EEOC Initiatives and Trends - National Employment Law Council

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EEOC Initiatives
& Trends
Presented By:
Charles H. Wilson
Agenda
1. Recent Charge Activity and Statistics
2. EEOC’s Strategic Enforcement Plan
3. Noteworthy EEOC Cases
Energized EEOC
Number of Charges
120,000
100,000
80,000
60,000
Charges
40,000
20,000
0
FY
2006
FY
2007
FY
2008
FY
2009
FY
2011
FY
2012
Energized EEOC
• Backlog reduced by nearly 8,000
• Resolved 111,139 FY 2012 charges
• Larger recoveries
Energized EEOC
Systemic Investigations
2012
2011
Completed
240
235
Settlements
65
35
Reasonable Cause
94
96
Lawsuits
12
23
Money Recovered
$36.2M
$9.6M
EEOC Litigation
• Texas is “top 5” state for EEOC suits.
• Texas received the most charges (9,952 –
10% of total charges)
• 44% of 2012 EEOC cases were class or mass
actions.
• Most were ADA and Title VII cases
EEOC Litigation
Claim
Lawsuits
Disability Discrimination and Harassment
45
Retaliation
26
Sexual Harassment
23
Race Discrimination and Harassment
14
Age Discrimination
12
Pregnancy Discrimination
11
Religious Discrimination and Harassment
11
National Origin and Harassment
7
EEOC’s Strategic Enforcement Plan
Strategic Enforcement Plan
• Approved on December 17, 2012
• Road Map of EEOC’s Focus During
Next Three Years
• Requires District & Field Office SEPs by
March 29, 2013
Strategic Enforcement Plan
1.
2.
3.
4.
5.
6.
Hiring and Recruitment Discrimination
Emerging Theories
Retaliatory Practices or Policies
Equal Pay Act Claims
Systemic Harassment
Human Trafficking
Strategic Enforcement Plan
Top Three Areas
Hiring Discrimination
Disability Discrimination
Disparate Impact Age Discrimination
Hiring Discrimination
EEOC will target screening tools that
disproportionately impact racial, ethnic
and religious groups, older workers,
women and disabled applicants.
Criminal Background Checks
Pre-employment tests
Drug tests
Hiring Discrimination
Criminal Background Checks
Convictions must be job related and
consistent with business necessity
Related to the job
Opportunity to explain
Hiring Discrimination
Arrests
Can’t be used alone
Underlying conduct can be used
Misconduct must be job related and
consistent with job necessity
ADA (ADAA)
Inflexible leave policies
Direct threat screening
The interactive process
Age Discrimination
Disparate Impact Claims
EEOC will focus on the “Reasonable
Factors Other Than Age” defense
Age Discrimination
“Reasonable Factors Other Than Age”
(i)
(ii)
(iii)
(iv)
(v)
Policy or decision related to the employer’s
business
Employer defined and applied factor
accurately and fairly
Subjective assessments are limited
Employer assessed the adverse impact
Extent of harm
Noteworthy EEOC Cases
Inflexible Leave Policy
EEOC v. Insterstate Distributor Co.
(D. Co., Nov. 2012)
Leave policy that automatically terminated
employees after 12 weeks and required
return to work without restrictions.
$5M Settlement
Inflexible Leave Policy
EEOC v. Verizon Communications
(Dist. Md. 2011)
“No fault” attendance policy imposing
discipline for absences.
$20M Settlement
Background Checks
EEOC v. Pepsi Beverages (2012)
Policy excluding African American
applicants based on arrests or minor
convictions without demonstrated jobrelatedness or necessity
$3.13M Settlement
Prohibited Inquiries
United States EEOC v. Dillard's Inc.
(S.D. Cal. Feb. 9, 2012)
Attendance policy requiring employee to
disclose nature of absence and condition
treated violated ADA.
$2M Settlement
Prohibited Inquiries
EEOC v. Dura Automotive
(M.D. Ten. 2012)
Policy that screened out employees based
on positive illegal and legal drug tests.
$750K Settlement
Reasonable Accommodation
EEOC v. United Airlines, Inc.,
(7th Cir. Ill. 2012)
Reassignment preference should be given
to minimally qualified disabled person over
non-disabled employee.
Interactive Process
EEOC v. Western Trading
(D. Col. 2012)
Overkill in requesting information is not
good faith interaction for reasonable
accommodation purposes
Obesity
EEOC v. Res. for Human Dev., Inc.,
(E.D. La. 2011)
Obesity, and associated heart problems
and diabetes are disabilities without proof
of underlying physiological limitations.
Retaliatory Policies
EEOC v. Cognis Corp.,
(C.D. Ill. Dec. 12, 2011)
Terminating employee for revoking Last
Chance Agreement that restricted rights is
retaliatory, and Last Chance Agreement
was retaliatory policy.
Retaliatory Policies
EEOC v. Cognis Corp.,
(C.D. Ill. May 23, 2012)
Employer’s summary judgment motion
denied because employer anticipated
protected activity when it offered Last
Chance Agreement.
Contact Information
Charles H. Wilson
[email protected]
713.750.3117
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