Contact: Andrew Maass, Esq. (802) 786-1028

I recently attended a meeting of corporate Labor and Employment lawyers from throughout the country. We were fortunate to have Naomi Earp, Esq., Chair of the EEOC as one of our guest speakers. The topics she touched upon are insightful, not only to understand the present direction and philosophy of the EEOC, but to comprehend the trends we are seeing in employment discrimination laws and litigation. Chair Earp discussed the following subjects, many of which I have discussed at our recent employment seminars, training sessions and in conversation:

1. The EEOC continues to closely focus on issues of retaliation in all aspects of employment discrimination. The U.S. Supreme Court recently allowed a claim of retaliation where the particular discrimination statute made no direct reference to retaliation protections. The Court also just agreed two weeks ago to hear yet another case on this similar issue but involving a different statue prohibiting discrimination. We should know within a year if the Court will continue to broaden the allowance of retaliation claims or begin to narrow them given the Court’s new composition.

2. The EEOC is actively lobbying for passage of the ADA Restoration Act which is now pending in Congress. In summary, the law would re-focus attention of the ADA back to whether the employee had an impairment with less emphasis on whether or not the impairment is a “disability”, i.e. if employee is otherwise “qualified” for the job.

3. The EEOC is seeing a rather significant increase in claims relating to pregnancy. Nationwide the birth rate in this country is down however, the EEOC has seen an increase the last two years by more than 30% of pregnancy claims. The EEOC has conducted no studies to explain this surprising trend, but the increase in the number of women in the work place might be one explanation.

4. The EEOC Chair, Ms. Earp, has re-invigorated the EEOC’s so-called “Systematic Program” which had been dormant since the Clinton Administration. In summary, the Program focuses on employment practices which may not be discriminatory on their face (disparate treatment) but are discriminatory in their impact on hiring/employment. For instance, the Program closely reviews hiring and promotion practices that focus on name, speech, accent, testing, background checks or arrest records. Most such practices are infrequently used outside metropolitan areas and the southwest; however, many companies utilize background checks, a review of arrest records, or some form of competency testing. Companies should closely monitor the results from using such methods to be sure that statistically there is not a disparate impact on minorities or other protected classes; something we routinely over caution if relying upon, for instance, arrest records versus convictions.

5. Chair Earp briefly touched upon EEOC’s Workers with Care Giving Responsibilities initiative the EEOC rolled out this Summer and Fall. The Enforcement Guidance and “Questions and Answers” publications for this initiative went through final publication in September and are now available at eeoc.gov. We can expect a continued focus on Caregiver Responsibility Discrimination (CRD), also known as CPD (Caregiver Provider Discrimination), throughout the next couple of years. A repeated example used by Chair Earp: admiration given to a father who takes time from work to attend a child’s athletic event, but scorn placed upon the mother who is tardy because she is in charge of daycare/school drop off and pickup or is absent to attend to a sick child. With the continued aging of our population, the initiative focuses upon caregivers of the elderly as well as of children.

Even standing before about 75 lawyers who represent predominately Fortune 500 companies, EEOC Chair Earp was not at all reluctant to explain the philosophy of her Agency to be “relentless paper tigers” who were “established by our government to protect the worker”; and that it did not make a difference to the EEOC if it were “not necessarily be viewed as fair” by the employer. Moreover, she reminded us that this view came from a Chair and Agency appointed and serving during a Republican administration. We admired her frankness.

As always, please feel free to call with any questions, comments or concerns.