Commentary
Even those employers who want to step aside from today’s political battlefields need to exercise careful thought before they find themselves in the middle of the costly traps that can arise from ignoring or embracing today’s ideological agendas.
For instance, in describing its most recent plan of action for the next four years, the Equal Opportunity Commission (EEOC) plans to secure greater equitable relief by investigating systemic discrimination in employment more energetically and comprehensibly than it has in the past.
“Employers should brace themselves for the impact the EEOC’s manifestation of its performance measures may have over the next four years,” according to Cassidy Mara, an attorney with the Akerman law firm. To combat and prevent employment discrimination, the commission’s plan calls for it to deploy administrative and litigation mechanisms for identifying and eradicating discriminatory policies and practices among employers, including those the commission claims have arisen from systemic racism and other forms of prejudice.
Mara says this means the EEOC commissioners and staff will adopt more of a law enforcement attitude and methods for rooting out what it perceives as systemic discrimination both root and branch. To meet its ambitious objective, the commission said it will aim for 90% of all EEOC conciliation and resolutions actions to contain targeted equitable relief no later than 2025.
This steep performance measure “is designed to encourage the EEOC to seek relief that goes beyond monetary damages for individual victims of discrimination,” the agency said when it announced the new agenda.
Targeted equitable relief may include both non-monetary and non-generic relief. Mara says these could include requiring customized training for supervisors and employees, development of policies and practices designed to deter future discrimination, and external monitoring of employer actions. She warns employers that they should expect and prepare for these kinds of remedies to become more common when the EEOC deals with relevant complaints.
In recent years, the commission’s priorities have included the elimination of barriers in recruitment and hiring, protecting vulnerable workers, including immigrant and migrant workers and “underserved communities” from discrimination, ensuring equal pay protections, preserving access to the legal system, and preventing systemic harassment. Employers should expect more action targeting these areas of concern.
Employers who choose to embrace more liberal agenda also can find themselves in trouble in the current legal environment. Take the issue of abortion, which since the Supreme Court’s decision overturning Roe vs. Wade has ignited a firestorm of opposition to abortion restrictions that have arisen in several states. Some employers announced they would take steps to make sure their employees could still obtain abortions, even when they live in states where it is illegal. These steps include providing financial support for out-of-state travel and other benefits to support their ability to obtain the procedures.
As the Hall Benefits Law firm puts it, “Despite their public commitment to healthcare access for their workers, businesses must be aware of the potential for legal exposure in doing so, especially in states that have enacted so-called ‘aiding and abetting’ laws, which treat as criminals those who help others procure an abortion.”
Although no such lawsuits have been filed as of this time, some state lawmakers and anti-abortion organizations have publicly issued threats to do so. In order to protect themselves, some employers have chosen to structure their abortion benefits by using third-party administrators to process claims and collect documentation from employees.
Other employers have modified their abortion travel benefits to offer more coverage to employees for all types of medical services, which can encompass not only abortion but also gender-affirming surgeries, a topic which is also becoming increasingly controversial, the Hall attorneys point out.
Even with the Biden administration that has been quite vocal in its support of abortion rights, employers can find new legal traps beckon in the form of the tax code. For example, the Hall attorneys note that the Internal Revenue Service has established a $50-per-night limit on lodging expenses when it comes to medical care-related travel. Employers whose intention is to cover all abortion-related travel expenses for their employees can run the risk of providing taxable benefits to employees. If that occurs, the company’s health benefits plan must provide the employer with relevant information about which employees received taxable benefits.
