Editor's Note
Hot Issues for the EEOC
The EEOC is filing more lawsuits to enforce discrimination laws. Over the past five years, the EEOC's litigation numbers have varied, in part due to the pandemic. The EEOC filed 144 merit lawsuits in 2019, which is a lot. The number dropped significantly in 2020 to 93 because of the pandemic shutdown. Fewer people were working and fewer people were working together, both of which reduce employment discrimination and harassment.
In 2021, the EEOC filed 116 lawsuits. In 2022, it filed 91. But in 2023, the number jumped back up to 143 lawsuits.
The EEOC generally files two types of lawsuits against employers. One is on behalf of a group of employees in a "systemic" or class suit alleging that the employer's practices or policies discriminate. Systemic lawsuits are more complex and take more time and resources to litigate. The other type is an individual claim challenging how an employee was treated in specific circumstances.
The types of discrimination the EEOC alleged most frequently in 2023 were sex (35%), disability (34.3%), and race (16.8%) discrimination, and retaliation (39.2%). The percentages add up to more than 100% because most claims involve multiple kinds of discrimination. Retaliation is the one of the most frequent claims because it's often the easiest to prove. If someone tells you that they feel discriminated against, please don't handle it on your own. Get some legal advice on what to do and most importantly, what not to do.
In addition, the EEOC website has some fascinating data which is searchable by demographic, industry and geography. For example in 2022, men out numbered women in executive position by almost 2 to 1 and women outnumbered men in administrative assistant positions by more than 3 to 1.
We'll see if the EEOC starts collecting pay data next year. In the meantime, some states like California and Illinois have already started requiring employers to report pay data to state regulators.
Here's more on what the EEOC has been up to in 2024, including a new case on pay discrimination
- Heather Bussing
In recent weeks, the EEOC has filed a number of lawsuits on behalf of individuals, alleging a range of employment claims. Here, we provide a brief overview of those lawsuits and the issues that may be on the EEOC’s mind.
The Lawsuits
As you likely know, a current or former employee bringing certain claims against an employer must first file an EEOC charge. Once the EEOC concludes its proceedings and gives the employee a Notice of Rights to Sue, the employee can bring a lawsuit in court against the employer. However, in certain circumstances, the EEOC will step in as the formal plaintiff and will bring the lawsuit on the employee’s behalf. When the EEOC does this, it can indicate that the EEOC feels that the lawsuit has merit and/or that the EEOC’s current priorities or agenda include the underlying issue in the lawsuit.
Recently, the EEOC has filed lawsuits on behalf of employees that are gaining attention. As noted, this could indicate that the underlying issues are on the forefront of the EEOC’s mind. Here are the claims and issues involved:
- EEOC v. Sanmina Corporation (work from home accommodation) – The EEOC alleges that the employee worked remotely during the COVID-19 pandemic (and for some limited time thereafter) but that she was denied a work-from-home accommodation for her disability —osteoarthritis and other conditions that made movements such as walking across the employer’s large parking lot difficult — after the pandemic ended. The EEOC claims that the employee could perform the essential functions of the position remotely, so refusal of the accommodation violated the ADA.
- EEOC v. HSS Security (sex discrimination in hiring) – The EEOC alleges that an employer told a recently hired female security guard that the job was “physical” and she said that was fine with her. However, the EEOC claims that the employer then withdrew her job offer and hired two men, alleging sex discrimination in violation of Title VII. According to the EEOC, the job description simply required prior security guard experience, the ability to obtain and maintain firearm and TASER licenses, a driver’s license, a working knowledge of firearms, and supervisory experience (listed as a preferred qualification).
- EEOC v. Gracious Bakery (pregnancy accommodation) – The EEOC alleges that a pregnant employee was terminated after she missed a few days due to emergency pregnancy complications. The EEOC brought its claims under Title VII and the ADA. Ultimately, the parties settled the claim, including an agreement from the employer that it would conduct annual employee training, revise its policies, provide regular reports to the EEOC regarding pregnant workers and applicants, and post a workplace notice regarding Title VII, the ADA, and the Pregnant Workers Fairness Act (PWFA).
- EEOC v. AccentCare Home Health Care (sex discrimination in pay) – The EEOC alleges that the employer paid a female employee less than male counterparts, even though she performed the same work and had superior qualifications. The EEOC also alleges that the employer retaliated against her by terminating her employment after she complained about the pay disparity and requested a raise.
Takeaways
While you want to keep your eye on all areas of potential employment law risks and compliance, these recent lawsuits may indicate that the EEOC has certain issues on the brain. So, remember:
- Pay attention to the things the EEOC is focused on, such as work-from-home accommodations, accurate job descriptions, pregnancy, and equal pay.
- Make sure your policies and procedures are up to date with current laws.
- Pay particular attention to accommodation requests or needs from pregnant employees. As we have previously reported, pregnancy is a big topic for the EEOC at the moment, and it has recently filed two PWFA lawsuits in addition to the pregnancy lawsuit mentioned above. So, keep the PWFA in mind and revise policies as needed.
As always, consult with legal counsel for help on these items.
