The EEOC said total new complaints during fiscal 2011 were just slightly ahead of 2010. Last year it received 99,947 claims compared to 99,922 the year before. It also reported taking in $455.6 million through its administrative program and litigation.

Released last week, the stats show charges of retaliation by employers against workers who raised discrimination issues accounted for 37.4 percent of the commission’s workload. Complaints alleging just violations of Title VII (discrimination on the basis of sex, race, color, religion, and national origin) accounted for 31.4 percent of the complaints.

Retaliation claims are rising faster than any other category of complaint, up 10 points in the last decade. Race discrimination claims, historically the most frequent, were the second-most commonly received complaint by the EEOC. They’ve hovered around 36 percent for years and last year represented 35.4 percent of the total charges.

(Note that a charge may contain multiple discrimination claims. The percentages represent the charges that include a specific discrimination claim.)

Retaliation claims may well continue to climb this fiscal year. Announcing a lawsuit earlier this month, an EEOC regional attorney in the New York office said, “We will pursue vigorously retaliation claims against employers whose managers would rather not comply with court orders and fire individuals who object to threats based on their religion and bias based on race.”

Mintz Levin attorney Martha Zackin, discussing the retaliation charge statistics, bluntly declared, “Retaliation claims are here to stay.” “ Recent developments lead us to conclude that this trend will continue, in 2012 and beyond,” she said, citing Department of Labor retaliation guidance under the Fair Labor Standards and Family and Medical Leave acts.

After retaliation and race, sex, disability, and age charges ranked third, fourth, and fifth respectively. However, while charges of sex and race discrimination declined, age and disability claims increased over 2010.

The EEOC said that its enforcement of the Americans with Disabilities Act “produced the highest increase in monetary relief among all of the statutes: the administrative relief obtained for disability discrimination charges increased by almost 35.9 percent to $103.4 million compared to $76.1 million in the previous fiscal year. Back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes.”

If you are — and a report from the National Employment Law Project suggests the list is longer than you might think — be careful. You’re walking a thin line between legal discrimination, and the kind that just might result in a disparate impact complaint from the EEOC.

At the behest of some 50 members of Congress, the U.S. Equal Employment Opportunity Commission held a day-long hearing on the matter several months ago. No formal statement has come out of the hearing, but the attention focused on the issue by the EEOC and Congress is raising concern among the employment bar. Labor lawyers are counseling employers to act carefully, avoiding blanket policies against hiring the unemployed.

Unless you are hiring in New Jersey, it is legal to include language in a job posting discouraging the unemployed from applying. In the Garden State, however, it became illegal on June 1 to discriminate against the unemployed in print or online ads. But everywhere, it’s bad PR to include the kind of wording that turned up in the now-infamous Sony Ericsson job posting.

Legal or not, employment lawyers at Foley & Lardner warned a few months ago that “employers can expect their hiring practices concerning the unemployed to be scrutinized.”

With an unemployment rate (in June) of 16.2 percent, twice that of whites, blacks could well be disproportionately impacted by a blanket “no unemployed” policy. Thus, said the Foley & Lardner lawyers, “The issue also seems ripe for a disparate impact test case, perhaps even one brought by the EEOC itself against an employer.”

The labor specialist group at Weil, Gotshal & Manges concluded a detailed account of February’s EEOC hearing on unemployment discrimination with this:

Given the EEOC’s attention on blanket prohibitions against hiring unemployed applicants, employers run the risk of raising the EEOC’s interest when imposing these types of bans, which could culminate in a lawsuit brought by the EEOC or by individual job applicants denied employment because of such a prohibition. Even if the EEOC or a claimant would not ultimately prevail, given the cost and distraction associated with defending against such claims, it would be prudent for employers to investigate alternative ways of achieving their goals, if practical, rather than relying solely on employment status as means of evaluating job candidates.

Irrespective of the EEOC threat, there’s a groundswell of support to “do something” about the nation’s job situation and its 14 million unemployed and another 11.3 million underemployed and discouraged workers.

New Jersey’s law had the support of the state’s Republican governor, Chris Christie, who’s often mentioned as a possible presidential candidate. New Jersey neighbor, New York, and Michigan have taken up similar legislation.

