The EEOC recently disclosed that it secured more that $365.4 million dollars from private employers the past year. The amount is a record in monetary benefits collected, and represents a $700,000 increase over last year. About 10 percent of the total monetary benefits, $36.2 million, resulted from settlements or conciliation agreements in connection with alleged systemic employment violations (a primary focus of the EEOC). That figure is four times the amount recovered during the 2011 fiscal year. Further, the EEOC does not appear to be backing away from its aggressive investigative practices and broad interpretations of the federal anti-discrimination laws, nor can employers expect such a change with the re-election of President Obama.Based on representations by EEOC regional attorneys, employers can expect the agency to focus on the following in the upcoming year:
- Continued focus on systemic litigation or national/regional class cases. Accordingly, employers can expect a continued increase in “company wide” investigations. This is troubling news for employers because of the cost of defending against such investigations and lawsuits.
- Alleged discrimination in recruitment and hiring. In light of the EEOC’s recent interpretative guidance regarding the use of background checks in hiring released last April, it is safe to assume the use of criminal records will be a focus. Another focus is expected to be the use of pre-employment tests.
- Enforcement of the ADA Amendments Act focusing on reasonable accommodations, including investigations of no-fault attendance and fixed-leave policies and 100-percent healed policies, in which employers require employees to be 100-percent healed before being permitted to return from medical or disability leave.
- Emerging legal issues, including discrimination against members of the lesbian, gay, bisexual, and transgender community, and leave policies for pregnant workers.
What is clear with the present EEOC agenda is that employers should take care in responding to even the most benign single claimant charges of discrimination. Employers must be strategic in responding to overbroad requests for information regarding company policies and employment decisions for other employees because the EEOC is actively looking for cases to pursue on a class basis and pushing employers harder than ever for monetary settlements.