By Julie Kramer
Heads up, employers: Things are about to get a little wild in the world of EEOC compliance.
Employment law experts predict that the U.S. Equal Employment Opportunity Commission is poised to pounce on workplace discrimination complaints, sparking a sharp rise in cases.
This is not too surprising. Shortly after her appointment as EEOC chair in 2021, Charlotte Burrows announced that the agency would hire 450 new investigators, attorneys and mediators.
In addition, the EEOC recently modernized its data collection processes and is upgrading its technology to better position itself for increased enforcement activity.
Times are changing. Gerald Maatman, a Seyfarth Shaw Employment Law partner who has faced off with the EEOC in court for nearly 40 years, told Inside Counsel, “Being a defendant in a lawsuit brought by the EEOC today is a very different proposition than it was five years ago.”
He added, “You have a tiger by the tail.”
While it’s tempting to let sleeping tigers lie, it’s better to know where your greatest threats lie and plan accordingly.
EEOC Litigation by the Numbers
According to the EEOC’s most recent Agency Financial Report, the EEOC secured more than $484 million from errant employers in fiscal year 2021, which ended Sept. 30. Through legal settlements and mediation, the agency procured a mix of back pay, front pay and compensatory and punitive damages for more than 15,000 workers.
EEOC filed 116 lawsuits in FY 2021 compared to 101 in fiscal year 2020. The largest boost in activity occurred at the end of the year, perhaps signaling that the lull induced by COVID-19 has ended.
In fact, labor litigation overall has flourished throughout the pandemic. The aggregate value of workplace class-action settlements rose to an all-time high in 2021 with the top 10 settlements exceeding $3.6 billion. Compare that to just under $1.6 billion in 2020 and $1.3 billion in 2019, and it’s clear that the cost of noncompliance is rising substantially.
What’s in the EEOC’s Sights for 2022?
Obviously, the EEOC polices many types of labor discrimination: race, color, religion, national origin, age, disability, genetic information and sex (which itself encompasses the increasingly talked about areas of pregnancy, transgender status and sexual orientation).
A review of the EEOC’s newsroom reveals recent cases involving sex, race and religious discrimination as well as age and disability cases.
For example, one Colorado-based manufacturer denied a hearing-impaired employee’s request for a reasonable accommodation—an American Sign Language (ASL) interpreter. When she complained, she was fired. Now, the EEOC is suing that employer for discrimination and retaliation.
In a recently settled case, a Texas-based health services company denied a newly hired nurse’s request to wear a scrub skirt to comply with her religious beliefs, which call for modest dress, instead of the required scrub pants. The employer denied her request and rescinded the job offer.
Now, the employer must pay the nurse $75,000 in back pay and compensatory damages while conducting anti-discrimination staff training and distributing a notice to employees regarding their workplace rights.
In both cases, what might have been a manager’s poorly thought-out decision ballooned into a costly, damaging problem—one that might have been avoided if the employers had better controls in place.
7 Ways to Steer Clear of Common EEOC Pitfalls
As with all labor compliance issues, the best course of action is to adopt a vigorous, multipronged strategy for maintaining EEOC compliance. As an employer, you can do that by:
- Implementing a formal zero-tolerance discrimination policy that becomes part of your culture and is frequently discussed.
- Outlining employees’ rights and responsibilities in your employee handbook.
- Developing a step-by-step process for addressing complaints while making sure employees know how to report problems and managers know how to respond.
- Reviewing your hiring practices—starting with the job application itself—and weeding out unintentional bias. Ditto your practices regarding raises and promotions.
- Conduct ongoing pay equity audits to ensure you’re paying workers fairly across the board, especially those in protected groups.
- Insisting on rigorous, regular employee and manager anti-discrimination training.
- Making sure you always complete your EEO-1 reports completely and submitting them before the deadline.
This year, navigating EEOC compliance may feel a bit more like picking your way through the jungle, but with a map, a plan and a high-tech survival kit, you can avoid tempting the “tiger” from paying you a visit.