EEOC Year-End Countdown

Bullseye On Big Business: EEOC’s 2016 Performance And Accountability Report Shows Target On Systemic Litigation

Posted in EEOC Litigation

th870JF4SQBy Gerald L. Maatman, Jr., Christopher DeGroff, Matthew Gagnon, and Alex W. Karasik

Seyfarth Synopsis: The EEOC recently released its annual Performance and Accountability Report for the fiscal year 2016, a must-read for employers regarding statistical data on EEOC litigation. Continuing a trend from recent years, the EEOC has reaffirmed its commitment to targeting companies in high-profile systemic litigation, albeit with uninspiring results.

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On November 16, 2016, the EEOC released its annual 2016 Performance and Accountability Report (“PAR”) (the Report is here). The PAR highlights the progress of the EEOC’s continued efforts to meet the performance goals that are articulated in its 2012 Strategic Enforcement Plan (“SEP”), including its systemic litigation initiative. As the saying goes, the numbers speak volumes.

The PAR functions as a statistical “scorecard” for the EEOC. It provides a report on its activities during the past fiscal year, from October 1, 2015 through September 30, 2016, including its progress toward meeting the goals outlined in the SEP. While the PAR typically provides a preview of what we can expect to see from the EEOC in the upcoming months, this year’s edition notably avoids speculating as to the future of the EEOC under a new President.

The EEOC’s Overall Results

The EEOC reports that it increased the number of charges resolved to 97,443 charges, up 6.5% from the 91,503 last year. In FY 2014 and FY 2015, the EEOC received 88,778 and 89,385 charges respectively, so the number of charges filed is up slightly over past years.

One of the major goals the EEOC identified in its 2012 SEP was to increase its efforts to champion bigger, more media-focused “systemic” cases, including pattern or practice cases where the alleged discrimination “has a broad impact on an industry, occupation, business, or geographic area.” In the SEP, the EEOC set forth a goal to ensure that systemic cases make up at least 20% of its annual litigation docket and at least 22% to 24% of its litigation docket by 2016. (Read more here.)  In FY 2016, the EEOC asserts it “meets or exceeded” five of the seven measures outlined in the SEP, while it “partially met” the other two.

The EEOC noted that it filed 18 systemic lawsuits in FY 2016, which represents a slight increase from 17 in 2014 and 16 in 2015.  Nevertheless, the number of pending systemic cases declined slightly, with 47 cases on its litigation docket (versus 54 in FY 2013, 57 in  FY 2014, and 48 in  FY 2015). Finally, the EEOC reports it recovered approximately $38 million in relief for victims of systemic discrimination (down from $40 million in FY 2015, but up from $13 million in FY 2014).

Charges: Breezin’ Through The Backlog

The EEOC reduced the charge workload by 3.8% to 73,508, a 3,100 charge reduction compared with FY 2015.  As of the end of FY 2015, the EEOC had a backlog of 76,408 charges, which was an increase of 750 charges over the backlog at the conclusion of FY 2014. The EEOC also noted that it responded to over 585,000 calls to its toll-free number and more than 160,000 inquiries to field offices.

The EEOC resolved over 15,800 discrimination charges through the agency’s administrative processes – comprised of settlements, mediations, and conciliations. This included 273 resolutions of systemic investigations, obtaining more than $20.3 million in remedies. The agency’s mediation program achieved a success rate of over 76%. Regarding conciliation, the EEOC notes that its success rate has remained at 44% over the past two fiscal years.

Settlements: Slowing Down

The EEOC secured more than $482.1 million in total relief in FY 2016. For victims of discrimination in private, state and local government, and federal workplaces, the EEOC obtained $347.9 million through mediation, conciliation, and settlements, again a slight decrease from the $356.6 million it collected in FY 2015 (but an increase from the $296.1 million that it collected in FY 2014). Litigation recoveries also decreased, as the EEOC recovered $65.3 million in FY 2015 while recovering only $52.2 million in 2016.

Lawsuits: Less Litigation

The number of lawsuits filed by the EEOC took a sharp decline, dropping from 142 merits lawsuits (including 100 individual suits, and 42 suits involving discriminatory policies or multiple victims) in FY 2015 to only 86 lawsuits in FY 2016 (including 58 individual suits and 29 suits involving multiple victims or discriminatory policies). Further, at the end of the fiscal year, the EEOC had 165 cases on its active docket. At the end of FY 2015, the EEOC had 218 cases on its active district court docket. This data illustrates how the EEOC has refocused its agenda to put its eggs into ever larger baskets.

Systemic Investigations

The number of systemic investigations completed by the EEOC remained the same. In FY 2016, EEOC field offices resolved 273 systemic investigations and obtained over $20.5 million in remedies in those resolutions (with 71 of the FY 2016 resolutions resulting from successful conciliations). In addition, the agency issued reasonable cause determinations finding discrimination in 113 systemic investigations. By comparison, in FY 2015, the agency reported that it completed 268 systemic investigations; issued 109 cause findings; and resolved 70 systemic investigations by voluntary conciliation agreements, obtaining over $33.5 million in remedies as a result of its systemic initiative.

Accordingly, although the EEOC completed roughly the same number of systemic investigations in FY 2015 and FY 2016 and issued a similar number of reasonable cause determinations in those years, FY 2016 collected a substantially lower amount of money as a result of these larger pattern and practice cases.

Implications For Employers

While the numbers confirm our predictions from 2015 (here) and 2014 (here) that the EEOC would continue its pursuit of high-profile systemic litigation, whether that agenda has been a success is an open question. For example, the EEOC’s financial recoveries have not markedly increased. If and how the EEOC adjusts its tactics to adapt to the incoming Trump administration remains to be seen. If that administration moves in a more employer-friendly direction, or restricts the EEOC’s funding, that could cause the EEOC to rethink its priorities and  its approach to its enforcement program.

Readers can also find this post on our Workplace Class Action blog here.

EEOC Shakeup? Top Ways Trump Presidency Could Impact The EEOC

Posted in EEOC Litigation

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By: Gerald L. Maatman, Jr., Christopher DeGroff, and Matthew Gagnon

Seyfarth Synopsis: The Trump Presidency will undoubtedly impact how the EEOC pursues its enforcement agenda. Although it is impossible to predict exactly what changes are in store, we think that it is a good bet that they will be driven by changes in personnel, resources, and substantive and procedural focus.

President-elect Trump is on his way to serving his first term in the White House. For at least the first two years of Trump’s administration, he will have a Republican majority in both houses of Congress. This has left employers (and our loyal blog readers) wondering how a Trump Presidency will impact the EEOC.

We have compiled our thoughts as to the top five ways that this political development could affect the agency and its enforcement priorities.

Changes In Personnel: President Trump will have the opportunity to appoint several high-ranking personnel that could, in turn, impact staffing decisions at all levels in the EEOC chain of command. Jenny Yang was named Chair of the EEOC by President Obama on September 1, 2014. Chair Yang has taken an active role in steering the strategic direction of the EEOC, including a focus on pay equity and a vigorous move to apply Title VII to workplace discrimination claims based on gender identity and sexual orientation. President Trump will have the opportunity to designate a new Chair. In addition, the EEOC’s General Counsel, David Lopez, announced in October that he would be leaving the EEOC in December. Mr. Lopez has faced an intense level of scrutiny by Republican members of Congress for the way that the EEOC has focused on and pursued systemic cases, especially against employers where no aggrieved person has filed a discrimination charge. His impending departure means that President Trump will have an early opportunity to appoint his successor. These leadership changes at the highest levels of the EEOC will undoubtedly impact the direction the agency takes in the future.

