The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
Tuesday, September 25, 2012
by Lydell C. Bridgeford
What have been the most noteworthy developments to emerge so far this year from EEOC policy guidance and litigation? Donald R.
Livingston, a partner at Akin, Gump, Strauss, Hauer & Feld in Washington, D.C. and former general counsel at the Equal Employment Opportunity
Commission, tells Bloomberg BNA what has piqued his interest about EEOC in 2012.
From Nov. 1991 to June 1993, Livingston served as general
counsel at the commission. [Full disclosure: Livingston is also the author
of the book EEOC
Litigation and Charge Resolution, which is published by
Bloomberg BNA: In assessing 2012,
what has stood out to you as significant moments from EEOC's regulatory
agenda and federal litigation?
Livingston: Two things stand out: First,
is the EEOC's April 2012 policy
guidance on criminal history information. Second, is the
trend in the courts to hold EEOC accountable when its
investigations and pre-suit efforts at conciliation are unfair to
respondents, as illustrated in EEOC v. CRST Van Expedited
The EEOC's policy guidance on criminal history information
seemed to swell from the confluence of events that occurred more
than five years ago. These were the EEOC's February 28, 2007,
announcement that, as part of its "E-RACE
initiative," it would target employers' use of arrest and
conviction records, immediately followed by an opinion of the Third
Circuit Court of Appeals that rejected the EEOC's then existing
enforcement guidance on convictions.
In El v. Se. Pa. Transp. Auth., the court found the EEOC's position poorly
researched and unpersuasive. The new guidance is better
researched. But, its persuasiveness has yet to be evaluated
by a court. However, the new guidance has caused many large
employers to recalibrate
existing policies to try to avoid entanglements with the
In hindsight, the CRST decision seems to have been
inevitable, at some point. For years, EEOC has forced
employers to settle ill-defined EEOC claims.
In CRST, a federal court of appeals affirmed the
dismissal of many of the EEOC's claims brought under §706 of Title
VII because the EEOC had refused during its pre-suit conciliation
efforts to identify the persons for whom it was seeking remedies.
The court stated that before the EEOC can seek remedies for persons
it "must discover such individuals and wrongdoing during the course
of its investigation," and conciliate for these victims.
The consequence of this opinion is likely to be more detailed,
prolonged, and cumbersome pre-litigation investigations by the EEOC
during its class investigations, which will increase the cost and
burdens to employers of dealing with these investigations.
Bloomberg BNA: What do you think the
remaining months of 2012 will hold for the EEOC and its
stakeholders in terms of new guidance and legal developments?
Livingston: Things should be relatively
calm until after the November election. Then, who knows?
The next Q&A will feature Claudia Center, a senior staff
attorney at the Legal Aid
Society's Employment Law Center in San Francesco, discussing the search for a new EEOC commissioner and how domestic
violence intersects with Title VII of the 1964 Civil Rights Act and
the Americans with Disabilities Act.
More Q&As on Labor & Employment
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