EPLI and the EEOC - Current Initiatives and Emerging U.S. Trends
At a recent EPLI seminar, we heard U.S. Equal Employment Opportunity (EEOC) Commissioner Constance Barker advising the industry audience what to expect in the coming year. Amid the enforcement statistics and initiatives was one clear message: the EEOC will pay more attention to whether employers make reasonable workplace accommodations for their workers. EEOC activity and focus is typically a good barometer of employment claim activity, so it is important to be up to date on their areas of emphasis.
As to EEOC activity, in FY2014 the Commission initiated the filing of 133 lawsuits against employers - described as the “new normal” level of lawsuits (from 250 annually for several years prior to 2012). However, approximately 49 of the suits in 2014 involved the Americans with Disabilities Act* and reasonable accommodation in the workplace, now 35% of the total vs. 20% on average for the FY’s 2007-2011.1 Commissioner Barker signaled that the EEOC expects to remain active in this area, specifically relative to leave policy, religious accommodation and pregnancy.
Communication regarding reasonable accommodations is critical, not only with employees on leave but also with their healthcare providers, supervisors and managers. The Commission believes best practices require communication about the availability of reasonable accommodations with the players at all levels of the leave process. The employee should know how he or she might be able to return to work with an accommodation, even if he or she is not 100% healed. The employee’s healthcare provider should understand the availability of alternative means of performing work so that an informed return-to-work certification can be completed. Managers must be educated to make reasonable workplace accommodations a reality. A successful process requires the involvement all of the players.
The appropriate length of leave under the ADA also requires individual analysis - even when the employer has a generous fixed leave policy. Employers may fail to engage in individual analysis of whether additional leave might be an appropriate accommodation. Leave that can never be extended is not consistent with the Commission view. As a best practice, the EEOC believes fixed leave policies should be clear that the leave period can be extended or adjusted as a reasonable accommodation where there is no undue hardship to the employer.
Commissioner Barker also stated that reasonable accommodation in the area of religious practices will also continue to be a point of emphasis. Recent cases regarding clothing and facial hair are examples of this. Pregnancy issues, such as the recent UPS case, will additionally be a focus and will include issues such as possible reassignment of job duties.
While the overall fall in EEOC litigation is heartening for EPLI carriers, we do not yet know if the recent infusion of new EEOC investigators and attorneys will have an impact on that trend in 2016. The bottom line today is, as the economy continues to improve and lawsuits fall, the EEOC will remain relevant and active as respects its initiatives indicated above.
1. EEOC.gov EEOC Litigation Statistics, FY 1997–FY 2014
*Background: The Americans with Disabilities Act (ADA), which prohibits discrimination against applicants and employees who qualify as disabled, requires reasonable accommodations when necessary so that people with disabilities can perform the essential functions of their jobs, unless doing so would constitute an undue hardship to the employer. Leaves of absence - including those beyond an employer’s permitted number of days off - can constitute reasonable accommodations.