Change In Resources: The EEOC is likely to face tighter budget scrutiny under a Trump administration. In the Bush administration, for example, the EEOC’s budget was held flat for years.  If this trend is repeated or accelerated, then the agency may have to find creative ways to do more with less. Historically, the EEOC adapted by focusing its enforcement efforts on systemic litigation, meaning targeting high-impact cases that address policies or patterns or practices that have a broad impact on a region, industry or entire class of employees or job applicants. The theory was that large, high-profile cases, settlements, and judgments would have a greater deterrent effect, and would therefore affect a larger number of workers and industries. If the incoming administration and Congress tighten the EEOC’s budget again, the agency may be forced to find new and creative ways to adapt its enforcement program (and its own political viability) to the new reality.

Change In Substantive Focus: Over the past two years, the EEOC has made equal pay a top priority. Incoming Vice-President, Mike Pence, however, has publicly opposed new pay equity legislation. On February 16, 2016, the EEOC issued proposed regulations that would involve major revisions to the Employer Information Report (EEO-1). Those changes are expected to go hand-in-hand with an increased focus on pay equity issues. The new reports would require employers to provide aggregate compensation data and hours for all employees organized by 10 EEO-1 categories, 7 sex and race/ethnicity categories, and 12 specified pay bands. The EEOC approved the new EEO-1 reports along party lines. The changes are set to become effective in March 2018. Under any new Republican-appointed Commissioners, the EEOC could seek to revise or rescind these new regulations before they come into effect.

Change In Procedures: Under General Counsel David Lopez, the EEOC delegated individual EEOC district offices significant autonomy to oversee their litigation agenda and to develop their enforcement priorities. Given the level of criticism that Congress has levied against the EEOC, it would not be surprising if a Republican-led Congress subjected the EEOC’s enforcement program to heightened scrutiny and oversight. Legislative proposals are already out there. On March 24, 2015, the Subcommittee on Workforce Protections of the House Committee on Education and the Workforce held a hearing to examine a number of legislative proposals intended to provide greater transparency and accountability to the EEOC, including one proposal that would require the EEOC to make “good faith efforts to endeavor” to resolve cause findings by “bona fide conciliation.” Other proposals have called for the EEOC to focus on its enormous backlog of unresolved cases. Under a Republican administration, some of those proposals could ripen into actual legislation.

Unsettled Times Translate To Unsettled Action:  The Trump Presidency will certainly impact the EEOC, but it is not yet clear what those changes will be or how they will impact employers. This state of flux could precipitate short-term EEOC reaction. The administration change could actually galvanize the EEOC to launch pending litigation on an accelerated timetable while it is still protected by the Obama Presidency, especially cases that are considered high-value for accomplishing the EEOC’s current set of priorities. Historically, the EEOC has doggedly pushed the edge of the envelope despite shifting political winds, and the new Administration change may actually result in more, not less, enforcement activity in the short term. On the other hand, the events of this week could make some EEOC regions more cautious in taking on additional litigation given the uncertainty of whether future resources will be available to take those cases the distance.

Implications For Employers

With the White House and both chambers of Congress poised to shift to Republican control, there is every reason to believe that significant changes are in store for the EEOC. Exactly what those changes will be remains to be seen. What we have seen in the past – and what we are likely to see again – is that the EEOC will remain committed to driving forward its enforcement priorities, even if that means changing tactics and adapting its approach. We will continue to monitor this developing situation for our loyal blog readers.

Readers can also find this post on our Workplace Class Action blog here.

No New Trial: Court Grounds EEOC Following JetStream’s Victory In Religious Discrimination Trial

Posted in EEOC Litigation

th9L3810CUSeyfarth Synopsis: Following a major victory for an airline-industry employer over the EEOC in a Title VII action regarding religious accommodations, the Court denied the EEOC’s motion for a new trial. The decision is a blueprint for employers on turning the tables on the Commission’s litigation tactics.

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After the EEOC brought an action alleging that airplane cabin cleaning company JetStream Ground Services, Inc. (“JetStream”) refused to hire five Muslim women due to their request to wear religious clothing, a jury in the U.S. District Court for the District of Colorado ruled in favor of JetStream following a 14-day trial.  After the EEOC moved for a new trial, in EEOC v JetStream Ground Services, Inc., Case No. 13-CV-02340 (D. Colo. Nov. 3, 2016), Judge Christine M. Arguello of the U.S. District Court for the District of Colorado denied the EEOC’s motion.

While this employer victory over the EEOC is encouraging, employers should nonetheless be cognizant of how employee requests to wear religious clothing at work can potentially affect their business in the Title VII litigation context.

Case Background

In a high-profile case that we have blogged about extensively here and here, five Muslim females who worked as cabin cleaners applied for and were denied cabin cleaning positions with JetStream after the company assumed the contract of the women’s former employer.  Id. at 1-2.  The women alleged that JetStream refused to hire them for discriminatory reasons after they requested to cover their heads with a hijab and wear long skirts for religious purposes.  They also alleged that JetStream retaliated against employees and applicants who wore hijabs for engaging in protected activity in seeking a religious accommodation for their clothing and/or for complaining about discrimination.

On summary judgment, the Court ruled that the former employees had met their burden to show that hijabs that were tucked into a shirt and secured to an employee’s head presented no safety problems, thus holding that accommodating such hijabs posed no undue hardship for JetStream.  Id. at 2.  However, the Court also found that JetStream had presented sufficient evidence to create a disputed issue of fact as to whether it would pose an undue hardship for JetStream to permit its cabin cleaners to wear long skirts while working.  After the parties disputed the type of expert testimony that would be allowed, the EEOC ultimately withdrew several claims while JetStream agreed not to use certain experts, thus leaving only the hijab accommodation claims for trial.

On April 29, 2016, after a fourteen-day jury trial, the jury found in favor of JetStream and against the EEOC.  Id. at 3.  Thereafter, under Rules 59 and 60, the EEOC brought a motion for a new trial, arguing it was justified for several reasons including: (1) evidence regarding safety hazards was confusing and distracting to the jury, and was designed to incite jurors’ fear and prejudice of Muslims; (2) new evidence was disclosed at trial; (3) JetStream’s counsel committed misconduct throughout the trial; (4) the Court erred in denying sanctions for the destruction of evidence; and (5) the Court erred in deciding not to allow the EEOC to use a juror questionnaire prior to trial and in denying the EEOC’s motion to strike two jurors for cause.

The Decision

The Court denied the EEOC’s motion for a new trial.  Addressing the relevant legal standard under Rule 59, the Court noted that only errors that have caused substantial harm to the losing party justify a new trial, and that the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence.  Id. at 5 (citations omitted).  Regarding Rule 60, the Court opined that relief under this rule is extraordinary and may only be granted in exceptional circumstances.

