EEOC FCRA Actual Case Stats


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Great information from our June 12th 2014 Seminar from Joseph M. Gagliardo, Managing Partner Laner Muchin

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EEOC FCRA Actual Case Stats

  1. 1. Presented By: Joseph M. Gagliardo, Managing Partner Jill P. O’Brien, Partner Laner Muchin 515 North State Street, Suite 2800 Chicago, IL 60654 (312) 467-9800
  2. 2. Legal Background and Experience Mr. Gagliardo is the Managing Partner of Laner Muchin, Ltd., and is the Chair of its Litigation Department. Mr. Gagliardo has counseled and represented employers in a broad range of employment matters for over 35 years. His experience includes litigating individual and class action claims in the state and federal courts. Mr. Gagliardo also serves as an arbitrator in employment and commercial disputes. Since joining the Firm as a partner in 1988, Mr. Gagliardo has been counsel to publicly and privately held corporations, including The Trump Organization, and has represented a number of public sector employers, including the State of Illinois, Attorney General, Secretary of State, State Treasurer, County of Cook, State’s Attorney for Cook County, Cook County Public Defender, City of Chicago, Chicago Transit Authority, Chicago Housing Authority, Chicago Board of Education, and the City Colleges of Chicago. Mr. Gagliardo previously served as First Deputy Corporation Counsel for the City of Chicago. During his ten years in the Office of the Corporation Counsel, he counseled the City’s forty departments in all aspects of municipal law, including labor and employment relations, and represented the City and its officers and employees in litigation matters pending in the state and federal courts, and before various administrative agencies. Mr. Gagliardo has written articles and conducted seminars on labor and employment relations matters for various legal and business organizations. He also has drafted legislation and testified before the Illinois Legislature and the City Council of the City of Chicago. While an attorney for the City, he was a member of the National Institute of Municipal Law Officers (served as Editor, Section Publications, Section on Personnel and Labor Relations), Illinois Public Employer Labor Relations Association, and Illinois Municipal League. In 2013, Intercontinental Finance Magazine recognized Mr. Gagliardo as one of the Top 500 lawyers in the world, and in 2012, Mr. Gagliardo was named as Best Lawyers’ 2012 Chicago-Litigation-Labor & Employment Lawyer of the Year. Mr. Gagliardo has also been voted one of the Top 10 Attorneys in Illinois in 2012, and one of the Top 100 Attorneys in 2007-2011 and 2013, according to Super Lawyer polls appearing in Chicago Magazine. The selection is the result of lawyer nominations of the best attorneys observed in action. Mr. Gagliardo has also been named one of the Leading Lawyers in Illinois in the area of labor and employment law based on a statewide survey of lawyers. Leading Lawyers comprise less than 5% of all lawyers in Illinois. He was also selected as one of America’s Leading Lawyers for Business by the Chambers USA in its Guide to America’s Leading Business Lawyers, which described him as “bright,” “thorough” and “hard-driving.” Mr. Gagliardo is also an elected Fellow/Member of The College of Labor and Employment Lawyers. Additionally, Mr. Gagliardo has been included in Who’s Who Legal USA -- Management, Labor and Employment, and International Who’s Who of Business Lawyers. Mr. Gagliardo has also received the highest Martindale-Hubbell Peer Review Rating for ethical standards and legal ability. Mr. Gagliardo has received numerous awards, including a Distinguished Service Award from The John Marshall Law School; an Award of Excellence from the Justinian Society of Lawyers; A Guiding Star Award from Windows of Opportunity; leadership awards from the Illinois Legislature, Clerk of the Circuit Court of Cook County, Cook County Board of Commissioners and City of Chicago; and he has received Peacemaker and Humanitarian Awards from the Joint Civic Committee of Italian Americans. The Peacemaker Award was based on Mr. Gagliardo’s skills in resolving disputes, and the Humanitarian Award was based on his commitment to, and efforts to promote, diversity and human relations initiatives. Joseph M. Gagliardo, Managing Partner
  3. 3. Admissions Information Mr. Gagliardo has been admitted to practice before the United States Supreme Court, the United States Court of Appeals for the Seventh Circuit, United States District Court for the Northern, Central and Southern Districts of Illinois, Trial Bar of the United States District Court for the Northern District of Illinois, and the Illinois Supreme Court. Professional Organizations, Community Activities and Other Memberships Mr. Gagliardo is a member of the American, Illinois, Federal, Chicago and National Italian-American Bar Associations, as well as the Justinian Society of Lawyers, Women’s Bar Association of Illinois, Defense Research Institute, Illinois Institute for Local Government Law and Chicago Council of Lawyers. Mr. Gagliardo is a past President of the Chicago Chapter of the Federal Bar Association and the Justinian Society of Lawyers. He has also served as a member of the Illinois State Bar Association’s (“ISBA”) Assembly, and as Chair of its Rule and Bylaws Committee. Mr. Gagliardo has also served as Associate Editor of the ISBA Federal Civil Practice Newsletter, Secretary of the ISBA Standing Committee on Judicial Evaluations, Chairperson of the ISBA Labor Law Section Council, a member of the ISBA Section Council on Civil Practice and