EEOC Litigation Texas is “top 5” state for EEOC suits. Texas received the most charges (9,952 – 10% of total charges) 44% of 2012 EEOC cases were class or mass actions. Most were ADA and Title VII cases
EEOC Litigation ClaimLawsuits Disability Discrimination and Harassment45 Retaliation26 Sexual Harassment23 Race Discrimination and Harassment14 Age Discrimination12 Pregnancy Discrimination11 Religious Discrimination and Harassment11 National Origin and Harassment7
EEOC’s Strategic Enforcement Plan
Strategic Enforcement Plan Approved on December 17, 2012 Road Map of EEOC’s Focus During Next Three Years Requires District & Field Office SEPs by March 29, 2013
Strategic Enforcement Plan 1.Hiring and Recruitment Discrimination 2.Emerging Theories 3.Retaliatory Practices or Policies 4.Equal Pay Act Claims 5.Systemic Harassment 6.Human Trafficking
Strategic Enforcement Plan Top Three Areas Hiring Discrimination Disability Discrimination Disparate Impact Age Discrimination
Hiring Discrimination EEOC will target screening tools that disproportionately impact racial, ethnic and religious groups, older workers, women and disabled applicants. Criminal Background Checks Pre-employment tests Drug tests
Hiring Discrimination Criminal Background Checks Convictions must be job related and consistent with business necessity Related to the job Opportunity to explain
Hiring Discrimination Arrests Can’t be used alone Underlying conduct can be used Misconduct must be job related and consistent with job necessity
ADA (ADAA) Inflexible leave policies Direct threat screening The interactive process
Age Discrimination Disparate Impact Claims EEOC will focus on the “Reasonable Factors Other Than Age” defense
Age Discrimination “Reasonable Factors Other Than Age” (i) Policy or decision related to the employer’s business (ii) Employer defined and applied factor accurately and fairly (iii) Subjective assessments are limited (iv) Employer assessed the adverse impact (v)Extent of harm
Noteworthy EEOC Cases
Inflexible Leave Policy EEOC v. Insterstate Distributor Co. (D. Co., Nov. 2012) Leave policy that automatically terminated employees after 12 weeks and required return to work without restrictions. $5M Settlement
Background Checks EEOC v. Pepsi Beverages (2012) Policy excluding African American applicants based on arrests or minor convictions without demonstrated job- relatedness or necessity $3.13M Settlement
Prohibited Inquiries United States EEOC v. Dillard's Inc. (S.D. Cal. Feb. 9, 2012) Attendance policy requiring employee to disclose nature of absence and condition treated violated ADA. $2M Settlement
Prohibited Inquiries EEOC v. Dura Automotive (M.D. Ten. 2012) Policy that screened out employees based on positive illegal and legal drug tests. $750K Settlement
Reasonable Accommodation EEOC v. United Airlines, Inc., EEOC v. United Airlines, Inc., (7th Cir. Ill. 2012) (7th Cir. Ill. 2012) Reassignment preference should be given to minimally qualified disabled person over non-disabled employee.
Interactive Process EEOC v. Western Trading (D. Col. 2012) Overkill in requesting information is not good faith interaction for reasonable accommodation purposes
Obesity EEOC v. Res. for Human Dev., Inc., (E.D. La. 2011) Obesity, and associated heart problems and diabetes are disabilities without proof of underlying physiological limitations.
Retaliatory Policies EEOC v. Cognis Corp., (C.D. Ill. Dec. 12, 2011) Terminating employee for revoking Last Chance Agreement that restricted rights is retaliatory, and Last Chance Agreement was retaliatory policy.
Retaliatory Policies EEOC v. Cognis Corp., (C.D. Ill. May 23, 2012) Employer’s summary judgment motion denied because employer anticipated protected activity when it offered Last Chance Agreement.