First, regarding the EEOC’s argument that the introduction of safety-related evidence at trial was confusing, distracting, and prejudicial, the Court held that the EEOC’s failure to object to such statements during the jury trial weighed heavily against granting it relief.  Id. at 16.  Next, the Court similarly rejected the EEOC’s argument that it was prejudiced by new evidence that was introduced at trial, again noting that the EEOC missed its opportunity to object or move to strike.  Id. at 19-20.

The EEOC also claimed it was entitled to a new trial due to the alleged misconduct of JetStream’s attorney, alleging that “defense counsel ‘intentionally exploited the jury’s potential stereotypes about ignorant immigrants,’” and that “defense counsel engaged in ‘personal attacks’ and ‘maligned’ Plaintiffs’ attorneys, in arguing that Plaintiffs would have been working for JetStream but that their attorneys prevented this from happening.”  Id. at 24-27.  The Court rejected these assertions, along with several other allegations of misconduct, again noting the EEOC failed to object or raise any of these issues at trial.  Id. at 28.

Addressing the EEOC’s argument that the Court erred by not sanctioning JetStream for destroying evidence that included a list of employee recommendations made by the company who previously employed the cabin cleaners, the Court found that the EEOC’s motion provided no evidence of bad faith destruction.  Id. at 30.  Finally, the EEOC noting that, “anti-Muslim bias has become increasingly pervasive in American society,” the EEOC argued that the Court erred in denying its motion for a juror questionnaire and failing to strike two jurors.  The Court rejected these arguments, noting that it expanded its customary voir dire procedures in lieu of issuing the questionnaire, and that various sentiments expressed by jurors did not warrant their striking.  Id. at 31-40.  Accordingly, the Court denied the EEOC’s motion for a new trial.

Implications For Employers

This ruling cements a major EEOC defeat.  While the employer was victorious at trial here, other businesses should still be cautioned that juries are unpredictable in EEOC lawsuits  Thus, employers should attempt to minimize exposure to Title VII liability through policies and practices that eradicate discrimination.  With a diverse workforce that includes employees from a wide range of religions, employers must be diligent when considering the reasonableness of any accommodation sought.  Given the recent aggressiveness of the EEOC, employers absolutely need to be proactive in creating and abiding by non-discriminatory policies, or risk ending up in costly litigation.

Readers can also find this post on our Workplace Class Action blog here.

Court Rejects EEOC’s EPA Lawsuit Theory

Posted in Motions for Summary Judgment

thTL3V7SR1By Gerald L. Maatman, Jr. and Michael L. DeMarino

Seyfarth Synopsis The EEOC sued an employer for Equal Pay Act violations, claiming that Maryland Insurance Administration failed to pay three female fraud investigators the same wages as comparable male fraud investigators. On cross motions for summary judgment, the U.S. District Court for the District of Maryland denied the EEOC’s motion and granted summary judgment in favor of the employer. Although there was a pay disparity between the female investigators and the male comparators, the Court determined that reasons other than gender justified this difference. The Court also rejected the EEOC’s use of comparators with different job duties but whose positions fell within the same pay grade classification. The ruling is important for employers in the wake of the EEOC’s focus on Equal Pay Act issues.

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In E.E.O.C. v. Maryland Insurance Administration, No. 15-CV-1091 (D. Md. Oct. 11, 2016), the EEOC filed a complaint on behalf of three female fraud investigators who claimed that they were paid less than their male counterparts in violation of the Equal Pay Act of 1963, 29 U.S.C. §206(d)(1).  On cross motions for summary judgment, the Court denied the EEOC’s motion and granted summary judgment in favor of the employer. At the end of the day, the Court concluded that the EEOC had failed to show that any pay disparity was attributed to gender, observing that all of the comparable males were initially hired at a more senior level due to their weightier work experience. The  Court further rejected the EEOC’s use of comparators with different job duties but whose positions fell within the same pay grade classification

This ruling, which cites no authority and is under three pages, demonstrates that federal judges will be quick to swat down equal pay claims where the evidence indicates a non-gender-based reason for a pay disparity or when the job duties of alleged comparators are not apples-to-apples. Employers, therefore, can take some comfort in the fact that a pay disparity and broad classifications alone do not expose them to liability.

Case Background And Decision

Three fraud investigators, Alexandra Cordaro, Marlene Green, and Mary Jo Rogers, were hired in 2009, 2010, and 2011, respectively, by the Maryland Insurance Administration. Id at 1. The EEOC claimed that the employer discriminated against these women on the basis of their gender because it paid a higher salary to four other male fraud investigators (Bruno Conticello, Homer Pennington, James Hurly, and Donald Jacobs).

The EEOC and the employer both moved for summary judgment and, after briefing, the Court denied the EEOC’s motion and granted the employer’s motion  In granting summary judgment for the employer, the Court determined that “as to all of the comparable male employees to which the EEOC points, reasons other than gender justified the pay disparity between them.” Id. at 2.

Specifically, the Court explained that, even though the comparable male employees worked as fraud investigators, they were all “hired at higher steps than were Cordaro, Green, and Rogers.” Id. The Court, for example, noted that the male employees were hired at Steps 6 and above, while the female employees were hired at Steps 4 and 5. The Court observed that this, in turn, was because the male employees had more experience in working for the State, either in law enforcement or within the Administration itself. The female employees, in contrast, did not have prior State or law enforcement experience. Id. As a result, the Court concluded that these differences in prior work experience justified the pay disparity.

The Court was also critical of the other male comparators that the EEOC offered because they did not work in the same unit as the females who were allegedly underpaid. These employees worked as enforcement officers, not fraud investigators. Although the EEOC argued that these two positions were the same because they were similarly classified as “Grade 16,” the Court disagreed. Based on testimony that workers in these two positions did not perform the same job, the Court determined that these employees were not appropriate comparators. Id. at 2. Importantly, the Court explained that performing the same job was the “touchstone of the analysis under the EPA.” Id.  Crucial to the Court’s determination, therefore, was the substance of the position, not the classification. Indeed, the Court reasoned that “[t]he mere fact that jobs were reclassified . . . does not ipso facto establish a violation of the EPA.” Id. at 3. The Court additionally found these comparators inappropriate based again on their hiring level and previous experience, both of which were distinguishable from plaintiffs. Based on these factors, the Court denied the EEOC’s motion for summary judgment and granted summary judgment in favor of the defense.

Implication For Employers

This decision reaffirms the principal that pay disparity alone is not enough to give rise to liability under the Equal Pay Act. Employers are free to continue to make salary determinations based on non-gender based reasons, like prior work experience.

This ruling also demonstrates that when deciding whether two employees are comparable, it is the substance of the position that counts — not a broader classification. The fact that two positions with different job functions may fit within a similar pay grade or other designation does not alone demonstrate that the jobs are the same for purposes of the EPA. Employers, nevertheless, should take care to track differing job duties that fall under the same general classification since the EEOC continues to attempt to use these classifications as a way to manufacturer comparators.

Readers can also find this post on our Workplace Countdown blog here.

A Look Through The Crystal Ball: The EEOC’s Updated 2017-2021 Strategic Enforcement Plan

Posted in EEOC Litigation

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By Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew J. Gagnon

Seyfarth Synopsis: On October 17, 2016, the EEOC unveiled its updated Strategic Enforcement Plan (“SEP”) for Fiscal Years 2017-2021. It ought to be required reading for every employer and their executive teams.

