EEOC History: 2010 - 2019

Milestones: 2010

• All EEOC employees at HQ and in the field are given a portable laptop to use in the office while teleworking and when traveling.

Notable Supreme Court Decisions

• Only one decision relevant to the EEOC came down this term. The Court held in Lewis v. City of Chicago that an employee who does not challenge the adoption of an allegedly discriminatory practice may assert a disparate impact claim in a timely charge challenging the employer's later application of that practice. 

Notable EEOC Resolutions

• The Commission settled EEOC v. Roadway Express and YRC, Inc. (N.D. Ill. Dec. 21, 2010) for $10 million for African American employees subjected to a racially hostile working environment and racial discrimination in terms and conditions of employment.
• EEOC v. Scrub, Inc. (N.D. Ill. Nov. 9, 2010) settled for $3 million for African-American applicants who were denied hire because of their race.  The EEOC alleged that the company failed to recruit and hire black applicants for entry-level janitorial positions when it relied on a subjective decision-making process without clear objective criteria for hiring employees.
• EEOC v. Wal-Mart Stores, Inc. (E. D. Ky. Mar. 1, 2010) was resolved for $11.7 million for female applicants who were denied jobs into entry-level warehouse positions because of their sex.  The EEOC alleged that the company excluded female appli­cants who were equally or better qualified than male applicants because of gender stereotypes that positions which involved loading and delivery duties, were not suitable for women.

• The Commission resolved EEOC v. ABM Industries, Inc. and ABM Janitorial Services, Inc., et al. (E.D. Cal. Sept. 27, 2010) for $5.8 million for a class of 21 Hispanic female janitorial workers who were subjected to sexual harass­ment.  The abuse included unwelcome touching, explicit sexual comments and requests for sex by 14 male co-workers and supervisors, one of whom was a registered sex offender.  Some of the harassers allegedly often exposed themselves, groped female employees' private parts from behind, and even raped at least one of the victims. 

  

• EEOC v. Akal Sec. Inc. (D. Kan. Dec. 1, 2010) settled for $1.62 million for a class of 26 female employees discriminated against on the basis of their pregnancy.  The EEOC alleged that the company engaged in a pattern or practice of forcing its pregnant employees, who were working as contract security guards on U.S. Army bases, to take leave and discharging them because of pregnancy. 
• In EEOC v. Republic Services, Inc., et al. (D. Neb. Sept. 29, 2010), the EEOC settled for almost $3 million for a class of older workers who were terminated and denied job transfer opportunities because of their age.  Those terminated included garbage collectors, drivers and supervisors, some of whom were employed by the company for more than 25 years.  

EEOC Regulations

• The EEOC issued the final rule implementing Title II (the employment discrimination portions) of GINA (Nov. 2010). 
• The EEOC published a NPRM which proposed to define the scope of the Reasonable Factors Other Than Age (RFOA) defense to ADEA disparate impact. 

EEOC Resource Documents

• The Commission also issued resource documents on "Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008" (Nov. 2010) and "Questions and Answers for Small Businesses:  EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008" (Nov. 2010)

Milestones: 2011

• The EEOC received nearly 99,947 charges during the fiscal year -- the highest number in the history of the Commission.  The EEOC managed to resolve 112,000 charges during the same fiscal year. The agency's inventory of pending charges declined for the first time since 2002.
• The EEOC's private sector administrative enforcement activities secured more than $364.6 million in monetary benefits in fiscal year 2011, the highest level of monetary relief ever obtained by the Com­mis­­sion through the administrative process.  This is $45 million more than was recovered in FY 2010. 
• The Commission increased its cooperative efforts with other agencies.  These efforts included participating in the Asian-American and Pacific Islander (AAPI) Task Force, the National HIV / AIDS Strategy, the National Reentry Council and the White House Equal Pay Task Force.  In February, the EEOC hosted the first-ever forum in which the leaders of the EEOC, the DOJ's Civil Rights Division and OFCCP met together with EEOC staff to discuss cooperative efforts.
• Pursuant to the President's Executive Order 13522, "Creating Labor-Management Forums to Improve Delivery of Government Services," the EEOC established a National Joint Labor Management Council (JLMC) in addition to councils in each of its 15 districts, the Washington Field Office, and head­quarters.  The National JLMC established three metrics to measure goal-related activities associated with implementing the executive order: "Improve Mission and Service Delivery," "Employee Satis­faction and Engagement" and "Improved Labor-Management Relations."         

• An independent contractor retained by the EEOC issued its "Evaluation of the Priority Charge Handling Procedures Report," reviewing the EEOC's priority charge handling process (PCHP).  The report contained four major findings and several recommendations to strengthen PCHP nationwide.  
   

  Evaluation of the Priority Charge Handling Process - 2012

  The report by the independent contractor concluded:

  • current implementation of PCHP is not consistent with the original design of the process approved by the Commission in 1995, or in the subsequent 1997 joint task force's report (i.e., the agency "has not uniformly embraced and fully implemented key components of the PCHP Policy);
  • the data kept on PCHP does not lend itself to drawing either positive or adverse trends in the enforcement of discrimination laws;
  • implementing the charge management system (and PCHP) process more broadly will consistently require a "focused and extensive commitment by management in headquarters and the field; and
  • the EEOC could benefit from not only examining shared best practices within headquarters and field offices, but should proactively initiate processes "to see how various offices implement them … and evaluate their usefulness on improving charge-processing results.
• On Oct. 9, the EEOC and Office of Federal Contract Compliance Programs of the DOL (OFCCP) entered into a new Memorandum of Understanding (MOU), replacing one which had been in place since 1999.  This MOU provided for the EEOC and OFCCP to cooperate on a number of levels, most importantly, exchanging information about employers and coordinating their respective enforcement efforts.

Notable Supreme Court Decisions

• The Court issued four decisions relevant to the laws enforced by the EEOC. Two involved the scope of anti-retaliation provisions; one discussed employer liability for the discriminatory animus of a supervisor; and the fourth, restricted a large, private class action against Wal-Mart involving sex discrimination. Please see the section on Supreme Court decisions for more details.

Notable Appellate Decisions

• In Hoyle v. Freightliner, LLC, 650 F.3d 321 (4^th Cir. Apr. 1, 2011), the EEOC filed an amicus brief in this Title VII harassment and retaliation case to argue that an employee need not show she was the target of harassment in order to establish that harassment was "because of" sex, as long as she can show that her work environment exposed to her to disadvantageous conditions to which men were not exposed. 
• In EEOC v. Minnesota Dep't of Corrections & Minnesota Law Enforcement Ass'n, No. 10-2699, 2011 WL 5444117 (8^th Cir. Aug. 10, 2011) the Eighth Circuit affirmed the judgment of the district court and held an early retirement incentive plan violated the ADEA where it offered extended health and dental insurance benefits to those workers employed by the Minnesota Department of Corrections who retired at age 55, but explicitly deprived workers older than 55 of the benefits based solely on their age.
• The issue presented in Hernandez-Miranda v. Empresas Diaz Masso, 651 F3d 167 (1st Cir. 2011) was what is the relevant year for counting employees to determine the damages cap under the Civil Rights Act of 1991.  The First Circuit, agreeing with the Commission's arguments as amicus curiae, held that reference in the statute to "current or preceding year" refers to the year the discrimination occurred, not the year of the judgment. 

Notable EEOC Trial Victories

• In EEOC v. Mid-American Specialties, Inc., 774 F.Supp.2d 892 (W.D. Tenn. Mar. 2, 2011), a jury awarded $1.5 million to three women subjected to sexual harassment and retaliation.  The jury found that two male managers subjected female employees to severe and unwelcome sexual harassment, includ­ing exposure of private body parts and demands for "kissing" to receive the sales leads necessary for the women to earn commissions.  The verdict was reduced under Title VII's statutory caps.

Notable EEOC Resolutions

• EEOC v. Verizon Maryland, Inc., et al. (D. Md. Jul. 6, 2011) settled for $20 million for a class of employees with disabilities who were denied reasonable accommodations, disciplined and/or fired, in violation of the ADA. The EEOC alleged that the company refused to make exceptions to its "no fault" attendance plans to accommodate employees with disabilities.  This settlement represents the largest disability discrimination settlement in a single lawsuit in EEOC's history.
• In EEOC v. International Profit Associates, Inc. (N. D. Ill. Mar. 2, 2011), the Commission settled for $8 million for 80 women subjected to sexual harassment.  The harassment included sexual assaults, solicitations for sex, offensive sexual comments, derogatory comments about women, groping and displays of pornography.  Shortly before trial, the defendant admitted liability.
• EEOC v. Supervalu/Jewel-Osco (N.D. Ill. Jan. 5, 2011) settled for $3.2 million for 110 former employees who were terminated at the end of their disability leave. The EEOC alleged that the company had a policy and practice of terminating employees with disabilities at the end of medical leaves of absence rather than reasonably accommodating those who wanted to return to work.

EEOC Regulations

• On March 25, the Commission issued regulations implementing the ADAAA, which changed the ADA definition of "disability."  The regulations make clear that courts are to give an expansive definition to the term "substantially limits," thereby overruling the Supreme Court's narrow interpretation.  The regulations also clarified that the ADAAA expanded the definition of "major life activities" to include major bodily functions.  

EEOC Resource Documents

• The Commission also issued plain-English fact sheets, entitled "Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008" (Mar. 2011); "Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008" (Mar. 2011); and "Fact Sheet on the EEOC's Final Regulations Implementing the ADAAA" (May. 2011). 

