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

Seyfarth Synopsis:  In EEOC v. Schuster Co., No. 13-CV-4063, 2021 U.S. Dist. LEXIS 79815 (N.D. Iowa Apr. 13, 2021), the EEOC alleged that Defendant’s use of a strength test had disparate impact on female job applicants for driving positions.  After both parties moved for summary judgment, the Court denied both motions, holding that the “4/5 Rule” relied upon by Defendant served as a general benchmark as opposed to a dispositive measuring stick, and material issues of fact remained as to the business necessity of the test.

This ruling is instructive for employers facing EEOC-initiated litigation involving disparate impact allegations, and demonstrates how both Courts and the Commission may interpret statistical defenses stemming from expert reports and testimony.

Case Background

The EEOC alleged that Defendant’s use of a isokinetic strength test (the “CRT Test”) had a disparate impact on female job applicants.  Id. at *3.  In its motion for partial summary judgment, the EEOC alleged that from June 2014 to present, Defendant violated Title VII by refusing to hire women who failed a pre-employment physical test that had a disparate impact on women.  The EEOC further claimed that under Title VII, if a plaintiff demonstrated that an employer uses a selection device that has a disparate impact on women, then the employer has the burden of proving that the selection device is job-related and consistent with business necessity.  Id. at *4.

In support of its motion for summary judgment, the EEOC’s cited its expert’s opinion that Defendant’s use of the CRT test had a statistically significant, adverse, disparate impact on women.  The EEOC argued that Defendant could not raise an issue of fact as to whether the CRT test was job-related and consistent with business necessity when, (1) it cannot explain how the test is scored or whether the passing score relates to the physical demands of the job; (2) the test did not accomplish Defendant’s stated goals of reducing workers’ compensation injuries or costs; and (3) Defendant retained incumbent drivers who failed the test.  Id. at *4.  Finally, the EEOC asserted that Defendant hired many males who failed the CRT test, but refused to hire more than two dozen women who failed the test, yet scored higher than the males who passed.

In Defendant’s motion for summary judgment, the company argued it was entitled to summary judgment because: (1) the CRT test did not have a disparate impact on female applicants for the position of truck driver; (2) it was entitled to use a physical abilities test that has been validated; (3) its use of the CRT test was job related and consistent with business necessity; and (4) the EEOC failed to demonstrate the existence of reasonable alternatives that would effectively serve Defendant’s needs while resulting in hiring more female applicants.  Id. at *5.

The Court’s Decision

The Court denied both parties’ motions for summary judgment.  As a preliminary matter, the Court explained that in order to establish a prima facie case in a disparate impact lawsuit, a plaintiff must identify a facially-neutral employment practice, demonstrate a disparate impact upon the group to which he or she belongs, and prove causation.  Id. at *6.

Here, the EEOC’s expert, a labor economist, opined that during the period of June 2, 2014 to February 10, 2020, 95% of CRT tests taken by male conditional hires to the driver position received a passing score, whereas only 76.6% of tests taken by female conditional hires to the driver position received a passing score.  Id. at *6-7.  In its opposition brief, Defendant relied on the “4/5 Rule,” which states that, “a selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.”  Id. (quoting 29 C.F.R. § 1607.4(D)).  Defendant thus argued that the EEOC did not establish that its use of the CRT test had a disparate impact on female conditional hires.

Analyzing Defendant’s application of the “4/5 Rule,” the Court held there was no dispute that it met the test, since even the EEOC’s expert noted that 95% of males passed, while only 76.6% of females passed.  Id. at *8-9.  However, the Court also held that Defendant overreached in applying the 4/5 Rule because: (1) it ignored the part of the rule indicating, “[s]maller differences in selection rate may nevertheless constitute adverse impact, where they are significant in both statistical and practical terms or where a user’s actions have discouraged applicants disproportionately on ground of race, sex, or ethnic group”; (2) Defendant’s own calculations were just above 80% and barely met the 4/5 Rule; and (3) although the “4/5 Rule” is generally a benchmark, both the U.S. Supreme Court and EEOC have emphasized that courts should not treat the rule as generally decisive.  Id. at *9-10.

Finally, considering the issues of Defendant’s burden to demonstrate that the CRT test is related to safe and efficient job performance and is consistent with business necessity, and the EEOC’s demonstration of an alternative selection method that has substantial validity and a less disparate impact, the Court held there were material facts in dispute precluding summary judgment for either party.  Accordingly, the Court denied both parties’ motions for summary judgment.

Implications For Employers

In EEOC-initiated litigation involving claims of disparate impact, this decision is instructive in terms of how courts may assess expert testimony and statistical data.  Specifically, the Court’s refusal to strictly apply the 4/5 Rule signals that parties in these types of cases should not necessarily expect a summary judgment victory just because the percentages cut in their favor.  Employers who satisfy the 4/5 Rule can likely expect the EEOC to tout this decision to oppose motions for summary judgment in disparate impact cases.

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

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

Seyfarth Synopsis:  In EEOC v. JBS USA, LLC, No. 10-CV-2103, 2021 U.S. Dist. LEXIS 13012 (D. Colo. Jan. 25, 2021), an EEOC-initiated lawsuit alleging a meatpacking engaged in a pattern or practice of discrimination on the basis of race, national origin, and religion, the U.S. District Court in Colorado denied the EEOC’s motion to reconsider the previous dismissal of the EEOC’s pattern or practice claims, thereby rejecting the Commission’s argument that a recent Tenth Circuit decision changed Title VII religious-accommodation law. 

This latest ruling in an 11-year legal battle brings the employer/defendant one step closer to defeating one of the largest pending EEOC pattern or practice of discrimination lawsuits. The latest ruling is instructive for corporate counsel dealing with EEOC litigation issues.

