As this year comes to a close, employers should take time to carefully review their personnel policies in hopes of limiting the chance that the Equal Employment Opportunity Commission (“EEOC”) will decide to challenge their policies in the coming year. In 2014, and as part of its Strategic Enforcement Plan, the EEOC pursued claims against employers with inflexible personnel policies, implicitly recognizing that, by challenging a policy, the EEOC is often able to identify many applicants or employees with a claim for relief and obtain a greater amount of media attention and damages. If the EEOC stays the course in 2015, employers unwilling to make accommodations or engage in an individualized factual determination with respect to their personnel policies may find themselves in an expensive and time consuming administrative and/or judicial process.
Leave / Attendance Policies
One of the EEOC’s primary targets is inflexible leave policies, including no fault attendance policies. Employers with no fault attendance policies penalize or discipline employees for absences, even if the absences occurred for reasons relating to disabilities. That is, if an employer has a no fault attendance policy, the employer does not consider the reason for the absence, but only the fact of the absence, to be relevant. The EEOC takes the position that such policies discriminate against individuals with disabilities. In other words, the EEOC alleges that employers are required by law to excuse some absences caused by a disability as a reasonable accommodation. Employers that refuse to engage in an individualized interactive process with disabled employees who need to be absent from work may find themselves in an expensive battle with the EEOC. See EEOC Lawsuit against AutoZone, Inc. Link: Press Release – EEOC v. AutoZone, Inc., (EEOC alleges terminations pursuant to AutoZone’s no fault attendance policy constituted disability discrimination); Verizon’s Settlement with EEOC Link: Press Release – Verizon Settlement (Verizon agreed to pay $20 million to settle lawsuit in which EEOC challenged Verizon’s no fault attendance policy).
Policies Relating to Arrests and Convictions
Although many employers ask applicants whether they have ever been arrested or convicted of a crime, the EEOC is targeting employers who refuse to hire individuals pursuant to such policies when the policies are applied in a way that disparately impacts a certain portion of the population or in a way that does not take into account individualized circumstances. The EEOC takes the position that any inquiry into an applicant’s criminal history should be job-related, consistent with business necessity, and take into consideration things like the nature of the offense and the timing of the offense. See EEOC Press Release Link; EEOC Guidance on Arrest and Conviction Records Link: Guidance.
Drug Testing Policies
Even employers applying their drug testing policies in an inflexible manner may find themselves involved in a battle with the EEOC. The EEOC recently sued a health care facility for revoking a conditional offer of employment when the employee refused to take a urine-based screen. The individual requested a different method of drug testing because of her disability, which the employer refused. The EEOC took the position that alternate forms of drug testing must be made available to applicants and employees who are unable to provide urine samples because of a disability. See EEOC Press Release Link.
Other Policies Under Attack
The aforementioned policies are not the only policies currently under attack by the EEOC. The EEOC is closely scrutinizing any employment policy applied by employers without considering the facts of a particular circumstance in hopes of identifying a group of people on whose behalf the EEOC can seek relief. Other policies that have been targeted by the EEOC include those related to modified work schedules, including policies that forbid employees from working alternate schedules, and maximum leave policies, including policies terminating employees at the end of a fixed medical leave period rather than bringing the employees back to work with a reasonable accommodation. See Sixth Circuit Opinion EEOC v. Ford Motor Company; New Jersey health care employer agreed to pay $1,350,000 in June to settle case brought by the EEOC challenging the employer’s policy of limiting leaves of absence to 12 weeks Link: Press Release.
The EEOC’s recent focus on inflexible personnel policies signals a new era – an era in which an employer’s claim that it treated everyone the same or that it treated everyone consistently may not be enough to absolve the employer of liability and, instead, may result in liability for the employer. Additionally, while employee requests for accommodations and/or exceptions may create staffing uncertainty and may be a burden on the employer and coworkers, an employer’s denial of such can lead to costly ADA claims for failure to accommodate. In 2015, employers need to be alert to policies that may disparately impact a particular segment of the population.