Milestones: 2012

• The Commission voted to approve the fiscal years 2012-2016 Strategic Plan.  The plan serves as a frame­work for the Commission to achieve its mission to stop and remedy unlawful employment dis­crim­ination, so that the nation might soon realize the Commission's vision of justice and equality in the workplace. This is outlined through three strategic objectives: strategic law enforce­ment, education and outreach, and efficiently serving the public.  The three strategic objectives each have a number of performance measures detailing outcomes to be achieved during the four year period the Plan is in effect.
• The EEOC received 99,412 charges in FY 2012, but resolves a total of 111,139 charges, the second highest number in the EEOC's history. The Commission secured more than $365.4 million in monetary benefits through its private sector adminis­trative enforcement activities, the highest level of monetary relief ever obtained by the Commission.  Over 23,000 individuals received monetary relief.  Of particular note was the increased number of charges resolved through successful conciliations, with 1,591 in fiscal year 2012 -- an 18% increase from the previous year.
• The EEOC started to design two projects that use technology to streamline services and increase agency responsiveness to customers.  The first one, an online tool for deter­mining the status of individuals' charges, would enable individuals who have filed charges to go online and determine where their charge is in the administrative process.  It would reduce the number of calls to staff, permitting staff to focus on investigating and resolving cases.  A second project involved uploading documents submitted by employers.
• The EEOC trained 1,492 enforcement personnel from federal, state, and local civil rights enforce­ment agencies on techniques for investigating and analyzing violations of compensation discrim­ination laws.  The agency also conducted over 70 free joint outreach events with other agencies in the National Equal Pay Enforcement Task Force, including OFCCP, DOL's Wage and Hour Division and Women's Bureau, and the Department of Justice, reaching over 1,700 attendees.
• The agency increased its communications and partnerships with the AAPI community, conducting 197 events, reaching 24,414 people, raising awareness about the EEOC and the laws preventing national origin discrimination in the workplace.

Notable Supreme Court Decisions

• The Supreme Court held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that based on the First Amendment's Free Exercise and Establishment Clauses, ministers are barred from pursuing employment discrimination claims against their religious employers. This case involved an ADA challenge to a church school.
• In a matter involving appellate procedures for federal employees, the Court held in Kloeckner v. Solis that all federal employee "mixed-case" appeals from the Merit System Protection Board (MSPB) involving both employment discrimination and Civil Service Reform Act claims are appealable to the federal district court instead of the federal courts of appeals, even if the MSPB decided the case on procedural grounds.

Notable Appellate Decisions

• In EEOC v. KarenKim, Inc., d/b/a Paul's Big M, d/b/a/ Paul's Big M Grocery, 698 F.3d 92 (2d Cir 2012), after a jury found that the defendant had subjected a class of female employees to a sexually hostile work environment and awarded $1.26 million to a class of 10 women,, the EEOC sought injunctive relief which the district court denied the injunctive relief and the EEOC appealed. The Second Circuit ruled in favor of the EEOC and held that injunctive relief was necessary to address the "cognizable danger" of an employer "engag[ing] in 'recurrent violations' of Title VII."
• In EEOC and Serrano v. Cintas Corp., 699 F.3d. 884 (6^th Cir. 2012) (reh'g and reh'g en banc denied), the Sixth Circuit overturned the district court's decision and held that the EEOC could pursue its pattern-or-practice claim under the Teamsters framework when it brings suit under section 706 of Title VII.  The Sixth Circuit also overturned an award of $2.6 million in attorney fees, holding that the district court abused its discretion when it awarded fees on the basis of what it termed "unreasonable conduct" by EEOC.
• In Lewis v. Humboldt, 681 F.3d 312 (6^th Cir. 2012) (en banc), the Sixth Circuit agreed with the Commission's amicus brief and held that a plaintiff need not show his or her disability was the sole cause of the employer's action in order to establish a violation of the Americans with Disabilities Act.  The majority found that a plaintiff must show his or her disability was the "but for" cause of the employer's action.

Notable EEOC Resolutions

• The Commission settled EEOC v. Yellow Transportation, Inc. and YRC, Inc. (N. D. Ill. June 29, 2012) for $11 million for a class of African American employees who faced race harassment and discrimination at the company, including multiple incidents of hangman's nooses and racist graffiti, comments and cartoons.  Yellow and YRC also disciplined black employees more harshly than their white counterparts and gave them more difficult and time-consuming work assignments. 
• EEOC v. Central Calif. Found. for Health d/b/a Delano Regional Medical Center and Delano Health Associates, Inc., (E.D. Cal. Sept. 17, 2012) settled for $975,000 for a class of Filipino-American hospital workers who were the targets of harassing comments, undue scrutiny and discipline when speaking with a Filipino accent or in Filipino languages like Tagalog or Ilocano.  Supervisors, staff, and even volunteers berated and reprimanded Filipino-American employees, made fun of their accents, and ordered them to comply with the hospital's English-only policy, although non-Filipino workers were allowed to speak their native languages.  
• In EEOC v. Fry's Electronics, Inc. (D. Wash. Aug. 30, 2012), the EEOC settled for $2.3 million for a sales associate who was sexually harassed by an assistant store manager, and for a supervisor who was terminated in retaliation for reporting the harassment to defendant's legal department.  The settlement followed sanctions, including a $100,000 penalty imposed by a federal judge against Fry for abusive discovery tactics which included destroying relevant evidence, wrongfully withholding evidence and filing frivolous motions.

 Public Conciliation Agreement:

• In January, the EEOC and Pepsi Beverages entered into a landmark conciliation agreement concerning the company's use of criminal background checks. The policy denied employment to applicants who had been arrested and had never been convicted of any offense. The policy also denied employment to applicants who had been convicted of only minor offenses.  More than 300 African Americans had been adversely affected by the policy.  Pepsi agreed to offer jobs and pay $3.13 million to the victims.  The company also eliminated this unlawful job barrier for future applicants. 

Notable Federal Sector Decisions

• In Macy v. Dep't of Justice, EEOC Appeal No. 0120120821, the Commission found hat claims of discrimination based on transgender status or gender identity are covered under Title VII's sex discrimination prohibition. This is the first time the EEOC specified that discrimination on the basis of transgender status is gender stereotyping, and covered by Title VII.

EEOC Regulations

• In 2012, the EEOC issued the following two regulations:
  • A final rule on Disparate Impact and Reasonable Factors Other Than Age (RFOA) under the Age Discrimination in Employment Act (ADEA) (Mar. 2012).  This rule harmonizes the Commission's position with a recent Supreme Court case interpreting the ADEA. 
  • A final rule to revise its regulations for processing equal employment opportunity complaints by federal sector employees and job applicants. Some of the revisions include: allowing federal agencies to pilot alternative complaint processing procedures subject to Commission approval, requiring agencies that do not complete an EEO investigation in a timely manner to issue a written notice of rights to complainants, and requiring agencies to submit complaint files and appeal documents to the Commission in digital format unless they can establish good cause for not doing so.

EEOC Guidance

• The EEOC issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act (Apr. 2012), which addresses the discriminatory use of criminal records in making employment decisions and reaffirms earlier Commission guidance on this subject.  The guidance provided information to employers on the disparate impact analysis and the defense of "job-related and consistent with business necessity" as applied to using criminal records to screen job applicants.

EEOC Resource Documents

• The EEOC issued the following resource documents in 2012:
  • Questions and Answers on EEOC Final Rule on Disparate Impact and “Reasonable Factors Other Than Age” Under the Age Discrimination in Employment Act of 1967 (Mar 2012).

Milestones: 2013

• Sequestration due to budget and other issues, as well as limited resources, forced the EEOC at midyear to furlough all agency employees for 40 hours (five work days). And, at the start of the new fiscal year in October, the lack of a budget or continuing resolution resulted in a government-wide shutdown, forcing the EEOC to close down for another 16 days. 
• Despite these upheavals, the EEOC secured a record $372 million in mone­tary relief for the victims of discrimination through administrative enforcement. The Commission continued to achieve results in its systemic investigations, resolving 300 systemic investigations and securing over $40 million in relief for more than 8,300 individuals. The agency reported that 54 out of 231, or 23% of the cases on the litigation docket are systemic, continuing the trend to focus the EEOC litigation on those cases that will have the most impact.
• The EEOC designed and implemented a new case management system for federal sector hearing cases. It involves early categoriza­tion of a case, followed by an Administrative Judge (AJ)-led conference with the parties.  At the conference, the AJ sets out how discovery will move the case to eventual resolution. 
• The Commission's outreach, education and technical assistance efforts focused on increasing volunt­ary compliance with federal equal employment laws.  Commission staff participated in over 3,800 no-cost outreach and educational programs.
• For the first time in the history of the EEOC's EXCEL Conference, private sector employers and officials from state and local Fair Employment Practice Agencies (FEPAs) joined federal sector repre­sentatives for three days of EEO training.  This conference provided two keynote presenters, including Lilly Ledbetter, in celebration of the 50th anniversary of the Equal Pay Act.

Notable Supreme Court Decisions

• The Supreme Court held in Vance v. Ball State University that an employer may be held vicari­ously liable for a supervisor's unlawful harassment only when the employer has empowered that person to take tangible employment actions against the victim. In University of Texas Southwestern Med. Ctr. v. Nassar,  the Court ruled that the "but for" causation standard applies to Title VII's retaliation provision.

Notable Appellate Decisions

• In EEOC v. Boh Bros. Constr., 731 F.3d 444 (5th Cir. 2013) (en banc), the Fifth Circuit affirmed a jury verdict of $451,000 for the EEOC in a same-sex harassment case. The court held that a plaintiff alleging same-sex harassment can show that the harassment occurred because of sex by showing that it was motivated by the harasser's subjective perception that the victim failed to conform to gender stereotypes, and that the EEOC had sustained its burden by producing evidence that the harasser viewed his victim as "not manly enough."  
• In EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013), the Fifth Circuit overturned a district court's decision dismissing the EEOC lawsuit alleging that the charging party was fired after she requested permission to pump breast milk at work.  The Fifth Circuit unanimously held, as a matter of first impression, that taking an adverse employment action against a woman because she is lactating or expressing milk states a claim of sex discrimination under Title VII. 
• In EEOC v. AutoZone, Inc., 707 F.3d. 824 (7^th Cir. 2013), the Seventh Circuit affirmed a $424,000 jury verdict against AutoZone for violating the ADA when it failed to reasonably accommodate the charging party who suffered from severe back pain.  The court also upheld an injunction requiring AutoZone to provide a reasonable accommodation for employees with physical disabilities in all of its central Illinois stores.

Notable EEOC Trial Victories

• In EEOC v. Exel, Inc., an Atlanta jury awarded $500,000 against a Westerville, Ohio-based warehouse and distribution company for failing to promote a female to a supervisory position because of her gender.
• In EEOC v. Hill County Farms, Inc., d/b/a Henry's Turkey's Servs., 899 F.Supp.2d 827 (S.D. Io. 2012), aff'd 564 F. App'x. 868 (8thCir. 2014), a jury entered a verdict for the EEOC and awarded $240 million for 32 men with intellectual disabilities who were discriminated against by non-payment of wages, severe verbal and physical harassment, and disparate terms and conditions of employment, all in violation of the ADA.  The jury heard evidence that company subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; required them to live in deplorable and sub-standard living conditions; and failed to provide adequate medical care when needed. This jury verdict is the largest ever obtained by the EEOC. The amount awarded for compensatory and punitive damages was later reduced to $1.6 million according to the statutory caps. The Final Judgment which added an earlier court award for unpaid wages was entered for a total judgment in the case of $3.7 million.

