The Equal Employment Opportunity Commission (EEOC) recently concluded its 2012 fiscal year having recovered a record high $365.4 million dollars through its private sector administrative enforcement and recovered $44.2 million dollars through its litigation program. It received nearly 100,000 new charges of discrimination, resolved a total of 111,139 charges, and saw a significant decrease in its inventory of pending cases. See EEOC’s Performance and Accountability Report released November 16, 2012. Moreover, the EEOC continues to take a quality over quantity approach to its litigation, filing fewer but wider reaching lawsuits.
What does this mean for employers in the coming year? Where will the EEOC continue to focus its attention? A brief review of the EEOC’s actions in 2012 tells us a bit about its plans for 2013 and beyond.
HIRING PRACTICES: ARREST AND CONVICTION RECORDS
The EEOC continued to take a long hard look at hiring practices in 2012 and the issue is expected to remain on the EEOC’s radar screen into 2013. In January 2012, the EEOC announced that Pepsi Beverages agreed to pay $4.13 million dollars and provide job offers and training to resolve a discrimination charge involving Pepsi’s criminal background check policy. The EEOC contended that Pepsi’s policy disproportionately excluded black applicants from permanent employment.
Shortly thereafter, in April 2012, the EEOC issued its long-awaited updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. The guidance sets forth the factors employers should take into account when considering arrest and conviction history. According to the EEOC:
Employers may not disqualify an applicant based upon an arrest record;
Blanket policies excluding those with convictions are not considered job related and/or consistent with business necessity; and employers must develop a targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job (the three factors identified in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). Employers should then provide an opportunity for an individualized assessment for those people identified by the screen to determine if the policy, as applied, is job related and consistent with business necessity.
More recently, the EEOC has alleged that Dollar General Corporation’s criminal background check policy, which excludes individuals with certain criminal convictions for specified periods, has a disparate impact on African-American job candidates and employees. The EEOC will likely file suit against Dollar General.
The EEOC’s increased focus on criminal background check issues is not surprising. In its February 2012 Strategic Plan, the EEOC indicated it intends to increase the number of systemic cases in its litigation docket. Systemic cases involve “pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area.” Its focus on criminal background check policies fits within that goal.
ADA: DISABILITY DISCRIMINATION AND LEAVE POLICIES
Another area of recent focus for the EEOC involves leaves of absence as a reasonable accommodation under the Americans with Disabilities Act (ADA). Again, this area of focus should come as no surprise to employers given the 2008 Americans with Disabilities Act Amendments Act (ADAAA). Over the past few years, the EEOC has challenged employer maximum leave policies in a number of jurisdictions. Typically, in such cases, the employer has a policy stating that employees unable to return to work after exhausting a set amount of leave time automatically would be terminated. The EEOC contends that such fixed leave policies violate the ADA as they result in a failure to engage in the interactive process. Just last month, the EEOC announced that a trucking company will pay $4.85 million dollars to settle a nationwide class disability discrimination lawsuit filed by the EEOC. The employer’s policy provided for automatic termination if an employee needed more than 12 weeks of leave. The EEOC contended that the employer should have determined whether it would be reasonable to provide additional leave as an accommodation.
” Employers should review and potentially eliminate any maximum leave policies, even where those policies provide a seemingly generous fixed leave.”
PRACTICAL TIPS FOR COMPLIANCE IN 2013
In light of the EEOC’s stated desire to increase the number of systemic lawsuits it files, and its continued focus on hiring and disability discrimination, there are a few steps employers can take to minimize the risk of an EEOC investigation.
Employers should review their hiring and background check policies generally. Blanket policy statements, such as “The Company will not employ individuals who have been convicted of X offense,” are red flags for the EEOC and should be avoided unless absolutely necessary.
Employers should avoid considering an applicant’s arrest record.
In instances where criminal convictions may be job related and/or consistent with business necessity, employers should evaluate: (1) the nature of the specific crime at issue; (2) the time elapsed since the individual was convicted of the crime; and (3) the nature of the job at issue.
Employers should be wary of conducting credit checks on all applicants regardless of the position sought. This is another area of interest for the EEOC and various states have passed laws or are considering passing laws limiting an employer’s ability to consider an applicant’s credit history.
Employers should review and potentially eliminate any maximum leave policies, even where those policies provide a seemingly generous fixed leave. Instead, employers should evaluate situations on a case-by-case basis before making any employment decisions.