By Brian Brus
The Daily Record Newswire
OKLAHOMA CITY – Legal experts expect a strong push by the Equal Employment Opportunity Commission in 2015 to refine workplace issues such as how to treat pregnant women and fitness incentive programs.
“There are a lot of important workplace issues in play,” said Tanya Bryant, a director at the Crowe & Dunlevy law firm in Oklahoma City. “It’s going to be an important year.”
For example, the Supreme Court of the United States heard oral arguments in early December on the case Young v. United Parcel Service, in which justices weighed whether the Pregnancy Discrimination Act requires accommodations similar to those of nonpregnant employees with work limitations. The case began in 2006 when pregnant Maryland resident Peggy Young requested that her workload be shifted to light-duty work.
When Young asked for an adjustment, she was told that her condition was the result of something that happened off duty and therefore not covered under the company policy. She lost her job and health insurance.
Since the 1970s, most appeals courts have maintained a narrow interpretation of the law regarding employer disability plans including pregnancy. Bryant said the Young case, expected to be settled by midyear, will test that logic and could broaden workplace rights for women.
The EEOC has a stake in the issue because the organization provides guidance and examples of how discrimination affects the workplace. Although the commission’s guidance doesn’t bind the court, its positions are given weighty consideration, Bryant said. In response to the Young case, the EEOC for the first time in 30 years issued guidance on pregnancy policies.
Attorney Allen Hutson at Crowe & Dunlevy said he expects the EEOC and Department of Labor to be more aggressive this year as President Barack Obama nears the end of his second term. The commission has already signaled its intent to pursue claims that would expand Civil Rights Act Title VII prohibitions against sex discrimination involving transgender people.
“I don’t want to be political about this, but President Obama is a Democrat, and typically Democratic presidents tend to be pro-employee rather than pro-employer, which means they’re active in extending employee rights," Hutson said. "I think you’ve seen that a lot in his presidency through the EEOC.”
For example, he said, the Labor Department’s overtime rule under the Fair Labor Standards Act will shortly change to address the so-called white-collar exemption in which workers classified as administrators but paid low salaries are not entitled to overtime pay. Obama directed the department in March to initiate those changes to protect workers. Hutson said he can’t predict whether a salary cap will be set.
Hutson agreed with Bryant that pregnancy discrimination will be a big topic for personnel directors to watch this year, as will background checks for recruitment and hiring — statistically, minorities in the U.S. are more likely to have offenses on their legal records, so EEOC officials have expressed concern that blunt application of background checks could discriminate against an entire class of people. The EEOC has also warned employers about going to social media for potentially discriminatory background details.
Bryant said she expects that the EEOC will also target corporate wellness incentive programs, many of which began with good intentions to improve employee health and reduce insurance costs, but have been subverted to serve as a forced activity or pay penalty for noncompliance.
“It depends on how the EEOC looks at the situation and reaches a conclusion, but I think we’ll see something on that front as well,” she said.
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