Employers have a legal obligation to accommodate work-related conflicts posed by an employee's or applicant's disability or religious beliefs. This seems simple enough - be "reasonable." Yet as many business professionals and lawyers know all too well, there is a great deal of room for differences of opinion as to what constitutes a "reasonable accommodation." Considerable effort (and litigation) has gone into defining what is required under the Americans with Disabilities Act, as well as Title VII of the Civil Rights Act (for religion). For its part the EEOC has routinely pushed the envelope; it expects employers to go to great lengths to satisfy their obligation to reasonably accommodate workers. Recent cases dealing with accommodations in the form of service dogs, sign-language interpreters, extended leaves of absence and adjusted work schedules, are just some of the positions taken by the EEOC in litigation (with varying degrees of success). Here are some examples:
Administering employee leaves of absence is complicated. For employers of 50 or more employees there obviously are the Family and Medical Leave Act (FMLA) and D.O.L. regulations to deal with. Then there is the EEOC, which has interpreted the Americans with Disabilities Act (ADA) to require leaves of absence, or extending them under certain circumstances as a reasonable accommodation of an individual's disability. Add worker compensation laws that provide for reinstatement of employees following a work-related illness or injury, as well as an ever growing list of other federal, state and, more recently, local laws governing what employers may or may not do about employee absences and even the most experienced HR professionals have their hands full. Monitoring FMLA leave (especially intermittent leave), work-related absences, military leave, leave as an accommodation and all the legalities of when and how to return workers from such leaves, can be overwhelming. Not surprisingly, many employers have turned to outsourcing these functions, ostensibly to avoid all the hassles and legal pitfalls they present. However, as a recent U.S. Court of Appeals decision demonstrates all too clearly, turning these responsibilities over to a third party does not rid an employer of responsibility, or liability, for complying with the many workplace leave laws that are at play.
On November 15, 2017, the Equal Employment Opportunity Commission ("EEOC") issued its annual performance and accountability report. In the report the EEOC states that:
President Trump has appointed Janet Dhillon, an attorney from the mega law firm, Jones Day, to serve as Chair of the Equal Employment Opportunity Commission. Ms. Dhillon's background with a law firm that represents businesses is expected to bring a better appreciation of employers and the challenges they face in complying with a growing number of civil rights laws and regulations in the workplace.
The Equal Employment Opportunity Commission (EEOC) has recently released statistical data on its Enforcement/Litigation for Fiscal Year 2016 (October 1, 2015 - September 30, 2016). A total number of 91,503 Charges of Workplace Discrimination were filed in FY 2016, which is approximately a 3% increase in Charges from FY 2015. Furthermore, over the twelve (12) month Fiscal Year period, the EEOC resolved 97,443 Charges and secured more than $482 Million for affected Employees. The EEOC responded to well over 585,000 calls and more than 160,000 inquiries to its various Field Offices.
As most private employers are well aware, numerous federal and state government agencies conduct on-site investigations and have been doing so for a long period of time [for example, Occupational Safety and Health Administration (OSHA inspectors) and United States Department of Labor (USDOL inspectors)]. Soon to be joining this array of "government visitors" is the Equal Employment Opportunity Commission (EEOC). The EEOC is engaging in a new and more aggressive investigation strategy. It will no longer accept an employer's Position Statement at face value and is now demanding on-site visits to interview witnesses and gather information. It is the opinion of the author that these "on-site visits" are merely "fishing expeditions" conducted by the EEOC to gather any and all harmful information it can find out about an employer, be it for the case at issue or to develop a bigger case in the future. Suffice it to say that during these investigations, the EEOC representative will do everything he/she can to "bait the hook" and catch the biggest fish.
Since I was a child back in the early 1950s, I was taught many things by my parents, including "treat others as you want to be treated" and "do not steal or take other people's property." Obviously, the Federal Court System and, specifically, U.S. District Court Judge William H. Orrick, have either never been taught these rules or they have conveniently been forgotten!
With the fiscal year of the United States Government ending as of September 30, 2013, various government agencies have issued their "Fiscal Year Reports" with regard to what they have been able to accomplish during Fiscal 2013. Two of the most important agencies as far as their effect on business entities are the Equal Employment Opportunity Commission (EEOC) and the United States Department of Labor, Wage and Hour Division (WHD).