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What Employers Should Expect from a Ramped-Up EEOC

The Equal Employment Opportunity Commission (EEOC) is trying to buck a trend. While government budget cuts have become the norm, the EEOC is requesting for fiscal year 2012 an $18 million increase from 2011. The agency says it needs more money to restore enforcement and legal staff positions, modernize technology, and expand training, among other things. The wish list also includes 30 new investigators.

No matter what happens to the budget request, it’s clear the EEOC is ready to continue stepping up enforcement of the nation’s antidiscrimination laws. What can employers expect? A continued increase in various kinds of discrimination claims, according to Mark I. Schickman, a partner at Freeland Cooper & Foreman LLP in San Francisco and Susan Fahey Desmond, a partner in the New Orleans office of Jackson Lewis LLP. Desmond and Schickman highlighted some of the EEOC’s actions and priorities during a presentation at the Advanced Employment Issues Symposium held October 6 and 7 in Nashville, Tennessee.

Here are some categories of discrimination expected to continue to see an uptick:

Disability discrimination. The Americans with Disabilities Act (ADA) was amended in 2008, and “the EEOC is all over ADA claims,” Desmond says. The ADA Amendments Act (ADAAA) greatly expanded the pool of potential ADA claimants.

Schickman offers employers a word of warning about the EEOC’s focus on the ADAAA. Employers that automatically terminate an employee once a set period of time has passed, such as after six months or a year or after the exhaustion of leave under the Family and Medical Leave Act (FMLA), are on shaky legal ground because leave can be a reasonable accommodation under the ADA. With more people qualifying for ADA protection, “hard and fast rules will be a noose for you,” he says.

Age discrimination. Such cases can be tough to defend. “Every juror is either in the protected age group or aspires to get there,” Schickman says. Often employees have given clear signals that they plan to retire, but the poor economy is causing them to change their minds. Then when a supervisor says to an employee, “Didn’t you say you were going to retire?” the legal situation can get sticky if such a question is asked too often.

Succession planning that strays over the line into age discrimination isn’t the only age bias concern. Layoffs also can trigger age discrimination claims. Desmond points out that employers forced to implement layoffs naturally want to get rid of their weaker employees. Sometimes an older employee who is a little too comfortable at work can slack off and still get good performance reviews. That sets up a problem when an employee over 40 — and therefore protected by the Age Discrimination in Employment Act (ADEA) — gets let go. It looks like age discrimination because the documentation doesn’t indicate a performance problem.

Discrimination based on genetic information. In November 2010, the EEOC published regulations implementing the part of the Genetic Information Nondiscrimination Act (GINA) that pertains to employers. The law prohibits employers from discriminating on the basis of genetic information and from acquiring or disclosing genetic information. Genetic information includes family history and is broadly defined, Desmond says.

Since GINA is new on the books, employers haven’t had a lot of experience training on compliance. The EEOC’s charge statistics show 201 charges filed during fiscal year 2010, the first year any GINA charges were filed. That number is just 0.2 percent of all the year’s charges, according to the EEOC’s statistics. Even without drawing the number of charges that categories like race and sex discrimination show, GINA is still expected to have employers grappling with questions such as how to handle inadvertent disclosures of prohibited information.

Without specifically asking, employers often inadvertently learn genetic information through employee requests for reasonable accommodations, workers’ compensation inquiries, FMLA certifications, fitness-for-duty examinations, “overheard” conversations, “casual” conversations, social media, and more. Certain inquires will be deemed permissible, Desmond says. For example, “How are you? Did they catch it early?” would likely be permissible inquiries, but “probing” inquires such as “Does it run in your family?” cross the line.

Linda Walton of Perkins Coie LLP in Seattle, Washington, will discuss best practices for dealing with the EEOC and managing potential discrimination claims at the Advanced Employment Issues Symposium in Las Vegas on November 17 and 18, 2011.