Employers to be wary of EEOC changes, antidiscrimination rules

CHICAGO — The sentiment behind a U.S. Supreme Court decision that barred race from being used in college decision-making at Harvard University has made its way before employers, who are also facing a new presidential administration that effectively put diversity, equity and inclusion practices under the microscope and uncertainty over the U.S. Equal Employment Opportunity Commission enforcement practices.

Employers, rightfully wary of a patchwork of federal, state and local regulations on employment discrimination, massive jury verdicts and public opinion, are “caught between a rock and a hard place right now” when facing employees who claim they were treated unfairly, said Lance Ewing, Houston-based vice president, enterprise risk management with Cotton Holdings Inc. during a session Wednesday at the Risk & Insurance Management Society Inc.’s Riskworld annual conference.

Examining recent moves by the EEOC to investigate and sue employers, filings over disability, sex, and retaliation make up a lion’s share of filings, according to slides shown. Expected to rise are claims over pregnancy discrimination, relatively new with the emergence of new laws, and retaliation, which typically sees an uptick under economic conditions and layoffs, Mr. Ewing said.

Gerald Maatman, chair of the Duane Morris Class Action Group with Duane Morris LLP in Chicago, and Northwestern School of Law professor, said retaliation claims are among the most complex and a solid rule is to keep decisions job-related — and to document.

“It’s got to be job-related: They didn’t have the right experience. They weren’t the right fit. They didn’t have the requisite qualifications for the job. They were unprofessional during the interview process. They said things about their prior experience that we’re not aligned with what you needed for the job,” he said.

On firing employers, “it’s important to document how a person is disciplined. “For a rules violation, I always say the (human resources) department, what did you do with the last 10 people who violated the same rule? Make sure your imposition of discipline is consistent, and that rule breaker number 10 is not treated differently than numbers one through nine,” Mr. Maatman said.