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JOB CITES: The EEOC and you

Matthew Feery is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. He can be reached by telephone at 414-277-8500 or via email at matt_feery@gshllp.com.

For employers who have had the good fortune not to face an employment discrimination claim — a development that can seem like a matter of when rather than if depending on how long you’ve been in business and how many employees you have — the dealings with a government agency such as the EEOC can be a daunting proposition.

No wonder, either. Combine the experience most people have in dealing with governmental agencies in their everyday lives (hello, DMV and IRS) with the stress and uncertainty that accompanies any claim filed against your company, and you have a recipe for a potentially unpleasant experience.

As with most things, however, learning more about the EEOC, from its areas of focus in the upcoming years to its budget troubles, will allow you to have a better idea of what to expect should you deal with the EEOC in the upcoming year.

Late last month the EEOC released its statistical breakdown of charges filed in 2012. Overall, there were 99,412 individual charges of discrimination filed with the EEOC last year, a slight decrease from the number of claims filed in 2011. The three most commonly filed charges in 2012 were retaliation (38.1 percent), race discrimination (33.7 percent), and sex discrimination (30.5 percent) claims.

The agency also claimed in its news release that its current inventory of pending cases is 70,312.

As the EEOC itself has previously acknowledged, the increase in cases in recent years is a result of economic hardship; as more individuals are laid off, more individuals file claims.

For its part, Wisconsin employees filed 1,067 individual charges of discrimination with the EEOC, representing 1.10 percent of the total charges nationwide. The three most common type of charges filed in Wisconsin were race (35.8 percent), disability (31.5 percent) discrimination, and retaliation (27.9 percent).

The least-common charge was, as at the national level, for violation of the Genetic Information and Nondiscrimination Act of 2008. Only two such charges were made in Wisconsin (there were only 280 nationwide).

Against this influx of claims, the EEOC has also seen its budget cut in recent years. As a result, the EEOC has stated its intent to focus its litigation efforts in upcoming years on “systemic discrimination cases,” which the EEOC considers to be “pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.”

Specifically, the EEOC plans to focus on recruitment and hiring practices that may appear facially neutral but disparately impact a protected class. For those who have paid attention to EEOC developments over the past year (hey, everyone needs a hobby), this comes as no surprise.

In April 2012, the EEOC issued revised guidelines regarding employers’ use of arrest and conviction record information in making employment decisions. The EEOC clarified that it considers broad prohibitions on hiring/employing individuals with criminal records to violate Title VII if that practice has a disparate impact on a protected class of individuals. Thus, the EEOC now takes the position that employers should consider arrest and conviction record information on a case-by-case basis, considering among other factors the circumstances of the offense/conduct and the age (yes, the EEOC says look at someone’s age) of the person at the time of the offense.

For Wisconsin employers, this practice should already be commonplace, as the Wisconsin Fair Employment Act already has stringent prohibitions on discrimination based on arrest and conviction records. But employers should be aware that the EEOC will also start looking at this issue.

Of course, the EEOC’s plans in this regard will be significantly impacted should the sequestration cuts go into effect on March 1 as currently planned. (Remember the “fiscal cliff” and the New Years negotiations? Get ready for that fun again in the upcoming weeks.)

According to the projections by the Office of Management and Budget, there would be an automatic cut of 8.9 percent, or $28 million, from the EEOC’s operating budget. (The EEOC would not be the only employment agency impacted—the Department of Labor Wage and Hour Division and the Occupational Safety and Health Administration would both also see 8.9 percent cuts to their budgets.)

The American Federation of Government Employees, the largest federal employee union, has already stated that it expects the sequestration cuts to result in employee layoffs and furloughs.

For employers, these developments will have several, practical effects. First, a decrease in EEOC personnel, combined with the still-high number of charges being filed each year, will mean that the investigation and handling of charges, which can already be a time-consuming process, will only take longer. Next, with increasingly limited resources, the EEOC can be expected to continue to look at more systemic issues where its actions can use a smaller amount of cases to have the most impact.

Of course, a deal could still be reached that either avoids the sequestration cuts (or kicks the can down the road again). But given that the Real Clear Politics aggregate of various Congressional job approval polls for the one-month period ending Feb. 6 found that Congress had an approval rating of a resounding 15.6 percent, it appears that people aren’t holding out much hope.

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