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Be Prepared for New EEOC Enforcement Efforts

At the recent ALI-ABA program on Advanced Employment Law and Litigation, two high level officials of the Equal Employment Opportunity Commission spoke on the major issues that will face employers at their agency this year.

One emphasis will be in the field of disability discrimination. The EEOC has issued new regulations which auger an increase in claims and cases in this area.  The definition of disability is now so broad that there may be few employees who do not reach that threshold, whether the disability is temporary, or the employee has recovered or is “regarded as” having the disability.  The emphasis for employers will be on whether the alleged victim can perform the essential functions of the job and what reasonable accommodation can be made to allow him or her to qualify for the position.  Employers are well advised to pay strict attention to job descriptions to identify the essential functions of each job and to engage in a discussion of what accommodations are “reasonable” before rejecting an applicant with a disability or refusing to make a particular accommodation on the grounds that it is not reasonable. A comprehensive analysis of the major changes in ADA enforcement can be found in the firm’s Act Now Advisory.

The EEOC will also be paying special attention to discrimination in hiring as the job market improves.  Thus, another major push will follow from the EEOC’s conclusion that credit checks can lead to class-wide disparate impact because minorities and women may have more credit problems than others and that creditworthiness is not a good predictor of qualification for the vast majority of jobs or of threats to the employer which would warrant their exclusion.  See the firm’s Act Now Advisory for more details.  (Several states have already passed or are considering legislation that substantially limits employers’ ability to base employment decisions on credit reports.)

Another area the EEOC will be examining is whether being out of work is a proper criteria for rejecting applicants, on the theory that minorities and women as a group may have been more adversely affected by layoffs in this recession.   This theory may be bolstered by statistics that unemployment rates for white males may be significantly lower than the unemployment rates for minorities and women

Finally, the EEOC will be looking at English-only rules in non-English speaking work forces. The test here will be whether speaking English is necessary within certain areas of an employer’s operation, such as public areas where employees interact with patrons.  The EEOC will likely view with suspicion disciplinary action against employees for speaking a native language to co-workers.