Notable EEOC Resolutions

• In EEOC v. Mesa Sys., Inc. (D. Utah Sept. 27, 2013), the Commission settled for $450,000 for Hispanic employees subjected to national origin discrimination, including derogatory slurs and a restrictive language policy which disparately impacted Hispanics and Asian/Pacific Islanders. The company also retaliated against the victims after they complained to the defendant. 
• EEOC v. Presrite Corp. (N.D. Ohio Apr. 23, 2013) settled for $700,000 for a class of female employees who were denied hire because of their sex.  The EEOC charged that the company consistently passed over female applicants in favor of less-qualified males for entry-level positions.  Those women who were hired, were told that women should not be working there and called derogatory names.   
• In EEOC v. Global Horizons Inc., et.al (Del Monte Fresh Produce), No. CV 11-00257 (D.Haw. Nov. 18, 2013), the Commission settled for $1.2 million in monetary damages and extensive injunctive relief.  The EEOC charged that a class of Thai agricultural workers were trafficked to the U.S. under H2-A visas and subjected to deplorable working conditions, including harassment, lower wages, prohibited from leaving the farm, and threats of deportation.  The company, a farm labor contractor, and several farms, including Del Monte, also retaliated against the workers, some of whom subsequently escaped and sought help.

Notable Federal Sector Developments

• In March, the Commission issued a comprehensive report addressing major obstacles hindering equal employment opportunities for African-Americans in the federal workforce, in addition to highlighting stakeholder recommendations. In December, the EEOC issued a similar report for women.
• The Commission's Office of Federal Operations formed the LGBT Workgroup, charged with examining obstacles to equal employment opportunity for LGBT individuals employed, or applying for employ­ment, in the federal sector.
• In Garcia, et al. v. Dep't of Justice, EEOC Appeal No. 0120122033, the Commission found sex dis­crimination with respect to a class of female special agents who were denied certain foreign assign­ments.
• Over 300 federal agencies submit their MD-715 data to the EEOC via the new online government-to-government portal: the federal sector EEO Portal (FEDSEP).

EEOC Resource Documents

• The EEOC issued a technical assistance document, The Mental Health Provider's Role in a Client's Request for a Reasonable Accommodation at Work" (May 2013).  The document describes how mental health professionals can assist clients in obtaining needed accommodations, including the type of medical documentation that is helpful in substantiating the client's request.
• The EEOC updated several technical assistance documents to reflect the ADAAA and its new, broader definition of disability, including:
  • Cancer in the Workplace and the ADA (May 2013).
  • Diabetes in the Workplace and the ADA (May 2013)
  • Epilepsy in the Workplace and the ADA (May 2013)
  • Persons with Intellectual Disabilities in the Workplace and the ADA (May 2013).

Milestones: 2014

• On Sept. 1, President Barack Obama named Jenny R. Yang to be the Chair of the EEOC.  She is the first Asian-American to serve in this position.  Yang had served as Vice Chair of the EEOC since April 2014 and began serving as Commissioner in April 2013. 

  

• July 2 marked the 50th anniversary of passage of the Civil Rights Act of 1964. Title VII of the act made illegal employment discrimination  on the basis of race, color, national origin, sex or religion.  The act also created the EEOC to enforce the law, and promote equal employment oppor­tunity.  The Commission opened its doors on July 2, 1965, a year after the landmark legislation was signed. 
• At the end of fiscal year 2014, the EEOC had 228 cases on its active litigation docket, of which 57 (25%) involve challenges to systemic discrimination.  This is the largest percentage of systemic lawsuits since the agency began to focus on systemic enforcement in 2006. The EEOC's Federal Hearings Program resolves a total of 6,347 complaints and secures more than $74 million in relief for federal employees and applicants who request a hearing on their federal complaints. 

• The EEOC continued to partner with other government agencies to eliminate duplication and increase efficiency across the federal government.  The EEOC signed a National Memor­andum of Understanding (MOU) with the Embassy of Mexico to coincide with the many MOUs EEOC field offices have with Mexican consul­ates around the country.  The MOU identified ways in which the EEOC and the Mexico govern­ment will work together to reach and protect the rights of members of the Mexican community working in the United States.

  

• The EEOC Training Institute offered education programs to over 18,000 individuals at more than 420 events, generating approximately $3.3 million in revenue.
• EEOC mission systems (Integrated Mission System and Document Management System) were moved to cloud-based managed services, reducing the costs for system operations.

Notable Appellate Decisions

• In EEOC v. Baltimore County, 747 F.3d 267 (4th Cir. 2014), the Fourth Circuit affirmed the grant of partial summary judgment to the EEOC, finding that Baltimore County maintained a retire­ment plan in violation of the ADEA. The court noted that Baltimore County's plan impermissibly "mandated different contribution rates that escalated explicitly in accordance with employees' ages at the time of their enrollment in the plan." 
• In EEOC v. LHC Group, Inc., d/b/a Gulf Coast Homecare, 773 F.3d 688 (5th Cir. 2014), the Fifth Circuit reversed the lower court's grant of partial summary judgment to the defendant and found that there were factual disputes regarding whether the employer was motivated to terminate the employee because of disability. The court also held that when courts determine the essential functions of a position, the deference they owe to the employer's position description should be overridden if the evidence shows that the employer did not actually require employees to perform the challenged function.
• In Mazzeo v. Color Resolution Int'l, Inc., F.3d 1264 (11th Cir. 2014), plaintiff alleged that he was fired from the company because of his disability and age. The Eleventh Circuit held that the affidavit from Mazzeo's treating physician was sufficient under the ADAAA to show that his disability substantially limited a major life activity, citing to the EEOC's regulations.  The circuit court also vacated the district court's grant of summary judgment on Mazzeo's age discrimination claim because the district court erroneously applied the incorrect prima facie test.
• In EEOC v. A.C. Widenhouse, Inc., the Fourth Circuit upheld the jury verdict of more than $243,000 and injunctive relief for victims of racial harassment and retaliation by A.C. Widenhouse, Inc., a Concord, N.C.-based trucking company.  Two truck drivers were repeatedly subjected to unwelcome derogatory racial comments and slurs by the facility's general manager, (who was also their supervisor), the company's dispatcher, several mechanics and other truck drivers, all of whom are white.
• In EEOC v. AA Foundries (Civil Action No. 11-CV-792 filed on Sept. 23, 2011 in U.S. District Court for the Western District of Texas), AA Foundries agreed to drop its appeal of a racial harassment judgment for $140,000 and resolved the case.  The EEOC had charged the company with racially harassing its African-American employees, including noose displays.

Notable EEOC Resolutions

• Global Horizons, et. al. (Mac Farms of Hawaii, LLC (nka MF Nut Co., LLC); Kauai Coffee Company, Inc., (nka McBryde Resources, Inc.), Kelena Farms, Inc. and Captain Cook Coffee Company, Ltd.) (D. Haw.)  This case, a companion to the one settled last year, settled for $2.4 million in monetary damages and sweeping injunctive relief.  In addition, the court found the labor contractor, Global Horizons, liable for a pattern or practice of harassing, discriminating, and retaliating against hundreds of Thai workers.  (See EEOC v. Global Horizons, 7 F. Supp. 3d 1053 (D. Haw. March 2014).  Then, in December 2014, the court entered Findings of Fact & Conclusions of Law against Global and Maui Pineapple.  2014 WL 7338725 (D. Haw. Dec. 2014).  The court entered a default judgment against Global and Maui Pineapple, finding them jointly liable for $8.7 million in damages.
• EEOC v. v. Founders Pavilion, Inc (W.D. N.Y. Jan. 13, 2014)settled  for $370,000 in the first class action case file by the EEOC under the Genetic Information Nondiscrimination Act (GINA).  Founders Pavilion requested family medical history as part of its post-offer, pre-employment medical exams of applicants.  The company also fired two employees because they were perceived to be disabled, in violation of the ADA.  As part of a five-year consent decree resolving the suit, Founders Pavilion agrees to provide a fund of $110,400 for distribution to the 138 individuals who were asked for their genetic information and to pay $259,600 to the five individuals who the EEOC alleged were fired or denied hire in violation of the ADA.
• EEOC v. Pitre Inc., d/b/a. Pitre Buick/Pontiac (D.N.M. Mar. 27, 2014) was resolved for over $2 million for a class of men subjected to severe same-sex sexual harassment and retaliation.  The harassment included frequent solicitations for oral sex, and regular touching, grabbing and biting of male workers on their buttocks and genitals. 

• The EEOC resolved EEOC v. Dart Energy Co. (D. Wyo. Dec. 1, 2014) for $1.2 million to a class of Hispanic, Native American, and African American employees, who were subjected to racial and ethnic slurs by defendant's area manager and truck supervisor in violation of Title VII.  These employees were disciplined more harshly than their white counterparts, were given unfavorable job assignments and retaliated against after they complained of discrimination. 

  

Notable Federal Sector Developments

• The EEOC and the Office of Special Counsel (OSC) signed a renewed MOU to enhance the efficiency and enforcement of federal sector equal employment oppor­tunity laws.  Under the MOU, the EEOC shall refer to the OSC cases in which a federal agency fails to comply with an EEOC order and any other case that the EEOC believes warrants enforcement by the OSC.
• The Commission issued a report on procedural dismissals of EEO complaints by federal agencies in an effort to identify common errors and reduce the number of incorrect procedural dismissals by federal agencies.
• In Petitioner v. Dep't of Homeland Sec., EEOC Petition No. 0320110053, the Commission differed with the MSPB and found that an employee was discriminated against when he was denied a reasonable accommodation that led to his removal. In reaching this determina­tion, the Commission noted that attendance and timing are not essential functions but are methods by which a person accomplishes the essential functions of a job. The MSPB certified this matter to the Special Panel. The Special Panel deferred to the Commission and adopted its decision, 121 M.S.P.R. 613.
• In Petitioner v. Dep't of the Interior, EEOC Petition No. 0320110050, the Commission held that the "but for" standard does not apply to retaliation claims by federal sector complain­ants under Title VII or the ADEA because the federal sector statutory language does not employ the "because of" language on which the Supreme Court based its holdings concerning private sector complain­ants.

