Heyl Royster

 


Heyl Royster

 

Did You Know??? EEOC Enforcement Trends

8/4/14

Laws Enforced by EEOC

The EEOC enforces Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination and Employment Act of 1967, the Rehabilitation Act of 1973, Title I of the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990 as well as the ADA Amendments Act of 2008, and the Genetic Information and Non-Discrimination Act of 2008 ("GINA"). The EEOC received roughly 100,000 charge receipts for each of the years 2010, 2011, and 2012. Charges received by the EEOC for the fiscal year 2013 dropped below 95,000. The EEOC reported the percentage of the types of charges received in fiscal year 2013: nearly 40 percent were based on retaliation, less than 35 percent were based on race, less than 30 percent were based upon sex discrimination, disability and age discrimination charges ranged between 20 and 25 percent and national origin, religion and GINA claims constituted 10 percent or less of the discrimination.

Hot Button Areas

Hot button areas that will draw the EEOC's attention in the coming years include Americans with Disabilities Act cases as well as employer's use of arrests and convictions when hiring or terminating employees. It will also focus on gender stereotyping and national origin cases.

Broad EEOC Litigation Powers

No class certification is required, and cases brought by the EEOC are pursued in the public interest. The EEOC often asserts that it is the master of its own case.

The EEOC launched its systemic initiative to prevent discrimination by focusing on employer practices in recruiting, hiring, promoting, training, and retaining employees. Its objectives and priorities for strategic enforcement are for the years 2013 to 2016. The EEOC will focus on eliminating barriers in recruitment, hiring, and protecting immigrants, migrants, and other vulnerable workers. Special attention will be given to gender identity issues, enforcement of equal pay laws, and preventing harassment through systemic enforcement.

FMLA/ADA Focus of the EEOC

The focus of the EEOC for the future will be on the Family Medical Leave Act ("FMLA") and its interplay with the Americans with Disabilities Act ("ADA"). Employers focusing on FMLA issues who ignore the ADA and reasonable accommodation issues will be scrutinized by the EEOC investigators. The EEOC continues to find employers lacking ADA policies, mechanisms, or procedures to allow reasonable accommodation or to allow for leave as an accommodation. It also finds a continued failure to engage in the interactive process. The EEOC recommends employers respond in the following manner:

  • Evaluate blanket policies or practices
  • Review maximum leave and attendance policies to ensure there are mechanisms that allow for an interactive process
  • Have ADA policies and procedures
  • Have an accommodation process that is flexible and a mechanism for tracking requests
  • Conduct effective training to ensure managers and HR professionals understand the interactive processes

The EEOC's Focus on the Use of Arrests and Conviction Records

The EEOC believes that broad or blanket policies that condition employment as a result of an arrest or a conviction have an adverse impact on African-Americans and Hispanics. The EEOC will closely examine blanket policies. It recommends the incorporation of individual assessments. It will focus on job categories when analyzing the use of arrest and conviction records.