EEOC General Counsel Discusses Litigation Trends With XpertHR

Author: David B. Weisenfeld, XpertHR Legal Editor

In a new XpertHR podcast, Equal Employment Opportunity Commission (EEOC) General Counsel David Lopez discussed a host of key employment law issues, including the biggest mistakes he sees employers making.

"For medium and large-sized employers, the absence of an independent HR function is something that almost invariably leads to trouble," Lopez said. He added that retaliation claims are the ones that can create the most exposure for a company, so employers that can afford an HR function need to make sure it operates in a truly independent manner to avoid these claims.

Race Harassment Remains Troubling Trend

Addressing notable trends, Lopez said the EEOC continues to see very egregious cases of racial harassment. "It's really unacceptable to be here in the 21st century dealing with cases involving nooses, racial slurs and references to the Klan." Despite a number of significant settlements, these cases are continuing to arise.

The EEOC General Counsel also touched on disability issues generally including the rise in litigation involving mental disability issues. "One of the big mistakes employers make is that they're not engaging in the interactive process... They're not sitting down and thinking creatively about accommodations for disabled workers," Lopez said. "It's worth it for employers to do that... because the cost is minimal if not nonexistent."

Some Employers Taking Liberties With Most Vulnerable Workers

Regarding news at the Commission, the EEOC has a systemic discrimination initiative to protect vulnerable populations. Lopez told XpertHR that the EEOC considers targeting disparate pay, job segregation, trafficking and other discriminatory practices and policies affecting immigrant, migrant and other vulnerable workers "a top enforcement priority."

Lopez is quick to add that the "vast majority of employers" are trying to come into compliance with antidiscrimination laws and are operating in good faith. "But there are some employers out there who will calculate that they can get away with discrimination...based on the calculation that their employees will not come forward either due to linguistic barriers, cultural barriers or fear," said Lopez.

"What we want to do is make sure that victims of discrimination have a safe space to come forward." He noted this is important not only for the workers, but for the employers who are playing by the rules.

Lopez was sworn in as General Counsel in 2010. He is the first field staff attorney ever to be appointed to the post. Lopez previously served as a Supervisory Trial Attorney at the EEOC's Phoenix District Office where he oversaw the litigation team.

Additional Resources

EEOC General Counsel Takes In-Depth Look at Litigation Trends