At the federal level there are two bills dealing with the subject. The more moderate, introduced last month by Connecticut Democrat Rosa DeLauro, makes it unlawful to publish a job posting that contains discriminatory language. It also prohibits employers from refusing to consider or hire an individual simply because they are unemployed.

Enforcement is up to the aggrieved individual in a civil action or by the Department of Labor.

The second bill adds the unemployed as a protected class to Title VII. This would make the EEOC the enforcement arm, and subject employers to all the reporting and compliance requirements.

The likelihood of either federal bill passing is probably not high. But that doesn’t mean it’s impossible, particularly for the DeLauro bill. With elections coming up next year and unemployment showing no sign of abating, both the White House and Congress may grasp at anything that suggests help.

A poll commissioned by the National Employment Law Project found 90 percent of respondents agreeing that discriminating against the unemployed is unfair. Some 63 percent favor the kind of Congressional action embodied in the DeLauro bill.

The poll got widespread attention when The New York Times wrote about the issue of unemployment discrimination.

The article notes that “there are legitimate reasons that many long-term unemployed workers may not be desirable job candidates.” These range from using employment status as a screening tool, to concerns with atrophied skills, and recruiter concerns that workers laid off early in the recession may simply have not been good performers.

Last year, I referenced other reasons for excluding the unemployed, including the usual bias to hire passive candidates.

Popular sentiment, however, is that excluding the unemployed from consideration isn’t right. In a matter of a weekend, USAction collected over 25,000 signatures on a petition calling on job boards to refuse ads that include discriminatory language against the unemployed.

Three of the largest job boards — CareerBuilder, Dice, and Monster — say they discourage customers from including such language in job postings.

On the same day the Times’ story appeared, Monster used its blog for the second time this year to say, “We at Monster strongly oppose this practice and advise our clients on the risks of discriminating against any individual.”

Both CareerBuilder and Dice said they have policies against discriminatory language in job ads. Both monitor ads for compliance with relevant law, advising customers when one comes across and removing it if the client doesn’t.

Dice’s SVP, Tom Silver, pointed out that “Today, there are talented professionals who may happen to be unemployed largely due to circumstances beyond their control. Companies should seek the best talent that has the right capabilities and cultural fit. Limiting a company’s chance to find successful colleagues — only puts the employer at a disadvantage.”

Peter Weddle, executive director of the International Association of Employment Web Sites, the job board business group, said it “strongly opposes any form of discrimination in hiring, to include discrimination against those who are unemployed.”

While USAction did not contact the IAEWS before launching its petition, Weddle said the matter is really one for the government.

“Until a Federal law is passed,” he said in an email, “it’s unclear what if anything we should or should not be doing. In general, we don’t believe it is a job board’s responsibility or role to ensure employer compliance with employment law. That’s the federal government’s job.”

That said, in case you might have missed Hiring the Kind of Salespeople You Only Dream About, I found John Zappe’s EEOC article a great companion. That is, if your organization routinely uses credit checking when hiring salespeople, you might want to know how the present Washington administration treats employers who don’t do their hiring homework.

(It’s OK, I’ll wait here while you catch up).

Get Ready!

We live in a confusing world where politicians are always on the lookout for reasons why their voting block is not being hired; where the government does not require organizations to hire unqualified employees; and, where adverse impact is not illegal. On the other hand, if someone thinks your organization does not have enough employees of the right color, gender, age, religion, and so forth, government agencies are empowered to be in your face!

Let’s start with an oversimplified explanation of the audit process. First, they (EEOC or OFCCP) process a complaint. Second, auditors use stats to examine your employee demographics. Third, if the stats show adverse impact, you are (on the face of the data) guilty of discrimination. The government could care less about how individual employees perform. Analysis is done at the group level. This can catch even the largest organizations flat-footed. Predictably, teams of $750/hour attorneys will be hired, everyone will argue back and forth for months, and eventually the organization $ettle$ out of court. (Note, although there are hiring exemptions extended to small business and special interest groups, best practices work for everyone).

Get Set!

The outcome of a legal challenge is unpredictable. The cost of a legal challenge is not. There are ways organizations can substantially strengthen their defense; and, the best part is, the government even tells you how to do it! Let’s say that, on the face of statistical analysis, your organization looks like a socially bankrupt, adverse-impact loving, discrimination-monger. No problem. Just show them records outlining: business necessity, job-relatedness, validation, documentation, tracking, and efforts to reduce adverse impact.

