By Alex W. Karasik

Seyfarth Synopsis:  In EEOC v. Sherwood Food Distributors, Inc., No. 16-CV-2386, 2022 U.S. Dist. LEXIS 32921 (N.D. Ohio Feb. 24, 2022), a federal court in Ohio held an employer in contempt for failing to pay its payroll tax liabilities, as required by an EEOC consent decree that resolved a systemic discrimination lawsuit. In addition to paying the outstanding payroll tax, the Court ordered the employer to pay an additional $46,858.55 resulting from the 3.8% tax rate increase during the time of the contempt dispute, as well as potential settlement administrator fees.

This ruling should serve as a cautionary tale for employers in regards to negotiating and timely satisfying financial obligations in EEOC consent decrees.

Case Background

On September 27, 2016, the EEOC filed a lawsuit against Sherwood, alleging that it engaged in discriminatory hiring practices that adversely impacted female applicants, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). The parties subsequently settled the litigation and entered into a Consent Decree, whereby Sherwood agreed to place $3.6 million into a Qualified Settlement Fund (“QSF”) account administered by a third-party (the “Administrator”) within 30 days of entry of the Consent Decree.  d. at *2.  These funds were to provide monetary relief to individuals that the EEOC determined were subjected to the alleged discrimination. Id. The monetary relief constituted both back pay and other monetary damages available under Title VII. Id. The EEOC was given the authority to determine what type of monetary relief would be paid to the eligible claimants (“Claimants”).

The EEOC alleged that Sherwood subsequently violated the Consent Decree by refusing to pay its payroll tax liability and therefore preventing the distribution of the $3.6 million to the Claimants by December 14, 2021.  In relevant part, the Consent Decree stated that Sherwood was responsible for paying its share of all applicable pay roll taxes and that the Administrator would inform Sherwood, “of the amounts of back pay distributed to each person from the QSF and all other information necessary for [Sherwood] to satisfy its payroll tax liabilities.” Id. The Administrator notified Sherwood’s counsel on December 1, 2021, of the amount that it owed in payroll taxes and provided notice that payment of the payroll taxes must be received on December 10, 2021, for the award checks to be timely distributed. The EEOC’s counsel communicated with Sherwood’s counsel in an attempt to compel the payment of the payroll taxes, but Sherwood indicated it would not make the payroll tax payment.

On January 27, 2022, the Court held a hearing regarding the EEOC’s motion for civil contempt.  Upon Sherwood’s request for a breakdown of the individual payments to be made to the Claimants, the Court continued the hearing until January 31, 2022.  Prior to the start of the hearing on January 31, 2022, the Administrator notified Sherwood that its total payroll taxes owed had increased from $361,890.68 to $408,749.23 due to the Ohio Department of Jobs and Family Services’ increase in QSF state unemployment tax rate from 2.7% in 2021 to 6.5% in 2022.  At the hearing, the parties were ordered to submit proposed findings of fact and conclusion of law, which were subsequently submitted on February 10, 2022.  Id. at 2-3.

The Court’s Decision

The Court held Sherwood in civil contempt for violating the Consent Decree. First, the Court explained that in order to establish a finding of civil contempt, the EEOC must show that the other party violated a definite and specific order of the Court, through “clear and convincing evidence.” Id. at *4 (citations omitted). The Court noted that the Consent Decree explicitly stated numerous times that Sherwood was responsible for payroll tax liability, and that distribution of the settlement funds must be completed by December 14, 2021.  Further, the EEOC produced email communications that Sherwood was informed of its payroll tax duties by the Administrator in accordance with the Consent Decree.  Accordingly, the Court held there was, “clear and convincing evidence,” that Sherwood violated the Consent Decree. Id.

Second, the Court held that Sherwood did not meet its burden to demonstrate that it took all reasonable steps to comply. Sherwood claimed that it attempted to negotiate an extension of the deadline, but the Court rejected this approach, noting that its extension request ten days before the deadline was untimely. Id. The Court thus held that, “Upon [the EEOC’s] unwillingness to negotiate, [Sherwood] should have complied with the Decree and the Administrator’s request for payment.” Id.

