Compliance with regulatory agency guidance key to hiring litigation mitigation
The Equal Employment Opportunity Commission (EEOC) recently disclosed it took in a record $365.4 million dollars from employers this year through its private sector administrative enforcement program, a $700,000 increase over last year.
About ten percent, or $36.2 million, resulted from conciliation agreements or settlements related to systemic employment violations, a primary focus of activity identified by the EEOC, a four-fold increase from the previous fiscal year.
The Commission also recovered $44.2 million through its litigation program. Overall, there were a total of 122 lawsuits on the merits filed by Commission offices nationwide.
The government agency appears to be pushing ahead with its aggressive investigative practices and broad interpretations of federal anti-discrimination laws in its pursuit of ending workplace discrimination on behalf of a wide variety of worker groups.
Employers can expect the agency to focus on the following in 2013:
Litigation of national and regional class-action cases
Employers can expect a continued increase in “company-wide” investigations. Employers caught in the agency’s sights will unfortunately be burdened with the cost of defending these investigations and lawsuits.
Discrimination in recruitment and hiring on the basis of disparate impact
In light of the EEOC April 2012 Enforcement Guidance regarding the use of criminal records information in hiring, it is safe to assume improper reporting and use background checks that include criminal records components will be a focus.
ADA – Reasonable accommodations enforcement
Enforcement of the Americans with Disabilities Act, focusing on reasonable accommodations, including investigations of no-fault attendance and fixed-leave policies and 100-percent healed policies, in which employers require employees to be 100-percent healed before being permitted to return to work from medical or disability leave.
Developing workplace issues
Including discrimination against members of the lesbian, gay, bisexual, and transgender (LGBT) community, and pregnancy leave policies.