What? You don’t have them? You have a better way? Who made that decision? No matter. You’re screwed and your attorney is about to get a brand new Mercedes. You see, organizations that do not care about following best practices because their goal was filling open slots and surviving probationary periods inevitably have both weak employee bench-strength and shoddy legal credibility.

Go!

Let’s re-visit credit checking. The main reason why organizations only hire people with good credit scores is “everyone knows” they perform better. Right? Wrong? Maybe? Consider this: Low-income people usually have poor credit scores. High income people usually have better credit. But wait! Protected groups are usually low income. Knock, knock. Who is there? Audi! Audi who? Audi-tor! Open your wallet, and stop your clocks. This is going to hurt!

Unless you can document (using pencil and paper) how bad credit is directly related to job performance, you really don’t have a legal credibility (or job performance) leg to stand on. It makes as much sense as reading horoscopes and refusing to hire anyone other than a Gemini because you think he or she will give you twice the productivity.

Establishing Validity

You cannot just ask a credit report or test vendor for assurance his or her test works as promised. That’s a non-starter. Even if someone else already did all the validation work, you still have the responsibility to show your job is essentially the same as theirs … business necessity, job relatedness, and validity.

Making a strong case for credit checking as a hiring tool always starts with thoroughly understanding the job. It might be appropriate in jobs where employees or salespeople handle valuable goods or have ready access to cash. In this case, business necessity might be argued that employees with prior credit problems are more likely to steal than people with clean records.

We’re done now, right? Nope! The EEOC and OFCCP like to see something called criterion validity. That is, they want more than your opinion. They want proof that scores accurately predict job performance. This can either be present-day (concurrent validity) or future-oriented (predictive validity). Present-day validation studies compare today’s credit scores to today’s job performance. Future-oriented studies require collecting (and ignoring) credit scores, waiting long enough to get a good reading on performance, and then comparing them.

Next, we have to define job performance. In the case of salespeople who handle cash we might use shortages. Or, we might examine shrinkage if salespeople work around negotiable goods. Employees who may be tempted to give concessions or award services might require deeper investigation. Every job has different performance criteria. The golden rule is if you cannot define it, then your reason for using it becomes weaker and weaker.

Scoring

Then we have the whole issue of how we use the scores we get. Should we use low, medium, or high bands? Maybe zero to one hundred? How about pass/fail? Do we look at only a few people or a whole gaggle? Banks for example, know sample-sizes can be misleading. They analyze huge numbers of borrowers and look for trends. Why do you think they ask you how long you lived at your last address or whether you owned a home? Taken alone, these tidbits provide little data, but when combined with other factors, they give the banks enough information to evaluate the risk of lending you money. (Contrary to what the media claim, the business of banking is lending money … they just want to get it back).

Just remember, every decision has its consequences.

Make Your Own Prediction

Here’s a prediction to think about. Which of the following organizations is more likely to be considered a socially bankrupt, adverse-impact, discrimination-monger? Company A that conducts traditional interviews and hires only applicants with good credit? Or, Company B that follows best practices by showing business necessity and job relatedness, uses validated tools, keeps documentation, tracks adverse impact, and makes ongoing efforts to reduce adverse impact?

Seems like a no-brainer to me.

Kaplan Higher Education Corp. was sued Tuesday by the Equal Employment Opportunity Commission over its use of credit checks. The suit claims Kaplan denied jobs based on credit histories in such a way that it had a disparate impact on blacks.

The EEOC said Kaplan “engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black job applicants nationwide.”

“This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity.” The types of jobs at issue weren’t disclosed.

A company spokeswoman denied the charge, saying background checks are conducted on all potential employees. Credit checks are part of the screening for jobs involving financial matters, including advising students on financial aid.

A “disparate impact” case doesn’t require an employer to have intentionally discriminated against a class of applicants. Instead, discrimination can occur by the use of background criteria, experience, education, or other job requirements that appear neutral on their face but which more heavily impact a protected class of applicant. Unless the employer can demonstrate a “business necessity” for the requirement, it may be found guilty of discriminating. Even where business necessity can be established, a violation may still be found if there is another alternative available that is less discriminatory.

