EEOC expands contexts for disability, discrimination claims, review shows

The Equal Employment Opportunity Commission is increasingly attempting to expand the range of pretexts for filing lawsuits based on familiar laws such as those prohibiting sex and race discrimination, a review of cases the agency recently filed shows.As the EEOC’s fiscal year closed, the law firm Seyfarth Shaw analyzed a flurry of recent EEOC lawsuits for trends and insights to help employers avoid the agency’s wrath.

The highest number of cases filed were related to Americans with Disabilities Act (ADA) claims. A disproportionately high 45 percent of claims were filed in just three of the EEOC’s 15 regional offices nationwide: Chicago and Philadelphia with 22 each and Charlotte with 18, with Houston a distant fourth  ranked  concentration of nine cases. The median number of cases across all 15 districts was six.

Familiar classifications of  claims were filed based on new pretexts, such as sex discrimination based on firing a woman for breast pumping at work and race/national origin discrimination based on using criminal background checks as a hiring screen. There were also brand new types of claims filed, including those under the Equal Pay Act and the Genetic Information Nondiscrimination Act (GINA).

Both the disability claims and background check cases are noteworthy, says Pete Morrison, a partner in K&L Gates’  labor, employment and workplace safety group. Like the sex and race cases filed based on new sets of circumstances, the disability cases reflect the EEOC’s effort to expand the envelope of  employer conduct subject to litigation. Fairly new in the disability context, according to Morrison, is the EEOC’s broader view of employers’ reasonable accommodation obligations when employees are unable to work at all.

‘The EEOC takes an aggressive view that an employer cannot use a definitive timeline, even as long as one or two years, to discharge an employee who has been unable to return to work without doing a personalized and particularized reasonable accommodation analysis that may include additional leave of absence time,’ says Morrison.

Although the courts have yet to validate the EEOC’s position on the use of criminal background check as a hiring screen, Morrison says employers can take steps pro-acively to minimize their litigation risk.

‘Broad policies related to all types of criminal convictions and positions are not likely to pass muster with the EEOC,’  Morrison says. But disqualifying someone convicted of drug possession or driving while intoxicated as recently as within the past three years from a job that involves operating heavy machinery or barring a person convicted of embezzlement or other business theft from a bookkeeping position should be harder for the EEOC to argue against.

Employers also face uncertainties as the EEOC ramps up enforcement of GINA, particularly in view of how social media can complicate GINA issues, says Vincent Cino, chairman of Jackson Lewis.

For example, if an employer discovers on Facebook that a job applicant is doing a fundraiser for cancer research, motivated by her spouse’s  cancer diagnosis, and doesn’t hire the applicant, the reason for not hiring her could come under EEOC scrutiny.

‘Was that because the person wasn’t qualified, or because there was [prior knowledge] of a disease that could impact the employer’s health insurance [premiums] or the time the person might be able to spend at work?’ Cino asks. GINA covers the latter scenario, which 10 years ago was nearly inconceivable, he adds.

Given the volatile enforcement landscape, Morrison suggests employers keep abreast of all EEOC changes in regulations and guidance in these topics, which usually augur future litigation efforts.

The enforcement landscape is evolving so rapidly, says Cino, that companies need to communicate with their counsel early and often, particularly because there is scant legal precedent to provide guidance to employers when the contexts in which  the laws are being enforced are so new.   

Whenever there is a new EEOC regulation,’employers need to be trained as soon as possible to follow those rules. Being proactive is key,’ he says.  

GINA is a prototypical example of why consulting counsel for a careful analysis of company practices is more important than ever. Why it was promulgated is understandable, but now the question will be how it is interpreted and enforced, says Cino. 

An additional concern for employers: The EEOC’s positions have also emboldened plaintiffs’ lawyers to file similar claims regarding both background checks and reasonable accommodation obligations, says Morrison.