Office of General Counsel Fiscal Year 2023 Annual Report

Karla Gilbride

General Counsel

TABLE OF CONTENTS

I.      Structure and Function of the Office of General Counsel

A.     Mission of the Office of General Counsel

B.     Headquarters Programs and Functions

1.      General Counsel

2.      Deputy General Counsel

3.      Litigation Management Services.

4.      Internal Litigation Services.

5.      Appellate Litigation Services.

6.      Research and Analytic Services

C.      District Office Legal Units

II.     Fiscal Year 2023 Accomplishments

A.     Summary of District Court Litigation Activity.

B.     Selected Systemic Resolutions

C.      Other District Court Resolutions

D.     Selected Decisions in Appellate and Amicus Cases

III.        Litigation Statistics

A.     Overview of Suits Filed

1.      Filing Authority

2.      Statutes Invoked

3.      Bases Alleged

4.      Issues Alleged

B.     Suits Filed by Bases and Issues

1.      Sex Discrimination

2.      Race Discrimination

3.      National Origin Discrimination.

4.      Religious Discrimination

5.      Age Discrimination

6.      Disability Discrimination

7.      Retaliation

C.      Bases Alleged in Suits Filed from FY 2019 through FY 2023

D.     Suits Resolved

1.      Types of Resolution

2.      Monetary Relief by Statute

E.      Appellate Activity

F.      Attorney’s Fees Awards

G.     Resources

1.      Staffing

2.      Litigation Budget

H.     EEOC 10-Year Litigation History: FY 2014 through FY 2023

I. Structure and Function of the Office of General Counsel

A. Mission of the Office of General Counsel

The Equal Employment Opportunity Act of 1972 amended Title VII of the Civil Rights Act of 1964 (Title VII) to give litigation authority to the Equal Employment Opportunity Commission (EEOC or Commission) and provide for a General Counsel, appointed by the President and confirmed by the Senate, with responsibility for conducting the Commission’s litigation program. Under a 1978 Presidential Reorganization Plan, approved by the Senate, enforcement of the Equal Pay Act of 1963 (EPA) and the Age Discrimination in Employment Act of 1967 (ADEA) was transferred from the Department of Labor to the Commission, and the Commission’s General Counsel became responsible for litigation under those statutes. With the enactment of the Americans with Disabilities Act of 1990 (ADA) (effective July 26, 1992), the Genetic Information Nondiscrimination Act of 2008 (GINA) (effective November 21, 2009), and the Pregnant Workers Fairness Act of 2022 (PWFA) (effective June 27, 2023), the General Counsel became responsible for litigation under the employment provisions of those statutes (Titles I and V of the ADA and Title II of GINA).

The mission of EEOC’s Office of General Counsel (OGC) is to conduct litigation on behalf of the Commission to obtain relief for victims of employment discrimination and ensure compliance with the statutes EEOC is charged with enforcing. Under Title VII, the ADA, GINA, and the PWFA, the Commission can sue nongovernmental employers with 15 or more employees. The Commission’s suit authority under the ADEA and the EPA includes both private and state and local governmental employers. Private employers must have 20 or more employees for ADEA coverage; there is no employee minimum for governmental employers. There is no employee minimum for EPA coverage, but for most private employers, coverage requires $500,000 or more in annual business. Title VII, the ADA, GINA, the PWFA, and the ADEA also cover labor organizations and employment agencies, and the EPA prohibits labor organizations from attempting to cause an employer to violate that statute. OGC also represents the Commission on administrative claims and litigation brought against the agency by its employees and applicants for employment.

B.  Headquarters Programs and Functions

1.  General Counsel

The General Counsel is responsible for managing and coordinating the Commission’s enforcement litigation program, and provides overall direction to all components of OGC, including district office legal units (see section C below). The General Counsel also provides reports to the Commission on litigation activities and advises the EEOC Chair and Commissioners on agency policies and other matters affecting enforcement of the statutes within the Commission’s authority.

2. Deputy General Counsel

The Deputy General Counsel is responsible for overseeing all programmatic and administrative functions of OGC, including the litigation program and the litigation support budget allocated to OGC by the EEOC Chair. OGC functions are carried out through the operational program and service areas described below, which report to or through the Deputy.

3. Litigation Management Services

Litigation Management Services (LMS) oversees and supports the Commission's federal district court enforcement program in the agency’s district offices. In conjunction with EEOC’s Office of Field Programs, LMS also oversees the integration of district office legal units with the offices’ investigative units. LMS provides direct litigation assistance to district office legal units, drafts guidance, develops training programs and materials, and collects and creates litigation practice materials. LMS also reviews litigation recommendations submitted by district offices. LMS reviews various other field litigation related matters, such as requests to contract for expert services and proposed resolutions in cases in which the General Counsel has retained settlement authority. LMS contains a unit that provides technical support to field offices in matters such as producing, receiving, and organizing electronically stored information in discovery, extracting and preserving digital media, and collecting and preserving information from social media sites.

4.  Internal Litigation Services

Internal Litigation Services (ILS) represents the Commission and its officials on claims brought against the agency by its employees and applicants for employment and advises the Commission and agency management on employment-related matters.

5.  Appellate Litigation Services

Appellate Litigation Services (ALS) represents the Commission in the federal courts of appeals in all litigation where the agency is a party. ALS also participates as amicus curiae, as approved by the Commission, in federal courts of appeals, federal district courts, and state courts, in cases of interest to the Commission. ALS represents the Commission in the United States Supreme Court through the Department of Justice’s Office of the Solicitor General. ALS also makes recommendations to the Department of Justice in cases where the Department is defending other federal agencies on claims arising under the statutes the Commission enforces. ALS reviews EEOC policy materials, such as proposed regulations and enforcement guidance drafted by the Commission’s Office of Legal Counsel, prior to their issuance by the agency.