EEOC Regulations

• The EEOC published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register inviting public comment on how to amend its regulations implementing Section 501 of the Rehabilitation Act of 1973, as amended, to clarify the federal government's obligation to be a model employer of individuals with disabilities.

EEOC Guidance

• The EEOC issued Enforcement Guidance on Pregnancy Discrimination and Related Issues (updated 2015). The new guidance is the first update on pregnancy discrimination issued by the EEOC in more than 30 years, and addressed requirements of the PDA and the application of the ADA to pregnant workers with pregnancy-related impairments. 

EEOC Resource Documents

• The EEOC issued several resource documents in 2014, including:
  • "Religious Garb and Grooming in the Workplace: Rights and Responsibilities" (Mar. 2014) and "Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities" (Mar. 2014). These documents provide practical advice and examples for employers and stakeholders on disparate treatment, non-selection, segregation, harassment, accommodation, and retaliation issues arising from religious garb and grooming practices of applicants and employees.
  • The EEOC revised two more technical assistance documents to reflect the ADAAA, "Blindness and Vision Impairments in the Workplace and the ADA" (updated 2023) and "Questions and Answers about Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act" (updated 2023). 
  • The EEOC and the Federal Trade Commission issued two joint technical assistance documents on background checks, one for employers and another for individuals. Background Checks: What Employers Need to Know (Mar. 2014) and Background Checks: What Job Applicants and Employees Should Know (Mar. 2014). The documents summarize the basics of the federal EEO laws and the Fair Credit Reporting Act as they apply to employers' requests for, and use of, personal background information for screening job applicants.

Milestones: 2015

• In FY 2015, the EEOC secured more than $525 million for workers subjected to discrimination, including:
  • $356.6 million for individuals in private sector and state and local government workplaces through mediation, conciliation, and settlements.
  • $65.3 million for individuals through litigation.
  • $105.7 million for federal employees and applicants.
• To celebrate the EEOC's 50th year of serving the public, the agency convened a series of Commission Meetings, including:
  • EEOC at 50: Progress and Continuing Challenges in Eradicating Employment Discrimination.
  • EEOC at 50: Confronting Racial and Ethnic Discrimination in the 21^st Century Workplace.
• EEOC published the report “American Experiences versus American Expectations,” which summarizes data on the composition of the workforce by gender, race, and national origin across occupational job categories in the U.S. workforce from 1966 to 2013.
• To address the pressing issue of harassment, which spans industries and affects our nation's most vulnerable workers, the EEOC launched a Select Task Force on the Study of Harassment in the Workplace in March 2015. Co-chaired by Commissioners Chai R. Feldblum and Victoria A. Lipnic, the task force convened several times in 2015 to examine the various forms of workplace harassment and identify and promote strategies to prevent it. 
• The EEOC, along with the Office of Personnel Management, The Office of Special Counsel, and the Merit Systems Protection Board, released a guide on the rights and processes available to federal applicants and employees who allege sexual orientation or gender identity discrimination – “Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment: A Guide to Employment Rights, Protections, and Responsibilities.”
• The EEOC adopted three crucial documents called for in the EEOC’s Strategic Enforcement Plan for FYs 2012-2016, including:
  • A Research and Data Plan for FY2016 to FY2019, to move the EEOC toward using more sophisticated analytical tools for enforcement, outreach, and operational performance to better serve the public and continuously improve the agency's work overall.
  • Quality Practices for Effective Investigations and Conciliations, which sets guidelines for improving timeliness and ensuring the quality of agency investigations and conciliations.
  • A Communications and Outreach Plan to enhance the clarity, consistency, and coordination of EEOC's vital communications and outreach efforts.
• The EEOC and DOJ entered into an MOU that directs EEOC and DOJ to coordinate investigations of charges of discrimination on the basis of disability, given both agencies’ enforcement responsibilities of the ADA's provisions concerning public sector employers.   The MOU calls for the agencies to share information, as appropriate and to the extent allowable under law.  It also recognizes and respects the distinct responsibilities and enforcement priorities of each agency.  

Notable Supreme Court Decisions

• In EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015), the Supreme Court ruled in favor of EEOC in this Title VII religious discrimination case involving a young woman who wore a hijab or religious headscarf which Abercrombie said, in refusing to hire her, conflicted with its “look” policy. The Supreme Court held that Title VII does not require a plaintiff to prove that the employer had actual knowledge of the individual’s religious beliefs or practices to establish a disparate treatment claim. The Court held further that an employer’s unsubstantiated suspicion about the need for a potential religious accommodation will suffice if that suspicion motivated the employer’s decision. The Court reversed the Tenth Circuit’s decision in favor of Abercrombie.
• In Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), the Supreme Court held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before suit[, but] the scope of that review is narrow.” Judicial review is limited to whether the EEOC has “inform[ed] the employer about the specific allegation” and whether the EEOC has “tr[ied] to engage the employer in some form of discussion.”
• In Young v. United Parcel Service, 575 U.S. 206 (2015), the Supreme Court ruled that a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act may make out a prima facie case by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others similar in their ability or inability to work. The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, non-discriminatory” reasons for denying the accommodation.

Notable Appellate Decisions

• In EEOC v. New Breed Logistics, 783 F. 3d 1057 (6^th Cir. 2015), the Sixth Circuit upheld a $1.5 million jury verdict for the EEOC on behalf of four workers subjected to unlawful sexual harassment and retaliation.  The holding established that an oral complaint to the harasser to stop harassment is opposition conduct protected by the nonretaliation provisions of Title VII.
• In Boyer-Liberto v. Fontainebleau, 786 F.3d 264,(4th Cir. 2015) (reh'g en banc), a former African American hotel employee brought a lawsuit against her former employer for racial discrimination and retaliation.  On rehearing en banc, the full Court of Appeals agreed with the EEOC as amicus curiae and held that an employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress.

Notable EEOC Resolutions

• The EEOC resolved a nationwide pattern-or-practice lawsuit, EEOC v. Patterson-UTI Drilling Co., LLC (D. Colo. Apr. 27, 2015), for $14.5 million on behalf of thousands of employees subjected to race and national origin harassment, including Asian, Native Hawaiian and Pacific Islander, American Indian, Alaska Native, African-American, Hispanic or Latino, and biracial workers. The abuse included frequent and pervasive barrages of racial and ethnic slurs, jokes and comments, as well as verbal and physical harassment and intimidation of minority employees.  Workers of color were also assigned to the lowest-level jobs, disciplined, and demoted more frequently and were denied training and promotions. 
• EEOC v. BMW Mfg. Co., (D. S.C. Sept. 8, 2015), settled for $1.6 million and other relief to resolve race discrimination that resulted from a criminal background check policy that disproportionately affected Black logistics workers, and was not justified by business necessity. When BMW switched logistics contractors at a production facility, it required the new contractor to perform a criminal background screen on all existing logistics employees. After learning of the results of the criminal background checks, BMW denied plant access to 56 logistics employees, resulting in their termination from the previous logistics provider and denial of hire by the new logistics services provider for work at BMW.
• EEOC v. Cintas Corp. (E.D. Mich. Nov. 25, 2015), settled for $1.5 million and other relief to resolve sex discrimination against a class of women. The discrimination involved the refusal to hire female applicants for the position of service sales representative throughout Michigan from 1999 through March 31, 2005.
• EEOC v. United Airlines, Inc. (N.D. Cal. June 11, 2015), settled for over $1 million to resolve a disability lawsuit. The discrimination involved a competitive transfer policy that required workers with disabilities to compete for vacant positions for which they were qualified and which they needed in order to continue working, and prevented employees with disabilities from continuing employment with the defendant. United agreed to revise its ADA reassignment policy, train employees with supervisory or human resource responsibilities regarding the policy changes, and provide reports to the EEOC regarding disabled employees who were denied a position as part of the ADA reassignment process.
• The agency resolved EEOC v. Lakeland Eye Clinic, P.A. (M.D. Fla. Apr. 9, 2015), a lawsuit alleging sex discrimination on the basis of gender identity, for $150,000. This case and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. were the first two lawsuits filed by the EEOC  alleging sex discrimination against  transgender individuals.   The EEOC alleged that Lakeland Eye Clinic fired the charging party after she began to present as a woman and informed the clinic she was transgender.  In addition to monetary relief, Lakeland agreed to create a new gender discrimination policy, and train its employees on gender identity discrimination.

Notable EEOC Trial Victories

• In EEOC v. Moreno Farms, Inc. (S.D. Fla. Sept. 10, 2015), the jury returned a unanimous verdict awarding $17.4 million to five female farmworkers who EEOC alleged suffered sexual harassment and retaliation from three male supervisors, including graphic sexual acts, regular groping and propositions, threats of termination if they refused the supervisors' sexual advances, rape attempts, and rapes.  All five women were ultimately fired for opposing the three men's sexual harassment.
• In EEOC v. Star Transport, Inc. (C.D. Ill. Oct. 20, 2015), the jury awarded $240,000 to two Somalian-American Muslim employees who were fired from their jobs as truck drivers when they refused to transport alcohol because it violated their religious beliefs. 

Notable Public Conciliation Agreements

• In a joint settlement agreement with the EEOC and the New York Attorney General’s Office, Consolidated Edison Company of New York agreed to pay $3.8 million and provide other relief to resolve charges by a class of women workers that they were subjected to sexual harassment or various forms of sex discrimination. The women workers alleged that they faced widespread harassment by male co-workers and a hostile work environment based on gender and that Consolidated Edison had failed to address this discrimination. The EEOC also received complaints from women that they had been delayed or denied promotions from entry-level general utility worker positions to various higher-level positions because of gender.
• Target Corporation agreed to pay $2.8 million to resolve a Commissioner’s charge of discrimination where the agency found reasonable cause to believe that three employment assessments formerly used by Target disproportionately screened out applicants for exempt-level professional positions based on race and sex, and were not sufficiently job-related and consistent with business necessity. In addition, EEOC found that one of the assessments Target formerly used in its hiring process also violated the Americans with Disabilities Act (ADA) because it was a pre-employment medical examination. Target agreed not to use these assessments again as part of its exempt-level employment selection procedures and made changes to its applicant tracking systems to ensure that the data collected was sufficient to assess adverse impact. 
• Pactiv LLC agreed to pay $1.7 million to conciliate a disability discrimination class investigation. The EEOC found reasonable cause to believe that Pactiv discriminated against individuals with disabilities by disciplining and discharging them according to its nationwide policies to issue attendance points for medical-related absences; not allowing intermittent leave as a reasonable accommodation; and not allowing leave or an extension of leave as a reasonable accommodation. The settlement provided monetary relief to workers who were discriminated against, and the company agreed to take proactive measures to prevent discrimination from occurring.