*  *  *

As we have previously blogged about (here, here, here, here, here, here, here, here, and here), the EEOC filed its lawsuit August 30, 2010, alleging a pattern or practice of discrimination on the basis of race, national origin, and religion, as well as raising claims of retaliation.  On August 8, 2011, the Court issued an order bifurcating the case.  Id. at *5.  Phase I of the trial was to address three issues, including: (1) whether defendant engaged in a pattern or practice of unlawfully denying Muslim employees reasonable religious accommodations to pray and break their Ramadan fast from December 2007 through July 2011; (2) whether defendant engaged in a pattern or practice of disciplining employees on the basis of their race, national origin, or religion during Ramadan 2008; and (3) whether defendant engaged in a pattern or practice of retaliating against a group of black, Muslim, Somali employees for engaging in protected activity in opposition to discrimination during Ramadan 2008. The Court presided over a 16-day trial for Phase I from August 7 to August 31, 2017.  Id. at *6.

On September 24, 2018, the Court issued its Phase I Findings.  Id.  It found that: (1) while defendant had denied Muslim employees a reasonable religious accommodation to pray during Ramadan (other than in 2009 and 2010), the EEOC had not made a requisite showing that any employees suffered a materially adverse employment action as a result of defendant’s policy denying unscheduled prayer breaks; (2) the EEOC had failed to prove that defendant’s disciplinary actions during Ramadan 2008 were motivated by a discriminatory animus; and (3) the EEOC had failed to demonstrate that defendant’s discipline of employees during Ramadan 2008 was for a retaliatory purpose rather for engaging in a work stoppage.  As a result, the Court dismissed the EEOC’s Phase I pattern or practice claims.  Id. at *7.  The EEOC moved the Court to reconsider.

The Court’s Decision

The Court denied the EEOC’s Second Motion for Partial Reconsideration of the Phase I Findings of Fact and Conclusions of Law.  The EEOC had asked the Court to reconsider its findings pursuant to the Tenth Circuit’s recent en banc decision in Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784 (10th Cir. 2020), a disability-accommodation case brought under the ADA.  The EEOC argued that Exby-Stolley was an intervening change in Title VII religious-accommodation law.

First, the Court opined that Exby-Stolley was an ADA case where the jury was instructed that, in order for the plaintiff to make out an ADA accommodation claim, the plaintiff had to show that she had suffered an adverse employment action.  Id. at *8-9.  In holding that the ADA did not require that plaintiff prove that she suffered an adverse employment action, the Tenth Circuit compared the elements of an ADA accommodation claim with a religious accommodation claim brought under Title VII.  Exby-Stolley explained that, while ADA claims do not require that a plaintiff show an adverse employment action, in Title VII religious-accommodation cases, the prima facie case requires the employee to show among other things that “he or she was fired or not hired for failure to comply with the conflicting employment requirement.”  Id. at *9 (quoting Exby-Stolley 979 F.3d at 739).

Applying Exby-Stolley here, the Court explained that in its Phase I Findings, and as the Tenth Circuit stated in Exby-Stolley, the adverse employment action requirement for Title VII religious-accommodation claims, “is not new.”  Id. at *10.  The Court supported its position by quoting Exby-Stolley, and noted that, “In fact, the Tenth Circuit explained that the fact ‘[t]hat a disparate treatment claim — under Title VII or the ADA — would require an adverse employment action is wholly unremarkable.’” Id. at * (quoting Exby-Stolley, 9 F.3d at 793 n.3).

Accordingly, the Court held that the law concerning religious accommodation claims under Title VII remained the same as it was before the Exby-Stolley decision, and therefore denied the EEOC’s second motion for reconsideration.

Implications For Employers

This ruling represents the latest chapter in the seemingly never-ending EEOC v. JBS saga, where the employer once again received a favorable ruling from the Court.  In essence, the Court rejected the EEOC’s attempt to apply post-dismissal case law to change the Court’s mind about its previous ruling.

For employers who are mired in year-long litigation battles with the EEOC, this ruling illustrates that one of the Commission’s strategies will be to closely monitor dockets and seek to overturn prior adverse rulings when new case law precedent provides a window for that opportunity.  Employers would be prudent to similarly monitor court rulings – even after a court dismisses part of a case – to stay ahead of the EEOC’s anticipated tactics.

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

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Alex W. Karasik

Seyfarth Synopsis:  In an EEOC-initiated lawsuit – EEOC v. LogistiCare Solutions LLC, No. 20-CV-852, 2020 U.S. Dist. LEXIS 215486 (D. Ariz. Nov. 18, 2020) – involving allegations dating back to 2013, a federal district court in Arizona denied an employer’s motion to dismiss and motion for summary judgment on the ground of laches, holding there was insufficient information to determine whether the elements of laches were met, and a material dispute of fact existed over whether the employer was prejudiced by the delay.

Although the employer’s motions here were unsuccessful, employers who face similar lawsuits following major time lapses in EEOC investigations can use the Court’s analysis to better prepare laches arguments.

Case Background

In EEOC v. LogistiCare Solutions LLC, two female employees attended a two-week training program for a call center in Phoenix, Arizona.  Both were released from the training class on September 16, 2013.  One of the employees filed a charge of pregnancy discrimination with the EEOC on October 31, 2013.   After completing its investigation, on May 1, 2020, the EEOC filed a lawsuit against multiple Defendants for terminating the employees based on sex (pregnancy) in violation of 42 U.S.C. § 2000e-2(a).  In its complaint, the EEOC alleged it was bringing suit on behalf of the charging party and, “other aggrieved individuals.” Id. at *2.  Defendant LogisticCare moved to dismiss the EEOC’s complaint, or in the alternative, for summary judgment on the grounds of laches.

