Presented By:

EEOC Initiatives & Trends

Charles H. Wilson

1. Recent Charge Activity and Statistics

2. EEOC’s Strategic Enforcement Plan

3. Noteworthy EEOC Cases

Agenda

Energized EEOC

FY 2006

FY 2007

FY 2008

FY 2009

FY 2011

FY 2012

0

20,000

40,000

60,000

80,000

100,000

120,000

Number of Charges

Charges

Energized EEOC

• Backlog reduced by nearly 8,000

• Resolved 111,139 FY 2012 charges

• Larger recoveries

Energized EEOC

Systemic Investigations 2012 2011

Completed 240 235

Settlements 65 35

Reasonable Cause 94 96

Lawsuits 12 23

Money Recovered $36.2M $9.6M

EEOC Litigation• Texas is “top 5” state for EEOC suits.

• Texas received the most charges (9,952 – 10% of total charges)

• 44% of 2012 EEOC cases were class or mass actions.

• Most were ADA and Title VII cases

EEOC Litigation

Claim Lawsuits

Disability Discrimination and Harassment 45

Retaliation 26

Sexual Harassment 23

Race Discrimination and Harassment 14

Age Discrimination 12

Pregnancy Discrimination 11

Religious Discrimination and Harassment 11

National Origin and Harassment 7

EEOC’s Strategic Enforcement Plan

Strategic Enforcement Plan

• Approved on December 17, 2012

• Road Map of EEOC’s Focus During Next Three Years

• Requires District & Field Office SEPs by March 29, 2013

Strategic Enforcement Plan

1. Hiring and Recruitment Discrimination

2. Emerging Theories

3. Retaliatory Practices or Policies

4. Equal Pay Act Claims

5. Systemic Harassment

6. Human Trafficking

Strategic Enforcement Plan

Top Three Areas

Hiring Discrimination

Disability Discrimination

Disparate Impact Age Discrimination

Hiring Discrimination

EEOC will target screening tools that disproportionately impact racial, ethnic and religious groups, older workers, women and disabled applicants.

Criminal Background Checks

Pre-employment tests

Drug tests

Hiring Discrimination

Criminal Background Checks

Convictions must be job related and consistent with business necessity

Related to the job

Opportunity to explain

Hiring Discrimination

Arrests

Can’t be used alone

Underlying conduct can be used

Misconduct must be job related and consistent with job necessity

ADA (ADAA)

Inflexible leave policies

Direct threat screening

The interactive process

Age Discrimination

Disparate Impact Claims

EEOC will focus on the “Reasonable Factors Other Than Age” defense

Age Discrimination

“Reasonable Factors Other Than Age”

(i) Policy or decision related to the employer’s business

(ii) Employer defined and applied factor accurately and fairly

(iii) Subjective assessments are limited

(iv) Employer assessed the adverse impact

(v) Extent of harm

Noteworthy EEOC Cases

Inflexible Leave Policy

EEOC v. Insterstate Distributor Co.

(D. Co., Nov. 2012)

Leave policy that automatically terminated employees after 12 weeks and required return to work without restrictions.

$5M Settlement

Inflexible Leave Policy

EEOC v. Verizon Communications

(Dist. Md. 2011)

“No fault” attendance policy imposing discipline for absences.

$20M Settlement

Background Checks

EEOC v. Pepsi Beverages (2012)

Policy excluding African American applicants based on arrests or minor convictions without demonstrated job-relatedness or necessity

$3.13M Settlement

Prohibited Inquiries

United States EEOC v. Dillard's Inc.

(S.D. Cal. Feb. 9, 2012)

Attendance policy requiring employee to disclose nature of absence and condition treated violated ADA.

$2M Settlement

Prohibited Inquiries

EEOC v. Dura Automotive

(M.D. Ten. 2012)

Policy that screened out employees based on positive illegal and legal drug tests.

$750K Settlement

Reasonable Accommodation

EEOC v. United Airlines, Inc.,

(7th Cir. Ill. 2012)

Reassignment preference should be given to minimally qualified disabled person over non-disabled employee.

Interactive Process

EEOC v. Western Trading

(D. Col. 2012)

Overkill in requesting information is not good faith interaction for reasonable accommodation purposes

Obesity

EEOC v. Res. for Human Dev., Inc.,

(E.D. La. 2011)

Obesity, and associated heart problems and diabetes are disabilities without proof of underlying physiological limitations.

Retaliatory Policies

EEOC v. Cognis Corp.,

(C.D. Ill. Dec. 12, 2011)

Terminating employee for revoking Last Chance Agreement that restricted rights is retaliatory, and Last Chance Agreement was retaliatory policy.

Retaliatory Policies

EEOC v. Cognis Corp.,

(C.D. Ill. May 23, 2012)

Employer’s summary judgment motion denied because employer anticipated protected activity when it offered Last Chance Agreement.

Contact InformationCharles H. Wilson

cwilson@cozen.com

713.750.3117