EEOC Targets for 2015

2014 was a pretty tough year for the Equal Employment Opportunity Commission. But that doesn’t mean employers can relax.

Employment law firm Littler Mendelson recently released its Annual Report on EEOC Developments – Fiscal Year 2014and while the results indicate the EEOC suffered some setbacks, it’s apparent that employers need to keep an eye on several key issues in 2015.

First, a look at the agency’s problems:

‘Systemic discrimination’ probes drop, but ‘reasonable cause determinations’ up

As you remember, in 2012, the EEOC approved its Strategic Enforcement Plan which included a plan to engage in “targeted enforcement” to address “systemic discrimination.” This includes alleged discriminatory patterns or practices of discriminatory conduct and/or discriminatory policies that have a “broad impact on an industry, profession, company or geographic location.”

According to Littler’s report, the EEOC fell dramatically short in its systemic investigations initiative compared to FY 2013. The agency:

  • completed fewer systemic investigations (260 in 2014 compared to 300 in 2013)
  • recovered less despite more settlements (in 2014, $13 million in monetary relief was recovered through 78 voluntary agreements compared to $40 million recovered through 63 voluntary agreements in 2013), and
  • filed fewer systemic lawsuits (17 in 2014 compared to 21 in 2013).

Fewer investigations are good news for employers. Here’s the rub, though: The agency issued reasonable cause determinations in 118 of 260 systemic investigations in FY 2014 (45%), compared to 106 reasonable cause determinations based on 300 systemic investigations in FY 2013 (35%).

The risk of a “reasonable cause” finding of discrimination increased when an employer was faced with a systemic investigation. A determination of reasonable cause by the EEOC is significant, since it often results in litigation if the matter is not resolved in the conciliation process.

Legal setbacks

The report also revealed that “the EEOC has suffered numerous setbacks in its systemic investigations initiative based on cases the agency has taken to litigation, as shown by its focus on ‘failure to hire’ cases.” Here’s a partial rundown, from a Littler press release:

The EEOC already lost one major case on appeal, EEOC v. Kaplan Higher Education Corporation, et al., when the Sixth Circuit affirmed dismissal of a case challenging the use of credit checks. A second case, EEOC v. Freeman, involving the use of both credit and criminal background checks is on appeal to the Fourth Circuit after the EEOC lost on summary judgment. Both cases involved reliance on the same expert.

The EEOC also lost a significant equal pay case in EEOC v. Port Authority of NY and NJ, in which the Second Circuit issued a harshly worded opinion. The opinion stated, “We conclude that the EEOC’s failure to allege any facts concerning the attorneys’ actual job duties deprives the Court of any basis from which to draw a reasonable inference that the attorneys performed ‘equal work,’ the touchstone of an EPA claim.”

A closer question may be at stake in the religious accommodation case in EEOC v. Abercrombie, which the EEOC lost on appeal in the Tenth Circuit and will be heard by the U.S. Supreme Court next month.

At the district court level, the EEOC lost cases involving overbroad complaints (EEOC v. Sterling Jewelers), a pattern or practice claim involving alleged religious discrimination (EEOC v. JBS USA) and challenges to an employer release that allegedly restricted access to the EEOC (EEOC v. CVS Pharmacy, Inc.), to name a few.

So what should you be watching out for?

Here’s Littler’s Top Ten list of key upcoming EEOC developments:

  1. Conciliation obligations of the EEOC prior to filing suit – The U.S. Supreme Court’s upcoming ruling on the nature and extent of the EEOC’s obligations during the conciliation process

  2. Employer obligations involving pregnant workers – An employer’s obligations involving pregnancy leave under the Pregnancy Discrimination Act based on the upcoming ruling by the U.S. Supreme Court in Young v. UPS, as well as the nature and extent to which the courts will obligate employers to make reasonable accommodations to pregnant workers under the Americans with Disabilities Act (ADA)

  3. EEOC challenges to hiring barriers – Various cases involving hiring barriers, including the impact of the Fourth Circuit’s decision in EEOC v. Freeman involving the use of criminal history in the hiring process, as well numerous cases of alleged intentional discrimination in the hiring process involving race, national origin, age and sex discrimination

  4. Scope of reasonable accommodation under the ADA – The courts’ approach to required accommodation under the ADA, including whether the courts will begin to challenge required attendance on the job based on cases such as EEOC v. Ford Motor Company, currently pending before the Sixth Circuit

  5. Required accommodations involving religion – The scope of reasonable accommodation involving religious discrimination based on the U.S. Supreme Court’s upcoming decision in Abercrombie and whether an individual has to make a specific request for an accommodation in circumstances where an employer arguably has enough information to believe there may be a potential conflict between the individual’s religious practices and employer policies

  6. EEOC challenges to wellness programs – The manner in which the courts will reconcile the Affordable Care Act’s encouragement to develop wellness programs to help contain medical costs versus the EEOC’s focus on the “voluntariness” of participation in such programs

  7. Nature and extent of rights of LGBT workers under Title VII – The nature and extent to which courts adopt the view of the EEOC and expand the rights of LGBT workers under Title VII, despite the absence of legislation to cover sexual orientation and sexual identity

  8. Challenges to releases and/or arbitration programs – Challenges to employer releases by the EEOC in litigation similar to EEOC v. CVS  (in which the EEOC’s claim was dismissed on technical grounds based on the failure to conciliate prior to filing suit) and/or arbitration programs to the extent the EEOC believes such employer documents allegedly interfere with access to EEOC processes

  9. “Directed investigations” under the Equal Pay Act (EPA) and Age Discrimination in Employment Act (ADEA) and related litigation – Potential broad-based investigations of alleged equal pay violations under the EPA and/or age discrimination under the ADEA without a charge of discrimination even being filed against an employer, based on the EEOC’s authority to conduct “directed investigations”, and

  10. Scope of permitted pattern or practice litigation against employers – Continued pattern-or-practice litigation by the EEOC, including harassment litigation, and the extent to which a lawsuit by the EEOC will be limited based on the scope of its investigation and/or the failure to identify purported victims prior to bringing suit.