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.

By Gerald L. Maatman, Jr.Christopher J. DeGroffMatthew J. Gagnon, Ala Salameh

Seyfarth Synopsis: Stepping into a new year always gives one a chance to reflect on the lessons and trends of the prior year. In that spirit, we are pleased to present our annual selections for the five most intriguing developments in EEOC litigation during 2019, as well as a preview of our annual report on developments and trends in EEOC-initiated litigation. This year’s book, entitled EEOC-Initiated Litigation: FY 2019, examines the EEOC’s filings in 2019, and analyzes the significant legal decisions and trends impacting EEOC litigation in 2020. We hope that employers will benefit from this deeper dive into how the EEOC’s priorities play out in litigation, and in the process, undertake optimal compliance strategies during FY 2020 and beyond.

The EEOC prosecutes dozens of cases across the country annually guided by its strategic enforcement priorities and objectives. Each year, we analyze those new case filings and legal decisions handed down by courts across the country. That analysis sheds light on new areas of focus for the EEOC’s ever-changing enforcement agenda. Our analysis is published in a comprehensive yearly report entitled EEOC-Initiated Litigation: FY 2019. In the report, we outline how the Commission interpreted and pursued its objectives this year and identify noteworthy trends.

Our goal is to assist clients in utilizing this information to ensure compliance with existing laws, and to protect themselves against becoming future targets of enforcement. Our annual report is designed for HR professionals, corporate counsel, and other corporate decision-makers. We hope that it continues to provide useful and helpful commentary and analysis.

A preview of this year’s book is available here.The full publication will be offered for download as an eBook. To order a copy, please click here.

Now, without further ado, we are pleased to present our list of the top five most intriguing developments of 2019:

Intriguing Development 1: LGBT Discrimination Reaches The Supreme Court

The U.S. Supreme Court heard oral arguments for three cases relating to LGBT employee protections including R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda.

In these three cases, the Supreme Court will finally decide whether transgender and sexual orientation discrimination are prohibited under Title VII as forms of sex discrimination. Harris Funeral Homes involves a claim of transgender discrimination. Bostock and Zarda involve claims of sexual orientation discrimination. All three were argued on the same day – the first week of the Supreme Court’s 2019 term – in two arguments (Bostock and Zarda were argued together). During oral argument, the Supreme Court’s four liberal justices appeared to voice support for a broader interpretation of Title VII, which would include these types of discrimination, while the Court’s conservative Justices expressed concern that it should be Congress, not the courts, that make this determination.

However, one of the newest conservative Justices, Justice Gorsuch, called this a “really close” question, and at times appeared sympathetic to the view that discrimination on the basis of gender identity or sexual orientation is necessarily discrimination on the basis of sex. It is therefore impossible to predict how the Supreme Court will rule on this issue. However, when these cases are decided, they will likely have a significant impact on the American workforce and society at large.

Intriguing Development 2: Limits To EEOC’s Attempts To Police Employers’ Use Of Arrest And Conviction Records

On April 25, 2012, the EEOC issued its enforcement guidance concerning the use of arrest and conviction records in employment decisions. That guidance purported to direct employers across the country that they may not deny someone employment due to criminal history information without considering the nature and gravity of the offense, the time passed since the conviction or completion of the sentence, and the nature of the job held or sought. That guidance was immediately challenged in court by the State of Texas, which argued that it had standing because it was an employer subject to the guidance just like any other employer.

In State of Texas v. EEOC, the Fifth Circuit held that the EEOC is limited in its rulemaking and enforcement powers with respect to Title VII; it may issue procedural regulations implementing Title VII, but it may not promulgate substantive rules. According to the Fifth Circuit, the guidance was a final agency action and a substantive rule subject to the Administrative Procedure Act’s notice and comment requirement, and that the EEOC overstepped its authority in issuing the guidance as it did. The end result – the Fifth Circuit ruled that the EEOC may not treat the guidance as binding in any respect. This decision could have a lasting impact on the EEOC’s rulemaking authority, and how it approaches that authority.

