FISCAL YEAR 2018 ANNUAL REPORT

 

James L. Lee
Deputy General Counsel

TABLE OF CONTENTS

 

1. Structure and Function of the Office of General Counsell
   1. Mission of the Office of General Counsel
   2. Headquarters Programs and Functions
      1. General Counsel
      2. Deputy General Counsel
      3. Litigation Management Services
      4. Internal Litigation Services
      5. Appellate Litigation Services
      6. Research and Analytic Services
   3. District Office Legal Units
2. Fiscal Year 2018 Accomplishments
   1. Summary of District Court Litigation Activity
   2. Selected Systemic Resolutions
   3. Other Selected District Court Resolutions
   4. Harassment Resolutions
   5. Selected Appellate Resolutions
3. Litigation Statistics
   1. Overview of Suits Filed
      1. Filing Authority
      2. Statutes Invoked
      3. Bases Alleged
      4. Issues Alleged
   2. Suits Filed by Bases and Issues
      1. Sex Discrimination
      2. Race Discrimination
      3. National Origin Discrimination
      4. Religious Discrimination
      5. Age Discrimination
      6. Disability Discrimination
      7. Retaliation
   3. Bases Alleged in Suits Filed from FY 2014 through FY 2018
   4. Suits Resolved
      1. Types of Resolutions
      2. Monetary Relief by Statute
   5. Appellate Activity
   6. Attorney's Fees Awarded against EEOC
   7. Resources
      1. Staffing
      2. Litigation Budget
   8. EEOC 10-Year Litigation History: FY 2009 through FY 2018

I. Structure and Function of the Office of General Counsel

A. Mission of the Office of General Counsel

The Equal Employment Opportunity Act of 1972 amended Title VII of the Civil Rights Act of 1964 (Title VII) to give litigation authority to the Equal Employment Opportunity Commission (EEOC or Commission) and provide for a General Counsel, appointed by the President and confirmed by the Senate for a 4-year term, with responsibility for conducting the Commission's litigation program. Under a 1978 Presidential Reorganization Plan, the General Counsel became responsible for conducting Commission litigation under the Equal Pay Act of 1963 (EPA) and the Age Discrimination in Employment Act of 1967 (ADEA) (both formerly enforced by the Department of Labor). Subsequently, the General Counsel's authority was extended to Commission litigation under the employment provisions of the Americans with Disabilities Act of 1990 (ADA) (Title I; effective July 26, 1992) and the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) (Title II; effective November 21, 2009).

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

B. Headquarters Programs and Functions

1. General Counsel

The General Counsel is responsible for managing, coordinating, and directing the Commission's enforcement litigation program. He or she also provides overall guidance and management to all components of OGC, including district office legal units. The General Counsel recommends cases for litigation to the Commission and approves other cases for filing under authority delegated to the General Counsel by the Commission in its Strategic Enforcement Plan for Fiscal Years 2017-2021. The General Counsel provides reports regularly to the Commission on litigation activities, and advises the EEOC Chair and Commissioners on agency policies and other matters affecting enforcement of the statutes within the Commission's authority.

2. Deputy General Counsel

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

3. Litigation Management Services

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

4. Internal Litigation Services

Internal Litigation Services represents the Commission and its officials on claims brought against the Commission by agency employees and applicants for agency positions, and provides legal advice to the Commission and agency management on employment-related matters.

5. Appellate Litigation Services

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

6. Research and Analytic Services

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

C. District Office Legal Units

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

II. Fiscal Year 2018 Accomplishments

In fiscal year 2018, OGC filed 199 merits lawsuits and resolved 141, obtaining ­­­over $53.5 million in monetary relief. Section A below contains summary statistical information on the fiscal year's trial court litigation results (more detailed statistics appear in part III of the Annual Report). Sections B, C, and D contain descriptions of selected district court resolutions, and Section E contains descriptions of selected appellate and amicus curiae resolutions.

A. Summary of District Court Litigation Activity

OGC filed 199 merits suits in FY 2018. Merits suits consist of direct suits and interventions alleging violations of the substantive provisions of the Commission's statutes, and suits to enforce settlements reached during EEOC's administrative process. All FY 2018 merits suits were direct actions, with the exception of two suits to enforce administrative settlements. In addition to merits suits, OGC filed 18 actions to enforce subpoenas issued during EEOC charge investigations. 

