This blog post was written by Jana L. Korhonen, another of our Labor & Employment Group attorneys.
I recently attended a luncheon in which one of the Commissioners for the U.S. Equal Employment Opportunity Commission (the “EEOC”) spoke. According to this Commissioner, the EEOC has identified the following items as among its priorities:
- Bringing credit checks under the realm of Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination on the basis of race, color, sex, religion, and national origin, because of the credit checks’ disparate impact on minorities. [For more information about the EEOC’s concerns about this practice, click here.]
- Bringing domestic violence (including stalking and date rape) under Title VII. The focus here is discrimination in the employer’s treatment of victims. Specifically, the agency intends to combat what is perceived as an attitude that a woman who is a domestic violence victim should “get over it,” and an employer’s accompanying denial of a request for leave related to remedying the violence, if the employer otherwise allows for discretionary leaves or flexible attendance for men for other matters.
- Establishing pregnancy as a per se disability, such that reasonable accommodations would be required under the Americans with Disabilities Act (the “ADA”) without an individualized assessment of the employee or her pregnancy.
- Making the unemployed a protected class (even though prior efforts at this have failed). The EEOC apparently continues to have a strong interest in this effort. [For more information about the EEOC’s interest in this topic, click here.]
So, employers should watch for additional guidance forthcoming from the EEOC on some or all of those topics.
As for the EEOC’s enforcement efforts, the Commissioner reported:
- A continued focus on aggressive litigation, with a broad interest in systemic discrimination. The Commissioner reported that, if in the course of the intake procedure or in an interview, the claimant gives any nugget of evidence that the employer discriminates on a systemic basis (e.g., stating “there aren’t a lot of women in management at our company”), the EEOC may treat the charge as a systemic investigation. The Commissioner cautioned employers against blowing off what may appear to be a single-claimant charge, noting a systemic investigation can easily arise from such a charge.
- Emphasis on remedying sex discrimination in compensation, benefits, and work assignments. The Commissioner advised employers to watch for disparities between males and females with respect to compensation, benefits, and work assignments. Equal Pay issues remain on the EEOC’s “watch list.” In the EEOC’s eyes, women may be deemed comparators to men even if their jobs are not exactly the same. So, employers need to be careful about drawing those lines so narrowly that they allow for, or overlook, possible sex discrimination.
- Scrutiny of leave policies for potential ADA violations. From the EEOC’s perspective, a leave policy that caps the amount of leave an employee may take (e.g., to six months, a year, etc.), will be suspect because it is conceivable that a person with a disability could require under the ADA additional leave as a reasonable accommodation for that disability. Deciding how much time is reasonable needs to be assessed in each individual situation, according to the EEOC. Thus, employers should review their leave policies to ensure they are ADA-compliant in this manner.
- Analysis of hiring decisions for a potential disparate impact in violation of Title VII. Title VII prohibits not only disparate (i.e., unequal) treatment of individuals based on race, color, sex, and other protected characteristics. It also prohibits facially neutral policies that have a disparate impact on those classifications, subject to certain caveats.
According to the Commissioner, the EEOC is very interested in evaluating hiring decisions using a disparate impact theory. To that end, the Commissioner cautioned employers against looking only at the demographics of their applicant pool (as opposed to the surrounding geographic area) in determining whether the employer’s policies have a disparate impact on minorities. The EEOC indicated that, if the demographics of the employer’s community show minority candidates were available for work, but they didn’t apply for the available positions, the EEOC’s question for those employers will be: Why were younot able to find the qualified minority candidates for the available work?
What’s an HR professional to make of those comments by an EEOC Commissioner? Well, the EEOC’s continued focus on aggressively litigating systemic charges of discrimination is not good news for employers. But employers can, and probably should, proactively review their compensation/benefit decisions, leave policies, and hiring practices to identify and remedy potential discrimination – and avoid decisions and circumstances that, as explained above, the EEOC will consider discrimination. It’s almost always better to fix those issues before the EEOC gets involved.