Over the last year the EEOC has trumpeted its focus of filing high-impact and high-profile cases. The EEOC’s Strategic Enforcement Plan also reinforced the Commission’s efforts to continue addressing emerging and developing legal issues in the years to come. To that end, the EEOC has initiated cases alleging novel theories including disability discrimination based on the Genetic Information Nondiscrimination Act (GINA), HIV status, and inability to provide urine samples. The EEOC is also pursuing unique sex discrimination lawsuits under theories that discriminating against people because they are transgender or breast pumping in the workplace violates Title VII.
Critics have complained that the EEOCs efforts to expand legal theories strains the EEOC’s resources and such pursuits are arguably outside of the Commission’s purview. Be that as it may, the EEOC’s recent activity highlights that employers should take care that they do not run afoul of “edge of the envelope” theories.