The Year Ahead for Employment Practices
According to legal analysis, the year ahead for employment practices will see the Equal Employment Opportunity Commission (EEOC) increasingly investigating issues involving hiring barriers, pregnancy discrimination, required accommodations to the Americans with Disabilities Act (ADA), and the question of voluntary participation in wellness programs. These issues are indeed in line with the EEOC’s Strategic Enforcement Plan (SEP) for fiscal years 2012-2016 where priorities were established by the agency to reduce and deter discriminatory practices in the workplace.
The EEOC outlined the following in its plan:
- Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities.
- Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.
- Addressing Emerging and Developing Issues. The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.
- Enforcing Equal Pay Laws. The EEOC will target compensation systems and practices that discriminate based on gender.
- Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts.
- Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace.
One of the emerging and developing issues for the EEOC, is of course, whether a company’s wellness plan is discriminatory, violating the ADA, as we discussed in one of our blog articles in December. Three lawsuits have already been filed against companies for requiring biometric testing and other provisions under their wellness programs.
How is the EEOC doing so far in meeting its priorities? According to a report issued by law firm on EEOC developments, the agency “fell dramatically short” in its systemic investigations initiative in fiscal year 2014 compared with 2013, completing 260 investigations in 2014 compared with 300 in 2013. But the risks of a “reasonable cause” finding of discrimination against employers increased when they were faced with a systemic investigation, according to the report. The agency issued reasonable cause determinations in 118 of the 260 systemic investigations in fiscal year 2014, or 45% of the time, compared with 106 reasonable cause determinations based on 300 systemic investigators in fiscal year 2013, or 35% of the time, the report says.
As employees face increasing scrutiny over their employment practices, it’s critical that EPLI insurance is in place along with strong policies and procedures to strengthen compliance and mitigate potential disputes. Caitlin Morgan specializes in Employment Practices Liability Insurance and can help you secure the coverage your clients need in this litigious environment. Give us a call at 877.226.1027.