FISCAL YEAR 2017 ANNUAL REPORT

 

James L. Lee
Deputy General Counsel

TABLE OF CONTENTS

 

1. Structure and Function of the Office of General Counsel
   1. Mission of the Office of General Counsel
   2. Headquarters Programs and Functions
      1. General Counsel
      2. Deputy General Counsel
      3. Litigation Management Services
      4. Internal Management Services
      5. Appellate Services
      6. Research and Analytic Services
   3. District Office Legal Units
2. Fiscal Year 2017 Accomplishments
   1. Summary of District Court Litigation Activity
   2. Selected Systemic Resolutions
   3. Other Selected District Court Resolutions
   4. Selected Appellate and Amicus Curiae Resolutions
3. Litigation Statistics
   1. Overview of Suits Filed
      1. Filing Authority
      2. Statutes Invoked
      3. Bases Alleged
      4. Issues Alleged
   2. 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. Genetic Information Discrimination
      8. Retaliation
   3. Bases Alleged in Suits Filed from FY 2013 through FY 2017
   4. Suits Resolved
      1. Types of Resolutions
      2. Monetary Relief by Statute
   5. Appellate Activity
   6. Attorney's Fees Awarded against EEOC
   7. Resources
      1. Staffing
      2. Litigation Budget
   8. EEOC 10-Year Litigation History: FY 2008 through FY 2017

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 for a 4-year term, with responsibility for conducting the Commission's litigation program. Under a 1978 Presidential Reorganization Plan, the General Counsel became responsible for conducting Commission litigation under the Equal Pay Act of 1963 (EPA) and the Age Discrimination in Employment Act of 1967 (ADEA) (both formerly enforced by the Department of Labor). Subsequently, the General Counsel's authority was extended to Commission litigation under the employment provisions of the Americans with Disabilities Act of 1990 (ADA) (Title I; effective July 26, 1992) and the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) (Title II; effective November 21, 2009).

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, and GINA, the Commission can sue nongovernmental employers with 15 or more employees. The Commission's suit authority under the ADEA (20 or more employees) and the EPA (no employee minimum, but for most private employers $500,000 or more in annual business) includes state and local governmental employers. Title VII, the ADA, GINA, 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 by agency applicants and employees.

B. Headquarters Programs and Functions

1. General Counsel

The General Counsel is responsible for managing, coordinating, and directing the Commission's enforcement litigation program. He or she also provides overall guidance and management to all components of OGC, including district office legal units. The General Counsel recommends cases for litigation to the Commission and approves other cases for filing under authority delegated to the General Counsel under the Commission's December 2012 Strategic Enforcement Plan. The General Counsel provides reports regularly to the Commission on litigation activities, and advises the 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 as well as the litigation support budget allocated to OGC by the 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 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 staffs. 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 proposed suit filings by regional attorneys, and drafts litigation recommendations to the General Counsel for approval or submission to the Commission. 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 represents the Commission and its officials on claims brought against the Commission by agency employees and applicants for agency jobs, and provides legal advice to the Commission and agency management on employment-related matters.

5. Appellate Litigation Services

Appellate Services (ALS) is responsible for conducting all appellate litigation where the Commission is a party. ALS also participates as amicus curiae, as approved by the Commission, in United States courts of appeals, as well as federal district courts and state courts, in cases involving novel issues or developing areas of the law. 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) provides expert and analytical services for cases in litigation, assists EEOC attorneys in obtaining expert services from outside the agency, and provides technical support to field staff investigating charges of discrimination. RAS has a professional staff with backgrounds and advanced degrees in areas such as economics, statistics, and psychology, who serve as consulting and testifying experts on cases in litigation. RAS also provides services to other agency offices, such as conducting social science research on issues related to civil rights enforcement, advising the agency on the collection of workforce data, and developing and maintaining special census files by geography, race/ethnicity and sex, and occupation.

C. District Office Legal Units

District office legal units conduct Commission litigation in the geographic areas covered by the respective 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 of the field, area, and local offices within districts. Legal units are under the direction of Regional Attorneys, who manage staffs consisting of Supervisory Trial Attorneys, Trial Attorneys, Paralegals, and support personnel.

II. Fiscal Year 2017 Accomplishments

In fiscal year 2017, OGC filed 184 merits lawsuits and resolved 109, obtaining ­­­over $42 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.

