Want to tell the EEOC how you feel? Now’s your chance …

The EEOC is seeking public comments on its proposed Strategic Plan for Fiscal Years 2012-2016.

Want to know what the EEOC has in store for next year?

There’s no better place to start than the EEOC’s just-release annual Performance and Accountability Report. Here are a few highlights …

Address Systemic Issues Now

The PAR makes it clear that the EEOC will continue to focus on “investigating and litigating cases of systemic discrimination as a top agency priority.” The numbers bear that out. The EEOC has 580 pending systemic investigations, a 24% increase over last year. It also has 47 pending high-level Commissioner charges — a 20% increase over last year and a 213% increase over five years ago.

What this means for employers: Now is not the time to ignore potentially systemic discrimination. For a bevy of tips on how to avoid becoming an EEOC statistic, check out our latest free webinar.

Don’t Expect Extensions

According to the PAR, the EEOC’s performance standards required it to resolve 54% of its discrimination charges within 180 days. The EEOC fell short, resolving only 41% within 180 days. The result: a rather astounding backlog of 78,136 discrimination charges.

What this means for employers: The EEOC will likely face increased pressure to resolve charges quickly. Employers may be given less time to respond to requests for information and may not be granted extensions to file charge responses.

Consider Mediation

The PAR makes it clear that the EEOC intends to continue emphasizing its mediation program. It notes that in 2011 the program resulted in the “highest number of resolutions in the history of the program.” It had a total of 9,831 resolutions resulting in more than $170 million in recoveries — a 21% increase.

What this means for employers: Expect the EEOC to (strongly) encourage you to engage in mediation if you’re facing a discrimination charge. But don’t be too afraid — 96.9% of participants reported having confidence in the program and said they would use it again.

The EEOC just announced that it set new records for claims and recoveries in the past year.

The Facts

The EEOC received a record 99,947 discrimination claims in fiscal year 2011 (which ended September 30, 2011). That’s the most in the agency’s 46-year history. The EEOC also extracted more monetary awards than ever before: $364.6 million.

Some other facts and figures:

• $170 million in settlements (also a new record) were achieved in the EEOC’s national mediation program.
• 5.4 million individuals “benefited from changes in employment policies or practices in their workplaces.”
• 500,000 people were reached by EEOC’s public outreach and education programs.
• 580 investigations alleging systemic discrimination involving more than 2,000 charges are currently pending.
• 261 lawsuits were filed by EEOC field units, including 61 systemic/class suits.

“I am proud of the work of our employees and believe this demonstrates what can be achieved when we are given resources to enforce the nation’s laws prohibiting employment discrimination,” said EEOC Chair Jaqueline Berrien. For more on this from the EEOC, click here.

What This Means for Employers

Now is not the time to take employment laws lightly. Please (1) make use of all the free tools on the left side of the Blawg, (2) check out all our latest tips in my most recent webinar here and (3) visit the Blawg daily to stay up-to-date on the law.

Just a friendly reminder that the deadline for filing the EEO-1 Report with the government is September 30.

Employers with 100 or more employees (or government contracts of $50,000 or more and 50 or more employees) are required to file an EEO-1 each year with the EEOC’s EEO-1 Joint Reporting Committee. The EEO-1 includes data on protected class representation in various job categories. The EEOC and OFCCP utilize the form to look for potential under-representation and to take potential investigatory/remedeial action.

Penalties for noncompliance can be severe, including a ban on future government contracts and large fines.

For more on EEO-1 procedures — including how to file the report online – click here.

The nation’s largest maternity clothes retailer has agreed to pay $375,000 to settle pregnancy discrimination claims brought by the EEOC.

The Claims

The EEOC alleged that Mothers Work, Inc. (doing business as Motherhood Maternity) refused to hire female applicants because they were pregnant. Motherhood Maternity is the leading designer, manufacturer and retailer of maternity fashion in the U.S., with more than 1,000 stores nationwide.

One employee claimed that she was disciplined and ultimately fired because the company believed she was pregnant (and in retaliation for her complaints of pregnancy discrimination). Three others claimed they were denied employment opportunities due to their pregnancies.

