BY TAMSEN LEACHMAN | OB GUEST CONTRIBUTOR
It is important to understand the EEOC’s priorities, and ensure that your leadership understands the shifting expectations of regulators and the heightened standards to which you (and they) may be held.
BY TAMSEN LEACHMAN | OB GUEST CONTRIBUTOR
Like most organizations, the EEOC creates a strategic plan to identify goals and charts the steps to achieving them. In 2012, the EEOC issued its Strategic Enforcement Plan, which called for focused efforts to identify and bring claims against companies accused of adopting policies or practices that created discriminatory outcomes, irrespective of intent. While disparate impact cases fell out of vogue years ago, the EEOC appears to be bringing them back in a big way and rebranding them as “systemic discrimination”.
Red Meat for Regulators
The EEOC recently made national headlines with its new systemic discrimination case filed in Oregon, EEOC v. Ruby Tuesday, Inc. In that case, in early 2013, the company reached out to its employees in several states, including Oregon, to advise that it was seeking employees for a temporary summer assignment to assist in the Park City, Utah restaurant. To make this feasible, the company offered subsidized housing to the relocated employees while on assignment.
According to the EEOC, the problem arose when the company expressed a preference for female employees, allegedly because it feared the potential problems and liabilities that could result from co-ed employee housing sponsored by the company, where the lines between work and personal life may be significantly blurred.
The EEOC claims the company’s justification for seeking female candidates: (1) is, on its face, discriminatory; (2) cannot be justified as a bona fide qualification of the job; and (3) is unlawful because it leads to rejection of male applicants simply because of their gender.
The EEOC previously took offense to gender-based hiring decisions when it pursued a similar class action claim in 2006 against a restaurant chain that hired only female servers. Nearly four years later, the case settled for over one million dollars.
A decade before, the EEOC challenged another national restaurant chain for hiring only female servers. The agency backed down after the company launched its “Get a Grip” campaign and ran advertising showing hairy chested males in its uniforms to illustrate the reality of the EEOC’s desired outcome. The case was pursued by a class of rejected male applicants. It eventually settled, but by that time, the company had invested three years in defending against the claim and trying to minimize the potential damage to its brand.
Where Businesses are Vulnerable
The EEOC’s aggressive commitment to rectifying systemic discrimination must be taken seriously. So, too, must the reality that the EEOC is looking for situations that fit its priority criteria, such as:
- Considering an Applicant’s Criminal History – The EEOC continues to challenge background screening practices that are not individualized, are not tailored to the actual job qualifications and duties, and disproportionately impact minority applicants.
- Enforcing Attendance Requirements for Disabled Employees – The EEOC believes that rigid attendance policies disproportionately impact disabled employees and is committed to reversing the trend of employers claiming regular and timely attendance is a key or essential function of the job.
- Managing Religious Accommodation With or Without a Request – Historically, an employer had no duty to accommodate until an employee raised the issue or asked for help. The EEOC contends that employers who have enough information to believe there may be a potential conflict between the individual’s religious practices and employer policies are obligated to explore the issue of accommodation, whether or not the employee has asked for assistance.
- Employer Policies/Practices That Impact Pregnant Employees and New Parents – Historically, pregnancy was not considered a disability and an employer did not need to accommodate an employee simply because she was pregnant. The EEOC continues to advocate for pregnancy accommodation and search for discrimination based on pregnancy and child birth, including mandatory leave periods, employer-imposed work limitations, denial of reduced-schedule requests or denial of requests for more frequent breaks by new mothers so they can express milk.
- “Directed Investigations” of Gender-Based Wage Disparity or Age Discrimination – The EEOC continues to test its power to initiate broad basedinvestigations of alleged equal pay violations and/or age discrimination without a charge of discrimination ever being filed by an employee. In such cases, the EEOC may demand extensive company records and even privately interview employees as it searches for information to confirm suspected wrongdoing.
What Does This Mean For Oregon Businesses?
The EEOC is committed to accomplishing its ultimate goal of eradicating discrimination, harassment and retaliation in the workplace and will likely continue aggressively looking for situations that have broader significance, have more financial exposure for the business, or can be effectively used as a “teachable moment” for other organizations.
It is important to understand the EEOC’s priorities, consider what is happening inside your organization in these areas, and ensure that your leadership understands the shifting expectations of regulators and the heightened standards to which you (and they) may be held.
Tamsen Leachman is a shareholder at Littler Mendelson.