As the second term of President Obama comes to an end, the EEOC is pushing its agenda stronger than ever. In this blog entry, I will be addressing issues with hiring, employer-provided leave as a reasonable accommodation under the ADA and the EEOC's Systemic Program's 10-year history.

Hiring issues. After nearly 2 years of litigation, the EEOC has announced a settlement in a lawsuit filed against J&R Baker Farms by the EEOC alleging national origin and race discrimination. Baker Farms, located in Georgia, was accused by the EEOC of subjecting “American and African-American workers to disparate terms and conditions of employment based on their national origin and/or race, including segregated buses, segregated work crews, and differences in production standards, work assignments, and other conditions of work. The Complaint further alleged, since at least the fall of 2010, Baker Farms engaged in a pattern or practice of unlawfully terminating qualified American and/or African-American workers and replacing them with foreign-born workers.” Baker Farms agreed to pay $205,000 to settle the case that was filed on behalf of 119 workers. According to the EEOC: “Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and people with disabilities is one of six national priorities identified by EEOC's Strategic Enforcement Plan.”

As a reminder, I have been invited by the American Conference Institute to participate in a panel presentation at their 8th Annual Forum on Defending and Managing Employment Discrimination Litigation in Chicago on July 28th. The panel will be addressing “Avoiding Discrimination in Company Recruitment and Hiring Practices: The Latest on Ban the Box, Employee Background Checks, Online Job Applications and Pitfalls to Avoid When Using Social Media Tools in Your Hiring Process”. If you are in attendance, please introduce yourself: I would love to meet you in person.

Employer-provided leave as a reasonable accommodation under the ADA. The EEOC recently published guidelines under the title “Employer-Provided Leave and the Americans with Disabilities Act”. In its introduction, the EEOC states that: “The EEOC continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA. For example, some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation. Employer policies that require employees on extended leave to be 100 percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work. Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave.” Twenty examples are set forth under the categories of Equal Access to Leave Under an Employer's Leave Policy, Granting Leave as a Reasonable Accommodation, Leave and the Interactive Process Generally, Maximum Leave Policies, Return to Work and Reasonable Accommodation (Including Reassignment) and Undue Hardship. I would strongly encourage any employer facing a leave question that is subject to the ADA to review this guidance and consult with your attorney: it is a very complex area of the law with numerous rules and regulations. I anticipate the EEOC, as well private plaintiffs, to increasingly pursue ADA claims when leave is not provided as a reasonable accommodation.

The EEOC's Systemic Program. In 2006, the EEOC issued its first Systemic Task Force Report. Ten years later, the EEOC issued a new report recognizing significant success in advancing workplace opportunity by tackling systemic discrimination. According to the EEOC, the EEOC has invested in staff, training and technology, resulting in a 250 percent increase in systemic investigations in the past five years. More than 71,000 employees have received jobs and recovered lost wages. The review reports a 94% success rate in systemic lawsuits, and the amount of monetary relief recovered for victims has tripled in the past 5 years. The rate of successful voluntary conciliations has also tripled in the past 5 years, from 21 percent to 64 percent. The report indicates that the EEOC will continue to build upon its systemic program to remove persistent and emerging barriers to opportunity.

EEOC and Effective Position Statements. I have always been concerned when employers investigate an EEOC charge and provide their Position Statements without consulting counsel. The EEOC has made the process more dangerous for employers. In recent Guidance, the EEOC published their view on “Effective Position Statements”. The EEOC addresses what position statements should include: specific, factual responses to every allegation of the charge, as well as any other acts which the employer deems relevant for the EEOC to consider. Furthermore, if the employer does not submit any documentary evidence in support of the position statement, the “EEOC may conclude that Respondent has no evidence to support its defense to the allegations of the charge.” The EEOC may also release the position statement and non-confidential attachments to the Charging Party or their representatives and “allow them to respond to enable the EEOC to assess the credibility of the information provided by both parties.” However, the “EEOC will not release the Charging Party's response, if any, to the Respondent.” The Guidance sets forth some examples of supporting documentary evidence. The EEOC instructs that sensitive medical information or confidential commercial or financial information be segregated and marked as such, and only refer to this information in the position statement, but not disclose it. Please note that the EEOC “will review attachments designated as confidential and consider the justification provided, as the agency will not condone blanket or unsupported assertions of confidentiality.” In other words, if the EEOC doesn't think the information is confidential, at its discretion, the information will be provided to the Charging Party. The EEOC now permits the Position Statement and attachments to be filed electronically.

With the EEOC providing Position Statements and non-confidential attachments to the Charging Party and/or the representative to rebut, a Position Statement must be carefully crafted to avoid damaging admissions against interest or violations of the law. Legal counsel should be consulted before submitting any response to the EEOC.