Categories: Retail

By:  Jamie Friedman

This week, the Equal Employment Opportunity Commission (“EEOC”), the agency responsible for enforcing federal employment anti-discrimination and retaliation laws, released its Fiscal Year 2013 Performance Accountability Report (the “Report”). According to the Report, in 2013, the EEOC secured a record-breaking $372 million dollars from private employers for workplace discrimination, despite receiving 6,000 fewer charges of discrimination during FY 2013 (with a total of 93,727 charges) as compared to the prior year, and despite resolving 14,000 fewer cases than in FY 2012.

The EEOC continues to focus on systemic enforcement programs, which allows it to do more with less. Systemic cases are defined as pattern or practice, policy, or class cases where the alleged discrimination has a broad impact on the industry, occupation or geographic area.  The EEOC increased its percentage of systemic cases this fiscal year by 24% since last year. The trend is to bring larger and larger lawsuits with large scale claims that will have a high impact and send a strong message to employers. Indeed, this year, of the 29 systemic cases resolved by the EEOC this year, 14 had at least 14 victims of discrimination, and seven cases had over 50 victims of discrimination. Through its field offices, 300 systemic investigations were done, which concluded in 63 conciliation agreements and approximately $40 million in awards for over 8,000 people.

As part of the systemic program, the retail industry was a target.  One of the systemic investigations into the retail industry resulted in a resolution by conciliation agreement where the employer agreed to pay 2.3 million to a class of 76 individuals whom the EEOC found were denied reasonable accommodation under the ADA. The employer agreed to make significant changes to its reasonable accommodation policies and practices nationwide, conduct issue specific training for employees on accommodations, and provide reports to the EEOC in order for the EEOC to monitor compliance over the three year period of the agreement.  In another retail industry case, an allegation was made that a department store had a policy of requiring employees to disclose personal medical information or face discipline, which the EEOC said violated the ADA. The case was resolved by consent decree providing $2 million to more than 6,000 individuals harmed by the policy in California, and extensive injunctive relief.

The EEOC’s current focus, articulated in its Strategic Plan for Fiscal Years 2012-2016 and reiterated in the Report, centers on three strategic objectives:

  1. The EEOC intends to continue combating employment discrimination through strategic law enforcement, so as to have a broad impact on reducing discrimination at the national and local levels, and to remedy discriminatory practices and secure meaningful relief.
  2. The EEOC intends to prevent employment discrimination through education and outreach, by informing members of the public how to exercise their rights and aiding employers and unions to better address and resolve employment issues.
  3. The EEOC intends to continue delivering excellent and consistent service through a skilled and diversified workforce, which means it intends to have interactions with the public that are timely, of high quality and informative.

Be aware that the EEOC may be targeting companies like yours, especially as a retailer or other large scale employer. Remember, their goal is to root out systemic problems on a large scale in order to achieve bigger results by expending fewer resources.  As a result, employers would be wise to not only review their policies to ensure legal compliance, but also to review how they are actually implemented or carried out in various store locations throughout the country. Train district and regional managers to identify potentially troubling practices, and bring them to the attention of HR. Or else, the EEOC might be coming after you!

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