryland followed with 13 and Texas reported 10 lawsuits.
The global employment and labor law practice says that multiple claims, retaliation and sex discrimination and related harassment actions included more than 30 lawsuits each in 2013. However, claims linking the Americans with Disabilities Act reached 51 lawsuits.
Disability benefits and ACA
While the EEOC has been reporting reasonable cause findings in more than 35% of its systemic investigations, which point to more risk for the employer community, actions related to the ADA consumed 51 of the 131 filed merit lawsuits.
In terms of employee benefits, this could be a harrowing time for employers looking to comply with the ADA and federal employment policies.
This is an area that the EEOC repeatedly has said in no uncertain terms that even [if] an assuming employer tries to put together a generous leave policy to the extent that you have blanket rules that if someone has been off for a period of time, they may be subject to a separation, Hartstein explains, while noting that EEOC will undoubtedly challenge the practice.
He adds that any fixed timeline will not be acceptable. You still need to engage and individualize the process on a case by case basis.
But as ACA pushes employers with 50 or more employees to offer health coverage to its workers starting in 2015, Hartstein says he is concerned when it comes to wellness programs and efforts to control costs.
They will take the view that wellness programs will not withstand scrutiny, unless they are voluntary, Hartstein says. Theyre going to potentially question and challenge those sorts of practices.
Looking forward, Hartstein predicts that EEOC will likely follow policy issues focused on pay issues as per President Barack Obamas request.
President Obama has talked in the last couple of years about the importance and focus on equal pay issues, and so I think we will see more activity, Hartstein says. He suspects that this could lead to more sharing of information and joint-efforts by the EEOC and the OFCCP [U.S. Department of Labor's Office of Federal Contract Compliance Programs].
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