6. Research and Analytic Services

Research and Analytic Services (RAS) provide testifying and consulting expert services for EEOC cases in litigation. RAS also provides various forms of litigation-related assistance, including database construction, statistical analyses, and labor market determinations; drafting discovery requests regarding technical matters; review of employment tests and other selection procedures; and damages calculations. In addition, RAS performs analytic work in support of select charges during administrative investigations that involve complex analyses or large, complicated datasets. Other RAS activities include providing training to district office legal and investigative staff in RAS areas of expertise (e.g., economics, statistics, industrial organizational psychology), and representation of EEOC at various agency and interagency initiatives that involve analytic and data-related issues.

C.  District Office Legal Units

District office legal units conduct Commission litigation in the geographic areas covered by the agency’s 15 district offices and provide legal advice and other support to district staff responsible for investigating charges of discrimination. In addition to the district office itself, OGC Trial Attorneys are stationed in most field, area, and local offices within districts. Legal units are under the direction of Regional Attorneys, who manage Assistant Regional Attorneys, Supervisory Trial Attorneys, Trial Attorneys, Paralegals, and support personnel.

II.  Fiscal Year 2023 Accomplishments

In FY 2023, OGC filed 143 merits lawsuits and resolved 98, obtaining over $22 million in monetary relief.  Section A below contains summary statistical information on the fiscal year’s trial court litigation results (more detailed statistics appear in part III of the Annual Report). Sections B and C contain descriptions of selected district court resolutions, and Section D contains descriptions of selected appellate and amicus curiae resolutions. For information regarding multi-year litigation statistics and multi-year selected district court resolutions, consult the litigation tables in EEOC Explore.

A.  Summary of District Court Litigation Activity

OGC filed 143 merits suits in FY 2023. Merits suits consist of direct suits and interventions alleging violations of the substantive provisions of the Commission’s statutes, and suits to enforce settlements reached during EEOC’s administrative process. All FY 2023 merits suits were direct actions. In addition to merits suits, OGC filed fifteen actions to enforce subpoenas issued during EEOC charge investigations. OGC’s FY 2023 merits suit filings had the following characteristics:

• 92 contained claims under Title VII (64.3%)
• 49 contained claims under the ADA (34.3%)
• 12 contained claims under the ADEA (8.4%)
• 3 contained claims under the EPA (2.1%)
• 1 contained claims under GINA (0.7%)
• 57 sought relief for multiple individuals (39.9%)

The above statutory claims exceed the number of suits filed (and percentages total over 100) because some cases contain claims under more than one statute. There were 14 of these “concurrent” suits (9.8%) among the FY 2023 filings.

OGC’s merits filings alleged violations covering a variety of bases: retaliation (56), sex (50), disability (49), race (24), age (12), religion (10), national origin (8), color (3), and GINA (1). The issues raised most frequently in EEOC suits were discharge and/or constructive discharge (99), harassment (55), hiring (36), disability accommodation (36), and terms and conditions (11). At the end of FY 2023, EEOC had 227 merits cases on its active district court docket, of which 95 (41.8%) were class or systemic cases, with 48 (21.2%) of those being systemic cases.[1]

In FY 2023, EEOC filed 25 systemic lawsuits. The suits included hiring claims based on sex, race, national origin, age, and disability; harassment claims based on sex and race; claims of failure to accommodate based on disability; disability claims based on unlawful application of a qualification standard; discharge claims based on disability, race, color, and retaliation; and a sex-based pay claim.

OGC resolved 98 merits suits in FY 2023, recovering $22,609,162 for 971 individuals. OGC achieved a successful outcome (settlement or favorable judgment) in 89 (90.8%) of all suit resolutions. Suit resolutions had the following characteristics:

• 53 contained claims under Title VII (54.1%)
• 31 contained claims under the ADA (31.6%)
• 5 contained claims under the ADEA (5.1%)
• 2 contained claims under the EPA (2.0%)
• 44 cases sought relief for multiple individuals (44.9%)

The above statutory claims exceed the number of suits filed (and percentages total over 100) because cases sometimes contain claims under more than one statute. There were 7 of these “concurrent” suits (7%) among the FY 2023 resolutions.

Part III of the Annual Report contains detailed statistical information on OGC’s FY 2023 litigation activities, as well as summary information for past years.

B. Selected Systemic Resolutions

In FY 2023, the EEOC resolved 14 systemic suits, obtaining over $11.7 million for approximately 806 individuals and significant equitable relief. Below are some examples of FY 2023 systemic resolutions.

In EEOC v. The Whiting-Turner Contracting Company, No. 3:21-cv-00753 (M.D. Tenn. May 3, 2023), the EEOC alleged that a construction contractor subjected the two charging parties and other Black employees working as laborers at a construction site to racial harassment and retaliated against the charging parties. A White crew leader referred to Black employees as “boy,” “m___ f___,” and “you”; porta potties and buildings were riddled with racially offensive graffiti, such as the n-word and KKK references; and Black employees were assigned the most physically difficult work while White employees were given more desirable assignments. Black employees reported the harassment, but the employer did not investigate; instead, a White assistant superintendent told one of the Black employees to “let it go” and that the crew leader was “old-fashioned.” The charging parties complained about the racially offensive conduct multiple times and were discharged the same day they complained to a manager in a team meeting. The 2-year consent decree provides for $1.2 million to 31 claimants, along with equitable relief.