Notable Federal Sector Decisions

• In Lusardi v. Dep't of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (April 1, 2015), the Commission found that the Army's decision to restrict complainant's access to the common women's restroom on account of her gender identity (transgender woman) constituted sex discrim­ination under Title VII.
• In Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015), the Commission found that a claim alleging discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.

EEOC Guidance

• EEOC revised Management Directive 110 (MD-110) (August 2015), to provide federal agencies with updated Commission policies, procedures, and guidance relating to the federal sector complaint process as set forth in 29 C.F.R. Part 1614 and to incorporate new developments in case law, as the federal workplace and EEO practices have evolved.
• The EEOC updated its Enforcement Guidance on Pregnancy Discrimination and Related Issues (June 2015), to address the U.S. Supreme Court's decision in Young v. United Parcel Service, 575 U.S. 206 (2015), that women may be able to prove unlawful pregnancy discrimination if the employer accommodated some workers but refused to accommodate pregnant workers. The Court explained that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act (PDA) if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.

EEOC Resource Documents

• The EEOC issued the following resource documents on the rights of job applicants and employees living with HIV:
  • Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA (June 2015).
  • Helping Patients with HIV Infection Who Need Accommodations at Work (June 2015).

Milestones: 2016

• In FY 2016, the EEOC secured more than $482.1 million for workers subjected to discrimination in private, state and local government, and federal workplaces, including:
  • $347.9 million for individuals in private sector and state and local government workplaces through mediation, conciliation, and settlements;
  • $52.2 million for individuals through litigation; and
  • $82 million for federal employees and applicants. 
• In March 2016, the EEOC deployed the online charge status system that provides charging parties and respondents with access to information regarding the status of their open charge(s) online.
• In June 2016, the EEOC’s Select Task Force on the Study of Harassment in the Workplace released its report, which includes detailed recommendations for harassment prevention, including harassment risk factors, effective policies and procedures to reduce and eliminate harassment, and effective outreach.

• The EEOC revamped its Youth@Work website to provide updated resources for America’s next generation of workers, including information on EEOC’s arrest and conviction guidance, coverage for LGBT workers, and updated disability information, among other information. 

  

• The EEOC issued a fact sheet about religious discrimination, which presents information for teens and other young workers about employment discrimination, and announced changes in the collection of demographic data from individuals who file charges to allow them to provide more precise data about their religion–allowing the agency, as well as the public, to recognize and respond to trends in charge data.
• The EEOC published the report “Advancing Opportunity, A review of the Systemic Program of the U.S. EEOC,” which provides a review of the agency’s systemic program over the past 10 years, and demonstrates the significant success the EEOC has made in advancing workplace opportunity by tackling systemic discrimination.
• The EEOC launched the online Small Business Resource Center to provide a one-stop shop to help small businesses access information about employer responsibilities.
• On September 29, 2016, the EEOC announced its historic, first-time collection of pay data from certain private employer and federal contractors. The EEOC approved changes to the Employer Information Report (EEO-1), to add summary pay data by sex and race or ethnicity to the current report. Private employers and federal contractors and subcontractors with 100 or more employees were required to submit summary pay data.
• The EEOC updated its Strategic Enforcement Plan for FYs 2017-2021, reaffirming the agency’s commitment to efforts that have strategic impact in advancing equal opportunity in America’s workplaces.
• Chair Jenny R. Yang spoke at a White House event celebrating the hiring of 100,000 federal employees with disabilities and announced that the EEOC published a Tips for Applicants with Disabilities Applying for Federal Jobs technical assistance document. The announcement was part of the Curb Cuts to the Middle Class Initiative, a Federal cross agency effort to increase equal employment opportunities and financial independence for individuals with disabilities, with a particular emphasis on individuals with significant disabilities.
• The EEOC and DOJ released the final report Advancing Diversity in Law Enforcement. This report was part of the Advancing Diversity in Law Enforcement research effort, which was designed to further national conversations about diversity in law enforcement by identifying barriers that undermine equal employment opportunity as well as promising practices to reduce those barriers and promote workforce diversity.
• The Commission held public meetings focused on:
  • Big Data in the Workplace: Examining Implications for EEO law, where the Commissioners heard from a broad panel of experts on big data trends and technologies, the benefits and risks of big data analytics, current and potential uses of big data in employment, and how the use of big data may implicate equal employment opportunity laws.
  • Promoting Diverse and Inclusive Workplaces in the Tech Industry, where the Commissioners heard from stakeholders about the significant challenges that remain in advancing opportunity for women, workers age 40 and over, and other groups in the tech industry. In addition to the testimony, the EEOC released a report on employment patterns in the high tech industry, which analyzes data both nationally and in Silicon Valley from the Employer Information EEO-1 Report (EEO-1) collected in 2014. 

Notable Supreme Court Decisions

• In CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S. 419 (2016), the Supreme Court held in a unanimous opinion that a Title VII defendant may be eligible for attorney’s fees as a “prevailing party” even if the “court’s final judgment rejects the plaintiff’s claim for a nonmerits reason.”  The Supreme Court rejected the Eighth Circuit’s holding that a prevailing Title VII defendant is not entitled to fees unless it obtains a ruling on the merits of the Title VII claim.
• In Green v. Brennan, 578 U.S. 547 (2016), the Supreme Court held that the statute of limitations begins to run on a constructive discharge claim when an employee gives the employer notice of his intent to resign.

Notable Appellate Decisions

• In EEOC v. Bass Pro Outdoor World, L.L.C., 826 F.3d 791 (5th Cir. 2016), the Fifth Circuit held that the Commission could prove its claim – that Bass Pro engaged in a nationwide pattern or practice of race discrimination against Black and Hispanic applicants and employees – by using the bifurcated trial framework set forth in Teamsters v. U.S., 431 U.S. 324 (1977). The court also rejected Bass Pro’s contention that the investigation was deficient because it did not address “evidence about specific aggrieved individuals.” The court recognized that its review of the Commission’s investigation is “limited,” for “Title VII ‘does not prescribe the manner’ by which the EEOC investigates, and ‘the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.’”
• In EEOC v. Koch Foods of Mississippi, L.L.C., 838 F.3d 540 (5th Cir. 2016), the Fifth Circuit concluded that the district court abused its discretion in analyzing whether U visa discovery should be restricted because the discovery would impose an undue burden. In reaching this result, the Fifth Circuit underscored that the district court failed to weigh how U visa discovery “might intimidate individuals outside this litigation, compromising the U visa program enforcement efforts more broadly.” The Fifth Circuit emphasized that permitting U visa discovery here could “deter immigrant victims of abuse...from stepping forward[,]...frustrating Congress’s intent in enacting the U visa program,” and rendering the EEOC and other enforcement agencies “much less able to use the program to solicit cooperation from those most in need of their help.” In closing, the court of appeals declined “to forbid U visa discovery outright,” but cautioned that, on remand, “any U visa discovery must not reveal to Koch the identities of any visa applicants and their families, at least in the liability phase.”
• In EEOC v. Rite Way Serv., Inc., 819 F.3d 235 (5th Cir. 2016), the Fifth Circuit held that an employee engaged in protected opposition when she responded to her employer’s questions about another employee’s sexual harassment complaint. In ruling for the Commission, the court stressed that context was important, and that the question must be whether “an employee like [the charging party], not instructed on Title VII law as a jury would be, [could] reasonably believe that she was providing information about a Title VII violation?”
• In Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189 (9th Cir. 2016), the Ninth Circuit reinstated the EEOC’s Title VII sexual harassment and retaliation claims on behalf of twenty female victims and held, relying in part on the Supreme Court’s decision in Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015), that Title VII does not require the EEOC to identify all victims prior to suit or to conciliate on an individual basis.

Notable EEOC Resolutions

• EEOC v. Lowes’ Cos., Inc. (C.D. Cal. May 12, 2016), settled for $8.6 million to resolve defendant’s failure to provide reasonable accommodations to individuals with disabilities who were unable to return to work within defendant’s maximum leave period.
• In EEOC v. New Prime, Inc. (W.D. Mo. Jun. 2, 2016), the EEOC obtained around $2.9 million to resolve discrimination in training and hiring of female applicants for over-the-road truck driving positions. The discrimination involved a policy of assigning applicants only to trainers of the same sex (with limited exceptions based on prior relationships).
• EEOC v. Mavis Discount Tire, Inc. et al. (S.D.N.Y. Mar. 24, 2016), settled for $2.1 million to resolve discrimination against 46 women who were denied field positions -- mechanic, tire installer, assistant manager, and manager -- because of their sex, and the defendant’s failure to retain applications and other employment records required by Title VII.
• In EEOC v. Lawler Foods, Inc. (S.D. Tex. Apr. 22, 2016), the EEOC obtained approximately $1 million for Black and non-Hispanic applicants who were denied entry-level production jobs because of their race and national origin. The discrimination involved applicants being told defendant was not interested in hiring Black workers, would not hire individuals who were not Hispanic, and would not hire individuals who did not speak Spanish.
• EEOC v. PMT Corp. (D. Minn. Mar. 4, 2016), settled for approximately $1 million to resolve failure to hire women for sales representative positions because of their sex, failure to hire individuals over the age of 40 for sales representative positions because of their age, and retaliation against a human resources manager for opposing theses unlawful practices and providing information about those practices to EEOC.

Notable EEOC Trial Victories

• In EEOC v. Dolgencorp, LLC d/b/a Dollar General Corp. (E.D. Tenn. Sept. 26, 2016), the jury awarded $27,565 in back pay and an additional $250,000 in compensatory damages to the charging party, an employee with diabetes who was denied a reasonable accommodation. At trial, the jury rejected defendant's arguments that charging party’s diabetes did not constitute a disability, that it was not required to provide her with a reasonable accommodation, and that it was justified in applying its anti-grazing policy to terminate her employment, finding that defendant violated the ADA.
• In EEOC v. Costco Wholesale Corp. (N.D. Ill. Dec. 21, 2016), the jury returned a verdict for the EEOC and awarded the former employee $250,000 in damages for sexual harassment. The harassment involved sexually offensive conduct toward a female customer-service employee by a male customer, even after the employee complained regularly to defendant’s managers and filed a police report.

