Employers should expect to see a big wave of enforcement actions from the federal Equal Employment Opportunity Commission over the next few months, as the commission ramps up its efforts ahead of its fiscal year-end on Sept. 30.
The EEOC traditionally brings a raft of cases toward the end of the fiscal year, as Congress considers the budget, says Christopher DeGroff, a partner in the Chicago-based law firm of Seyfarth & Shaw. He warns that companies need to take steps now so as not to be caught up in those actions, which can be both costly and damaging to a company’s reputation.
An EEOC spokeswoman, Justine Lisser, confirms that the agency, charged with enforcing laws against employment discrimination and harassment, historically has piled it on toward year’s end, but she predicts that will change in coming years. “Starting next year, you will see the agency charging out of the box from the beginning,” she says.
DeGroff, pictured at right, predicts that this fall’s enforcement actions will focus on discrimination in hiring practices, as well as discrimination against and harassment of immigrant employees.
Commissioners have “said they will be looking closely at hiring discrimination,” he says, adding that one reason could be that such cases are not as lucrative for private attorneys as are on-the-job discrimination cases. “Also, with such high unemployment in the country right now, access to jobs is a big issue.”
Indeed, last Wednesday, at an EEOC public meeting on developing a strategic plan for attacking employment discrimination, there were many calls for the commission to focus on both hiring discrimination and the harassment and abuse of immigrant employees.
“As our economy struggles to recover from recession and Americans slowly go back to work, it is important that the Commission continue to shine a light on employer policies and practices that exclude workers from consideration for employment,” said Fatima Goss Graves, a member of the employment task force of the Leadership Conference on Civil and Human Rights.
DeGroff says companies can avoid being targeted by the EEOC by a rigorous process of self-auditing. “Take a look at your applicant flow and who you are hiring, and be sure you have a good explanation if the numbers don’t add up.”
One flag for EEOC investigators is employment testing. “Does your testing really apply to the jobs on offer?” DeGroff says. “If you give someone a pencil-and-paper test and they’re applying for a job as janitor, it wouldn’t be appropriate, and the EEOC will cry foul.”
Many companies get in trouble because executives with hiring authority are discriminating in violation of company policy, DeGroff says. “The best practice there is to have the right policies and to monitor to be sure that the policies are being followed.”
The EEOC is looking for high profile cases, in part because such cases get media attention. “The media element of these cases cannot be overstated,” he says.
Big discrimination settlements, in addition to being costly, can seriously damage a company’s reputation. “For the EEOC, which is a very political animal, sometimes getting media attention is a primary objective,” DeGroff warns.