Procedure, and as a member of the ISBA Standing Committee on Alternative Dispute Resolution. Mr. Gagliardo also previously served as a member of the Magistrate Judge Advisory Panel, United States District Court, Northern District of Illinois; the Deposition Guidelines Committee of the United States District Court, Northern District of Illinois; and the Recommendations Task Force of the Illinois Supreme Court Special Commission on the Administration of Justice. He is currently a Trustee of The John Marshall Law School, and previously served as a Director of the John Marshall Law School Alumni Association. He has been listed in “Who’s Who in American Law,” “Emerging Leaders in America” and “Who’s Who Among Rising Young Americans.” In addition to his membership in legal organizations, Mr. Gagliardo has also been active in many community organizations. He is a past President of the Joint Civic Committee of Italian Americans, and served for over ten (10) years as a Director of Windows of Opportunity. Windows is a non-profit organization that creates partnerships to link all of Chicago’s public and assisted housing residents to resources that will improve their quality of life. He currently serves as a Director of Age Options, an organization dedicated to connecting senior citizens with resources and options for care so that they can live their lives to the fullest, and is on the Board of Directors of the Better Business Bureau, Chicago, Illinois. Mr. Gagliardo is also active with Chicago United, and the Leadership Council on Legal Diversity. Both organizations support and promote sustainable diversity in law and business. Education Summary and Related Activities Mr. Gagliardo received his J.D. from The John Marshall Law School, Chicago, Illinois in 1977, and was awarded the Edward T. Lee Scholarship and Bobbs-Merrill Company Prize. He was also elected to the Order of John Marshall, the law honor society limited to those whose scholastic records are within the highest 10% of the graduating class. He received a B.S. in Commerce from DePaul University in 1974, graduated with High Honors, and was a member of Delta Mu Delta and Delta Epsilon Sigma Honor Societies. Joseph M. Gagliardo, Managing Partner (cont’d)
  4. 4. Legal Experience Upon graduation from law school, Ms. O’Brien joined Laner, Muchin, Dombrow, Becker, Levin and Tominberg, Ltd. in 1989. She is a member of the Firm’s Executive Committee and its Attorney Hiring Chairperson. Ms. O’Brien was selected as one of the “Top 50 Women Attorneys in Illinois” for 2010 and 2011. Additionally, she is included in the list of Illinois’ Super Lawyers (2005-14); Top Lawyers in Illinois - Labor and Employment Law Related; and the Leading Lawyers Network of Top Lawyers. Ms. O’Brien is an elected Fellow/Member of the College of Labor and Employment Lawyers. She also has received the highest Martindale-Hubbell Peer Review Rating for ethical standards and legal ability. For 25 years, Ms. O’Brien has represented public and private sector employers in numerous areas of labor and employment law, including: collective bargaining negotiations, grievance and interest arbitrations; anti-harassment, anti-discrimination and diversity in the workplace educational programs; drafting and enforcement of confidentiality, non-competition and other restrictive covenant agreements; prevention assistance and compliance obligations under the Americans with Disabilities Act, the Family and Medical Leave Act, the Workers’ Adjustment and Retraining Notification Act, the Fair Labor Standards Act and all other state, federal and local employment and labor laws. Ms. O’Brien has served on the Adjunct Faculty of the Loyola School of Law where she taught Employment Discrimination law. Admissions Information Ms. O’Brien is admitted to practice before the United States Supreme Court, the United States District Court for the Northern District of Illinois and the Illinois Supreme Court. Jill P. O’Brien, Partner
  5. 5. Bar Association and Other Memberships Ms. O’Brien has held numerous leadership positions with the Illinois State Bar Association, including serving as Chairperson of the Labor and Employment Law Section Council (2003-04) and Chairperson of the Committee on Mentoring (2007-08). Ms. O’Brien is a past Co-Chair and Executive Committee member of the Chicago Bar Association’s Alliance for Women. She is a founding Board member of the Cynthia L. Bischof Memorial Foundation and has served as a volunteer “Courtwatcher” to the Chicago Metropolitan Battered Women’s Network. She also serves on the Board of Governors of the Catholic Lawyers Guild of Chicago, the Board of Directors and Executive Committee of the John Marshall Law School Alumni Association, and she has served on the Advisory Board of the Children’s Oncology Services, Inc. (COSI). Ms. O’Brien was previously honored by the Chicago Daily Law Bulletin as one of “40 Illinois Attorneys Under Age 40 to Watch”, and she received a Distinguished Service Award from the John Marshall Law School Alumni Association. Education Summary Ms. O’Brien graduated from Western Illinois University with a Bachelor of Science Degree in Law Enforcement Administration. She obtained her Juris Doctor Degree from The John Marshall Law School in 1989. While attending law school, Ms. O’Brien served on the Editorial Board of the John Marshall Law Review. Personal Data Ms. O’Brien resides in Chicago, Illinois. Jill P. O’Brien, Partner (cont’d)
  6. 6. EEOC Statistics FY 2013 was a very busy year 93,727 charges of discrimination – down from the 99,412 filed in FY 2012 EEOC filed 131 lawsuits EEOC recovered more than $372.1 million – the most ever recovered OVERVIEW 6 1