Notable Federal Sector Decisions

• In Serita B. v. Dep’t. of the Army, Appeal No. 0120150845 (Nov. 10, 2016), the Commission reaffirmed its longstanding position on “joint employers,” where two or more employers each have the right to exercise sufficient control of an aggrieved individual to qualify as the worker's employer to establish standing to raise a claim under the 29 C.F.R. Part 1614 administrative complaint process.

EEOC Guidance 

• The EEOC issued the following enforcement guidance in 2016:
  • Enforcement Guidance on National Origin Discrimination (Nov. 2016).  The Enforcement Guidance addresses: 1) The definition of national origin discrimination; 2) Title VII’s application to employment decisions, harassment, citizenship issues, language issues, and related issues, including retaliation; and 3) Job segregation, human trafficking, and intersectional discrimination.
  • Enforcement Guidance on Retaliation and Related Issues (Aug.  2016). The Enforcement Guidance addresses: 1) The scope of employee activity protected by the law; 2) Legal analysis to be used to determine if evidence supports a claim of retaliation; 3) Remedies available for retaliation; 4) Rules against interference with the exercise of rights under the ADA; and 5) Detailed examples of employer actions that may constitute retaliation.

EEOC Resource Documents

• The EEOC issued several resource documents, including:
  • Legal Rights for Pregnant Workers Under Federal Law and Helping Patients Deal with Pregnancy-Related Conditions and Restrictions at Work (June 2016).
  • Employer-Provided Leave and the Americans with Disabilities Act (May 2016).
  • Fact Sheet: Facility/Bathroom Access and Gender Identity (May 2016).
  • Fact Sheet: Preventing Discrimination is Good Business (Feb. 2016).
  • Fact Sheet: Depression, PTSD, and Other Mental Health Conditions in the Workplace (Dec. 2016).  

Milestones: 2017

• In FY 2017, the EEOC secured $484 million for workers subjected to discrimination, including:
  • $355.6 million for individuals in private sector and state and local government workplaces through mediation, conciliation, and settlements;
  • $42.4 million for individuals through litigation; and
  • $86 million for federal employees and applicants.
• On January 6, 2017, the EEOC entered into a Memorandum of Understanding (MOU) with the U.S. Department of Labor’s Wage and Hour Division that outlines how the agencies will coordinate and share information to better protect the rights of employees in the workplace.
• On January 13, 2017, the EEOC entered into an MOU with the U.S. Department of Health and Human Services’ Office of Civil Rights that outlines how the agencies will improve their enforcement efforts by encouraging greater cooperation between the agencies through information sharing, complaint referrals, and coordinated investigations.
• On January 17, 2017, the EEOC published Federal Sector Quality Practices to address the quality of the agency's hearings and appeals in federal employee employment discrimination complaints.  The practices are modeled on the private sector Quality Practices for Effective Investigations and Conciliations, created pursuant to the EEOC's Strategic Enforcement Plan.
• On January 23, 2017, President Donald J. Trump designated Victoria A. Lipnic as Acting Chair of the EEOC.
• In November 2017, the EEOC appointed its first Chief Data Officer, who reorganized and expanded the new Office of Enterprise Data and Analytics (OEDA) and established the agency’s first Data Governance Board in April 2018. OEDA upgraded and enhanced the agency’s data analytics capabilities.
• The EEOC piloted a new online inquiry and appointment system, allowing potential charging parties to submit a pre-charge inquiry for review and online scheduling of appointments for interviews, and expanded the online intake system to include all of the EEOC’s 53 field offices.
• The Commission held two public meetings focused on:
  • The State of the Workforce and the Future of Work, where Commissioners heard from stakeholders about upgrading the skills of the U.S. workforce and creating employment opportunities for all workers.
  • The ADEA @ 50 - More Relevant Than Ever, where Commissioners heard from stakeholders that persistent age discrimination and stereotypes about older workers continue to push older workers out of the workforce, limiting further economic growth.
• The EEOC launched an effort to increase outreach to employers and veterans’ communities with the goal of reducing barriers that prevent veterans with disabilities from participating in the workforce.

Notable Supreme Court Decisions

• In McLane Corp. v. EEOC, 137 S. Ct. 1159 (Apr. 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.

Notable Appellate Decisions

• In Daniel v. T&M Protection Resources, LLC, 689 F.App'x 1 (2d Cir. 2017), the Second Circuit agreed with the EEOC as amicus curiae and 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. The Second Circuit recognized 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 [the n-word] by a supervisor in the presence of his subordinates.”
• In Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61 (3d Cir. 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.
• In EEOC v. Consol Energy, Inc., & Consolidation Coal Co., 860 F.3d 131 (4th Cir. 2017), the Fourth Circuit affirmed the jury’s verdict for the EEOC finding the employer liable for failure to reasonably accommodate the religious beliefs of an employee and for the employee’s constructive discharge when it failed to exempt him from a new biometric hand-scanning system at the coal mine where he worked.  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, “[s]o 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.”
• In Watford v. Jefferson County Public Schools, 870 F.3d 448 (6th Cir. 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. 
• In Hively v. Ivy Tech Community College of Indiana, No. 853 F.3d 339 (7th Cir. 2017), the Seventh Circuit agreed with the EEOC as amicus curiae that Title VII’s prohibition on sex discrimination incorporates a prohibition on sexual orientation discrimination. 
• In Guido v. Mount Lemmon Fire District, 859 F.3d 1168 (9th Cir. 2017), the Ninth Circuit agreed with the EEOC’s argument as amicus curiae that the ADEA's 20-person minimum employee requirement does not apply to political subdivisions of a state. 

Notable EEOC Resolutions

• EEOC v. Texas Roadhouse, Inc., Texas Roadhouse Holdings LLC, Texas Roadhouse Management Corp. (D. Mass. Mar. 31, 2017), settled for $12 million in monetary relief to resolve discrimination against applicants age 40 and older who were denied front-of-the-house restaurant positions, such as host, server, server assistant, and bartender, because of their age, and required defendants to engage in recruitment efforts to attempt to increase the percentage of older applicants applying for front-of-the-house positions.
• EEOC v. Bass Pro Outdoor World, LLC and Tracker Marine Retail, LLC (S.D. Tex. July 25, 2017), settled for $10.5 million for Black and Hispanic applicants who were denied hourly and salaried positions (sales, cashier, manager) due to their race or national origin, and employees who were retaliated against for opposing the discriminatory conduct.
• American Airlines, Inc. & Envoy Air, Inc. (D. Ariz. Nov. 16, 2017), settled for $9.8 million in damages to resolve a nationwide class disability discrimination lawsuit. The discrimination involved unlawfully denying reasonable accommodations to hundreds of employees by requiring them to have no restrictions before they could return to work following a medical leave.
• EEOC v. Mach Mining, LLC and EEOC v. Foresight Energy Services LLC (S.D. Ill. Jan. 25, 2017), settled for $4.25 million to resolve discriminatory failure to hire women into coal mining and related positions because of their sex.
• EEOC v. United Parcel Service, Inc. (N.D. Ill. Aug. 8, 2017), settled for $2 million in monetary relief to 90 current and former employees with disabilities who were denied reasonable accommodations that would have enabled them to perform their job duties. The discrimination involved an inflexible leave policy, whereby disabled employees were automatically fired when they reached 12 months of leave, without the employer engaging in the interactive process.

Notable Public Conciliation Agreements

• Ford Motor Company agreed to the conciliation of a systemic investigation of claims that female and African-American employees were subjected to sexual and racial harassment at two of Ford's plants in Chicago and retaliated against for complaining about the discrimination. Ford agreed to pay up to $10.125 million to those found eligible through a claims process established by the agreement and to provide significant targeted equitable relief.
• The American Dental Association, agreed to pay $1.95 million to resolve two charges of discrimination involving the discharge of employees in retaliation for complaining to the board of directors about potential violations of federal anti-discrimination laws: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).

Notable Federal Sector Decisions

• In Marine V., et al v. Social Security Administration, Appeal Nos. 0720170001 - 0720170008 (Mar. 20, 2017), the EEOC upheld the administrative judge’s (AJ) finding of age discrimination on complaints filed by a group of Social Security Administration employees when the agency used the Administrative Careers with America (ACWA) exam as a way to screen out internal employees and recruit younger external hires for Claims Representative positions in certain district offices in New Jersey. The agency also later hired younger external applicants from local colleges noncompetitively without using the ACWA exam.
• In Lara G. v. USPS, Request No. 0520130618 (June 9, 2017), the Commission, overruling its contrary precedent, held that when determining an award of non-pecuniary compensatory damages, it may consider the present-day value of comparable awards.
• In Velva B., et al. v. USPS, Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017), the Commission affirmed the AJ’s determination that the United States Postal Service violated the Rehabilitation Act on a class-wide basis affecting thousands of employees nationwide through the implementation of its national reassessment program (NRP).  The NRP was ostensibly designed to save money by eliminating "make work" positions.  The Commission determined its true purpose was to remove disabled employees from the agency's rolls without regard to their rights under the Rehabilitation Act.

EEOC Regulations

• On January 3, 2017, the EEOC issued a Final Rule on Affirmative Action for People with Disabilities in Federal Employment (Rule) to amend the regulations at title 29, Code of Federal Regulations, part 1614.203 implementing Section 501 of the Rehabilitation Act of 1973 (Section 501). The Rule explains what federal agencies must do to satisfy their Section 501 obligation to engage in affirmative action in employment for individuals with disabilities. The EEOC also issued technical assistance on the Rule titled Questions and Answers: The EEOC’s Final Rule on Affirmative Action for People with Disabilities in Federal Employment.   

EEOC Resource Documents

• The EEOC issued several resource documents, including:
  • Questions & Answers: Federal Agencies’ Obligation to Provide Personal Assistance Services Under Section 501 of the Rehabilitation Act (Sept. 2017).
  • Promising Practices for Preventing Harassment (Nov. 2017).
  • What You Should Know: What to Do if You Believe You Have Been Harassed at Work (Oct. 2017).