Third, the Court held that Sherwood failed to satisfy its burden of giving a detailed explanation as to why it could not presently comply with the Consent Decree and pay the $408,749.23 in payroll taxes. Id. at *5. The Court reasoned that Sherwood made no claim that it did not have the funds, nor did it offer any evidence of its financial situation.  In lieu of offering such evidence, Sherwood proposed paying in installments. The Court rejected this proposal as untimely. It opined that Sherwood should have made the proposal during settlement negotiations. In addition, the Court dismissed Sherwood’s argument that the EEOC conducted its investigation too slowly.

Accordingly, the Court held Sherwood in civil contempt for violating the Consent Decree. Sherwood argued it should only be responsible for paying the initial $361,890.68 and should not be required to pay the additional $46,858.55 resulting from the 3.8% tax increase. The Court rejected this argument on the grounds that the crease in taxes owed was a result of Sherwood’s delay. As such, the Court ordered Sherwood to pay the full amount of $408,749.23 within 30 days of its order, and to pay any additional costs incurred by the Administrator’s fulfillment of his duties that exceed the $35,000 amount set forth in the Consent Decree.

Impact For Employers

This ruling is an eye-opener for employers in terms of the potential implications for not satisfying obligations in any Consent Decree. Here, the employer’s delay was costly, as a change in the calendar year during the dispute led to an increased payroll tax debt. Accordingly, employers must be pragmatic when negotiating consent decree deadlines in EEOC-initiated litigation, and equally diligent in meeting those deadlines.

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

By: Christopher J. DeGroff, Matthew J. Gagnon, and Alex W. Karasik

Seyfarth Synopsis: Following the EEOC’s down 2020 fiscal year, in which the Commission made significant changes to many of its programs in the midst of the global COVID-19 pandemic and leadership changes, in FY 2021 the EEOC’s litigation enforcement activity showed signs of recovering from the lingering pandemic. The number of cases filed by the EEOC increased in a respectable climb back to pre-pandemic levels, forecasting a busy year ahead for the Commission and employers in FY 2022.

For the most of the last 25 years, the EEOC’s Fiscal Year ended with a surge in last-minute lawsuits. August and September filings often eclipsed the entire rest of the year combined.  Following a “down year” in FY 2020 where only 33 lawsuits were filed in September, the finish in FY 2021 represented a return to form, with 59 lawsuits filed during September (similar to the 52 filed in September of FY 2019, and 84 in FY 2018). At the time of publication of this blog posting, the EEOC filed 114 total cases in FY 2021, which includes 111 merits lawsuits and 3 subpoena enforcement actions. This total number of filings is more than last year’s total of 101 lawsuits (see here), but still less than the last two years prior (see here and here).

Cases Filed By EEOC District Offices

In addition to tracking the total number of filings, we closely monitor which of the EEOC’s 15 district offices are most actively filing new cases. Some districts tend to be more aggressive 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 2021 is the filing dip in some key regions compared to past years. The New York district office fell from 12 filings in FY 2020 to 6 filings in FY 2021. The California district offices in San Francisco and Los Angeles, which combined for 16 new filings last year, declined in FY 2021, coming at a combined total of 13 new filings, including San Francisco’s fall from 10 to 6. The Indianapolis district office, which had a huge year in FY 2020 with a nation-leading 13 filings, returned to the middle of the pack with only 4 filings this year.

On the other hand, leading the pack in new filings was the Philadelphia district office with 14 filings. Chicago’s filings shot up from 3 filings last year to 9 filings this year, and the Dallas district office made a similarly large jump from 5 filings from FY 2020 to 11 filings in FY 2021. The Birmingham district office also made a noticeable move from 5 filings in FY 2020 to 9 filings in FY 2021. Overall, following a substantial decline in litigation enforcement activity in FY 2020, the increase filings in FY 2021 suggests the EEOC is back on track at most of its regional offices across the country.

Analysis Of The Types Of Lawsuits Filed In FY 2021

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. 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.

When considered on a percentage basis, the distribution of cases filed by statute remained roughly consistent compared to FY 2020 and 2019. Title VII cases once again made up the majority of cases filed, making up 62% of all filings (on par with the 60% in FY 2020 and 60% in FY 2010). ADA cases also made up a significant percentage of the EEOC’s filings, totaling 36% this year, a moderate uptick from 30% in FY 2020. There was only one age discrimination case filed in FY 2021, down seven from FY 2020.

