The EEOC Increased the Number of Lawsuits it Filed Against Employers in 2023
November 23, 2023
The EEOC’s enforcement statistics for 2023 show that the agency filed 143 discrimination lawsuits, an increase of more than 50% from 2022. A recent SHRM article included the following information regarding the suits:
13 of the suits were based on Age Discrimination;
43 of the suits included hostile workplace environment (27 based on sex or sexual orientation and 15 based on race or national origin); and 48 were based on Disability.
Employers in the Hospitality, Health Care, and Retail industries were the most favored targets of the lawsuits. It should be noted that the EEOC does not only go after large Employers, as 6 of the suits involved small Employers.
To avoid charges of discrimination, Employers should carefully evaluate all adverse employment actions, and consistently apply policies in a uniform manner. Applicants with a disability should all be carefully considered, with hiring decisions being based on the qualification and ability to perform the job, with or without reasonable accommodation. AHEAD can help you with compliance!
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The federal law enacted last week provides some tax relief for employees who work overtime, and for those who receive tips. A summary is set forth below: Overtime Deduction An employee must receive OT pay as defined by the Fair Labor Standards Act (FLSA) (pay for hours worked beyond 40 in a workweek at a premium rate), and the deduction only applies to the premium portion of OT pay (the amount above the regular hourly rate). The deduction applies only to overtime compensation that is “required” under the FLSA. The deduction does not apply to overtime premiums that are not “required” by the FLSA, but instead are paid pursuant to contract (including a collective bargaining agreement), company policy, or because they are required under state law only. This is an above-the-line deduction, with the maximum deduction being $12,500 per year (up to $25,000 if married filing jointly). To be eligible for the full deduction, employees must earn $150,000 or less. Employers must include the total amount of qualified overtime compensation as a separate line item on the Form W-2. This will require employers to keep a distinct record of the overtime premium compensation that is both (a) required under the FLSA and (b) in excess of the regular rate. Tips Deduction To qualify for the deduction, the tips must be received by an individual engaged in an occupation that customarily and regularly received tips on or before Dec. 31, 2024, such as servers, bartenders, hotel staff, hairstylists, etc. To be considered a “qualified tip,” the amount must: (a) be paid voluntarily without any consequence in the event of nonpayment; (b) not be the subject of negotiation; and (c) be determined by the payor. Thus, for example, a mandatory service charge imposed by the employer for a banquet will not qualify for the deduction, and neither will a required gratuity that a restaurant adds automatically to a bill for large parties. Failing to make this distinction may lead employees to claim deductions to which they are not entitled. This is also an above-the-line deduction, with a cap of $25,000 per year. To be eligible for the full deduction, employees must earn $150,000 or less. The act requires employers to include on Form W-2 the total amount of cash tips reported by the employee, as well as the employee’s qualifying occupation. For 2025, the act authorizes the reporting party to “approximate” the amount designated as cash tips pursuant to a “reasonable method” to be specified in a forthcoming regulation by the Treasury secretary.
The FMLA contains specific provisions allowing eligible employees to take leave “to care for the employee's spouse, son, daughter, or parent with a serious health condition.” In December, the 6th Circuit Court of Appeals, which is the Federal Appellate Court for the above states, issued an opinion finding that an employee might be entitled to take FMLA leave to care for her sick sister. The language of the FMLA is crystal clear as to family members for which an employee may take FMLA leave to care for. Notwithstanding that, the court found that the in loco parentis (in the place of a parent) language in the FMLA’s definition of ‘Parent” and “Son or Daughter” showed that “Congress sought to protect parental relationships, whether biological, legal, or their functional equivalents.” So, the court sent the case back to the lower court to determine whether the employee in question had an “in loco parentis” relationship with her sister. If so, the employee would be entitled to FMLA leave to care for the sister. This nonsensical interpretation of the FMLA by court leaves employers in the above states with great uncertainty as to what to do if an employee requests FMLA leave to care for a sibling. Under the court’s skewed reasoning, the employer would have to determine whether an employee requesting such leave actually stood in loco parentis with the sibling. An employer facing such a request should consult with an HR or legal professional.
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The President made two appointments on his first day in office that will level the playing field for Employers: He named Andrea Lucas to be the Acting Chair of the EEOC. Ms. Lucas has been an EEOC Commissioner since being nominated by President Trump in 2020. Upon her recent appointment she stated “I look forward to restoring evenhanded enforcement of employment civil rights laws for all Americans. In recent years, this agency has remained silent in the face of multiple forms of widespread, overt discrimination. Consistent with the President’s Executive Orders and priorities, my priorities will include rooting out unlawful DEI-motivated race and sex discrimination; protecting American workers from anti-American national origin discrimination; defending the biological and binary reality of sex and related rights, including women’s rights to single sex spaces at work; protecting workers from religious bias and harassment, including antisemitism; and remedying other areas of recent under-enforcement.” The President also named Marvin Kaplan as the Chairman of the NLRB. Mr. Kaplan has served on the Board since 2017. The President should have the opportunity to appoint two more pro-employer Board Members soon, resulting in a Republican majority, and will also surely replace the radical NLRB General Counsel very soon. This will allow the Board to undue the controversial pro-union positions and decisions delivered under the previous Administration.
