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Is your company an EEOC target?
before about the Strategic
Enforcement Plan of the Equal Employment Opportunity Commission,
which was officially adopted last December, and the Commission's
priorities. Last week, EEOC Commissioner Victoria Lipnic spoke about the
Plan in more detail at legal compliance symposium.
Commissioner Lipnic is a Republican who used to
head the Employment Standards Administration of the U.S. Department of
Labor under former President George W. Bush. In that position, she was over the
Wage and Hour Division and the Office of Federal Contract Compliance
Programs, among other agencies.
As one might expect from a Republican commissioner, Ms.
Lipnic appeared to be somewhat less than 100 percent "on board" with
the EEOC's current agenda. She reportedly expressed skepticism
that use of credit histories in hiring created a disparate impact on women
and minority applicants and said that she thought the EEOC should focus more on
helping employers to comply with the law and less on litigation.
Anyway, here are five ways, according to Ms. Lipnic, that
your company could become an EEOC target:
1. You use credit or criminal histories to
screen new hires. Although Kaplan's
recently cleaned the EEOC's clock in a credit history case, other employers
can't necessarily count on doing as well. (In case you're feeling really
cocky, please note that in the last couple of weeks, the EEOC has had some multi-million
dollar wins. Read
it and weep.)
The EEOC is unfavorably
disposed to the use of these screening devices. As stated above, Ms. Lipnic
is skeptical about whether use of credit histories creates a disparate impact.
On the other hand, criminal background checks have been demonstrated to have a
disparate impact on African-American and Hispanic men. If you use credit or
criminal background information in hiring, make sure that (a) the
information is relevant to the position applied for and that you can prove it,
and (b) you make an individualized analysis of each person who has
a credit/criminal problem rather than flatly refusing to hire in all
And, I hope this goes without saying, but you
should never use arrests as a basis for declining employment -- convictions and
2. You automatically terminate employees when
they reach the end of their medical leaves of absence -- no ifs, ands, or buts.
I've harped on this a
number of times. The EEOC's position is that when an employee reaches the
end of his or her allowable medical leaves, the employer should make a
good-faith attempt to bring the employee back to work, with or without
reasonable accommodations, before cutting the cord.
3. You won't accommodate individuals with
disabilities (duh!) or pregnant women who have pregnancy-related
limitations. The EEOC is looking askance at employers who
will not make "accommodations" for pregnant employees but instead
either fire them (hopefully not!) or force them to take medical leaves of
absence. This is an unsettled area of the law -- generally, pregnancy is
considered a "temporary disability" and so the courts have required
employers to treat pregnant women the same as other employees with temporary
disabilities. Of course, now that the EEOC has indicated non-permanent
conditions may be "disabilities" within the meaning of the ADA, it's
possible that a nine-month limitation would be considered a real ADA
disability. At least, that's the EEOC's story, and they're sticking to
4. You run afoul of an "emerging
issue." A big one for the EEOC right now is
transgender discrimination. Discrimination against a transgendered
individual isn't an ADA issue because the ADA specifically excludes
"transsexuals" (the terminology that was being used in 1990,
when the ADA was enacted). But it can be a form of sex discrimination, in
violation of Title VII.
5. You have pay disparities based on race or
If you read this blog, you know I
am a skeptic when it comes to the gender pay gap. But what I think doesn't
matter. Ms. Lipnic says the EEOC will be on the lookout for
equal pay cases to pursue.
I hope everyone knows the "equal pay drill" by
6. You don't respect your elders, and 50 is
the new 40. Although the Age Discrimination in
Employment Act protects individuals age 40 and older, Ms. Lipnic said that the
EEOC is going to target employers who discriminate against employees 50 and
older. In my opinion, this is a great strategy -- after all, age discrimination
against people in their 40's is fairly rare. (Unless you're a fashion model,
athlete, or TV anchorwoman.)
Anyway, back to the EEOC. I know that none of you would
dream of discriminating against an employee because of age. But do be sure that
you have well-documented reasons for taking action against an older employee
and that you are treating that older employee the way you would any
"similarly situated" younger person. Also, be even-handed in making
hiring and promotion decisions.
AND, IN OTHER NEWS . . .
Way to go, Marissa Mayer! I
have given Yahoo CEO Marissa Mayer a
lot of grief over her decision to eliminate
telecommuting for employees while having a nursery built next door to her
office. Well, it was announced this week that Ms. Mayer is doubling
the amount of paid maternity leave for Yahoo moms from 8 weeks to 16 weeks.
(Dads get 8 weeks of paid leave.) I still wish she would restore telecommuting
(not that anyone asked me), but this is a really nice new benefit.
Model Lanisha Cole settles
harassment lawsuit against The Price Is Right for an undisclosed
amount. This came after the court threw
out a $7.8 million verdict in her favor. Don't worry, TPIR lawsuit
followers -- I'm sure there are plenty more to come!
male-dominated workplaces discouraging to mothers?
This is kind of creepy . . . but how else do
you get a 15 percent raise any more? A real estate agency in New
pay increases of 15 percent to any employee who got a tattoo of the firm logo.
The tattoo can go -- er -- anywhere, and 40 employees have said yes so far.
Oh, that Michael Bloomberg.
Mayor Bloomberg strikes again. He initiated a bike-sharing program
to encourage New Yorkers to become more fit. But no
one weighing 260 lbs. or more is eligible to participate because
of fear that they'll damage the bikes. Kind of defeats the purpose of a
bike-share program designed to promote physical fitness, doesn't it?
¡Feliz Cinco de Mayo!*
*DISCLAIMER: Cinco de Mayo is Sunday, not today.
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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