The Equal Employment Opportunity Commission and its Strategic Enforcement Plan did not fare well in the last couple of years. However, reasonable cause determinations were up in 2014. Furthermore, the EEOC lost a couple of major cases in court. The agency lost EEOC v. Kaplan Higher Education Corporation and EEOC v. Freeman. The first case challenged the use of credit checks for hiring, while the second case involved the use of credit and criminal background checks.
Conciliation obligations will be one of the EEOC trends for 2015. The Supreme Court will rule on the nature of the agency's obligations in this regard. Employers sued by the agency say the conciliation efforts are lacking and that failure is grounds to dismiss a lawsuit. A lower court ruling declared there is no basis for judicial review of the agency's conciliation efforts. Some experts predict the justices may challenge the ruling. Also, look for challenges to release and/or arbitration programs. The agency believes these programs may interfere with access to EEOC processes. There will also be discussions about the nature and extent of rights of LGBT workers under Title VII. In addition, an employer's obligations involving pregnancy leave will be scrutinized:
• Young vs. UPS – Issues to be determined are the nature and extent to which employers must accommodate pregnant workers under the American with Disabilities Act. (ADA)
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A second focus for 2015 in the ADA is telecommuting. It must be determined when employees can request telecommuting as an accommodation under the act. A U.S. Court of Appeals case focuses on the issue:
• EEOC v. Ford Motor – a former Ford worker sued the company because they wanted to work from home due to illness. The employee was terminated after Ford declared the job required her presence in the workplace.
Employers must realize that technology is changing ideas about how work is done. The Ford case could have important implication for employers. Another area of Employment law that will be reviewed is wellness programs. The Affordable Care Act encouraged employers to develop wellness programs to help keep medical costs down. The agency is focused on the voluntary participation in wellness programs. Some companies offer monetary incentives to employees who participate and penalties to those who don't. The EEOC has three cases on tap in this area.
Wellness programs may also conflict with the Genetic Information Nondiscrimination Act. The act prohibits discrimination based on genetic information that may be discovered in wellness programs. Employers should be looking for the Supreme Court decision in EEOC v. Abercrombie. This case centers around the accommodations for religious purposes that employers must make. Specifically, this case looks at whether an employee must make a specific request in circumstances where there may be a conflict between employer policies and individual religious practices. The EEOC has a new commissioner for 2015. Charlotte Burrows, a Democrat, serves as the agency's fifth commissioner. Meanwhile, Republicans control the senate and little legislation is expected in the area of equal employment. Therefore, experts say the agency may be more active in the policy-making role because little will happen on the legislative front.
Dianne Shaddock
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