New EEOC Pregnancy Discrimination Guidelines
What privately-owned businesses can expect
On Monday, July 15, 2014, the federal government issued new guidelines designed to protect pregnant workers from on-the-job discrimination. For the first time in 30 years, the newly revised policy spells out how the Americans with Disabilities Act (ADA), as amended in 2008, might apply to workers with impairments related to pregnancy. The newly issued policy also emphasizes that any discrimination against women workers based on past or prospective future pregnancies are illegal.
According to the EEOC, an employer cannot deny a non-disabled pregnant worker light duty where it provides light duty to employees injured at work or who are disabled under the ADA. In addition, the EEOC acknowledged the Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc., but reiterated its position that all other employers may be liable for violating Title VII if they deny contraceptive coverage. These newly issued guidelines – whether they withstand legal challenges or not - are simply one of hundreds of issues employers must take into consideration.
All employers, regardless of their employee count or revenue, need to keep informed about human resources (HR) and risk management issues. In an average work day, an organization may in fact encounter dozens of HR related issues. Any adverse actions of the employer and its representatives in those situations can potentially put an organization at risk for employment lawsuits and claims related to hiring bias, wrongful termination, harassment and more. When to pay overtime and to allow PTO, compliance with EEOC and ADA regulations, emerging media, and other HR issues are real concerns that are often handled with best intentions but may also become victim to misguided policies or lack of best practices.
Know the risks
Annually, the U.S. Equal Employment Opportunity Commission (EEOC) reports relevant data on job bias charges. For instance, in FY 2013, the EEOC cited 93,727 job bias charges. For the fifth year in a row, the most frequently cited charges of discrimination were retaliation, closely followed by race discrimination and sex discrimination, including sexual harassment, pregnancy discrimination and discrimination based on disability. Through its administrative processes, the EEOC collected over $372.1 million in monetary recovery.
As part of its Open Government efforts and in response to requests for data, the EEOC issued a new table this year showing “Basis by Issue” – i.e., what sorts of discriminatory actions were alleged to violate the different sections of the laws enforced by the EEOC. This expands substantially on the table “Statue by Issue” first released last year. Now, for example, employers and HR professionals can go beyond allegations data of hiring discrimination under Title VII to discover how many of those hiring allegations were due to race, sex, national origin, etc. Employers can also learn what states are the most vulnerable and which states are the safest, allowing HR professionals to focus on areas where they are most vulnerable.
Look for remedies
Retaliation claims have doubled since 1997 and are considered “low hanging fruit” for plaintiffs. Therefore, they pose the greatest risk to employers because they are often clearly visible when reviewing an incident. Additionally, electronic discovery claims are also increasing because businesses are inconsistent in how policies are administered and in how they handle exceptions.
In this climate of increased risk for litigation, it is also important to consider all remedies to control the risk and costs associated with HR decisions. The implications for human resource-related errors can be considerable. While insurance policies can help protect your business from these costs, it is important to safeguard your organization with pre-claim best practice HR and legal expertise. This will help strengthen your policies, practices, decisions and actions.
Many companies access HR resources or second opinions to help them update or create new policies and address new concerns or hot topics, such as workplace bullying, pregnancy discrimination and retaliation claims. These services provide unlimited access to employment law attorneys, attorneys who are experts in employment law and cover a wide range of topics including termination, wage/hour, overtime, hiring, FMLA, ADA, and many more.
These attorneys provide confidential, actionable advice with documented, attorney-client privileged, responses specific to each organization’s questions. In addition, employers can access HR tools and resources including handbook builders, online supervisor and employee training on sexual harassment prevention, sample forms and policies, and labor posters – all online or through professional HR resources.
The Employment Risk Management HELPLINE
XL Group’s Private commercial unit offers a broad suite of management liability coverages, including EPLI and D&O tailored for small and mid-size private companies. In addition, XL offers The Employment Risk Management HELPLINE to all XL Group Private Commercial clients. The HELPLINE provides employers with unlimited access to employment law attorneys, the ability to build an employee handbook, online training, monthly updates, timely HR alerts, webinars focused on HR and risk management topics and much more. Many of the webinars offered are eligible for HRCI continuing education credits.
“XL Group is excited to partner with Enquiron for this industry-leading EPL risk management solution that offers clients added protection with their EPLI policies,” says Paul Rowe, Senior Vice President of XL Group’s Private Commercial business. “This new service will be invaluable to our clients, directing them to pre-qualified experts who can help them strengthen their HR policies and procedures to avoid claims of harassment, discrimination, retaliation and other wrongful employment decisions.”
Because of the continually changing legal environment and tougher enforcement by the EEOC, a costly workplace lawsuit jeopardizes reputation and the company’s future viability. Bruce Simmons, XL Group’s Private Commercial Product Manager, “that’s why we’re please to provide our clients with both comprehensive insurance coverage as well as a tool like HELPINE that can avoid adverse employee claims altogether.”
Even if the EEOC is found to be wrong, it should be noted that it may not stop them from filing charges and investigating employers with Workers’ Compensation light duty programs that refuse to protect pregnant workers or provide contraception coverage. It pays to be proactive in today’s litigious world.
Questions? Contact Chris Lynch, firstname.lastname@example.org or 617-532-6952. Enquiron (www.enquiron.com) is the leading national provider of human resource and employment law risk management solutions, providing comprehensive, end-to-end compliance solutions to help drive down exposures and claims costs.