By: Mark Wallin, Christopher DeGroff, and Gerald Maatman, Jr.

Seyfarth Synopsis:  The EEOC operates with limited resources, yet has the daunting responsibility of enforcing an alphabet soup of anti-discrimination laws.  The EEOC has become quite savvy at leveraging the press as a pulpit for publicizing its agenda, especially in litigation.  An employer need only visit the EEOC’s website to understand the role of media statement’s in the Commission’s enforcement process.

In the life-cycle of EEOC initiated litigation, the agency will almost invariably issue two media statements: one issued when the suit is filed, and another when the suit is resolved.  But not all media statements are the same.  Depending on the posture of the case, whether the case theories align with the EEOC’s strategic goals, and even how the EEOC views the employer, media statements can vary dramatically.  This post discusses what employers can expect from these releases, including typical language, elements, and timing.   

EEOC’s Publicity Philosophy

The EEOC has acknowledged that press coverage is part of its deterrent message and mission.  Notably, the Commission’s 2006 Systemic Task Force report provides that the “EEOC engage[s] in high impact litigation and publicity efforts that change the workforce status of affected groups and/or improve employment policies, practices, or procedures in affected workplaces.”  (See also opening statement of Sen. Alexander regarding the Commission’s apparent strategy, in filing certain lawsuits, to “achieve a maximum amount of publicity.”)

The EEOC’s litigation media statement is one of the tools in the Commission’s toolbox that it will wield with an aim to achieve its strategic enforcement goals.

Often Two Media Statements During The Course Of EEOC Initiated Litigation

In the life of a lawsuit initiated by the EEOC, there will ordinarily be two media statements. The first will be published when the suit is filed, and the second if the case is resolved.  Although all media statements published upon filing of a suit will have roughly the same cadence and tone, those published upon resolution can vary greatly.

Initial Media Statement

A media statement issued at the outset of the litigation tends to have a stern tone, regarding the alleged actions of the employer.  The statement will lead off with a general assertion of the legal claims lodged against employer, including the statute at issue.  For example, the statement may declare that a female employee suffered through a hostile work environment at the hands of her supervisor, in violation of Title VII.  The statement will then go on to recite the key allegations of discrimination, harassment, or retaliation proffered in the complaint.  These allegations are often delivered as fact, not issues that will be proven – or not – during the litigation.  Often times the statement will also describe the employer, perhaps sharing a website, states of operation, and a brief description of the work done by the business. Finally, the applicable District Director and/or one of the trial attorneys for the matter will offer a quote in the nature of a sound bite concerning the allegations, which will emphasize the Commission policy underlying its prosecution of the lawsuit.  In the most recent batch of EEOC filings, for instance, which occurred in September, combating sexual harassment and discrimination (“me too”) is the most common EEOC policy articulated. It is not surprising that many employers who have been the subject of the EEOC’s media statements have deemed the Commission’s tactics to be unfair and designed to apply extra-judicial pressure to settle litigation.

Media Statement Upon Resolution

When a suit is resolved, typically through an agreed upon consent decree (but occasionally after a rare trial win), the EEOC will publish yet another media statement.  The tone and content of this statement, however, can vary from highly aggressive to fairly measured, and can even verge on “friendly.”  The direction taken by the EEOC in this statement will depend largely on the resources devoted to the litigation, how contentious the litigation was, as well as whether the claims and allegations at issue align with the Commission’s strategic goals.  Some insight into the Commission’s process can be found in the Regional Attorney’s manual, published here. Notably, before the resolution of “significant litigation” a Regional Attorney is required to advise the Office of the General Counsel.  The Commission defines “significant” to mean a lawsuit “expected to involve significant monetary or injunctive relief”; “a favorable jury verdict or court decision”; or resolution which “is likely to receive national or significant local attention due to the notoriety of the defendant, ongoing media interest in the lawsuit and/or issues involved, or other factors that may have spurred significant media scrutiny.”  Whether or not the litigation is deemed “significant” may well play a role in the tone of the media release as well.