  7. 7. EEOC Statistics  FY 2013:  38,539 retaliation claims, up 1.9% over fiscal year 2012;  33,068 race discrimination claims, a decrease of 1.3% from fiscal year 2012;  27,687 sex-based discrimination claims, a decrease of 8.8% from fiscal year 2012;  25,957 disability discrimination claims, down 1.6% from fiscal year 2012;  21,396 age discrimination claims, a decrease of 6.4% from fiscal year 2012;  10,642 national origin discrimination claims, a decrease of 2.2% from fiscal year 2012;  3,721 religious discrimination claims, down 2.4% from fiscal year 2012;  3,146 color discrimination claims, up 18.2% over fiscal year 2012;  1,019 claims for equal pay, a 5.8% decrease from fiscal year 2012; and  333 Genetic Information Nondiscrimination Act (“GINA”) claims, a more than 18.9% increase from fiscal year 2012. OVERVIEW 2
  8. 8. Purpose of the Strategic Enforcement Plan: To focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace. EEOC STRATEGIC ENFORCEMENT PLAN FY 2013-2016 3
  9. 9. The Plan has three objectives: 1. To combat employment discrimination through strategic law enforcement; 2. Prevent employment discrimination through education and outreach; and 3. Deliver excellent and consistent service through a skilled and diverse workforce and effective systems. EEOC STRATEGIC ENFORCEMENT PLAN FY 2013-2016 4
  10. 10. Approved in December 2012, The Strategic Enforcement Plan lists six national priorities: 1. Eliminating Barriers in Recruitment and Hiring: The EEOC will target class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women and people with disabilities. EEOC STRATEGIC ENFORCEMENT PLAN FY 2013-2016 5
  11. 11. 2. Protecting Immigrant, Migrant and Other Vulnerable Workers: The EEOC will target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them. EEOC STRATEGIC ENFORCEMENT PLAN FY 2013-2016 6
  12. 12. 3. Addressing Emerging and Developing Issues: The EEOC will target emerging issues in equal employment law, including issues associated with significant events, demographic changes, developing theories, new legislation, judicial decisions and administrative interpretations. EEOC STRATEGIC ENFORCEMENT PLAN FY 2013-2016 7
  13. 13. 4. Enforcing Equal Pay Laws: The EEOC will target compensation systems and practices that discriminate based on gender. 5. Preserving Access to the Legal System: The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts. EEOC STRATEGIC ENFORCEMENT PLAN FY 2013-2016 8
  14. 14. 6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach: The EEOC will pursue systemic investigations and litigation and conduct a targeted outreach campaign to deter harassment in the workplace. EEOC STRATEGIC ENFORCEMENT PLAN FY 2013-2016 9
  15. 15. The EEOC’S stated goal and expectation is that a concentrated and coordinated approach will result in reduced discrimination in these areas. Some of the priority categories, such as hiring discrimination, raise challenging and complicated issues affecting all of the protected classes, which the EEOC is better situated than the private bar to address given its investigatory authority and access to data. Other priorities, such as emerging issues, are more discrete, but a concerted effort by the agency may result in early resolution of an unsettled area that promotes increased and lasting compliance with equal employment laws. EEOC STRATEGIC ENFORCEMENT PLAN FY 2013-2016 10
  16. 16. Age Discrimination: EEOC v. Hutchinson Sealing Systems, Inc.: $210,000 to three former engineers to settle an age discrimination lawsuit. (June 2013) EEOC SETTLEMENTS 1i
  17. 17. Disability Discrimination:  EEOC v. Dillard’s: $2 million to resolve a class action disability discrimination lawsuit. At issue was Dillard’s longstanding national policy and practice of requiring all employees to disclose personal and confidential medical information in order to be approved for sick leave. (December 2012)  EEOC v. Rite Aid: $250,000 to settle a disability and retaliation discrimination lawsuit. Rite Aid, under threat of termination, required an employee to undergo a fitness-for-duty exam after the employee received an administrative finding in his favor from the EEOC. (November 2012) EEOC SETTLEMENTS 12
  18. 18. National Origin Discrimination: EEOC v. PBM Graphics: $334,000 to settle a national origin discrimination lawsuit. PBM refused to place and/or assign non-Hispanic workers to its “core group” of regular temporary workers. (December 2012) EEOC SETTLEMENTS 13
  19. 19. Race Discrimination: EEOC v. Meadowbrook Meat Company, Inc.: $15,000 to three former employees who saw racist graffiti at the employer’s warehouse. (June 2013) Race Harassment EEOC v. RockTenn Services Company, Inc.: $500,000 to 14 employees to settle a racially hostile environment lawsuit. (December 2012) EEOC SETTLEMENTS 14
  20. 20. Race and National Origin Discrimination : EEOC v. Hamilton Growers, Inc. d/b/a Southern Valley Fruit and Vegetables: $500,000 to settle a race and national origin discrimination lawsuit. This case was based on alleged conduct by managers. (December 2012) EEOC SETTLEMENTS 15
  21. 21. Race Discrimination and Retaliation: EEOC v. Torqued-Up Energy Services, Inc.: $150,000 to settle lawsuit that alleged two supervisors subjected an employee to racial slurs and epithets. (May 2013) EEOC SETTLEMENTS 16
  22. 22. Religious Discrimination : EEOC v. Nags Head Landmark Hotel Group, LLC, et al.: $45,000 to settle religious discrimination lawsuit that alleged the employer refused to allow religious accommodation for Seventh Day Adventist who requested not to work on her Sabbath. (July 2013) EEOC SETTLEMENTS 17
