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

We are pleased to offer our loyal blog readers our analysis of the five most intriguing decisions in 2015 relative to EEOC lawsuits, along with a pre-publication preview of our annual report on developments and trends in EEOC-initiated litigation. That book, entitled EEOC-Initiated Litigation: Case Law Developments In 2015 And Trends To Watch For In 2016, is a thorough analysis of the lawsuits that were filed by the EEOC in FY2015 (spanning October 2014 through September 2015), and the major decisions impacting EEOC litigation. We have analyzed those filings and decisions to bring our readers the most up-to-date examination of trends affecting the EEOC’s enforcement agenda. As always, we believe that the best way for any employer to stay out of the EEOC’s cross-hairs is to develop a deep understanding of its enforcement priorities. We hope that this year’s publication gives employers the tools they need to do exactly that.

This year we have expanded our analysis to look at new case filings and important decisions on an industry-by-industry basis. This year’s book includes individual sections devoted to enforcement trends and significant decisions impacting employers in the retail, hospitality, manufacturing, healthcare, construction/national resources, and business services industries. That analysis can be found here.

The full publication will be offered for download as an eBook. To order a copy, please click here.

We like to end our year with a look back at some of the most interesting decisions of the year. We had no trouble picking those cases for 2015. The U.S. Supreme Court handed down three decisions in 2015 that we believe will significantly impact EEOC-initiated litigation for years to come. There were also some especially intriguing decisions out of the lower courts that we believe shed light on how the EEOC will adjust tactics to pursue its enforcement agenda in 2016 and beyond.

Here is our list of the top five most interesting decisions of 2015.

  1. Mach Mining v. EEOC, 135 S. Ct. 1645 (2015).

Hands down, the most interesting, exciting, and game-changing decision of the year was the U.S. Supreme Court’s decision in Mach Mining v. EEOC. Sometimes we have to guess as to how significantly a single decision will shape the future of EEOC litigation. With Mach Mining, there is no wondering; it will have a major impact. We have devoted a special section of this year’s book to this decision, including a look back at the important cases leading up to it, and the first decisions from the lower courts that offer a glimpse as to how Mach Mining will be applied in the years to come. That section begins here.

What makes this decision so intriguing? It single-handedly dismantled the EEOC’s efforts to immunize its pre-suit conduct from judicial review. The Commission has been arguing for years in lawsuits around the country that judges are simply not authorized to review its pre-suit conduct. That includes the statutorily-required duty to conciliate a charge before bringing suit in court. In theory, meaningful conciliation would allow employers the opportunity to resolve EEOC charges before a lawsuit is filed. In practice, employers too often see the EEOC making a take-it-or-leave-it offer and then proceeding directly to litigation.

The Supreme Court rejected the EEOC’s position, holding that there is a “strong presumption favoring judicial review of administrative action.” Id. at 1651. Indeed, without the power to review the EEOC’s conciliation efforts, “the Commission’s compliance with the law would rest in the Commission’s hands alone.” According to the  Supreme Court, the point of judicial review is “to verify the EEOC’s say-so,” and to “determine that the EEOC actually, and not purportedly” met its obligations. Id. at 1653. But perhaps even more important for employers, the Supreme Court acknowledged that conciliation is a crucial step in realizing Title VII’s legislative goals, which make cooperation and voluntary compliance the “preferred means” of bringing employment discrimination to an end. Id. at 1651.

This decision is still only a few months old, and the lower courts are only just beginning to grapple with its application. Despite the Supreme Court’s strong stance in favor of judicial oversight, it outlined a fairly limited view of what that oversight would look like. Some courts have interpreted the decision narrowly, applying a minimalistic review of the EEOC’s actions. Other courts have taken a more expansive view, scrutinizing how the EEOC conducted its conciliation efforts and sending the Commission back to the drawing board if those efforts did not satisfy what Title VII requires. We will continue to monitor these developments for our loyal blog readers.

  1. Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015).

On March 25, 2015, the Supreme Court issued another decision that we expect will have far-reaching effects on EEOC litigation. In Young v. United Parcel Service, Inc., the Supreme Court declined to follow the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues.. In that guidance, the EEOC had sought to apply a “most-favored nation” approach to reasonable accommodations offered to pregnant employees.