The more resources expended, and the more closely aligned the claims are with the Commission’s strategic goals, the more likely the EEOC will publish an aggressive media statement.  The hallmarks of such a statement will be not only the recitation of the most salacious of the allegations, but also a detailed description of the monetary and programmatic relief obtained in the consent decree.  For example, in a recent matter involving an Illinois restaurant, the EEOC’s media statement set forth that “numerous employees … were routinely sexually harassed by coworkers and managers, including offensive sexual comments, groping, physical threats, and, in one instance, attempted forced oral sex with a management employee.” The statement went on to detail the programmatic relief, followed by harsh admonishments from a Regional Attorney and District Director, specifically:

“Employers are responsible for preventing workplace harassment – and their failure to do so hurts both their employees and their bottom line,” said Andrea G. Baran, Regional Attorney for the EEOC’s St. Louis District. “Business owners and CEOs must be proactive and involved in making sure all managers and employees understand that harassment will not be tolerated, harassers will be punished, and those who report harassment will be protected from retaliation. Prevention starts at the top.”

Moving down the spectrum, the Commission may take a more measured tone where the litigation is less protracted and the claims are not necessarily consistent with its strategic goals. For instance, in a recent ADA case settled by the EEOC concerning an employer’s alleged discriminatory termination of a disabled employee, which had been pending less than a year, the media statement provided scant details concerning the claims brought. Further, after a short description of the programmatic relief contained in the lone statement of a Regional Attorney was far more benign:

“This settlement is both strong and just,” said Rudy Sustaita, regional attorney for the EEOC’s Houston District Office. “[The employer] has given us every indication that it intends to comply with the ADA in the future.”

And on occasion, it will even boarder on “friendly” — including a statement of appreciation to the employer for its cooperation in resolving the litigation. In a suit brought in Wisconsin, filed and settled within five months, the Commission was quoted as stating:

“We thank [the employer] for its commitment to settle this case before the sides incurred significant costs and its willingness to ensure a level playing field for its pregnant employees seeking job modifications, including light duty work, otherwise available to non-pregnant employees,” said EEOC Chicago Regional Attorney Gregory M. Gochanour. “The EEOC will continue to enforce the federal laws so that all pregnant employees have the same opportunities as non-pregnant employees to contribute to our thriving economy,” said Julianne Bowman, the EEOC’s District Director for the Chicago District Office.

Although “friendly” media statements are the exception, not the rule, the EEOC is more likely to publish such a statement to incentivize other employers to similarly resolve enforcement actions.

A Word On Conciliation Media Statements

Historically, the EEOC has generally issued media statements for lawsuits only, as conciliation is intended to be a confidential process.  Indeed, one of the chief reasons for employers to engage in pre-suit conciliation is the carrot of confidential resolution.  Interestingly, however, we have seen a trend of the EEOC issuing presumably agreed-upon media statement for matters settled in conciliation.  Accordingly, the employer has a degree of leverage in negotiating these publications.  As one might imagine, conciliation media statements are, thus, more positive in tone. Further, on occasion, the employer may also make a statement, which at minimum disclaims any liability — something rarely, if ever, allowed in a litigation media statement.

Elements Of A Media Statement

Regardless of the tone, EEOC media statements are consistent in their basic elements and structure.

First, there will be a headline crafted to be eye-catching, such as “Paramount Mailing Company Punished Female Employees for Complaining About Abuse, Federal Agency Charges.”  Below is a word cloud, highlighting the most common words and phrases employed by the EEOC in its 2018 headlines.  Not surprisingly, in the current environment, “Sexual” and “Harassment” play prominently.

Second, the media statement will include a statement of claims, describing the complained of discrimination, harassment, and/or retaliation, including factual and legal allegations.  The more aggressive press releases will set forth the most sensational and detailed allegations, whereas the measured versions may state the allegations in more bland terms, which can sometimes be so vague that it is difficult to divine what the claims were based upon in the first place.

Third, the Commission will include quotes from the relevant District Director and possibly a Regional Attorney involved in the litigation.  The tone of the EEOC’s quotes can vary greatly, depending on, among other things, the importance of the issue to the Commission’s strategic goals, the duration of the litigation, and resources expended.  Excluding conciliation media statements, on very rare occasions, the EEOC may allow a quote from the employer on the resolution of the lawsuit.  Although it is unlikely the Commission will agree to such a statement, if the litigation and settlement proceed amicably, it is certainly worth attempting to negotiate the point.

