This week’s NVTC member guest blog post is by Kelly Yates, vice president of Service Operations at Insperity. Yates shares five key priorities outlined in the Equal Employment Opportunity Commission’s (EEOC) recently-released Strategic Enforcement Plan.
The Equal Employment Opportunity Commission (EEOC) recently released its Strategic Enforcement Plan through the year 2021, which outlines its priorities for the coming years.
In this plan, one of the areas of focus is a grouping the agency refers to as “emerging and developing workplace issues” – an ever-evolving subject, which can be challenging to navigate. From qualification standards and inflexible leave to discriminatory practices, typically, these complaints parallel societal issues that are also gaining a bigger spotlight in the media.
Here are five areas employers should watch carefully as they start their new year:
1. Discrimination against those with disabilities
The EEOC continues to broaden its definition of what constitutes a disability. Under the EEOC’s new plan, the agency is narrowing its focus to give priority to the areas of job qualification standards and inflexible leave policies to better protect disabled employees.
A qualification standard is how the employer defines who is qualified to be hired for a particular job. This means that job descriptions could fall under scrutiny if there are unnecessary physical qualifications placed on applicants.
For example, if your job description says that applicants must be able to lift 20 pounds, but there is an accommodation that could be provided where lifting wouldn’t be required, it may not be reasonable to use this as a qualifier when making hiring decisions.
Inflexible leave policies
There is no clear cut definition of whether a leave policy is flexible or inflexible. But typically, any policy that takes a definitive stance on the time limitations of a leave will be labeled as inflexible by the EEOC.
For example, an inflexible policy might state: “You must be 100 percent healed to return to work when a 12-week FMLA leave ends, or you will be terminated.”
Leave policies require careful attention to the language used to ensure that they cannot be interpreted as inflexible and have a one-size-fits-all approach. And, these situations require an interactive dialogue between employers and employees to understand what return-to-work accommodations may need to be made, such as granting additional time off work or the ability to telecommute for a specified time period.
Even a policy that says that employees aren’t allowed to work remotely could be deemed as inflexible, if, based on their disabilities and the nature of their job duties, it would be a reasonable accommodation to allow them to work from home.
This is one of the biggest risk areas for employers. It’s one of the most challenging to work through because there is not a definitive manual on the topic. Each situation has to be handled individually and based upon its own merits – not based upon how the last case was treated.
2. Accommodating pregnancy-related limitations
Gender equality in the workplace has been in the spotlight in recent years. One area that the EEOC has weighed in on heavily has been removing pregnancy as a barrier for equal treatment in the workplace.
Employers are advised to treat pregnant employees as they would treat any other employee who has any other temporary medical condition. Consider all accommodation requests by engaging in an interactive dialogue with the employee and make necessary job modifications as specified by the employee’s medical provider.
For example, accommodations may include altered breaks and work schedules (e.g., breaks to rest or use the restroom), permission to sit or stand, ergonomic office furniture, shift changes, elimination of marginal job functions and permission to work from home for a specified time period.
If a woman isn’t able to work during her pregnancy, she may be eligible for time off not only under FMLA, but also under the Americans with Disabilities Act (ADA). Pregnancy complications may be covered under the ADA as a temporary disability.
These types of accommodations help to keep barriers neutralized so that women can continue to progress in their careers while pregnant. And, these accommodations can also help ward off potential discrimination claims.
3. Protecting LGBT from discrimination based on sex
If you look up the Civil Rights Act of 1964, you won’t see LGBT as a category of protection. But the agency’s recent interpretation has been that it falls into the broad category of discrimination based on sex.
To avoid EEOC discrimination charges, you must treat LGBT employees as you would all other employees. If employees come to you with complaints, make sure to treat the complaint seriously, and ensure that a prompt and thorough investigation is undertaken.
Share the outcome of the investigation with the employee, and discuss resolution options. Then, be sure to follow up with the employee regularly after the issue is resolved to ensure that no new concerns have arisen. This also conveys to your employee that you have an open door to ongoing communication.
Work toward making sure that your workplace is a comfortable environment for all employees.
4. Clarifying the employment relationship and workplace rights
Temporary workers, staffing agencies, independent contractors and the on-demand economy are all changing the dynamic of the employer/employee relationship.
For example, let’s say you hire five temporary workers from a staffing agency. The agency pays these employees so they aren’t your “employees of record” for purposes of your payroll taxes, etc. However, because these workers are conducting work on your premises and for your business, including engaging with your employees, as an employer, you may be deemed to be controlling the “terms and conditions of the employees” work environments. Therefore, you must ensure that these workers are treated in compliance with EEO laws, just as you would for all employees.
Say, for instance, one of your employees or managers harasses a temporary agency worker. The temporary worker could file an EEOC claim against your business, even though you’re not his or her employer of record. And, if the agency deems that the worker’s complaint has merit, you could be liable to make financial settlements to resolve the complaint.
Just because workers aren’t on your payroll as full-time, permanent employees, it doesn’t mean you are absolved of responsibility for ensuring that they are treated fairly under the law.
5. Addressing discriminatory practices against Muslims
In the midst of global terrorist attacks, the EEOC believes there may be an increase in discriminatory actions against people who are Muslim, Sikh, or of Arab, Middle Eastern or South Asian descent (or those perceived to be a part of those groups).
In an effort to get out in front of this, the EEOC is giving priority consideration to these cases.
First and foremost, hiring managers must understand that national origin or religion should never be used as a factor in any hiring or employment decision.
You may think that everything is fine because you aren’t hearing any complaints or concerns from employees. But often, employees are hesitant to file complaints because they think doing so will jeopardize their jobs. In these cases, they may wait to bring forward a concern until it has escalated to a point where they have already decided to involve an outside agency or attorney.
Your managers should take extra steps to vocalize and demonstrate their commitment to the company’s open door policy so that employees aren’t afraid to come to them with their concerns.
Also, ensuring that you regularly conduct discrimination and harassment prevention training for all employees and that you have clear policies with a zero-tolerance for discrimination and harassment in-place are important preventative steps for employers to take.
Understand the risks and move forward thoughtfully
While the EEOC provides information for employers on their website, employers are often confused as to how each law and regulation should be interpreted and applied to their specific workplace. As you navigate through issues in these areas, it is advisable to work closely with HR experts, legal counsel or a professional employer organization (PEO), who are well-versed and experienced at preventing and resolving workplace complaints.
Keep in mind that if an EEOC charge is filed and the agency begins an investigation of your company, it could quickly become a huge disruption to your employees and to your business overall.
Here are a few possible outcomes:
- On average, it takes at least a year for a charge to be resolved.
- There can be disruptions if EEOC investigators come on-site to interview employees and review your company’s documents.
- The EEOC doesn’t have to notify your business when it contacts your employees or former employees for interviews.
- The investigation can impact the morale and productivity of your workforce.
- There are huge monetary impacts for having to defend against and resolve the complaint.
- A “cause finding” by the EEOC can become a matter of public record, which impacts your reputation and credibility as an employer.
- If the EEOC finds cause for a complaint, typically, your business will have to routinely provide reports to the agency and comply with ongoing requirements, such as employee training – usually for three to five years.
- If the EEOC finds cause for a complaint, you may be required to post notices throughout the workplace to inform employees that your company was found to have engaged in a discriminatory practice.
If your business is charged in one of the areas from the strategic enforcement plan, it’s important to take it seriously and respond appropriately. Consider consulting with an HR expert or employment counsel on how to proceed.
Learn more about how to protect your business by downloading Insperity’s complimentary e-book, Employment Law: Are You Putting Your Business at Risk?