The Court’s Decision

The Court denied LogistiCare’s motion to dismiss and denied its motion for summary judgment.  Citing Ninth Circuit precedent, the Court explained that a claim is barred by laches where: (i) the plaintiff unreasonably delays in bringing suit; and (ii) the defendant is prejudiced by the delay.  Id. (citations omitted).  It added that determining whether delay was unreasonable and whether prejudice ensued necessarily demanded a close evaluation of all the particular facts.  Accordingly, the Court opined that claims are not easily disposed of at the motion to dismiss stage based on a defense of laches.  Id.  Applying the this Ninth Circuit precedent, the Court held that it was not possible to determine whether the elements of laches were met from the complaint.  Rejecting LogistiCare’s argument, the Court held that a lengthy span of time alone was not enough to prove unreasonable delay.  Id. at *3 (citation omitted).

Further, the Court addressed whether LogistiCare showed it was prejudiced under the laches standard.  Id. at *4.  The Court opined that even if the EEOC’s delay in filing suit was unreasonable, genuine issues of material fact existed regarding whether LogistiCare was prejudiced by any such delay.   LogistiCare identified six witnesses for whom there were issues, such as locating the witnesses’ whereabouts and memory loss.  Id. at *5-6.  The Court indicated that LogistiCare must prove that the witnesses were unavailable, and that their unavailability was a result of the EEOC’s delay.  In its motion, LogistiCare did not explain why there was “no reasonable way” to contact its former employees.  The Court also pointed out how the EEOC was able to locate and interview one of the six witnesses.  Id. at *6.  Accordingly, the Court held that it was “entirely speculative at this point whether the former employees are outside this Court’s jurisdiction.”  Id.

The Court further held that LogistiCare did not show it was prejudiced based on loss of memory because LogistiCare could not simply rely on general statements that memories have lapsed.  Id. at *6.  Specifically, the Court observed that other than the conclusory statement that memories fade over time, LogistiCare did not provide evidence that the potential witnesses had forgotten the alleged incident.  In response to a declaration submitted by LogistiCare’s corporate representative indicating that the training supervisor for the Phoenix call center at the time of the alleged incident no longer had a meaningful independent recollection of the events, the Court held that the declaration was insufficient, since it was not submitted by the training supervisor himself.  Id. at *6-7.

Finally, the Court held that although increased back pay was one factor that demonstrated prejudice, potential back pay liability was not enough to show prejudice on its own since the Court had the power to take the EEOC’s delay into account when crafting a remedy.  Id. at *7.  In support of this position, the Court cited several decisions holding that back pay can be limited, and further noted that back pay is an equitable remedy that can be subjected to mitigation.  Id. (citations omitted).   Accordingly, the Court denied LogistiCare’s motion to dismiss since the complaint did not provide sufficient information to determine whether the elements of laches were met, and denied its motion for summary judgment since there was a genuine dispute of material fact over whether LogistiCare was prejudiced by the EEOC’s delay in filing this suit.

Implications For Employers

Given the EEOC’s perpetual backlog of charges, no matter how diligently the Commission pursues its investigations, it is not uncommon that some claims may slip through the cracks and endure substantial delays in the investigative process.  Here, there was nearly a seven-year time gap between the filing of the charge and the EEOC’s filing of the lawsuit.  Although this substantial time lapse manifests challenges for both parties and the Court relative to adjudicating a lawsuit involving a stale set of facts, this ruling illustrates that time alone does not automatically entitle employers to a quick win at the pleading stage.

Employers who are subjected to EEOC-initiated litigation stemming from alleged incidents that occurred several years ago should not lose all hope, however, because of this ruling.  The Court’s opinion provided insight into potential avenues to enhance employers’ arguments, for instance, submitting declarations directly from a witness who suffered memory loss as opposed to having a corporate representative make that statement on the witness’s behalf.  Accordingly, employers should be prepared to give specific and direct examples of how the defense of laches will impact the litigation, in order to best increase their chances of beating the lawsuit at the pleading stage.

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

By: Gerald L. Maatman, Jr.Christopher J. DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis: In the last fiscal year before the November 2020 election, the EEOC made significant changes to many of its programs, all in the midst of the global COVID-19 pandemic. Like most employers across the country, the EEOC found itself reconsidering its priorities and resources to address the pandemic, issuing a series of guidelines to assist employers with navigating the challenges of COVID-19. To top it off, the EEOC experienced significant leadership changes in the last few days of the Fiscal Year, with three new Commissioners approved by the U.S. Senate within the last week. The immediate impact of this flurry of activity appears to be a substantial drop in cases filed by the EEOC.

When the EEOC’s last fiscal year before the November election began in October 2019, many expected that the agency would be busy completing many of its objectives to further the strategic priorities set by the new Chair of the Commission, Janet Dhillon. However, FY 2020 was thrown in an unexpected direction by the COVID-19 pandemic, causing an unanticipated interruption in the EEOC’s enforcement and litigation program.

For the better part of the last 25 years, the EEOC’s Fiscal Year ended with a predictable spike in last-minute lawsuits; August and September filings often eclipsed the entire rest of the year combined.  Not so this year.  FY 2020 ended with a whimper, with only 33 lawsuits filed during September (unlike the 52 filed in September of FY 2019 and the 84 in FY 2018). In the end, the agency’s total number of filings fell dramatically below the numbers posted the last several years. At the time of publication of this blog posting, the EEOC had filed 101 total cases in FY 2020, which includes 94 merits lawsuits and 7 subpoena enforcement actions. This total number of filings is significantly less than the last two years (see here and here), and is closer to the drop off in filings that we saw in FY 2016 (see here).

Cases Filed By EEOC District Offices

In addition to tracking the total number of filings, we also keep a close watch on which of the EEOC’s 15 district offices are most actively filing new cases. Some districts tend to be more active than others, and some focus on different case filing priorities. The following chart shows the number of lawsuit filings by EEOC district office.

