A surge of employment discrimination lawsuits filed by the Equal Employment Opportunity Commission in the last fiscal year, along with recent developments in state laws, are creating a more worker-friendly environment, according to a panel of DLA Piper lawyers at a CLE program hosted by the DFW chapter of the Association of Corporate Counsel last week.
Much of the EEOC’s uptick in activity focuses on systemic discrimination, workplace harassment and ADA complaints, DLA Piper partner Kim Askew said.
“The litigation that’s being brought in the discrimination harassment area is at a five-year high,” Askew said.
The EEOC brought 143 new lawsuits last year, with nearly 30 brought on behalf of employees alleging sex and sexual orientation claims, Askew said. The number of ADA-related lawsuits nearly doubled during the last fiscal year with almost 50 cases, many of them about a lack of mental impairment accommodations, she added.
The EEOC also put pay equity on their recent enforcement strategic plan, so employment lawyers should keep an eye out for that, of counsel Todd Mobley said.
“They’ve been focusing on it for a long time, but once they put something on their plan they go after it vigorously,” he said.
There’s recently been more cooperation between government agencies like the Department of Labor, Federal Trade Commission, National Labor Relations Board and EEOC that have agreements to share information, Mobley said.
“We’re getting into an area where you might have started with a wage-and-hour audit by the DOL. They uncover something that they find interesting or that the NLRB might find interesting. And now, what was a wage and hour audit is becoming an audit of your confidentiality, nondisclosure provisions or separation agreements, or things of that nature. So definitely an area to watch out for,” Mobley said.
The #MeToo movement has influenced changes in both federal and many state laws, especially in the areas of arbitration, nondisclosure, confidentiality and nondisparagement, Askew said. The federal Ending of Forced Arbitration of Sexual Assault and Sexual Harassment Act, passed last year, is significant because it amends the Federal Arbitration Act to allow a person bringing a sexual assault or sexual harassment claim to go to court regardless of any arbitration agreement, she said.
Askew pointed to Watson v. Blaze Media LLC in the Northern District of Texas. In August, U.S. District Judge Jane L. Boyle dismissed a motion to compel arbitration and decided a female cohost’s claims of sexual harassment could proceed in court under the new law.
While the U.K. has historically led on pay transparency, some U.S. states are closing the gap in the absence of federal legislation, said Georgia Jolink, a partner at DLA Piper who works with U.S. and international companies. Jolink and fellow panelists drew attention to some state legislatures that have also been active in other employment areas, tipping the scales for workers. But it’s still a hodgepodge, they said, leaving lawyers to take heed of each state’s laws.
“It definitely seems like a very worker-friendly environment right now,” Jolink said. “I know that’s not always the case.”
Illinois recently passed a law that gives eligible employees 40 hours of paid leave that can be taken for any time, any reason. That goes into effect next year. The state’s labor department said it was the third state to mandate employers provide their workers paid time off for any reason. Illinois also recently amped up protections for independent contractors. A law taking effect next year will attempt to codify the terms between businesses and their contractors, Jolink said.
New York passed a law last month that makes wage theft a crime of larceny. California last year expanded the definition of “family member” in its family, medical and sick leave laws, Jolink said.
Even some “more unexpected places” in the U.S. have been moving in an employee-friendly direction, Mobley said.
The Fifth Circuit’s recent decision in Hamilton v. Dallas County lessens the burden for showing an adverse employment action, Mobley said. In that case, the court found the Dallas County sheriff’s department had a sex-based policy that only allowed men to have a full weekend off.
Outside the U.S., some countries have passed legislation affording more remote working options, Jolink said. There’s also been recent legislation in European and Latin American countries, as well as Canada, to ensure workers can disconnect when they’re not on the clock.
“But we haven’t really seen much litigation come out of this yet, so it sort of remains to be seen if this trend is really growing,” she said.