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All The Rage: Is Your Business Going to Be In Trouble With the EEOC?

Brett McIntyre
Brett McIntyre

The Top 5 Litigation Trends For The Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (EEOC) loves a good spat in court.

Every labor industry observer will attest to this. The agency is notorious for dragging employers to court.

Sometimes, the lawsuits arise from the tiniest infractions. And in most cases, the EEOC wins the most frivolous-seeming lawsuits. As such, most employers are rightfully wary of getting onto the wrong side of the agency.

A good strategy for steering clear of EEOC lawsuits is by tracking the agency’s litigation trends. There is no better time to consider these trends than right now. This is because the agency’s previous fiscal year ended on September 30th. As such, we are at the beginning of the EEOC 2015 – 2016 fiscal year.

This means that the current trends could define the direction that the agency will take over the next year. So, what are the EEOC litigation trends anyway? Well, here are the top 5 litigation areas which the agency is actively pursuing.

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1. Disability Discrimination

Over the last three years, disability discrimination seems to have been at the front of the EEOC’s enforcement priorities. This is because lawsuits brought under the Americans with Disabilities Act (ADA) have accounted for almost one-third of all EEOC lawsuits. In 2013, 2014 and 2015, disability lawsuits accounted for 36 percent, 32 percent and 36 percent of all total lawsuits respectively.

This trend seems set to continue into 2016. Already, in the first month of the 2015 – 2016 financial year (i.e. October 2015), the number of disability lawsuits is dominating. Of the 13 EEOC lawsuits filed in October, four were for allegations of disability discrimination. This is 30.8 percent of all lawsuits. Therefore, there is nothing to indicate that this trend is going away soon. Employers should ensure that their workplace policies on disability discrimination are in place and effective. 

2. Retaliation

Back in 2010, the EEOC started keeping a closer eye on employers who were accused of retaliation against employees. The agency was concerned over the increasing backlash on whistle-blower employees who complained, reported or testified in legal proceedings regarding workplace discrimination. 

In recent years, that concern has turned into a full crack down. Retaliation lawsuits now form a significant portion of all the legal proceedings initiated by the EEOC. For instance, in September 2015 (the last month of the 2014 – 2015 fiscal year), over a quarter of all EEOC lawsuits (25.8 percent) involved allegations of retaliation

The trend seems set to continue into the 2015 – 2016 fiscal year. In October, 15.8 percent of all the lawsuits filed were retaliation lawsuits. There is no indication that the subsequent months will be any different. Employers who don’t want to end up in court need to have adequate whistleblower protection policies in place.

3.  Pregnancy Discrimination

In July 2014, the EEOC issued a new guidance on pregnancy discrimination. The guidance was the first update of the agency’s pregnancy discrimination guidelines in 30 years. It was the clearest indication that the agency was taking a keener interest on employers’ pregnancy policies. The guidelines were further updated in June 2015, after a landmark ruling on pregnancy discrimination.

These updates aren’t the only indication of the EEOC’s interest in pregnancy discrimination. The agency has also been launching a series of lawsuits. In fact, in September 2015, 14.5 percent of all EEOC lawsuits involved pregnancy discrimination. This made it the second most common form of discrimination that the agency was pursuing – after disability discrimination.

The EEOC’s focus is likely to only increase over the coming year. First of all, every time the EEOC introduces or updates its guidelines, it launches a slew of lawsuits to motivate employers to adopt them. Secondly, the agency’s proposed guidelines have been adopted in the proposed Pregnant Workers Fairness Act (PWFA). 

The PWFA is currently before the US Congress. If it is passed, it will give the EEOC greater ammunition with which to go after employers. Some industry experts speculate that the PWFA will be passed in 2016. If that happens, then the EEOC will no doubt continue its enforcement against those it perceives to violate the rights of pregnant workers.

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4. Transgender Discrimination

Over the past two years, the EEOC has been pushing the issue of transgender discrimination in the workplace. The keyword here is “pushing.” This is because there is currently no federal law which prohibits discrimination against transgender workers. 

Even Title VII of the Civil Rights Act doesn’t specifically mention transgender individuals. Also, currently, only 19 US states and the District of Columbia have laws which explicitly outlaw discrimination against transgender workers. All the other jurisdictions are silent on the matter.

The lack of a solid legal basis hasn’t deterred the EEOC from pursuing the matter. In April 2015, it settled its first transgender discrimination lawsuit (against the US Army). Since then, it has stepped up its game. Its cause was boosted by the massive coverage of Caitlyn Jenner’s transformation which pushed the transgender issue on the spotlight.

Since then, the EEOC has only stepped up its transgender discrimination lawsuits. This is likely to further escalate in 2016. This is because even the DOJ and OSHA have taken up the issue of transgender discrimination in the workplace.  EEOC lawsuits on this subject will no longer seem like overreaching by a single government agency. 

5. Sexual Harassment

The EEOC is best known for cracking down on workplace discrimination. However, over the last few years, it has also stepped up its efforts in combating workplace harassment. One of the forms of harassment it has increasingly targeted is sexual harassment.

In October 2015, sexual harassment was the third-most common reason for EEOC lawsuits – after disability discrimination and retaliation. Almost one in five (19.3 percent) of all EEOC lawsuits were for sexual harassment. Also according to the agency’s records, sexual harassment is among the most common non-discrimination complaints reported.

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This trend is likely to continue – given the fairly loose criteria with which the EEOC defines sexual harassment. According to the EEOC, what terms as harassment doesn’t have to be sexual in nature. Many managers do not realize that even an offensive remark about a person’s sex can be harassment. For example, the agency writes that “it is illegal to harass a woman by making offensive comments about women in general.”

Workers will continue lodging harassment claims with the EEOC in 2016. Given the agency’s continued drive to stamp out harassment, such complaints will likely lead to litigation. To protect your company, make sure you hold training, educate managers, and have an open door policy for complaints.

In a nutshell, those are the top 5 EEOC litigation trends. Tracking these trends is critical for any employer who desires to be the next target of an EEOC lawsuit. For 2016, ensure that policies and practices are compliant with relevant legislation and EEOC compliance guidelines. 

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Brett McIntyre
Brett McIntyre Member
Brett McIntyre is the Digital Marketing Director at Crimcheck a NAPBS Accredited firm that specializes in pre-employment screening and background checks. His 20+ years’ experience in design, web & marketing helps promote the importance of performing pre-employment background screening for their clients.