Is the seeming rise in cases involving challenges to the Equal Employment Opportunity Commission’s enforcement authority more of a sign of an overaggressive agency (at least Seyfarth Shaw thinks so) or an emboldened defense bar? While the answer to that question surely depends on who is asked, there would seem to be little room for doubt that the employer community has reacted to the agency’s changed approach (reflected in EEOC’s systemic case filings).  

The issue again takes center stage this week with an Eighth Circuit panel’s release of a new opinion (CRST II) in the commission’s case against CRST Van Expedited Inc. The new opinion reaffirmed the panel's Feb. 22 holding (CRST I) that EEOC is required to exhaust its investigation and conciliation obligations as to each claimant before filing class litigation against an employer.  

The agency reacted by taking up the clerk of the court on his offer that it could renew its request for review by the full Eighth Circuit.  

Those developments were soon followed by a U.S. District Court for the Northern District of Illinois decision (EEOC v. United Road Towing Inc. ) reaching an opposite conclusion. There, a federal judge in Chicago found in a disabilities discrimination case that the agency is not obligated to fulfill its presuit duties as to each claimant in a class-based claim prior to suing. EEOC naturally is trumpeting that decision as the correct result.  

This past week in EEO news also saw:  

• Congressional activity on three issues: the introduction of further pregnancy bias protections by four House democrats (H.R. 5647), efforts by House republicans to block EEOC’s new age discrimination rules (H.R. 5326), and a renewed call for federal legislation outlawing job bias based on sexual orientation (H.R. 1397, S. 811).  

• The Connecticut Supreme Court recognizing a claim for sexual orientation harassment under state law (Patino v. v. BirkenMfg. Co.).  

• The Second Circuit joining other federal appeals courts in ruling that an HR employee’s involvement in the investigation of an internal discrimination complaint is not Title VII "participation" (Townsend v. Benjamin Enters. Inc.).  

• The Sixth Circuit adding to the body of case authority holding that the ADA’s job accommodation requirements do not extend to an employee’s commute to and from work (Regan v. Faurecia Auto. Seating Inc.).