In EEOC v. AMTCR, Inc., AMTCR Nevada, Inc., AMTCR California, LLC, No. 2:21-cv-01808 (D. Nev. Jan 5, 2023), the EEOC alleged that affiliated entities that own and operate 21 McDonald’s franchises subjected male and female employees to sexual harassment, resulting in the constructive discharge of some employees. Charging party, a teen, was subjected to sexual comments and advances, and unwanted touching. After the charging party and his mother complained to management, no corrective action was taken; instead, a manager said charging party should take the conduct as a compliment. Other male and female employees, some teens, were subjected to groping, sexually explicit comments, and sexual requests from coworkers and managers. One male general manager conditioned hire on the acquiescence of male applicants to dates and sexual activity. The 3-year consent decree provides for $1,997,500 to 41 individuals, along with equitable relief.

In EEOC v. Scottsdale Healthcare Hospitals d/b/a HonorHealth, No. 2:20-cv-01894 (D. Ariz. Sept. 15, 2023), the EEOC alleged that providers of medical care at hospital and medical facilities failed to provide reasonable accommodations to charging party and other employees with disabilities and discharged or constructively discharged employees because of their disabilities or need for accommodation. Charging party, who worked for defendant as a registered nurse, sustained a right arm injury that resulted in a permanent 15-pound lifting restriction. Defendants told her she had 30 days to secure a new job after which she would be terminated. Charging party applied to numerous positions for which she was qualified but was not selected, and defendants terminated her when she was unable to secure a position within the allotted timeframe. The suit was resolved for $1.75 million to approximately 100 claimants, and other injunctive relief.

In EEOC v. R&L Carriers, Inc., and R&L Carriers Shared Services, LLC No. 1:17-cv-00515 (S.D. Ohio April 24, 2023), the EEOC alleged that national freight trucking carriers denied dockworker positions to women because of their sex. In addition to data showing a statistically significant underrepresentation of female dockworkers/loaders, statements attributable to the employer indicated the employer believed women should not be employed as loaders. Also, comparisons of contemporaneous male and female applicants showed that men were hired for loader positions over more qualified women. The 3-year consent decree provides for $1.25 million to about 200 women who unsuccessfully applied for loader positions between 2010 and 2017 (about 200 individuals) and enjoins failing to hire women as loaders because of their sex.

In EEOC v. USF Holland, LLC, No. 3:20-cv-270 (N.D. Miss. June 16, 2023), the EEOC alleged that defendant, a less-than-truckload carrier, denied charging party and other female applicants truck driving positions because of their sex. Charging party, an experienced truckdriver, applied for a position with defendant in May 2015. At the time, defendant employed approximately 130 truckdrivers, all of whom were men. Charging party was not hired, but less qualified men applying during the same period were hired. The investigation showed that a significant number of women with extensive driving experience applied for driver positions but were passed over for equally or less qualified male applicants. The 3-year consent decree provides for $490,000 to about 23 affected women, best efforts to recruit and hire female truckdrivers, and a $120,000 scholarship fund for female applicants to defendant’s truckdriver apprenticeship program. Upon successful completion of the program and associated tests, defendant will make reasonable efforts to place each qualified female into entry-level truckdriver positions in specified terminals.

In EEOC v. Kenneth O. Lester Company, Inc., d/b/a PFG Customized Distribution – Indiana, No. 1:22-cv-329 (N.D. Ind. May 24, 2023), the EEOC alleged that a food distributor denied order selector positions to charging party and other female applicants, and placed women into lower paying order selector jobs, because of their sex. In August 2018, charging party applied for an order selector position, which involves heavy lifting and pulling. Although the charging party had performed similar work for previous employers, the company’s HR coordinator and warehouse manager tried to dissuade her from the order selector position, saying the work was hard and that defendant did not have women in the job. Charging party told the recruiter who had referred her to the company that they wanted only male order selectors; the recruiter told the EEOC multiple women had said the same thing. The company’s applicant data over a 3½-year period showed at a very high level of statistical significance that women were not hired into the order selector position consistent with their availability. There was also evidence that women hired as order selectors were assigned to lower paying work. The 3-year consent decree provides for $39,971 to charging party and $670,000 to the class of 50 women, as well as equitable relief. 

In EEOC v. Verona School District, No. 3:22-cv-39 (W.D. Wisc. June 16, 2023), the EEOC alleged that defendant, a public school district in Wisconsin, paid nine female special education teachers less than a male special education teacher and paid a female school psychologist less than a male school psychologist. The female special education teachers all had much more experience than the male teacher and two of the female teachers, but not the male, were nationally board-certified in special education. The male special education teacher, who was hired in June 2019, earned $80,924 during the 2021-22 school year, while more senior female teachers earned between $63,816 and $75,755 that year. For the 2020-2021 school year, the female school psychologist earned $70,449 while the male earned $87,595. The 4-year consent decree provides the ten claimants $450,000 and an increase in their salaries going forward, in addition to equitable relief.

In EEOC v. iTutorGroup, Inc.; Tutor Group Limited; and Shanghai Ping’Aan Intelligent Education Technology Co. Ltd., No. 1:22-cv-02565 (E.D.N.Y. Sept. 8, 2023), the EEOC alleged that the providers of English-language tutoring services discriminated against a group of individuals because of their ages, over 40. Defendants provide English tutoring to students in China. In 2020, defendants programmed their application software to automatically reject female applicants over the age of 55 and male applicants over the age of 60. Consequently, over a period of a few weeks in 2020, defendants failed to hire Charging Party and more than 200 other qualified tutor applicants age 55 and older from the United States because of their ages. The 5-year decree settling the suit provides $365,000 to be distributed to applicants who were automatically rejected due to age, and extensive injunctive relief.