Milestones: 2018

• In FY 2018, the EEOC secured more than $505 million for workers subjected to discrimination, including:
  • Approximately $354 million for individuals in private sector and state and local government workplaces through mediation, conciliation, and settlements.
  • $53.6 million for individuals through litigation; and
  • $98.6 million for federal employees and applicants.
• The Commission approved a Strategic Plan for fiscal years 2018-2022, which serves as a framework for the agency in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.
• The agency reconvened the Select Task Force on the Study of Harassment in the Workplace for a public meeting, “Transforming #MeToo into Harassment-Free Workplaces,” to examine difficult legal issues and share innovative strategies to prevent harassment.
• The EEOC held a public meeting on “Revamping Workplace Culture to Prevent Harassment,” where the Commission heard stakeholders describe various approaches that aim to prevent harassment and give employers and employees skills needed to respond when they experience or observe harassing behavior.
• As part of the 50th anniversary of the Age Discrimination in Employment Act (ADEA), the EEOC launched a webpage to bring renewed focus on age discrimination. The anniversary culminated with the issuance of the report, “The State of Age Discrimination and Older Workers in the U.S. 50 Years After the Age Discrimination in Employment Act (ADEA).”
• The EEOC and the Department of Justice’s Civil Rights Division signed a new Memorandum of Understanding to prevent and address workplace harassment in state and local government and enhance the effectiveness of the nation's equal employment opportunity enforcement in the state and local government sector to ensure the efficient use of resources and a consistent enforcement strategy.

Notable Supreme Court Decisions

• Mount Lemmon Fire District v. Guido, 139 S. Ct. 22 (2018). In a unanimous 8-0 decision, the Supreme Court held that the ADEA requirement that to be subject to the prohibition against age discrimination employers must have at least 20 employees does not apply to state or political subdivisions, and that the statute covers these public employers regardless of size. The Court affirmed the EEOC’s 30-year interpretation of the ADEA.

Notable Appellate Decisions

• In EEOC v. Baltimore County, 904 F.3d 330 (4th Cir. 2018), the Fourth Circuit issued its third decision favorable to the agency in this age discrimination action. Although the district court found the defendant county liable for requiring employees who were older when hired to contribute a higher percentage of their salaries to the county’s retirement plan than it did younger employees, the court denied monetary relief. The court of appeals agreed with the EEOC that the district court lacked discretion to deny backpay relief, ruling that backpay is a mandatory legal remedy under the ADEA.
• In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), aff’d Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the Sixth Circuit granted summary judgment to EEOC on its discharge claim, holding that discrimination on the basis of transgender and transitioning status violates Title VII, reasoning that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee's sex.”
• In EEOC v. Dolgencorp, LLC, 899 F.3d 428 (6th Cir. 2018), affirming a favorable jury verdict for the EEOC, the Sixth Circuit held that a national retail discount chain violated the ADA when it fired a diabetic cashier who took and drank (and paid for at her first opportunity) a $1.69 bottle of orange juice to treat a hypoglycemic attack she experienced while working alone in a busy store.
• In EEOC v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018), the Seventh Circuit upheld a jury verdict for the EEOC in this Title VII sexual hostile work environment action. The court of appeals rejected the defendant’s argument that no rational jury could have found that a female customer service employee at the defendant’s Glenview, Illinois, store was subjected to severe or pervasive sex-based harassment by a male customer, given testimony that the customer “followed [the employee] around the store,” “monitored her movements,” and constantly made advances.
• In EEOC v. BNSF Railway Co., 902 F.3d 916 (9th Cir. 2018), the Ninth Circuit affirmed the district court’s liability ruling for the EEOC that defendant violated the ADA by revoking an offer of a senior patrol officer position because the applicant, who had a prior back injury but no current symptoms or limitations, failed to obtain an MRI at his own expense during the post-offer, preemployment medical review process.

Notable EEOC Resolutions

• In EEOC v. United Parcel Service, Inc. (E.D.N.Y. Dec. 21, 2018), the EEOC obtained $4.9 million in backpay and compensatory damages for a class of applicants and employees whose religious beliefs conflicted with the defendant’s appearance guidelines that prohibited male employees in supervisory or customer contact positions, including delivery drivers, from wearing beards or growing their hair below collar length.
• EEOC v. Amsted Industries, Inc. (S.D. Ill. June 11, 2018), settled for $4.4 million in lost wages and compensatory and punitive damages to 40 applicants who were rejected as chippers, a position requiring repetitive hand and wrist motions, if they had a history of carpal tunnel syndrome or if their results for either wrist on a post-offer nerve conduction test were considered abnormal.
• In EEOC v. Koch Foods of Mississippi, Inc. (S.D. Miss. Aug. 1, 2018), the EEOC obtained $3.75 million in monetary relief for about 150 affected individuals. The discrimination involved subjecting Hispanic employees to a hostile work environment and discriminatory terms and conditions of employment based on race/national origin and/or sex (female), and retaliation against employees who complained about discrimination.
• EEOC v. Sherwood Food Distributors, LLC (N.D. Ohio Oct. 16, 2018), was resolved for $3.6 million for a class of women who were denied entry-level warehouse laborer positions at defendant’s facilities.

• In EEOC v. Alorica, Inc. (E.D. Cal. July 31, 2018), the agency resolved claims of sexual harassment of both female and male employees and retaliation against employees who complained for $3.5 million in compensatory damages to affected individuals.

  

• EEOC v. Nevada Restaurant Services, Inc., d/b/a Dotty's Casino (D. Nev. June 7, 2018), settled for $3.5 million and required the defendant to adopt an ADA compliance policy that provided for engagement in the interactive process to provide reasonable accommodations to employees with disabilities. The discrimination in this case involved failure to provide reasonable accommodations for employees with disabilities, a 100 percent-healed policy, and discharging employees due to their disabilities.
• In EEOC v. CSX Transportation, Inc. (S.D. W.V. June 12, 2018), the EEOC obtained $3.2 million in back and front pay to an estimated 150 female test-takers to resolve discrimination involving the use of physical tests as selection devices that had a disparate impact on female applicants and employees, excluding them from hire and promotion. 
• EEOC v. GMRI, Inc., d/b/a Seasons 52 Fresh Grill (S.D. Fla. May 3, 2018), settled for $2.85 million to qualified individuals who were age 40 and older and were denied front-of-the-house and back-of-the-house positions because of their age.
• EEOC v. University of Denver (D. Colo. May 18, 2018), settled for $2.6 million to seven female law school professors. The discrimination in this case involved paying female law school full professors less than male full professors performing substantially equal work.
• EEOC v. SBEEG Holdings, Inc. d/b/a SLS Hotel South Beach (S.D. Fla. July 27, 2018), settled for $2.5 million in backpay and compensatory damages to 17 affected Haitian stewards and dishwashers who were discharged because of their national origin, race, and color.

Notable EEOC Trial Victories

• In EEOC v. United Health Programs of America, Inc. (E.D.N.Y. Apr. 25, 2018), the jury returned a verdict for the EEOC on its hostile work environment claims, awarding approximately $5 million in compensatory and punitive damages to the affected individuals. (The awards were later reduced due to the statutory cap on damages applicable to the defendant.) The harassment involved subjecting employees to a hostile work environment based on religion, including requiring employees to engage in practices at work that were part of a religious belief system called “Harnessing Happiness” or “Onionhead,” which included prayer, attendance at workshops on the belief system, and spiritual cleaning rituals.
• In EEOC v. Favorite Farms, Inc. (M.D. Fla. Dec. 19, 2018), the jury found the defendant liable for subjecting a female seasonal farmworker to a sexually hostile work environment and retaliating against her for opposing the harassment. The jury returned a verdict for the EEOC on the hostile work environment claim, awarding the farmworker $150,000 in compensatory damages and $150,000 in punitive damages; and returned a verdict for EEOC on the retaliation claim, awarding the farmworker $250,000 in compensatory damages and $250,000 in punitive damages.

Notable Public Conciliation Agreements

• Coca-Cola Refreshments USA, Inc. agreed to the conciliation of ADA charges involving discharge, denial of reasonable accommodation, and policies regarding full duty return-to-work, maximum leave, and reassignment for $2.25 million. The company also agreed to revise ADA policies, provide training, and share their ADA policies, training modules, relevant forms, and the press release with their independent bottlers who have contractual relationships with them.
• The Cato Corporation agreed to pay $3.5 million to resolve a nationwide, systemic investigation that found that it denied reasonable accommodations to certain pregnant employees or employees with disabilities, made certain employees take unpaid leaves of absence, and/or terminated employees because of their disabilities. The Cato Corporation also agreed to update its reasonable accommodation policies to ensure there is no discrimination against pregnant employees or those with disabilities.
• Cargill and the Teamsters Union agreed to the conciliation of over 130 charges for monetary relief totaling $1.63 million. The Title VII claims were based on race (Black), religion (Muslim), national origin (Somali), and retaliation. Charges against Cargill alleged denial of religious accommodations for prayer breaks, hostile work environment, discharge and constructive discharge. The charges against Teamsters involved hostile work environment, and denial of union representation by failing to pursue grievances. 

Notable Federal Sector Decisions

• In Taylor G. v. United States Postal Service, Appeal No. 0120120164 (Apr. 17, 2018), the Commission held that it is not estopped from seeking victim-specific relief on behalf of a complainant who files for bankruptcy. Where the bankrupt complainant has prevailed, and is entitled to monetary relief, the agency's obligation is to remedy the discrimination, not to address the question of complainant's interest in the proceeds of any award by tendering the monies to the bankruptcy trustee or court rather than to the complainant.
• In Josefina L. v. Social Security Admin., Appeal No. 0120161760 (July 10, 2018), the Commission sanctioned the agency on the ground that the agency’s Office of General Counsel had interfered with the investigative process when agency counsel reviewed and suggested revisions to the responsible management official's affidavit responses before the affidavit was submitted to the investigator. The Commission noted that during the non-adversarial portions of the EEO process, i.e., counseling and the investigation, an agency counsel “should not have a role in shaping the testimony of the witnesses or the evidence gathered by the investigator.”
• In Jenna P. v. Dep’t. of Veterans Affairs, Appeal No. 0120150825 (Mar. 9, 2018), the Commission found that complainant established that she was subjected to unwelcome sexual conduct from her supervisor which created an offensive and hostile work environment. Despite the agency's arguments otherwise, the Commission determined that the agency should be held liable for the supervisor's harassment. The Commission found that while no further harassment occurred, the agency had not fully corrected the effects of the harassment on complainant.