A. Summary of District Court Litigation Activity

OGC filed 184 merits suits in FY 2017. 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 2017 merits suits were direct actions, with the exception of one suit to enforce an administrative settlement. In addition to merits suits, OGC filed 17 actions to enforce subpoenas issued during EEOC investigations.

OGC's FY 2017 merits suit filings had the following characteristics:

• 107 contained claims under Title VII (58.2%)
• 11 contained claims under the EPA (6%)
• 12 contained claims under the ADEA (6.5%)
• 76 contained claims under the ADA (41.3%)
• 3 contained claims under GINA (1.6%)
• 61 sought relief for multiple individuals (33%)

The above claims exceed the number of suits filed (and percentages total over 100) because cases sometimes contain claims under more than one statute. There were 24 of these "concurrent" suits (13%) among the FY 2017 filings.

In FY 2017, the Commission filed 30 systemic lawsuits. These suits challenge a variety of types of discrimination, including: national origin-based assignments by a staffing firm; denial of hiring and promotional opportunities based on race, age, and sex; use of medical exams to screen out applicants with disabilities; use of employment tests that have a disparate impact based on sex; harassment; and, maintaining inflexible leave and 100%-healed policies that deny reasonable accommodations for individuals with disabilities. Systemic suits comprised 16.3% of the merits suits filed in FY 2017. At the end of FY 2017, 60 cases on EEOC's active litigation docket were systemic suits, accounting for 24.8% of the 242 active merits suits.

OGC resolved 109 merits suits in FY 2017, recovering $42,362,357 for 4,671 individuals. OGC achieved a successful outcome (settlement or favorable court order) in 90.8% of all suit resolutions. Suit resolutions had the following characteristics:

• 57 contained claims under Title VII (52.3%)
• 4 contained claims under the EPA (3.7%)
• 3 contained claims under the ADEA (2.8%)
• 48 contained claims under the ADA (44%)
• 1 contained a claim under GINA (.9%)
• 39 cases sought relief for multiple individuals (35.8%)
• 4 were concurrent suits (3.7%)

Part III of the Annual Report contains detailed statistical information on OGC's FY 2017 litigation activities, as well as summary information for past years.

B. Selected Systemic Resolutions

This past year, OGC resolved 22 systemic cases, recovering approximately $34 million for victims of systemic discrimination. Below is a sampling of significant outcomes of systemic discrimination lawsuits in FY 2017:

EEOC v. Bass Pro Outdoor World, LLC and Tracker Marine Retail, LLC, No. 4:11-cv-3425 (S.D. Tex. July 25, 2017)

EEOC alleged in this Title VII lawsuit that a national retailer specializing in outdoor sporting goods such as fishing, camping, and hunting equipment (Bass Pro) and an entity operating boat showrooms in Bass Pro megastores (Tracker Marine) denied African American and Hispanic applicants employment in hourly and salaried positions (sales, cashier, manager) due to their race or national origin, and retaliated against employees who opposed discriminatory conduct. A 42-month consent decree, applicable to retail stores operated and fully owned by Bass Pro at any time prior to execution of the decree, provides $10.5 million to affected individuals. Defendants will engage in recruitment activities (detailed in the decree) towards Black and Hispanic applicants; engage in good faith outreach activities to recruit and hire non-White applicants consistent with their availability in the qualified workforce; and make a good faith effort to achieve parity in the hiring rates of qualified White and non-White applicants.

EEOC v. Rosebud Restaurants, Inc., No. 13-cv-6656 (N.D. Ill. May 3, 2017)

EEOC alleged in this Title VII action that an operator of upscale Italian restaurants in Chicago, Illinois, and the surrounding suburbs failed to hire African Americans because of their race. A 4-year consent decree provides $1.9 million to rejected Black or African American applicants. Defendant will use best efforts to meet a hiring goal of two African Americans for every five hires until its workforce has a representation of 11% African Americans companywide. After defendant's initial hiring goal is met, defendant will ensure that a minimum of 11% of new hires companywide are African American. In order to meet the hiring goals, the percentage of African Americans employed at each restaurant may not be less than half of the companywide benchmark, and the percentage of African Americans in server, cook, and host positions may not be less than half of the companywide benchmark.