C.  Other District Court Resolutions

Below are selected non-systemic FY 2023 resolutions:

In EEOC. v. Coastal Drilling East, LLC, No. 2:21-cv-01220 (W.D. Pa. Sept. 5, 2023), the EEOC alleged that a national provider of geotechnical construction services subjected charging party to a hostile work environment due to his race, Black, resulting in his constructive discharge. Charging party, who was hired in March 2019 as a rig hand, was subjected to racially derogatory language, including repeated use of the n-word, by his coworkers and a supervisor and was confronted with nooses from his coworkers. The defendant managers were aware of the racially hostile conduct and took no corrective action. Charging party was laid off in November 2019, the company invited him to return to work in January 2020, but he declined due to the racially hostile work environment. The company claimed that any racially hostile conduct was not severe or pervasive; that charging party never reported any racially hostile conduct to management or human resources; and that charging party resigned for personal reasons. Following a 5-day trial, the jury returned a verdict for the EEOC, awarding charging party $24,375 in compensatory damages, with the court later awarding $56,093.03 in backpay, prejudgment interest, and an offset for negative tax consequences.

In EEOC v. Mechanical Design Systems, Inc., No. 8:22-cv-02463 (D. Md. May 9, 2023), the EEOC alleged that a provider of HVAC design and installation services in the Washington, D.C. area, paid charging party and another female project manager less than their male counterparts because of their sex. Charging party briefly worked for defendant in 2013 and 2014 as a part-time receptionist. She rejoined defendant in January 2017, providing clerical support to two project managers (male and female). When the male project manager left the company in June 2017, charging party assumed his project manager duties. In the summer of 2018, defendant assigned a male to a project manager position at a salary significantly higher than that paid to charging party and the other female project manager. Although the male had worked for defendant in the field, he lacked experience in, or familiarity with, defendant’s management systems and practices. The 3-year consent decree provides for $210,000 to charging party and the other claimant and injunctions against sex-based discrimination and retaliation. Defendant will raise the wages and compensation of the remaining female project manager to that of her male counterpart. Defendant will develop and adopt revised wage and salary policies and provide training and report on complaints of sex-based discrimination in wages.

In EEOC v. United Airlines, Inc., and Airline Pilots Association International, No. 20-cv-9110 (D.N.J. Nov. 8, 2022), the EEOC alleged that United Airlines (UA) refused to accommodate charging party’s religious beliefs, resulting in his discharge. Charging party, a practicing Buddhist, had worked as a UA pilot for over 30 years when he was diagnosed with alcohol dependency, causing him to lose the medical certificates issued by the Federal Aviation Administration (FAA) allowing him to fly. The airline’s occupational substance abuse treatment program, known as HMS, coordinates the identification, treatment, and return to work process for affected pilots, and requires regular attendance at Alcoholics Anonymous (AA). Charging party objected to the religious components of AA meetings (e.g., held in churches and started with a prayer conceiving of a monotheistic God as a Supreme Being) and requested to substitute a Buddhism-based peer support group. The airline refused, and charging party was unable to obtain a new FAA medical certificate permitting him to fly again. The 27-month consent decree provides for $305,000 to the charging party and requires the employer to reenroll charging party in the HMS program and accept his participation in the identified recovery program in lieu of AA.

In EEOC v. Pivotal Home Solutions, LLC, No. 1:21-cv-04978 (N.D. Ill. Oct. 12, 2022), the EEOC alleged that a home repair services company discharged charging party because of her actual or perceived disability. Charging Party was hired through a staffing agency as a dispatcher in July 2017. In January 2018, she had a panic attack at home and was diagnosed with PTSD. Charging party told her supervisor she had a panic attack and was prescribed medication to treat PTSD and anxiety. The next day, defendant instructed the staffing agency to end charging party’s assignment because she had a “nervous breakdown.” Defendant told the staffing agency charging party had no performance issues. The staffing agency advised defendant of the risk of ending charging party’s assignment based on a medical condition that did not affect her performance, but defendant did not change its discharge decision. The 3-year consent decree provides $174,000, injunctions against taking adverse actions due to disability and retaliation, policies against disability discrimination, ADA training, and annual reporting.

In EEOC v. Aurora Pro Services, No. 1:22-cv-00490 (M.D.N.C. Aug. 2, 2023), the EEOC alleged that a North Carolina residential home service and repair company created a religiously hostile work environment by requiring two employees to attend daily Christian prayer meetings as a condition of their employment, failed to accommodate the religious beliefs of one employee, terminated both employees based on their religious beliefs, and retaliated against them. Defendant’s owner held daily prayer meetings where employees were required to stand in a circle as the owner read bible scripture and Christian devotionals, led employees in Christian prayers, and solicited prayer requests from employees. The first employee worked as a construction manager. He is an Atheist and asked to be excused from the meetings. The owner responded that employees were required to participate. Thereafter, the employee’s pay was cut in half. The second employee worked as a customer service representative and is Agnostic. She stopped attending the meetings as they increased in length and became more “cult-like.” Both employees were terminated after objecting to the meetings. The 3-year consent decree provides for $50,000 to the two employees, and equitable relief.

In EEOC v. Keystone Foods LLC, No. 2:21-cv-00629 (M.D. Ala. Nov. 16, 2022), the EEOC alleged that the current operator of a food processing plant retaliated against a job applicant when it refused to hire her after learning she filed a pregnancy discrimination charge against its predecessor. In July 2017, charging party filed a charge against her previous employer alleging pregnancy and disability discrimination, which was resolved by a conciliation agreement in November 2018. In August 2019, charging party learned defendant was hiring and applied and was hired. After charging party told an HR employee that she had previously worked for its predecessor, the HR generalist reviewed charging party’s old personnel file and defendant did not hire charging party. The 2-year consent decree provides for $60,000, as well as equitable relief.

