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EEOC's Most Recent Enforcement Strategy Will Focus On Disability Discrimination

The Equal Employment Opportunity Commission (EEOC) has obtained record-high monetary relief in 2013 through its administrative enforcement efforts.  It is thus increasingly important for employers to be aware of the EEOC’s enforcement strategies. 

The most recent Strategic Enforcement Plan (SEP) promulgated by the EEOC, which can be found at, illuminates its enforcement priorities through the year 2016.  One of the SEP's top concerns is hiring and recruitment discrimination.  Because the majority of cases actually litigated by the EEOC involve disability discrimination and harassment issues, now may be the time to evaluate company policies, procedures, and practices with respect to recruitment, hiring, and the disabled.

In an effort to implement the SEP, each charge filed with the agency will be screened in order to determine whether the charge may involve hiring or recruitment discrimination.  Employers should remember to analyze recruitment and hiring practices that may seem neutral on their face, but in practice result in an adverse impact on the disabled.  These include exclusionary policies, the steering of individuals into specific jobs due to a disability, restrictive application procedures, and the use of screening tools such as pre-employment tests, background checks, and date-of-birth inquiries.  Charges that involve such issues may result in a greater allocation of EEOC resources and, thus, a more thorough investigation.

Examples of recently successful EEOC litigation in the area of disability discrimination include:

  1. EEOC v. Dura Automotive, where an employer's drug testing policy resulted in a $750,000 settlement because it screened for legal drugs as well as illegal ones and required employees to disclose the medical conditions that required drug treatment.  Employees refusing to disclose or show proof of prescription were suspended until they stopped taking the legal drugs, despite no proof that medicines hindered employees' performance;
  2. EEOC v. United Airlines, where the employer had a practice of requiring employees with disabilities to compete for vacant positions when they could not be reasonably accommodated in their current positions, often preventing employees with disabilities from continuing their employment with the company.  The Seventh Circuit decided that the Americans with Disabilities Act may require reassignment of a minimally qualified disabled employee as a reasonable accommodation in itself, even when another individual is entitled to the position under the employer’s established selection system.  The Supreme Court’s denial of review will likely result in settlement; and
  3. EEOC v. Resources for Human Development, where an employer paid $125,000 to settle a suit filed after it terminated an employee who weighed 500 pounds due to allegedly unfounded concerns regarding her limited mobility and work performance.

These cases strongly suggest that hiring, firing, reassignment and disciplinary procedures should be reviewed to avoid or minimize the risk of potential liability.  If your company is dealing with similar situations, contacting employment counsel early may help you avoid or minimize potential liability in the future.



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