The most noticeable trend of FY 2020 is the marked decrease in coast-to-coast filings that we have seen compared to past years. Leading the pack in new filings were the Indianapolis and New York district offices, with 13 and 12 filings respectively. Indianapolis’s filings shot up from 8 filings last year, and New York matched its 12 filings from FY 2019. The Charlotte office, which was one of the leaders in new filings last year, posted extremely low numbers in FY 2020. The Chicago district office has historically been at the head of the pack, but had only 3 new filings this year, and the Houston office was down to 4 filings from the 12 it posted last year. This marks one of the most substantial declines in litigation enforcement activity that we have seen on a year-over-year basis.

Analysis Of The Types Of Lawsuits Filed In FY 2020

Each fiscal year we also analyze the types of lawsuits the EEOC files, in terms of the statutes and theories of discrimination alleged, in order to determine how the EEOC is shifting its strategic priorities. Those numbers at least – when considered on a percentage basis – are in line with the numbers we have seen the last few years, possibly indicating less of a shift in priorities than expected from the agency’s new leadership under Chair Dhillon. The graphs below show the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, and Age Discrimination in Employment Act) and, for Title VII cases, the theory of discrimination alleged.

Although the total number of filings is down across the board, when considered on a percentage basis, the distribution of cases filed by statute remained roughly consistent compared to FY 2018 and 2019. Title VII cases once again made up the majority of cases filed, making up 60% of all filings (on par with the 60% in FY 2019 and 55% in FY 2018). ADA cases also made up a significant percentage of the EEOC’s filings, totaling 30% this year, though down from 37% in FY 2019. This too is fairly typical. There were only 7 age discrimination cases filed in FY 2020, the same number as FY 2019.

COVID-19 Guidance

On March 17, 2020, near the beginning of the coronavirus pandemic in the United States, the EEOC released a technical assistance guide: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, which aimed to provide employers some guidance on how to navigate the safety concerns associated with COVID-19 while staying in compliance with the federal disability and other discrimination laws. The EEOC periodically updated the guide throughout the course of the pandemic to address employers’ questions, including those related to reasonable accommodations, COVID-19 screening and testing, and furloughs and layoffs. The EEOC also held a webinar on March 27, 2020, to answer common questions from employers relative to the application of discrimination laws to issues posed by the pandemic.

On March 21, 2020, the EEOC announced that it would cease issuing charge closure documents, also known as Notices of Right to Sue (“Notices”), in response to the difficulties facing parties in light of the COVID-19 pandemic. The closure documents were suspended until August 3, 2020.

Significant Changes To The EEOC’s Policies And Procedures

Throughout FY 2020, the EEOC undertook significant efforts to amend or limit its enforcement policies and procedures in accordance with its strategic priorities announced by Chair Dhillon earlier this year. Such priorities included continuing to provide excellent customer service; continuing to provide robust compliance assistance to employers, enhancing efforts to reach vulnerable workers; strategically allocating Commission resources; and continuing the EEOC’s efforts to be a model workplace. These priorities emphasized goals of consistency and an acknowledgement that litigation is “truly a last resort.”

On July 7, 2020, the EEOC announced two new six-month pilot programs aimed at increasing voluntary resolutions of discrimination charges. One of the new programs seeks to increase the effectiveness of the conciliation process at the Commission by reestablishing the commitment for full communication between the EEOC and the parties to a charge of discrimination and, notably, adding a requirement that conciliation offers be approved by an “appropriate level of management” before they are shared with respondents. The other program looks to create more opportunities to resolve matters through the EEOC’s popular mediation process by expanding the kinds of charges eligible for the mediation process and allowing for mediation throughout the entire charge investigation.

On August 18, 2020, the EEOC held a public meeting to address a notice of proposed rulemaking containing potential substantive amendments to the Commission’s conciliation process. Though a copy of the notice has not yet been publicly released, the EEOC has stated that the proposed changes to the conciliation process aim to “enhance its effectiveness and to create accountability and transparency.” Those changes could require the EEOC to disclose more substantial portions of its investigation file to respondents – including the identities of individuals who participated in the investigation, a summary of the known facts, and the factual and legal analyses that support a for-cause finding by the Commission.

Finally, on September 3, 2020, the EEOC issued an opinion letter regarding the Commission’s interpretation and enforcement of § 707(a) of Title VII, which authorizes the EEOC to sue employers engaged in a “pattern or practice” of discrimination. The opinion letter states that: (1) a pattern or practice claim under section 707(a) requires allegations of violations of section 703 or section 704 of Title VII; and (2) the EEOC must satisfy pre-suit requirements such as conciliation before it can bring a section 707 case.  Although technical, these points put significant limitations on the EEOC’s enforcement powers as to pattern or practice cases  (a full summary of the opinion letter is covered in an earlier blog post here).

More Changes At The Top

On top of all this, the EEOC is facing more leadership turnover at the top. Prior to last week, the EEOC’s leadership included only three of five Commissioners: Janet Dhillon (Republican – Chair), Vicki Lipnic (Republican), and Charlotte Burrows (Democrat). Commissioner Lipnic’s term technically expired in July 2020, but she has been allowed to stay on so the Commission still had a quorum and could still operate.

On September 22 and 23, 2020, three new Commissioners, two Republicans and one Democrat, were confirmed by the Senate for the two vacant seats and the seat held by Commissioner Lipnic. The Commission must remain bipartisan by law, but these new additions effectively solidify a Republican majority at least until July 2022 when Chair Dhillon’s term expires, regardless of the outcome of the upcoming elections.

The two new Republican Commissioners are Andrea Lucas, currently an attorney at the law firm Gibson Dunn who represents employers in labor and employment disputes, and Keith Sonderling, currently the Deputy Administrator of the Department of Labor’s Wage and Hour Division. Both are expected to add conservative voices at the Commission. The new Democratic Commissioner, Jocelyn Samuels, is currently the Executive Director of the Williams Institute and has served as the Director of the Office for Civil Rights at the U.S. Department of Health & Human Services. She is a strong advocate with a focus on LGBTQ+ issues.

On September 30, 2020, Sonderling was sworn in as Commissioner.