OGC's FY 2018 merits suit filings had the following characteristics:

• 111 contained claims under Title VII (55.8%)
• 5 contained claims under the EPA (2.5%)
• 10 contained claims under the ADEA (5%)
• 84 contained claims under the ADA (42.2%)
• 82 sought relief for multiple individuals (41.2%)

The above claims exceed the number of suits filed (and percentages total over 100) because cases sometimes contain claims under more than one statute. There were 10 of these "concurrent" suits (5%) among the FY 2018 filings.

OGC's merits filings alleged violations covering a variety of discriminatory bases, including disability (84), sex (76), retaliation (51), race (16), religion (9), age (9), and national origin (8). The issues raised most frequently in EEOC suits were discharge (118), harassment (66), disability accommodation (43), and hiring (36). At the end of FY 2018, EEOC had 302 merits cases on its active district court docket, of which 65 (21.5%) were nonsystemic multiple victim cases and 71 (23.5%) involved challenges to systemic discrimination.

In FY 2018, the Commission filed 37 systemic lawsuits. These suits challenged a variety of types of discrimination, including: ADA policy claims (unlawful medical inquiries and examinations, leave limitations, restriction-free return-to-work requirements, and rules disallowing accommodations); hiring claims based on race, sex, age, and disability; harassment based on sex, race, and national origin; equal pay claims; and claims involving the failure to accommodate pregnant employees to the same extent as nonpregnant employees with similar work restrictions. Systemic suits comprised 18.6% of all merits suits filed in FY 2018. At the end of FY 2018, 71 cases on EEOC's active litigation docket were systemic suits, accounting for 23.5% of the 302 active merits suits.

EEOC filed 66 lawsuits in FY 2018 challenging workplace harassment, protecting food servers, nurses, administrative assistants, customer service staff, truckdrivers, welders, and other workers at establishments such as cleaners and country clubs, sports bars and airlines, factories, healthcare facilities, and grocery stores. Forty-six suits raised claims of hostile work environment based on sex, and 13 raised claims of hostile work environment based on race. Thirty-four harassment suits sought relief for multiple individuals, and another five were systemic cases.

OGC resolved 141 merits suits in FY 2018, recovering $53,553,530 for 7,141 individuals. OGC achieved a successful outcome (settlement or favorable court order) in 95.7% of all suit resolutions. Suit resolutions had the following characteristics:

• 82 contained claims under Title VII (58.1%)
• 9 contained claims under the EPA (6.4%)
• 10 contained claims under the ADEA (7.1%)
• 55 contained claims under the ADA (39%)
• 1 contained a claim under GINA (.7%)
• 51 cases sought relief for multiple individuals (36.1%)

The above claims exceed the number of suits filed (and percentages total over 100) because cases sometimes contain claims under more than one statute. There were 16 of these "concurrent" suits (11.3%) among the FY 2018 resolutions.

Part III of the Annual Report contains detailed statistical information on OGC's FY 2018 litigation activities, as well as summary information for past years.

B. Selected Systemic Resolutions

This past year, OGC resolved 26 systemic cases, recovering just over $42.7 million for 6,926 individuals. EEOC's litigation program achieved a 96% success rate in its systemic cases this year. Below is a sampling of significant outcomes of systemic discrimination lawsuits in FY 2018:

Amsted Industries, Inc.,No. 3:14-cv-01292 (S.D. Ill. June 11, 2018)

EEOC alleged in this ADA lawsuit that a Granite City, Illinois, manufacturer of steel castings refused to hire applicants 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 postoffer nerve conduction test were considered abnormal. Following a court order of summary judgment on liability in favor of EEOC, the suit was resolved by a 2.5-year consent decree providing $4.4 million in lost wages and compensatory and punitive damages to 40 rejected applicants. Defendant is required to make job offers to individuals identified in the decree, and is prohibited from refusing to hire applicants into chipper positions because of abnormal preemployment nerve conduction test results or because of a prior history of treatment for carpel tunnel syndrome.

