Proskauer Rose attorney Leslie E. Silverman shares her views on how 2013 is shaping up, so far, for the Equal Employment Opportunity Commission and its stakeholders.  The Washington, D.C.-based lawyer served as the vice chair of EEOC and a commissioner from 2002 to 2008.

Bloomberg BNA: In assessing the first half of 2013, what stands out as the most significant moments in EEOC's enforcement and litigation?

Silverman: Two moments stand out for me. The first is the agency's huge victory in EEOC v. Hill Country Farms against the owners of a turkey processing plant that employed a group of workers with intellectual disabilities.

EEOC brought that case on behalf of 32 men who were subjected to years of severe verbal and physical abuse and discrimination.  In May, a jury returned one of the largest verdicts in the agency's history, which, after compensatory and punitive damages caps were applied, resulted in an award of approximately $3.4 million.

The case demonstrates that the EEOC is pursuing its announced priority of prosecuting Americans with Disabilities Act (ADA) cases, but it is even more significant because it reminds us that the commission plays a vital role in protecting vulnerable workers and underserved populations against employment discrimination.  When situations such as this are brought to the EEOC's attention, the agency will act.

The second moment occurred on June 11, when the agency simultaneously filed suit against two employers based on their criminal background check policies (EEOC v. Dolgencorp LLC d/b/a Dollar and EEOC v.  BMW Mfg. Co. LLC).

These new cases in which the EEOC challenges employer use of criminal records are significant because they are the first lawsuits the Commission has brought since issuing its new "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII" in April 2012.  

The commission's longstanding position as to the lawfulness of employer criminal background screening is largely grounded in the disparate impact theory and in one federal circuit court decision in Green v. Missouri Pac. R.R., yet there have been remarkably few cases in this area. 

Now that the EEOC has released new guidance more fully articulating its view as to when a criminal background check policy will comply with Title VII's job related and consistent with business necessity standard, it will be interesting to see whether the courts agree with the commission's interpretation of the law.

Bloomberg BNA: EEOC recently settled its first case filed under the Genetic Information Nondiscrimination Act (GINA), and sued a New York-based nursing and rehabilitation center for allegedly violating GINA. Why is the commission paying more attention to genetic information discrimination?

Silverman: The EEOC has always made enforcement of new federal anti-discrimination statutes or significant changes to existing statutes a top priority.  Its reasons for doing so are two-fold. 

First, the commission wants to have the primary role in shaping these new federal anti-discrimination laws, and I think it is fair to say that Congress created EEOC's enforcement role and added litigation authority in part to allow the agency to help shape new laws. 

Second, the commission recognizes that when it brings suit under a new statute it will garner a great deal of publicity and bring attention to the issue. The agency believes that other employers will take notice and be more likely to modify their policies or change their behavior to comply with EEOC's view of the law.  

While I was not surprised that the EEOC brought its first GINA suits, I have been surprised at how long it has taken the EEOC to find a GINA charge worthy of litigation.  These cases will also be helpful in delineating the line between GINA and the ADA which may be somewhat fuzzy in the absence of a body of decisions.

Bloomberg BNA: You recently testified before the commission on workplace wellness programs. What are the implications for employers that wellness programs are on EEOC's radar?

Silverman: Well that remains to be seen.  The primary issue with employer-sponsored wellness programs is that they might include disability-related inquiries or medical examinations that are not considered "job related" and therefore, would not be permitted under the ADA unless they fall within an ADA exception that permits "voluntary" wellness programs. 

Back in 2002, the agency issued an enforcement guidance in which it explained that a wellness program is "voluntary" as long as an employer "neither requires participation nor penalizes employees who do not participate." 

However, since that time, the agency has offered very little guidance as to what the voluntary standard means in practice and how it would apply to financial inducements. 

When Congress passed the Affordable Care Act (AC) it prominently endorsed employer-sponsored wellness plans that offer financial incentives.  In addition, the Departments of Labor, Health and Human Services and Treasury issued new Health Insurance Portability and Accountability Act (HIPAA) regulations, which expressly allow employers to offer financial incentives of up to 30 percent of the total cost of coverage. 