Intriguing Development 3: Preemptive Disability Determination Theory Blocked

In 2019, the Eleventh Circuit held that an employer’s fear that an employee might contract Ebola during a planned, future trip to Ghana, could not give rise to a claim of disability discrimination. In EEOC v. STME, LLC, the Commission argued that the employee should be regarded as having a disability because her employer believed that she would become disabled in the future. However, the Eleventh Circuit held that the “regarded as having” a disability prong of the ADA requires that a disability be a present physical or mental impairment. That prong did not extend to an employer’s belief that an employee might contract or develop an impairment in the future. In other words, there is no disability discrimination when an employee does not have a disability at the time of termination.

Intriguing Development 4: Joint Employment And Temporary Workers

In EEOC v. Global Horizons, Inc., the Ninth Circuit held as a matter of first impression that it would apply the common law agency test to determine joint employer liability under Title VII. Further, the Ninth Circuit expressly rejected application of the test applied to determine joint-employer liability under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act because those statutes intentionally expanded the definition of employment beyond the common law understanding.

Under the common law test, the principal guidepost is the extent of control that the putative employer exercises over the details of the work of the putative employee. Applying that conception of joint employment, the Ninth Circuit reversed the decision of the District Court, which held that fruit growers employing foreign guest workers in their orchards were not responsible for issues relating to those employees’ housing, transportation, and meals. According to the Ninth Circuit, because the foreign guest worker program places the obligation of providing those benefits on the owners of the farms where the temporary foreign workers work, the fruit growers retained control over those aspects of employment.

Intriguing Development 5: The Whirlwind Of EEOC Pay Data Collection

On March 4, 2019, in National Women’s Law Center v. Office of Management and Budget, the U.S. District Court for the District of Columbia vacated the Office of Management and Budget’s decision to stay implementation of the Obama-era rule that required employers to submit to the EEOC detailed pay data as part of their EEO-1 reporting obligations. That rule had come under fierce opposition by pro-business groups, prompting the OMB, per its authority under the Paperwork Reduction Act, to stay the rule as one of the first regulatory reversals under the Trump administration. But the District Court held that the OMB’s decision to stay the regulation was unsupported by any analysis and lacked the reasoned explanation that the administrative procedure act requires.

The District Court then ordered the EEOC to resume pay data collection under the Obama-era rule for the 2017 and 2018 reporting years. The District Court continues to monitor and exercise control over the EEOC’s efforts to collect this information, and on October 29, 2019, the court ordered the EEOC to continue its collection activities through January 31, 2020. The end result is that the EEOC at the end of this process will have access to two years of pay data from a broad swath of employers across the country. What, if anything, it chooses to do with that data once that collection is complete, is anyone’s guess, and one of the issues employers should look out for in FY 2020 and beyond.

Summing It All Up

FY 2019 presented a series of challenges for the EEOC. Between a four-month political stalemate resulting in a loss of quorum, and a roughly one-month government shutdown, the Commission was not firing on all cylinders for a significant part of the year. However, despite these setbacks, the EEOC has continued to pursue aggressive litigation and close out settlements at high rates. New political appointees at the EEOC are now settled into their roles. This means that FY 2020 is likely to finally reveal the changes in the EEOC’s strategic direction employers can expect under the Trump administration.

We will of course continue to monitor these developments. And we look forward to sharing our thoughts and analysis in the year to come.

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

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

Seyfarth Synopsis: On November 19, 2019, the EEOC released its inaugural “Agency Financial Report” (“AFR”)  for Fiscal Year 2019 (here). Substantively, the AFR is a data compilation regarding the EEOC’s financial health, initiatives, and guiding principles. The AFR is an important guide to how the EEOC spent its budget in FY 2019, and is therefore a useful harbinger of the Commission’s strategic direction and enforcement priorities in FY 2020 and beyond.