EEOC v. Mach Mining, LLC and EEOC v. Foresight Energy Services LLC, Nos. 3:11-cv-00879 and 16-cv-01306 (S.D. Ill. Jan. 25, 2017)

EEOC alleged in these two Title VII suits that affiliated southern Illinois coal mining operations failed to hire women into mining and related positions because of their sex. The suits were consolidated for purposes of resolution, and a 3-year consent decree provides $4,250,000 to female applicants rejected for mining positions and females who were deterred from applying or whose applications were not accepted. Defendants will use their best efforts to meet a hiring goal of 34 jobs for women in mining positions at four identified mines by offering one of every three new surface mining positions to a qualified female applicant. Once each mine's hiring goal (a subset of the 34) has been reached, the mine will use its best efforts to maintain that number of female employees for the duration of the decree. Defendants will inform nonparty employment agencies that have provided personnel to work in mining positions that defendants have entered into a consent decree barring discrimination based on sex in hiring and that female applicants for mining positions are welcome and should be referred in the same manner as male applicants.

EEOC v. Allsup's Convenience Stores, Inc., No. 1:15-cv-00863 (D.N.M. Sept. 25, 2017)

EEOC alleged in this Title VII/ADA lawsuit that an operator of over 300 convenience stores in New Mexico and Texas forced pregnant employees (mainly store clerks) with work restrictions to take leave and then discharged them after 60 days (or 12 weeks if FMLA eligible), and that it denied reasonable accommodations to employees with pregnancy-related disabilities and discharged them because of their disabilities. Employees with medical conditions unrelated to pregnancy were permitted to work with restrictions and to exceed 60 days of leave. A 3-year consent decree, applicable to all of defendant's operations in New Mexico and Texas, provides affected individuals $950,000, positive letters of reference, and job offers at a conveniently located store.

EEOC v. Texas Roadhouse, Inc., Texas Roadhouse Holdings LLC, Texas Roadhouse Management Corp., No. 1:11-cv-11732 (D. Mass. March 31, 2017)

EEOC alleged in this ADEA lawsuit that a Kentucky-based national chain of casual dining restaurants denied front-of-the-house (FOH) positions, such as host, server, server assistant, and bartender, to applicants age 40 and older because of their age. Following an almost 4-week trial in early 2017, at which the jury was unable to reach a verdict, the parties resolved the case through a 42-month consent decree applicable to all of defendants' owned or managed Texas Roadhouse restaurants in the United States. The decree provides $12 million in backpay to rejected age 40 and older applicants and requires defendants to engage in recruitment efforts to attempt to increase the percentage of older applicants applying for FOH positions. Defendants will retain a monitor who, among other responsibilities, will review decree compliance every 6 months and prepare annual reports for the parties summarizing the reviews. The monitor will audit restaurants not in compliance with the decree regarding hiring for FOH positions and prepare a report and make recommendations to remedy noncompliance.

EEOC v. United Parcel Service, Inc., No. 1:09-cv-05291 (N.D. Ill. Aug. 8, 2017)

EEOC alleged in this ADA lawsuit that an international package delivery service maintained an inflexible leave policy that resulted in the termination of employees after either 12 months of consecutive leave or a total of 12 months of leave after returning from leave for less than 30 days. A 3-year consent decree, applicable to defendant's facilities nationwide, provides $1,718,500 to aggrieved individuals. Defendant will include in its policies against disability discrimination information on obtaining reasonable accommodations, and the policies will provide that human resources must seek legal advice before terminating an employee who has reached the end of a medical leave of absence.

EEOC v. Georgia Power Co., No. 1:13-cv-03225 (N.D. Ga. Nov. 18, 2016)

EEOC alleged in this ADA lawsuit that an electric utility providing power throughout the State of Georgia denied employment to, and terminated, individuals because of their actual or record of a disability or because it regarded them as disabled. EEOC alleged that without examining applicants and employees or consulting with their medical providers, and sometimes in contravention of the providers' recommendations, defendant's medical director imposed restrictions on applicants and employees that excluded them from positions they were able to perform without imposing a direct threat to themselves or others. A 3-year consent decree provides $1,586,500 to affected individuals. Prior to taking any adverse action against an applicant or employee based on a medical impairment or legally prescribed drug, defendant will provide written notice to the person and invite him or her to provide additional information regarding suitability for employment.

