The federal Equal Employment Opportunity Commission (EEOC) received a record number of charges this fiscal year under laws that make it illegal to discriminate against a job applicant or an employee because of a person’s race, color, religion, sex, pregnancy, national origin, age (40 or older), disability or genetic information.
Case Load Catch-Up
Under the Obama administration, the agency reports it has made progress toward rebuilding its enforcement capabilities by putting more resources into hiring and training its employees. It ended the fiscal year on Sept. 30, 2010, with 86,338 pending charges—an increase of 570 charges, or less than 1 percent, compared to 2009. Between fiscal years 2008 and 2009, the EEOC’s pending inventory increased 16 percent.
The agency also reports it:
- intervened to secure a record $319 million in monetary benefits for individuals through administrative enforcement.
- ended the year with a record 9,370 mediated resolutions, 10 percent more than FY 2009 levels, and more than $142 million in monetary benefits.
- expanded its reach to underserved communities by providing educational training and public outreach events to approximately 250,000 people.
- continued a concerted effort to build a strong national systemic enforcement program.
- resolved 7,213 requests for hearings in the federal sector, obtaining more than $63 million in relief for parties who requested hearings and more than 66 percent of federal sector appeals.
Genetic Information Non-discrimination Act
The Equal Employment Opportunity Commission (EEOC) finalized regulations for the enforcement of Title II of the Genetic Information Non-discrimination Act (GINA) in November. The rules went into effect on January 10, 2011.
Title II represents the first legislative expansion of the EEOC’s jurisdiction since the Americans with Disabilities Act of 1990 (ADA). It prohibits employment discrimination based on genetic information and restricts the acquisition and disclosure of genetic tests. The final regulations:
- Provide examples of genetic tests.
- More fully explain GINA’s prohibition against requesting, requiring, or purchasing genetic information.
- Feature model language employers can use when requesting medical information from employees to avoid acquiring genetic information.
- Describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites.
- Interpret the law with regard to the provision of voluntary wellness programs.
Under GINA, employers and other covered entities are required to treat genetic information as confidential. The confidentiality standards are similar to those required under the ADA for the handling of medical records: Genetic information may be kept in the same file as medical information but not with other personnel files. Genetic information placed in personnel files prior to the enforcement date need not be removed, but disclosing the information to a third party is prohibited.
The commission reports it received a significant number of public comments expressing concern about the law’s application to employer requests for medical information. Employers said they do not have control over what is received and that they should not be subject to liability if health care providers report genetic information that was not requested. In response, the EEOC added language for employers to protect them from liability. The final rule suggests that covered entities use the following language:
…“(GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.”
To view the regulations, visit www.federalregister.gov (search for GINA, 11-9-2010). To view question-and-answer documents: http://eeoc.gov/laws/types/genetic.cfm
Age Discrimination
Age discrimination is an area of particular interest for the EEOC. The commission recently heard testimony that age discrimination makes it difficult for the nation’s growing segment of older workers to maintain and find new employment, particularly in a down economy. The number of age discrimination charges filed with the EEOC grew from 16,548 (21.8 percent) of all charges filed in FY 2006 to 22,778 (24.4 percent) in FY 2009.
At a hearing, William Spriggs, assistant secretary for policy in the Department of Labor, testified that the rate of unemployment for people age 55 and over rose from a pre-recession low of 3 percent (November 2007) to 7.3 percent in August 2010, making the past 22 months the longest period of high unemployment workers in this age group have experienced in 60 years. Older workers also spend far more time searching for work and are jobless for far longer periods of time compared to workers under 55, he said.
In prepared testimony, Scott Oswald, managing principal at The Employment Law Group, Washington, D.C., advised the EEOC to “advocate legal theories that prevent an employer from being able to avoid liability under the Age Discrimination in Employment Act (ADEA) by pointing to our challenging economic conditions to mask unlawful age discrimination.” He said the “EEOC should prepare for the likely increase in age discrimination claims by identifying vocational and economic professionals who have the expertise necessary to evaluate and identify the true economic hardship older employees endure when they are subject to unlawful age discrimination.”
According to Mary Anne Sedey, a partner with Sedey Harper P.C. and experienced employment law attorney, older workers rarely file hiring discrimination claims because it is difficult to prove why they are not interviewed or hired and most lawyers who practice in this area cannot afford to bring cases.
Michael Foreman, director of the Civil Rights Appellate Clinic at the Pennsylvania State University Dickinson School of Law, testified on what he described as a significant Supreme Court decision in the case Gross v. FBL Financial Services, Inc. He said “Gross has significantly altered the legal framework for proving discrimination” and that “plaintiffs now face novel requirements in the pleading stage, unpredictable summary judgment standards, and onerous burdens at trial…the EEOC will have to be especially vigilant and proactive if it is going to help curtail the harmful impact of the Gross decision.”