Finally, the media statement will conclude with a statement of the EEOC’s mission (e.g. “The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination”).  Additionally, where applicable, the statement will indicate where the resolved litigation is among the EEOC’s strategic goals — “[p]reventing workplace harassment through systemic litigation and investigation is one of the six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).”  Media statements that make note of the SEP are more likely to be among the more aggressive.

Emerging Issues With Media Statements

As the Commission media strategy has evolved, it has made continued efforts to increase its audience and distribution of these statements for maximum effect. The EEOC has also been known to conduct press conferences announcing a new suit or trumpeting an EEOC victory. But now the EEOC also publishes many of its media statements on social media, like Twitter.  It has also taken to issuing relevant media statements in multiple languages depending upon the employees and employer at issue. For as long as the EEOC places a priority on publicity, it will no doubt continue to search for new ways to increase their audience.

Implications for Employers

For employers who find themselves involved in an EEOC enforcement action, it is important not to lose sight of the Commission’s use of its media statement as both carrot and stick.  The EEOC places considerable value on shining a spotlight on its enforcement efforts, especially those which advance its strategic goals.  While it is unlikely that the Commission will allow the employer too much say in the issued statement, when negotiating resolution with the EEOC, where possible, employers should use the Commission’s goal of publicity as a possible bargaining chip to achieve the best possible outcome for the inevitable media statement.  Moreover, by understanding the Commission’s strategic goals, employers will gain a greater awareness of what tone and tenor the EEOC’s statement will take upon resolution, and can prepare accordingly.

 

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

armor-158430__340By Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth Synopsis:  In a sexual harassment lawsuit brought by the EEOC, the Sixth Circuit affirmed a U.S. District Court’s grant of an employer’s motion for summary judgment after finding that the harassing employee was not a supervisor under Title VII, and therefore the company was not vicariously liable for his actions. It is a decidedly pro-employer ruling.

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In EEOC v. AutoZone, Inc., No. 16-6387 (6th Cir. June 9, 2017), the EEOC alleged that AutoZone was liable under Title VII for a store manager’s alleged sexual harassment of three female employees.  After the U.S. District Court for the Western District of Tennessee granted the employer’s motion for summary judgment, the EEOC appealed.  The Sixth Circuit affirmed the District Court’s grant of summary judgment, finding that because the store manager did not take any tangible employment action against his co-workers and had no authority to do so, he was not a supervisor under Title VII, and thus AutoZone was not vicariously liable for the conduct alleged.  The Sixth Circuit further held that even if the store manager was found to be a supervisor under Title VII, AutoZone established an affirmative defense to liability.

For employers facing EEOC lawsuits alleging that they are vicariously liable for sexual harassment claims brought against employees with managerial job titles, yet who have limited authority to take tangible employment actions, this ruling can be used as a blueprint to attack such claims in motions for summary judgment.

Case Background

In May 2012, AutoZone transferred a store manager to its Cordova, Tennessee location.  Id. at 2.  The store manager could hire new hourly employees and write up employees at the store for misbehaving, but could not fire, demote, promote, or transfer employees.  Authority over firing, promoting, and transferring rested with the district manager for the store.

After an employee claimed that the store manager made lewd comments to her, AutoZone internally investigated the allegations.  As part of AutoZone’s internal investigation, two other female employees who worked at the Cordova location confirmed that the store manager made lewd sexual comments.  Despite his denial of the allegations, AutoZone ultimately transferred and terminated the store manager.  Thereafter, the EEOC brought a lawsuit alleging that AutoZone subjected the three female employees to sexual harassment.  Following discovery, AutoZone moved for summary judgment.  The District Court granted AutoZone’s motion for summary judgment, finding that the store manager was not a supervisor under Title VII and therefore AutoZone was not vicariously liable for his actions.  The EEOC appealed the District Court’s grant of summary judgment to the Sixth Circuit.

The Sixth Circuit’s Decision

The Sixth Circuit affirmed the District Court’s grant of AutoZone’s motion for summary judgment.  First, the Sixth Circuit instructed that under Title VII, if the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions, or in other words, if the employer knew or should have known of the harassment yet failed to take prompt and appropriate corrective action.  Id. at 4 (internal quotation marks and citation omitted).  However, if the harasser is the victim’s supervisor, a non-negligent employer may become vicariously liable if the agency relationship aids the victim’s supervisor in his harassment.  Id.  The Sixth Circuit further explained that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.  Id.