An EEOC led by its new Chair, Janet Dhillon, is starting to make some changes. One of those changes was released today in the form of the EEOC’s inaugural Agency Financial Report (“AFR”), which replaces the combined Performance Accountability Report (“PAR”) that used to be published in November of each year. The EEOC explains in the 2019 AFR that it has decided to separate the information that had been contained in the combined PAR into two separate reports.

The AFR will continue to be published in November and will focus on financial results and a high-level discussion of performance results. A new Annual Performance Report (“APR”) will be published in February 2020 in coordination with the EEOC’s Congressional Budget Justification. The APR will report on the EEOC’s progress achieving the goals and objectives in the agency’s Strategic Plan and Annual Performance Plan, which is issued as part of the OMB’s budget request, along with performance and program results achieved for the previous fiscal year. Until the APR is published in February, we must look to the AFR as the most reliable guide to how the EEOC’s new leadership views the agency’s mission and intends to reach its goals for the coming year.

FY 2019: Political Developments Impact The EEOC

The EEOC leadership is appointed by the President and confirmed by the Senate, which inherently ties the Commission to the shifting political climate in Washington (see more here). The EEOC’s leadership includes the Chair, Vice Chair, and three Commissioners. Of the five members, there must be at least three acting Commissioners to satisfy quorum and exercise their powers. A vacancy was created due to the departure of Commissioner Feldblum, the first openly gay Commissioner, who was not re-confirmed by the Senate due to her perceived positions on LGBT rights issues. As a result, the Commission lacked quorum between January 2, 2019 and May 15, 2019. Because of the lack of quorum and the 35-day government shutdown, the Commission experienced a marked decline in filings across the nation relative to years prior, the impacts of which pervade the discussion of the EEOC’s financial performance in the AFR.

A Slight Drop In Recoveries

During FY 2019, the EEOC recovered more than $486 million for alleged discrimination victims. This represents a 4% decrease from $505 million in FY 2018 (see more here), and is roughly on par with the $484 million recovered during FY 2017 (see more here). In particular, the relief obtained through mediation, conciliation, and settlement declined from $354 million in FY 2018 to $347 million in FY 2019. Further, litigation recoveries dropped to $39.1 million in FY 2019 from $53.6 million in FY 2018 (the FY 2017 and 2016 numbers were $42.4 million and $52.2 million respectively).

Progress Reducing The Charge Backlog

Since FY 2017, the EEOC has made concerted efforts to process the significant backlog of pending charges. Despite the 4-month period when the EEOC lacked a quorum during FY 2019, those efforts remained strong. During FY 2018, Acting Chair Lipnic honored her commitment by addressing the backlog and reported a 19.5% decrease from FY 2017. In FY 2019, the Commission reduced the charge workload by an additional 12.1%. Because of these compounded initiatives, the total number of pending private sector charges was 43,850 – the lowest reported backlog number in 13 years. The ability to continue to drive down the backlog during FY 2019 was attributed, in part, to technological advances, including modernization of the Public Portal, Respondent Portal, and Digital Charge System. Collectively, these tools allow charging parties to self-screen their concerns and determine which federal agency is best suited to address their concerns.

Prioritizing Education & Outreach

One of the Commission’s six strategic enforcement priorities is preserving access to the legal system. In its FY 2019 Congressional Budget Justification (here), the EEOC indicated it would pursue greater access through education and outreach. The EEOC conducts both free and fee-based events targeting particularly vulnerable communities that may be unfamiliar with employment law protections (e.g., low-skilled workers, new immigrant workers, etc.). This year, the White House launched the Initiative on Historically Black Colleges and Universities (“WHIHBCU”), and the Initiative on Asian Americans and Pacific Islanders (“WHIAPPI”). In conjunction with the White House programs, the EEOC hosted 76 outreach events in concert with WHIHBCU programs drawing in 6,987 attendees, and 142 WHIAPPI events with 22,526 attendees. Further, roughly one third of the total outreach targeted vulnerable workers and underserved communities, amounting to 1,298 outreach events involving 112,410 participants. The EEOC reports that it prioritizes strong outreach efforts, particularly to disenfranchised workers, to promote greater understanding and communication between the Commission and the U.S. labor force.

