Employers Beware: Increased Attention to Workplace Harassment and Wellness Programs by the EEOC Coming in the New Year

Newly appointed U.S. Equal Employment Opportunity Commission (EEOC) Chair Jenny Yang recently offered some insight into the EEOC’s areas of focus for 2015, providing employers with a preview of some of the key regulatory and enforcement actions on the horizon. Two primary issues have emerged: workplace harassment and wellness programs.

Workplace Harassment

Workplace harassment is a common theme in discrimination complaints filed with the EEOC, showing up in approximately 30 percent of all complaints. Employers should expect increased EEOC attention to workplace harassment following a January 14 public meeting held by Ms. Yang on the issue. At the meeting, Ms. Yang announced her decision to convene a taskforce to study workplace harassment and to advise the EEOC on effective steps to both deter harassment and penalize it when it occurs. Testimony at the meeting also focused on the existing sanctions for employers found guilty of allowing workplace harassment by highlighting a recent harassment-related lawsuit that cost the employer $1.2 million to resolve.

Employers should tackle workplace harassment now to avoid getting caught up in the EEOC’s new focus on this issue. We recently provided some best practices for combating workplace harassment, which include making sure that your code of conduct policy and employee training covers harassing behavior, and that you have an effective system in place to respond to instances of possible harassment before it rises to the level of a lawsuit.

Wellness Programs

Issuing new regulations on workplace wellness programs is also high on the EEOC’s to-do list for 2015. Many employers offer wellness programs (which may include biometric screening and monitoring, exercise incentives, and so forth) to encourage their employees to adopt healthy lifestyles that they hope will lead to improved productivity at work. Although well-intentioned, these programs may run afoul of the Americans with Disabilities Act or the Genetic Information Nondiscrimination Act, particularly if they involve disclosure of health information by employees or impose sanctions on non-participating employees. Accordingly, guidance from the EEOC is urgently needed to allow employers to implement these programs without fear of litigation. Although Ms. Yang recently declined to provide an exact timeline for issuing these new regulations, she has also stressed that they are a top priority for 2015.

Employers should not assume that the EEOC will delay its enforcement efforts on wellness programs until after it has provided employers with this guidance, however. The EEOC has already filed several lawsuits against employers, arguing that the employers’ wellness programs violate the Americans with Disabilities Act. In one of those cases, a district court recently rejected the EEOC’s request for an injunction, barring an employer from penalizing employees who declined biomedical testing in conjunction with the employer’s wellness programs, but reserved the question of whether the wellness program is permissible for another day.

Until the EEOC issues its new regulations, cautious employers should do their best to make their wellness plan truly voluntary by avoiding any penalties for non-participation as well as informal pressure to participate, and should furthermore limit the types of health information collected to avoid seeking information about employees’ genetic background or possible disabilities.