Table of Contents 

Special Section
Professional Liability Underwriting Society (PLUS)

Ever-changing EPL issues

EEOC Vice Chair Leslie Silverman
to moderate panel discussion

By Phil Zinkewicz

At last year’s PLUS annual meeting, Richard Lehr, a shareholder and partner of Lehr Middlebrooks & Vreeland, a Birmingham, Alabama-based specialty labor and employment firm that works on behalf of employers throughout North America, moderated a panel on employment practices liability (EPL). During that panel discussion, Lehr asked participants to address what he called “flash points” for potential employee claims.

One flash point was retaliation claims, which occur when an employee exercises his or her right to complain and the employer retaliates in some way. The panel decided that such claims were definitely on the rise, and Lehr estimated that 30% of all discrimination claims filed with the EEOC involve retaliation. In addition, last year’s panel discussed other EPL areas of employer concern such as claims alleging religious discrimina-tion, age discrimination and employer monitoring of an employee’s use of technology in the workforce.

At next month’s PLUS annual, Lehr will once more take on the ever-changing world of employment practices liability. This time around, however, the panel will feature the vice chair of the Equal Employment Opportunities Commission (EEOC), Leslie Silverman. Other panelists are: Philip Zoluck, attorney, and Harolyn Issac, claims attorney for Great American.

“We feel privileged to have Ms. Silverman on the panel and believe her participation in the discussions will be a great help in airing some of the more important issues,” says Lehr. “She will present some of the latest developments in the area of EPL from a regulatory standpoint, and then the other panelists will comment on her observations. If nothing else, this panel will definitely provide some food for thought. In EPL, the interests for employers and their insurance companies are colossal, and it’s not always easy to anticipate where EPL claims will come from,” says Lehr.

For example, he says, one relatively new area of EPL exposure that will be analyzed is the employer’s responsibility to employees who are caregivers on the home front. “Most caregivers, who must take care of children at home or elderly people who are sickly, are usually women,” Lehr points out. “The question is does the fact that they are caregivers hold them back in the workplace in terms of advancing their careers? The theory that is rapidly expanding is that, since they are mostly women, there is the danger that this might represent another form of sex discrimination.”

Another area of concern is the recent use of RICO statutes in EPL disputes, says Lehr, and here again the subject will be addressed by the panel. “Let’s say that an employer hires an immigrant workforce as part of his or staff. That tends to hold down the salaries and benefits of the non-immigrant workforce. When a claim against the employer arises, RICO laws may be employed. RICO laws were originally intended to punish criminals, but now it is moving into the area of civil litigation.”

Lehr says that the panel will also examine the various forms of sex discrimination. “Employers need to know what might constitute a sexual harassment claim early on so that they can prevent it. Also, we will be looking at a recent case that addressed the subject of gender discrimination, which addresses equal pay claims. The case is the Leadbetter case, which involves Goodyear Tire & Rubber Co. In this case, a woman who found out, after a number of years on the job, that there was a disparity between what men and women were being paid, made a claim. However, there was a problem involving statute of limitations. The panel will look at this case and its results.”

Age discrimination will also be addressed. “In economic slowdowns, when people have to be let go, age discrimination lawsuits tend to spike up. Age claims need to be evaluated because they can represent a significant portion of an EPL carrier’s claims portfolio. In these cases, juries often empathize with the older person who has alleged age discrimination.”

Lehr emphasizes that these are only some of the issues that may come up during the panel discussion. Other issues may surface, depending upon Silverman’s comments on the regulatory side. *

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