This approach was summarily rejected by the Supreme Court in Young. Although the Supreme Court acknowledged that that the rulings, interpretations, and opinions of an agency charged with enforcing a particular statute are often given deference, here the Court was unimpressed by the thoroughness of the EEOC’s consideration of the issues and declined to give the EEOC’s guidance any weight. This decision leaves employers scratching their heads as to how they should interpret and apply the EEOC’s guidance post-Young. Our more fulsome review of the Young decision and its potential aftermath can be found here.

  1. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).

The Commission’s guidance on religious garb and grooming fared much better before the Supreme Court. In Abercrombie & Fitch Stores, Inc., the Supreme Court held that an employer that is without direct knowledge of an employee’s religious practice can be liable under Title VII for religious discrimination if the need for an accommodation was a motivating factor in the employer’s decision, whether or not the employer knew of the need for a religious accommodation. “[T]he rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” Id. at 2033. Although the EEOC’s guidance was not specifically mentioned in the Court’s decision, this rule is consistent with the “knowledge” requirement set forth in the EEOC’s guidance.

Like Mach Mining, this is a new decision that the lower courts are only just beginning to apply. Religious discrimination is a hot-button topic for the EEOC, so the repercussions of the Abercrombie decision will be an important issue to watch in 2016 and beyond. Our discussion of Abercrombie and other religious discrimination developments can be found here.

  1. EEOC v. Doherty Enterprises., Inc., No. 14-CV-81184, 2015 U.S. Dist. LEXIS 116189 (S.D. Fla. Sept. 1, 2015).

One of the most interesting decisions in 2015 to come from the lower courts was out of the U.S. District Court for the Southern District of Florida. In EEOC v. Doherty Enterprises., Inc., the court arguably recognized an entirely new cause of action under section 707(a) of Title VII, which would allow the EEOC to bring pattern or practice suits without having to engage in any of the pre-suit obligations mandated by other sections of Title VII. In effect, this would be an end-run around the Mach Mining decision because the question decided in that case – whether courts have the power to oversee how the EEOC satisfies its pre-suit obligations – is irrelevant if the EEOC can skirt those obligations altogether.

The arguments and legislative history that led to this decision are complex but well worth a read. We have included an expanded discussion of this decision in this year’s book plus a discussion of a similar case from the Northern District of Illinois that came to the opposite conclusion (a conclusion that was later affirmed by the Seventh Circuit). That discussion is available here. The EEOC has now persuaded one court that Title VII gives it the authority to bring a pattern or practice claim against employers who “resist” the full enjoyment of the rights provided for by Title VII. If other courts agree with this decision, it could become a powerful new weapon in the EEOC’s enforcement arsenal.

  1. R.G. & G.R. Harris Funeral Homes, Inc., No. 2:14-CV-13710-SFC-DRG (E.D. Mich. filed Sept. 25, 2014).

Finally, we have chosen a decision out of the U.S. District Court for the Eastern District of Michigan as one of our top five most interesting cases of the year. In R.G. & G.R. Harris Funeral Homes, Inc., the EEOC secured its most explicit endorsement to date of its theory that discrimination against transgender employees is tantamount to discrimination on the basis of sex because it is based on an employer’s gender-based expectations, preferences, or stereotypes. This theory has a fascinating history.

As recently as 2010, the EEOC was turning down employees who came to them with charges of transgender discrimination, which even the EEOC did not think were covered by Title VII. But that quickly changed after the EEOC issued its own decision in a case that (arguably) arose out of its own power to hear and decide disputes brought by federal agency employees. This is a particularly interesting “case study” in how the EEOC uses all of the tools at its disposal to expand the law to fit its enforcement priorities. Our readers can read all about it here.

Now, along with its own decision, the EEOC has a federal court decision to point to in support of its new theory. On April 21, 2015, the court in R.G. & G.R. Harris Funeral Homes, Inc. denied the employer’s motion to dismiss the EEOC’s complaint, holding that “even though transgendered/transsexual status is currently not a protected class under Title VII, Title VII nevertheless ‘protects transsexuals from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.’” Id. at 599 (quotations omitted)., The Court went on to observe, however, that the EEOC “appears to seek a more expansive interpretation of sex under Title VII that would include transgendered persons as a protected class,” and noted that “there is no Sixth Circuit or Supreme Court authority to support the EEOC’s position that transgendered status is a protected class under Title VII.” Id.

These decisions and others made 2015 an exceptionally fascinating year for developments in EEOC litigation. And because these decisions often raised more questions than they answered, it portends an even more interesting year to come. We look forward to bringing those developments to our readers’ attention as they happen. We wish all a happy and safe New Year!

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