Published by Eric A. Welter on April 11, 2014
I had the opportunity to attend a Fairfax Bar Association Employment Law Section lunch yesterday and listen to Peggy Mastroianni from the EEOC speak on the EEOC’s current enforcement priorities. Some of the highlights included: Of the $372 million recovered for charging parties by the EEOC during the administrative process, 40% of that sum was from mediation. […]
I had the opportunity to attend a Fairfax Bar Association Employment Law Section lunch yesterday and listen to Peggy Mastroianni from the EEOC speak on the EEOC’s current enforcement priorities.
Some of the highlights included:
Of the $372 million recovered for charging parties by the EEOC during the administrative process, 40% of that sum was from mediation.
Of the 231 pending lawsuits filed by the EEOC, 100 are systemic or class action lawsuits.
The EEOC realizes it can’t investigate everything. It wants to focus on areas where it can make a difference, such as areas that are less practical for private attorney to take.
Current Enforcement Priority #1 – Recruitment and hiring cases, particularly screening methods that exclude classes of protected people. The main area for this is criminal background checks. According to Mastroianni, the take away from the EEOC’s recent guidance is that employers should “think” when you are doing background checks, as opposed to merely applying a blanket exclusion rule for people with criminal convictions.
Mastroianni also noted that for investigative purposes, the EEOC will assume that blanket screening has a disparate impact. (For litigation, they will look very closely at the numbers to make sure they can prove their case.) In investigation, the employer can present data to disprove disparate impact if it can, but otherwise have to show the policy is job-related and consistent with business necessity. Mastroianni also emphasized that the EEOC Guidance does not “mandate” an individualized assessment, but that it is “wise” to do one.
The second type of screening case the EEOC is focused on is religious garb and grooming. Again, the EEOC recently issued a Q&A and fact sheet in March 2014 on these issues. These documents were issued not to implement new legal requirements, but because of an upward trend in meritorious charges. Mastroianni pointed out that customer preference is not a defense in these cases and that safety and security issues were one of the few areas where employers had a chance of defending a religious garb case.
Enforcement Priority #2 – vulnerable immigrant and migrant workers. Mastroianni pointed to the Henry’s Turkey case ($240 million verdict) as an example of the EEOC’s pursuit of litigation in this area. The New York Times had a story on the case recently here.
Mastrioanni could not answer the question facing many employment attorneys — when will the EEOC issue guidance on leaves of absences? Other hot issues currently include:
- The CVS litigation about severance agreements. “Preserving access to the legal system” is also an enforcement priority. [This case is a source of consternation to most employment lawyers that represent employers.]
- Pregnancy discrimination. According to Mastrioanni, the EEOC is seeing way too many meritorious charges.
- Pregnancy Discrimination Act – the U.S. Supreme Court is considering a cert petition in a case involving the “comparator” clause of the PDA.