Implications For Employers

FY 2020 has shaped up to be a year of whirlwind change at the EEOC. The EEOC is starting to reflect the changes in priorities and leadership that many expected out of the Trump Administration, but that, until now, had been slow in coming. Now that they are finally here, they have landed in a world that has been turned upside down by a global pandemic. Employers find themselves once again looking out over a dim and uncertain horizon, as it remains to be seen how new priorities and strategies will be applied to a radically different employment landscape.

We will continue to monitor these changes closely and keep readers apprised of developments. Our annual comprehensive analysis of trends in EEOC litigation will be published at the end of the calendar year. As always, we will keep abreast of EEOC data amid the ever-changing political milieu, and share lessons learned from FY 2020 to carry employers through the new year.

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

By: Loren Gesinsky and Samuel I. Rubinstein

Seyfarth Synopsis: With telework seeming like the new normal for many, employers and employees have been wondering whether pandemic telework will be seen as creating a presumptive right to post-pandemic telework as a reasonable accommodation for employees with disabilities.  On September 8, 2020, the EEOC answered “no” to this burning question in its updated “Technical Assistance Questions and Answers” on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

Six months into the pandemic, with many employees still working from home, teleworking is far more common than ever.  Some employers are encouraging or permitting many employees to work remotely for the rest of 2020 (and beyond).  Today’s situation is far different from five years ago when the EEOC lost in its attempt at the Sixth Circuit to expand telecommuting as a reasonable accommodation under the ADA, a case we blogged previously here.

Nowadays, employers are preparing for a potential tidal wave of reasonable accommodation requests for telework after they resume requiring onsite work.  Employees may wonder whether the employer has to continue the telework arrangement after the worksite reopens, and other employees may seek to renew previously denied, pre-COVID-19 telework reasonable accommodation requests.  Finally, the EEOC has stepped in to address this issue in its September 8, 2020 updates to its  “Technical Assistance Questions and Answers” on issues dealing with COVID-19 and the ADA and other equal employment opportunity laws.

The EEOC’s answers provide useful guidance for employers.  As a baseline, the EEOC notes that any across-the-board treatment like a presumption is inconsistent with the EEOC’s oft-repeated maxim that reasonable-accommodation inquiries must be addressed on an individualized basis.  Instead, “[a]ny time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation” and then proceed through the interactive process accordingly regarding a potential reasonable accommodation.

The EEOC also reiterates another fundamental precept that “[t]he ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.”  Relying on this precept, the EEOC makes a common-sense determination that employee advocates may tend to ignore or de-emphasize:  “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions ….”  In other words, temporarily making the best out of telework out of necessity and compassion does not tie an employer to forever deeming this a successful means for fulfilling all of the long-term essential functions.

Nevertheless, the EEOC recognizes a scenario under which the pandemic telework experience of an employee could be relevant to telework as a reasonable accommodation post-pandemic.  If an employee renews a pre-COVID-19 request for teleworking as a reasonable accommodation, the EEOC suggests that this prior teleworking experience could be relevant in considering the renewed request.  The pandemic telework “could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.”

Another consideration for employers is how the November elections may impact the EEOC moving forward.  EEOC appointees under a new administration might be more inclined to resume the efforts of Obama-era appointees to expand the circumstances under which telework is required as a reasonable accommodation.

In light of these factors, employers may benefit from beginning to reevaluate now the positions for which they believe onsite work will be an essential function post-pandemic and ensuring documentation of these designations and related justifications.  For more information on this or any related topic please contact the authors or your Seyfarth attorney.

By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  In its latest update to guidance for employers in the COVID-19 pandemic, the EEOC has now clarified that employers can test employees for COVID-19 without running afoul of the Americans With Disabilities Act (“ADA”). This new update provides a much-awaited opinion from the Commission on the use of medical testing to screen employees entering the workplace and is a must-read for employers. For employers currently crafting their return-to-work contingency plans, the EEOC latest announcement is a “must read.”

As we have reported here and here, the EEOC has updated its enforcement guidance memoranda for employers trying to navigate discrimination laws in the COVID-19 era, particularly the ADA and the Rehabilitation Act. On April 23, 2020, the EEOC released its latest update that specifically addresses whether an employer may administer a COVID-19 test before permitting employees to enter the workplace.

COVID-19 Testing Guidance

The EEOC’s updated guidance analyzes whether employers can administer a test that detects the presence of COVID-19 before allowing employees to come to work.

The EEOC’s guidance definitively advises employers that they may take steps to screen employees for COVID-19 because an individual with coronavirus poses a direct threat to the health of others, which means that an employer can administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Though the EEOC gives employers the go-ahead to move forward with testing, the guidance also issues a few notes of caution. First, the Commission reminds employers that they should ensure that the tests are accurate and reliable, which can be accomplished by reviewing guidance from the U.S. Food and Drug Administration, the CDC, or other public health authorities about what tests may be considered safe and accurate. Second, the EEOC cautions that some tests may cause false-positives or false-negatives. Finally, the Commission warns that a negative test does not mean the employee will not acquire the virus later, so employers should continue to implement and follow social distancing and safety protocols.

Implications For Employers

The EEOC’s latest guidance provides employers latitude to implement COVID-19 testing before employees enter the workplace, guidance that will prove valuable as employers start exploring possible methods to bring employees back to work. Before implementing any testing, however, employers should seek to confirm that any tests used are safe and accurate and, if necessary, seek assistance from public health authorities or medical professionals to verify and interpret test results.

We encourage all employers to review in detail the entirety of the EEOC’s guidance here, and to review Seyfarth Shaw’s COVID-19 Resource Center for additional guidance and information. Seyfarth Shaw also has a response team standing by to assist however we can.

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

Seyfarth Synopsis:  The EEOC recently released updated guidance for employers trying to navigate the federal anti-discrimination laws in the COVID-19 era – entitled What You Should Know About the ADA, the Rehabilitation Act, and COVID-19. The most recent update adds significantly to the EEOC’s position on how employers should treat requests for “reasonable accommodations” in these difficult times, as well as pandemic-related harassment issues, and issues that could arise as employees start returning to work. As such, the EEOC guidance should be required reading for all employers.

