Is Your Company a Target of the EEOC?

Is Your Company a Target of the EEOC?

 Is your company an EEOC target?

I've written 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 cases.

 And, I hope this goes without saying, but you should never use arrests as a basis for declining employment -- convictions and pleas only.

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 it. 

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 sex. 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 now:

  • analyze your comp yourself before the government does it for you.
  • correct any disparities you may find that don't have good explanations.
  • if you do have good explanations for disparities, be sure they are documented so you can prove it.

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 her sexual 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!

Are 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 York offered 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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