EEOC Charges Set Multiple Records

On November 15, 2011, the EEOC released its annual Performance and Accountability Report, revealing that the agency received 99,947 charges of employment discrimination in fiscal year 2011, which is the highest number of charges filed in one year since the EEOC was established in 1965. That is approximately 274 charges per day. According to the Report, the EEOC ended its fiscal year with 78,136 pending charges, which is a decrease of 8,202 charges from the prior fiscal year.

The EEOC also obtained more than $364.6 million in monetary benefits for charging parties through administrative enforcement.  This is the highest level of monetary relief obtained in the EEOC's 46-year history.

In a written statement coinciding with the release of the Report, Jacqueline A. Berrien, chair of the EEOC, said “I am proud of the work of our employees and believe this demonstrates what can be achieved when we are given resources to enforce the nation’s laws prohibiting employment discrimination.”  She also said that “[t]he EEOC was able to take full advantage of increased resources in the past two fiscal years to make significant progress towards effective enforcement of the nation’s civil rights laws.”

As long as the economy continues to struggle and unemployment rates remain high, employers can anticipate that the number of EEOC charges will remain at historic levels.

Bending With the Wind: EEOC's Attack on Inflexible Leave Policies

Much publicity has been given to the recent $20 million settlement (for good reason) the EEOC negotiated with Verizon Wireless concerning the company's leave policy. The Verizon settlement is now the largest example of the EEOC's enforcement approach concerning "inflexible medical leave policies." This case is an illustration of what many experts predicted would be the paradigm shift in ADA analyses under the 2008 Amendments: the question is no longer whether the employee is disabled, but rather what an employer is doing to provide a reasonable accommodation.

The most recent settlement, while eye-popping, is not the first foray by the EEOC into this specific area of ADA enforcement:

• August 2001: The EEOC settles a reasonable accommodation suit against Blood Systems, Inc./United Blood Services for $650,000. The Commission claimed that the employer's medical leave policies "illegally required termination of a class of employees with disabilities after 120 days without consideration of whether an extension would be a reasonable accommodation in accordance with the ADA."
• August 2009: The EEOC sues UPS for summarily enforcing a leave policy that results in termination of employment if the employee is unable to return to work after a 12-month leave of absence for at least 30 days.
• September 2009: The EEOC enters into a consent decree with Sears, Roebuck and Co. for $6.2 million (at the time, the largest ADA settlement in a single lawsuit for the Commission). The EEOC had sued Sears claiming that the company's "inflexible workers' compensation leave exhaustion policy" illegally discriminated against employees with disabilities by failing to assess whether additional leave would be a reasonable accommodation.
• August 2010: The EEOC files suit against Princeton HealthCare System for enforcing "leave policies that do not provide reasonable accommodations" by terminating employment of individuals who are unable to return to work within 7 days (if not eligible for FMLA) and refusing to grant FMLA-eligible employees leave beyond the mandated 12 weeks.
• September 2010: The Commission files suit against United Road Towing for an inflexible 12-week medical leave policy.
• September 2010: Texas concrete manufacturer Ingram Readymix is sued by the EEOC for allegedly denying periodic leave to an employee for medical treatment.
• October 2010: California company American Apparel is sued by the Commission for terminating an employee who needed additional leave for chemotherapy after he had taken approved leave for the initial treatment.
• January 2011: Supervalu (Jewel-Osco) settles a suit brought by the EEOC for $3.2 million. The Commission alleged that the company "operated an overly rigid and illegal disability leave policy" that terminated disabled employees if they could not return to work after a year without any need for accommodations or physical/mental restrictions.

An employer's take-away from all of this can be found in a quote from one of the EEOC's regional attorneys: "The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over."

If you haven't already re-evaluated your leave policies, these examples are hopefully an impetus to do just that. While hardwoods have their place, your leave policy might be more appropriately constructed as a willow.

Speaking of giving . . .

The U.S. Department of Labor requested $117 billion for its fiscal year 2010 budget. Most of the money is to be used for unemployment insurance funds and job restructuring initiatives, but it shouldn't be overlooked what the DOL is requesting for its own staff: more than 350 new hires, including 177 investigators and enforcement staff. The DOL will emphasize hiring bilingual staff members "to better communicate with employees in the changing workplace."

The allocation request breaks down to half a billion for OSHA, and $244 million for Wage & Hour (with funding earmarked for 90 new investigators in that division), with $25 million of that for a Misclassification Initiative aimed at looking more closely into whether an individual is an employee incorrectly classified (hence, the name) as an independent contractor.

One carrot for States: a $50 million State Paid Leave Fund to "encourage" states to apply for competitive grants to launch paid-leave programs and offset start-up costs.