As we first reported here, the EEOC released guidance for employers trying to navigate the Americans With Disabilities Act and the Rehabilitation Act in the COVID-19 era: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19. The guidance gives employers practical Q&A-style guidance on how they can navigate the safety concerns associated with COVID-19 while staying in compliance with the federal disability discrimination laws. The guidance has been updated by the EEOC several times since it was issued in March. On April 9 and 17, 2020, in particular, the EEOC added significantly to its discussion of requests for reasonable accommodation during the COVID-19 emergency, pandemic-related harassment issues, and issues that could arise as employees are furloughed or laid off and as they return to work.

Reasonable Accommodation Guidance

The EEOC’s updated guidance adds several Q&A points regarding requests for reasonable accommodations. Some of the most significant points include the following:

  • For individuals who have a pre-existing condition that puts them at higher risk from COVID-19, the EEOC recommends several low-cost changes to the work environment, such as designating one-way aisles, using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers, or other accommodations that reduce chances of exposure. According to the EEOC, flexibility by employers and employees is key. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment are other possible solutions recommended by the EEOC.
  • The EEOC reminds employers that employees’ preexisting mental illnesses or disorders can be exacerbated by the circumstances brought on by the health emergency, meaning that some individuals may now be in need of reasonable accommodations that had not been necessary before. Moreover, some employees may require different accommodations to deal with changed work situations, such as an employee who may need a different accommodation so he or she can effectively work from home.
  • The EEOC also opined that employers may still request information from an employee to determine if a medical condition is a disability and that they may still engage in the interactive process to see whether a disability requires an accommodation. Employers may also choose to shorten or forego the interactive process and simply grant an employee’s accommodation on a temporary basis. Employers are encouraged to be proactive; they may ask employees with disabilities to request accommodations and engage in the interactive process for accommodations that employees believe they may need when the workplace re-opens or they return to work.
  • Employers are also advised that they are not required to provide a reasonable accommodation that would pose an “undue hardship” on the employer. In some cases, the pandemic may have changed what counts as an undue hardship for an employer. In particular, economic concerns brought on by the pandemic are relevant to determining what counts as a significant expense. According to the EEOC, “the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.” The EEOC cautions, however, that this does not mean that an employer can reject any accommodation that costs money: “an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.”

Pandemic-Related Harassment Guidance

The EEOC’s updated guidance also points employers to resources and tips they can use to prevent harassment that might arise as a result of the pandemic. Among other things, the EEOC recommends that employers explicitly communicate to their employees that fear of the pandemic should not be misdirected at individuals because of their national origin, race, or other protected characteristic. The EEOC also recommends that employers advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. Employers can also make it clear that they will continue to immediately review any allegations of harassment or discrimination and take appropriate action.

Guidance Relating To Furloughs, Lay-Offs, And Returning To Work

The EEOC had little to say to employers who are forced to consider layoffs or furloughs of employees, beyond simply reminding them about its guidance regarding waivers of discrimination claims in severance agreements, which can be found here.

With respect to returning employees, however, the EEOC reiterated that the ADA allows employers to make disability-related inquiries and to conduct medical exams if they are job-related and consistent with business necessity. That includes employees who might have a medical condition that would pose a direct threat to health or safety. Determinations as to whether a medical condition is a direct threat should be based on objective medical evidence, such as guidance from the CDC or other public health authority. According to the EEOC, “employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.” That can include taking employees’ temperatures and inquiring about symptoms for all employees who enter the workplace because those actions are consistent with CDC guidance.

Finally, the EEOC has stated that it is permissible for employers to require returning workers to wear personal protective gear and observe infection control practices (including social distancing practices, among other things), provided that they continue to engage in the interactive process with any employee who requests an accommodation regarding those requirements. Employers’ requirements to discuss an employee’s requests and determine undue hardship are not lifted even for these COVID-19-related precautions.

Implications For Employers

These are just some of the important points clarified by the EEOC in this updated guidance. The EEOC continues to update this guidance on a rolling basis as it attempts to respond to this fast-moving crisis. It is a valuable resource for employers who every day are finding themselves encountering situations that have never or only rarely been seen before in the American workplace. We encourage all employers to review in detail the entirety of the EEOC’s guidance here, and to review Seyfarth Shaw’s COVID-19 Resource Center for additional guidance and information. Seyfarth Shaw also has a response team standing by to assist however we can.

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

By Gerald L. Maatman, Jr. and Matthew Gagnon

Seyfarth Synopsis: In the past 24 hours, the EEOC released a statement: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, which gives employers some guidance on how they can navigate the safety concerns associated with COVID-19 while staying in compliance with the federal disability discrimination laws. The EEOC was careful to explain that although those laws are still very much in effect, they do not interfere or prevent employers from following the guidelines or suggestions made by the CDC or state and local public health authorities regarding COVID-19. The Commission’s statement is a must read for corporate counsel.

The EEOC’s statement builds on its earlier guidance, issued during the H1N1 pandemic, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act. That publication, which is far more in depth than what was just released, provides important guidance for employers trying to navigate the disability discrimination laws during a pandemic, including: how much and what kinds of information an employer may request from an employee who calls in sick, when employers may take the temperature of employees, when the ADA allows employers to require employees to stay home from work, and what employers can require in terms of doctors’ notes or other certifications of fitness for duty.