Although the Departments did note that they were not determining compliance with the ADA, given the Administration's overwhelming consensus, one might expect the EEOC to fall in line and agree that a wellness plan that complies with the ACA would be considered "voluntary" under the ADA.  Yet the commission has not done so, and it is not clear that it will embrace this point of view.  

This uncertainty puts employers in a precarious position because there is a possibility that the EEOC will find that an incentive based wellness program violates the ADA, even though it complies with the ACA. 

While we certainly advise clients that this could happen, it seems extremely unlikely that the commission would go after an employer-sponsored wellness plan based solely on the financial incentive.   

Bloomberg BNA:  In general, how will the U.S. Supreme Court's decisions in University of Tex. Sw. Med. Ctr. v. Nassar and Vance v. Ball State Univ. affect EEOC's enforcement?

Silverman: As a result of the Supreme Court's ruling in Nassar, the agency will need to be extremely careful when deciding whether or not to litigate a charge alleging retaliation, as there is a greater likelihood of losing these claims on summary judgment.  

As a result of the court's decision in Vance, the EEOC will endeavor to broaden the negligence standard, and in the near term I would anticipate that the commission will seek out and litigate cases in which a harassing co-worker wielded a great deal of authority over the plaintiff.  

Since the court found two long-standing EEOC interpretations of Title VII were not entitled to deference, employers will be far more likely to raise the deference issue in defense of a policy or practice that is being challenged based exclusively or primarily on the EEOC's  "Compliance Manual" or an "Enforcement Guidance." I would therefore expect the commission to work even harder to bolster the sub-regulatory guidance it issues.

Bloomberg BNA: What do you think the remaining months of 2013 will hold for the EEOC and its stakeholders in terms guidance and litigation?

Silverman: With the recent confirmation of Commissioner Jenny Yang and President Obama's re-nomination of Commissioner Chai Feldblum, the agency once again has full five-member commission in place until at least January 2014.  

This means that the commission has a Democratic majority once again which will enable Chair Jacqueline Berrien to push through guidance and regulations on a partisan basis-- if she so chooses. 

While this has happened infrequently in the past few years, and in fact, Republican Commissioner Victoria Lipnic has played a key role in shaping the commissions policy, partisan policy decisions are always a possibility, and are more likely during President Obama's second term.

The commission is in the midst of re-writing its sub-regulatory ADA guidance documents to comply with the changes in the Americans with Disabilities Amendments Act.  While the Amendments Act did not alter the reasonable accommodation obligations under the ADA, there has been talk that the agency is planning to update its "Reasonable Accommodations Guidance" to more clearly conform to Commissioner Feldblum's view of the law. 

In addition, the EEOC will obviously need to revise its "Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors" as well as its "Compliance Manual" and related Guidance to comply with the Supreme Court's decisions in Vance and Nassar.  

On the litigation front, the EEOC's program has been fairly aggressive as of late, and we can anticipate that there will be further efforts to help shape or define federal anti-discrimination laws. 

I would anticipate that in the coming months, the agency will file additional litigation under the ADA and GINA as well as cases raising pregnancy discrimination and pregnancy disability issues. 

Finally, given Commissioner Yang's background and clear interest in the commission pursuing systemic gender discrimination issues, I would also expect to see an increase in systemic gender pay and promotion cases in the coming years.

Bloomberg BNA: Any final thoughts on EEOC's enforcement and compliance?

Silverman: Two quick final thoughts:  First, this commission has made a considerable effort to elucidate and publicize its top enforcement and litigation priorities.  Anyone who is trying to ascertain which issues are most important to the EEOC should take the time to read the EEOC's Strategic Enforcement Plan (SEP). 

Second, since the SEP guarantees that the Commissioners will vote on at least one litigation per year from each EEOC District Office, and the EEOC's newest Commissioner, Jenny Yang, comes to the commission with considerable experience as a civil rights and class-action litigator, I would anticipate that the Commissioners will become more deeply involved in the EEOC's litigation program in the future. 

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