7/24/2019 5 EEOC Enforcement Trends to Watch in 2016 - Law360

http://slidepdf.com/reader/full/5-eeoc-enforcement-trends-to-watch-in-2016-law360 1/4

2/8/2016 5 EEOC Enforcement Trends To Watch In 2016 - Law360

http://www.law360.com/articles/742937/print?section=corporate

Portfolio Media. Inc. | 860 Broadway, 6th Floor | New York, NY 10003 | www.law360.coPhone: +1 646 783 7100 | Fax: +1 646 783 7161 | customerservice@law360.co

5 EEOC Enforcement Trends To Watch In 2016

By Aaron Vehling

Law360, New York (January 5, 2016, 11:25 PM ET) -- Following a year of big wins for the

U.S. Equal Employment Opportunity Commission, in 2016, the agency will likely continue it

push for large-scale investigations into systemic bias and continue to focus on LGBT rights

and pregnancy bias claims, attorneys say.

In 2015, as the EEOC turned 50, it prevailed in a high-profile U.S. Supreme Court decision

regarding religious accommodation in the workplace and secured several settlements in

bias suits even as courts scrutinized the agency’s presuit investigation and conciliationprocesses. In 2016, the agency will maintain and strengthen its momentum, and employer

will need to prepare, according to Littler Mendelson PC’s Barry Hartstein, executive editor

of a report on 2016 EEOC trends.

 “Employers need to retool and rethink policies, practices and procedures that may have

worked in the past but are now more closely scrutinized by the EEOC,” said Hartstein,

Littler’s EEO and diversity practice group chairman.

That scrutiny is to help employers as much as workers, EEOC Chairwoman Jenny Yang said

in the agency’s fiscal year 2016 congressional budget report.

 “The EEOC's work to promote equality of opportunity strengthens our workplace and alsoour economy by fully utilizing the talents of all those in the workforce,” Yang said. “Across

the agency, we are working to strategically deploy our resources to achieve broader and

sustained compliance with our anti-discrimination laws.” 

Here are five trends management-side attorneys say employers need to keep an eye on in

2016.

Continued Large-Scale Investigations

The most significant EEOC trend employers need to monitor is the continued push for large

scale, or “systemic,” investigations of workplace bias, as opposed to individual ones,

because they are far more likely to result in an employer ending up in litigation, Hartsteinsaid.

That’s because whereas individual probes might land an employer in court 5 percent of the

time, systemic investigations find a “reasonable-cause” determination as much as more

than a third of the time, he said.

In the EEOC’s most recent budget report, Yang said the systemic investigations and cases

are a key part of the EEOC’s strategy for 2016 because they are effective at addressing

workplace discrimination issues on a broad scale in an industry, profession, company or

even a specific geographic area.

7/24/2019 5 EEOC Enforcement Trends to Watch in 2016 - Law360

http://slidepdf.com/reader/full/5-eeoc-enforcement-trends-to-watch-in-2016-law360 2/4

2/8/2016 5 EEOC Enforcement Trends To Watch In 2016 - Law360

http://www.law360.com/articles/742937/print?section=corporate

 “In addition to investigating and resolving indivi dual charges of discrimination, we also hav

a responsibility to identify and strategically address discriminatory practices that havepersisted throughout the years,” Yang said.

Larger investigations are also an efficient use of resources, she said. The EEOC has a

Systemic Task Force set up to address the widespread issues, and as distant as 10 years

ago, the group recognized that these broader investigations help prevent unlawful bias

through deterrence and by directing “scarce resources” toward conduct, practices andpolicies with broad impact, according to Yang.

Expansion of LGBT Rights

Although there have been local and regional laws passed to expand anti-discrimination

language to include protections for sexual orientation or gender identity, there hasn’t been

movement in Congress, where the Employment Nondiscrimination Act, which would amendTitle VII, is in limbo.

In absence of that, the EEOC has issued administrative rulings to fill the void and in 2016

will push to enforce those protections, according to Seyfarth Shaw LLP’s Gerald Maatman,who co-authored the firm’s own report analyzing EEOC trends for 2016.

The agency has already ruled in 2012 in Macy v. Holder that transgender bias is a form of gender discrimination, and in July in Baldwin v. Foxx, the EEOC issued an administrative

opinion that held for the first time that Title VII extends to claims of employmentdiscrimination based on sexual orientation, according to Maatman.

Also in 2015, the EEOC filed its first-ever  federal court Title VII suits over transgender

rights, including the closely watched EEOC v. R.G. &. G.R. Harris Funeral Homes Inc., in

which the EEOC asserted that Title VII’s prohibition on sex discrimination includesdiscrimination based on gender stereotyping.

 “Employers concerned about being sued need to understand that the EEOC is in an activistposture and is litigating for very expansive interpretations of [Title VII],” Maatman said.

If the Baldwin ruling follows the same trajectory as the Macy decision, employers could se

courts beginning to adopt the EEOC’s reasoning as the agency actively develops precedentthat will entrench its legal theory on sexual orientation bias in the legal landscape, he said

Lucretia C. Clemons of Ballard Spahr LLP, who has been conducting training on transgende

issues for 10 years, said that employers should be especially sensitive to employeesundergoing transition.