In EEOC v. Symphony Deerbrook, L.L.C. d/b/a Symphony of Joliet, No. 1:21-cv-02978 (N.D. Ill. April 12, 2023), a Title VII/ADA lawsuit, the EEOC alleged  that defendant, a nursing home, rehabilitation center, and long-term care facility, engaged in various forms of pregnancy discrimination when defendant required employees to disclose their pregnancies and obtain a doctor’s note indicating they could work without restrictions, while not imposing similar requirements on employees with nonpregnancy medical conditions; failed to accommodate pregnancy-related work restrictions while accommodating the restrictions of nonpregnant employees; classified pregnant employees discharged due to work restrictions as ineligible for rehire; and denied pregnant employees reemployment following the birth of a child. There were also claims that the doctor’s note requirement constituted an unlawful medical examination under the ADA and that defendant failed to retain records related to requests for reasonable accommodations. The 2½-year consent decree provides $400,000 to 11 claimants, along with equitable relief.

In EEOC v. Arubaanse Luchtvaart Maatschappij N.V., d/b/a Aruba Airlines, No. 1:23-cv-20597 (S.D. Fla. Feb. 15, 2023), the EEOC alleged that an airline terminated charging party because of her pregnancy. Charging party was hired in October 2017 as a financial analyst, learned in April 2018 she was pregnant, and over the next two months presented defendant with doctor’s notes regarding complications with her pregnancy. Despite her doctor’s instructions to be on full bedrest, charging party continued to work due to the company’s general director’s disparaging remarks about her being pregnant. The airline terminated charging party in June 2018, ostensibly for poor performance. The HR director, however, told charging party that the general director said the airline needed someone “healthy to work,” and the company would try and reinstate her when she was finished with her pregnancy. The 4-year consent decree provides for $75,000 in compensatory damages to charging party, and also provides for non-monetary relief.

In EEOC v. Chipotle Services, LLC and Chipotle Mexican Grill, Inc. No. 2:22-cv-00279 (W.D. Wash. Sept. 14, 2023), the EEOC alleged that defendants, operators of a chain of fast-food Mexican restaurants, subjected charging party and a class of female employees, including a teen, to sexual harassment, resulting in constructive discharges. The sexual harassment included sexually suggestive comments, requests, and unwelcome touching by a male service manager and a male crew member, and the sexual assault of an underage employee by the service manager. Defendants were aware of the harassment but failed to address the situation. As a result, charging party and one claimant were constructively discharged. The 3-year consent decree provides for $400,000 to three individuals and equitable relief.

In EEOC v. Employbridge of Dallas, Inc., d/b/a ResourceMFG, No. 5:22-cv-00499 (W.D. Okla. March 17, 2023), the EEOC alleged that a provider of manufacturing specialty staffing refused to hire/refer charging party, a German-born naturalized United States citizen, because of her national origin. In February 2020, defendant offered the charging party a warehouse position with a federal government contractor that could employ only United States citizens and the defendant’s recruiter required her to present a United States birth certificate to complete the hiring process. Charging party explained that as a naturalized citizen, she did not have a United States birth certificate, but could present proof of her United States citizenship. Defendant terminated the process after telling charging party she could not be hired because she was not born in the United States. The 3-year consent decree provides charging party $75,000 and equitable relief.

In EEOC v. Alden Short, Inc., & Jennings, LLC, No. 3:18-cv-2125 (N.D. Tex. April 5, 2023), the EEOC alleged that a property manager specializing in low-income housing and its payroll entity subjected three charging parties, office workers at defendants’ management facility, to a hostile work environment based on their national origin, Mexican. Defendants’ top management officials, including their owner and chief operating officer, made disparaging remarks related to charging parties’ national origin, including comments such as “cheap Mexican help,” “lawnmowers,” and “deadbeat Mexicans.” The 3-year consent decree provides for $85,000 in damages to the charging parties and enjoins discrimination based on national origin.

In EEOC v. Hooters of Louisiana, LLC, Blue Sky Management Company, LLC, and Gibson, Greco, and Wood, Ltd., No. 2:23-cv-2864 (E.D. La. Sept. 5, 2023), the EEOC alleged that the defendants subjected the two charging parties and a class of other Black servers, hostesses, and bartenders to harassment based on their race and failure to recall/rehire because of their race and in retaliation for their complaints about race-based harassment and discriminatory recall/hiring practices. The harassment included continuous demeaning and offensive racist remarks about the employees’ speech and their hair from the White General Manager. In March 2020, at the outset of the pandemic, the defendant laid off 33 of its 40 employees, including its 7 Black employees. By June 23, 2020, defendants recalled or hired a total of 26 employees, none of whom were Black. Ultimately, defendant hired one Black employee, but only after it had received notice of the charge. The 3-year consent decree provides for $650,000 in damages to six claimants, as well as equitable relief.

In EEOC v Orange Treeidence OPCO, LLC d/b/a Riverwalk Post Acute, Providence Group, Inc., and Providence Administrative Consulting Services, Inc., No. 5:22-cv-00425 (C.D. Cal. Sept. 27, 2023), the EEOC alleged that operators of a skilled nursing facility, subjected the charging party and a class of Black employees to racial harassment and retaliated against the charging party after she complained. The charging party and other Black employees were subjected to racially hostile comments, including the n-word, from management, staff, and residents of the facility; the comments were often made in front of managers and supervisors. The charging party complained about the harassment verbally and in writing, but defendants did not address the situation. Charging party was subsequently suspended from work and terminated. The 3-year consent decree provides for $865,000 to the charging party and six claimants and equitable relief.

In EEOC v. Fischer Connectors, Inc., No. 1:22-cv-03884 (N.D. Ga. Feb. 28, 2023), the EEOC alleged that a manufacturer of circular connectors used in medical devices fired charging party because of her age, 67. The company hired charging party in 2004 as an HR manager and in 2007 promoted her to HR director. In early 2019, the president of the company’s U.S. operations told charging party that he was instructed by the CEO to hire a new, younger management team, and that the president planned to replace anyone in senior management over the age of 55 with a younger person. From January to July of 2020, the employer forced at least five managers over the age of 50 out of their jobs and replaced them with substantially younger individuals. The president fired charging party in July 2020, telling her he was just following orders to build a younger team for the CEO. Charging party was replaced by individuals ages 52 and 32. The 2-year consent decree provides for $460,000 to charging party.