Nevada Restaurant Services, Inc., d/b/a Dotty's Casino No. 2:18-cv-00954 (D. Nev. June 7, 2018)

EEOC alleged in this ADA lawsuit that an operator of restaurants and casinos in southern Nevada failed to provide reasonable accommodations for employees with disabilities, maintained a 100%-healed policy, and discharged employees due to their disabilities. The suit was resolved by a 3-year consent decree providing $3.5 million to affected individuals. Defendant is required to adopt an ADA compliance policy that provides for engagement in the interactive process to provide reasonable accommodations to employees with disabilities. Defendant will retain an outside monitor who will implement new policies to prevent disability discrimination and will audit and report on reasonable accommodation requests.

American Airlines, Inc. & Envoy Air, Inc.,No. 2:17-cv-04059 (D. Ariz. Nov. 16, 2017)

EEOC alleged in this ADA lawsuit that the defendant airlines denied reasonable accommodations to employees with disabilities, placed such employees on unpaid leave or discharged them, and failed to rehire employees who were unable to return to work without restrictions. Defendants were in a Chapter 11 bankruptcy proceeding, and the 2-year consent decree resolving the suit provides EEOC, subject to the bankruptcy court's approval, with a general unsecured claim for $9.95 million in common stock of American Airlines Group, which a settlement administrator will convert into cash and distribute to qualifying individuals. Defendants are prohibited from adopting policies or practices that limit work opportunities based solely on the existence of medical restrictions, that place restrictions on employees beyond those imposed by their treating physicians, or that require disabled employees to compete with nondisabled employees for reassignment when needed as a reasonable accommodation.

GMRI, Inc., d/b/a Seasons 52 Fresh Grill,No. 1:15-cv-20561 (S.D. Fla. May 3, 2018)

EEOC alleged in this ADEA lawsuit that an operator of nationwide restaurant chains denied individuals age 40 and older positions when staffing a new upscale chain. The suit was resolved by a 3-year consent decree providing $2.85 million to qualified individuals who were not hired because of their ages. The decree prohibits defendant from rejecting applicants based on age, from printing or publishing any notice or advertisement indicating an age preference for employment, and from retaliation. Defendant will retain an independent decree monitor and report to the monitor quarterly on applicants and hires broken down by age.

Koch Foods of Mississippi, Inc.,No. 3:11-cv-00391 (S.D. Miss. Aug. 1, 2018)

EEOC alleged in this Title VII lawsuit that a supplier of poultry products subjected seven charging parties and other Hispanic male and female employees at its Morton, Mississippi, processing plant to a hostile work environment and discriminatory terms and conditions of employment based on race/national origin and/or sex (female), and retaliated against employees who complained about discrimination. The suit was resolved by a 3-year consent decree providing $3.75 million in monetary relief to about 150 affected individuals. Defendant is prohibited from gender, race, and national origin discrimination and from retaliation, and is required to revise its EEO policies, provided in both English and Spanish, to conform to detailed requirements set out in the decree.

SBEEG Holdings, Inc. d/b/a SLS Hotel South Beach,No. 1:17-cv-21446 (S.D. Fla. July 27, 2018)

EEOC alleged in this Title VII lawsuit that the operator of a hotel in the South Beach area of Miami, Florida, discharged Haitian stewards and dishwashers because of their national origin, race (black), and color (dark-skinned). The suit was resolved by a 3-year consent decree providing $2.5 million in backpay and compensatory damages to 17 affected individuals. Defendant is enjoined from race, color, and national origin discrimination in terms and conditions of employment.

CSX Transportation, Inc.,No. 3:17-cv-03731 (S.D. W.V. June 12, 2018)

EEOC alleged in this Title VII lawsuit that a railroad network operating in 23 Eastern States used several physical tests as selection devices that had a disparate impact on female applicants and employees, excluding them from hire and promotion. The suit was resolved by a 2-year consent decree providing $3.2 million in back and frontpay to an estimated 150 females test-takers. Defendant is enjoined from the use of nonvalidated physical ability tests and from retaliation, and is permitted to use physical ability tests in the future only after compliance with detailed requirements set out in the decree.

University of Denver,No. 1:16-cv-02471 (D. Colo. May 18, 2018)

EEOC alleged in this Title VII and Equal Pay Act lawsuit that a private research university paid female full professors at its law school less than male full professors performing substantially equal work. The suit was resolved by a 6-year consent decree providing $2.6 million to seven female law school professors and requiring increases in their salaries. The decree permanently enjoins sex discrimination affecting compensation and permanently enjoins retaliation. Defendant must retain a labor economist and an outside consultant to perform studies on pay equity.

