4/20/2015 EEOC SEP EEOC SEP EEOC Enforcement and Litigation Agenda: Pushing the Envelope (And How To Push Back) Priorities:

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1 EEOC Enforcement and Litigation Agenda: Pushing the Envelope (And How To Push Back) Heather Vickles Beth Ann Lennon EEOC SEP Priorities: 1. Eliminating barriers to employment 2. Protecting vulnerable workers 3. Emerging issues ADAAA LGBT protections Pregnancy accommodations EEOC SEP Priorities: 4. Equal pay 5. Preserving access to legal system Retaliation Overbroad waivers Recordkeeping violations 6. Preventing harassment 1

2 What 2014 Means For 2015 Something to prove in 2015 Full slate of commissioners 140 additional investigators Backlog of 75,900+ Charges In Our Own Backyard Phoenix Office Active District High Profile Cases Regional Attorney Mary Jo O Neill In Our Own Backyard Denver Field Office New Director John Lowrie Charges each year EEOC v. Patterson-UTI Drilling Co. $12.2 million settlement 2

3 Investigation Tactics Overbroad RFI Nationwide scope 200+ questions and subparts 5+ years of data 500,000+ applicants and employees EEOC v. Bass Pro Outdoor World EEOC v. Rosebud Restaurant EEOC v. KB Staffing Investigation Tactics Unannounced, FBI-like raid EEOC v. Homenurse Trolling for plaintiffs EEOC v. United Health Programs Case New Holland v. EEOC Pushing Back Object Ask questions Negotiate Time period Entity / facilities / locations Groups of employees Format of data 3

4 Beware The Subpoena Petition EEOC first Within 5 business days! Or lose right to oppose in court Challenge in court EEOC v. Royal Caribbean EEOC v. Forge Industrial Staffing Pre-Suit Obligations Beyond review? EEOC: Yes! Courts: Maybe Mach Mining v. EEOC EEOC v. Sterling Jewelers EEOC v. New Prime Pushing Back Congress is pushing back for you 2014 House Committee Hearing EEOC Transparency and Accountability Act 2015 Appropriations Bill 4

5 Systemic Class Litigation 25% of EEOC s pending cases Pattern or practice Nationwide allegations Focusing on deterrence EEOC v. Bass Pro Outdoor World EEOC v. Cintas Pregnancy Accommodation Enforcement Guidance on Pregnancy Discrimination Issued July 2014 No public review or comment 2 weeks after Supreme Court agreed to hear Young v. UPS Requires reasonable accommodation Most favored nation Young v. UPS Supreme Court Decision March 25, 2015 Criticized EEOC s Guidance Rejected most favored nation status Pregnancy-neutral policy may result in disparate impact 5

6 ADA: Telecommuting EEOC v. Ford Motor Co. EEOC: Regular and predictable on-site attendance Not an essential function! Sixth Circuit Court of Appeals en banc (8-5): ADA does not endow all disabled persons with a job or job schedule of their choosing Common sense is our guide ADA: Direct Threat Defense EEOC: Employer must prove actual threat EEOC v. Beverage Distributors Rejected by Tenth Circuit Reasonable belief sufficient Religious Garb 2014 Technical Advisory on Garb and Grooming Liability without actual knowledge EEOC v. Abercrombie & Fitch Supreme Court decision imminent EEOC v. AutoZone EEOC v. Scottish Food Systems 6

7 Background Checks Does Title VII prohibit background checks? Joint guidance with FTC Disparate impact Criminal history Credit checks Statistical expert testimony rejected EEOC v. Kaplan Higher Education EEOC v. Freeman Pushing Back EEOC v. Peoplemark EEOC ordered to pay $750,000 EEOC v. BMW Manufacturing EEOC ordered to turn over its own policies Vulnerable Workers Does Title VII cover human-trafficking? EEOC v. Global Horizons $8.7 million default judgment Defunct employer EEOC v. Green Acre Farms EEOC ordered to pay attorneys fees Frivolous claims 7

8 Wellness Plans Violate ADA or GINA? NPRM issued April 20, 2015 EEOC v. Honeywell International Incentives to provide family medical history Penalties against employees who chose not to participate TRO denied Separation Agreements Interfere with Title VII rights? EEOC v. CVS Pharmacy EEOC v. CollegeAmerica Denver EEOC v. Allstate Retaliation theory Transgendered Employees LGBT Working Group Sex discrimination under Title VII? Gender norms or stereotypes EEOC v. Lakeland Eye Clinic EEOC v. Boh Brother Construction Co. 8

9 Keep On Pushing Trial defeats Summary judgment defeats Fee awards Sanctions Congressional criticism 9