In EEOC v. Elwood Staffing Services, No. 2:21-cv-00498 (D. Utah Oct. 19, 2022), the EEOC alleged that an Orem, Utah branch of a nationwide provider of staffing services violated the ADA when it denied charging Party a reasonable accommodation for her disability and failed to hire her because of her disability and/or her need for reasonable accommodation. In July 2017, charging party, who has a prosthetic left hand, accepted a conditional offer of employment from defendant to work at its client, Nu Skin, as a product assembler, labeling, assembling, and packing bottles of products. Charging party had previous experience doing this type of work. Charging party visited defendant’s Orem location, where a staffing manager gave her a label placing test, which she passed with a perfect score. The manager did not give charging party the dexterity test usually given to potential Nu Skin employees because he believed she could not complete it without a left hand. The defendant then rescinded the job offer, telling charging party that Nu Skin said she needed two hands for the job. The 2-year consent decree provides $77,500 to charging party and equitable relief.

D.  Selected Decisions in Appellate and Amicus Cases

In addition to its nationwide litigation program at the district court level, OGC represents the agency in federal courts of appeals, and participates as amicus curiae in private actions in federal courts of appeals and, on occasion, in federal district courts and state courts. Notable appellate and amicus decisions in FY 2023 include:

EEOC v. Charter Communications, LLC, 75 F.4th 729 (7th Cir. 2023)

This ADA case involved an employer’s refusal to provide a temporary schedule accommodation to James Kimmons, a sales representative with cataract-related night blindness that made it unsafe for him to drive home from work in the dark. The district court granted summary judgment to Charter on the ground that Kimmons did not need any accommodation to perform an essential job function once he arrived at work.

The Seventh Circuit reversed. The court first clarified that its prior precedent did not, as the district court had believed, hold that the ADA requires accommodation only if the employee’s disability affects his ability to perform essential job functions once the employee is at work. Turning to the case at hand, the court “decline[d] to adopt a bright-line rule” regarding accommodations that enable employees with disabilities to get to work. Instead, “if a qualified employee’s disability interferes with his ability to get to work, the employee may be entitled to a work-schedule accommodation if commuting to work is a prerequisite to an essential job function, such as attendance in the workplace, and if the accommodation is reasonable under all the circumstances.” Because commute-related cases “present problems that arise from the combination of employee choices and employer choices,” the proper analysis must “emphasize employee responsibility for the factors within the employee’s control, without losing sight of the employer’s control over work schedules.” Applying this analysis, the court concluded that a jury could find Kimmons’ requested accommodation—a second thirty-day extension of his shift change while he tried to move closer to the workplace—to be a reasonable accommodation.

Sharp v. S&S Activewear, L.L.C., 69 F.4th 974 (9th Cir. 2023)

In this Title VII case, the plaintiffs—seven women and one man— alleged that S&S Activewear exposed them to violently misogynistic and sexually graphic music in the workplace that constituted a sex-based hostile work environment. The district court dismissed the claim on the ground that the harassment could not be because of sex since it offended both men and women and was not targeted at any particular employee or group. On appeal, the Commission argued as amicus curiae that, as to the female plaintiffs, targeting is not required and that offensive conduct that is sufficiently gender specific and degrading to women can disadvantageously impact their terms and conditions of employment, even if men are also exposed to the same conduct and are offended. As to the male plaintiff, the Commission argued that it was plausible that the music’s lyrics demeaned men based on their sex.

The Ninth Circuit reversed, holding that the allegations of a workplace permeated with sexually demeaning and violent lyrics “may support a Title VII claim even if it offended men as well as women.” The court noted that it had not previously addressed “the specific issue of music-as-harassment.” But both it and other circuits had recognized that Title VII provides “redress for other auditory offenses in the workplace and for derogatory conduct to which all employees are exposed.” The court explicitly noted that the Commission had filed an amicus brief agreeing that “‘exposing employees to misogynistic and sexually graphic music can be discrimination because of sex, even where the employer exposes both women and men to material and even though both women and men find the material offensive.’” Drawing largely on cases cited in the Commission’s brief, the court explained that even if song lyrics are audible to all in the workplace, lyrics “loaded with . . . sexist slurs expose female employees to uniquely ‘disadvantageous terms and conditions of employment.’” The panel supported its conclusion by pointing to parallel principles in race-based hostile work environment cases. “Whether sung, shouted, or whispered, blasted over speakers or relayed face-to-face, sexist epithets can offend and may transform a workplace into a hostile environment that violates Title VII.” The court also held that both female and male plaintiffs may bring a hostile work environment claim predicated on the same offensive conduct. The court rejected S&S Activewear’s “equal opportunity harasser” defense and explained that employers cannot evade liability by maintaining a workplace “that is broadly hostile and offensive.”

O’Brien v. Middle East Forum, et al., 57 F.4th 110 (3d Cir. 2023)

In this Title VII case, Marnie O’Brien claimed she experienced sexual harassment at the hands of Gregg Roman, who was second-in-command of The Middle East Forum (“MEF”) as its Director, Chief Operating Officer, and Secretary of the Board. At trial, she requested a jury instruction that employer liability would be automatic (and no Faragher/Ellerth defense available) if the jury found Roman to be MEF’s proxy or alter ego. The district court denied this request, asserting that Third Circuit precedent did not support the proxy theory of liability. The jury returned a verdict against O’Brien on her hostile-work-environment claim. On appeal, the Commission argued as amicus curiae that employer liability is automatic and the Faragher/Ellerth defense unavailable where the harasser is the employer’s proxy. The Commission also argued that the evidence at trial of Roman’s prominent role and significant authority warranted giving the jury the opportunity to determine whether he was MEF’s proxy.