Implications For Employers

Despite the ongoing political upheaval this year, the EEOC remains committed to pursuing its mission and increasing enforcement activity. Our fiscal year-end analysis, and the EEOC’s own AFR, reflect the EEOC’s continuing commitment to robust efforts to quickly process charges, bring and pursue enforcement litigation, and obtain litigation and settlement recoveries on behalf of workers. We will continue to monitor trends and developments in the EEOC’s mission, including the types of cases that are filed and how the agency chooses to fight those lawsuits in court. As we do every year, we look forward to providing you an in-depth look at those trends and developments in January.

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

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

Seyfarth Synopsis: The Trump Administration has succeeded in replacing several open  positions within the upper echelons of the EEOC. Employers are anxiously looking for any sign as to how this slate of leadership will put its stamp on the agency’s mission and, more importantly, which employers and business practices the agency will most heavily target. But even though the names and faces are now known, what changes they will bring in terms of enforcement priorities and tactics remain elusive.

The Trump Administration is now well into its third year. And although it has recently filled most of the open positions at the headquarters of the EEOC, including a new Chair and a new General Counsel, the impact that will have on the EEOC’s mission remains largely uncertain. Employers may have hoped for greater clarity in terms of this Administration’s priorities for the agency. The agency’s new leadership has not been vocal about its intentions, and the new lawsuits the EEOC filed in FY 2019 offer few clues.

The term of former Commissioner, Chai Feldblum, expired at the end of the last calendar year, leaving the Commission without a quorum to make major decisions. That, along with heightened political division in Washington (including a 35-day government shutdown), caused the EEOC’s litigation activity to come to an unanticipated standstill. Despite this prolonged interruption, the Commission’s litigation program boasted three-digit filing numbers toward the end of the fiscal year.

As we have come to expect, the EEOC ended its fiscal year with increased activity, filing 52 lawsuits during September alone compared to the total of 12 filings during the entire first quarter of 2019. But in the end, the agency’s end-of-year rush and total number of filings did not come anywhere near the numbers posted last year. At the time of publication of this blog posting, the EEOC had filed 149 total cases in FY 2019, which includes 141 merits lawsuits and 8 subpoena enforcement actions. This total number of filings is significantly less than the last two years (see here and here), and is more in line with 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 EEOC priorities. So the where of EEOC filings not only shows which areas of the country are most heavily targeted, but also offers a clue as to which priorities the EEOC is focusing on for the coming year. The following chart shows the number of filings by EEOC district office.

The most noticeable trend of FY 2019 is the marked decrease in coast-to-coast filings that we have seen compared to past years. Leading the pack in new filings are the Charlotte and Philadelphia district offices, with 15 and 14 filings respectively. The Chicago district office is usually at the head of the pack, but has been bumped to the shared number three spot along with New York and Houston at 12 filings each. The numbers for the other district offices are also fairly close to on par with what we have come to expect. This year, the Indianapolis, St. Louis, and Phoenix district offices posted comparatively mid-range numbers. This middle of the pack performance is fairly typical of those district offices. The Dallas and Los Angeles district offices were outliers on the lower end of the spectrum. Los Angeles filed just 8 new lawsuits this year compared with 17 last year, and Dallas filed just 3 compared to 10 last year.

Analysis Of The Types Of Lawsuits Filed In FY 2019

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. But here again, the numbers – when considered on a percentage basis – are largely in line with prior years, confounding attempts to ascertain where the new leadership will focus the agency’s attention in FY 2020 and beyond. The graphs set out 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, etc.) 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 broadly consistent compared to FY 2018. Title VII cases once again made up the majority of cases filed, making up 60% of all filings (as compared with 55% in FY 2018). ADA cases also made up a significant percentage of the EEOC’s filings, totaling 37% this year, as compared to 42% in FY 2018. This too is fairly typical. There were only 7 age discrimination cases filed in FY 2019, which is a relatively small number. But again, when compared on a percentage basis, this does not represent a large shift in focus for the EEOC (5% in FY 2019 on par with the 5% in FY 2018).

