By G. Mark Jodon
1. Continued Focus on Systemic Investigations and Related Litigation
Despite the incoming Republican administration, during the coming fiscal year it is unlikely there will be any significant change in the EEOC’s continued focus on systemic investigations and related litigation. Systemic investigations focus on claims involving pattern-or-practice, policy and/or class cases where the alleged discrimination has a broad impact on a company. The EEOC increased the number of systemic lawsuits filed during the past two fiscal years, as well as the percentage of pending multiple-victim suits in the federal courts.
2. Attacks on Hiring Barriers
The EEOC has taken the view that because most employers do not overtly express discrimination during the selection process, most applicants are unaware when they have been denied hire because of discrimination. Thus, the EEOC believes that it is “uniquely situated” to address hiring and recruitment issues. The EEOC’s largest pending lawsuits primarily involve “failure-to-hire” claims, including lawsuits alleging discrimination based on race and national origin, gender, and age.
3. Closer Review of Alternative Work Arrangements
The EEOC has announced that it will closely monitor various alternative work arrangements for securing workers, such as reliance on staffing firms, independent contractor relationships, and the “gig economy.” The EEOC already has been closely reviewing staffing firm arrangements. The EEOC also may follow the lead of the NLRB and U.S. Department of Labor in broadly defining independent contractor relationships in the “gig economy,” but there certainly is a possibility that any expansion of the EEOC’s view of the employer/employee relationship may be subject to closer review, and most likely, some narrowing in the new administration.
4. Challenges to Unlawful Harassment, Including Systemic Harassment, to Remain a Key Priority
There is little doubt that sexual and other forms of harassment in the workplace will continue to be vigorously investigated and create potential legal risks for employers that do not promptly investigate and address harassment in the workplace. Over 30 percent of the charges filed with the EEOC allege harassment and the most frequent bases alleged are sex, race disability, age, national origin and religion, in order of frequency.
5. Continued Focus on Disability Discrimination Litigation
ADA lawsuits have been the most frequent type of lawsuit the EEOC has filed. In order to minimize risk, employers need to ensure those qualification standards are tied to the essential functions of a job, which an individual can perform with or without reasonable accommodations. Employers maintaining maximum leave policies will be vulnerable based on the failure to provide reasonable accommodations for employees with disabilities by extending such leaves based on an individual review of the circumstances involved. Similarly, no-fault attendance policies that fail to
accommodate absences based on an employee’s disability will create similar risks. Notwithstanding, the EEOC has provided guidance to address attendance and leave policies to minimize risk in dealing with attendance-related issues. In short, an employer may limit its risk by having in effect a policy in which an individual’s disability is reviewed on an individualized basis. An employer generally does not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice. Thus, an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job, or the employer may be able to demonstrate that any accommodation would impose an undue hardship, thus rendering the employee unqualified.
6. Scrutiny of Pay Equity
The EEOC will continue to focus on compensation systems and practices that discriminate based on sex under the Equal Pay Act and Title VII. Because pay discrimination also persists based on race, ethnicity, age, and for individuals with disabilities, and other protected groups, the EEOC will also focus on compensation systems and practices that discriminate based on any protected basis.