The New SEP

The 2017 SEP can be viewed here. This plan replaces the first SEP, issued in 2012, which provided strategic direction for the agency through 2016. (See our analysis of that plan here.) According to the EEOC, the new SEP “builds on the EEOC’s progress in addressing persistent and developing issues by sharpening the agency’s areas of focus and updating the plan to recognize additional areas of emerging concern.”

If some employers were hoping that the EEOC would rethink its enforcement priorities and craft a new strategic direction for the future, the updated SEP may be a bit of a disappointment. The new SEP reveals that the EEOC is not backing away from its focus on systemic, strategic litigation, nor has it significantly rethought the substance of its enforcement priorities.

The EEOC experienced harsh criticism on Capitol Hill (especially amongst some Republican legislators) for how it pursued its enforcement priorities under the 2012 SEP – particularly with respect to its pursuit of high profile systemic cases at the expense of what some might regard as smaller, but more “meritorious” individual cases. The new SEP shows no sign that the agency will back away from this approach.

Continued Focus On Achieving “Strategic Impact” Through Litigation

The hallmark of the first SEP was the EEOC’s focus on “systemic litigation.” The new SEP appears to double down on that approach, stating that “[t]he Commission reaffirms its commitment to a nationwide, strategic, and coordinated systemic program as one of EEOC’s top priorities.” The SEP emphasizes a continued pursuit of systemic litigation and other types of cases that will have a “strategic impact.” Those are cases or activities that have a significant effect on the development of the law or on promoting compliance across a large organization, community, or industry.

The new SEP does recognize that not all “strategic impact” cases must be systemic cases. An individual charge of discrimination can have a strategic impact as well. A lawsuit’s strategic impact is not necessarily determined by the number of affected individuals, but rather is identified by the significance of a particular issue and the potential outcome. The new SEP asserts that the EEOC’s goal will be to balance individual cases and systemic cases to best pursue the agency’s enforcement priorities. Meritorious cases that raise one or more of the substantive priorities will be given precedence in case selection, as will cases that fall outside of those substantive areas if they are likely to have a strategic impact.

Substantive Changes To The Enforcement Priorities

The EEOC’s first SEP set out six priorities that the Commission identified to define its enforcement mission for Fiscal Years 2013-2016. Those priorities were chosen to put the enforcement focus on issues that would affect a broad number of individuals, employers, or employment practices, with a special emphasis on issues affecting the most vulnerable workers, meaning those unaware, reluctant, or unable to exercise their rights. It also sought to impact developing areas of the law where the EEOC has particular expertise and issues where the government has access to information, data, and research that would render the Commission a particularly effective advocate. The updated SEP keeps the same six priorities as the first SEP, including:

  • Eliminating barriers in recruitment and hiring;
  • Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;
  • Addressing selected emerging and developing issues;
  • Ensuring equal pay protections for all workers;
  • Preserving access to the legal system; and
  • Preventing systemic harassment. (We blogged about the EEOC’s recent anti-harassment efforts here.)

The biggest substantive changes are described by the EEOC as additional “areas of focus” within those same six enforcement priorities.

Within the “developing and emerging issues” priority, the EEOC identified several areas of focus, many of which have already been the subject of extensive EEOC litigation under the 2012 SEP. For example, the new SEP identifies pregnancy-related limitations under the ADA and LGBT protections as substantive areas of focus under this topic, both of which have been litigated over the past few years. However, employers should note the two new emerging and developing issues that were identified in the 2017 SEP also cover:

Complex Employment Relationships: The EEOC identified issues related to “complex” employment relationships as a new area of focus. In particular, the agency is interested in “[c]larifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.” Hence, new gig economy companies and those prone of joint employer relationships are new targets.

Backlash Discrimination: The EEOC also has made it a priority to address “backlash discrimination” against those who are Muslim or Sikh, or persons of Arab, Middle Eastern, or South Asian descent, as well as persons perceived to be members of these groups, that might arise against them as a result of current events affecting the Muslim world.

The EEOC also identified two new areas of focus within the “barriers in recruitment and hiring” priority: (1) the lack of diversity in certain industries (technology and policing were singled out in the 2017 SEP); and (2) the increasing use of data driven screening tools.

Implications For Employers

The new SEP shows that the EEOC is not contemplating any wholesale changes to its strategic direction. Rather, it shows an agency refocused on the enforcement priorities and successes that were set forth in the 2012 SEP, including its devotion to systemic litigation and other cases that may have a “strategic impact.”

The EEOC has proved itself to be an agency that makes good on its word. The 2012 SEP had a noticeably significant impact on the EEOC’s litigation focus over the past four years. Employers should expect that the Commission will continue to make good on its promise to litigate large-scale, high-impact, and high-profile investigations and cases that address the issues identified as its enforcement priorities and areas of focus.

Companies in the staffing industry and the on-demand economy should be particularly concerned, as well as those companies that make heavy use of temporary workers or independent contractors.

We will continue to track and report back on litigation trends and developments affecting those industries, as well as the other industries and issues identified in the 2017 SEP.

Fifth Circuit Flips Grant Of Summary Judgment Against EEOC in ADA Case

Posted in EEOC Litigation

medical-1006787_960_720By: Gerald L. Maatman, Jr. and Alex Karasik

Seyfarth Synopsis: In an ADA action regarding disability discrimination, the Fifth Circuit reversed a District Court’s grant of summary judgment in favor of the employer and against the EEOC, noting that even though the charging party indicated she had a temporary total disability on a disability insurance claim form that she submitted the day after her termination, factual issues remained regarding the availability of a reasonable accommodation. The ruling underscores the nature and challenge of EEOC litigation of ADA claims.

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In an ADA disability discrimination action brought by the EEOC on behalf of a nurse against her employer healthcare facility, the U.S. District Court for the Southern District of Mississippi entered summary judgment in favor of the employer after finding that the charging party was not able to perform her job duties in light of the fact that she described herself as “totally disabled” when making a disability insurance claim.  Following the Commission’s appeal in EEOC v. Vicksburg Healthcare, L.L.C., No. 15-60764 (5th Cir. Oct. 12, 2016), the Fifth Circuit reversed and remanded the District Court’s grant of summary judgment, holding that the employee’s claim to temporary total disability, made the day after she was terminated from her job because of a disability, did not prevent the EEOC from contending that she was able to work if granted a reasonable accommodation.

For employers engaged in EEOC disability discrimination litigation under the ADA, in particular with employees alleging “total disability” on subsequent disability insurance claims, this ruling illustrates that such claims of “total disability” do not foreclose the possibility that a reasonable accommodation could have been provided.

Case Background

As we discussed in previous blog posts about this case here, here, and here, the charging party was a nurse for Vicksburg Healthcare, LLC d/b/a River Region Medical Center (“River Region”).  Id. at 1-2.  After the nurse tore her rotator cuff and took twelve weeks of FMLA medical leave for shoulder surgery, her physician sent a note to River Region stating that she could return to duty as long as she was limited to “light work” requiring “limited use” of her left arm.  Her physician further clarified that she should not lift, pull, or push anything weighing more than ten pounds.  After review of these limitations, River Region terminated the nurse because of her injury and concomitant inability to perform at work.  Id. at 2.

