Another Countdown for Another New Year

Jan 20, 2016

I was actually awake this year to watch the ball drop from Times Square and ring in 2016 as champagne corks popped across the east coast.  Although the pop of the cork was more traumatic this year than in year’s past.  About a week before New Year’s Eve, I had my own little explosion in my office in the corner of the Drhumor Building.  I’m sure those folks walking down Church St or Patton Ave at 8:15 on that Thursday morning could have heard the explosion, or at least my scream.  My husband, chemistry teacher by day, home brewer by night, had become (at least until that point) quite proud of his latest batch of brew; so proud in fact, he had sent me into work with some of his last bottles to share with my unsuspecting co-workers.  Well, about 8:15 that morning, the bottom exploded out of one of his bottles leaving me and everything in my office covered in beer. Now that they have cleaned the walls, steam treated the carpets, and changed the affected ceiling tiles (I’m not joking), I am finally ready to share another countdown with you.  Let’s hope for no explosions at the end of this one.

This past October I had the opportunity to hear the General Counsel for the Equal Employment Opportunity Commission (“EEOC”) speak about the EEOC’s Top Ten Enforcement Goals for 2016.  (If you’d like to compare 2016 to 2015, you can do so here:  https://www.mwblawyers.com/employmentblog/happy-new-year-new-looks-resolutions-lists/).  These enforcement goals are important for employers to keep in mind when assessing risk and making decisions to avoid liability. So in New Year’s Eve (or David Letterman Style), here’s the top ten:

10.  Racial Harassment Claims:  The General Counsel explained, “When we try these cases, we win.”

9.  Systematic Discrimination: The General Counsel pointed particularly to disparate impact claims related to background screening.

8.  Sex Discriminating in Hiring Claims: Particularly for jobs that are not typically thought of as “female” jobs.  Examples would be jobs in trucking, metal forging and warehouses.

7.  Preservation of access to the legal system: This includes retaliation claims, as well as arbitration agreements and last chance agreements that prohibit employees from filing EEOC Charges.

6.  The Importance of Jury Trials:  The General Counsel explained that juries send messages to communities.  The EEOC has been successful in 70% of jury trials in the last 5 years.

5.  Discrimination Against Vulnerable Workers: This includes harassment and national origin claims by migrant and immigrant workers who employers may believe to be too vulnerable to make a report.

4. Reasonable Accommodations: With the amendments of the ADA, most conditions are now disabilities that must be accommodated. As a result, employers should take particular care with requests for reasonable accommodation.

3. LGBT Coverage: The EEOC is taking the position that gender identity is covered under Title VII.

2. Pregnancy Discrimination: The EEOC has brought 40 pregnancy discrimination cases in the last 4 years.

1. Religious Discrimination: The EEOC points to the Abercrombie & Fitch Supreme Court case this past year as proof of this goal. According to the EEOC, after the Abercrombie case, an employer may not make a religious practice, confirmed or not, a factor in any hiring decision.

So what do these enforcement goals mean for employers? You should consider these areas to be “higher risk” when making decisions regarding employee situations that implicate one of these enforcement goals. Further, employers should review their policies and programs that address any of these goals and ensure compliance.

The New Year is a great time to assess compliance and make changes where necessary. Perhaps you could create your own HR top ten list to complete for the coming year. We can count down your achievements together this time next year – I’ll bring the beer!

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