EEOC Litigation: Trends In 2014 And What To Watch For In Matthew J. Gagnon. Complex Discrimination Litigation

Transcription

1 EEOC Litigation: Trends In 2014 And What To Watch For In 2015 Matthew J. Gagnon Complex Discrimination Litigation

2 Introductions Matthew J. Gagnon Seyfarth Shaw, Complex Employment Discrimination Group Practice focuses on complex class and collective action litigation involving federal anti-discrimination and wage and hour laws Defends employment-related class actions and EEOC lawsuits brought in federal and state courts throughout the United States Seyfarth Shaw LLP

3 What Are We Talking About Today? EEOC s litigation focus as reflected in its Strategic Enforcement Plan Litigation statistics that reveal where the action is New discrimination theories and targets New procedural rulings that the EEOC is aggressively pursuing New methods and tools of enforcement Seyfarth Shaw LLP

4 What Are We Talking About Today? In other words... Who is in the crosshairs? What are the new weapons in the EEOC s arsenal? How are defendants being forcibly disarmed? Seyfarth Shaw LLP

5 Today s Presentation Will Not: Provide legal advice Delve into all issues relating to EEOC litigation Be a comprehensive guide to defending against EEOC litigation Seyfarth Shaw LLP

6 Why Bother Tracking Trends? What Are The EEOC s Objectives? The 2012 Strategic Enforcement Plan sets forth the agency s litigation priorities for 2012 through 2016 How does the EEOC set its agenda? Five criteria: How many employers/employees are impacted? What are the developing areas of the law Who are the most vulnerable workers? What impedes the full enforcement of employment antidiscrimination laws? What is the EEOC best at? Seyfarth Shaw LLP

7 Why Bother Tracking Trends? What Are The EEOC s Priorities? The elimination of systemic barriers in recruitment and hiring Protection of immigrant, migrant, and other vulnerable workers Addressing emerging and developing issues Enforcing equal pay laws Preserving access to the legal system Preventing harassment through systemic enforcement and targeted outreach Seyfarth Shaw LLP

8 Why Bother Tracking Trends? Focus on systemic litigation has had the biggest impact: The EEOC defines systemic cases as pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, occupation, business, or geographic area Typically class cases; but they can also arise out of a single charge if it challenges an allegedly discriminatory policy The Commission has established performance metrics that targets systemic cases as a specific percentage of its docket each year Seyfarth Shaw LLP

9 Why Bother Tracking Trends? A close evaluation of where cases are filed and what types of cases are brought reveals: Which employers are at risk What they can do about it Seyfarth Shaw LLP

10 2014 Trends In EEOC Litigation Part I: Who Is In The Crosshairs? Seyfarth Shaw LLP

11 Who Is In The Crosshairs? Where are cases being filed? Seyfarth Shaw LLP

12 Who Is In The Crosshairs? What types of cases are being filed? Seyfarth Shaw LLP

13 Who Is In The Crosshairs? What types of cases are being filed? Seyfarth Shaw LLP

14 Who Is In The Crosshairs? What types of cases are being settled? Seyfarth Shaw LLP

15 Who Is In The Crosshairs? What types of cases are being settled? Seyfarth Shaw LLP

16 Who Is In The Crosshairs? What are the new substantive theories that employers have to watch out for? Transgender Employees Pregnancy Discrimination Health and Wellness Programs Criminal/Credit Background Checks Seyfarth Shaw LLP

17 Who Is In The Crosshairs? A new focus on transgender employees Transgender employees fall directly within the Commission s stated priority to expand coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply Theory: disparate treatment of an employee because he or she is transgender is discrimination on the basis of sex because it is tantamount to discrimination for failure to conform to gender norms or stereotypes Where does this come from? EEOC v. Boh Brothers Construction Co., 731 F.3d 444 (5th Cir. 2013) Seyfarth Shaw LLP

18 Who Is In The Crosshairs? A new focus on transgender employees: What employers should expect and prepare for What will these types of cases look like: EEOC v. Lakeland Eye Clinic, No. 8:14-CV-2421-T35 AEP (M.D. Fla. filed Sept. 25, 2014) EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 2:14-cv SFC-DRG (E.D. Mich. filed Sept. 25, 2014) Does this theory have merit? Title VII does not explicitly mention gender identity as a protected classification Arguably counter to Employment Non-Discrimination Act Seyfarth Shaw LLP

19 Who Is In The Crosshairs? A renewed focus on pregnancy discrimination The EEOC has also sought to extend the reach of the ADA s reasonable accommodations provisions to cover pregnant employees who are experiencing normal pregnancies Theory: employers must accommodate an employee who is unable to perform the essential functions of her job due to pregnancy-related restrictions What s new about that? Although the ADA would have required accommodation for pregnancy-related impairments, it arguably does not apply to normal pregnancies Seyfarth Shaw LLP

20 Who Is In The Crosshairs? A renewed focus on pregnancy discrimination Whether employers must always make reasonable accommodations for pregnant employees was the issue recently decided by the Supreme Court in Young v. United Parcel Service, Inc. EEOC Guidance purports to answer this question: yes The standards adopted in the EEOC s guidance are currently proposed in the Pregnant Workers Fairness Act Seyfarth Shaw LLP If enacted, this law would make it an unlawful employment practice not to provide a reasonable accommodation for the known limitations related to pregnancy or force a pregnant employee to take leave

