The Equal Employment Opportunity Commission (EEOC) kept active last year, investigating issues including social media passwords, domestic violence, and LGBT rights. With the onset of health care reform and an impending Supreme Court decision on the federal benefits afforded to same-sex couples, the coming months will likely bring more changes in the labor sector. Here, InsideCounsel takes a look at some of the most important—and interesting—employment trends to keep an eye on in 2013.
As 2012 came to a close, the EEOC approved a new Strategic Enforcement Plan (SEP), in which it laid out its six top national enforcement priorities for the foreseeable future. The SEP gives corporate counsel a broad overview of the EEOC’s main areas of concern, and could help companies to avoid any messy labor and employment lawsuits.
According to the guidance, the EEOC is focused on:
- Eliminating barriers in recruiting and hiring
- Protecting immigrant, migrant and other vulnerable workers
- Addressing emerging and developing employment discrimination issues
- Enforcing equal pay laws
- Preserving access to the legal system
- Preventing harassment through systemic enforcement and targeted outreach
Unfortunately, mass shootings are a reality of American life, with more than a dozen occurring in 2012 alone. Two of those shootings occurred within one week of each other, when gunmen opened fire at the workplaces of their estranged wives. The tragedies show how domestic violence can enter into the workplace, causing security concerns for employers. But those safety concerns do not give companies the right to discriminate against employees who are the victims of abuse or stalking, the EEOC warns.
In a recent fact sheet, the agency noted, although neither Title VII of the Civil Rights Act of 1964 nor the Americans with Disabilities Act explicitly prohibits discrimination against those workers, companies who treat them differently may be open to complaints of discrimination based on an employee’s sex or real or perceived impairments. Before firing or transferring an employee who is a victim of domestic abuse, companies should be sure that they have concrete evidence that the person’s presence imperils the safety of co-workers.
Last year, the EEOC announced that discrimination against transgender employees constitutes sex discrimination under Title VII of the Civil Rights Act of 1964. Fortunately, more companies are already extending benefits to transgender employees, according to a report from the Human Rights Campaign (HRC). The HRC report shows that 207 companies offered those benefits to transgender employees in 2012, up from 85 one year earlier. Still, companies that haven’t yet adjusted to EEOC’s stance should take extra care—and consult with counsel—when drafting new health care policies.
The country is also awaiting Supreme Court rulings on the constitutionality of the federal Defense of Marriage Act and California’s Proposition 8 legislation, which could determine whether same-sex couples are entitled to certain benefits such as health insurance.
Another group that the EEOC has given increased focus to over the past year is young workers. The agency has launched a Youth@Work Initiative, designed to educate student workers about their on-the-job rights and responsibilities, and invited teenagers to come to its Denver field office to “participate in a dialogue for solutions on how to bridge the gender wage gap in America.”
The EEOC’s policy efforts go hand-in-hand with litigation: In July 2012, the agency won a $1 million settlement in its suit against the owner of 25 McDonald’s restaurants who allegedly allowed male employees to sexually harass female workers, including teenagers.
The next problem likely doesn’t apply to all employers, but it is an interesting and troubling side effect of our global economy: discrimination complaints based on national origin. According to the EEOC, such complaints have increased by 76 percent between 1997 and 2011.
The trend was exemplified in the case of truck driver Ismail Aliyev, who filed a federal discrimination suit against FedEx, arguing that the company had him fired because of his Russian accent. Commercial truck drivers must be able to communicate in English, and Aliyev claims that, even though his English is understandable, FedEx had him fired after a weigh station gave his employer a warning about his accent.