January 10, 2014
A new report from Seyfarth Shaw on the Equal Employment Opportunity Commission's 2013 litigation efforts shows an increased focus on "systemic discrimination" by companies (as opposed to individual instances), as well as disability and pregnancy bias cases. However, some courts faulted the agency for insufficient preparation prior to filing a suit and awarded employers their attorneys' fees or imposed other sanctions on the agency for its enforcement and litigation tactics. According to the report, the EEOC "appears not to have created or implemented controls to manage how its troops with boots on the ground litigate [systemic] cases," but "it remains to be seen whether the EEOC takes to heart the criticism of its litigation and enforcement tactics." Meanwhile, employers should expect continued EEOC activity in 2014 on ADA cases, as well as disparate impact cases regarding hiring, particularly related to the use of criminal background checks and applicants' credit histories, and national origin discrimination. According to the report, pregnancy bias cases were also "front and center" and the agency is showing greater interest in religious discrimination as well.