As the calendar has turned not only to a new year, but also to a new decade, many commentators have offered predictions on employment law issues that will impact the next 10 years. We thought it might be interesting to take a different approach and consider the following questions: First, what employment law issues were at the forefront 10 years ago, as 2009 rolled into 2010? Second, to what extent did those issues actually impact employers in the past decade?
Genetic Information and Nondiscrimination Act
One new federal statute generating a significant amount of attention 10 years ago was the Genetic Information and Nondiscrimination Act (GINA). The stated purpose of GINA, which became effective in November 2009, was to prohibit discrimination on the basis of genetic information with respect to health insurance and employment. Among other things, GINA prohibits employers with 15 or more employees from refusing to hire, discharging, or otherwise discriminating against any employee or applicant for employment because of the individual’s genetic tests, the genetic tests of family members of the individual, or the manifestation of a disease or disorder in family members of the individual. GINA also prohibits employers from requesting or requiring genetic information with respect to an employee, applicant, or family member of an employee or applicant, except in very limited circumstances.
Some advocates of GINA expressed a fear that as genetic testing advanced and became increasingly able to predict future health issues in persons, employers would use genetic testing and information in the employee selection process. GINA passed Congress overwhelmingly, with only one member of the House of Representatives voting against it and no senators voting against it.
Ten years later, the impact of GINA is difficult to assess. Theoretically, it could have deterred employers from the widespread use of genetic information and testing in employment. However, relatively few charges of discrimination under GINA have been filed with the Equal Employment Opportunity Commission (EEOC) since passage of the law. During the nine years for which data exists, the EEOC has never received more than 333 charges in a single year alleging a GINA violation. Also, contrary to the situation with many laws, the number of charges alleging GINA violations has actually declined during its 10 years in existence. In fiscal year 2018, the last year for which data is available, the EEOC only received 220 charges alleging a GINA violation. In that same year, the total amount of money collected nationwide by the EEOC on charges alleging GINA violations was only $400,000.
Lilly Ledbetter Fair Pay Act
The Lilly Ledbetter Fair Pay Act of 2009 was the first bill signed into law by President Obama when he took office. This act amended Title VII by stating that the statute of limitations for female workers to file an equal pay lawsuit alleging pay discrimination based upon gender resets with each new paycheck affected by the alleged discriminatory action (for example, a discriminatory performance evaluation that resulted in a lower annual wage increase). This act was a direct response to the 2017 United States Supreme Court case of Ledbetter v. Goodyear Tire & Rubber Company, which held that the statute of limitations for presenting an equal pay lawsuit begins on the date of the initial discriminatory wage decision, not the date of the most recent paycheck.
Unlike GINA, the Lilly Ledbetter Fair Pay Act did not have near-unanimous support in Congress. In fact, it was defeated in the Senate when it was first introduced in 2008, before narrowly passing both the House of Representatives and the Senate in 2009.
As with GINA, the actual impact of the Lilly Ledbetter Fair Pay Act is difficult to determine. In 2009, some studies showed that the gender pay gap for full-time workers was 23% (i.e., female workers received 77% of the wages male workers received). In 2019, studies showed that the gender pay gap had decreased slightly, to 21%. It is unclear to what extent, if any, the Lilly Ledbetter Fair Pay Act contributed to this decline. The number of EEOC charges alleging an Equal Pay Act violation has increased in the past decade, but only marginally.
In 2009, E-Verify, an Internet-based system by which employers can verify an individual’s eligibility to work in the United States, became mandatory for federal government contractors. Many commentators predicted that the use of E-Verify would quickly expand beyond federal contractors, either through voluntary use by employers or further government mandates.
Time has proven these commentators correct. Many states, including Alabama, Mississippi, North Carolina, and Tennessee, now require most or all employers to use E-Verify. Other states, such as Florida and Texas, require public employers and/or state and local government contractors to use E-Verify. This trend shows no signs of slowing down. As recently as last month, Florida’s governor urged state lawmakers to approve legislation requiring all employers in the state to use E-Verify.
Further evidencing a governmental emphasis on ensuring the employment eligibility of all workers is the fact that I-9 audits and government “raids” on undocumented workers have increased 400% in the past decade.
During his late-night television show on October 1, 2009, David Letterman confessed to having sexual relations with staff members of his show. At the time, his confession was noteworthy as a relatively rare example of workplace sexual misconduct by a celebrity becoming public.
A decade later, allegations (or confessions) of sexual harassment by public figures are commonplace. The topic is covered in books (see She Said, a book written by two New York Times reporters detailing allegations of sexual harassment against Harvey Weinstein), movies (see Bombshell, starring Nicole Kidman, Charlize Theron, and Margot Robbie and depicting allegations of sexual harassment at Fox News), and seemingly daily articles on internet sites and social media.
This is one area where the impact has been felt clearly and profoundly by employers in recent years. Whereas EEOC claims as a whole fell 9.3% between fiscal year 2017 and fiscal year 2018, claims alleging sexual harassment rose 13.6%. Many employers have decided that zero tolerance is the safest policy where sexual harassment is concerned. These employers are taking more drastic action after a single substantiated claim of harassment than they previously might have.
Of the four issues described in this article, the one most likely having the largest impact on employers in the past decade – sexual harassment -- is the one that did not require any new statute or government regulation to increase its impact. It only required action by individuals. Perhaps that is a lesson in attempting to predict the issues employers will be talking about 10 years from now.