Labor lawyers and industry experts have been predicting that the EEOC is becoming more aggressive. Employment attorney Jon Hyman, who blogs at Ohio Employer’s Law Blog, warned last month that, “The EEOC is no longer an agency where charges go to die. Employers can expect more thorough investigations, quicker resolutions, and more aggressive enforcement.”

Nick Fishman, chief marketing officer, VP and co-founder of EmployeeScreenIQ, blogged about this same thing recently on ERE. In his look ahead at the background screening trends for 2011, Fishman listed the EEOC aggressiveness first, writing: “The EEOC is especially targeting ‘bright line’ hiring decisions that automatically exclude candidates with criminal records, arrest records that don’t result in a conviction, and/or poor credit.”

After reading about the Kaplan suit this morning, I called Fishman to ask about the issue and for advice about what recruiters can do to insulate their company against EEOC action.

He wasn’t surprised that the EEOC had sued someone over the issue. “They’ve become a lot more active in the last year,” he said.”We’re going to see a lot more out of them.” And, he pointed out, there is no way to protect against someone filing a lawsuit. However, no employer should be deterred from credit or background checks where the job demands it and there’s no intent to discriminate.

Fishman offered this guidance:

• Assess the exposure the company has for each job.
• Make sure there is a legitimate business purpose to conduct a credit check. Do the job responsibilities involve financial records or access to them? For a CFO position, the connection is clear. For a janitorial job, maybe not. Though there might be situations where a janitor has access by virtue of a master key to money or records.
• Have a written background policy for each position, including a description of the business purpose.
• If adverse credit information turns up, don’t automatically reject the candidate. Instead, ask about it.

Through conversations with clients and others in the industry, he has learned that employers these days are more sympathetic to credit problems. Even in the gaming industry, where many employees routinely deal with large amounts of cash, applicants with credit dings are getting more consideration than in the past, if for no other reason than credit problems are so pervasive.

Nevada, the gaming capital of the U.S., has the lowest average credit score in the nation. At 668, it’s 24 points below the national average of 692. No wonder, considering that Las Vegas has the highest foreclosure rates in the nation.

Two months ago, the EEOC held a public meeting on the use of credit histories as employment screening devices. It heard from a number of organizations including SHRM, which concluded its presentation saying, “SHRM has significant concerns with efforts to eliminate the ability of employers to consider relevant credit information during the employment process.”

Most of the speakers at the meeting represented private organizations and advocacy groups; however, the comments by Richard Tonowski may foreshadow just what the EEOC wants to see from employers using credit checks and background screening generally. Tonowski, the EEOC’s chief psychologist, summarized the day’s proceedings listing four distinct reasons why employers use credit checks.

These are:

• To identify productive employees, a use he said that has “little evidence” to back it up;
• To identify reliable employees. Conceding there is “some evidence” correlating good credit with reliability, he said, “Similar results might be obtained through personality tests or their close cousins, integrity tests.” Interestingly, these, he noted, may soon be examined by the EEOC for having a potential adverse impact on protected classes;
• To confirm employment history, which, though “a credit report can confirm basic information” the same  “might be obtained from background screening providers without the applicant’s financial details”;
• To identify those with incentive for major fraud or theft.

When used to identify potentially dishonest employees, Tonowski said, “This is perhaps the most problematic use, because — fortunately — serious crime is likely a rare event for most employers. It is thus hard to establish a predictive relationship between credit and crime.”

While hearing from the EEOC is enough to cause any HR professional to shudder, even if it decides not to proceed, private actions may be allowed. Two weeks ago the University of Miami was sued over the denial of a job to a black applicant because of a credit check.

“It’s a good best practice to have,” counsels Christopher Olmsted, a specialist in labor and employment law and partner in the San Diego firm Barker, Olmsted & Barnier. Now, in the wake of a new federal appeals court decision, proper vetting is “even more important,” he says.

Last month, the 2nd District Court of Appeal based in New York, said an employer is liable for the misdeeds of its hiring agents, even if it considers them independent contractors.

Said the court: “We hold that an employer may be held liable for discrimination by third parties, including independent contractors, that the employer authorizes to make hiring decisions on its behalf.”