EEOC Regulations

• The EEOC issued Final Rules, consistent with AARP v. EEOC, No. 16-2113 (D.D.C. Dec. 20, 2017), to: 1) remove the section of the ADA regulation addressing the level of incentives employers may offer to employees for providing their current health information as part of a wellness program; and 2) remove the section of the GINA regulation addressing the level of incentives employers may offer to employees for providing their current health information as part of a wellness program and its accompanying Interpretive Guidance.

Milestones: 2019

• In FY 2019, the EEOC secured more than $486 million for workers subjected to discrimination in private, state and local government, and federal workplaces. This included:
  • Approximately $346.6 million for individuals in private sector and state and local government workplaces through mediation, conciliation, and settlements.
  • $39.1 million for individuals through litigation; and
  • $100.6 million for federal employees and applicants.
• The EEOC celebrated the 20th anniversary of its mediation program.
• The EEOC expanded its Public Portal to allow federal employees and applicants to file and manage requests for hearings and appeals of their federal EEO complaints.
• The EEOC began its historic, first-time collection of pay data from certain private employers and federal contractors for calendar years 2017 and 2018.

• The EEOC and the Federal Mediation and Conciliation Service signed a Memorandum of Understanding to work together to resolve federal workplace disputes by utilizing ADR as a means of efficiently handling federal sector charges.

  

• On May 15th, 2019, Janet Dhillon was sworn in as the 16th Chair of the EEOC.

  

• The EEOC convened an “Industry Leaders Roundtable Discussion on Harassment Prevention” to continue the EEOC’s efforts to lead harassment prevention.

Notable Supreme Court Decisions

• In Fort Bend County, Texas v. Davis, 139 S. Ct. 1843 (2019), the Supreme Court held that Title VII’s charge-filing requirement is not jurisdictional but instead is a claim-processing rule subject to forfeiture. The Court affirmed the Fifth Circuit’s ruling that the defendant in the instant case had forfeited the argument that the plaintiff failed to file an EEOC charge, because defendant did not make the objection until years into the litigation.

Notable Appellate Decisions

• In Logan v. MGM Grand Detroit Casino, 939 F.3d 824 (6th Cir. 2019), the Sixth Circuit reversed the district court’s grant of summary judgment to the employer in a suit alleging sex discrimination and retaliation. Agreeing with the EEOC as amicus curiae, the Sixth Circuit held that contracts to shorten the limitations period for bringing suit under Title VII are unenforceable on two grounds: (1) the crucial role that Title VII's limitations period plays in the statute's detailed enforcement scheme, and (2) the need for uniform national enforcement.
• In EEOC v. Global Horizons, Inc., 915 F.3d 631 (9th Cir. 2019), the Ninth Circuit reversed and remanded the district court’s dismissal of the EEOC’s claims against a labor broker and two Washington State fruit growers for subjecting Thai H-2A guest workers to discriminatory terms and conditions of employment due to their national origin and retaliating against them for opposing the discrimination. The Ninth Circuit found that the EEOC had adequately alleged from the beginning of the litigation that Global (the labor broker) was a joint employer with each grower as to all aspects of the Thai workers' employment. The court also found there were genuine issues of material fact as to the growers' liability both for their own alleged discriminatory actions and for Global's, insofar as the growers knew or should have known about Global's conduct but failed to take corrective action within their control. The court vacated the award of attorney's fees to the growers, as they were no longer prevailing parties.
• In Garrison v. Dolgencorp, L.L.C., 939 F.3d 937 (8th Cir. 2019), the Eighth Circuit reversed an award of summary judgment to defendant on the plaintiff’s ADA failure to accommodate claim, agreeing with the EEOC’s argument as amicus curiae that the ADA does not require a separate adverse action in addition to the failure to accommodate. The court articulated the elements of an ADA failure to accommodate claim as: (1) the employer knew the employee was disabled; (2) the employee requested a reasonable accommodation; (3) the employer failed to engage in an informal interactive process about possible accommodations; and (4) the disability could have been reasonably accommodated if the interactive process had taken place. 

Notable EEOC Resolutions

• EEOC v. Dolgencorp., LLC d/b/a Dollar General (N.D. Ill. Nov. 18, 2019), settled for $6 million in backpay to Black applicants whose conditional job offers were rescinded based on defendant’s criminal history policy during the period January 1, 2004, to September 30, 2019. The discrimination involved the use of criminal history in the hiring process, which had a disparate impact on Black applicants. Black applicants were rejected due to criminal history at a statistically significant higher rate than applicants who were not Black, and policy was not job-related and consistent with business necessity.
• In EEOC v. Jacksonville Association of Firefighters, Local 122, IAFF (M.D. Fla. Feb. 5, 2019), the EEOC resolved allegations that the city's promotional practices for various positions in the Jacksonville Fire and Rescue Department violated Title VII's prohibition against race discrimination for $4.9 million in monetary relief to a class of African-American firefighters.  The EEOC’s suit was consolidated with a suit brought against the city by the U.S Department of Justice.
• The agency settled EEOC v. Crossmark, Inc. (S.D. Ill. Nov. 20, 2019), for $2.65 million for more than 100 former food demonstrators who were denied reasonable accommodations by defendant limiting them to no more than ten minutes of sitting on a stool for every two hours of work, regardless of their medical conditions or restrictions.
• The agency resolved EEOC v. DH San Antonio Management, et al. (W.D. Tex. Oct. 30, 2019), for $2.625 million in damages to 26 affected individuals. This case involved discrimination and harassment based on national origin (Hispanic) and retaliation, including verbal abuse and ridicule based on employees’ accents and national origin. After employees complained about their treatment, workers were disciplined, demoted, constructively discharged, and/or discharged. 
• The agency resolved EEOC v. Marquez Brothers International, Inc., Marquez Brothers Enterprises, Inc., Marquez Brothers Food, Inc., Marquez Brothers Southern California, Inc., Marquez Brothers Texas I, Inc. (E.D. Cal. Sept. 17, 2019), for $2 million in compensatory damages. The discrimination involved the denial of employment on the basis of race to non-Hispanic applicants for unskilled operative and laborer positions at nine locations in California, Colorado, Nevada, and Texas.
• In EEOC v. Ojos Locos Sport Cantina, LLC, et al (D.N.M. Feb. 13, 2019), the EEOC settled for $700,000 in damages to a class of female employees who were subjected to sexual comments and jokes, requests for sex, and unwanted touching. 
• EEOC v. Atlantic Capes Fisheries, Inc., and BJ’s Services Co., Inc. (D. Mass. Jan. 29, 2019), settled for $675,000 in compensatory damages to 14 female employees who were subjected to sexual advances and unwanted touching.

Notable EEOC Trial Victories

• In EEOC v. Wal-Mart Stores (W.D. Wis., Oct. 10, 2019), the EEOC alleged that an international retailer denied a reasonable accommodation to an employee with a developmental disability and vision and hearing impairments and discharged him due to his disabilities. The jury returned a verdict for the EEOC, awarding the employee $200,000 in compensatory damages and $5 million in punitive damages. The court reduced the punitive damages award to $100,000 due to the ADA’s $300,000 statutory cap on combined compensatory and punitive damages and awarded the employee an additional $223,000 for back and front pay, interest, and the tax consequences of receiving the monetary awards in a single year.
• In EEOC v. Danny's Restaurant, LLC and Danny's of Jackson, LLC f/k/a Baby O's Restaurant, Inc., d/b/a Danny's Downtown Cabaret (S.D. Miss. May 16, 2019), the court entered a default judgment against Danny's Restaurant, LLC, and summary judgment to the EEOC on liability against the remaining defendant, Danny's of Jackson, LLC, for subjecting Black female entertainers to disparate terms and conditions of employment. Following a trial on relief in 2019, the jury awarded five Black dancers $130,550 in back pay, $1.68 million in compensatory damages, and $300,000 each in punitive damages.

Notable Public Conciliation Agreements

• Uber agreed to resolve a 2017 EEOC Commissioner’s Charge of sex discrimination, establishing a class fund of $4.4 million to compensate anyone who experienced sexual harassment and/or retaliation anytime between January 1, 2014 and June 30, 2019. In addition, Uber agreed to create a system for identifying employees who have been the subject of more than one harassment complaint and for identifying managers who fail to respond to concerns of sexual harassment in a timely manner. Uber also agreed to update its policies with input from a third-party consultant and continue conducting climate surveys and exit interviews with specific attention to workplace sexual harassment and retaliation.
• DISH Network LLC agreed to pay $1.25 million to the original charging party and other aggrieved applicants who were denied employment opportunities due to a discriminatory online application process. In addition to the monetary settlement, DISH Network agreed that its applications would continue to contain a prominent statement regarding the company's willingness to provide required reasonable accommodations and directions on how to request such accommodations during the application process. DISH Network also agreed to retain outside consultants to conduct a job analysis and validity study and to evaluate and revise their online assessment to ensure that questions asked on the application relate to the job. Additionally, DISH Network agreed to designate a compliance officer to provide training and monitor its application process to ensure compliance with the ADA.

Notable Federal Sector Decisions

• In Elly C. v. Social Security Admin., EEOC Appeal No. 0720140019 (June 26, 2019), request for reconsideration was denied, 2019005093 (June 7, 2022): the Commission found class-wide discrimination against non-supervisory GS-11 African-American female employees who were denied promotions to the GS-12 grade level.
• In Pamula W. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120171387 (May 2, 2019), the Commission found that the complainant was entitled to compensatory damages for the period beginning when the sexual harassment first occurred, not when management became aware of the harassment. The fact that the complainant did not report the sexual harassment for six months was inconsequential to the harm that she suffered because of the discriminatory harassment to which she was subjected. Complainant was awarded $50,000 in nonpecuniary compensatory damages.
• In Heidi B. v. U.S. Postal Serv., EEOC Appeal No. 0120182601 (Nov. 8, 2019), the Commission found that complainant, a rural carrier associate, advised her supervisors that she would not work Sundays due to her religious beliefs and she was subsequently subjected to discipline for refusing to work on Sundays. The Commission found that there was insufficient evidence to demonstrate that it would have been an undue hardship to grant complainant’s religious accommodation request. 
• In Annalee D. v. General Services Administration, EEOC Request No. 2019000778 (Nov. 27, 2019), on reconsideration, the Commission held that MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the agency head’s obligation to defend the agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office.