Estee Lauder Companies, Inc.,No. 1:17-cv-3897 (E.D. Pa. July 17, 2018)

EEOC alleged in this Title VII and Equal Pay Act lawsuit that a worldwide manufacturer and distributer of cosmetics provided male employees less paid leave for new-child bonding than it provided female employees, and denied male employees return-to-work benefits following the bonding period that were provided to female employees. The suit was resolved through a 1-year consent decree providing $1.1 million to about 200 affected individuals. The decree enjoins adoption of any parental leave policy that violates Title VII and the EPA. Defendant has implemented revised paid parental leave and back-to-work flexibility policies that provide employees who are new parents the same child-bonding leave and return-to-work benefits regardless of gender or caregiver status.

Alorica, Inc.,No. 1:17-cv-01299 (E.D. Cal. July 31, 2018)

EEOC alleged in this Title VII lawsuit that an operator of customer call centers allowed supervisors and other employees at its Fresno and Clovis, California, locations to engage in sexual harassment of both female and male employees and retaliated against employees who complained. The suit was resolved by a 3-year consent decree providing $3.5 million in compensatory damages to affected individuals. The decree enjoins sexual harassment and retaliation. Defendant is required to hire a Deputy General Counsel/Diversity and Inclusion Officer, retain an outside EEO Monitor, and conduct and report on EEO compliance audits.

C. Other Selected District Court Resolutions

EEOC v. Rocky Mountain Casing Crews, No. 1:16-cv-428 (D.N.D. Dec. 20, 2017)

EEOC alleged in this Title VII lawsuit that a Wyoming-based oilfield contractor subjected a gay male truckdriver to a hostile work environment because of his failure to conform to male sexual stereotypes and because of his sexual orientation. The case was resolved by a 3-year consent decree providing $70,000 in compensatory damages to the affected individual. The decree enjoins creating or maintaining a hostile work environment based on sex or sexual orientation, failing to investigate complaints of a hostile work environment based on sex or sexual orientation, failing to take prompt corrective action in response to such complaints, and retaliation for complaining about sexual harassment.

EEOC v. Mission Hospital, Inc., No. 1:16-cv-00118 (W.D.N.C. Jan. 29, 2018)

EEOC alleged in this Title VII lawsuit that an Asheville, North Carolina, hospital failed to accommodate the religious objections of three employees to receiving flu vaccinations. The case was resolved by a 2-year consent decree providing $89,000 to the three affected individuals. Defendant will provide the individuals with letters of reference stating their work was exemplary and they are eligible for rehire. Defendant will revise its staff immunization policy to permit requests for religious and medical exemptions to its flu vaccination requirement to be made up to the deadline for receipt of the vaccine.

EEOC v. United Health Programs of America, Inc., No. 14-CV-3673 (E.D.N.Y. April 25, 2018)

The New York District Office alleged in this Title VII lawsuit that a Long Island, New York, provider of discount medical plans subjected nine employees at its Long Island, New York, facility to a religious hostile work environment. At a 3-week trial, EEOC presented evidence that the employees were required to engage in practices at work that were part of a religious belief system called "Harnessing Happiness" or "Onionhead," which was created by the aunt of defendant's CEO, whom defendant retained as a consultant. The practices included prayer, attendance at workshops on the belief system, and spiritual cleaning rituals. The jury returned a verdict for EEOC on its hostile work environment claims, awarding approximately $5 million in compensatory and punitive damages to the affected individuals. The awards will be reduced due to the statutory cap on damages applicable to defendant.

EEOC v. Big 5 Corp., No. 2:17-cv-01098 (W.D. Wash. Sept. 17, 2018)

EEOC alleged in this Title VII lawsuit that a retail sporting goods chain subjected a black management trainee at its Oak Harbor, Washington, store to a racially hostile work environment, including permitting managers and coworkers to repeatedly refer to him with terms such as "boy," "shadow," King Kong," and "spook," and that management increased the employee's workload and unjustly disciplined him in retaliation for complaining about the harassment. The case was resolved by a 3-year consent decree providing the affected individual $165,000 and enjoining defendant, in the district in which the store is located, from creating a hostile work environment based on race, and from retaliation.

