EEOC Keeping Its Focus on Systemic Cases, With ADA, Pregnancy Bias in Lead, Firm Says

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By Kevin P. McGowan  

Jan. 6 --The Equal Employment Opportunity Commission in 2013 kept its litigation focus on cases of alleged systemic discrimination, with particular emphases on disability and pregnancy bias, according to the executive summary of a Seyfarth Shaw annual report on the agency's litigation trends.

Employers during 2014 can expect more of the same from the EEOC, as the agency tries to leverage its limited resources by litigating systemic cases, which the EEOC defines as “pattern or practice, policy, or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area,” the management law firm said in a report made available Jan. 2 to Bloomberg BNA.

“The bottom line: the EEOC has committed to bringing bigger and better lawsuits, both to its internal stakeholders and the political powers that hold the purse strings,” Seyfarth Shaw said in the report. “Looking forward to [fiscal year] 2014, we predict that the systemic initiative will continue to be a key driver for the EEOC's enforcement and litigation activity.”

Conflicts Over Pre-Suit Requirements

But the EEOC's systemic lawsuits have received a mixed reaction, the report said. Some courts have faulted the commission for insufficient preparation prior to filing suit and awarded defendant employers their attorneys' fees or other sanctions against EEOC for its enforcement and litigation tactics, according to the report.

“[B]eyond showing results on paper based solely on the number of lawsuits and investigations filed in a fiscal year, the [EEOC] appears not to have created or implemented controls to manage how its troops with boots on the ground litigate these cases,” Seyfarth Shaw said. “The absence of meaningful internal controls and oversight, in turn, resulted in significant setbacks for the commission, in terms of having to pay sanctions given the agency's tight budget. It remains to be seen whether the EEOC takes to heart the criticism of its litigation and enforcement tactics.”

The EEOC's recent victory in the U.S. Court of Appeals for the Seventh Circuit in EEOC v. Mach Mining Inc., 2013 BL 352076 (7th Cir. 2013) (32 HRR 17, 1/13/14), sets up another potential litigation theme for 2014, the report said.

In Mach Mining, the Seventh Circuit became the first federal appeals court to vindicate the EEOC's argument that courts can't review whether the agency engaged in good-faith conciliation efforts after determining reasonable cause for a discrimination charge under Title VII of the 1964 Civil Rights Act.

That created a circuit conflict that the Seyfarth Shaw report predicts the U.S. Supreme Court may eventually step in to resolve.

In the meantime, the EEOC is likely to press its Seventh Circuit victory and argue that employers across the country lack an affirmative defense based on the EEOC's conciliation efforts or other pre-suit requirements under Title VII, Seyfarth Shaw said.

Pending Challenge to EEOC Tactics

The Seyfarth Shaw report also highlights an August 2013 suit filed by Case New Holland Inc. and CNH America LLC against the EEOC in federal district court in Washington, in which the companies challenged the EEOC's use of “ 'edge of the envelope' investigatory techniques.”

In particular, Case New Holland and CNH argued the EEOC crossed the line “by sending a blast email to employees at their business addresses without warning their employer in an effort to drum up claimants for an age bias pattern or practice lawsuit,” the report said.

“The EEOC has been historically criticized for not identifying victims early in its litigation, and the strategy behind the blast email may have been a misguided effort to address these criticisms,” the report said. “It remains to be seen how the EEOC's argument will fare in court. In the interim, employers should watch out for similar envelope-pushing tactics.”

Focuses Include Hiring, National Origin

As for substantive areas of EEOC litigation, Seyfarth Shaw said employers in 2014 should expect a continued agency focus on Americans with Disabilities Act cases; disparate impact cases regarding hiring, particularly on employers' use of criminal background checks and applicants' credit histories; and national origin discrimination, as the EEOC implements its strategic enforcement plan (SEP) priority on “protecting immigrant, migrant and other vulnerable workers” (30 HRR 1377, 12/24/12).

