Land Mines for the Unwary Employer

My past few columns were written to equip readers with insight into the Equal Employment Opportunity Commission’s (EEOC) shifting agenda, to give diversity executives a sense of what practices and substantive areas the EEOC has targeted and why. The commission’s agenda was never meant to be written in stone.

In its strategic enforcement plan (SEP), the EEOC identified “emerging issues” as a key focus for its overall agenda. The commission has defined these issues as “issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations.” Focusing on emerging issues is consistent with the organization’s long tradition of pushing the envelope to increase media attention.

Some emerging issues are actually well-known, such as pregnancy discrimination. The EEOC is looking at this through a new lens and with renewed vigor. In February 2012, the agency held a meeting on unlawful discrimination based on pregnancy and caregiver responsibilities. “Pregnancy discrimination persists in the 21st century workplace, unnecessarily depriving women of the means to support their families,” said EEOC Chair Jacqueline A. Berrien at that meeting. “Similarly, caregivers — both men and women — too often face unequal treatment on the job. The EEOC is committed to ensuring that job applicants and employees are not subjected to unlawful discrimination on account of pregnancy or because of their efforts to balance work and family responsibilities.”

To that end, the commission recently achieved a victory from the Fifth Circuit Court of Appeals, which unanimously held that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII, as amended by the Pregnancy Discrimination Act. Claudia Molina-Antanaitis, EEOC trial attorney, said, “We hope this litigation sends a message to other women that discrimination based on pregnancy, childbirth and related conditions is against the law and that the EEOC is here to help.”

Some other recent examples of EEOC “emerging issues” include:

Lesbian, gay, bisexual and transgender issues: On March 5 EEOC Commissioner Chai Feldblum spoke at a luncheon in New York and stated that she does not think existing federal law does enough to protect LGBT workers. “It does not provide certainty and clarity with regard to LGBT people,” she said. Feldblum spoke about the history of the commission and how the strategic enforcement plan was meant to address these shortcomings.

Domestic violence: On Oct. 12, 2012, the EEOC published a controversial guidance on the applicability of Title VII and the Americans with Disabilities Act to domestic or dating violence, sexual assault and stalking. Critics complained that these efforts to expand legal theories already covered by existing criminal statutes further strained the very strained resources complained of by the commission itself.

Genetic information: The Genetic Information Nondiscrimination Act (GINA) is not new: it took effect Nov. 21, 2009. GINA prohibits employers from “requesting, requiring or purchasing” an employee’s genetic information. Since 2009, however, GINA has sat quietly on the EEOC’s shelf. That is, until a few months ago.

On May 14, the EEOC resolved a matter against Fabricut Inc. for $50,000 and certain non-monetary relief. The matter arose from the employer’s questions about a temporary employee’s family medical history. Just two days later, on May 16, the commission filed a large-scale case against Founders Pavilion Inc., alleging the employer asked about family medical history in a variety of contexts. More GINA-related litigation may be on the way.

These are just a handful of areas the EEOC has either explicitly or implicitly pursued since the SEP launch at the end of 2012, and additional areas are limited only by the agency’s imagination.

In a climate of administrative cutbacks and sequestering, however, it is unclear whether the EEOC has the resources to chase claims and theories that may not translate to notable wins. Diversity executives would be well-served to stay abreast of these emerging issues, since they are novel and potentially a particular area of vulnerability for most employers.