EEOC v. Halliburton Energy Services, Inc., No. 3:16-cv-0233 (S.D. Miss. July 11, 2018)

In this lawsuit to enforce the administrative settlement of an age and disability discrimination charge, EEOC alleged that an international provider of oil and gas exploration services breached a mediation agreement by refusing to hire the individual who filed the charge.  The agreement provided that the defendant would pay Charging Party $40,000 and hire him "as a Project-Specialist Safeguard III . . . or comparable position based on successful completion of pre-employment screening." Charging Party passed the screening and defendant paid him the $40,000; however, defendant later told him he would not be hired due to his use of a prescribed narcotic pain reliever that defendant said disqualified him for safety-sensitive positions and for jobs in Middle Eastern countries, where the use of narcotics is forbidden. The case was resolved by a consent decree providing the Charging Party $280,000 in backpay and a positive employment reference.   

EEOC v. Abraham Chevrolet-Miami, Inc., No. 17-cv-23550 (S.D. Fla. Aug. 20, 2018)

EEOC alleged in this Title VII lawsuit that a Coral Gables, Florida, automobile dealership and affiliates rejected a female assistant parts manager for a parts manager position because of her sex. The assistant parts manager was told by upper management that she was the most qualified candidate, but that defendant "needed a man for the position." The case was resolved by a 3-year consent decree providing the affected individual $150,000 in compensatory and punitive damages. The decree enjoins defendants from failing to consider or hire women for management positions in their parts and service departments.

EEOC v. Kaiser Aluminum Washington, LLC, No. 2:16-cv-00343 (E.D. Wash. Oct. 18, 2017)

EEOC alleged in this ADA lawsuit that a producer of fabricated aluminum rejected an applicant for a production position at its Trentwood, Washington, facility because of his record of or perceived disability. During his postoffer physical examination, the applicant disclosed he had broken his left heel 10 years previously, was off work for a year, and had undergone vocational training, but said he had no current problems related to the injury. Defendant's third-party medical provider recommended that the applicant be rejected because of an indication in an 8-year-old medical record that his heel injury was permanent. Based on the recommendation, defendant revoked the applicant's job offer. The case was resolved by a 3-year consent decree that provides the rejected applicant $125,000 in backpay and $50,000 in compensatory damages. Subject to an examination and test described in the decree, defendant must reinstate its job offer to the applicant, with seniority retroactive to the date he would originally have been hired.

D. Harassment Resolutions

EEOC successfully resolved 38 harassment suits in FY 2018, 6 of them involving allegations of systemic harassment. EEOC recovered about $14.5 million for 376 victims of harassment through its litigation program.  

Most harassment resolutions involved a hostile work environment based on sex. For example, in EEOC v. 2098 Restaurant Group, LLC, No. 3:17-cv-1002 (S.D. Ill.), EEOC alleged that the male general manager and two male cooks at an Illinois IHOP franchise subjected female servers, including teenagers, to sexual overtures, offensive touching, and threats; the case was resolved by consent decree providing $975,000 to 17 affected individuals. In EEOC v. Discovering Hidden Hawaii Tours, Inc., No. 1:17-cv-67 (D. Haw.), EEOC alleged that the male owner of a Hawaii tour business subjected male employees to repeated sexual comments, requests for sex, and sexual touching; the case was resolved by consent decree providing $570,000 to 18 affected individuals. In EEOC v. Bornt & Sons, Inc., No. 3:17-cv-678 (S.D. Cal.), EEOC alleged that a California farm labor contractor's male manager subjected female agricultural workers to sexual comments and unwanted touching and offered them employment benefits in exchange for sex; the case was resolved by consent decree for $300,000 for four affected individuals.

A substantial number of harassment suit resolutions involved hostile work environments based on race. For example, in EEOC v. The Laquila Group, Inc., No. 1:16-cv-5194 (E.D.N.Y.), EEOC alleged that a New York construction firm's foreman regularly subjected black employees to offensive racial remarks ("monkey," "animal"); the case was resolved by consent decree providing $625,000 to six affected individuals. In EEOC v. Aqua American, Inc., No. 17-4346 (E.D. Pa.), EEOC alleged that a Delaware water service provider's superintendent regularly used racial epithets in referring to black employees; the case was resolved by consent decree providing $150,000 to seven affected individuals. Also see EEOC v. Big 5 Corp., at p. 10 supra.

