Your friendly EEOC, yes, that busy agency which receives hundreds of thousands of complaints from employees, and yet that agency which is too understaffed to complete its investigations in less than a year, wants to get more involved with your company than it already is.
On December 17, 2012, the EEOC unveiled its new Strategic Enforcement Plan (“Sep”) for fiscal years 2013 through 2016. The SEP has established the following six (6) enforcement priorities:
1. Eliminating Barriers in Recruitment and Hiring
One example of this priority is a company’s restrictive application process. Is your company limiting any type of employee based upon race, gender, religion, national origin, disability, age, etc? We have seen the EEOC’s stubborn interest in this area already. The EEOC has to be reminded often the Title VII of the Civil Rights Act contains a provision, which covers American employers overseas, that it shall NOT be unlawful for an employer to take otherwise prohibited action if compliance would cause an employer to violate the law of the foreign country. 42 U.S.C. §702(b). In other words, to comply with the employment laws of foreign countries in those countries, which may have gender or national origin prohibitions, does not violate Title VII.
Another area where the EEOC is flexing muscle concerns background checks. While it is still legal to conduct background checks and use the results to make hiring decisions, the EEOC has issued new guidelines which require a close connection between the applicant’s prior conduct and his job duties. For example, past driving violations may cause concern for hiring a truck driver, but likely not for someone working in marketing.
2. Protecting Immigrant, Migrant and Other Vulnerable Workers
We are finding this issue more prevalent in the restaurant and hospitaltiy industries. Many restaurants are nationally or ethnically based and hire immigrants from the related country. And while life in the United States may be an improvement for many immigrants, employers still must comply with U.S. employment laws concerning every employee.
3. Addressing Emerging and Developing Issues
The EEOC is particularly focusing on the amendments to the Americans with Disabilities Act, otherwise known as the ADAAA. The amendment which we think deserves the most caution and attention reversed the U.S. Supreme Court’s decision in Sutton v. United Airlines 119 S.Ct. 2139 (1999). In Sutton, the court established that if an individual’s condition is controlled by medication or assistive device, that individual is likely not disabled. The ADAAA now prohibits courts from considering the ameliorative effects of mitigating measures such as medication, hearing aids, or prosthetic limbs. (Glasses are the only remaining exclusion – – they may be considered). This amendment can catch employers by surprise as employers may not be aware of the underlying disability, which never manifests itself in the workplace.
4. Enforcing Equal Pay Laws
The EEOC intends to use directed investigations in its enforcement efforts, rather than merely respond to EEOC Charges of wage disparity. Since the passage of the Lilly Ledbetter law, we have been advocating our clients conduct a company-wide audit to locate where men and women are performing the same job, but for different pay. This advice is all the more timely now.
5. Preserving Access to the Legal System
Many employers see the financial and time savings by having all employment disputes be resolved through arbitration rather than the court system. The judicial branch has issued opinion after opinion stating that properly constructed alternative dispute resolution programs will be enforced. It’s the EEOC that opposes such programs. Creating an ADR program is an area though in which you should seek counsel. There are many pitfalls which disqualify arbitration agreements.
6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach
This wordy last area essentially means that the EEOC will be checking in with you to see if you are training supervisors and employees in your anti-sexual and other harassment policies and procedures. If every employee does not receive at least bi-annual harassment training, the EEOC may ask why not?
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