The Settlement

The first employee received $135,000 in compensatory and punitive damages, $130,000 for attorneys’ fees and $50,000 in back pay. The other three employees received $20,000 apiece in compensatory and punitive damages. The company also agreed to adopt, distribute and train all employees on an anti-discrimination policy that prohibits denying employment opportunities to pregnant women.

“It is shocking that a corporation whose market is pregnant women would refuse to employ them and then retaliate against a woman who complained about the practice,” said Nora Curtin, EEOC attorney.

For more on this case, click here.

What This Means for Employers

Pregnancy claims continue to rise. As we discussed in our last webinar, the past year featured a distressingly large number of big-ticket pregnancy discrimination verdicts.

The message is simple: please, please, please don’t discriminate against pregnant employees. If you do, expect the EEOC to come after you aggressively.

Want to express yourself on the EEOC’s policies on arrest and conviction record policies? Now’s your chance.

The EEOC will hold a public meeting at 9:30 a.m. Eastern tomorrow to discuss “employment barriers faced by individuals with arrest and conviction records.” The agenda has three parts:

• Best Practices for Employers
• Overview of Federal, State & Local Programs & Policies
• Legal Standards

Meeting minutes and other info presented at the hearing will be available here.

The EEOC will hold the meeting record open for 15 days. Written comments may be e-mailed to Commissionmeetingcomments@eeoc.gov or mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. All comments received will be made available to EEOC staff and placed in the EEOC library for public review.

The Washington Post has an interesting take on the hearing here. While the author seems to believe that the EEOC is considering softening its stance on this issue, I highly doubt that’s the case.

Stay tuned.

Today, the EEOC announced yet another record-breaking settlement. A large telecommunications company agreed to pay $20 million to settle a nationwide disability discrimination class action.

Background

As discussed previously here and here on the Blawg, the EEOC is openly targeting inflexible leave policies.

Leave can constitute a reasonable accommodation under the Americans with Disabilities Act (ADA) as long as it doesn’t impose undue hardship. That’s exactly the rub. Employer advocates often take the position that indefinite leave is unreasonable and that employers can require employees to return after a set period or be terminated. The EEOC disagrees.

A few weeks ago, the EEOC held a public meeting to discuss the issue. It plans to issue formal guidance on the subject in a few months.

The Claims

In this case, the EEOC alleged that the company unlawfully denied reasonable accommodations to hundreds of employees and disciplined and/or terminated them pursuant to “no fault” attendance policies. The EEOC claimed that the company violated the ADA by refusing to make exceptions to its policies to accommodate employees with disabilities.

More specifically, the EEOC took exception to the company’s practice of placing employees who accumulated a number of “chargeable absences” into a progressive discipline system that could result in discharge.

The Record

According to the EEOC, this resolution is the largest disability discrimination settlement in its history. The press release announcing the settlement also noted that the past year had a record number of discrimination charges nationally (25,165) — up 17.3% over the prior year.

What This Means For Employers

Here’s what the EEOC said: “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.”

What exactly should employers do? Here are some suggestions:

1. Know the ADA (especially the new ADAAA regs) and remember that the definition of “disability” is extremely broad.
2. Take a good, long look at any leave policies that could be perceived as overly rigid by the EEOC. Any policy that imposes a maximum leave amount without exceptions could be subject to scrutiny.
3. Engage in the ADA-mandated interactive process with any employee with a disability who requests extended leave.
4. Call the Job Accommodation Network to discuss any thorny accommodation issues. It’s free and the EEOC loves it when you seek their guidance.
5. Ask your favorite employment lawyer to help you determine whether a leave-related accommodation is (1) reasonable or (2) imposes an undue hardship under the law. That’s not always an easy analysis.

As discussed here on the Blawg, earlier this week the EEOC held a public meeting to “examine the use of leave as a reasonable accommodation.”

So, what happened? Here are the highlights . . .

The Issue

Leave can constitute a reasonable accommodation under the Americans with Disabilities Act as long as it doesn’t impose undue hardship.

That’s exactly the rub. Employer advocates often take the position that indefinite leave is unreasonable and that employers can require employees to return after a set period or be terminated. The EEOC disagrees.