  23. 23. Retaliation: EEOC v. BASF Corp.: $500,000 to settle retaliation lawsuit. The suit arose because the employee was required to sign a last chance agreement that prohibited filing of discrimination charges with the EEOC, even for events that had yet to occur. (January 2013) EEOC SETTLEMENTS 18
  24. 24. Sex Discrimination: EEOC V. It’s Just Lunch USA, LLC: $900,000 to settle sex discrimination lawsuit where the employer was accused of refusing to hire men. (July 2013) EEOC v. Exel, Inc.: Jury awards $500,000 in a lawsuit where the EEOC alleged the employer failed to promote a female to a supervisory position. (June 2013) EEOC SETTLEMENTS 19
  25. 25. Sexual Harassment: EEOC v. HoneyBaked Ham Company of Georgia: $370,000 to settle a sexual harassment and retaliation lawsuit based on the conduct of a male supervisor. (June 2013) EEOC SETTLEMENTS 20
  26. 26.  EEOC v. Presrite Corp.: In February 2011, the EEOC filed a Title VII complaint alleging Presrite discriminated against females throughout the entire hiring process for metal forging jobs (failing or refusing to hire, interview, refer them for interviews, or even refer them to agencies from whom Presrite hired applicants). Additionally, the EEOC alleged Presrite failed to make and preserve pertinent employment records ensuring Title VII compliance. Subsequently, the case settled in April 2013 for $700,000 and non-monetary relief including 40 priority female hires and revised hiring policies.  EEOC v. Wal-Mart: Kentucky-based case evaluated whether Wal-Mart discriminated against females in hiring for a rigorous (50-100 pound lift requirement) entry-level “order filler” position at a distribution center. The EEOC argued Wal-Mart impermissibly used gender stereotypes in hiring from 1998-2005 by alleging the hiring officials told applicants the position was not suitable for women and meant mainly for younger men. A settlement was reached in 2010 via a 5-year consent decree whereby Wal-Mart paid $11.7 million in damages and broad- ranging non-monetary relief including hiring more than 50 of the claimants as “order fillers.” EEOC’s TOP TEN LITIGATION DEVELOPMENT: #10—Sex Hiring Challenges 21
  27. 27. PENDING CASES  EEOC v. Mavis Discount Tire: Failure to hire for tire installing positions sex discrimination case where a tire and muffler retailer, Mavis, had at one point, only one female field employee (out of 800), and between 2008-2011 Mavis hired 1,300 male field employees, but not one female. The EEOC alleges Mavis discriminated against females by failing to hire or interview equally qualified female applicants and even hiring male applicants who submitted a blank application. Furthermore, the EEOC alleges Mavis failed to keep and maintain pertinent Title VII employment and interview records. Case is still pending in the Southern District of New York. (No. 12 Civ. 0741 (KPF))  EEOC v. Performance Food Grp., 2014 WL 1760936 (D. Md. Mar. 11, 2014): Defendant-food supplier facing a Title VII pattern or practice sex-discrimination suit for failure to hire females for “operative positions” (intermediate-skilled warehouse positions such as a forklift operator). In bringing the suit, the EEOC is relying on allegedly direct evidence of hostile remarks made by upper-level management on their displeasure with women working in the warehouse. Furthermore, the EEOC is pointing to statistical workforce data allegedly showing PFG has fewer female operative employees as compared to PFG’s competitors. PFG was recently denied its motion to dismiss and the case is still pending. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #10—Sex Hiring Challenges (Cont.) 22
  28. 28.  EEOC v. Unit Drilling Co.: National oil and gas drilling company is accused of discriminating against females with regard to the company’s hiring practices for drilling rig positions. The EEOC yet again relies on allegedly direct evidence of management making hostile remarks about hiring women, as well as the company’s alleged refusal to provide optional housing for women (or even make the current all-male accommodations co-ed). The case is still pending in the Northern Federal District Court of Oklahoma.  Theme: The EEOC seems to be focusing on stereotypically male occupations and pursuing action against companies with virtually or actually no female employees in those positions. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #10—Sex Hiring Challenges (Cont.) 23
  29. 29. EEOC v. Abercrombie & Fitch Cases:  d/b/a Hollister Co., 966 F. Supp. 2d 949 (N.D. Cal. 2013); d/b/a Abercrombie Kids, 2013 WL 1435290 (N.D. Cal. Apr. 9, 2013): Two cases asking when an employer must accommodate its employees’ religious beliefs by granting them an exception to a dress code. In the Abercrombie Kids case, a female Muslim wore her hijab (Islamic head scarf) when she interviewed for a part-time position. She was not hired allegedly because the hijab was inconsistent with the Abercrombie “Look Policy.” Similarly, the Hollister case centered on a Muslim employee getting fired for wearing her hijab to work. The EEOC successfully argued in both cases that an employer cannot rely on facial claims the accommodation will harm its brand image without evidence showing an actual degree of harm. Both cases were settled by a joint consent decree awarding over $100,000 and non-monetary relief in providing Abercrombie employees an appeals process for religious garb accommodations.  d/b/a Abercrombie Kids, 731 F.3d 1106 (10th Cir. 2013): Similar to the cases above, a female Muslim was not hired because of her hijab. Issue resolved here was whether the “notice” requirement for a failure-to-accommodate claim requires an applicant to inform the employer she wears the dress-code-violating garb for religious reasons. EEOC argued constructive notice is enough, such as here where an applicant wears the garb to the interview. However, the Tenth Circuit held the source of the notice of the need for an accommodation generally must explicitly be from the applicant or employee, unless one of the employer’s hiring agents has particularized, actual knowledge of the need for an accommodation. The court’s holding relied in large part on EEOC guidelines, such as employers should not rely upon stereotypes or ask about religion when interviewing. Suit was dismissed. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #9—Religious Discrimination Cases 24
