The Equal Employment Opportunity Commission’s (EEOC) efforts to prioritize its enforcement mandates – based on the agency’s current Strategic Enforcement Plan – should have the attention of all qualified employers. Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases) such as Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA) and its amendments. Disability discrimination issues under Title VII and the ADA tend to be at the top of the agency’s “red flag” enforcement list.

Disability discrimination occurs when an employer treats a qualified applicant/employee unfavorably because of a disability. Discrimination in any aspect of employment is prohibited. As we step into 2024 employers should keep these key ‘red flag’ issues in mind:

• Policies that are out of compliance with Title VII and ADA including:
  • Inflexible leave policies/procedures
  • “No restrictions” policies or those requiring returning employees to be “100% recovered”
  • Policies that require employees to conform with stereotypical gender roles (e.g., dress, behavior)
• Inflexible job qualification standards.
• Failing to provide required accommodations for pregnant/lactating employees.
• Failing to correct intentional misuse of preferred pronouns.
• Complex employment relationships (e.g., integrated enterprises, joint employers).

Some of the biggest mistakes employers make when it comes to allegations of discrimination align with the above red flag practices. “Individualized assessment” is a key phrase all employers should be familiar with when evaluating disability-related policies and practices.

EEOC investigators will always look for (and look more favorably upon) policies and practices that evidence an employer’s willingness to engage with employees on leave, seeking leave or returning/extending leave. The interactive process that initiates the individualized assessment is a powerful tool when it comes to risk management. Employers who can show flexibility and engagement will likely fare much better when faced with an investigation or lawsuit than those who remain rigid and inflexible when dealing with all types of employee leave scenarios.

Employers should also take particular care in evaluating policies and practices associated with pregnant workers. Categorical prohibitions preventing pregnant workers from performing tasks deemed by the employer to be hazardous (e.g., exposure to chemicals, heavy lifting) can open the door to claims of sex discrimination. Engaging with pregnant workers will avoid any wrongful assumptions concerning the need for a change in working conditions.

For additional information on EEOC resources available to employers visit EEOC Disability-Related Resources.