Post on 15-Dec-2015
1. Recent Charge Activity and Statistics
2. EEOC’s Strategic Enforcement Plan
3. Noteworthy EEOC Cases
Agenda
Energized EEOC
FY 2006
FY 2007
FY 2008
FY 2009
FY 2011
FY 2012
0
20,000
40,000
60,000
80,000
100,000
120,000
Number of Charges
Charges
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
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. Hiring and Recruitment Discrimination
2. Emerging Theories
3. Retaliatory Practices or Policies
4. Equal Pay Act Claims
5. Systemic Harassment
6. 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
Age Discrimination
Disparate Impact Claims
EEOC will focus on the “Reasonable Factors Other Than Age” defense
Age Discrimination
“Reasonable Factors Other Than Age”
(i) Policy or decision related to the employer’s business
(ii) Employer defined and applied factor accurately and fairly
(iii) Subjective assessments are limited
(iv) Employer assessed the adverse impact
(v) Extent of harm
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 job-relatedness 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.