  30. 30.  EEOC v. Burger King: A member of the Christian Pentecostal Church was hired with the understanding from the hiring shift manager that her religious belief (women only wear dresses or skirts) could be accommodated. However, she was subsequently terminated after she was denied an accommodation to the strict pants-only dress code policy. The EEOC argued the Burger King franchisee’s higher management did not even try to see if any accommodation was possible. The case out of Texas settled in January 2013 for $25,000 and other injunctive relief.  EEOC v. AutoZone Inc.: Hostile work environment case where a recently converted Sikh employee was allegedly subjected to among other things, severe ridicule by co-workers for wearing a turban to work and by managers when he sought an accommodation from AutoZone’s dress code. The EEOC argued the store’s management did not take the employee’s accommodation requests seriously. Furthermore, the agency argued after he complained to AutoZone’s human resources manager he was suspended with the stipulation he comply fully with the dress code or submit written proof of the legitimacy of his religious practice. Case out of Massachusetts settled in March 2012 for $75,000 and other injunctive relief. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #9—Religious Discrimination Cases (Cont.) 25
  31. 31.  EEOC v. Cognis Corp., 2012 WL 1893725 (N.D. Ill. May 23, 2012): Case asked whether employees can bring a Title VII retaliation claim when an employer uses a “Last Chance Agreement” that stipulates any exercise of their civil rights is grounds for instant termination. The EEOC argued two different theories for retaliation based on the case’s facts. First, if after signing the LCA, an employee later opposes or revokes the LCA because it restrained his civil rights, then the employer subsequently firing him is a retaliation against an employee engaging in protected activity. Secondly, an employer retaliates against an employee by offering the LCA in lieu of being terminated. The Court granted the EEOC summary judgment on the first theory, but denied it on the second as a fact question for the jury to resolve (“did the company anticipate protected activity in offering the LCA?”). EEOC’s TOP TEN LITIGATION DEVELOPMENT: #8—Preservation of Access to the Legal System 26
  32. 32.  EEOC v. Evans Fruit Co., 2010 WL 2594960 (W.D. Wash. June 24, 2010): Temporary restraining order granted in a case where Evans allegedly committed numerous improprieties during an EEOC Investigation. EEOC alleged, among other things, Evans had employees photograph the people who gave testimony at an EEOC meeting, supervisors bribed witnesses to give favorable testimony, and other threats of intimidation toward plaintiffs. As a result, Evans was essentially ordered by a federal judge to post notice of its violations.  EEOC v. CVS Pharmacy, Inc., Civil Action No. 1:14-CV-863 (N.D. Ill.): Recently the EEOC filed a Title VII complaint alleging CVS utilized a Severance Agreement that constitutes an unlawful pattern or practice of interfering with rights protected by Title VII. The EEOC is arguing the more than 650 former employees who entered into these agreements are barred from filing charges with the EEOC or even participating or cooperating with an investigation conducted by the EEOC. The case is still pending. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #8—Preservation of Access to the Legal System (Cont.) 27
  33. 33.  EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc): Appeal by Boh Brothers of a jury verdict against it in a same-sex harassment case brought by the EEOC on behalf of a male iron worker. At trial the EEOC used gender-stereotyping evidence to support the iron worker’s claim he was harassed because he was not stereotypically male. For example, the EEOC offered evidence that a supervisor repeatedly mocked the iron worker with sexualized acts, including simulated anal sex. The Fifth Circuit held the EEOC could rely on the gender-stereotyping evidence to prove a viable claim that same-sex discrimination occurred “because of sex” under Title VII.  EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013): EEOC appealed the summary judgment granted to the employer in a case where a female employee alleged she was unlawfully terminated for lactating and wanting to express milk at work. The EEOC argued such a firing is a viable Title VII sex discrimination claim because allowing such a firing imposes upon women a burden male employees need not suffer. Further, that lactation is a related medical condition of pregnancy, thus affording her protection under the Pregnancy Discrimination Act. Fifth Circuit agreed with the EEOC, vacated the summary judgment order and remanded the case. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #7—EEOC Success in the Fifth Circuit (Covers: Texas, Louisiana, Mississippi) 28
