By Catherine Moreton Gray , J.D.
Managing Editor

The Equal Employment Opportunity Commissions's top priorities for 2009 include enforcing the Lilly Ledbetter Fair Pay Act, finalizing regulations for the Genetic Information Nondiscrimination Act (GINA), developing proposed regulations for the ADA Amendments Act (ADAAA), enforcing prohibitions against religious discrimination, and a systemic discrimination initiative, says Peggy Mastroianni, associate legal counsel for the EEOC.

Mastroianni provided the EEOC agency update this week at the Society for Human Resources Managers 2009 Employment Law and Legislative Conference in Washington , D.C. She noted the agency has new laws to enforce and a nationwide systemic enforcement initiative underway.

Lilly Ledbetter Fair Pay Act

The EEOC regards enforcement of the Lilly Ledbetter Fair Pay Act as critical, said Mastroianni. However, she also noted the agency considers the act to be restorative legislation as the EEOC has always interpreted the law to reflect the “paycheck accrual theory.” Mastroianni said the agency does anticipate a surge in wage claims because of the spotlight put on Lilly Ledbetter's case and the new law.

Mastroianni suggested that employers might consider following the advice of various employment attorneys in this area and take the following steps:

• Recognize and identify unexplained pay discrepancies and make prompt corrections;
• Retain documents for longer periods of time, although Mastroianni would not give specific advice on how long this should be; and
• Review pay setting policies and if managers have a great deal of discretion in what level of pay is set for any particular employee, consider making some changes to include more guidelines or review of decisions.

Another important note from Mastroianni is the EEOC's position regarding complaints it dismissed on the basis of timeliness since May 27, 2007 , the effective date of the law. The EEOC will look closely at these dismissals to see if reinstatement is appropriate based on the new law. A conference attendee pointed out that reviving cases that had been dismissed before the law was passed could mean employers no longer have the documents needed to defend themselves. Mastroianni said she would take this concern back to the agency.

GINA

Mastroianni pointed out that GINA was not a response to a current workplace problem. The problem, she says, was in the doctor's office where patients refused genetic tests for fear information would be used against them in obtaining insurance or a new job.

The EEOC issued a notice of proposed rulemaking for GINA so Mastroianni was unable to discuss the proposed regulations. However, she offered some explanation of the law.

Mastroianni stated that genetic information for purposes of the statute includes:

• Genetic tests taken by an employee or applicant; and
• Genetic information about an employee's own or his or her family's medical history.

GINA provides for a 100% prohibition on the use of genetic information in employment decisions. Mastroianni asserted there is no way information about an unmanifested condition can be relevant to employment decisions.

GINA also prohibits employers from acquiring this information with some narrow exceptions, noted Mastroianni. Exceptions include:

• Inadvertent acquisition of information through conversations with employees
• Health services provided by employers for a voluntary wellness program
• FMLA exception where information might be obtained in documenting a leave request, e.g., an employee needs leave to care for a parent with cancer

Finally, GINA prohibits employers from disclosing any genetic information it acquires by virtue of one of the narrow exceptions. Confidential medical files should be used for any medical information, stated Mastroianni. Employers may also want to provide training to managers and supervisors on what constitutes genetic information and how they should handle receipt of this information.

Mastroianni asserted that employers should take steps to avoid receipt of genetic information including making changes to medical certification forms, and making sure genetic information is not collected or communicated during fitness for duty examinations. She reiterated that there is “no way information about an unmanifested condition can be relevant to employment decisions.”

ADA Amendments Act (ADAAA)

Mastroianni said that the EEOC also believes that the ADAAA is a restorative piece of legislation, and according to Mastroianni, “employers doing the reasonable thing” won't have to make many changes. In her opinion, the law returns to the original intent of the ADA by providing broad protection to those with disabilities.

In response to a question, Mastroianni said that the EEOC is working very intensely on proposed regulations for the ADAAA. She did say that as instructed by Congress in the statute, the new regulations will not include the phrase “significantly restricts” in the new definition of substantially limits a major life activity.

In looking at the definition of disability under the ADAAA, Mastroianni said the term will be construed broadly. For instance, an individual with epilepsy that is largely controlled through medication so that seizures are extremely rare would likely not have been covered under the old ADA as interpreted by the courts. Now, however, the individual's medication could not be taken into account. He or she would likely be covered as ameliorative affects of medication must not be considered when determining if the individual has a covered disability. In addition, episodic conditions are now covered.

EEOC to Focus on Religious Discrimination

The EEOC is very active in the litigation of religious discrimination issues and Mastroianni alerted conference attendees to three categories of cases.

Scheduling cases . She discussed employers' duties to reasonably accommodate an employee's religious beliefs. Mastroianni said that while employers aren't required to make other employees swap shifts to accommodate scheduling around religious observances, they must permit and not interfere with employees voluntarily swapping shifts for this purpose. In one case, an employee alleged it was a sin for her to work on Sundays or to ask another employee to work on Sundays. In that case, the employer had an obligation to not only allow a shift swap but to ask other employees if they would be willing to swap.

Muslim prayer breaks. Observant Muslims are generally required to pray five times each day at certain times each day. However, there is often a window of an hour or more during which each prayer break may occur. According to Mastroianni, employers can often stagger these breaks in order to accommodate the religious practice without unreasonable hardship. She noted these issues were particularly prevalent at manufacturing companies in locations with large Muslim populations such as Minnesota .

Modifying duties. For an example, Mastroianni used the case of pharmacists who did not want to fill prescriptions for contraceptives on religious grounds. If there are other pharmacists who can fill the prescription, the employer may be required to allow the employee to pass the prescription to the other pharmacists so he or she does not have to fill it. However, in one case a pharmacist refused to accept the prescriptions from customers and would not pass them on to other pharmacists to fill. Mastroianni used this case to illustrate a point. When customers will be hurt by a requested accommodation of a religious belief, it will almost always create an unreasonable burden on the employer.

Systemic Enforcement Initiative

During her presentation, Mastroianni also alerted employers that every EEOC office has made a systemic enforcement initiative part of its daily work and employers should take this very seriously. Investigations and complaints will be initiated by the commission with emphasis on the following types of cases:

• Failure to hire
• Screening applicants on arrest and conviction records
• Pay discrimination and the Lilly Ledbetter Fair Pay Act
• ADAAA including issues related to preemployment testing and policies that require employees to be "100% cured" to return to work (the latter, she said, were like saying we don't make reasonable accommodations)