Those issues are also addressed briefly in the EEOC’s recent statement. These are the key points that the EEOC wants all employers to keep in mind:

  • During a pandemic, employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  • The EEOC reminded employers that measuring an employee’s body temperature is a medical examination. But because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
  • The CDC has stated that employees who become ill with symptoms of COVID-19 should leave the workplace. The EEOC wants employers to know that the ADA does not and should not interfere with that advice.
  • The ADA allows employers to require doctors’ notes certifying fitness for duty because such notes would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA’s standards for disability-related inquiries of employees. The EEOC also acknowledges that doctors and other health care professionals may be too busy to provide such documentation and that new approaches may be necessary, such as a form, a stamp, or an email to certify that an individual does not have the pandemic virus.

Implications For Employers

This is an incredibly fast-moving situation and no single set of guidelines can possibly cover all of the diverse situations that employers are likely to face with unprecedented urgency over the next days, weeks, and months. But the new guidelines issued today, and especially the more detailed document that was issued in 2009, are a good place to start for employers who are looking for quick, practical guidance as they start crafting and implementing critical workplace policies on the fly.

We encourage all employers to review Seyfarth Shaw’s COVID-19 Resource Center for additional guidance and information. The Resource Center was designed to provide employers up-to-the-minute guidance on the diverse and growing list of legal considerations and risks employers are facing. Seyfarth Shaw also has a response team standing by to assist however we can.

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

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

Seyfarth Synopsis:  On March 10, 2020, the EEOC released information about an internal resolution that may drastically change how high-stakes litigation decisions are made at the EEOC. The resolution reverses some long-standing practices that had delegated much of the authority over the direction of EEOC litigation enforcement activities to the General Counsel of the Commission. Much of that authority will now rest firmly in the hands of the Commissioners themselves.

On March 10, 2020, the EEOC released its Resolution Concerning the Commission’s Authority to Commence or Intervene in Litigation and the Commission’s Interest in Information Concerning Appeals.

The purpose of the resolution appears to be an effort to reign in many of the powers previously held by the EEOC’s General Counsel, and in turn the Regional Attorneys, who historically have wielded considerable discretion over the types of lawsuits that would be filed and the legal positions the EEOC would advance.

The resolution notes that the Commission had originally delegated significant authority to the General Counsel in the EEOC’s National Enforcement Plan of 1995. That delegation was reaffirmed with some slight changes in the Strategic Enforcement Plans that became effective in 2012 and 2017. According to the most recent iteration of the Strategic Enforcement Plan, the General Counsel’s office was given authority to decide to commence or intervene in litigation in all cases except those: (1) that involve a major expenditure of agency resources, which would include many systemic, pattern or practice, or Commissioner charge cases; (2) which present issues in developing areas of law where the Commission has not yet or only recently adopted an official position; (3) that the General Counsel reasonably believes to be appropriate for submission for Commission consideration (e.g., due to the likelihood of public controversy); and (4) which involve recommendations to participate in a case as amicus curiae.

The new resolution makes it clear that it is now the Commissioners, and not the General Counsel, that will make the decisions to commence or intervene in litigation. According to the resolution, the Commission now has exclusive authority over the following:

-Cases involving an allegation of systemic discrimination or a pattern or practice of discrimination;

-Cases expected to involve a major expenditure of agency resources, including staffing and staff time, or expenses associated with extensive discovery or expert witnesses;

-Cases presenting issues on which the Commission has taken a position contrary to precedent in the Circuit in which the case will be filed;

-Cases presenting issues on which the General Counsel proposes to take a position contrary to precedent in the Circuit in which the case will be filed;

-Other cases reasonably believed to be appropriate for Commission approval in the judgment of the General Counsel. This category includes, but is not limited to, cases that implicate areas of the law that are not settled and cases that are likely to generate public controversy;

-All recommendations in favor of Commission participation as amicus curiae;

-A minimum of one litigation recommendation from each District Office each fiscal year, including litigation recommendations based on the above criteria.

Even with respect to those cases that do not raise the issues enumerated above, the new resolution goes on to state that the General Counsel is obligated to communicate about more garden variety cases with the Chair, and at the Chair’s request, shall consult with the Chair to decide whether even those cases should be brought before the Commission for a vote. It is only if the Chair does not advise the General Counsel within five business days – as to whether a particular case must be submitted to the Commission for a vote – that the General Counsel retains authority to proceed with a lawsuit on her own initiative.

The delegation of authority contained in the EEOC’s most recent Strategic Enforcement Plan allowed the General Counsel the authority to re-delegate to Regional Attorneys the authority to commence litigation and, in fact, strongly encouraged such re-delegation of litigation authority. Under the new resolution, that authority is also revoked; instead, it explicitly states that for any cases that are not brought to the Commission for a vote as described above, “the Commission delegates to the General Counsel the authority to determine whether to commence such cases.” (emphasis added).

Finally, in an apparent nod to some of the recent difficulties the agency has had in terms of maintaining a quorum of Commissioners to make critical litigation decisions (see our discussion of this here in previous blog postings), the resolution states that in the event that the Commission loses its quorum, the General Counsel may file only those cases that do not directly implicate the seven categories that are the exclusive authority of the Commission. But even then, that authority ceases when the Commission regains its quorum.

Implications For Employers

For those of us who pay close attention to the goings-on at the EEOC, this is a stunning and dramatic revocation of the General Counsel’s litigation authority. For many years now, we have been struck by the extent to which the General Counsel and the attorneys in the field appeared to exercise broad discretion over the types of cases the EEOC would file, the theories of law that it would pursue, and the litigation tactics that it would employ. Moreover, since the General Counsel was also encouraged to delegate that authority to Regional Attorneys across the country, the result was a sometimes fragmented, district-by-district approaches to EEOC enforcement litigation.

It is no coincidence that this revocation of authority comes just as the EEOC has finally reclaimed its quorum of Commissioners under the leadership of a new chair appointed by the Trump administration. Many employers are likely to greet this development as an indication of a fundamental change in direction and welcome news given some of the litigation and legal positions the EEOC has taken in recent years. To add to that sense of relief, it should be noted that Commissioners’ terms are staggered so that they survive across political administrations. In other words, the Commissioners that the current administration puts in place could continue to influence the direction of the agency even after that administration ends. But as with so many things, what goes around comes around, and, of course, the same will be true if and when a new Administration has a chance to pick its own set of Commissioners.