Change At The Top

By any measure, FY 2019 was a “transition” year for the EEOC. The Commission’s leadership team include five members: the Chair, Vice Chair, and three Commissioners, collectively appointed by the President and approved by the Senate. Of the five Commissioners, no more than three may be members of the same political party, a requirement promising bipartisanship outliving administration changes. Janet Dhillon, the current EEOC Chair, was originally selected for that role by President Trump in June 2017, but was not approved by the Senate until FY 2019, taking office on May 15, 2019. She joined two Obama-appointed Commissioners, Victoria Lipnic and Charlotte Burrows, a Republican and a Democrat respectively. Two Commissioner positions remain vacant.

President Trump had originally re-nominated former Commissioner Chai Feldblum for a third term. As a bipartisan federal agency, it is customary for the President to nominate Commissioners who are members of both parties. However, Feldblum was the first openly gay member of the Commission, and a champion of LGBT rights. Although President Trump re-nominated Feldblum, she was not confirmed by the Senate due to her perceived views on those issues, leading to her term’s expiration on January 2, 2019. The EEOC was therefore left with only two Commissioners until Dhillon took her seat in May.

Three acting Commissioners are required for the EEOC to exercise its powers. Between the expiration of Feldblum’s term in January and Dhillon’s appointment nearly four months later, the Commission lacked a quorum, thereby hindering its ability to act. This may, in part, explain the drop in merits suits and subpoena enforcement actions in FY 2019. The government shutdown, which lasted from December 22, 2018 to January 25, 2019, may also have played a part. Upon Dhillon’s appointment, and despite two remaining vacancies, the three-member Commission satisfies quorum and has since resumed full operations at the EEOC.

Appointment of the new Chair came on the heels of thirty business organizations, including the U.S. Chamber of Commerce and American Trucking Associations, imploring Congress and the President to confirm then nominee Dhillon with expediency. Absent a quorum, the EEOC was unable to respond to newly issued court decisions and regulations impacting employers in costly ways. Among them was the March 4, 2019 decision issued by Judge Tanya Chutkan of the U.S. District Court for the District of Columbia, which revitalized the Obama-era requirement that employers report W-2 wage information and total hours worked for all employees by race, ethnicity, and sex within 12 proposed pay bands (EEO-1 Component 2 pay data).

Now that the EEOC has a quorum again, we may be starting to glimpse how things may start to change at the agency. On September 11, 2019, the EEOC announced that it is not renewing its request for authorization to collect Component 2 pay data because of the burden that collection imposes on employers. Although this change in policy came too late to prevent employers from having to submit such data this year (by today), this may be one of the first indications employers have seen as to how the new leadership may shake things up in years to come.

Implications For Employers

Commissioner Lipnic’s term expires on July 1, 2020 which could result in a loss of quorum again if she is not re-nominated and confirmed for her position, or otherwise replaced by a Trump nominee. This leaves open the possibility of three Commissioner appointments by President Trump during the upcoming election year. We fully expect that the EEOC’s future composition and the broader political climate will have major implications for the Commission’s enforcement priorities.

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 2019 to carry employers through the new year.

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 the latest battle of the multi-year showdown between the State of Texas and the EEOC – whereby Texas asserted that the EEOC’s 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” (“Guidance”) interfered with its authority to limit the hiring of felons – the U.S. Court of Appeals for the Fifth Circuit affirmed most  parts of an injunction that the U.S. District Court for the Northern District of Texas entered in favor of Texas, which blocked the EEOC and the U.S. Department of Justice (“Defendants”) from enforcing the Guidance.  State of Texas v. EEOC et al., No. 18-10638, 2019 U.S. App. LEXIS 23498 (5th Cir. Aug. 6, 2019).