C. Other Selected District Court Resolutions

OGC also achieved notable outcomes in many nonsystemic suits. Below is a sampling of other significant resolutions:

EEOC v. Costco Wholesale Corp., No. 1:14-cv-06553 (N.D. Ill. Dec. 21, 2016)

EEOC alleged in this Title VII action that an international membership warehouse permitted a male customer to sexually harass a female customer-service employee at its Glenview, Illinois, warehouse. In June 2010, a male customer began following the female employee around the warehouse. He also would physically bump into her and hide in places where she was likely to be passing. From about August 2010, the customer began asking the employee out on dates, commenting on her looks, and trying to hug her. The employee complained regularly to defendant managers and even filed a police report, but the customer's conduct continued. The employee left defendant in early September 2011 for medical reasons, and later that month obtained a no-contact order against the customer from an Illinois State court. Following a 7-day trial, the jury returned a verdict for EEOC and awarded the former employee $250,000 in compensatory damages.

EEOC v. Saint Vincent Health Center, No. 16-224 (W.D. Pa. Dec. 23, 2016)

EEOC alleged in this Title VII lawsuit that an Erie, Pennsylvania, healthcare provider failed to accommodate the religious beliefs of employees who refused on religious grounds to be vaccinated against the influenza virus, and discharged them because of their religion. Employees could request religious exemptions from defendant's mandatory seasonal influenza vaccination policy, but were required to obtain certification from a clergy member or other third party that the individual "practices a religion where influenza vaccination is contraindicated according to doctrine or accepted religious practices." The affected employees, who followed various Christian faiths, asked for exemptions from the policy and supplied defendant with their religious objections to being vaccinated, but were discharged for failing to provide sufficient evidence of a sincerely held religious belief that conflicted with the vaccination requirement. A consent decree provides $300,000 to six individuals and requires that defendant offer them reinstatement with retroactive pay, benefit increases, and seniority. If defendant reinstitutes a mandatory influenza vaccination policy during the 2-year term of the decree, it is prohibited from requiring that an applicant's or employee's religious objection to vaccination be endorsed by any particular religion, and will not require ratification of a belief by clergy or other persons.

EEOC v. Orion Energy Systems, Inc., No. 1-C-1019 (E.D. Wis. April 4, 2017)

EEOC alleged in this ADA lawsuit that a Manitowoc, Wisconsin-based manufacturer of energy management systems required an employee, through a wellness program, to submit to medical examinations and inquiries that were not job-related and consistent with business necessity; terminated her in retaliation for her objections to the wellness program; and interfered with her exercise of rights under the ADA. Ruling on the parties' summary judgment motions, the court rejected defendant's position that the wellness program was protected by the ADA's "safe harbor" provision for insurance benefit plans, 42 U.S.C. § 12201(c); however, in spite of a 100% shift in health insurance costs for individuals not participating in the program, the court found the program was voluntary under section 102(d)(4)(B) of the ADA because the employee still had the choice whether to participate. The suit was resolved through a consent decree providing the discharged employee $100,000 and enjoining defendant from maintaining a wellness program that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA.

EEOC v. Taylor Shellfish, Inc., No. 16-1517 (W.D. Wash. July 28, 2017)

EEOC alleged in this Title VII lawsuit that a large west coast producer of shellfish subjected a black employee to a racially hostile work environment, retaliated against him for complaining of the harassment, and constructively discharged him due to race discrimination and retaliation. The employee worked as an assistant maintenance mechanic at a shellfish farm in Bow, Washington. The lead mechanic at the facility referred to the black employee as "nigger," "nigga," "boy," and "spook," and made other racist comments to him. Following a coworker's complaint to a manager about the lead mechanic's racist comments, the manager told the black employee to have "thicker skin" and that he did not want to hear any more complaints unless they were about work. The lead mechanic continued his racist comments and began to scrutinize the black employee more closely and assign him harder work. When the black employee complained to the manager about a particularly abusive incident, the manager issued him a writeup for not doing what he was told and for questioning his supervisor. The black employee resigned a few days later. A 3-year consent decree provides the discharged employee $160,000 ($155,000 constituting compensatory damages) and requires that defendant provide him with a positive job reference, including a statement that he is eligible for rehire.