February 2021 Release Of Enforcement Statistics

On February 26, 2021, the EEOC released its comprehensive enforcement and litigation statistics for FY 2020 (available here). The dip in the number of charges that employers saw in 2018 and 2019 continued through 2020, with the number of charges reaching its lowest point since 1997. The prominence of gender discrimination charges seen in 2018 due to the #MeToo movement has all but disappeared, with sex discrimination charges remaining in the fourth-place position and dropping to their lowest number in over 20 years. When the FY 2021 figures are released in the coming months, we do not expect there to be much departure from this trend.

However, monetary benefits recovered by the Commission in FY 2020 surged. The EEOC recovered a record amount of $535.4 million on behalf of alleged discrimination victims. By comparison, the EEOC recovered approximately $486 million in FY 2019; approximately $505 million in FY 2018; and approximately $484 million in FY 2017.  When the final figures are released for FY 2021, we anticipate there will be a similar eye-popping dollar amount of recoveries.

January 2021 Release Of Annual Performance Report

On January 19, 2021, the EEOC released its second-ever Annual Performance Report (“APR”) for FY 2020 (see here). In essence, it is a report card on the Commission’s activities, including its record relative to enforcement litigation. That said, the APR is an analysis of the EEOC’s litigation goals and performance results, and contains important data points regarding the EEOC’s changing strategic objectives and potential future targets of heightened enforcement activity.

In what can be considered a potential explanation for the decline in lawsuits, during FY 2020, the Commission conducted 6,272 mediations, resulting in $156.6 million in relief to charging parties. Further, 766 federal sector mediations were conducted, reducing the inventory of federal sector disputes. Overall, approximately $333.2 million in relief was recovered through mediation, conciliation, and settlements.

When this data is later released for FY2021, given the shutdowns in the courts coupled with the surge of virtual mediations, we anticipate the number of mediations and recoveries will remain significant.

Implications For Employers

FY 2020 was a year of whirlwind change at the EEOC as a result of the pandemic and leadership changes, and the FY 2021 aftermath resulted in strikingly similar results. Now that the new leadership regime and their structural changes are finally settling in to a world that remains hampered by a lingering global pandemic, employers find themselves once again looking out over an uncertain future of the employment landscape. It remains to be seen how new priorities and strategies will impact their businesses in FY 2022, especially when many businesses are shifting to remote work structures that may limit some of the common catalysts of workplace discrimination.

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 2021 to carry employers through the new year.

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

By Alex W. Karasik

Seyfarth Synopsis:  In an EEOC-initiated pregnancy discrimination lawsuit, a federal district court in Florida granted in part and denied in part the employer’s motion for summary judgment, finding there were several genuine issues of material fact surrounding an employee’s return to work from pregnancy leave, but holding that her constructive discharge claim lacked merit.  EEOC v. NICE Systems, Inc., No. 20-CV-81021, 2021 U.S. Dist. LEXIS 146834 (S.D. Fla. Aug. 5, 2021).

The ruling is instructive for employers in terms of both reintegrating pregnant employees into the workforce, and potential litigation strategies for subsequent EEOC pregnancy discrimination litigation.

Case Background

The Intervenor Plaintiff worked for Defendant from August 2015 to March 2018 as a Sales Executive.  In April 2017, she informed her direct supervisor that she was pregnant.  Thereafter, the Intervenor Plaintiff complained of the discriminatory treatment to her employer’s Director of Human Resources, Vice President of Solution Sales, and Regional Vice President.  She also requested transfer to a different department, but the company was not able to accommodate that request.  On March 2, 2018, the Intervenor Plaintiff resigned.  Id. at *4.

The EEOC brought a lawsuit on behalf of the Intervenor Plaintiff alleging claims of pregnancy discrimination, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978.  It alleged that the Intervenor Plaintiff’s employer discriminated against her on the basis of her pregnancy by undertaking four actions, including: (1) transferring her existing sales accounts to a newly hired employee on a different team; (2) refusing to assign a new sales lead in her territory; (3) invoking the “windfall” provision of her employment contract to cap the amount of commission she could receive on an audit/settlement that she contributed to before she went on maternity leave; and (4) upon her return from maternity leave, reassigning her Canada territory to a male colleague, and assigning to her a different territory.  Id. at *2-3.  Following discovery, Defendant moved for summary judgment as to all three claims.

