EEOC Releases 2009 Statistics on Charges and Litigation

Posted on January 19, 2010 by Joseph Dole

The Equal Employment Opportunity Commission (“EEOC”) recently released statistics on its charge processing and litigation which include data from 1997 through 2009. As others, including the New York Times , have reported, the data shows overall charge filing down about two percent from 2008.  However, the continued high number of charges is the real story, because 2008 was a record year for charges. Thus, although there was a slight decrease in age discrimination charges in 2009, even those stayed close to the record levels of 2008. In fact, age charges for 2009 are up more than 42 percent over the last ten years. Harassment charges of all types also decreased significantly (5.8%), but again from the record 2008 levels. The subgroup of sexual harassment charges decreased at a greater rate, 8.4%. Interestingly, the percentage of sexual harassment charges filed by males stayed about the same, 16%.


Some types of charges did increase. Charges filed based on disability (up 10% from 2008), religion (up 3.5%) and national origin (up 5%) are at record levels. Charges alleging race discrimination and sex discrimination stayed very close to their record levels of 2008, and make up about 36% and 30% respectively of all charges filed. Overall, Commission charges have increased almost 16.8 percent from fiscal year 2000.


Paradoxically, the increase in number of charges over the last decade has not caused a corresponding increase in suits filed by the Commission. The number of lawsuits filed by the Commission in 2009 (314) represents a 32.5% decrease from the record setting year of 1999 (465).
 

Tags: , ,

EEOC Continues to Attack "No-Rehire" Policies

Posted on December 16, 2009 by Jim Holahan

Employers forced to implement voluntary separation or early retirement incentives to deal with the recent economic downturn sometimes make a no-rehire policy part of the package. There may be sound business reasons for doing so, for example, to avoid paying a salary to someone who was supposed to leave employment and is receiving separation or retirement benefits. However, employers who include a no-rehire policy as part of a separation incentive package run the risk of having to defend an age discrimination lawsuit if the policy is later applied to prevent a rehire. Recently, the Equal Employment Opportunity Commission ("EEOC") filed such a suit in federal court in New York. EEOC v. AT&T, Inc., Civil Action No. 09 Civ. 7323 (S.D.N.Y. 2009).

EEOC’s complaint alleges that, among other things, a no-rehire policy violates the Age Discrimination in Employment Act because it has an adverse impact on employees and applicants who are age 40 or older. The theory is that older employees are more likely to be denied employment under a no-hire policy because they are more likely to have accepted a voluntary separation or early retirement incentive.

Whether such a disparate impact claim is even available in the context of a failure to hire is open to question. However, EEOC has obtained a favorable decision on that issue from at least one other court. In EEOC v. Allstate Insurance, Co.,   (8th Cir. 2008), the United States Court of Appeals for the Eighth Circuit considered a similar “no-rehire” policy that applied to “employee-agents” who were terminated as part of a corporate reorganization. Allstate’s policy prohibited the rehire of any terminated employee-agent for one year or for so long as that employee was receiving severance benefits, whichever period was longer. Ultimately, the Eighth Circuit held that the “rehire” policy was an “employment policy” and not a “hiring policy,” and that the policy was therefore subject to a disparate impact challenge under the ADEA. Allstate reportedly settled the case for $4.5 million.
 

Tags: , , ,

Comment Period Closes on EEOC's ADAAA Proposed Regulations

Posted on December 11, 2009 by Andrew Bobrek

As we reported earlier this year, the Equal Employment Opportunity Commission (“EEOC”) has proposed regulations implementing the Americans with Disabilities Act Amendments Act (“ADAAA”). The EEOC published its proposed regulations in September, and the period for public comment recently closed on November 23, 2009. The EEOC will now evaluate the comments it has received and then issue final regulations, which may or may not include changes to the proposed rules.

Consistent with the intent of the ADAAA, the EEOC’s proposed regulations would broaden the definition of what constitutes a protected “disability” under federal law. The EEOC believes that this will have the effect of shifting the focus of litigation away from whether a person’s impairment is a covered “disability,” and to the issue of whether an employer has complied with its obligations under the law.

While many aspects of the proposed regulations appear to reasonably interpret the ADAAA, commentators have noted there are some provisions which, at least arguably, constitute overreaching on the EEOC’s part. Among the most controversial of these provisions are the following:

 

New List of “Per Se” Disabilities

Perhaps the most controversial element of the proposed regulations is the EEOC’s creation of what some commentators have called a “per se” list of protected disabilities. The ADAAA itself neither contains such a list, nor expressly authorizes the EEOC to create one. The EEOC claims its non-exclusive list does not preclude employers from undertaking an “individualized assessment” to evaluate a potential disability. At the same time, according to the agency, the list is intended to ensure this assessment “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

Elimination of “Condition, Manner, or Duration” Analysis

The proposed regulations would redefine the term “substantially limits,” by eliminating the previous “condition, manner or duration” evaluation used by employers to determine whether an impairment substantially limits a major life activity. Instead, the regulations state this evaluation should be made on the basis of “common-sense” and “without resorting to scientific or medical evidence” by comparing an individual’s limitation to “the ability of most people in the general population.” (The ADAAA does not expressly address this issue, and the statute’s legislative history suggests that the drafters intended to preserve the “condition, manner, or duration” analytical device.)