EEOC v. Commonwealth of Pennsylvania, Office of Open Records, No. 1:15-CV-1895 (M.D. Pa. July 19, 2017)

EEOC alleged in this ADEA lawsuit that a Pennsylvania State agency denied employment to a 55-year-old attorney because of his age. The attorney had practiced law for 30 years, the last 17 with the Pennsylvania Human Relations Commission (PHRC), when he applied for an appeals officer position at a newly created State agency. The agency's executive director told the attorney at his interview that she was concerned he would retire soon after being selected and she would be unable to replace him due to budgetary constraints. The agency hired a 40-year-old candidate for the position. The agency's executive director told EEOC during its investigation of the attorney's age discrimination charge that she removed the attorney from consideration due to an unfavorable reference from the PHRC's former chief counsel. The former PHRC chief counsel told EEOC, however, that she had told the executive director the attorney was very competent, took his work seriously, and was very thorough; she also denied making negative comments about the attorney attributed to her by the defendant agency's executive director. Following a pretrial conference, the court entered judgment against defendant for $60,000 and costs.

EEOC v. Bob Evans Farms, LLC, No. 2:15-cv-12237 (W.D. Pa. Aug. 17, 2017)

EEOC alleged in this Title VII action that a restaurant chain with locations in 18 States reduced the work hours of a food server at its West Mifflin, Pennsylvania, location because of her pregnancy. Approximately 2 months before the server's delivery date, the restaurant's general manager asked her when she planned to take a leave of absence due to her pregnancy. The server replied that she intended to work until she had the baby. The general manager then removed the server from the restaurant's automated scheduling system, which resulted in a drastic reduction in her hours. The court granted summary judgment on liability to EEOC, rejecting defendant's argument that the server was taken off the schedule solely due to the unpredictability of her attendance -- i.e., that the general manager believed an event causing the need for leave with an imminent but unknown date was approaching. The court said the general manager's perception that the server's attendance was "unpredictable" was based solely on her pregnancy, and that this "was just the type of stereotypical judgment that Congress legislated against by enacting the PDA."

EEOC v. Prince Georgia's County, Maryland, No. 1:15-cv-02942 (D. Md. June 1, 2017)

EEOC alleged in this Equal Pay Act suit that a Maryland County paid a female engineer less than males performing equal work. The female engineer was hired into defendant's Department of Environment in March 2012 as an Engineer III. She requested a starting salary of $88,000, but defendant offered her only the lowest salary in the Engineer III range of $60,706 to $118,108, telling her her salary was nonnegotiable. Two weeks later, defendant hired a male into the Engineer III position at his requested salary of $70,000, and thereafter paid him about $10,000 more annually than the female engineer. Following a hearing on the parties' cross-motions for summary judgment, the court issued a one-page order on March 21, 2017, granting EEOC summary judgment on all issues of liability. Relief was determined through a 3-year consent decree providing $139,633.56 in backpay and liquidated damages to the female engineer and $5,769.90 to EEOC in costs. Defendant also increased the female engineer's annual salary from $82,294 to $107,017. The decree requires defendant to hire a consultant, approved by EEOC, to ensure that salary determinations are documented and supported by the record and not based on gender.

EEOC v. Capital Restaurant Concepts, LTD. d/b/a Paolo's - GT LCC, No. 1:16-cv-2477 (D. D.C. July 6, 2017)

EEOC alleged in this Title VII action that a Washington, DC, restaurant subjected an 18-year-old gay male server to a hostile work environment because of his sex. Following the server's April 2015 hire, kitchen staff regularly mocked him about his sexual orientation, including referring to him in Spanish terms akin to the word "faggot," whistling at him, and using a falsetto voice when speaking to him. The server complained numerous times about the kitchen staff's conduct, but was told by the restaurant's general manager that he was too sensitive. After the server complained to the corporate office, the kitchen staff stopped talking to him at all. He resigned in July 2015. A 3-year consent decree provides the former server $50,000 in compensatory damages, and requires defendant to implement revised complaint procedures and a harassment-free work environment policy that includes sexual orientation in the definition of sexual harassment.

