Human Resources managers work hard to devise employment policies that are both EEOC compliant and efficient. This is not an easy tradeoff.
In this past year we have seen a number of lawsuits against employers based on the “disparate impact” doctrine of the EEOC, as well as a ringing rejection of the same concept in both EEOC v. Freeman and EEOC v. Kaplan cases. In this unsettled situation, we need to look for information wherever we can find it to get a better handle on how to devise employment policies that won’t trigger an EEOC lawsuit.
Our friends at Seyfarth Shaw have helped by publishing an analysis of the 134 lawsuits filed by the EEOC in FY 2013, including the 48 suits filed in the last month of the fiscal year. Here are some of the main conclusions in the article.
The Year-end Filing Binge.
The EEOC pattern in the past few years has been to file a slew of lawsuits in September, the last month of the fiscal year. This year is no different, but at a slightly lower level than some previous years. The ominous possibility is that the EEOC is waiting for the Federal budget crisis to resolve before filing more suits. We’ll have to wait and see – maybe the adverse reactions by courts and state Attorneys General to the agency’s agenda is having a dampening effect.
EEOC Cases Filed By Month – FY 2013
Where You Are Makes a Difference
The EEOC operates through 15 Districts. One interesting pattern in the 2013 lawsuits is fully 45% of them were filed in just 3 Districts – Chicago, Philadelphia and Charlotte. Do these numbers give us guidance on the future? The numbers are small and volatile, so probably HR managers in all Districts should stay on their toes.
Seyfarth Shaw points out that the agency’s budget is a major constraint on its ability to litigate, and the current fiscal environment works against an extremely aggressive program. One possibility is a continuation of the trend to litigate on behalf of single parties rather than class actions which are much more expensive.
The Focus of EEOC Lawsuits
The EEOC published a Strategic Enforcement Plan, FY 2013-2016, that gives us some guidance on their priorities, and the lawsuits pursued do reflect these goals to certain extent. The “national priorities” include:
- Eliminating barriers in recruitment and hiring;
- Protecting immigrant, migrant, and other vulnerable workers;
- Addressing emerging and developing issues;
- Enforcing equal pay laws;
- Preserving access to the legal system; and
- Preventing harassment through systemic enforcement and targeted outreach.
We’ve already mentioned the cases on the use of criminal background checks, which are part of the “eliminating barriers in recruitment and hiring”. The agency has been crystal clear on this issue, and seems intent on pursuing it despite pushback from the courts and state Attorneys General.
A few cases give an idea about what “emerging and developing issues” might be, including cases based on genetic information about subjects. They also pursued a case on the charge that firing a woman for breast pumping was sex discrimination.
Equal pay cases were also prominent. The Obama administration has taken a strong stand on pay equity, and the EEOC is listening.
Yet the most common type of case, discrimination due to disability, is not explicitly mentioned in the national priorities. Fully 48% of all cases were based on disability, followed by 42% based on sex (including pregnancy). Discrimination due to disabilities has often been used by the EEOC, especially since 2008 when an amendment to the ADA expanded the definition of “disabled”.
There’s an Agenda, But It Is Not Always Published
This brief survey tells us that the EEOC is pursing some types of cases aggressively (background checks, disability), but these are not always reflected in stated priorities. And the range of cases has broadened over the past few years. HR directors need to continue working on compliant policies using what guidance is available, auditing their practices regularly.