“Major Life Activity” of “Working”

The proposed regulations would also alter the framework employers are required to use to analyze whether an impairment substantially limits the major activity of working. (The ADAAA is silent on this issue as well.) Specifically, under the proposed regulations, “an impairment substantially limits the major life activity of working if it substantially limits an individual’s ability to perform, or meet the qualifications for, the type of work at issue.” This new framework would replace current law which requires an inability to perform a “broad range” or “class” of jobs.

Less controversial, but nonetheless noteworthy, are the following provisions:

Expansion of “Major Life Activities” and “Major Bodily Functions” Lists

The proposed regulations would expand the list of “major life activities” found in the ADAAA, to include: sitting, reaching and interacting with others. Similarly, the proposed regulations would expand the ADAAA’s list of “Major Bodily Functions” to include: hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary and cardiovascular.

Expansion of “Mitigating Measures” List

The proposed regulations supplement the ADAAA’s list of mitigating measures, which may not be considered in determining whether an individual has an impairment which substantially limits a major life activity, to include surgical interventions that do not permanently eliminate an impairment. However, EEOC takes the position that mitigating measures may be taken into consideration for other purposes, for example, to determine whether a reasonable accommodation is required or to determine whether an individual poses a “direct threat” in the workplace.

Although it is not known when the EEOC will issue its final regulations, Commissioner Constance Barker has stated it could be as early as March 2010. We will continue to monitor and report on any noteworthy developments.
 
Tags: , , , , , , , ,

EEOC Issues Additional Guidance Concerning Discrimination Claim Waivers

Posted on July 30, 2009 by Robert LaBerge

On July 15, 2009, the EEOC issued additional guidance to employees and employers on the use of releases in employment severance agreements.  After acknowledging the current economic downturn and the resultant increase in workforce reductions, the EEOC noted that increasing numbers of employees are being presented with severance agreements containing release language and are wondering: “Is this legal? Should I sign it?”  The EEOC Guidance is designed to assist employees in understanding waiver agreements and answering these questions.  The Guidance is also useful to employers seeking to develop severance and release arrangements that will pass muster with the EEOC. 

The EEOC Guidance provides instruction on the general requirements for a valid release of discrimination claims, as well as on the additional requirements applicable to age discrimination waivers covered by the Older Worker Benefit Protection Act (“OWBPA”) amendments to the Age Discrimination in Employment Act (“ADEA”).  The EEOC has issued detailed regulations interpreting and implementing the OWBPA/ADEA waiver rules (29 CFR § 1625.22), and much has previously been written about the requirements that must be satisfied to obtain an effective age discrimination waiver.  See BS&K Information Memos: "EEOC Issues Final Regulation On Waivers Under The Age Discrimination In Employment Act"  (Jan. 2001); "Lack of Valid Employment Releases Can Lead To Lawsuits" (Apr. 1998).  The EEOC Guidance reaffirms these requirements.  Under the ADEA waiver rules:  workers must be advised in writing to consult with an attorney; be afforded specified minimum time periods to consider the waiver (at least 21 days, or 45 days if offered as part of an “exit incentive” or "other termination program”); be allowed at least seven days after signing the waiver to revoke it; and receive other information about the benefits they will be receiving and the rights they will be giving up in order for the ADEA waiver to be valid (See EEOC Guidance at pp. 5-15). 

The EEOC Guidance is perhaps most instructive on rules applicable to non-age discrimination waivers.  The Guidance confirms that a waiver will not be valid unless it is signed by the employee “knowingly and voluntarily” and it is supported by sufficient “consideration” provided by the employer.  The EEOC states that for the employer’s “consideration” to be adequate, it must be something of value that is additional to the payments or benefits to which the employee is already entitled.  Therefore, offering employees their existing pension benefits or payments for their earned and unused vacation time or sick leave in exchange for a release will not be sufficient in the EEOC’s view.  Moreover, while acknowledging that Title VII, the ADA, and the EPA do not require employers to satisfy the OWBPA/ADEA disclosure requirements, the EEOC indicates that the following factors will be carefully examined to ascertain whether the employee’s waiver was provided “knowingly and voluntarily:”

  1. Was the waiver obtained through fraud, duress, undue influence, or other improper conduct?;
  2. Was the waiver written in plain language sufficient to be understood by an individual with the employee’s education and business experience?;
  3. Was the employee given enough time to read and consider the advantages and disadvantages of the waiver?;
  4. Was the employee encouraged to consult, or discouraged from consulting, with an attorney?;
  5. Was the employee allowed to negotiate the terms of the agreement?; and
  6. How valuable was the consideration offered for the waiver?