The Court’s Decision

The Court granted Defendant’s motion for summary judgment as to the constructive discharge claim, but denied summary judgment as to the pregnancy discrimination and retaliation claims. First, the Court explained that to establish a Title VII disparate treatment discrimination claim, the EEOC must prove that the discrimination the claimant suffered constituted an adverse employment action, and that Defendant acted with discriminatory intent.  Id. at *7 (citations omitted).  Further, proof of discriminatory intent may be shown by either direct or circumstantial evidence.  Id. at *8.

Applied here, the Court noted that despite requesting a sales lead for approximately a month and a half prior to her maternity leave, the Intervenor Plaintiff’s supervisor did not assign one to her territory until almost two months after she returned from leave.  As such, the Court held that a reasonable jury could find that the loss of this income-producing opportunity constituted an adverse employment action.  Further, the Court found there was direct evidence of intentional discrimination when the supervisor announced on a conference call that he would not be assigning the Intervenor Plaintiff’s new sales leads because of her “condition,” in reference to her pregnancy.  Id. at *11.  Accordingly, the Court held that Defendant was not entitled to summary judgment on the EEOC’s discrimination claim.

Turning to the second claim asserting retaliation, the Court opined that the EEOC must prove that: (1) the claimant participated in an activity protected by Title VII; (2) she suffered from an action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination; and (3) there is a causal connection between the participation in the protected activity and the action. Id. at *12 (citations omitted).  Here, the EEOC alleged, in part, that Defendant retaliated against the Intervenor Plaintiff by paying her less commission on a deal than she should have received as a result of her maternity leave.  Defendant argued that the Intervenor Plaintiff did not originate the deal and participated minimally, and therefore she was not entitled to the sales commission.  The Court concluded that summary judgment on the retaliation claim would be improper, since there was a question of fact as to whether she was entitled to the commission bonus.

Finally, the Court granted Defendant’s motion for summary judgment regarding the constructive discharge claim.  The Court explained that to establish a claim for constructive discharge, the EEOC must demonstrate that the employer deliberately imposed conditions that were, “so intolerable that a reasonable person in [the employee’s position] would have been compelled to resign.” Id. at *18 (internal quotation marks and citation omitted).  Defendant argued that, based on the evidentiary record, no reasonable jury could find that the Intervenor Plaintiff’s work environment deteriorated to the point of becoming “intolerable.”  Id. at *19.  Viewing the totality of the evidence in Plaintiffs’ favor, the Court opined that the EEOC’s best theory for establishing the constructive discharge claim was that from the time that the Intervenor Plaintiff disclosed to her supervisor that she was pregnant, he took steps to siphon off income-producing opportunities from her sales pipeline, until her commission prospects were so diminished that she would have no choice but to resign.  However, the Court held that even this scenario was not enough to meet the, “intolerable  work environment,” standard.  Id. at *20-21. Therefore, the Court granted Defendant’s motion for summary judgment on the constructive discharge claim.

Implications For Employers

From a factual perspective, this ruling illustrates potential pitfalls for employers who elect to modify the working conditions of pregnant employees upon their return to work, as well as issues relative to non-streamlined compensation structures such as commissions and bonuses.

From a legal perspective, this ruling demonstrates that pregnancy discrimination lawsuits often contain complex factual considerations, resulting in courts’ hesitancy to grant summary judgment where, as here, a jury could find both parties’ positions to be meritorious.

Accordingly, prudent employers should establish thorough pregnancy leave policies that account for pre-leave and post-leave circumstances that may impact working conditions in their sectors.

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

By Alex W. Karasik

Seyfarth Synopsis:  In EEOC v. Konos, Inc., Case No. 1:20-CV-973 (W.D. Mich. June 3, 2021), the EEOC filed a lawsuit on behalf of a claimant against her employer, alleging it subjected to her to a hostile work environment and retaliation after she was sent home for complaining about a supervisor’s sexual harassment.  The Court denied the employer Defendant’s motion to dismiss both claims, holding that when taking all factual allegations as true, the EEOC’s complaint sufficiently plead violations of Title VII of the Civil Rights Act of 1964.

This ruling exemplifies that based on the low notice pleading threshold under Rule 8(a)(2), it is very difficult for employers to dispose of EEOC-initiated lawsuits at the responsive pleading stage.