The nurse applied for temporary disability benefits the next day, indicating on her claims forms that she was temporarily totally disabled.  Thereafter, the EEOC filed suit in 2012, alleging that River Region violated the ADA by failing to provide the nurse a reasonable accommodation and by terminating her.  After discovery, River Region moved for summary judgment.  The District Court granted River Region’s motion for summary judgment, noting that the claims were barred under Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), since the EEOC failed to provide a “sufficient explanation for the contradicting statements” between the nurse’s claim of temporary total disability and the EEOC’s contention that she was “qualified” for purposes of the ADA because she could perform the job with a reasonable accommodation.  The EEOC appealed the grant of summary judgment in favor of the employer.  Id. at 3.

The 5th Circuit’s Decision

The Fifth Circuit reversed and remanded the District Court’s grant of summary judgment.  The Fifth Circuit initially discussed how according to the District Court, “this case has one key fact: the day after her termination, [the nurse] filed for disability benefits and, in doing so, represented that she was temporarily totally disabled.”  Id.  Citing Cleveland, the Fifth Circuit explained that an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with a disability benefits claim that the plaintiff could not perform her own job (or other jobs) without it.  Id. at 4.  The Fifth Circuit held that the District Court erred by failing to recognize that the EEOC’s argument that, “nothing in the [disability claim forms] indicate[d] that [the nurse] represented that she was unable to perform the essential functions of her job with or without an accommodation,” was sufficient under ClevelandId. at 4-5.

The Fifth Circuit also rejected River Ridge’s contention that it twice offered the nurse a reasonable accommodation in the form of clerical work, but that she ignored or rejected the offers.  Id. at 5-6.  After the nurse declined the offer on the advice of her doctor, River Ridge argued that the offer had remained open.  The Fifth Circuit rejected this assertion, noting that the EEOC had shown that the conduct of the parties around the time of the nurse’s termination was circumstantial evidence that there was no actionable offer for the nurse to accept in regards to a light-duty clerical position.  The Fifth Circuit also accepted the EEOC’s argument that the second offer was never made.  Id. at 6.

River Region contended that the nurse never requested “light duty” as a reasonable accommodation.  Id.  The Fifth Circuit held this argument was meritless, noting that the nurse presented doctor’s certifications clearing her to work with a “light work” restriction and instructions indicating “[n]o lifting, no pulling, no pushing anything greater than 10 pounds.”  Id.  The Fifth Circuit found that a jury could reasonably view the certifications as a request for a “light duty” accommodation.  Id.

Finally, River Region contended that “light duty” was inconsistent with the essential functions of the nurse’s duties since lifting or pushing more than ten pounds were essential functions of her job.  Id.  The Fifth Circuit rejected this argument, noting it was “hard to square with River Region’s claims that it could have and would have accommodated [the nurse] by giving her clerical work during her recovery.”  Id.  Citing the parties’ contradictory proffered testimony about the essential functions of nursing duties and further noting that written job descriptions do not warrant absolute deference, the Fifth Circuit held that fact issues precluded summary judgment.  Id. at 7.  Accordingly, the Fifth Circuit reversed and remanded the District Court’s grant of summary judgment, holding that the employee’s claim to temporary total disability, made the day after she was terminated from her job because of a disability, did not prevent her from contending that she was able to work if granted a reasonable accommodation.  Id. at 8.

Implications For Employers

It is not uncommon for a terminated employee to indicate on a disability insurance claim that they are “totally disabled.”  Regarding EEOC litigation brought under the ADA, this ruling illustrates that employee claims of “total disability” for insurance purposes do not necessarily mean that employers are automatically unable to provide a reasonable accommodation.  As such, employers cannot definitively rely on statements made in disability insurance claims when seeking summary judgment in ADA litigation brought by the EEOC.  Employers must continue to exercise caution when approaching any and all requests for reasonable accommodations.

Readers can also find this post on our Workplace Class Action blog here.

 

Gambling With The EEOC

Posted in EEOC Litigation

dice2By David J. Rowland

Seyfarth Synopsis: A seemingly innocuous case filed by the EEOC on behalf of a single charging party against a casino operator highlights some of the risks of betting at the conciliation table.  Employers take note!

As its FY 2016 wound down, the EEOC filed suit against a casino operator – in the case of EEOC v. Greektown Casino, L.L.C., Case No. 2:16-CV-13540 (E.D. Mich.) – alleging that it failed to accommodate and then terminated a pit manager because of his alleged disability – stress anxiety disorder. Obviously, the casino not yet responded to the complaint, and it may well have excellent legal defenses. Yet, the Complaint shows the EEOC’s hand (or at least part of it) and provides an example of some of the important stakes in EEOC litigation.

Is The Commission Bluffing?

Employers sometimes assume that the EEOC is only in the business of suing large companies based upon allegations of class-wide mistreatment of large groups of employees.  It is true that the EEOC makes headlines filing pattern or practice cases against big companies, but the EEOC routinely files complaints on behalf of individual charging parties against lesser known businesses and often smaller companies. In fact, the EEOC often does so strategically – because it has determined that the underlying legal issue is more important than whether there is a big-name company, thousands of employees, or big dollars involved. As noted here and here, the EEOC’s recent challenge to a wellness program, and its recent attempt to pursue a claim for transgender discrimination, for example, were pursued on behalf of individual charging parties. Obviously, though, the legal issues were deemed important and, frankly, the press coverage was just as wide as that of any of the EEOC’s behemoth cases.

Also, more than a few cases are filed by the EEOC because it simply determines justice must be done and that the charging party might not have the resources to pursue it.  So, don’t assume during the conciliation process that the EEOC is just bluffing when it threatens to bring a case on behalf of one charging party.  It happens.

Know When To Fold Them?

With each reasonable case determination, comes an invitation to the conciliation (gaming) table. The conciliation process can be long, episodic, and frustrating.  Along the way, an employer must balance the various pros and cons associated with settling a case with the EEOC.  Certainty of outcome is almost always a factor, as is money, but, for some employers, the question is whether the game is lost the instant a suit is filed by the EEOC.  Consumer product and service companies, for example, are heavily invested in brand development and the relentless pursuit of brand loyalty.  So, each employer must ask itself what it will wager on whether the failure to reach compromise will result in damage to its brand or company name if the government publicly accuses it of discriminatory treatment of employees (i.e., fellow consumers). The frustrating part is that the allegations may be wildly misleading and eventually proven wrong, but no matter how frivolous the assertions may be, the reputational damage can be done on filing day.

Know When (Not) To Run?

None of this is to suggest that employers should bend to the will of the EEOC in a meritless individual or class case just because the EEOC says it might file suit.  The fact is that the EEOC is quite choosy and has limited resources.  As we reported here, the EEOC filed only 136 cases in its fiscal year ending September 30, 2016.  By contrast, as noted here and here, the EEOC routinely receives more than 80,000 charges of discrimination per year. In other words, the odds of the EEOC filing suit are actually quite low in any given case.

Plus, not all negative publicity hits are created equal.  What is the issue?  Is there an advantage to taking a stand? Do you have strong PR advisors?  Can you turn it on the government – David v. Goliath style?