EEOC v. Crothall Services Group, Inc., No. 2:15-cv-03812 (E.D. Pa. Dec. 18, 2016)

EEOC alleged that a national provider of janitorial and facilities management services violated section 709(c) of Title VII by failing to maintain records, required under section 1607.4A of the agency's Uniform Guidelines on Employee Selection Procedures (UGESP), that "disclose the impact [an employer's] . . . selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group." Defendant used criminal history assessments in making hiring decisions, and EEOC alleged that defendant failed to make or keep records regarding such use as required by section 1607.4A of UGESP. In ruling on the parties' motions for judgment on the pleadings, the court held that UGESP section 1607.4A was mandatory, rejecting defendant's argument that the language "should maintain and have available . . ." indicated the regulation was merely suggestive of the records an employer might wish to maintain. A 4-year consent decree resolving the case and a related EEOC subpoena enforcement action requires that defendant make and keep records regarding groups described in section 1607.4 of UGESP, and provide detailed information to EEOC every 3 months on the results of criminal history assessments.

D. Selected Appellate and Amicus Curiae Resolutions

In addition to its nationwide litigation program at the district court level, OGC maintains an active appellate program in the federal circuit courts of appeals. Below are some of the notable appellate decisions in fiscal year 2017:

Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61 (3d Cir. Jan. 10, 2017)

The Third Circuit agreed with the Commission's argument as amicus curiae that disparate impact claims on behalf of subgroups of older workers are cognizable under the ADEA. The court said that this conclusion is dictated by the plain language of the statute, 29 U.S.C. § 623(a)(2), which prohibits discrimination "because of . . . age," not because of membership in the protected class (age 40 and older). The court said that Supreme Court precedent supported this interpretation of the statute. In O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), the Court, in reversing a decision requiring a comparator to be outside the protected age group, held that the ADEA's similarly-worded disparate treatment provision, 29 U.S.C. § 623(a)(1), prohibits discrimination based on age, not on membership in the protected class. And in Connecticut v. Teal, 457 U.S. 440 (1982), the Court rejected a "bottom-line" defense to disparate impact discrimination under Title VII. The court of appeals further relied on the ADEA's remedial purpose, saying that refusing to recognize subgroup claims would deny protection to those employees most in need of the statute's protections: older workers.

McLane Corp. v. EEOC, 137 S. Ct. 1159 (April 3, 2017)

The Supreme Court agreed with both the Commission and McLane Corp. that a court of appeals should review a district court's decision on whether to enforce an EEOC Title VII subpoena under an abuse of discretion standard. The Court vacated the judgment of the Ninth Circuit, which had ruled in favor of the Commission under a de novo review standard, and sent the case back to the court of appeals to review the district court's ruling under the correct standard. The Supreme Court's decision also recognized that the Commission has a "broad right of access to relevant evidence" under Title VII, and that the "district court's role in an EEOC subpoena enforcement proceeding . . . is a straightforward one." The Court said that a district court should "'satisfy itself that the charge is valid and that the material requested is "relevant" to the charge,'" and that "[i]t should do so cognizant of the 'generou[s]' construction that courts have given the term 'relevant.'"

Hively v. Ivy Tech Community College of Indiana, No. 853 F.3d 339 (7th Cir. April 4, 2017) (en banc)

In an 8-3 decision, the Seventh Circuit, sitting en banc, agreed with EEOC as amicus curiae that Title VII's prohibition on sex discrimination incorporates a prohibition on sexual orientation discrimination. In addition to overruling the court of appeals' own precedent, the decision departs from contrary holdings of other federal courts of appeals that have ruled on the issue.

The Seventh Circuit first relied on the "comparative method" of analysis. The court said: "The counterfactual we must use is a situation in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner. Hively alleges that if she had been a man married to a woman . . . and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. . . . This describes paradigmatic sex discrimination." The court also relied upon the gender-stereotyping theory articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), saying: "Hively represents the ultimate case of failure to conform to the female stereotype . . . : she is not heterosexual." Next, the court relied on an "associational theory," likening discrimination because of same-sex relationships to discrimination because of mixed-race relationships. The court said that just as the Constitution's Equal Protection Clause prohibits antimiscegenation laws even though prohibitions on mixed-race relationships affect both partners, "So too, here. If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex."

Daniel v. T&M Protection Resources, LLC, 689 F.App'x 1 (2d Cir. April 25, 2017).