The EEOC Guidance illustrates the importance of specifically referencing employment discrimination claims as part of the waiver language, indicating that even if a general release is “clear and unambiguous,” it may not bar employment discrimination claims if they are not mentioned specifically.  Examples provided in the EEOC Guidance highlight the significance of an employee’s education and sophistication levels in assessing whether the waiver of employment discrimination claims was “knowingly and voluntarily” provided by that employee.

Finally, the EEOC Guidance states that if an employee signs a waiver and later files a discrimination charge against the employer, the EEOC will not require that individual to “tender back” the severance pay received before attempting to pursue that charge.  In this regard, the EEOC apparently will apply the “no tender back” rule applicable to ADEA waivers in the context of the other federal employment discrimination statutes (See Questions and Answers: Final Regulation on “Tender Back” and Related issues Concerning ADEA Waivers). The EEOC Guidance likewise reaffirms that broad language in severance agreements that seeks to limit employees in, or discourage them from, filing charges with the EEOC or participating or testifying in an EEOC investigation or proceeding is invalid and will not be enforced (See EEOC Enforcement Guidance on Non-Waivable Employees Rights under EEOC Enforced Statutes (Apr. 1997)).

In view of the growing willingness of agencies and courts to scrutinize and limit the terms of waiver agreements, employers planning additional workforce reductions will be well-served to review their standard severance agreements to ensure compliance with the EEOC Guidelines.  If you have questions or comments on the EEOC Guidance, please post them below or contact your BS&K employment attorney for additional information. 
Tags: , , ,

EEOC Proposes ADA Amendments Act Regulations

Posted on July 27, 2009 by Andrew Bobrek

The U.S. Equal Employment Opportunity Commission (“EEOC”) has approved new regulations implementing the Americans with Disabilities Act Amendments Act of 2008 . Although these regulations are not yet public (and are pending review at the Office of Management and Budget), recent comments offered by EEOC officials nevertheless provide an insightful glimpse as to what changes employers can expect—including some changes arguably outside the scope of the ADAAA.

Congress passed the ADAAA with the intent of reversing several Supreme Court rulings interpreting the ADA’s scope of protection.  In short, the ADAAA sought to expand the definition of “disability” to cover a broader range of impairments than permitted under the Supreme Court’s interpretation of the law. The legislation also empowered EEOC to draft regulations implementing this new, broader definition.

EEOC recently met to approve proposed regulations fulfilling this mandate. At this meeting, EEOC officials—principally Assistant Legal Counsel Christopher J. Kuczynski—commented on select portions of the new regulations, which appear to constitute a major shift in policy. Given the remedial intent of the ADAAA, this shift will not come as a surprise to most observers. What is surprising, however, is that EEOC’s proposed regulations, at least according to some commentators, arguably exceed the scope of the ADAAA’s rulemaking authority. A few examples illustrate this noteworthy development.

 

First, comments from both Commissioner Constance Barker (who voted against approval) and Kuczynski indicate that EEOC has proposed removing the “condition, manner, or duration” concept from the current ADA regulations. To date, employers have applied this criteria to determine whether an impairment “substantially limits” a major life activity and, therefore, may require a reasonable accommodation. The new regulations would replace this concept with hypothetical examples designed to aid disability determinations. According to several commentators, however, nothing in the ADAAA indicates that Congress intended to eliminate the “condition, manner, or duration” concept, and, in fact, the legislative history suggests that drafters intended to preserve this analytical device for employers.

Second, the proposed regulations would redefine how an employer must evaluate whether an individual is substantially limited in the major life activity of “working”—another issue not expressly addressed by the ADAAA. Under current law, an individual is protected only if he or she cannot perform a “broad range” or “class” of jobs due to an impairment. The proposed regulations, however, would dispense with this concept, and, instead, require that an employee be unable to perform the “type of work” at issue (such as commercial truck driving, clerical work, assembly line work, or law enforcement).

Third, the proposed regulations include what amounts to a list of per se disabling conditions. According to Kuczynski’s comments, this list would include the following conditions: autism, blindness, cancer, cerebral palsy, deafness, diabetes, epilepsy, HIV/AIDS, intellectual disabilities, missing limbs, mobility impairments, multiple sclerosis, muscular dystrophy, as well as major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Enactment of such a per se list—which was not included in the ADAAA itself—would constitute a major departure from EEOC’s current policy calling for employers to take a “case-by-case” approach to assessing potential workplace impairments. The proposed regulations also identify several examples of “major life activities” and “major bodily functions” not included in the ADAAA itself.

Although more will be known once the proposed regulations are made public (including what steps employers may need to take to ensure compliance), one fact appears clear even at this early juncture: EEOC is plainly favoring a more categorical approach to determining whether an individual has a covered disability instead of the “individualized assessment” process which has thus far served as a hallmark of the ADA. 

Once the Office of Management and Budget completes its review, we anticipate the proposed regulations will be published in the Federal Register and interested parties will then have an opportunity to submit comments. In the mean time, employers should ensure their current practices conform with the ADAAA—which went into effect on January 1, 2009—paying particular attention to their reasonable accommodation policies and procedures.

 
Tags: , , , ,