The consent decrees in EEOC's harassment resolutions contain injunctions against future harassment and require defendants to take various affirmative steps to prevent harassing conduct, including detailed requirements for antiharassment policies and complaint procedures, retention of outside monitors, internal audits of harassment complaints, and training (including on civility as well as statutorily prohibited harassment).

E. Selected Appellate Resolutions

In addition to its nationwide litigation program at the district court level, OGC represents the agency in federal courts of appeals, and participates as amicus curiae in private actions in federal courts of appeals and, on occasion, in federal district courts and state courts. Some notable appellate decisions in FY 2018 include:

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (petition for cert. filed July 20, 2018)

In this Title VII sex discrimination action, EEOC challenged a funeral home's discharge of a transgender woman from her funeral director/embalmer position. Reversing the district court's grant of summary judgment to defendant, and granting summary judgment to EEOC on its discharge claim, the Sixth Circuit held 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." The court of appeals said further that "discrimination against transgender persons necessarily implicates Title VII's proscriptions against sex stereotyping." Therefore, defendant's termination of the funeral director/embalmer because she announced her intention to transition from male to female violated Title VII.

The court ruled that the religious beliefs of the funeral home's owner provided no defense under either Title VII's "ministerial exception" or the Religious Freedom Restoration Act (RFRA). The first defense was unavailable because the employee did not hold a ministerial position and the funeral home was not a religious institution. As to RFRA, the court found that the funeral home failed to establish that allowing the employee to wear female attire at work imposed a "substantial" burden on a religious exercise. The court also found that the "least restrictive means" part of the RFRA test was met because EEOC's enforcement of Title VII was itself the least restrictive way to further the agency's interest in eradicating discrimination based on sex stereotypes.

EEOC v. Dolgencorp, LLC, 899 F.3d 428 (6th Cir. 2018)

Affirming a favorable jury verdict for 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. The court of appeals rejected defendant's argument that the jury could not find discrimination, given the company's categorical refusal to let the employee keep her own juice at the register. "Once [the employee] requested this reasonable accommodation," the court said, defendant had a duty to explore what types of accommodation could be made. The court said that because defendant did not do this, "the jury had a legally sufficient basis to conclude that [defendant] failed to provide [the employee] with reasonable alternatives to keeping orange juice at her register." The court also rejected defendant's argument that the employee's violation of a neutral policy against consuming company product before paying for it constituted a legitimate nondiscriminatory reason for firing her. The court said a "neutral policy is of no moment when . . . direct evidence of discrimination [is presented]," which the court found occurred here through the showing that defendant failed to provide a reasonable accommodation.

EEOC v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018)

The Seventh Circuit upheld a jury verdict for EEOC in this Title VII sexual hostile work environment action. The court of appeals rejected defendant's argument that no rational jury could have found that a female customer service employee at 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. The customer's behavior "culminated in the bizarre, objectively frightening act of filming [the employee]," who ultimately obtained a stalking no-contact order against the customer in State court. The court emphasized that harassment need not be overtly sexual and must be viewed in its totality, not carved up into separate incidents. The court also agreed with EEOC that backpay relief is not limited to discharge claims, and that EEOC could seek backpay for the wages the employee lost while on an unpaid leave caused by the customer's conduct.

EEOC v. BNSF Railway Co., 902 F.3d 916 (9th Cir. 2018)

The Ninth Circuit affirmed the district court's liability ruling for EEOC that defendant railroad 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 postoffer, preemployment medical review process. The court of appeals said that the ADA does not permit employers to impose this type of financial burden on job applicants with perceived or real impairments. The court further found that an injunction barring defendant from shifting the cost of followup medical examinations onto prospective employees was appropriate, but remanded the case to the district court to determine whether facts warranted applying the injunction nationwide.

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 defendant county liable for requiring employees 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 EEOC that the district court lacked discretion to deny backpay relief, ruling that backpay is a mandatory legal remedy under the ADEA.

III. Litigation Statistics

A. Overview of Suits Filed

In FY 2018, EEOC's field legal units filed 199 merits lawsuits. (Merits suits include direct suits and interventions alleging violations of the substantive provisions of the Commission's statutes, and suits to enforce settlements reached during EEOC's administrative process.)  All FY 2018 filings were direct suits, with the exception of two suits to enforce administrative settlements. Thirty-seven filings were systemic suits and 45 were nonsystemic suits that sought relief for multiple individuals. The field legal units also filed 18 actions during the fiscal year to enforce investigative subpoenas.

