Workplace Class Action Blog

“The EEOC Talks” – Perspectives From Today’s ACI Program

Posted in Class Action Litigation

5903-X31-(8).jpgBy Gerald L. Maatman, Jr.

The keynote speaker at today’s program on Employment Practices Liability Insurance sponsored by the American Conference Institute was Constance Barker, one of the Commissioners of the EEOC. We co-chaired the program and spoke on workplace class actions and EEOC litigation, and Commissioner Barker presented her thoughts in the keynote address on what 2013 has in store for the EEOC and employers alike.

Like the old E.F. Hutton TV commercial, “when the EEOC speaks, employers should listen….” Commissioner Barker’s comments are important for any employers concerned with employment-related compliance efforts, as well as avoiding EEOC litigation.

Commissioner Barker asserted that disparate impact discrimination and hiring screens are at the very top of the EEOC’s agenda. She urged employers to consider compliance efforts in reviewing their hiring and workforce data to ensure the lack of disparate impact in the treatment of protected-category applicants and employees.

Commissioner Barker also suggested that elections have consequences, and that the EEOC’s Strategic Enforcement Program (“SEP”) manifests how the Commission will direct its overall efforts (our past post on the SEP is here). She predicted that litigation will increase and that the EEOC’s systemic litigation program will take precedence over prevention efforts. Commissioner Barker suggested that hiring and promotional practices will be the key focus of the EEOC’s litigation efforts.

She also articulated several areas of special concern for the EEOC. These include enforcement of the Equal Pay Act, lactation in the workplace under Title VII, and leave arrangements for domestic abuse situations.

Last night the Commission released its statistical breakdown of EEOC charges with retaliation, race, and sex discrimination charges leading the way. The EEOC also had the second highest number of discrimination charges filed in 2012 – a total of 99,412 charges – than ever before in its 48-year existence. In addition, the EEOC’s docket of systemic pattern or practice cases grew to over 20% of the Commission’s docket.

The bottom line: Employers are well served to remain focused on compliance activities relevant to their workplace obligations.