Employment Law Monitor : Employment Lawyer & Attorney : Cole Schotz Meisel Forman & Leonard Law Firm : NJ, Mid-Atlantic Wage & Hour, Wrongful Termination

Overall, 2011 was a record breaking year for the EEOC.  During the 2011 fiscal year, the Equal Employment Opportunity Commission (“EEOC”) won a record-breaking $365 million for discrimination victims.  In addition, the EEOC’s private sector mediation program obtained more than $170 million in monetary benefits for employees. 

It was also a productive year for the EEOC in terms of reducing its backlog.  For example, in fiscal year 2011, 99,947 charges of discrimination were filed with the EEOC.  However, as of September 20, 2011 there were only 78,136 pending charges – a decrease in ten percent over the last year.  This reduction was due to the EEOC following through on its pronouncement to make the reduction of its backlog a priority. 

EEOC enforcement was also up.  In 2011 the EEOC reported that at the end of the fiscal year, there were 580 systematic investigations under way, which was up from 485 investigations the previous year.  In addition, EEOC field legal units filed 261 lawsuits – 23 of which involved systematic allegations affecting large numbers of people; 61 involved between two and 19 alleged victims; and 177 were individual lawsuits.  

Based on the increased activity by the EEOC, employers need to review and revise, if necessary, their discrimination and harassment policies to ensure they are up-to-date.  With the EEOC being aggressive in its pursuits to dispose of cases as well as the increased success in obtaining awards for discrimination victims, employers must protect themselves against these types of claims.

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On November 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations interpreting Title II of the federal Genetic Information Nondiscrimination Act of 2008 (“GINA”), which addresses GINA’s employment provisions. GINA is the federal law that bans employment discrimination based on an individual’s genetic information. GINA went into effect on November 21, 2009. The regulations will assist employers in understanding the law’s provisions. The regulations and questions and answers can be found at http://eeoc.gov/laws/types/genetic.cfm. 

GINA prohibits “covered entities”, which includes employers with 15 or more employees, from “requesting, requiring or purchasing” an employee or former employee’s “genetic information” and from making employment decisions based on such information. GINA also provides that an employer that obtains an individual’s protected genetic information is required to keep the data private in the same manner as the employer is required to maintain the confidentiality of information protected by the Americans with Disabilities Act.

The regulations establish certain exceptions pursuant to which an employer may be permitted to obtain an employee’s genetic information. These exceptions include, but are not limited to, inadvertent acquisition and voluntary disclosure of genetic information, as well as obtaining genetic information in response to an employer’s need to assess a requested leave under the Family and Medical Leave Act.

Employers that violate GINA are subject to the same damages as provided in Title VII of the Civil Rights Act including compensatory damages, punitive damages, attorneys’ fees, interest and costs of suit.

The import of GINA and the final regulations is that employers must insulate themselves from learning of employees’ genetic information. In this regard, employers should immediately train supervisory employees and modify medical request forms to make clear that the employer is not interested in obtaining applicants’ or employees’ genetic information.

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The United States Equal Employment Opportunity Commission ("EEOC") has released a new mandatory "EEO Is The Law" poster, which is required to be posted by employers as of November 21, 2009.  Employers can either download and post a supplement alongside the existing September 2002 EEOC poster or replace the older poster with the new one.  The new poster and supplement can be downloaded at http://www1.eeoc.gov/employers/poster.cfm. The November 2009 poster incorporates the 2008 amendments to the Americans with Disabilities Act ("ADA") as well as the recent amendments to the Genetic Information Nondiscrimination Act of 2008 ("GINA"), which also became effective on November 21, 2009.

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