Applied here, the Sixth Circuit found that AutoZone did not empower the store manager to take any tangible employment action against his victims since he could not fire, demote, promote, or transfer any employees.  Id. at 5.  Further, the Sixth Circuit held that the store manager’s ability to direct the victims’ work at the store and his title as store manager did not make him the victims’ supervisor for purposes of Title VII.  The Sixth Circuit also noted that while the store manager could initiate the disciplinary process and recommend demotion or promotion, his recommendations were not binding, and his ability to influence the district manager did not suffice to turn him into his victims’ supervisor.  Id. at 5-7.  Finally, the Sixth Circuit held that the store manager’s ability to hire other hourly employees was irrelevant since he did not hire the employees he harassed.  Id. at 7.

After finding that the store manager was not a supervisor for purposes of Title VII, the Sixth Circuit further held that even if he was found to be a supervisor, AutoZone established an affirmative defense to liability.  The defense has two elements: (1) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) that the harassed employees unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.  Id.  The Sixth Circuit held that AutoZone met the first element by utilizing an appropriate anti-harassment policy to prevent harassment, and by transferring and later terminating the store manager promptly after it investigated the allegations.  Regarding the second element, the Sixth Circuit held that AutoZone satisfied this prong since the victims failed to report the store manager’s behavior for several months.  The Sixth Circuit thus held that AutoZone established an affirmative defense to liability.  Accordingly, the Sixth Circuit affirmed the District Court’s grant of AutoZone’s motion for summary judgment.  Id. at 10.

Implications For Employers

Employers often utilize employees that may be “managers” in title, yet do not have the authority to take tangible employment actions.  When those employers are sued by the EEOC for the conduct of managers with limited authority, this ruling can be used to argue that such employees are not “supervisors” under Title VII, and therefore the employer is not vicariously liable for their actions.  Nonetheless, given the EEOC’s aggressiveness in attempting to use the theory of vicarious liability to hold “deep-pockets” large-scale employers liable for the conduct of employees, employers would be prudent to invest in harassment-prevention training to minimize the likelihood of such behavior occurring.  But in the event that such incidents of harassment arise and lead to EEOC lawsuits, employers can use this decision to tailor their arguments to focus on the authority of the harasser, as opposed to his or her job title.

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

th7OX71VIZBy Julie G. Yap and Alison H. Hong

Seyfarth Synopsis: The EEOC obtains a multi-million dollar default judgment against an out-of-business company in a case alleging “human trafficking” discrimination claims.

In a ruling on April 26, 2016, in EEOC v. Global Horizons, Inc., Case No. 2:11-CV-03045 (E.D. Wash. Apr. 26, 2016), Judge Edward F. Shea of the U.S. District Court for the Eastern District of Washington entered a default judgment of over $7.6 million in the EEOC’s favor against an essentially defunct business, Global Horizons, Inc.  This multi-million dollar judgment harkens back to the $8.7 million default judgment entered in favor of the EEOC against this same defendant (and another out-of-business defendant) less than two years ago in the U.S. District Court for the District of Hawaii, the agency’s biggest judgment in 2014.  This Judgment – most likely symbolic, as it is apt to be uncollectable – finally closes the door on five years of litigation arising from the EEOC’s purported pursuit of “human trafficking” discrimination claims.

Background To The Case

In 2011, the EEOC brought claims against Defendant Global Horizons, Inc. (“Global Horizons”), among others, in federal district courts in both Hawaii and Washington, alleging a pattern or practice of unlawful discriminatory employment practices against foreign migrant workers based on their Asian race and/or Thai national original.  The EEOC also asserted claims for harassment and hostile work environment, retaliation, and constructive discharge.  The Asian and Thai workers were employed by Global Horizons under the U.S. Department of Labor H2‑A guest worker program to provide farm labor at various locations in California, Hawaii, and Washington.  The Commission had additionally sued other companies that had contracted with Global Horizons to supply workers to their farms and operations.  Subsequent to the litigation, Global Horizons went out of business.

By 2014, the EEOC litigation initiated in Hawaii had largely resolved, with most of the companies securing dismissals of the EEOC’s claims against them or reaching resolutions.  In December 2014, the EEOC obtained default judgment against Global Horizons and another out-of-business defendant in the amount of $8.7 million. It was the largest judgment obtained by the Commission that year.

