The EEOC’s Energized Enforcement
In September of 2017 the Equal Employment Opportunity Commission (“EEOC”) filed 86 new lawsuits against employers. This is the largest number of lawsuits filed by the EEOC in a single month in the past six years, and represents 45% of the lawsuits the EEOC filed during all of fiscal year 2017.[1] Thirty-six (36) of these lawsuits include claims of disability discrimination, with at least 10 targeting leave and other policies that are alleged to have been inflexibly applied, and others challenging pre or post-offer medical inquiry examinations that the EEOC believes improperly screened out disabled workers. There were 17 lawsuits targeting alleged sexually hostile workplaces and another 5 took aim at workplaces where African American employees alleged to have been subjected to a racist work environment.[2]
The EEOC is organized into 15 districts. Most of Virginia (other than areas close to the District of Columbia) falls within the Charlotte District.[3] The EEOC filed five lawsuits in the federal courts of Virginia during September. Two were filed in Alexandria by the Baltimore Field Office, which is not part of the Charlotte District. The first Alexandria case alleges discrimination in compensation based on sex and retaliation by a janitorial service in Reston when the female was allegedly fired after she complained about being paid lower wages than her male counterpart. The other Alexandria case involves an alleged age discrimination claim, plus an ADA associational discrimination claim against a software company arising out of requests for accommodations by a father who had exhausted his FMLA rights and sought additional time off and other accommodations to assist with the medical needs of his son who had been severely injured in a car accident.
The EEOC’s Norfolk office filed 2 lawsuits; one in Norfolk, the other in Newport News. The Norfolk case alleges sexual harassment and retaliation on behalf of a female employee at a beverage manufacturer who reportedly complained about the unwanted sexual behavior. The other case in Newport News was an ADA claim alleges the employer refused to hire a pipefitter because of his hearing impairment and failed to accommodate him during the post-offer/pre-employment medical exam process when it refused to allow him to wear his hearing aids during the testing procedure as an accommodation. The final Virginia case filed by the EEOC’s Richmond office in Abingdon was on behalf of a waitress who worked in a restaurant in Bluefield. The EEOC alleges a sexually hostile work environment existed and retaliation occurred when the manager cut a waitress’ work hours after she complained.
The EEOC offices which have jurisdiction over businesses in Virginia are making a concerted effort to be more visible. Even after the new Republican majority is in place (Congress is expected to confirm Trump appointees Janet Dhillon and Daniel Gade soon), the EEOC will continue to be an active enforcement agency. While it is likely that the EEOC will roll back many of the Obama initiatives, it is just as likely that the EEOC will continue to be a focus on emerging issues in the workplace. Given the high profile sexual harassment problems at Fox News and now with Harvey Weinstein, eradicating sexual harassment in the workplace and tackling pay disparity issues is almost certain to continue to be a high priority. In this regard, employers should evaluate the EEOC’s New Training Program on “Respectful Workplaces” released on October 4, 2017, which grew out of last year’s Task Force on the Study of Harassment in the workplace.
What is clear from the EEOC recent court filings is that the agency plans to continue to challenge employers as they struggle to implement the ADA when considering and designing accommodations.
The ongoing tension that businesses face when an employee is out of work for his/her own medical condition under the Family Medical Leave Act, but is still unable to return after twelve (12) weeks and needs more time off presents a recurring dilemma. The vexing question of “how much more time is reasonable” has no clear answers because it is always highly fact specific.In a very recent decision, a court outside of Virginia found no ADA discrimination when an employer declined to grant additional leave to an employee who had been out of work with back pain for twelve (12) weeks.[4] On the last day of FMLA leave the employee notified the Company that he would now require surgery and needed to be out of work for 2-3 months more. The Company terminated his employment, but invited him to reapply once he was medically clear to return to work. This court ruled that the ADA is not a “medical leave entitlement” statute, and then went on to emphasize that a “reasonable accommodation” is a measure that enables the employee to work. When the employee needed a long-term medical leave well beyond the FMLA, the court found this specific employee was no longer a “qualified” individual with a disability under the ADA because he could not work. It is unclear whether other courts will follow or utilize this analysis. The EEOC has taken a very different position and aggressively so in many of these recent September filings. So, stay tuned for developments.
It is certain that the EEOC’s position on various issues is likely to change over the next 12-18 months. HR professionals and small business owners will have a lot to digest with these changes. Should you have questions, feel free to contact any member of our Employment Law Team.
[1] The EEOC, like all federal agencies, operates on a fiscal year that ends September 30. It is common that during the month of September for the EEOC makes a concerted effort to address its docket by dismissing pending charges and filing lawsuits so that its annual reports to Congress will show progress on reducing the backlog of charges, and demonstrating its enforcement of EEO laws.
[2] Notably, of the 86 lawsuits, only 26 were brought on behalf of multiple workers with the vast majority (70%) being brought on behalf of an individual employee who is alleged to have been the victim of discrimination, harassment and/or retaliation. This runs somewhat counter to the EEOC’s strategic plan to pursue claims that seek to remedy discrimination for a broad class of individuals and to eliminate systemic discrimination. This robust approach to litigation may, in part, be a reaction to announced intentions to reduce funding for the EEOC and its counterpart the OFCCP.
[3] The Charlotte District also covers North and South Carolina, and this office filed seven (7) lawsuits in September, 2017.
[4] Severson v. Heartland Woodcraft, Inc. (7th Cir., Sept. 20, 2017).