And, perhaps most importantly, settling is not always a good bet.  EEOC conciliation agreements are confidential as a matter of law and EEOC policy – except where the employer agrees to some measure of publicity.  Employers should bet that the EEOC will request an “agreed” press release if there is any level of significance to the case, and should demand to see details of that card before deciding to take it.

Readers can also find this post on our Workplace Class Action blog here.

Now Something Known As “Onionhead” Is A “Religion” For Which The EEOC Can Bring A Religious Discrimination Suit

Posted in Motions for Summary Judgment

thKCD34Y33By Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth Synopsis: In an EEOC religious discrimination case, a federal court found that “Onionhead” was a religion for purposes of Title VII.   The court also found that the EEOC did not fail to meet its Title VII pre-suit duties when it added to its lawsuit seven additional claimants that it discovered during its investigation of charges brought by three former employees of the company that was accused of religious discrimination.

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While most religious discrimination claims brought by the EEOC involve mainstream religions, uncommon spiritual belief programs may still be afforded protection under Title VII so long as they meet certain legal requirements. In EEOC v. United Health Programs of America, Inc. and Cost Containment Group Inc., No. 14-CV-03673 (E.D.N.Y. Sept. 30, 2016), the EEOC brought an action alleging an employer (“CCG”) discriminated against a group of former employees on the basis of religion by based on concepts known as “Onionhead” and “Harnessing Happiness.”  Judge Kiyo A. Matsumoto of the U.S. District Court for the Eastern District of New York granted the EEOC’s motion for partial summary judgment as to the discrete issue of whether these beliefs constituted a religion, while granting in part and denying in part CCG’s motion for summary judgment as to several other claims.  Most relevant, the Court denied CCG’s motion for summary judgment regarding the EEOC’s late addition of seven claimants that it discovered during its investigation of the three original charges of discrimination.

This ruling puts employers on notice that they must exercise extreme caution regarding spiritual beliefs in the workplace, even if the beliefs are not derived from a mainstream religion.  Further, it illustrates that employers have an uphill battle when challenging the EEOC’s pre-suit investigations as courts will not closely scrutinize such efforts.

Case Background

CCG is small wholesale company that provides discount medical plans.  Beginning around 2007, CCG executives determined that their corporate culture was deteriorating.  To fix this issue, CCG hired its CEO’s aunt, who had developed a program called Onionhead that CCG began to utilize in its workplace.  CCG described Onionhead as a multi-purpose conflict resolution tool, while plaintiffs characterized it as a system of religious beliefs and practices.  Although Onionhead was initially geared towards children, CCG expanded the program to apply it to adults, and it further became known as “Harnessing Happiness.”

The claimant employees alleged that Onionhead and Harnessing Happiness required to them do things like use candles instead of lights to prevent demons from entering the workplace; conduct chants and prayers in the workplace; and respond to emails relating to God, spirituality, demons, Satan, and divine destinies.  Id. at 7, 11-12.  The claimants alleged they were terminated either because they rejected Onionhead’s beliefs or because of their own non-Onionhead religious beliefs, while other employees who followed Onionhead were given less harsh discipline.  After three former employees filed charges of discrimination in 2011 and 2012, the EEOC issued a letter of determination on March 13, 2014.  After unsuccessful conciliation efforts, the EEOC filed suit on October 9, 2014 on behalf the three employees who filed charges of discrimination and an additional seven employees that it discovered during its investigation.  The EEOC subsequently moved for summary judgment as to the specific issue of whether Onionhead was a religion for purposes of Title VII.  CCG cross-moved for summary judgment as to several other claims involving religious discrimination.

The Decision

The Court granted the EEOC’s motion for partial summary as to the discrete issue of whether the Onionhead beliefs constituted a religion.  After discussing Title VII’s application to religious discrimination, the Court noted that the former employees asserted claims under a variety of theories, including disparate treatment, hostile work environment, failure to accommodate, and retaliation.  Id. at 15.  First, the Court sought to determine what constitutes a religious belief under Title VII.  Rejecting CCG’s argument that a narrow definition should apply, the Court opined that to determine whether a given set of beliefs constitutes a religion for purposes of Title VII, “courts frequently evaluate: (1) whether the beliefs are sincerely held and (2) whether they are, in [the believer’s] own scheme of things, religious.”  Id. at 23 (quoting Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)).

Applying the Patrick framework here, the Court found that Onionhead qualified as a religion for purposes of Title VII.  Id. at 31-32.  Addressing the first prong, whether the beliefs were sincerely held, the Court noted that, “a reasonable jury could find that by inviting [the CEO’s aunt] into the workplace, paying her to meet and conduct workshops, authorizing her to speak to employees about matters related to their personal lives, disseminating Onionhead/Harnessing Happiness material and directing employees to attend group and individual meetings with [his aunt], [the CEO] and his upper management held sincere beliefs in Onionhead and Harnessing Happiness.”  Id. at 35-36.  As to the second prong, which contemplates whether the nature of the beliefs qualifies as religious, the Court concluded that the beliefs were religious within the meaning of Title VII.  Id. at 36.  In reaching this conclusion, the Court discussed the emails about God, spirituality, Satan, divine destinies, etc.; noted how the CEO’s aunt referred to herself as a “spiritual advisor”; cited claimants’ testimony that they were told to pray in the workplace; and quoted numerous Onionhead publications.  Id. at 36-41.  Accordingly, the Court found that Onionhead was a religion for purposes of Title VII.  Id. at 43.

Next, the Court addressed CCG’s motion for summary judgment as to the individual claims asserted by claimants, which alleged that the EEOC failed to fulfill its Title VII pre-suit investigation, reasonable cause determination, and conciliation requirements for several claimants.  Id. at 43-45.  Noting that, “[c]ourts have permitted the EEOC to add new claimants identified during discovery even when the EEOC is asserting claims under Section 706 of Title VII,” the Court held that given “the circumstances present in the instant case, the EEOC was not precluded from identifying new claimants (whose claims were effectively identical to the claims of the pre-existing claimants) after filing this action.”  Id. at 46-47.  In doing so, the Court rejected CCG’s reliance on EEOC v. CRST Van Expedited Inc., 679 F.3d 657, 674 (8th Cir. 2012), and distinguished on the grounds that “[t]he EEOC’s attempt in CRST to add 67 claimants to an EEOC action filed two years earlier and naming a single individual is a far cry from the situation presented in this action, where the EEOC’s investigation undisputedly encompassed seven of the ten claimants and the additional three claimants’ allegations arise out of the same alleged course of conduct, in the same office, by the same individuals, and during a time period already covered by the charges in the initial complaint.”  Id. at 48-49.  Thus, citing the narrow scope of review courts are permitted when reviewing the sufficiency of EEOC investigations, the Court denied CCG’s request to dismiss the late-discovered claimants.

The Court also discussed at great length CCG’s motion for summary judgment as to multiple reverse discrimination claims.  The Court denied CCG’s motion for summary judgment as to eight claimants’ reverse discrimination claims and all claimants’ hostile work environment claims premised on reverse religious discrimination.  Id. at 101.  Further, the Court denied CCG’s motion for summary judgment with respect to one claimant’s disparate treatment and retaliation claims premised on her Catholicism, but granted CCG’s motion for summary judgment with respect to the same claimant’s hostile work environment and failure to accommodate claims.  Id. at 102.  Finally, the Court granted CCG’s motion for summary judgment against all other claimants on their claims that they suffered discrimination based on claimants’ religious beliefs or lack thereof.  Id. at 102.

