The EEOC Wants Employers To Know That The Agency Is Back With A Vengeance

Originally published on the Employer's Law Blog

The Equal Employment Opportunity Commission ("EEOC") is stepping up its investigation activities. On March 2, 2011, representatives of the EEOC spoke at a conference sharing the following information and advice with employers:

• The number of Charges of Discrimination filed with the EEOC ("Charges") for disability and age discrimination have spiked. In 2010, over 25,000 employees filed Charges alleging disability discrimination and 23,000 employees filed Charges alleging age discrimination.
• While the number of employees claiming disability and age discrimination have increased, the EEOC is interested in Class Charges, or charges dealing with multiple employees, in either one geographic location, or on a nation-wide scale for those employers that operate facilities in various states. If an employee seeks to pursue a Class Charge, the employee can merely request the investigator to insert a Class allegation into the Charge.
• In addition to Class Charges, the EEOC is also focused on Charges that involve policy issues. For instance, the EEOC is actively looking for cases dealing with employment discrimination based on the use of criminal convictions and credit history reports, as the EEOC takes the position that those types of background checks have a disparate impact on certain minority groups. The EEOC is also interested in cases dealing with disability leave policies that require employees to return to work after a fixed time rather than evaluating the employee's specific circumstances.
• The EEOC is increasing the number of investigations that it conducts at an employer's worksite. Once at the worksite, the EEOC may seek to interview multiple employees and witnesses. The EEOC may even film areas of the employer's worksite and interview employees under oath.
• The EEOC strongly encourages employers to submit evidence along with their responses to Charges in order to show that the action taken against the employee was based on non-discriminatory reasons.
• The EEOC urges employers to explain the facts in their responses to Charges, instead of focusing on legal arguments.

In light of the EEOC's position and target areas, employers should review their disability leave and sick leave policies to determine if the policies are stringent or if they allow accommodations for specific circumstances. Employers should also review their policies on background checks and evaluate whether those checks are necessary for the job.

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