This ruling serves as a major roadblock for the EEOC in circumstances where the Commission attempts to infringe upon states’ rights by issuing an administrative guidance, and can further be considered a game-changer in the criminal background check litigation landscape.

* * *

Case Background

As we have blogged about extensively in the past (here, here, here, and here), in April 2012 the EEOC issued the Guidance citing data which suggested that blanket bans on hiring individuals with criminal records disproportionately impacted minorities.  Id. at *2.  Texas brought two causes of action against the EEOC after an individual who had been rejected for a State job filed a complaint with EEOC, challenging Texas’s no-felon hiring policy as having a disparate impact in violation of Title VII.  In the first cause of action, brought under the Declaratory Judgment Act (“DJA”), Texas asked for “a declaration of its right to maintain and enforce its laws and policies that absolutely bar convicted felons (or particular categories of convicted felons)” from specified jobs.  Id. at *7.  Texas also asked for an injunction that EEOC and the Attorney General “cannot enforce the interpretation of Title VII that appears in its Felon-Hiring Rule, nor . . . issue right-to-sue letters pursuant to that rule.”  Id.  In the second cause of action, brought under the Administrative Procedures Act (“APA”), Texas sought to set aside the Guidance, arguing that it exceeded the EEOC’s power under Title VII; was promulgated without notice and comment in violation of the APA; and was substantively unreasonable.

After the District Court dismissed the case for want of subject matter jurisdiction, a divided Fifth Circuit panel reversed, holding that Texas had Article III standing to challenge the Guidance, and that the Guidance was a final agency action eligible for judicial review under the APA.  Id. at *7-8.  However, the Fifth Circuit later withdrew its opinion, vacated the judgment, and remanded, noting that the District Court did not have a chance to apply the U.S. Supreme Court’s decision in United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016), which held that the issuance of judicial determinations produced “legal consequences.”  Id. at *12.

On remand, the District Court denied the EEOC’s renewed motion to dismiss for lack of jurisdiction, and following cross-motions for summary judgment, the District Court dismissed Texas’s DJA claim, “declin[ing] to declare that Texas has a right to maintain and enforce its laws and policies that absolutely bar convicted felons (or certain categories of convicted felons) from serving in any job the State and its Legislature deems appropriate.”  Id. at *8-9.  The District Court also declined to enjoin the EEOC from issuing right-to-sue letters.  Regarding the APA claim, the District Court granted Texas’s motion for summary judgment in part and denied the EEOC’s motion, holding “that the Guidance . . . is a substantive rule issued without notice and the opportunity for comment.”  Id.  As such, the District Court enjoined both the EEOC and the Attorney General from enforcing the EEOC’s interpretation of the Guidance against the State of Texas until the EEOC complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.  The District Court did not reach the questions of whether the EEOC has the power to promulgate a substantive rule interpreting Title VII, or whether the Guidance was substantively unreasonable.  The EEOC appealed, and Texas cross-appealed.

The Fifth Circuit’s Decision

In its recent ruling, the Fifth Circuit affirmed the District Court’s injunction, and vacated and dismissed Texas’s DJA claim.  Id. at *32.  First, the Fifth Circuit noted that it must decide two jurisdictional issues, including: (1) whether the Guidance was a final agency action subject to review; and (2) and whether Texas had standing to challenge the Guidance.  Id. at *9.  Regarding whether the Guidance was a final agency action, the Fifth Circuit noted that whether an action binds the agency is evident “if it either appears on its face to be binding[] or is applied by the agency in a way that indicates it is binding,” and further, that courts have looked for mandatory language to determine whether an agency’s action binds it and accordingly gives rise to legal consequences. Id. at *11 (citation omitted).

