Employers are likely to face a reinvigorated Equal Employment Opportunity Commission ("EEOC") following changes to the commission, increased federal spending, staff increases and expanded federal legislation. In light of the enhanced enforcement, employers should be prepared to handle and cooperate with EEOC investigations, while insisting that the EEOC remain neutral in investigating charges.
Commission Changes
Jacqueline A. Berrien, the former associate director-counsel of the NAACP Legal Defense and Educational Fund, was sworn in as chair of the EEOC on April 7, 2010. Chai Feldblum was sworn in as a commissioner of the EEOC on that same date. Feldblum is the first open lesbian to serve as a commissioner and she has been a leading scholar in the efforts to achieve equality for lesbians, gay men, bisexuals and transgender people. Victoria Lipnic, a former assistant secretary of labor and the only republican, was sworn in as a commissioner of the EEOC on April 20, 2010. All three will serve no longer than the end of the congressional session in 2011 unless confirmed by the Senate for a full term. By virtue of these appointments, which gives the commission a full slate of five commissioners, the Obama administration has indicated its intent to pursue a pro-employee agenda.
The administration has also targeted the EEOC for major budgetary and staff increases, as is evidenced by the president's request for an additional $18 million in the EEOC's 2011 budget. Most of these funds are committed to adding more than 150 new investigators to help process charges of discrimination filed in 2010, which the EEOC projects will exceed 100,000 by year's end for the first time.
Along with the increase in charges filed, employers can expect a rise in lawsuits brought by the EEOC.
Enforcement Priorities
Moving forward, employers should expect the EEOC to conduct more investigations and to bring more lawsuits, especially in the amended areas of disability discrimination and discrimination in compensation. The Americans with Disabilities Act Amendments Act of 2008 ("ADAAA") makes clear that it intends to provide a "broad scope of protection" to individuals with disabilities. The ADAAA's broad coverage mandate, its expanded definition of "major life activity," the virtual prohibition on employers from considering the effects of mitigating measures (such as medication), and the easing of the burden of plaintiffs to meet the "regarded as disabled" standard, suggest employers can expect a surge in disability charges filed with the EEOC. The ADAAA explicitly granted the EEOC authority to issue regulations implementing the definition of "disability" and the commission is currently focused on drafting final regulations (due out in July) to implement the "broad" effect intended.
Also, the Lilly Ledbetter Fair Pay Act of 2009 ("LLFPA"), which allows employees to file a charge of discrimination within 300 days of the last paycheck paid pursuant to a discriminatory compensation decision, will increase the scrutiny employers face. The EEOC's investigation of allegedly discriminatory decisions that occurred many years in the past, along with an overall increase in charges filed, multiplies the information available to the EEOC in its search to identify and target "systematic discriminators." The EEOC's renewed focus on identifying and litigating discrimination cases involving large classes of individuals was unanimously approved in 2006, and is now in full effect.
EEOC Missteps
While a proactive EEOC is a cause of concern for most employers, recent case law reveals that employers are not helpless when interacting with the EEOC. In theory, the EEOC must investigate charges as a neutral, conciliate in good faith, and cease enforcement when a claim lacks merit. In EEOC v. CRST Van Expedited, Inc., 2010 U.S. LEXIS 11125 (N.D. Iowa Feb 9, 2010) a federal district court awarded $4.5 million in attorneys' fees and expenses to an employer in a failed sexual harassment case where the EEOC did not conduct an investigation of the woman's specific allegations before filing suit. The award has been appealed to the U.S. Court of Appeals for the Eighth Circuit. Also, in EEOC v. Agro Distib. LLC, 2009 U.S. App. LEXIS 959 (5th Cir., Jan. 15, 2009) the Fifth Circuit awarded fees and costs of $225,000 against the EEOC. In that case, the EEOC proposed a high offer to settle a disability discrimination lawsuit for $250,000. The employer's $3,000 counteroffer was not responded to for ten months and then was rejected by the EEOC. When the subject party effectively negated his claims at deposition, the employer requested a dismissal of the lawsuit. The EEOC responded with an offer to settle for $42,000. The court found that the EEOC acted without justification in continuing the lawsuit, granted summary judgment, and awarded fees and costs from the point of the deposition on.
Recommendations
To prepare for a reinvigorated EEOC, employers should:
- Re-evaluate policies and practices to ensure compliance with relevant laws and regulations (especially those due out this summer regarding the ADAAA);
- Self-audit past compensation decisions and pay disparities; revisit document retention guidelines, as the LLFPA could expose an employer to liability for compensation-related discrimination decades after the allegedly discriminatory decision was made;
- Avoid treating the EEOC investigators as adversaries, and instead, engage in measured and honest cooperation while attempting to narrow broad requests for information;
- Participate in the EEOC's mediation process as a good faith attempt to resolve disputes and a method of better assessing the overall situation;
- Tailor responses so as to fully comply with the EEOC's request, without providing unnecessary information that could expose the employer to increased scrutiny; and
- Use counsel to express any perceived EEOC bias to the EEOC or the courts.
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