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

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

Seyfarth Synopsis:  On February 10, 2020, the EEOC released its first-ever Annual Performance Report (“APR”) for Fiscal Year 2019 (see here). The APR is an analysis of the EEOC’s litigation goals and performance results, and contains important clues to the EEOC’s changing strategic objectives and potential future targets of heightened enforcement activity. It is a “must read” for all employers.

This is the first year that the EEOC has published an Annual Performance Report. The EEOC previously published one annual Performance Accountability Report (“PAR”) shortly after the end of its fiscal year. Starting this year, the PAR has been bifurcated into two separate reports. The first report was published in November 2019, entitled “Fiscal Year 2019 Agency Financial Report” (“AFR”). It was focused on the Commission’s financial health, overall initiatives, and objectives (see more here). The second report is this month’s publication, the APR, which discusses the agency’s Strategic Plan and performance results. The APR is an important tool for employers to gauge the Commission’s enforcement priorities and trends.

The APR is organized around the three Strategic Objectives outlined in the EEOC’s Strategic Plan for Fiscal Years 2018-2022 (“Strategic Plan”). The Strategic Plan should not to be confused with the EEOC’s Strategic Enforcement Plan – which specifically deals with litigation and other enforcement mechanisms. Those enforcement issues encompass just one of the three strategic objectives outlined in the Strategic Plan. The other two objectives are: (1) preventing employment discrimination and promoting inclusive workplaces through education and outreach; and (2) achieving organizational excellence increased its focus on robust outreach to vulnerable workers.

Consistent with these last two objectives, the APR reports that the EEOC is making new efforts to serve as a model workplace by revamping its own inclusion and diversity program reinforced by new technology, and has increased its focus on robust outreach to vulnerable workers.

Significant Drop In Total Filings And Systemic Case Filings

The APR reports that the EEOC filed 144 merits lawsuits in FY 2019, a decrease from the 199 merits lawsuits it filed in FY 2018. Among this array of filings were 100 lawsuits filed on behalf of individuals, 27 non-systemic lawsuits with multiple victims, and 17 systemic lawsuits.

“Systemic” suits are defined as lawsuits having “a broad impact on an industry, company or geographic area.” Between FY 2016 and FY 2018 the EEOC more than doubled its inventory of systemic lawsuits. During FY 2018, the Commission filed 37 systemic suits; in FY 2017 it filed 30; and in FY 2016 it filed 18. The 17 that were filed in FY 2019 is therefore a significant drop as compared to the prior two years and is even below the low FY 2016 number. Systemic lawsuits accounted for 12% of all merits suits filed in FY 2019, and 21.4 percent of all merits suits on the EEOC’s active docket (a total of 60 systemic lawsuits). The EEOC obtained relief for 2,022 victims of systemic discrimination, amounting to $22.8 million.

The Continued Importance Of The #MeToo Movement

Despite the drop in total number of filings, the Commission maintained its focus on sex-based discrimination, especially harassment and hostile work environment claims. The APR reports that sexual harassment lawsuits alone comprised roughly 43% of all merits suits filed in FY 2019. The EEOC filed 48 lawsuits pertaining to workplace harassment, of which roughly 70% arose out of hostile work environment claims based on sex.

The Commission has also teamed up with third-party organizations and other federal agencies to collect data and require reporting of sexual harassment, as well as maintaining its commitment to address ongoing issues. In terms of preventative efforts, the EEOC participated in over 700 partner activities with advocacy and business groups. Among the newest collaborations was a partnership with the National Science Foundation, which recently started requiring applicants to report and address sexual harassment as a condition of their grant awards. The Commission reported that it is also leveraging social media through its pilot “You’re Hired” campaign on Instagram to provide information about discrimination and sexual harassment to youth in summer jobs.

The Commission’s increased efforts in both enforcement and prevention demonstrate its lasting commitment to addressing sexual harassment and sex discrimination in the workplace.

Litigation Is A “Last Resort” And ADR Is A Heightened Priority

On February 4, 2020, EEOC Chair Janet Dhillon released the Commission’s 2020 priorities indicating that “litigation is truly a last resort,” signaling a potential shift towards heightened mediation efforts in place of litigation (read more here). The APR echoed the Commission’s 2020 priorities by focusing on its Alternative Dispute Resolution (“ADR”) efforts. During FY 2019, the Commission conducted 8,899 mediations, resulting in nearly $160 million in relief to charging parties. Further, 1,145 federal sector mediations were conducted, significantly reducing the inventory of federal sector disputes. Overall, 96.8% of those who participated in the Commission’s ADR program reported that they would pursue EEOC mediation for future charges filed.

The EEOC has also continued its efforts to increase employer participation in mediation. It held 357 employer ADR events across field offices and saw its respondent participation rate rise to 30.7% in FY 2019 from 27.6% in the prior year. The EEOC also continues to promote voluntary compliance through its conciliation program. The APR reports that the percentage of successful conciliations has risen from 27% in FY 2010 to 40% in FY 2019. For systemic charges, the success rate rose to 56% in FY 2019, compared to 46% in FY 2018.

Implications For Employers

The APR and the EEOC’s related publications provide practical insights into the Commission’s priorities amid an ever-changing social climate. Those publications consistently show that combatting sexual harassment and discrimination against vulnerable workers remain top priorities for the agency.

Moreover, while the Commission’s efforts and announcements appear to support the Commission’s reported goal of focusing more heavily on ADR rather than litigation, only time will tell if this trend will bear out. It remained true that the Commission pursued its mission with zeal during those parts of the year when it was acting with a quorum of Commissioners. Our year-end analysis and the EEOC’s own APR report card reflect relatively strong numbers in filings and recoveries in FY 2019, despite the loss of quorum during a significant part of the year.

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