EEOC General Counsel Offers Enforcement Insights

by Buchanan Ingersoll & Rooney PC
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EEOC General Counsel, P. David Lopez, spoke at this year’s Florida Bar Advanced Labor Topics Seminar, and offered insights into the issues of interest to the EEOC’s attorneys. The areas of interest were broken down into 4 areas: 1) Information Disparity; 2) Power Disparity; 3) Emerging Issues; and 4) Miscellaneous.

In the area of Information Disparity, the EEOC is focusing on the use of criminal background checks in the hiring process, and specifically the alleged disparate impact on minorities of the use of felony conviction screening. The EEOC argues that an employer’s blanket policy not to hire any applicant with a felony conviction disproportionately impacts minorities who are arrested for and convicted of felonies at a greater rate than non-minorities, according to some studies. We have previously written on this topic and offered our suggestions for avoiding EEOC scrutiny. Citing its nationwide age discrimination case against Texas Roadhouse as one of the EEOC’s “premier cases”, Mr. Lopez stated that the EEOC will also focus on systemic age discrimination in hiring. Since the EEOC has broad administrative/pre-suit subpoena power, Mr. Lopez commented that the EEOC is uniquely suited to pursue these types of cases where the viability of a claim is not immediately apparent since applicants do not have access to the employer’s information necessary to evaluate and pursue these claims.

The EEOC will increase its focus on the power disparity between employers and immigrant workers, specifically in the areas of human trafficking and sex harassment. The EEOC’s focus, occasionally in partnership with the U.S. Department of Justice, is on disparate pay, job segregation, harassment, discriminatory practices, particularly in the agricultural, restaurant (identified by the EEOC as the single largest source of sex harassment complaints) and textile industries.

As an emerging issue, the EEOC has concluded that Title VII’s prohibition against discrimination “because of sex” prohibits discrimination against lesbian, gay, bi-sexual and trans-gendered individuals. Most courts have disagreed, holding that Title VII only prohibits discrimination against LGBT individuals where the employer’s conduct reflects a sexual stereotype – i.e., the LGBT individual was subjected to discrimination because he/she did not meet traditional male/female stereotypes. Nevertheless, the EEOC will accept for processing and may pursue LGBT discrimination claims without regard to whether sex stereotyping is involved.

Under miscellaneous, Mr. Lopez discussed the EEOC’s renewed focus on equal pay for women who perform the same tasks as men but are paid less, as well as retaliation against employees who complain about discrimination and racial harassment.

Through his comments, Mr. Lopez confirmed the EEOC’s aggressive approach to “develop the law”, and not simply enforce it. If you have questions about the EEOC’s agenda, please contact Kelly Kolb.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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