In its review of the EEOC's activity in 2013, the report said the agency's emphasis on ADA cases was consistent with the SEP's announced priority of “addressing emerging and developing issues,” which the EEOC interpreted to include issues of ADA “coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat.”

At 2013 outreach events, the EEOC emphasized individuals with disabilities are the nation's largest minority group seeking employment in the current marketplace. The EEOC also sees individuals with disabilities as an undervalued and untapped potential workforce, Seyfarth Shaw said.

“The SEP sets out the EEOC's game plan to alter this dynamic and in FY 2013, we saw the EEOC's strategy play out in the form of aggressive enforcement and litigation of disability discrimination,” the report said. “We expect the dogged focus on ADA enforcement and litigation to continue in FY 2014 and for the near term.”

Pregnancy bias also was “front and center” as an EEOC litigation focus in 2013, the report said.

“The EEOC is clearly focused on breaking the 'maternal wall' with its scrutiny on pregnancy discrimination,” the report said. “Employers can expect to see sustained enforcement and litigation activity in this area in 2014.”

Other substantive areas in which the EEOC has shown greater interest in recent years include religious discrimination, human trafficking, preventing discrimination based on sexual orientation or gender identity, and assisting military veterans who face higher unemployment rates, Seyfarth Shaw said.

Human Trafficking, Sexual Orientation

The EEOC is collaborating with other federal agencies on these initiatives, the report said. But Seyfarth Shaw suggested the EEOC may be ill-suited to combat human trafficking, for example, as the agency pushes courts to analyze the underlying problem as race or national origin discrimination or sexual harassment under Title VII rather than preying on economic vulnerability.

“Although human exploitation should not be tolerated, the EEOC is not well-equipped to lead the charge,” the report said. “The EEOC's assertion that Title VII covers 'human trafficking' is in fact a novel extension of Title VII, well beyond statutory language and the EEOC's enforcement authority as defined by Congress. Because the EEOC can only bring suit under its specified statutory authority, human trafficking claims must be shoehorned into one of Title VII's protected categories.”

“This forces the EEOC to litigate human trafficking by proxy--it must convince a court that individuals targeted for their economic vulnerability are necessarily targeted for their national origin, race or sex,” the report said. “Although the two often coincide, a correlation is not automatic and making the connection in each case dilutes the force of the EEOC's arguments. In sum, the unintended consequence of the EEOC's tactics is to divert the parties' and courts' attention away from human trafficking to address whether the facts support a claim for discrimination under a recognized protected category.”

EEOC also is pushing for protection against sexual orientation discrimination through a “gender stereotyping” theory of sex discrimination under Title VII, the report said. In 2013, the EEOC scored a big victory with the Fifth Circuit's decision in EEOC v. Boh Brothers Construction Co., 731 F.3d 444, 120 FEP Cases 15 (5th Cir. 2013) (31 HRR 1053, 10/7/13), the report said.

“Although this issue seems ripe for further litigation, protecting employees from discrimination on the basis of sexual orientation and gender identity might not be just a semantic exercise much longer,” the report said.

More states and localities have enacted legislation banning employment discrimination based on sexual orientation or gender identity and in 2013, the Senate passed the Employment Non-Discrimination Act (S. 815), which would do the same on the federal level (31 HRR 1183, 11/11/13), the report said.

The key takeaway is “the EEOC favors protecting sexual orientation and gender identity in the workplace whether it is through an expansive reading of Title VII or in the form of new legislation,” the report said. “Employers should expect the EEOC to continue to look for opportunities to bring headline-grabbing charges or lawsuits challenging workplace policies or practices that conflict with the EEOC's broad reading of Title VII to include protection of sexual orientation and gender identity.”

The report said more EEOC lawsuits under the Genetic Information Nondiscrimination Act also may be on the horizon following the EEOC's settlement of a GINA suit against an Oklahoma employer in May 2013 and the agency's filing of a separate GINA suit against a New York nursing and rehabilitation center (31 HRR 540, 5/27/13).

 

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com