Implications For Employers

Whether or not this blog post has caused you to consider a conversion to Onionhead, the implications from this ruling are crucial for employers in two regards.  First, the finding that Onionhead is a religion should put employers on notice that when considering beliefs claimed by an employee and programs implemented by an employer, courts can and will utilize an expansive definition of what constitutes a “religious belief” for purposes of Title VII discrimination litigation.  Second, employers can expect the EEOC to use this ruling to aggressively seek to expand its lawsuits beyond the original complaining employees and try to include any similarly aggrieved employees it uncovers during investigations.  Accordingly, the twofold impact of this ruling should alert employers to expect more aggressive religious discrimination litigation from the EEOC, who will also seek to expand the size of its lawsuits given that its investigations are subject to limited judicial scrutiny.

Readers can also find this post on our Workplace Class Action blog here.

Fifth Circuit Green Lights Discovery Over Immigration Status In EEOC Litigation

Posted in Discovery

visaBy Gerald L. Maatman, Jr. and Michael L. DeMarino

Seyfarth Synopsis Hispanic employees of a poultry processing plant alleged harassment and abuse on the job. The company claimed that the employees’ allegations were fabricated in order to obtain U visas, which are available to immigrant abuse victims who assist in government investigations. Over the plaintiffs’ objections, the district court allowed the company discovery related to the employees’ U visa applications. On an interlocutory appeal, the U.S. Court of Appeals for the Fifth Circuit vacated the district court’s discovery order and remanded the case to the district court with instructions to devise an approach to the U-visa discovery that ensures that immigrant victims are not deterred from reporting their abuse.  The ruling is important to any employers involved in workplace litigation with immigrant workers.

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In Cazorla v. Koch Foods of Missi., LLC, No. 15-60562 (5th Cir. Sept. 27, 2016), the EEOC filed a complaint in the U.S. District Court for the Southern District of Mississippi on behalf of Hispanic employees who alleged that they suffered sexual harassment and physical abuse while working at a poultry processing plant. The company claimed that the employees, many of whom are undocumented aliens, made up their accusations in hopes of obtaining immigration benefits under the U-visa program. The program offers temporary nonimmigrant status to victims of substantial physical or mental abuse. The district court allowed the company limited discovery related to the employees’ U-visa applications and the EEOC, consequently, sought interlocutory review of the district court’s discovery orders. On appeal, the Fifth Circuit vacated and remanded the district court’s discovery rulings, ordering the district court to craft a discovery order that allows U-visa discovery but avoids deterring immigrant victims of abuse from using the U-visa program.

This ruling demonstrates that courts recognize that impeachment evidence regarding an employee’s motivation for bringing a claim is a key defense for employers facing workplace harassment allegations. Where that defense intersects with, or potentially frustrates, a statutory program, courts will roll up their sleeves to fashion relief that balances the competing concerns. Employers, therefore, should not be deterred from utilizing a defense simply because doing so conflicts with the purpose behind a statutory regime. A middle ground can be achieved through protective orders and customized discovery orders.

Case Background

Hispanic employees at a poultry processing plant in Mississippi (the “Company”) claimed that for roughly four years they suffered routine abuse at work. The Company’s supervisors allegedly groped female workers, and in some cases assaulted them more violently; offered female workers money or promotions for sex; made sexist and racist comments; and otherwise physically abused workers of both sexes. Id. at 1.

The EEOC filed suit on the employees’ behalf against the Company in the U.S. District Court for the Southern District of Mississippi. In its defense, the Company claimed that the employees, who are mostly undocumented aliens, invented their allegations in order to help secure U visas. The U-visa program offers temporary nonimmigrant status to victims of substantial physical or mental abuse and U-visa holders may apply for a “green card” after three years. Id.

To obtain concrete evidence of this malfeasance, the Company served discovery requests seeking the production of records relating to the employees’ efforts to obtain U visas. Id. The plaintiffs opposed the discovery requests because the discovery would necessarily reveal the immigration status of any employee who applied for a U visa, as well as that of their families. Id. at 2-3.

Over the plaintiffs’ objections, the district court allowed the discovery but with two limitations. First, the district court excused the EEOC from complying with the discovery requests because 8 U.S.C. § 1367 barred the EEOC from revealing any information related to the claimants’ U visa applications. Id. at 3. At the same time, the district court found § 1367 did not similarly excuse the claimants. Id. The district court then held that Rule 26 did not “preclude U-visa discovery from the individual claimants, reasoning that the discovery was relevant to the claimants’ credibility . . . and that the relevance of the information sought outweighed the in terrorem effect of producing it.” Id. The employees, unlike the EEOC, were therefore required to comply with the discovery requests subject to the district court’s second limitation: a protective order that prohibited the use of the discovered information for purposes unrelated to the lawsuit and barred the Company from sharing the information with law enforcement, unless the failure to do so was a criminal offense. Id.

After losing its discovery battle, the EEOC sought interlocutory review of the district court’s discovery orders under 28 U.S.C. § 1292(b). The district court certified the orders for interlocutory appeal and the Fifth Circuit granted review.

The Decision

On appeal, the U.S. Court of Appeals for the Fifth Circuit vacated and remanded the district court’s discovery orders. Id.

The Fifth Circuit first determined that the district court properly decided that the EEOC, but not the employees, was exempt from having to produce U-visa information. Id. at 7. Unlike the EEOC, the claimants were not bound to the confidentiality provisions in 8 U.S.C. § 1367 and its implementing regulations. Id at 7.

Having decided that § 1367 did not preclude U visa discovery from the individual claimants, the Fifth Circuit next examined the district court’s Rule 26(c) analysis. Rule 26(c) allows the court to issue an order restricting discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id. at 10.  In applying Rule 26(c), the Fifth Circuit explained that federal courts balance and compare the hardship to the party against whom discovery is sought against the probative value of the information to the other party. Id. Courts also weigh relevant public interests in this analysis. Id.

The Fifth Circuit, for the most part, agreed with the district court’s Rule 26(c) balancing analysis. The Fifth Circuit, for instance, explained that U-visa discovery was relevant and probative of potential fraud and had significant impeachment value; that the claimants had reasonable fears that disclosure of their U-visa information could lead to them being reported to authorities; and that, although allowing the discovery would create some delay and hardship, the plaintiffs could seek relief for any unduly burdensome demands. Id. at 14-16.

In sum, the Fifth Circuit noted that “the district court’s analysis of the harm that U visa discovery might cause the claimants was imperfect, but not critically so.” Id. at 17. “More pressing” to the Fifth Circuit, however, was “that the district court did not address how U-visa litigation might intimidate individuals outside this litigation, compromising the U visa program . . . .” Id.

On this issue, the Fifth Circuit noted that the district court considered only the immediate chilling effect of U-visa discovery on the individual claimants. Id. “Those individuals,” the Fifth Circuit explained, “are not the only ones who might be affected by the disclosure of the claimants’ U visa information.” Id. Indeed, the Fifth Circuit expressed concern that allowing U- visa discovery “may sow confusion over when and how U-visa information may be disclosed, deterring immigrant victims of abuse . . . from stepping forward and thereby frustrating Congress’s intent in enacting the U visa program.” Id.

