Recently, the U.S. Equal Employment Opportunity Commission (EEOC) Phoenix District Office held a webinar on Selected Emerging and Developing Issues. The presentation emphasized EEOC’s prioritization of new and developing legal concepts and difficult and complex subject matter. Current EEOC investigators provided insight on what they focus on when investigating a charge of discrimination filed with the agency, and what “red flags” heighten the likelihood they will find probable cause against an employer based on the EEOC’s current Strategic Enforcement Plan. Discussed in further detail below, the EEOC’s “red flags” include:
- Inflexible leave policies
- “Fully recovered” or “no restrictions” policies
- Qualification standards that do not permit exceptions or accommodations
- Failures to provide pregnant and lactating employees with accommodations for related medical conditions
- Policies that categorically prevent pregnant employees from performing certain tasks
- Policies that require employees to conform to stereotypical gender presentations in dress, appearance, behavior, and speech
- Failures to address intentional misuse of preferred pronouns
- Complex employment relationships involving more than one business
- Misclassifications of employees as independent contractors
- Failures to address “backlash” discrimination against particular groups based on current events (Ebola, Covid-19, etc.)
Bottom line: Employers should examine their policies and practices on these topics to reduce risk of an EEOC charge investigation ballooning into a workforce-wide investigation or a lawsuit alleging pattern-or-practice or disparate impact claims.
Disability Discrimination
The EEOC devoted the majority of the presentation to disability discrimination issues, primarily discussing inflexible leave policies and employment qualification standards.
The EEOC investigators look upon “inflexible leave policies” with particular scrutiny. These types of policies may come into play when an employee takes leave for their own medical condition under a policy implementing the Family Medical Leave Act (FMLA) or other leave policies an employer may have. EEOC closely examines policies and practices that require an employee to be “without restriction” or “fully recovered” before the employer will allow them to return to work from leave. EEOC also scrutinizes policies that limit leave to a particular maximum amount or provide leave under an inflexible points system that does not consider exceptions for reasonable accommodations.
In general, EEOC investigators want to see policies and practices indicating that the employer will engage in individualized assessments for every employee on leave or seeking to return from leave for a medical condition. Any hard “no” (or blanket provision that does not incorporate an individualized analysis) for taking leave, extending leave, returning from leave with a medical restriction, or reassignment to a different position from the one they had before leave is a “red flag” to EEOC investigators.
The EEOC investigators also turn a sharp eye on any qualification standards an employer may have for new or returning employees—specifically, those that may impact individuals with disabilities. Qualification standards are attributes like skill, experience, education, medical, or physical condition that an employer may require for job qualification. An example given by EEOC investigators was the use of artificial intelligence technology to screen recorded interviews of applicants. If the technology screens an applicant out due to a medical condition impacting speech or presentation stills (examples given were Tourette Syndrome, Cerebral palsy, and stuttering conditions), EEOC will likely consider this a “red flag” discriminatory qualification standard in violation of the ADA. EEOC also scrutinizes imposing minimum standards for physical ability to lift particular amounts of weight, which will trigger an investigation into whether there are alternative ways to conduct a lift or to accommodate the inability to lift a minimum amount.
Pregnancy Discrimination: Overlapping Title VII Sex Discrimination and ADA Disability Discrimination
EEOC investigators describes various fronts on which they consider an employer to be discriminating against pregnant employees.
Not only can employers be found liable under Title VII for sex discrimination when it comes to treatment of pregnant workers, but EEOC may also find probable cause for disability discrimination based on pregnancy-related impairments. Policies and practices on accommodations should include consideration of pregnancy-related medical conditions during the pregnancy (for example: preeclampsia, carpal tunnel, sciatica) and afterwards (such as postpartum depression and anxiety).
EEOC investigators also view lactation as an ADA-protected medical condition which should be reasonably accommodated for individuals returning to work after the birth of a child. The primary focus is on accommodating breaks to lactating employees to express milk. EEOC investigators will compare what breaks are provided to non-lactating employees when determining whether denying breaks and/or providing paid versus unpaid breaks are discriminatory based on sex and disability. For example, does the employer permit employees to take smoke breaks on the clock, but require lactating employees to clock out to express milk? If so, EEOC investigators will see a “red flag.” In this scenario, EEOC may also dig into whether there are equal pay violations.
EEOC investigators also scrutinize so-called “benevolent” sex discrimination against pregnant employees. For example, employers who categorically prohibit pregnant employees from performing tasks that the employer sees as hazardous for the fetus or pregnancy (exposure to chemicals, heavy lifting, etc.) can be dinged for sex discrimination under Title VII and under the ADA for regarding those employees as disabled and denying them equal employment opportunities. Employers should not assume a pregnant employee needs any changes to their working conditions, and instead should seek to provide accommodation only when and if the employee makes a request or the need for accommodation is obvious.
Equal Opportunities for LGBT+ Employees
EEOC investigators look to see if employers require employees to conform to traditional sex and gender stereotypes in appearance, dress, behavior, and speech/presentation. Employer-imposed restrictions in these areas are “red flags” of sex discrimination to investigators.
EEOC investigators are also paying special attention to how employers handle issues involving use of employees’ preferred pronouns. Investigators are looking to distinguish whether misuse of an applicant’s or employee’s preferred pronouns is merely accidental, which will not support a finding of probable cause of discrimination, or whether it crosses into the realm of intentional misuse. Employers would be wise to establish policies and protocols on use of preferred pronouns to disseminate to the workforce-at-large to prevent intentional misuse, and to discipline employees or managers who behave in ways that tread into intentional misuse of the preferred pronouns of other employees.
Complex Employment Relationships
EEOC investigators prioritize charges involving complex employment relationships on two main fronts: (1) integrated enterprises, and (2) joint employers. Integrated enterprises involve circumstances in which two or more employers are so intertwined the EEOC will consider them to be one employer, and will hold all the entities accountable for any discrimination found. These situations usually involve multiple entities with shared management groups, shared finances, and shared control over the employees. Joint employment involves circumstances in which two entities are clearly separate, but they both control the employees. The most common example of joint employer situations involves staffing agencies who place employees with a company that then directs the work to be performed. EEOC will then investigate the full scope of which entities may be considered respondents for a charge investigation.
EEOC investigators also conduct analyses of whether individuals who file charges are employees versus independent contractors. EEOC does not have jurisdiction to investigate allegations of discrimination brought by non-employees or applicants for tasks not culminating in an employee-employer relationship. However, EEOC investigators made clear that they will not accept at face value an assertion that the charging party is an independent contractor. Investigators will conduct their own assessment of whether someone is an employee, and therefore under their jurisdiction to investigate. Employers who misclassify (according to an EEOC investigator) groups of employees as independent contractors may find themselves facing a systemic investigation by the EEOC.
Backlash Discrimination
Backlash discrimination is when particular groups of protected classes face discrimination or harassment based on some societal or cultural occurrence. Provided examples include discriminatory backlash against the Middle Eastern community after September 11, 2001, against people of African descent as part of the 2014 Ebola epidemic, and against people of Asian descent during the Covid-19 pandemic. EEOC investigators noted that they pay close attention to current events and resulting potential impacts to groups of protected classes under the EEOC’s jurisdiction, to which they can shift their focus at any time.
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