  34. 34.  Chellen v. John Pickle Co., 446 F. Supp. 2d 1247 (N.D. Okla. 2006): Class action Title VII race and national origin discrimination case (under § 1981) brought by the EEOC on behalf of workers recruited in India and brought to the USA by JPC. The EEOC argued JPC discriminated against the class by feeding and housing class members separately from and paying them less than non-Indian employees. Additionally, the agency alleged JPC restricted class members in their ability to move freely, communicate, access health care, and much more. Court awarded $1.24 million in the form of compensatory damages, mental and emotional distress, as well as prejudgment interest on all the combined claims (FLSA and other tort claims were brought as well).  EEOC v. Del Monte Fresh Produce (Hawaii), Inc.: Case is premised on joint employer liability, where the EEOC is attempting to hold Del Monte (as well as other companies) liable for its contractor’s alleged poor treatment and discrimination of their own workers on the basis of national origin (Thai) and race (Asian). Here the EEOC argued Del Monte had so much control over and was economically depended on by its contractor to such a degree that Del Monte should be held as a joint employer for any Title VII violations by its contractor. Del Monte settled in 2013 for $1.2 millions and agreed to ensure its “Farm Labor Contractors” complied with all US laws, such as immigration and civil rights laws. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #6—Discrimination Against Immigrant Workers & Other Vulnerable Workers 29
  35. 35.  EEOC v. Mesa Sys., Inc., No. 2:11-cv-01201 (D. Utah): National origin discrimination case brought on behalf of Hispanic workers against a moving and storage company. The EEOC argued Mesa implemented a restrictive language (“English-Only”) policy subjecting Hispanics to selective, more vigorous, and harsher enforcement of that policy. Case settled in 2013 for $450,000.  EEOC v. Signal Inter., No. 2:12-cv-0557 (E.D. La.): Similar to Chellen, case involves a group of over 500 Indian nationals brought to the USA to work for Signal as pipe fitters and welders in the aftermath of Hurricane Katrina. The EEOC argued Signal discriminated on the basis of national origin and race by allegedly subjecting Indian nationals to poor working and living conditions. Furthermore, when the nationals complained, Signal allegedly threatened deportation, among other harassing conduct by Signal managers. The case is still pending, but in all the EEOC sued under four Title VII theories: pattern or practice, retaliation, hostile work environment, and disparate treatment. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #6—Discrimination Against Immigrant Workers & Other Vulnerable Workers (Cont.) 30
  36. 36.  EEOC v. Koch Foods, No. 3:10cv135–DPJ–FKB (S.D. Miss.): Dual class action claims brought against Koch for sexual harassment of female Hispanic workers and national origin discrimination of male Hispanic workers. The EEOC is arguing male Hispanic workers were subjected to physical mistreatment (ex: supervisors allowed to punch the workers while they worked) because they were Hispanic. As for the sexual harassment, the EEOC focuses its argument on Koch’s failure to provide appropriate and effective mechanisms to prevent and correct harassment. The case is still pending. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #6—Discrimination Against Immigrant Workers & Other Vulnerable Workers (Cont.) 31
  37. 37.  EEOC v. A.C. Widenhouse, 2013 WL 664230 (M.D.N.C. Feb. 22, 2013): EEOC successful in attaining a jury award on racial harassment claims brought on behalf of two workers against a company with no antidiscrimination or reporting policies. Punitive damages awarded were two to three times as much as compensatory damages. Additionally, the jury awarded one of the workers over $70,000 in back pay. As a result the EEOC was able to attain $50,000 in damages for one worker and over $190,000 for the other worker with only $30,000 constituting compensatory damages. An appeal is pending before the 4th Circuit.  EEOC v. AA Foundries: Before Widenhouse, a 2012 Texas jury awarded over $200,000 in punitive damages be paid by another company with no antidiscrimination or reporting policies. The EEOC had brought claims of racial harassment on behalf of three African-American workers after first attempting to reach a pre-litigation settlement through its conciliation process. In a press release after the jury award, the EEOC emphasized how they hoped cases like this one would be a wake-up call to employers to ensure proper policies are in place and enforced. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #5—Importance of Juries 32
  38. 38.  EEOC v. New Breed Logistics: $177,094 (back pay), $486,000 (compensatory), and $850,000 in punitive damages were awarded in May 2013 by a Tennessee jury to four African American temp workers who were the victims of sexual harassment and retaliation.  EEOC v. Exel, Inc.: Atlanta, Georgia jury awarded $25,000 compensatory and $475,000 punitive damages to a sole plaintiff on her “failure to promote” Title VII sex discrimination claim brought on her behalf by the EEOC. The agency was able to attain such significant damages by persuading the jury to believe the company’s human resources department unfairly sided with the alleged wrongdoer without any investigation at all. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #5—Importance of Juries (Cont.) 33