The case arose when a candidate was rejected for a job showing apartments to potential tenants because, the candidate alleged, he was too old.  Michael Halpert, the candidate, sued Manhattan Apartments, the rental company. But it said it wasn’t liable because one of its  independent contractors was involved and under previous decisions it wasn’t responsible for the actions of a third-party recruiter.

The New York Appeals court rejected that contention and ruled, “If a company gives an individual authority to interview job applicants and make hiring decisions on the company’s behalf, then the company may be held liable if that individual improperly discriminates against applicants on the basis of age.”

In Olmsted’s view, an RPO or HR outsourcer given authority to make hiring offers, would become an agent of the employer. And under the law the employer is responsible for the actions of the agent.

At the other extreme is simple name generation or application screening where all candidates meeting the job requirements are submitted.  “If they are just shuffling paper, then there’s no hiring authority involved,” Olmsted says.

But what about those (very common) situations where a third party is retained to source and screen candidates? Or conduct a first interview? Or rank them, and present the list?

That’s where things get murkier, he agreed. “The case does very little to tell when this agency agreement arises,” he says. “As soon as the recruiter is given some responsibility… then the question arises.”

In an analysis he wrote for the law firm’s website, Olmsted advises, “When hiring recruiters or other service providers, engage in ‘HR due diligence’ by confirming their understanding of and commitment to EEO practices.”

Technically, the opinion of the New York appeals court applies only to federal courts in the second district. However, like Olmsted, attorneys across the country are advising employers to be especially careful when hiring outside recruiters.

He sued under the Age Discrimination in Employment Act, which,  like Title VII of the Civil Rights Act, prohibits discrimination, but which, unlike Title VII, hasn’t received the same attention from Congress over the years.

Gross won $47,000 from an Iowa jury. The verdict was upheld on appeal. But Thursday, in a historic employment decision, the U.S. Supreme Court overruled the lower courts in Gross v. FBL Financial Services, declaring that it is up to plaintiffs to prove age bias was the reason for an adverse action against them by an employer.

The court’s decision throws out a long-standing rule by which an employee could prevail on an age bias claim if they could prove age was a factor, even if it wasn’t the only one. Once the employee plaintiff established that with evidence, it was up to the employer to show a legitimate reason for taking the action it did.

These so-called “mixed motive” cases reflect such real-world situations as where layoffs fall disproportionally on older workers who tend to have higher pay than younger workers. In that kind of case, replacing older workers with younger ones may be one of multiple reasons considered by the employer. To make a bias case, however, a dismissed worker previously needed only to show that age discrimination was a part of the decision. That shifted the legal burden to the employer who then needed to show that the decision — in this example a layoff — would have been handled the same way regardless of worker age.

The Supreme Court ruling, written by Clarence Thomas and decided on a 5-4 vote, invalidates this two-step process — shifting the burden of proof — and places the entire burden of proof on the employee.

“The burden of persuasion does not shift to the employer even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Thomas writes in his decision.

Congress amended Title VII when a similar court decision threatened to derail protection against race, religion, and other forms of discrimination. Age protection is not part of Title VII, but was enacted in the Age Discrimination in Employment Act and was not affected by the Title VII amendments.

That point was made in the majority decision. “Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor,” Thomas writes in the opinion. “We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not to make similar changes to the ADEA.”

Advocacy groups such as the AARP were quick to denounce the opinion and called on Congress to overrule it with legislation.  Business groups, on the other hand, hailed the decision. Without it, said the National Federation of Independent Business, employers would have been subjected “to countless allegations of discrimination.”

Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito joined Thomas in the majority. Justices Stephen Breyer, David Souter, Ruth Bader Ginsburg, and John Paul Stephens dissented.

Foreshadowing the Firefighter Case?

The split, along ideological lines, is a possible foreshadowing of the pending decision in Ricci v. DeStafano, the case of the New Haven firefighters who lost a chance at promotion when their civil service promotional test results were invalidated.

In that case (story here), not one black firefighter scored high enough to be considered for promotion, while 18 of the top 20 scorers were white; two were Latino. The Civil Service Board in New Haven, Connecticut, which conducted the test, refused to certify the results, meaning no promotions were given. The basis for that decision lies in the disparate impact test of Title VII.