That disagreement has led to some humongous settlements. In 2009, the EEOC settled a case for $6.2 million with a large retailer it alleged had an excessively rigid leave policy. Earlier this year, the EEOC settled a similar case for $3.2 million.

The Discussion

The EEOC issued a press release with its take on the session. Others weighed in as well.

In short, EEOC and employee advocates asserted that inflexible leave policies violate the ADA’s “reasonable accommodation” requirement because they don’t allow for individualized fact-specific determinations. The EEOC made it crystal clear that it intends to continue aggressively pursuing “pattern and practice” cases against employers who enforce such policies.

Employer advocates agreed that leave may be a reasonable accommodation but vigorously questioned the burden the EEOC’s position puts on employers (especially small businesses). One advocate called for the EEOC to provide “more detailed and defined examples of situations where maximum leave policies are called into question and provide examples of times when additional leave will be deemed necessary and when it will not.”

What’s Next?

The EEOC announced that it will accept additional written comments on this issue through June 23.

Want to express yourself? You can email your comments to Commissionmeetingcomments@eeoc.gov or mail ‘em to:

Commission Meeting
EEOC Executive Officer
131 M Street, N.E.
Washington, D.C. 20507

The EEOC plans to issue its official written guidance on this subject in a few months. So, speak now or forever hold your peace.

Want More?

Additional info about this meeting, including a video of the proceedings and written witness statements is available here.

This Wednesday (June 8), the EEOC will hold a public meeting to “examine the use of leave as a reasonable accommodation.”

Leave can constitute a reasonable accommodation under the Americans with Disabilities Act as long as it doesn’t impose undue hardship. That’s exactly the rub. Employer advocates often take the position that indefinite leave is unreasonable and that employers can require employees to return after a set period or be terminated. The EEOC disagrees.

That disagreement has led to some humongous settlements. In 2009, the EEOC settled a case with a large retailer for $6.2 million it alleged had an excessively rigid leave policy. Earlier this year, the EEOC settled a similar case for $3.2 million.

Click here for all the meeting details.

(Special thanks to The Blog of Legal Times)

Do you know the ADAAA?  Click here for our cheat sheet.

Surprisingly few people are talking about the final rule recently issued by the EEOC implementing the ADAAA. Here are the highlights.

What employers are covered? Those with 15 or more employees.

Effective date. 60 days after the publication of the regulations on March 25.

Easier to establish a covered “disability.” The ADAAA overturned several Supreme Court decisions that Congress believed interpreted the ADA disability definition too narrowly. The ADAAA expressly states that the definition of “disability” and “regarded as” should be interpreted in favor of broad coverage.

Same “disability” definition but broader interpretation. The basic definition of a covered disability remains the same — a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. However, the EEOC stresses that the ADAAA and new regulations are designed to ensure broad interpretation of each of those key terms.

Rules of construction. According to the EEOC, the regulations “implement Congress’ intent to set forth predictable, consistent, and workable standards by adopting ‘rules of construction’ to use when determining if an individual is substantially limited in performing a major life activity.” Those rules include:

• “Substantially limits” construed broadly. “Substantially limits” requires a lower degree of functional limitation than the standard previously required by courts. A condition need not prevent or significantly restrict a major life activity to be considered “substantially limiting.”
• Individualized assessment. The determination of whether a condition substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.
• Don’t consider mitigating measures. With the exeception of “ordinary eyeglasses or contact lenses,” the determination of whether a condition substantially limits a major life activity must be made “without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.”
• Do consider episodic or remission conditions. Such conditions are covered disabilities if they substantially limit a major life activity.
• No extensive analysis required. The EEOC says that “in keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.”

Reasonable accommodation. The regulations clarify that an individual must be covered under the ADA’s first prong (“actual disability”) or second prong (“record of disability”) to qualify for reasonable accommodation.

Conditions that “virtually always constitute a disability.” The regulations provide examples of conditions that “should easily be concluded to be disabilities,” including bipolar disorder, cancer, diabetes, epilepsy and HIV infection.

Q&A. Click here for a Q&A prepared by the EEOC and here for one specific to small businesses.