1. Filing Authority

In EEOC's National Enforcement Plan, adopted in February 1996 and reaffirmed most recently in the Commission's Strategic Enforcement Plan for Fiscal Years 2017-2021, the Commission delegated litigation filing authority to the General Counsel in all but a few areas. The General Counsel has redelegated much of this authority to EEOC's 15 Regional Attorneys; however, all cases are reviewed by Office of General Counsel headquarters staff prior to suit filing.

2. Statutes Invoked

Of the 199 merits suits filed, 55.8% contained Title VII claims, 42.2% contained ADA claims, 5% contained ADEA claims, 2.5% contained EPA claims, and 5% were filed under more than one statute. (Statute numbers in the chart below exceed the number of suits filed and percentages total over 100 because suits filed under multiple statutes ("concurrent" cases) are included in the totals of suits filed under each of the statutes.)

3. Bases Alleged

As shown in the next chart, disability (42.2%), sex (38.2%), retaliation (25.6%), and race (8%) were the most frequently alleged discriminatory bases in EEOC suits. Bases numbers in the chart exceed the total suit filings (199) because suits often contain multiple bases.

4. Issues Alleged

Discharge was the most frequently alleged issue (59.3%) in EEOC suits filed, followed by harassment (33.2%), disability accommodation (21.6%), and hiring (18.1%).  (Counts of discharge include constructive discharge.)

B. Suits Filed by Bases and Issues

1. Sex Discrimination

As shown below, 57.5% of cases with sex as a basis contained a harassment allegation; 38.8% contained a discharge allegation.

2. Race Discrimination

Harassment was the most frequently alleged issue (81.3%) in suits containing race discrimination claims, followed by discharge (25%).

3. National Origin Discrimination

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

4. Religious Discrimination

Failure to accommodate was an issue in six of the nine religious discrimination cases filed.

5. Age Discrimination

Hiring was an issue in six of the nine cases with age discrimination claims.

6. Disability Discrimination

Discharge was the most frequently alleged issue in disability suits (63.1%), followed by failure to accommodate (53.1%) and hiring (25.9%).

7. Retaliation

Discharge was an issue in 82.4% of the suits containing retaliation claims

C. Bases Alleged in Suits Filed from FY 2014 through FY 2018

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

D. Suits Resolved

In FY 2018, the Office of General Counsel resolved 141 merits lawsuits, obtaining $53,553,530 in monetary relief.

1. Types of Resolution

As the chart below indicates, 92.9% of EEOC's suit resolutions were settlements, 6.3% were determinations on the merits by courts or juries, and .7% were voluntary dismissals. (The figures on favorable and unfavorable court orders do not take appeals into account.)

2. Monetary Relief by Statute

Of the 141 merits suits resolved during the fiscal year, 58.1% contained Title VII claims and 39% contained ADA claims.  (Statute numbers in the chart below exceed the number of suits resolved and the percentages total over 100 because suits resolved under multiple statutes ("concurrent" cases) are also included in the totals of suits resolved under each statute.)

As shown below, ADA and Title VII suits each accounted for around 40% of monetary relief obtained in FY 2018; ADEA suits accounted for about 7%. Recoveries in concurrent suits are not included in the totals for the particular statutes.

E. Appellate Activity

OGC filed 14 briefs on appeal in Commission cases in FY 2018, 12 as appellant and 2 as appellee, and filed 29 briefs as amicus curiae in private suits. Represented by the Solicitor General, EEOC filed one merits brief in the U.S. Supreme Court. At the end of FY 2018, EEOC had 18 cases pending in courts of appeals in EEOC suits and was amicus curiae in 29 pending cases. EEOC prevailed in eight of nine merits cases decided on appeal in FY 2018, and prevailed in the one subpoena enforcement case decided.

F. Attorney's Fees Awarded against EEOC

No final awards of attorney's fees were issued against the agency in FY 2018 based on the defendant having prevailed on the merits of the suit.

G. Resources

1. Staffing

The number of field attorneys increased considerably from last fiscal year.

*includes Regional Attorneys

2. Litigation Budget

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

H. EEOC 10-Year Litigation History: FY 2009 through FY 2018