  39. 39.  EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. Apr. 22, 2014): EEOC appealed Ford’s summary judgment awards on the EEOC’s ADA failure-to-accommodate and retaliation claims. The appeal centered on whether a telecommuting arrangement could be a reasonable accommodation for a resale steel buyer with irritable bowel syndrome when the employer had a physical presence requirement. The EEOC successfully argued the law must respond to the advancements in technology and not categorically deny telecommuting accommodations to jobs requiring a great deal of teamwork. As a result the Sixth Circuit reversed the district court’s grant of summary judgment to Ford and remanded the case.  EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012): ADA failure- to-accommodate case centered around whether the ADA could mandate employers to appoint employees who are losing their current positions due to disability to a vacant position for which they are qualified despite the presence of a best-qualified selection policy. In other words can an ADA accommodation ever trump a best-qualified selection policy? The court held that “best qualified” policies do not trump the ADA’s reassignment as a reasonable accommodation obligation. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #4—EEOC Reasonable Accommodation Cases 34
  40. 40.  EEOC v. Interstate Distrib. Co.: Nationwide ADA failure-to- accommodate case out of Colorado that challenged both Interstate’s policy of automatically terminating employees needing more than 12 weeks leave and its policy of refusing to allow workers to return to work if they had “work restrictions.” The EEOC argued the trucking company failed to engage in the interactive process by utilizing both strict policies without considering any extenuating circumstances. Case settled in 2012 for roughly $5 million plus injunctive relief aimed at correcting Interstate’s ADA training and policy.  EEOC v. UPS, 2014 WL 538577 (N.D. Ill. Feb. 11, 2014): Similar to Interstate Distributor, the EEOC brought a class action ADA failure-to- accommodate claim against UPS based on its leave policy which terminated workers after 12 months of leave and required workers be able to perform without any accommodation in order to return to work. The EEOC is arguing the leave policy acts as a 100% healed requirement and acts as an unlawful qualification standard under the ADA. The EEOC recently survived a motion to dismiss on its claim as the district court agreed a 100% healed policy would qualify as an unlawful qualification standard. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #4—EEOC Reasonable Accommodation Cases (cont.) 35
  41. 41.  EEOC v. American Tool & Mold, Inc., 2014 WL 2185013 (M.D. Fla. Apr. 16, 2014): EEOC was granted summary judgment on an ADA claim American unlawfully revoked an applicant’s conditional offer of employment because he was “regarded as” being disabled. The crux of the EEOC’s case is how American, upon the applicant revealing he had back surgery seven years prior, decided he was not fit to work until he obtained a release from the surgeon. Furthermore, the agency pointed to how American relied on the myths and fears of future liability should American hire someone who had back surgery. In granting summary judgment, the court held it is unlawful to require a healthy prospective applicant to obtain a release for an old surgery from a surgeon stating he had no restrictions instead of individually assessing whether he could perform the essential functions of the job for which he was hired.  EEOC v. Creative Networks, LLC, 912 F. Supp. 2d 828 (D. Ariz. 2012): ADA failure-to-accommodate and failure-to-hire claim brought by the EEOC where Creative refused to provide a hearing-impaired applicant a sign-language interpreter for her pre-employment orientation and training (24 hours over 6 days), and instead gave her $200 towards interpretive services. Creative Networks ceded the failure-to accommodate claim, but not the failure-to-hire claim because the applicant did not complete the application process. The EEOC successfully countered by pointing out how an applicant need not complete the entire process to bring a claim. Subsequently the EEOC was granted summary judgment on both claims. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #4—EEOC Reasonable Accommodation Cases (cont.) 36
  42. 42.  EEOC v. Pepsi Bottling Grp.: In early 2012 EEOC attained a $3.13 million racial discrimination settlement with Pepsi over the company’s former policy of refusing to hire applicants who had been arrested pending prosecution or convicted of some minor offenses (even if solely arrested). The policy allegedly had a disparate impact on African-American applicants.  EEOC v. Kaplan Higher Educ. Corp., 2014 WL 1378197 (6th Cir. Apr. 9, 2014): EEOC appealed the lower court excluding its pivotal expert testimony in a class action disparate impact race discrimination claim based upon an alleged unlawful use of credit checks. The EEOC had attempted to offer expert testimony without presenting evidence of the reliability or peer review of its expert’s methodology. The Sixth Circuit affirmed, holding the EEOC brought the case on the basis of a homemade methodology, crafted by a witness with no particular expertise. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #3—Background Screen Cases 37
  43. 43.  EEOC v. BMW: In June 2013, the EEOC filed a claim of race discrimination against BMW for using a blanket criminal background check policy that allegedly has no time limits, no individualized assessment of the nature and gravity of crimes, the ages of convictions, or the nature of the claimants’ respective positions. Specifically, the EEOC brought the claim on behalf of former employees of a former BMW contractor, UTi, who were denied continued employment when a new contractor was brought in and required to rerun background checks pursuant to BMW policy. UTi had used its own policy which only looked back seven years for convictions. The case is still pending in South Carolina.  EEOC v. Dollar General: In Illinois, the EEOC filed a similar nationwide claim as in BMW against Dollar General, however here one of the claimants allegedly was denied employment based on a faulty background check even after bringing the faulty report to management’s attention. The other claimant in the case was denied employment as a cashier-stocker because a drug conviction six years prior, despite the fact she had worked as a cashier-stocker the past four years for a similar store. The case is still pending. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #3—Background Screen Cases (Cont.) 38