The Second Circuit vacated the district court's summary judgment dismissal of the pro se plaintiff's Title VII claims alleging a hostile work environment based on race, sex, and national origin. On the racial harassment claim, the court of appeals, consistent with EEOC's position as amicus curiae, ruled that the district court erred when it rejected as a matter of law the possibility that "the one-time use of the slur 'nigger' from a supervisor to a subordinate can, by itself, support a hostile work environment claim." The court said that prior Second Circuit precedent "did not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment"; and said that "'perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as "nigger" by a supervisor in the presence of his subordinates.'"

EEOC v. Consol Energy, Inc., & Consolidation Coal Co., 860 F.3d 131 (4th Cir. June 12, 2017)

In this Title VII action, EEOC alleged that Consol Energy failed to reasonably accommodate the religious beliefs of coal miner Beverly Butcher and constructively discharged him when it failed to exempt him from a new biometric hand-scanning system at the mine where he worked. Although Consol had a ready and cost-free alternative -- a numerical keypad that it allowed two miners with hand deformities to use -- it required Butcher to choose between scanning his hand - which he believed put him at risk of receiving the Book of Revelation's mark of the beast -- and submitting to progressive discipline. Butcher retired under protest. At trial, the jury returned a verdict for EEOC, resulting in an award of $586,860.74 to Butcher. Consol appealed, and the Fourth Circuit affirmed. Noting that the core of Consol's defense was its position that Butcher's interpretation of Scripture was erroneous, the court stated: "It is not Consol's place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher's religious understandings." Rather, "So long as there is sufficient evidence that Butcher's beliefs are sincerely held . . . and conflict with Consol's employment requirement, that is the end of the matter."

Guido v. Mount Lemmon Fire District, 859 F.3d 1168 (9th Cir. June 19, 2017)

The Ninth Circuit agreed with EEOC's argument as amicus curiae that the ADEA's 20-person minimum employee requirement does not apply to political subdivisions of a state. The court found that the plain language of the statute compels this result. The court agreed with EEOC that if Congress intended to make the 20-employee minimum applicable to political subdivisions when it amended the ADEA in 1974 to cover public employers, it could have done so through the same language it used just 2 years earlier when, in amending Title VII to expand coverage to public employers, Congress expressly applied Title VII's 15-employee minimum to public as well as private employers.

EEOC v. Union Pacific Railroad Co., 867 F.3d 843 (7th Cir. Aug. 15, 2017).

In this Title VII subpoena enforcement action, EEOC sought hiring records in connection with its investigation into two charges of race discrimination. During EEOC's investigation, the charging parties requested right-to-sue notices, filed suit, and then lost their suit on the merits. EEOC continued its investigation because it believed other individuals may have been affected by the alleged discrimination, but the employer resisted, contending that the agency lost its investigatory authority with issuance of the right-to-sue notices, or when the district court entered judgment against the charging parties. The district court enforced EEOC's subpoena for the hiring records, Union Pacific appealed, and the Seventh Circuit affirmed. The court ruled that "while a valid charge is a requirement for beginning an EEOC investigation, nothing in Title VII supports a ruling that the EEOC's authority is then limited by the actions of the charging individual." The court also held that EEOC's independent authority permits it to pursue investigations even where the charging party is barred from bringing suit, or, as in the present case, the private suit is resolved on the merits, because EEOC's "enforcement authority is not derivative of the legal rights of individuals even when it is seeking to make them whole."

Watford v. Jefferson County Public Schools, 870 F.3d 448 (6th Cir. Sept. 1, 2017)

Agreeing with EEOC's argument as amicus curiae, the Sixth Circuit held that a collective bargaining agreement providing for the suspension of arbitration upon the employee's filing of an EEOC charge is facially retaliatory. The court determined that suspending arbitration and thereby depriving an employee of the benefit of a speedy resolution to her case would deter a reasonable employee from filing a charge and is therefore an adverse action within the meaning of Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

III. Litigation Statistics

A. Overview of Suits Filed

In FY 2017, EEOC's field legal units filed 184 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 2017 filings were direct suits, with the exception of one suit to enforce an administrative settlement. Thirty filings were systemic suits and 31 were nonsystemic suits that sought relief for multiple individuals. The field legal units also filed 17 actions during the fiscal year to enforce investigative subpoenas.