The Third Circuit agreed that the district court erred in failing to instruct the jury that if it found Roman to be a proxy or alter ego of MEF, the Faragher/Ellerth defense would be unavailable. The court explained that the “reasoning in Faragher and Ellerth makes clear that the Supreme Court did not intend for the Faragher/Ellerth defense to be available where the supervisor responsible for harassment was a proxy for the organization-employer.” The court also agreed with EEOC’s “helpful amicus brief” that proxy liability is rooted in agency principles that address liability for the master’s conduct. The court thus “join[ed]” with its sister circuits to “hold that the Faragher/Ellerth defense is unavailable when the alleged harasser is the employer’s proxy or alter ego.” The court next concluded that the evidence could support a finding that Roman was MEF’s proxy or alter ego because, as Chief Operating Officer, Director, and Secretary of the Board, Roman was “second in command” at MEF. The court concluded, however, that this error was harmless because the jury’s verdict form established that “the jury did not find that O’Brien had been sexually harassed by Roman.”

Banks v. General Motors, LLC, 81 F.4th 242 (2d Cir. 2023)

In this Title VII sex- and race-discrimination case, the district court held that no reasonable jury could find the plaintiff’s workplace actionably hostile; no reasonable jury could find the employer discriminated against the plaintiff in delaying her return to work and then transferring her; and no reasonable jury could find the employer retaliated against the plaintiff for her internal and EEOC discrimination complaints. The EEOC filed an amicus brief addressing each of the plaintiff’s claims and advocating for remand.

Agreeing with the EEOC’s arguments, the Second Circuit first held that the plaintiff presented ample evidence from which a jury could find the plaintiff’s workplace was hostile to women and Black workers. The court held that it can “consider incidents that occurred both prior to as well as during the limitations periods in evaluating the merits.” It then held that one instance in which a supervisor berated the plaintiff could, standing alone, be sufficiently severe to be actionable, and that “a jury could find that the discriminatory intimidation, ridicule, and insult that Banks and other Black employees experienced were pervasive,” independently establishing a hostile work environment. “[I]ncidents involving other employees,” the court said, “cannot be ignored.” Instead, whether the plaintiff was aware of the incidents during his employment, and, more significantly, whether in light of these incidents, the incidents the plaintiff experienced more directly would reasonably be perceived, and were perceived, as hostile or abusive, are issues “more appropriate for a trier of fact.” On the disparate treatment claim, the court held that a jury could find that the decisions to delay the plaintiff’s return to work and to reassign her upon her return were adverse actions giving rise to an inference of discrimination. In doing so, the court made clear that “no particular type of personnel action is automatically excluded from serving as the basis of action under Title VII, so long as the plaintiff is aggrieved by the action.” Finally, the court held that there was ample evidence that the defendant retaliated against the plaintiff by terminating her medical benefits while she was on disability leave, delaying her return to work, replacing her while she was on leave, and reassigning her to an undesirable position and shift upon her return. The court held that a six-month lapse between protected activity and a materially adverse action was not too long to support causation, especially given the plaintiff’s direct evidence of the defendant’s retaliatory intent.

Hamilton v. Dallas County, 79 F.4th 494 (5th Cir. 2023) (en banc)

In this Title VII case, the female plaintiffs, detention service officers with the Dallas County Sheriff’s Department, challenged a sex-based scheduling policy allowing only male officers to take full weekends off. The district court dismissed the claim for failure to plead an “adverse employment action,” which Fifth Circuit precedent had construed to mean “ultimate employment decisions such as hiring, granting leave, promoting, discharging, and compensating.” A unanimous panel of the Fifth Circuit affirmed. However, agreeing with the argument of the Department of Justice (DOJ) and the EEOC as amicus curiae, the panel observed that “[t]he conduct complained of here fits squarely within the ambit of Title VII’s proscribed conduct: discrimination with respect to the terms, conditions, or privileges of one’s employment because of one’s sex” and urged the full court to reexamine the atextual ultimate-employment-decision requirement. The Fifth Circuit granted rehearing en banc, and DOJ and the EEOC filed an amicus brief urging the court to overturn its ultimate-employment-decision requirement and hold that shift assignments based on sex (or any other protected characteristic) are actionable under Section 703(a)(1) of Title VII.

The en banc court agreed with the government’s arguments. It held that Section 703(a)(1) does not require an “ultimate employment decision” and that “a plaintiff plausibly alleges a disparate-treatment claim under Title VII if she pleads discrimination in hiring, firing, compensation, or the ‘terms, conditions, or privileges’ of employment.” The court observed that “[n]owhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions.” Restricting liability to “‘ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating,’” ignores the catchall provision prohibiting discrimination “with respect to terms, conditions, or privileges of employment,” rendering the provision “all but superfluous.” Further, the court noted, the Supreme Court has held that the “terms, conditions, or privileges” language is not confined to economic or tangible harm, and that a discriminatory hostile work environment can alter the terms, conditions, or privileges of employment. It is “no wonder” then that no other circuit applies “so narrow a concept of an adverse employment action.” Because the ultimate employment decision standard “lies on fatally flawed foundations, we flatten it today.”

Turning to the plaintiffs’ claims, the court concluded that the plaintiffs plausibly alleged discrimination as to their terms, conditions, or privileges of employment. “The days and hours that one works are quintessential ‘terms or conditions’ of one’s employment,” going to “the very heart of the work-for-pay arrangement.” Additionally, the complaint plausibly alleged that the ability to select work shifts based on seniority was a “privilege” of employment. But, agreeing implicitly that some level of harm is required, the court stated that “Title VII accordingly does not permit liability for de minimis workplace trifles.” The court stated that under any standard it might apply, however, the plaintiffs’ allegations were “far more than ‘de minimis’” and thus satisfied the pleading standard. The court therefore left for another day “the precise level of minimum workplace harm a plaintiff must allege on top of showing discrimination in one’s ‘terms, conditions, or privileges of employment.’”

