Protection against unlawful treatment in the workplace is a goal shared by employers and employees alike. Employers that may have relaxed their compliance with federal employment and discrimination laws during the pandemic take note: the U.S. Equal Employment Opportunity Commission (EEOC) has been ramping up its enforcement activities; meaning employers should refocus on their internal review, implementation, and compliance with anti-discrimination, harassment, retaliation laws under the EEOC’s enforcement arm to avoid EEOC changes, investigations, and lawsuits.
EEOC is ramping up lawsuits:
The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against or harass a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, transgender status, and sexual orientation), national origin, age (40 or older), disability or genetic information. The EEOC also enforces the anti-retaliation provisions of these statutes, which make it illegal for an employer to retaliate against an applicant or employee for raising a claim of discrimination or harassment or for otherwise participating in an underlying investigation.
Last year the EEOC reported a spike in lawsuits and an increase in settlement monies recovered—up to $535.4 million—by the EEOC. The number of cases filed by the EEOC in the last several months of 2021 further forecast a busy year ahead for the EEOC and employers in 2022. A review of the EEOC newsroom as of the date of this article indicates that a total of 13 cases have resulted in settlements to the EEOC since January 1, 2022, including:
- Blue Sky Vision Pays $67,590 to Resolve EEOC Disability Discrimination Suit (February 22, 2022);
- AMG Specialty Hospital to Pay $82,481 to Settle EEOC Sexual Harassment Case (February 22, 2022);
- Groendyke Transport / McKenzie Property Management to Pay $65,000 to Settle EEOC Disability Lawsuit (February 15, 2022);
- Ranew’s Management Company to Pay $250,000 to Settle Disability Discrimination Lawsuit (February 14, 2022);
- American Freight Furniture and Mattress to Pay $5 Million to Settle Nationwide EEOC Sex Discrimination Suit (February 02, 2022);
- Wellpath to Pay $75,000 to Settle EEOC Religious Discrimination Case (February 1, 2022);
- Tampa Bay Delivery Service to Pay $50,000 to Settle EEOC Religious Discrimination Lawsuit (January 27, 2022);
- National Car Dealers to Pay $150,000 to Settle EEOC Disability Discrimination Lawsuit (January 20, 2022);
- Don’s Specialty Meats to Pay $67,500 to Resolve EEOC Lawsuit (January 19, 2022);
- Vantage Oil & Gas Exploration Companies Settle EEOC Disability Claim (January 19, 2022);
- Charter Senior Living to Pay $31,000 to Settle EEOC Disability Discrimination Lawsuit (January 13, 2022);
- Dollar Tree Distribution to Pay $50,000 to Settle EEOC Disability Discrimination Suit (January 12, 2022);
- Car Dealer to Pay $100,000 to Resolve EEOC Lawsuit Alleging Disability Discrimination (January 6, 2022).
Does my company fall under the jurisdiction of the EEOC?
Most companies fall under the purview of the EEOC. Specifically, employers with at least 15 employees are covered by EEOC laws (20 employees under age discrimination cases). The EEOC laws include Title VII, the Pregnancy Discrimination Act; the Equal Pay Act; the Age Discrimination in Employment Act; Title I of ADA, the Rehabilitation Act, and the Civil Rights Act. The EEOC laws apply to all work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. Employers who become subject to an EEOC investigation or, worse yet, a lawsuit, find themselves in a crisis, dealing not only with the employee and their claims, but also with the larger work culture implications, negative headlines (particularly at a time when employers are fighting to retain employees), and potentially drawn-out litigation.
What does this mean for employers?
Employers have undergone profound changes as companies have been severely damaged through failed legal compliance with federal and state anti-discrimination laws. As a result, employers must recognize that compliance programs are essential and must review and update anti-discrimination and anti-harassment policies and procedures on a regular basis. This is because failing to fully comply with federal and state employment laws could leave a corporation liable for thousands or millions of dollars. Thus, employment law must become a fundamental component of any comprehensive and, therefore, effective risk reduction compliance program.
One need not look far to find instances where a company’s failure to maintain effective harassment or anti-discrimination policy has resulted in substantial harm or costs to the employer.
For example, in Foster B. v. Dep’t of Health & Human Serv., EEOC Appeal No. 2019005682 (April 12, 2021), the EEOC found that the Complainant was subjected to a hostile work environment based on sex (sexual orientation). Complainant, a Supervisory Health System Specialist, filed an EEOC complaint alleging, among other things, that the employer discriminated against and subjected him to a hostile work environment based on sex (male, sexual orientation). Specifically, Complainant asserted that management permitted and/or failed to address verbally abusive comments, insults, name-calling (specifically referring to Complainant using a degrading sex-based epithet), ridicule, and insubordination from Complainant’s subordinate over a nearly two-year period. On appeal, the EEOC found that Complainant was subjected to a hostile work environment as alleged. The EEOC found that the employer was aware of the conduct at issue and management officials did not take prompt and effective action once they became aware of the wrongful conduct. Instead, management officials placed the onus on Complainant to discipline the employee or file an EEOC complaint. The record indicated that Complainant had reported his concerns verbally and in writing to the Deputy Director, who did nothing to address the conduct. Finally, the EEOC found that the employer’s Workplace Anti-Harassment Policy Statement failed to effectively communicate EEOC policies and procedures because it did not clearly establish the complaint procedure or ensure confidentiality to the extent possible.
Takeaways for employers:
- Effective employment law compliance policies and programs are a legal necessity: case studies from recent employment law cases demonstrate that compliance measures implemented at the HR level can shield a company from liability altogether or limit the potential damages available to plaintiffs. Effective compliance measures must include routine self-audits of the company’s employment law policies and adequate training to employees on identifying and preventing discrimination based on age, race, national origin, religion or sex in the workplace and how to avoid harassment based on protected characteristics. By way of example, employers should review and update their policies under Title VII and the ADEA to protect its workforce and should document such training to avoid harassment liability by showing they “exercised reasonable care to prevent and correct promptly” any harassing behavior. Therefore, under both federal and state law, an employer who proactively provides anti-discriminatory training and institutes an effective harassment policy may protect itself from liability or substantial damages.
- Employers must embrace employment law as a necessary component of any thorough and, therefore, effective compliance program. In order to successfully integrate employment law into the compliance function, HR and the employer’s role in the day-to-day lives of employees and expertise in employment law must be strengthened.
- When comments related to a protected status are made, management must step in and document some corrective action because it is the right thing to do and because the discipline notice will become the defendant’s Exhibit A.
- Workers need training to ensure comments made by management or staff don’t become the plaintiff’s Exhibit A in a case.
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