Based on these concerns, the Fifth Circuit vacated the district court’s discovery orders and instructed the district court to “devise an approach to U-visa discovery that adequately protects the diverse and competing interests at stake.” Id at 18.  At a minimum, the Fifth Circuit held that U-visa discovery must not reveal to the Company the identities of any visa applicants and their families, at least in the liability phase—where the probative value of the U-visa evidence is not affected by the identity of the claimants. Id.

Implication For Employers

The take away for employers is that, although defense strategies sometimes include discovery topics that conflict with a statutory regime, a sensible middle ground can be achieved. A willingness to agree to discovery limitations and customized protective orders goes a long way to demonstrating that the discovery is sought for legitimate purposes—despite such discovery’s unintended impact on parties outside the lawsuit.

Readers can also find this post on our Workplace Class Action blog here.

The Clock Has Struck 12 On The EEOC Fiscal Year-End Countdown – Surprising Revelations For FY 2016

Posted in EEOC Litigation

clockBy Matthew J. Gagnon, Christopher J. DeGroff, and Gerald L. Maatman, Jr.

 With the end of another EEOC fiscal year employers look with anticipation to what the year-end trends can tell us about the sometimes elusive EEOC litigation agenda. In years past, the EEOC has engaged in a “filing frenzy,” with dozens of lawsuits filed in the waning days of the fiscal year. Although there was an uptick in filings this year, the EEOC’s FY 2016 went out with a whimper and not a roar.

We have prepared the following chart, which shows the total monthly filings for FY 2013-2016, which highlights the EEOC’s historical year-end filings compared to the somewhat tepid activity that we saw this year.

cases filed by month

As with prior years, we anticipate that the EEOC may continue to file cases well into the night in the courthouses of the Western states, so the final tally may not be known for another 48 hours. But at the time of publication, the raw numbers show that the EEOC filed 136 lawsuits in FY 2016 (99 merits lawsuits and 37 subpoena enforcement actions). This is significantly less than prior years. (See here, here, here, and here.) The reason for this significant drop in lawsuits most likely can be attributed to the EEOC’s limited budget coupled to an already bloated litigation inventory. The fact that this is an election year with all of the possible changes that may represent could also be impacting the EEOC’s willingness to commit to additional litigation so close to November.

FY 2016 was originally planned to be the final year of the EEOC’s 2013-2016 Strategic Enforcement Plan (“SEP”). The EEOC developed the SEP in 2012 in order to set its priorities and goals for enforcement activity through 2016. Last year, the EEOC received permission from the Office of Management and Budget to delay the release of a new SEP until 2018 so that the Commission could align its strategic planning with other agencies. Although the SEP has now been extended through 2018, this year still marks the final planned year, and provides a useful moment in time to look back and take stock of where the agency has driven its enforcement program over the past four years.

Cases Filed By EEOC District Offices

Location is always a key factor for defending against EEOC litigation. Year after year, certain EEOC district offices distinguish themselves by the number of cases that they file. The map below shows the number of filings by each district office in FY 2016.

Screen Shot 2016-09-30 at 11.02.55 PM

Filings by district office in FY 2016 were pretty much on par with prior years with one glaring exception. Year over year, Chicago has been the consistent leader in terms of total cases filed. Last year alone, the Chicago office filed 27 lawsuits. This year, the Chicago office filed only 7, a shockingly low number for that office. The other traditional filing leaders stayed consistent with prior years, and some even ticked up a bit in FY 2016. The Philadelphia office filed 22 lawsuits in FY 2016, up from 19 last year. The Charlotte office filed 16 lawsuits this year, compared with 13 last year. The Phoenix office filed 17 lawsuits in FY 2016, the same as last year. The bar chart below compares the number of filings from each office for FY 2013 – FY 2016.

By office

What Do The FY 2016 Filings Say About The EEOC’s Priorities?

Each fiscal year we analyze the EEOC’s filings to determine substantive trends. The following chart shows the number of claims categorized by statute, along with a further division of the largest category – Title VII – by discrimination theory.

As with prior years, Title VII cases were the majority of cases filed, making up 41% of all filings (as compared with 55% in FY 2015 and 57% in FY 2014). This is not particularly surprising given the number of protected groups covered by the statute. ADA cases also made up a significant percentage of the EEOC’s filings, totaling 41% this year. Together, complaints alleging discrimination under those two statues made up 82% of all cases filed in FY 2016. Age cases represented a relatively small 5% of the overall cases.

By statute

In late August, the EEOC issued its final revision to the Enforcement Guidance on Retaliation and Related Issues (which we discuss here), replacing the 18 year old Section 8, “Retaliation” portion of the Compliance Manual last updated in 1998. This revision touches upon all of the statutes which the Commission enforces, and covers the legal analysis used to define evidence that supports retaliation claims as well as retaliation remedies, legal access for persons with disabilities under the ADA, and even a play-by-play of employer/employee interactions that might prompt retaliation.

Considering the EEOC’s renewed focus on this area, we analyzed the FY 2016 retaliation cases to test which discrimination claims are most often paired with a retaliation claim. The following chart shows which types of discrimination were paired with retaliation allegations in FY 2016:

retaliation

 

Sex + retaliation cases make up the largest percentage of these claims at 46%, followed by race discrimination at 27%, pay discrimination at 13%, age discrimination at 7%, and disability discrimination at 7%. Pregnancy discrimination, national origin discrimination, religious discrimination, and genetic discrimination all had zero claims of retaliation.

In addition to the revised retaliation guidelines, the EEOC also revised its Employer Information Report (EEO-1) yesterday to require employers to submit information regarding employee pay range and hours worked. The Commission asserts that the purpose of collecting this pay data along with race, ethnicity, sex, and job category would be to “assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.” It is, by most accounts, an ominous development for the future of EEOC litigation.

The EEOC also issued its final rules on employer wellness programs as they relate to the ADA and GINA, which clarify the implications of those rules and their interactions with employer wellness programs. We reported on this development here. Harassment was also a hot button issue for the Commission in FY 2016, with a particular focus on Muslims and people of Middle Eastern origin. Among other things, the EEOC issued a call-to-action for employers to ‘reboot’ harassment prevention efforts (which we discuss here).

Insight & Implications For Employers: Conclusions

As with prior years, this year’s analysis reveals that the EEOC’s activities continue to be guided by the 2012 SEP. For the past four years, we have reported on the many ways that the SEP has guided and shaped the EEOC’s enforcement initiatives – and with that, the landscape of labor and employment law. FY 2016 was the last year that was planned to be covered by the 2012 SEP. As we enter FY 2017, it is unclear whether we will see more of the same, or if we will see the EEOC branching out to new priorities and initiatives that may line up with its vision for the 2018 SEP and the future of EEOC litigation.

We will continue to analyze the data and filings from FY 2016 to extract additional insight about the EEOC’s litigation priorities, and what employers should watch out for in FY 2017 and beyond. We look forward to distilling those observations into our annual analysis of trends and developments affecting EEOC litigation. We hope that you are looking forward to that publication as much as we are, and that you continue to find it a useful reference and guide to developments in EEOC litigation. Please stay tuned, loyal blog readers!

Readers can also find this post on our Workplace Class Action blog here.