In early 2015, in the U.S. District Court for the Eastern District of Washington, the EEOC sought default judgment against Global Horizons.  The other companies the Commission had sued in Washington obtained dismissal of the EEOC’s claims against them and were awarded attorneys’ fees and costs just shy of $1 million against the EEOC.

However, with respect to its claims against Global Horizons, the EEOC sought $300,000 for both compensatory and punitive damages for 66 individual claimants, submitting a 152 page supplemental table in support of its request as well as a number of declarations from the individual claimants.  In total, the EEOC sought entry of default judgment against Global Horizons in the amount of $19.8 million.  Based on those submission, the Court entered findings of fact and conclusions of law relative to the EEOC’s claims against Global Horizons on April 26, 2016 in a 30-page order.

The Court’s Ruling

The Court rejected the EEOC’s requests and entered an award of compensatory damages of $5,000 per month worked for Global Horizons to every claimant based on the Defendant’s default and uncontested liability for the pattern or practice of discrimination, a hostile work environment, and retaliation relative to the claimants that Global Horizons brought to work in Washington state.  In addition to compensatory damages, the Court also awarded each claimant $15,000 per month in punitive damages.  The Court further concluded that claimants who were detained by police for almost an entire day were each entitled to additional compensatory damages in the amount of $2,500 per claimant and additional punitive damages in the amount of $7,500 per claimant.  Based on these conclusions, the Court apportioned judgments to claimants ranging from $4,000 (for six days of work) to $210,000 (for ten months of work as well as police detention).  In total, the Court entered default judgment in the amount of $7,658,500.

It remains to be seen what to make of the judgment. It may be worth less than the paper on which it is written, as it is likely not collectable.

Implications For Employers

Since the judgment is likely not to be paid, the EEOC may still hope to use it as a basis for negotiation in like cases. Employers should be mindful of the Commission’s likely arguments as to the “value” of such cases.

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

gavel on white backgroundBy Christopher M. Cascino and Gerald L. Maatman, Jr.

In EEOC v. Northern Star Hospitality, Inc., No. 12-CV-214 (W.D. Wis.), a case we have blogged about previously here, Judge Barbara B. Crabb of the U.S. District Court for the Western District of Wisconsin imposed contempt sanctions on an employer for failure to cooperate in post-judgment discovery and granted the EEOC’s request for attorneys’ fees for the time it spent bringing the contempt motion.

The ruling is a cautionary tale for employers, and shows how the EEOC can seek attorneys’ fees despite the fact that its attorneys do not bill a client, and demonstrates that the EEOC will pursue collection of even small judgments against unsuccessful defendants.

Case Background

Dion Miller, an African-American, was a cook for Northern Star Hospitality, Inc. d/b/a Sparx Restaurant (“Sparx”).  On October 1, 2010, when Miller arrived at Sparx to begin his shift, a co-worker told him to look in the kitchen cooler.  In the cooler was a one-dollar bill with a noose drawn around President Washington’s neck and a sketch of a hooded Klansman on horseback with “KKK” written on the hood.  Also in the cooler was a picture of the late Gary Coleman.

Miller had a co-worker take a photograph of the display in the cooler and lodged a complaint with the restaurant’s general manager.  The general manager learned that two of Miller’s superiors – the kitchen manager and kitchen supervisor – admitted that they were responsible for the display.  As a result of the complaint, the kitchen supervisor was given a warning, with the kitchen manager receiving no discipline at all.

After Miller’s complaint, the kitchen manager and supervisor began to criticize Miller’s performance.  Miller was then terminated less than one month after the display was put up.

On March 27, 2012, the EEOC filed suit against Sparx on Miller’s behalf, claiming that he was the victim of racial harassment and that he was wrongfully terminated for opposing that harassment.  On February 25, 2014, after a jury verdict in favor of the EEOC, the Court entered a $64,795.50 judgment against Sparx.  That judgment was upheld by the Seventh Circuit on January 29, 2015.

After the judgment was affirmed, the EEOC served interrogatories on Sparx, seeking information about its assets.  Deeming Sparx’s responses insufficient, the EEOC moved to compel Sparx to provide adequate answers to its interrogatories and for attorneys’ fees expended in seeking adequate interrogatory answers.  The Court granted the motion on June 16, 2015, ordering Sparx to provide further interrogatory answers and to pay the EEOC attorneys’ fees for time spent preparing the motion to compel.