After conceding that the Guidance binds the EEOC staff to an analytical method in conducting Title VII investigations and directs their decisions about which employers to refer for enforcement actions, Defendants argued that legal consequences did not flow from the Guidance for three reasons.  First, Defendants argued that because EEOC had no power to bring a Title VII enforcement action against Texas, its Guidance has no legal consequences for the State.  Citing Hawkes, the Fifth Circuit rejected this argument, noting that legal consequences may flow from an “agency action even if “no administrative or criminal proceeding can be brought for failure to conform” to the action.  Id. at *16 (citation omitted).  Second, the EEOC argued that any legal consequences flow from Title VII, not the Guidance, because the Guidance’s interpretation of Title VII disparate impact liability has force of law only if a court presiding over an enforcement action agrees with the Guidance. The Fifth Circuit rejected this argument, holding whether the agency action binds the agency indicates whether legal consequences flow from that action.  d. at *18. Third, Defendants argued that the Guidance does not, and could not, create a safe harbor guaranteeing that the Attorney General will not sue an employee.  The Fifth Circuit also rejected this contention, explaining that whether the Guidance is final agency action does not hinge on whether a private or public employer challenges it, and that such an approach “would flout the Supreme Court’s repeated instruction to approach finality flexibly and pragmatically.”  Id. at *19. The Fifth Circuit thus held that the Guidance was a final agency action that it had jurisdiction to review.

 

Next, the Fifth Circuit addressed whether Texas had standing to sue the EEOC and the Attorney General to challenge the legality of the Guidance.  As the party invoking federal jurisdiction, the Fifth Circuit opined that Texas must establish Article III standing by showing that it has suffered an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.”  Id. at *20.   The Fifth Circuit held that because it was the object of the Guidance and had suffered multiple injuries as a result, Texas had constitutional standing.  In reaching this conclusion, the Fifth Circuit held that the Guidance deemed unlawful the hiring practices of multiple Texas agencies by rejecting across-the-board felon hiring screens, and it faced the possibility of investigation by EEOC and referral to the Attorney General for enforcement proceedings if it failed to align its laws and policies with the Guidance.  Id. at *21-22.

 

After finding that it had jurisdiction, the Fifth Circuit further addressed Defendants’ challenges to the scope and phrasing of the injunction.  Texas contended that the EEOC lacked power to promulgate the Guidance at all, and that instead of barring enforcement until the Guidance goes through notice and comment rulemaking, the District Court should have enjoined Defendants from treating the Guidance as binding.  Id. at *28-29.  The Fifth Circuit agreed that the Guidance was a substantive rule subject to the APA’s notice-and-comment requirement and that EEOC thus overstepped its statutory authority in issuing the Guidance, a conclusion that “follow[ed] naturally from its holding that the Guidance is a final agency action.”  Id. at *29-30.  However, the Fifth Circuit noted that the notice-and-comment aspect implied that the Guidance would stand if it went through that rulemaking process, which is used to promulgate substantive rules.  Accordingly, because the Guidance was a substantive rule, and the text of Title VII and precedent confirm that EEOC lacks authority to promulgate substantive rules implementing Title VII, the Fifth Circuit modified the injunction by striking the clause “until the EEOC has complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.”  Id. at *30.

Finally, the Fifth Circuit clarified that because an injunction must be framed so that those enjoined will know what conduct the court has prohibited, “to avoid any confusion,” it modified, “the injunction to clarify that EEOC and the Attorney General may not treat the Guidance as binding in any respect.”  Id. at *31.  In addition, the Fifth Circuit declined to consider the merits of Texas’s DJA claim since it affirmed the injunction.

Implications For Employers

This victory is a feather in the cap for state employers relative to the EEOC’s attempt to use an administrative guidance as a means to challenge state law.  Although many of the legal battles in this showdown between the State of Texas and the EEOC have involved heavy doses of procedure, this ruling provides an excellent blueprint for how to attack the EEOC when it promulgates substantive rules implementing Title VII, and those rules condemn state law.

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