No surprise: EEOC charges way up

The EEOC reported last month that the number of discrimination charges was at record levels. The report was not a surprise given the high unemployment rate, continued company layoffs and general economic climate.

A greater number of EEOC charges also means that it is likely that a greater number of EEO lawsuits will be filed in the courts. Now more than ever, it is imperative for employers to be cognizant of the potentail for cases of this sort being filed against them, to understand the nuances involved in the EEOC’s handling and prosecution of such cases, and to be prepared to timely challenge any attempts by the EEOC to overreach.
Our firm is recommending that employers engage in proactive self-audits, in order to seek out and eliminate vulnerability. We do not want our clients to be among the list of targeted businesses, nor do we want our clients to be found in violation of any laws, paying fines, being sued, etc. We engage in an interactive interview process, examine records and review policies and procedures to ensure that a company is compliant with the various employment laws.

A self-audit can mitigate potential penalties and fines that a government investigator might uncover. In addition, the audit process can lead to identifying weak areas and problems with record keeping and certain employment practices. In turn, the audit process can lead to the development of "best practices" and can function as a long-term cost savings, as a single lawsuit can cost over $100,000 to defend.
If your company hasn't reviewed policies and procedures in some time or hasn't had an audit, now is a good time to do so.

Weighing in On Weight Discrimination

In 2009 and 2010 the Equal Employment Opportunity Commission (EEOC) received the highest number of charges of employment discrimination than ever before.  The increase in discrimination charges is likely the product of a poor U.S. economy.  Employees being laid off from work are turning to the EEOC, complaining that their employer's decision to separate them from employment was motivated by unlawful discrimination.  Of course, not every employment decision is based upon discriminatory motivation or animus.  To the contrary, companies struggling to make ends meet often are left with no choice but to reduce the number of employees on the payroll. In many instances, persons selected for layoffs are just the victim of lagging sales or cash flow problems.

Of late, there has been discussion about adding weight to list of protected classes (such as age, sex, religion and race) under federal employment discrimination laws (some states already protect weight under their discrimination laws, such as Michigan).  For example, a potential employee files an EEOC charge alleging that an employer failed to hire him/her because he/she is overweight.

A few years ago, Obesity, a journal, reported that discrimination based on weight increased 66% in the past decade, up from about 7% to 12% of U.S. adults.

Weight is already protected under federal law.  Under the Americans with Disabilities Act (ADA), a person suffering from diagnosed obesity may be considered "disabled" and would be afforded protection under that law.  In addition, there have been cases brought under Title VII of the Civil Rights Act of 1964 where plaintiffs argued that weight standards imposed by an employer that were applied differently to men and women was discriminatory on the basis of sex since such standards adversely impacted women.

Like race, weight is something that is immediately identifiable.  An employer may meet a potential employee and determine that because he/she is overweight, that the person will be lazy or unhealthy.  Further, an employer may simply choose not to hire an overweight person on the basis of customer disdain or for any other reason.  Some commentators argue that weight should not be afforded protection under law since it is a mutable characteristic (a person can lose weight with a better diet and exercise), but in some instances weight gain is a result of medication or a disorder, which is not something that the person can control.

EEOC To Get More Resources

Employers beware: the EEOC is getting more ammunition to process and move along backlogged cases - $23 million worth.

The 2010 version of the omnibus appropriations bill, first passed in the House on December 10th and then the Senate on December 13th, would provide $23 million in funding to help the EEOC resolve more than 70,000 backlogged employment discrimination charges. The EEOC has reported that it experienced a 35% increase in the volume of backlogged cases, from 54,970 in 2007 to 73,951 in 2008. Combined with a record number of new discrimination complaints (95,402 - a 20% increase), the EEOC, with its current financing, is ill-equipped to meet the current volume of current and backlogged charges. At the same time, EEOC staffing has fallen 25% over the past decade.

So, while the EEOC may have taken several years to address and resolve complaints, expect a more expedited process in the future.

Pregnancy Discrimination Claims Increase

It is not a surprise that the EEOC is receiving a greater volume of discrimination charges given that the U.S. unemployment rate is now over 10%. Naturally, many people who have lost their jobs have claimed a discriminatory basis for their separation. But, it is surprising that a large number of pregnancy discrimination claims have come into the EEOC. Pregnancy discrimination is covered under Title VII via the Pregnancy Discrimination Act (PDA). The EEOC reported that it received 6,285 claims in FY 2008, up from 5,587 in FY 2007.

The 7th Circuit Court of Appeals recently held that the PDA covers a "potential pregnancy" after an employee claimed she lost her job because she had taken time off for fertility treatment. This ruling certainly expanded the scope of covered claims (at least in that Circuit).

In addition, on January 1, 2009, the Americans with Disabilities Act (ADA) Amendments Act of 2008 went into effect. The ADA was amended because "the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect." Pregnancy can be covered under the ADA if it effects a major life activity (such a major complications requiring bed rest).

Further, the Family and Medical Leave Act (FMLA) allows employees with serious health conditions, including conditions related to pregnancy, to take leave on a reduced work schedule if it is “medically necessary.” A reduced work schedule is “medically necessary” if an employee has a serious health condition that requires a treatment regimen which is best accommodated by this type of leave. Thus, if a health care provider certifies a pregnant employee’s need for part-time work, an employer may have to modify the employee's work schedule.

As always, employers should make sure that they are in compliance with all laws and should consult with counsel if any questions arise.

Take Proper Care with Layoffs

With the economy spiraling downwards, many companies have chosen to layoff staff in an effort to reduce costs or to streamline operations. Layoffs raise a number of legal issues that make it imprudent to simply let an employee go without forethought.

1. If you plan on offering an employee severance, you must consider that if the offer differs between similarly situated employees (either offered in the past or at the same time), you may run afoul of the federal employment discrimination laws. You must be mindful of laying off persons in protected classes, such as race, religion, disability, national origin, or sex. If you offer a lesser severance to an employee in a protected class, you may be facing an EEOC discrimination charge.

2. Severance agreements must comply with certain laws and contain certain disclosures in order to be legally enforceable. This is particularly true when you are offering severance to an employee over the age of 40. The Older Workers' Benefit Protection Act which is contained within the Age Discrimination in Employment Act, contains certain requirements that mandate an employee be able to make a "knowing and voluntary waiver" if the severance is in exchange for giving up any claims against the company that the employee might have.

3. If you are closing an entire facility or laying off a group of employees, you may be required to give 60 days notice prior to the layoffs under WARN Act.

4. If you have laid off employees based on "least best" performers, you should have solid documentation to support the reasons why the employee was a low performer. If you have not maintained documentation on performance, you will have difficulty in challenging an unemployment claim or in justifying why you laid a certain employee off over another (which again, may get into a discrimination claim).