 “Employers need to be careful about ensuring they are foll owing proper protocol if anemployee is going through transition,” she said. “The EEOC is looking for those cases.” 

Greater Scrutiny of Pregnancy Bias

After the U.S. Supreme Court ruled in favor of Peggy Young in her pregnancy bias suit

against United Parcel Service Inc., the EEOC issued guidance making clear that failing to

accommodate pregnant employees may expose employers to Americans with Disabilities

Act claims based on temporary disabilities caused by pregnancy. That means that in 2016,

employers will need to ensure they are paying attention to how they accommodatepregnant women, Hartstein said.

In March 2015, the high court ruled in Young that even if an employer’s policies are not

intended to discriminate against women on the basis of pregnancy, it may still violate the

Pregnancy Discrimination Act if the policy imposes significant burdens on pregnant

7/24/2019 5 EEOC Enforcement Trends to Watch in 2016 - Law360

http://slidepdf.com/reader/full/5-eeoc-enforcement-trends-to-watch-in-2016-law360 3/4

2/8/2016 5 EEOC Enforcement Trends To Watch In 2016 - Law360

http://www.law360.com/articles/742937/print?section=corporate

employees without strong justification to support the policy.

Following that, the EEOC issued an updated guidance about employers’ obligations under th

ADA when it comes to pregnant employees. It said that there is no requirement that an

impairment last a particular amount of time to be considered “substantially limiting,” so th

ADA Amendments Act’s expanded definition of disability includes pregnancy, according toHartstein.

 “The EEOC also has emphasized that employers may be subject to disparate impact claims

to the extent that an employer policy, such as eligibility for and/or limits on leave, unfairlyimpact pregnant workers,” Hartstein said in his report.

The EEOC’s assertive stance isn’t exclusive to pregnancy bias but extends to its ongoing bid

to be aggressive in pursuing ADA suits. According to Hartstein, although the EEOC only

brought 142 lawsuits last year — most of its efforts are outside the courts — more than athird were ADA suits.

Clemons said that in light of that, employers need to be careful.

 “In general, employers need to have their ducks in a row when responding toaccommodations requests,” he said.

Expanding Accommodations for Religious Practices

One of the EEOC’s most high-profile wins  in 2015 was in a suit against Abercrombie & Fit

Co. involving an applicant not hired because her hijab violated its “‘look policy” barringcaps, and that will have reverberations for years to come.

In an 8-1 decision, the high court found that a job applicant only needs to show that the

need for a religious accommodation was a motivating factor in a challenged employment

decision — not that the employer had knowledge of the need for such an accommodation —to prevail on a disparate treatment claim.

Last year, the EEOC also secured a $50,000 settlement in a suit involving an employer thatallegedly refused to hire an applicant who declined to cut his hair for religious reasons, an

in October, it announced that it had won $240,000 in damages for Muslim truck drivers wh

were allegedly fired for refusing to transport alcohol because it violated their religiousbeliefs.

There have been many more, and the agency will likely continue to pursue religiousaccommodation claims, Hartstein said.

 “The scope of reasonable accommodation for religious practices will likely receive

increased attention over the coming year,” Hartstein said. “Care must be taken with both

grooming and appearance policies and issues of requested time off, including breaks for

religious practices.” 

Increased Attention on Social Media Policies

Employers are already on guard about social media in the context of labor law, following

the National Labor Relations Board’s ruling in 2015 that “likes” on Facebook are protected

activity under the National Labor Relations Act. But in 2016, the EEOC will also keep a closeye on employers’ restrictions of employees’ social media use, Maatman said.

In December, the EEOC’s Select Task Force on the Study of Harassment in the Workplace

held a public meeting to discuss several topics, including how social media can be used to

spread an anti-harassment message and give a platform to workers to bring complaints to

7/24/2019 5 EEOC Enforcement Trends to Watch in 2016 - Law360

http://slidepdf.com/reader/full/5-eeoc-enforcement-trends-to-watch-in-2016-law360 4/4

2/8/2016 5 EEOC Enforcement Trends To Watch In 2016 - Law360

http://www.law360.com/articles/742937/print?section=corporate

the attention of the public, according to the Seyfarth report.

The EEOC has also held public meetings to address how social media platforms affect the

workplace in areas such as recruitment and hiring, harassment, records retention andlitigation, the report said.

 “Social media a kind of modern-day water cooler ,” Maatman said.

The watchdog’s attention to social media will “likely lead to a more intense focus on

employers’ use of social media, and the ways in which those platforms can be used in newways to combat — or maybe promulgate — harassment in the workplace,” according to theSeyfarth report.

Where employers could get into trouble is if the EEOC sees them as restricting employees’

social media rights in a way that could bar their ability to use it for reporting harassment ootherwise sharing information related to anti-harassment measures, Maatman said.

He added that the EEOC could see that as the employer attempting to “resist” employees’ 

rights to complain about discrimination, therefore opening the door to the “resistance” cause of action that the EEOC has argued in court allows it to circumvent conciliation.

--Editing by Christine Chun and Philip Shea.All Content © 2003-2016, Portfolio Media, Inc.