Despite the order, Sparx failed to pay the EEOC’s fees and failed to provide updated interrogatory answers.  On July 27, 2015, the EEOC moved for sanctions for contempt of the Court’s order on the motion to compel.  It also sought attorneys’ fees for the time it spent preparing the motion for a finding of contempt.

The Court’s Ruling

The Court granted the EEOC’s motion for a finding of contempt.  It ordered Sparx to pay a $1,000 per day fine starting three days following the finding of contempt for each day Sparx did not provide updated interrogatory answers and did not pay the EEOC’s fees for the motion to compel.  It further awarded the EEOC $1,000 in fees for the two-and-a-half hours it spent drafting the motion for a finding of contempt.

Implications For Employers

This case will provide further support for the EEOC’s position that, despite the fact its attorneys do not bill any client for their time, it should be entitled to attorneys’ fees in the right circumstances.  Moreover, the case indicates that the EEOC will pursue judgments, no matter how small, that it has won.

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

 

By Gerald L. Maatman, Jr., Christopher J. DeGroff, and Paul H. Kehoe

Shortly after publishing its FY2016 budget justification (here) asking for an additional $8.6 million and authorization to hire hundreds of additional employees (over FY2014 levels), the EEOC released its FY2014 charge and litigation statistics (here and here).  Charge receipts, while still historically high, fell to 88,778, down from a high of 99,922 in FY 2010 at the height of the last recession.  The EEOC’s rate of finding reasonable cause was down, as was its effectiveness in successfully conciliating those charges.  Indeed, the monetary benefits secured through its investigations plummeted by over $75 million, or roughly 20%.  The EEOC’s litigation program filed 133 merits suits, down roughly 50% from FY2011 and down 65% over FY2005 levels.  In addition, the litigation program secured only $22.5 million for alleged victims of discrimination, down from a high of $168.6 million in FY2004.

A more in depth look at the numbers is below.

The EEOC’s Private Sector Investigations Program

Retaliation claims remain the number one allegation in EEOC charges with 37,955 (42.8%).  Race, sex, and disability discriminations charges were the top three alleged substantive violations. Claims under the Equal Pay Act and the Genetic Nondiscrimination Act were the least alleged violations.

                                                     

On a state-by-state basis, Texas, Florida, and California led the way with 8,035, 7,528, and 6,363 charges, respectively.  Wake Island was the only U.S. Territory without an EEOC charge on file.

The EEOC resolved 87,442 charges under investigation in FY2014.  The agency only found reasonable cause in 2,745 (3.1%) cases.  Between FY2010 and FY2013, the EEOC made reasonable cause determinations ranging from 3,515 and 4,981 cases annually, which represented 3.6% to 4.7% of its charges filed.

By statute, the EEOC must attempt to conciliate all of its reasonable cause findings before initiating litigation.  In FY2014, the EEOC reported that it successfully conciliated 1,031 of its reasonable cause findings.  This represents a significant drop from FY2012 and FY2013, when the EEOC successfully conciliated 1,437 and 1,591 cases, respectfully.

On the whole, the EEOC’s private sector investigation program secured $296.1M for alleged victims of discrimination, down from $372.1M in FY2013 and approximately $365M in both FY2011 and FY2012.

The EEOC’s Litigation Program

The EEOC filed 133 merits cases in FY2013.  While on par with the most recent two fiscal years, this represents a decrease in filings of roughly 50% compared to FY2011 and over 65% compared to FY2005.  The EEOC filed 76 Title VII suits, 49 ADA suits, 12 ADEA suits, 2 Equal Pay suits, 2 GINA suits and 7 suits alleging violations of multiple statutes.

The EEOC’s litigation program secured $22.5 million in monetary benefits for alleged victims of discrimination, down from $38.6 million in FY2013, $91 million in FY2011, and a high of $168.6 million in FY2005.

