Is your business prepared for the risks posed by new enforcement priorities?
An economic downturn historically produces a corresponding increase in claims against employers for unlawful employment practices. The current recession is no exception.
For the third consecutive year, the U.S. Equal Employment Opportunity Commission (EEOC) received nearly 100,000 charges of discrimination. Specifically, in 2012, the EEOC received 99,412 charges from aggrieved workers, a significant increase from the roughly 75,000 annual charges it received in 2005 and 2006. Eighty-five percent of these charges were filed against private employers.
These statistics underscore the risk of exposure faced by most employers, as the past three years marked a record number of charges filed in the EEOC’s history.
New Jersey businesses should be mindful of this increased activity and pay close attention to their employment practices to reduce the likelihood of being subject to an EEOC charge.
Charges of racial and sexual discrimination, as well as retaliation, continue to be the most frequent claims aimed at employers. However, recent activities by the EEOC signal its intent to focus the agency’s clout toward emerging forms of workplace discrimination.
In December 2012, the EEOC issued its Strategic Enforcement Plan identifying the agency’s official enforcement priorities for the next four years. It emphasized the following areas of concern:
- Protecting immigrant, migrant, and other vulnerable employee populations;
- Expanding protections against sexual discrimination and sexual stereotyping to lesbian, gay, bisexual, and transgender employees;
- Reviving requirements accommodating pregnancy-related limitations and increased enforcement against pregnancy discrimination;
- Increasing efforts to protect workers with caregiving responsibilities for children and elderly family members; and
- Eliminating workplace discrimination, harassment, and stereotyping of employees experiencing domestic violence, sexual assault, or stalking.
Based on the EEOC’s recent activities, employers should also expect increased focus on the Americans with Disabilities Act’s interactive process requirement and gender-based pay disparities. Employers can also expect increased focus on processes for screening job applicants utilizing criminal background checks, credit history, disabilities, and unemployment status.
The recent increase of discrimination charges and the quickly evolving enforcement priorities highlight the need for employers to work closely with experienced employment attorneys. In a difficult economic climate, employers are understandably attempting to accomplish more with less.
Whether it be wage or salary reductions, increased scrutiny of employees, terminations of inefficient or unnecessary workers, or group reductions in force, all of these efficiency measures increase the likelihood that an employer will face a claim that it violated one of the numerous federal and state laws governing the workplace.
Experienced counsel can assist employers in avoiding the legal pitfalls that frequently result in EEOC charges without sacrificing the business strategies necessary to thrive in an increasingly competitive global marketplace. A periodic review of employment manuals, policies and procedures can uncover potentially unlawful practices before they develop into costly, embarrassing EEOC actions that often involve far-reaching investigations into an employer’s activities.
Annual training seminars offer another cost-effective avenue to provide workers and managers with the knowledge to spot potential problems and resolve them before they develop into a claim of discrimination.
You should immediately contact legal counsel if you are served with an EEOC complaint. An EEOC charge is, for many employment statutes, a prerequisite to instituting a civil action and in many instances the administrative process is merely the harbinger for future litigation.
Skilled legal counsel from the outset of a charge can prevent an employer from making critical mistakes that may affect the outcome of that matter or come back to haunt the employer in subsequent claims brought by other employees. Moreover, counsel’s ability to quickly dispose of discrimination charges at the administrative level can save an employer hundreds of hours in lost productivity and tens of thousands of dollars in counsel fees, preventing the possibility of even more costly litigation.
Steven Srenaski, an associate with Florio Perrucci Steinhardt & Fader who focuses primarily on labor and employment matters. Steven serves as lead counsel on a wide array of employment-related disputes, including discrimination, harassment, retaliation, wrongful discharge, whistleblowing, employee misconduct, restrictive covenant and wage and hour litigation. Steven is also a member of the firm’s complex litigation practice, where he frequently represents parties in civil rights litigation involving federal and state constitutional claims.