  44. 44.  EEOC v. Mach Mining, 738 F.3d 171 (7th 2013): Failure to hire sex discrimination case went up to the Seventh Circuit on interlocutory appeal to resolve whether an alleged failure to conciliate was subject to judicial review in form of implied affirmative defense to the merits of an employment discrimination suit. Mach Mining alleges it has such an affirmative defense because the EEOC did not engage in good faith conciliatory efforts. Other circuit courts (2nd, 4th, 5th, 6th, 8th, 10th, and 11th) have held judicial review of conciliation is appropriate in the form of an affirmative defense. However, the Seventh Circuit went the other way and held failure to conciliate was not an affirmative defense to merits of a Title VII employment discrimination suit. The language of Title VII, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convinced the court that finding such an implied defense adds only an unwarranted mechanism by which employers can avoid liability for unlawful discrimination. Petition for certiorari is pending before the Supreme Court. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #1/2—EEOC Pre-Suit Obligations 39
  45. 45.  EEOC v. Hill Cnty. Farms, Inc., 2014 WL 1813434 (8th Cir. May 8, 2014): EEOC brought a disability and wage discrimination suit against Hill County Farms (d/b/a Henry’s Turkey Service) on behalf of 32 men with intellectual disabilities who allegedly had been mistreated for over 20 years. The EEOC only pursued claims pertaining to time period of 2007-2009, arguing the men were taken advantage of (paid $65 a month) and severely harassed (calling the men “retards” and kicking them at times). The original jury verdict was for $240 million in EEOC’s favor ($2 million in punitives and $5.5 in compensatory damages for each victim), the highest verdict in the EEOC’s history, but this was ultimately reduced to $1.6 million total ($50,000 each). However, the EEOC was previously able to attain $1.3 million in wage discrimination damages. Recently the district court’s disposition of this case was affirmed by the Eighth Circuit in an unpublished opinion. EEOC’s TOP TEN LITIGATION DEVELOPMENT: #1/2—EEOC v. Hill County Farms, Inc. 40
  46. 46.  University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013)  Question: Does the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action)?  Held: Employee retaliation claims filed under Title VII of the Civil Rights Act of 1964 must be proved according to traditional principles of but-for causation, not the lessened causation test stated in the 42 U.S.C. § 2000e–2(m).  In other words, a plaintiff bringing a Title VII retaliation claim must demonstrate that he or she would not have suffered an adverse employment action but for his or her protected activity. The "but for" standard of proof is considerably more difficult for plaintiffs to achieve and will serve to aid employers in defending Title VII retaliation claims. 2012-2013 U.S. SUPREME COURT DECISIONS 41
  47. 47.  Vance v. Ball State University, et al., 133 S. Ct. 2434 (2013)  Question: Who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment?  Held: An employee is a “supervisor” for purposes of vicarious liability under Title VII of the Civil Rights Act only if he is empowered by the employer to take tangible employment actions against the victim, i.e., a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. 2012-2013 U.S. SUPREME COURT DECISIONS 42
  48. 48. American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013)  Question: Is a contractual waiver of class arbitration enforceable under the Federal Arbitration Act when the plaintiff ’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery?  Held: Yes. The Federal Arbitration Act does not permit courts to invalidate a contractual waiver of class arbitration on the ground that the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery.  This decision shows the Court’s heightened deference to arbitration agreements and appears to indicate that employers seeking to avoid class litigation need only include in its contracts an arbitration agreement that contains an express class action waiver. 2012-2013 U.S. SUPREME COURT DECISIONS 43
  49. 49.  Freeman v. Dal-Tile Corp., 2014 WL 1678422 (4th Cir. Apr. 29, 2014): Case involved a repeat customer who constantly racially and sexually harassed a Dal-Tile employee for three years before Dal- Tile finally barred the customer from communicating with the employee. The appeal (and the entire case really) centered on whether the customer’s third-party harassment was imputable to Dal-Tile. The Fourth Circuit ultimately ruled an employer can be held liable for the harassment of an employee by a third-party where it knew or should have known that a third party was harassing an employee, but failed to take prompt remedial action reasonably calculated to end the harassment. As a result, the court reversed the grant of summary judgment to Dal-Tile and remanded the case. BONUS LITIGATION DEVELOPMENT: Third-Party Harassment Liability 44
  50. 50. Questions? 45