Implications For Employers

At a time when the EEOC was seeking an expanded budget, as it has in each of the years during the current Administration (here), the EEOC’s performance and recoveries for alleged victims of discriminations were something of a fizzle in FY2014 when compared to its historical results.  With focus on systemic litigation, it appears as that other potentially meritorious claims have received less, if any, attention.  While the President’s request for additional funds is dead on arrival for lack of even Democratic support, it remains to be seen what, if any, increase in appropriated funds will make its way to the EEOC for FY2016.  Regardless, the EEOC is likely feeling significant pressure to post big wins with its budget on the line.  Employers take note:  this may translate to even more aggressive agency enforcement tactics.

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

Yesterday, the EEOC’s aggressive attempt to litigate issues under the Americans With Disabilities Act faced a resounding defeat in EEOC v. The Picture People, Inc., No. 11-CV-1306 (10th Cir. 2012). The Tenth Circuit affirmed the U.S. District Court for the District of Colorado’s grant of summary judgment to the employer, the Picture People (“TPP”), and dismissed the EEOC’s lawsuit, which asserted that TPP harassed, discharged, and retaliated against a deaf employee in violation of the ADA. We previously blogged on EEOC v. The Picture People, Inc. (here), and why the EEOC’s claims were rejected. EEOC v. The Picture People, Inc. stems from the grant of summary judgment on the basis that Jessica Chrysler, a disabled employee at TPP, could not establish that “she was qualified – with or without accommodation – to perform an essential function of her job[.]” Id. at 2.

The 10th Circuit’s ruling is an important development addressing what, if any, accommodations are reasonably required of employers under the ADA’s new amendments, and another defeat for the EEOC’s strategic enforcement program.

Background Of The Case

In 2007, TPP hired Chrysler understanding that she was deaf and mostly communicated through written notes and body language. TPP hired Chrysler as a “performer,” a job that involved photography, sales, lab work, front desk duties and interacting with customers. After Chrysler took photographs and attempted to sell photo packages on a number of occasions, TPP moved her to work in the photo lab because it found her “written communications awkward, cumbersome, and impractical . . .” Id. at 5. Chrysler repeatedly demanded TPP provide her with an interpreter to assist at meetings, and complained after TPP put her on notice of performance problems because of her disability. After the 2007 holiday season, TPP cut all performers’ hours, including Chrysler’s. In 2008, TPP terminated Chrysler.

One year later, the EEOC filed an action in the District Court, listing a number of allegations including unlawful discrimination and termination in violation of the ADA. In response, TPP argued that Chrysler could not perform the essential function of her job because the ability to speak with customers – mostly children – throughout their visit to the studio was necessary. In support of its position, TPP focused on its description for a performer, which emphasized that strong communication skills was a job qualification. Siding with TPP, the District Court dismissed the EEOC’s case and reasoned that oral communication was an essential function of the job, and that it was not reasonable to require TPP to alter the job description. See EEOC v. The Picture People, Inc., 2011 U.S. Dist. LEXIS 49432 (D. Colo. May 9, 2011).

Basis Of The Tenth Circuit’s Ruling

On appeal, the EEOC’s case again hinged on whether Chrysler could perform her job with reasonable accommodations. To no avail, the EEOC asserted that TPP was required to “allow [Chrysler] to communicate with customers using non-verbal means of communication,” and that she could perform her job duties if TPP provided her with an interpreter at meetings and training sessions. Id. at 10-11. The 10th Circuit refused to displace TPP’s business judgment and opined that “[g]iven that verbal communication is an essential job function, requiring [TPP] to eliminate this function cannot be a ‘reasonable accommodation’ required under the ADA.” Id. at 11. The 10th Circuit also reasoned that providing Chrysler with an interpreter was not a reasonable accommodation because it would not improve her ability to perform her job. Namely, the interpreter would neither “ameliorate her inability to interact verbally with customers — an essential function of the performer job” nor preclude TPP “from scheduling her during a non-peak periods[.]” Id. at 12. Despite a dissent, by a 2 to 1 decision, the 10th Circuit upheld the dismissal of the EEOC’s unlawful discrimination, termination, and retaliation claims.

Implications For Employers

The affirmance of summary judgment in EEOC v. The Picture People, Inc. provides a blueprint for successfully defending against the EEOC’s theories. The 10th Circuit’s ruling also represents a blow to the EEOC in terms of its strategy to base ADA charges on arguments that the employer failed to provide reasonable accommodations.

Originally published on the Workplace Class Action Blog.