Factual Background

The claimant started working for Defendant on or about April 12, 2017 as an egg inspector at its facility in Martin, Michigan.  Id. at 1.  Shortly thereafter, a supervisor allegedly began sexually harassing the claimant.  The harassment included text messages soliciting an intimate relationship, which she rejected.  In addition, he sexually assaulted her on three separate occasions, including forced kissing, groping, and vaginal penetration.  The claimant reported the assault to Defendant and the police, and obtained a personal protection order against him.  The supervisor was prosecuted and pled no contest to fourth degree criminal sexual conduct.  After the claimant complained about the alleged sexual harassment, Defendant the sent the claimant home, and she never returned to work.

On October 9, 2020, the EEOC filed a lawsuit on behalf of the claimant alleging that: (1) the Defendant violated Title VII of the Civil rights Act of 1964 by subjecting the claimant to a hostile work environment, and (2) that it violated Title VII by retaliating against her for objecting to and complaining about a sexually hostile work environment.  Id. at 2.  Defendant moved to dismiss both claims, arguing that the EEOC failed to allege specific facts demonstrating a hostile work environment based on sexual harassment, and failed to allege specific facts to establish a claim for retaliation under Title VII.

The Court’s Decision

The court denied Defendant’s motion to dismiss.  First, the Court explained that to succeed on a hostile work environment claim, a plaintiff must show that (1) he or she was a member of a protected class; (2) he or she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the charged sexual harassment created a hostile work environment; and (5) the employer is liable.  Id. at 4 (citation omitted).

Defendant argued that the EEOC did not sufficiently plead the fourth and fifth elements of a hostile work environment claim.  In regards to the fourth element, the Court explained that a hostile work environment occurs, “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”  Id. at 4 (citation omitted).  Applied here, the Court noted that the EEOC alleged that the claimant was subjected to unwanted text messages, forced kissing, groping, and vaginal penetration by a supervisor.  Rejecting Defendant’s argument, the Court held that while these instances of sexual harassment varied in their severity, when viewed in their totality, they were sufficient to state a claim for relief under Title VII.

Turning to the fifth element of a hostile work environment claim, Defendant argued that in order to establish this element, the EEOC must prove either a supervisor participated in the harassment that created the hostile work environment, or that the employer was negligent in discovering or remedying the harassment.  The Court explained that although the EEOC did not specify in its complaint whether the supervisor was claimant’s actual supervisor, employer liability may still be established if the employer knew or should have known of a non-supervisor’s charged sexual harassment, and failed to implement prompt and appropriate corrective action.  Id. at 5.  The EEOC alleged that after the claimant complained about the harassment, she was sent home.  Accordingly, this employer response (taken as true for Rule 12(b)(6) purposes) manifested indifference in light of the alleged harassment regardless of whether he was claimant’s direct supervisor, and thus satisfied the fifth element. The Court therefore denied Defendant’s motion to dismiss the hostile work environment claim.

The Court also rejected Defendant’s argument that the complaint failed to allege specific facts to establish a claim for retaliation under Title VII.   Id. at  6.  To establish a claim for retaliation under Title VII, a plaintiff must establish (1) an individual has engaged in protected activity; (2) the individual suffered a materially adverse employment action; and (3) a causal link between the protected activity and the adverse employment action.  Id. (citation omitted).  Defendant argued that the EEOC failed to establish any of these elements.

In regards to the first element, the Court noted that a protected activity includes “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices.”  Id. at 6 (citation omitted).  Since the EEOC alleged that the claimant reported the sexual harassment to Defendant, the Court held that the first element was established.  Second, the Court held that the EEOC properly plead a materially adverse employment action since the claimant was sent home.  Third, the Court held that the EEOC sufficiently plead that a causal link existed between the protected activity (complaining about harassment) and the adverse employment action (being sent home).  Accordingly, the Court denied Defendant’s motion to dismiss the retaliation claim.

Implications For Employer

For employers facing EEOC-initiated litigation, this ruling illustrates that at the pleading stage, courts will not wade into the merits of whether each element of a claim are proven, but rather will analyze whether they were sufficiently alleged.  Accordingly, when preparing a responsive pleading strategy, employers should consider this ruling to assess whether filing a motion to dismiss will be a cost effective defense tactic.

By 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 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 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: 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: 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.