III. Litigation Statistics

A. Overview of Suits Filed

In FY 2023, EEOC’s field legal units filed 143 merits lawsuits. Merits suits include direct suits and interventions alleging violations of the substantive provisions of the Commission’s statutes, and suits to enforce settlements reached during EEOC’s administrative process. All FY 2023 filings were direct suits alleging substantive violations. Twenty-five filings were systemic suits, and 32 were non-systemic suits that sought relief for multiple individuals. The field legal units also filed 15 actions during the fiscal year to enforce subpoenas issued during administrative charge investigations.

1. Filing Authority

In EEOC’s National Enforcement Plan, adopted in February 1996 and reaffirmed in the Commission’s Strategic Enforcement Plan for Fiscal Years 2018-2022, the Commission delegated litigation filing authority to the General Counsel in all but a few areas. Early in FY 2021, the Commission instituted a process in which all district office litigation recommendations are reviewed by the EEOC Commissioners for a 5-day period to determine which recommendations require a vote by the Commission. The chart below shows the number of suits filed during FY 2023 that were authorized by the General Counsel following review by the Commission and the number approved by a Commission vote.

2. Statutes Invoked

Of the 143 merits suits filed, 64.3% contained Title VII claims, 34.3% contained ADA claims, 8.4% contained ADEA claims, 2.1 % contained EPA claims, 0.7% contained GINA claims, and 9.8 % were filed under more than one statute. No suits containing PWFA claims were filed because the statute did not go into effect until June 27, 2023. (Statute numbers in the chart below exceed the number of suits filed and percentages total over 100 because suits filed under multiple statutes (“concurrent” cases) are included in the totals of suits filed under each of the statutes.)

3. Bases Alleged

As shown in the next chart, retaliation, sex, disability, and race were the most frequently alleged discriminatory bases in EEOC lawsuits filed in FY 2023. Bases numbers in the chart exceed the total suit filings because suits often contain multiple bases.

4. Issues Alleged

As shown in the chart below, discharge/constructive discharge (counted together) were by far the most frequently alleged issues in EEOC lawsuits filed in FY 2023, followed by harassment, hiring, disability accommodation, and terms and conditions.

B. Suits Filed by Bases and Issues

1. Sex Discrimination

As shown below, harassment and discharge/constructive discharge allegations were most often raised in the fifty sex discrimination lawsuits filed in FY 2023.

2. Race Discrimination

As shown in the next chart, harassment was the most frequent allegation in the twenty-four race discrimination suits filed in FY 2023, followed by discharge/constructive discharge.

3. National Origin Discrimination

Harassment was an allegation in five of the eight national origin discrimination lawsuits filed in FY 2023.

4. Religious Discrimination

As shown in the chart below, reasonable accommodation and discharge/constructive discharge claims were raised most often in the ten religious discrimination lawsuits filed in FY 2023.

5. Age Discrimination

As shown in the chart below, hiring and discharge/constructive discharge claims were raised most often in the twelve age discrimination lawsuits filed in FY 2023.

6. Disability Discrimination

Failure to accommodate, discharge/constructive discharge, and hiring were the most frequent claims raised in the forty-nine disability lawsuits filed in FY 2023.

7.  Retaliation

Discharge/Constructive Discharge were by far the most frequent allegations in the fifty-six lawsuits filed in FY 2023 raising retaliation claims.

C. Bases Alleged in Suits Filed from FY 2019 through FY 2023

The table below shows the bases on which EEOC suits were filed over the last 5 years.

D. Suits Resolved

In FY 2023, the Office of General Counsel resolved 98 merits lawsuits, obtaining $22,609,162 in monetary relief for 971 individuals.

1.  Types of Resolution

As the next chart indicates, 85.7% of EEOC’s suit resolutions were settlements, 14.3% were determinations on the merits by courts or juries, of which five of the fourteen were favorable to EEOC. The figures on favorable and unfavorable court orders do not take appeals into account.

2. Monetary Relief by Statute

Of the 98 merits suits resolved, almost all contained Title VII or ADA claims. Statute numbers in the chart below exceed the number of suits resolved and the percentages total over 100 because suits resolved under multiple statutes (“concurrent” cases) are also included in the totals of suits resolved under each statute.

As shown in the next chart, Title VII suits accounted for the great majority of the monetary relief obtained in FY 2023, while ADA suits account for about 16.7%. Recoveries in concurrent suits are not included in the totals for the particular statutes.

E. Appellate Activity

OGC filed ten briefs on appeal in Commission cases in FY 2023, seven as appellant and three as appellee, and one brief in opposition to interlocutory appeal. OGC filed 34 briefs as amicus curiae in private suits.  No Commission cases required Supreme Court briefing. EEOC prevailed in the two merits cases decided on appeal in FY 2023. At the end of FY 2023, EEOC had eleven cases pending in courts of appeals in EEOC suits and was amicus curiae in 33 pending cases.

F.  Attorney’s Fees Awards

EEOC was not ordered to pay attorneys’ fees in any case.

G. Resources

1. Staffing

As shown in the next chart, the number of field attorneys increased from last fiscal year.

*Appellate Attorney numbers include Supervisory Appellate Attorneys and Field Attorney numbers include Regional Attorneys, Assistant Regional Attorneys, and Supervisory Trial Attorneys

2. Litigation Budget

EEOC’s litigation funding allocation for FY 2023 marginally increased over FY 2022.

H.       EEOC 10-Year Litigation History: FY 2014 through FY 2023