Disability, Sex Bias Claims Lead Rush of EEOC Year-End Lawsuits

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Patrick Dorrian

The EEOC closed its 2017 fiscal year with the usual flurry of new lawsuits against U.S. employers, including Fortune 500 companies Wal-Mart, Home Depot, Publix, and Lowe’s.

The federal job rights agency filed 86 new cases in September, with allegations of disability- and sex-based discrimination leading the way. The total mirrors previous Septembers for the Equal Employment Opportunity Commission in reflecting a spike in the final month of the agency’s fiscal year.

However, this September was also the most active litigation-wise the agency has had since 2011.

The September filings for this year show the EEOC’s strong focus on disability discrimination. Filings in the final month of the fiscal year also show an EEOC focused on alleged pregnancy discrimination and sex-based pay discrimination, two other enforcement priorities. Sex discrimination against LGBT workers received less focus, with only one lawsuit each aimed at alleged sexual orientation and gender identity discrimination.

Of the 86 lawsuits, 60 were filed on behalf of a single worker and 26 were brought on behalf of multiple workers or a class of workers.

The month saw a sharp rise from September 2016, when the EEOC filed an unusually low 31 lawsuits. In 2015, 2014, 2013, and 2012, by comparison, the last month of the fiscal calendar saw 66, 62, 49, and 56 new EEOC lawsuits, respectively.

The 86 September filings brought the EEOC’s total of new lawsuits in FY 2017 to 191. That number also was a sharp rise from FY 2016, when the agency hit employers with just 86 new cases, it said. This year was more in line with totals for the EEOC’s 2015, 2014, 2013, and 2012 fiscal years: 142, 133, 131, and 122, respectively.

But the 2017 September and yearly totals still pale in comparison with the EEOC’s litigation activity in years prior to 2012, according to the agency’s own statistics. Between FY 1997 and FY 2011, the agency never filed fewer than 250 new lawsuits for the year, averaged 337 new suits yearly, and brought a high of 438 new lawsuits against employers in 1999.

The September 2017 monthly total also is far fewer than the average of roughly 150 cases filed in September from 1999 through 2011.

Breakdown by Law, Cause of Action, Theory

Two federal statutes were asserted most often in the EEOC’s fiscal year-end lawsuits: Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act.

In all, the EEOC asserted claims under Title VII in 47 of the 86 September 2017 lawsuits and 36 under the ADA.

There were also six that included claims under the Equal Pay Act, five under the Age Discrimination in Employment Act, and two under the Genetic Information Nondiscrimination Act. As with the type of discrimination asserted, lawsuits can include allegations under more than one law.

With its focus on disability discrimination, the commission was especially on the lookout for inflexible employer policies or practices that fail to consider leave or additional leave as a potential job accommodation for someone with a temporary disability.

Questionable policies and practices can include rules that prevent workers from returning to their jobs unless they’re 100 percent fit or healed and that result in their termination if they’re unable to do so by a specific date.

In all, 36 of the 86 September 2017 filings include disability discrimination claims, with at least 10 of those targeting allegedly inflexible leave or 100-percent-healed policies. That includes lawsuits against Trinity Health System and casino operators Wynn Las Vegas LLC and Midwest Gaming and Entertainment LLC.

Disability bias filings also include seven lawsuits challenging pre- or post-offer medical inquiries or exams by employers that the agency believes screen out or tend to screen out disabled workers. Included among these are filings against Norfolk Southern Corp., Consolidated Edison Co. of New York, and Volvo Group N.A. LLC.

Cracking down on inflexible leave policies and qualification standards that discriminate against people with disabilities is a priority for the EEOC, according to its strategic enforcement plan for 2017-2021.

Another top enforcement priority for the commission is preventing sexual and other workplace harassment, and the September filings reflect this. Seventeen lawsuits targeted alleged sexually hostile workplaces and another five aimed at workplaces where black employees allegedly were subjected to racist language or imagery. Chipotle Mexican Grill Inc., MVM Inc., Aqua American Inc., and rue21 inc. were among the employers sued on those bases.

Customizable Training

On a related note, the agency announced Sept. 4 that it will offer a new training program for supervisors—and a separate one for all employees—on workplace respect and acceptable conduct.

The programs, the agency said, will be customizable for different types of workplaces and include a section on how employers may review their harassment prevention policies and procedures. The training is an “outgrowth” of an agency task force’s June 2016 report on workplace harassment.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Terence Hyland at thyland@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law