While in the Gross v. FBL Financial Services case the issue was age discrimination and the ADEA, the court’s conservatives have leaned toward making discrimination harder to establish. The Gross decision continues that trend and suggests Ricci could be decided in favor of the firefighters by the same 5-4 majority.

Of course, that’s just tea-leaf reading. The court has other options, including sending the case back to a lower court with specific instructions, should it wish to duck a decision in that emotionally charged case, complicated now by the nomination of Sonia Sotomayor to the Supreme Court. She was one of three judges to sign off on the two-paragraph appeals court decision upholding the lower court’s ruling in favor of New Haven.

Happy Monday, everyone!

If “Reevaluate background screening program” isn’t on your list, add it now because you can bet that should the EEOC come calling it will do it for you.

Ever since 2006 when the Equal Employment Opportunity Commission adopted a series of changes that have come to be known as the “Systemic Initiative,” EEOC field offices have been aggressively pursuing cases where one or more forms of discrimination permeate a company’s hiring practices. These can be as overt as the $20 million settlement last month against LA Weight Loss Centers for refusing to hire men. Or they can be as unintentionally discriminatory as refusing to hire anyone with a violent criminal record.

This latter instance was the heart of the leading U.S. case on background screening, El v. SEPTA.

Douglas El was fired as a driver of the mentally and physically disabled when a criminal check turned up a juvenile murder record. His attorneys sued showing that the policy has a disparate impact on Blacks who are more likely to have a record than whites. The Third Circuit Court of Appeals in Philadelphia upheld the employer in the case, but recruiters should take little comfort in that decision.

“The third circuit dropped lots of hints,” says EEOC attorney Carol Miaskoff, that it would have ruled differently, but for a lack of expert witnesses on the part of El’s attorneys. They chose not to counter testimony by noted criminologist Dr. Alfred Blumstein that a person with a criminal record is more likely to recidivate, even if, as in El’s case, the conviction was 40 years old.

So why should this prompt a new year’s review of hiring practices?

Arthur Cohen

This means that it’s not enough to simply adopt a policy against hiring felons, say, or someone with a poor credit history or with a less-than-honorable military discharge. Instead, says Merrily Archer, a former attorney with the EEOC who is now in private practice with Fisher & Phillips in Denver, employers need to ask “Is there any nexus between the criterion and the job we are hiring them to do?”

Merrily Archer

While the policy seems logical enough, is it really? Why pick five years and not four or two or seven?

Cohen, himself an attorney and vice president of operations and general counsel of background screener Concorde, Inc., counsels that employers “ought to be considering how they would articulate, if they are ever asked, why they chose the policy they did, on what research was the policy based, and why was it structured the way it was.”

The basis for a particular need not be unassailable, if that were even possible. Instead, said the federal court in the SEPTA decision, “We require that employers show that a discriminatory hiring policy accurately — but not perfectly — ascertains an applicant’s ability to perform successfully the job in question.”

How did SEPTA, the employer, show that? By bringing in a criminologist to testify to recidivism. Had El’s attorneys brought in one of their own, many lawyers including most of the labor lawyers we spoke with, suspect the appeals court would have decided differently and sent the case back for a jury trial.

If only for that reason you should have some data to support your employment policy.

“What makes the SEPTA case so noteworthy in my opinion is that the indication is that the participation of a criminologist has relevance to the preparation of a policy involving a review of the criminal records,” says Cohen says.

Or to put it another way, if an unsuccessful candidate sues says Cohen, “By all means this could turn into a war of the experts.”

So as you go about reviewing your pre-employment screening procedures it would be wisest to test the policies in two ways: Against the EEOC’s own guidelines for criminal convictions and against the SEPTA court’s declaration that “discriminatory hiring policies accurately but not perfectly distinguish between applicants’ ability to perform successfully the job in question.”

One more thing to consider: Congress has shown an inclination recently to expand protection against discrimination. In September it passed a law that expressly overrode the Supreme Court’s narrow reading of some of the protections of the Americans With Disabilities Act.  And the new Congress is expected to approve two measures expanding the right of workers to sue for past discriminatory acts and limits an employer’s defenses to equal pay actions.

As attorney Archer suggests, “Better buckle your seatbelt and get a good attorney.”