1. Filing Authority

In EEOC's National Enforcement Plan, adopted in February 1996 and reaffirmed in the Commission's December 2012 Strategic Enforcement Plan, the Commission delegated litigation filing authority to the General Counsel in all but a few areas. The General Counsel has redelegated much of this authority to EEOC's 15 regional attorneys though all cases are reviewed by Office of General Counsel headquarters staff prior to suit filing.

2. Statutes Invoked

Of the 184 merits suits filed, 58.2% contained Title VII claims, 41.3% contained ADA claims, 6.5% contained ADEA claims, 6% contained EPA claims, 1.6% contained GINA claims, and 13% were filed under more than one statute. (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, disability (40.8%), sex (35.3%), retaliation (29.3%), and race (11.4%) were the most frequently alleged bases in EEOC suits. Bases numbers in the chart exceed the total suit filings (184) because suits often contain multiple bases.

4. Issues Alleged

Discharge was the most frequently alleged issue (65.2%) in EEOC suits filed, followed by harassment (30.4%), hiring (23.9%), and disability accommodation (23.4%). (Counts of discharge include constructive discharge.)

B. Suits Filed by Bases and Issues

1. Sex Discrimination

As shown below, 86.2% of cases with sex as a basis contained a harassment allegation; 40% contained a discharge allegation.

2. Race Discrimination

Harassment was the most frequently alleged issue (61.9%) in suits containing race discrimination claims, followed by discharge (28.6%).

 

3. National Origin Discrimination

As shown in the next chart, harassment was the most frequently alleged issue (62.5%) in suits where national origin was a basis.

4. Religious Discrimination

Failure to accommodate was an issue in all 12 religious discrimination cases filed, and discharge was an issue in 9.

5. Age Discrimination

Hiring was an issue in 6 of the 12 cases with age discrimination claims, and discharge was an issue in 4.

6. Disability Discrimination

Discharge was the most frequently alleged issue in disability suits (68%), followed by failure to accommodate (57.3%) and hiring (29.3%).

                                                       

7. Genetic Information Discrimination

Prohibited medical inquiry was the only issue in the three cases raising GINA claims.

 

8. Retaliation

Discharge was an issue in 88.9% of the suits containing retaliation claims

 

C. Bases Alleged in Suits Filed from FY 2013 through FY 2017

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

 

D. Suits Resolved

In FY 2017, the Office of General Counsel resolved 109 merits lawsuits, obtaining $42,362,357 in monetary relief.

1. Types of Resolutions

As the chart below indicates, 85.3% of EEOC's suit resolutions were settlements, 12.8% were determinations on the merits by courts or juries, and 1.8% were voluntary dismissals. (The figures on favorable and unfavorable court orders do not take appeals into account.)

2. Monetary Relief by Statute

Of the 109 merits suits resolved during the fiscal year, 52.3% contained Title VII claims and 44% contained 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 below, Title VII suits accounted for about 51% of monetary relief obtained in FY 2017, ADEA suits for about 29%, and ADA suits for about 17%. Recoveries in concurrent suits are not included in the totals for the particular statutes.

E. Appellate Activity

OGC filed briefs as appellant in 14 merits cases during FY 2017, and as appellee in 4 cases. At the end of FY 2017, OGC was handling 18 appeals in the federal courts of appeals involving merits suits, 13 as appellant and 5 as appellee. OGC was also handling three appeals in subpoena enforcement actions, two as appellant and one as appellee. In addition, EEOC was participating as amicus curiae in 28 private suits in appellate or trial courts.

In FY 2017, EEOC prevailed in eight appeals on merits cases and did not prevail in five appeals. In subpoena enforcement cases, EEOC prevailed in five appeals and did not prevail in one appeal. Considering merits, subpoena, and amicus cases in the aggregate, EEOC had 27 wins and 16 losses -- a 63% success rate.

F. Attorney's Fees Awarded against EEOC

No final awards of attorney's fees were issued against the agency in FY 2017 based on the defendant having prevailed on the merits of the suit.

G. Resources

1. Staffing

The number of field trial attorneys has declined over the past 5 years.

*includes Regional Attorneys

2. Litigation Budget

EEOC's litigation funding was comparable to the last several fiscal years.

 

H. EEOC 10-Year Litigation History: FY 2008 through FY 2017