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.”
- The EEOC is quite serious about enforcing its new Guidance on Criminal Background Checks.
Employers would be well advised to take at least the following actions:
- 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.
- Take EEOC Charges more seriously, even claims that are frivolous on their face, if they involve “policy” issues.
Happy New Year.
Howard Mavity 