Employers Should Take the EEOC More Seriously In 2013

Some executives and managers consider EEOC charges to be a cost of doing business.   Based on past experience, they do not treat Discrimination Charges with the same concern as other legal matters.  The EEOC’s current focus on Systemic Discrimination and the newly released  EEOC 2013 Strategic Plan suggest that employers ought to become much more concerned about the EEOC’s actions.

 

Today, as the tumultuous 2012 staggers to a weary close, I read the following list of articles on BNA’s excellent EEO Compliance Newsletter, which set out some potentially costly trends….

 

 

EEOC Approves Final Strategic Plan Setting Enforcement Priorities for Next Four Years

The Equal Employment Opportunity Commission has approved a strategic plan to establish the agency’s national enforcement priorities for fiscal years 2013 to 2016 and to better integrate enforcement responsibilities among the agency’s national and field offices.

Retail Chain to Pay $2 Million to Settle ADA Claims

Dillard’s Inc. has agreed to pay $2 million and institute sweeping internal policy changes to settle a long-standing class action filed by the Equal Employment Opportunity Commission over the national retail chain’s alleged practice of requiring employees to disclose confidential medical information before being approved for sick leave. …

EEOC’s Systemic Program Set to Fill Gap in Private Class Actions, Attorneys Predict

Management attorneys participating in a webinar predicted that the Equal Employment Opportunity Commission’s systemic program attorneys will pursue more cases and partnerships with the plaintiffs’ bar because of a 2011 decision by the U.S. Supreme Court.

Civil Rights Agency Reviews EEOC Guidance on Employers’ Use of Criminal Histories

An Equal Employment Opportunity Commission enforcement guidance under Title VII of the 1964 Civil Rights Act regarding potential discrimination resulting from employers’ use of arrest and conviction records in employment decisions drew both praise and derision at a U.S. Commission on Civil Rights briefing. …

 

Takeaways….

 

  • Employers may not be especially concerned about individual EEOC charges, but they should be downright scared by the disruption,  corporate wide exposure,  and enormous legal fees threatened by EEOC Systemic Investigations, which scrutinize corporate wide POLICIES, not just a claim or two of individual discrimination.  Defending agisnt such an investigation is a mess.  

 

  • The U.S. Supreme Court Dukes decision  made it harder for Plaintiff lawyers to shotgun employers with multi-thousand member class actions based on a handful of discrimination claims.  Many attorneys expect the EEOC to try to use the Agency’s ability to carry out far-ranging systematic investigations of leave, criminal background check, hiring practices and other procedures.

 

  • As an example, consider the just-announced Companywide EEOC Settlement based on an employer’s requirement for certain confidential medical information before providing sick leave.  Does this practice sound familiar?

 

 

  • The EEOC also challenged caps on sick leave, alleging that the Company’s policies violated the ADA’s requirement of an “interactive process.”

 

 

 Employers would be well advised to take at least the following actions:

 

  1. Review policies involving: recruiting, hiring, sick leave and other leave, background checks (especially Criminal Background Checks), return-to-duty,  and Job Descriptions/Essential Functions/Functional Evaluations/Physical Exams.

 

  1. Take EEOC Charges more seriously, even claims that are frivolous on their face, if they involve “policy” issues.

 

 Happy New Year.

 

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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