21 Who Is In The Crosshairs? A new target: corporate health and wellness plans EEOC took aim at Honeywell s corporate sponsored health and wellness plan; claims that it violates: the ADA because it imposed financial penalties on employees who chose not to participate in the program GINA because that statute protects information relating to a manifestation of a disease or disorder in family members EEOC v. Honeywell International, Inc., No. 14-CV-4517(D. Minn. Nov. 6, 2014) On November 6, 2014, the district court denied the EEOC s request for a temporary restraining order, but the issue lives on Seyfarth Shaw LLP

22 Who Is In The Crosshairs? A new target: corporate health and wellness plans This initiative has come under intense scrutiny and criticism from Congress and the White House: Seyfarth Shaw LLP U.S. Senate HELP Committee, November 13, 2014: EEOC s General Counsel, David Lopez, faces intense questioning Senator Lamar Alexander s Report, November 24, 2014 White House, December 3, 2015: the EEOC s position could be inconsistent with what we know about wellness programs and the fact that we know that wellness programs are good for both employers and employees. HELP Committee, January 29, 2015 special hearing: EEOC is sending a confusing message to employers reliance on Obamacare s authorization of wellness programs does not mean you won t be sued.

23 Who Is In The Crosshairs? An old target: criminal and credit background checks The EEOC is still targeting employers use of criminal and credit history background checks in hiring decisions despite recent setbacks: EEOC v. Kaplan Higher Educ. Corp., No. 1:10-cv-2882, 2013 WL (N.D. Ohio Jan. 28, 2013) EEOC v. Freeman, No. RWT 09cv2573, 2013 WL (D. Md. Aug. 9, 2013) EEOC alleged that use of credit history as a hiring selection criteria had a disparate impact on African-Americans; its expert found adverse impact based on different pass rates Expert evidence thrown out in both cases Seyfarth Shaw LLP

24 Who Is In The Crosshairs? An old target: criminal and credit background checks The EEOC is determined to press on despite intense practical and political headwinds: Practical problem: The EEOC itself uses background checks to screen its own employees. EEOC v. BMW Manufacturing Co., No. 13-CV-1583, 2014 U.S. Dist. LEXIS (D.S.C. Dec. 9, 2014) Political problem: Significant defeats have led to intense criticism from Congress Bonus political problem: Texas is directly challenging the EEOC s criminal history guidance State of Texas v. EEOC, No. 5:13-CV-255 (N.D. Tex. Aug. 20, 2014) Seyfarth Shaw LLP

25 2014 Trends In EEOC Litigation Part II: What Are The New Weapons In The EEOC s Arsenal? Seyfarth Shaw LLP

26 What Are The New Weapons In The EEOC s Arsenal? Settling with the EEOC: It s not over even when it s over Fourth time s the charm: EEOC v. AutoZone Inc., No. 07-CV-1154 (C.D. Ill. Jan. 27, 2012) Settling with the EEOC almost always ends in a courtordered consent decree Equitable relief is always a key component of the settlement process: Training, targeted recruitment efforts, self-assessment, internal or external monitoring, reporting requirements, etc. What could go wrong? Seyfarth Shaw LLP

27 What Are The New Weapons In The EEOC s Arsenal? Aggressive use of subpoena power The EEOC has broad subpoena power. Limited only insofar as the evidence sought must: relate to any matter under investigation, or any matter in question in such proceedings, and describe with sufficient particularity the evidence whose production is required Substantial opportunity to build a case for litigation outside the protections of formal discovery process Steady increase in the number of subpoenas issued Seyfarth Shaw LLP

28 What Are The New Weapons In The EEOC s Arsenal? Aggressive use of subpoena power: Substantial leeway Judges have historically given the EEOC substantial leeway in terms of the subpoena s scope in relation to the underlying charge How much leeway? EEOC v. KB Staffing, LLC, No. 14-CV-41 (M.D. Fla. Sept. 16, 2014). Are there any limits? EEOC v. Forge Industrial Staffing Inc., No. 1:14-CV-90 (S.D. Ind. Nov. 24, 2014) Can the EEOC act like the FBI??! EEOC v. Homenurse, Inc., No. 1:13-CV-2927 (N.D. Ga. Sept. 30, 2013) Seyfarth Shaw LLP

29 What Are The New Weapons In The EEOC s Arsenal? What other tactics should employers be aware of? In addition to the use of broad subpoenas to conduct open-ended investigations, the EEOC has also started to use other tactics to advance their investigation and case development outside of formal discovery One of the more troubling developments is the use of mass s to company employees that inquire about possibly discriminatory experiences Effort to find additional class members and drum up additional allegations against the company Seyfarth Shaw LLP

30 2014 Trends In EEOC Litigation Part III: Disarming Employers Seyfarth Shaw LLP

31 Disarming Employers The EEOC is not just interested in its own arsenal. It is also actively trying to dismantle employers defenses Attacking the power of employers and courts to scrutinize the EEOC s conduct prior to bringing suit Aggressively applying pattern or practice framework to all types of cases Trying out aggressive new theories: Is there a separate cause of action for resisting the full enjoyment of rights created by Title VII? Seyfarth Shaw LLP

32 Disarming Employers Pre-suit obligations: The anti-discrimination laws require the EEOC to engage in specific steps prior to bringing suit in court. The EEOC may not bring suit before: Seyfarth Shaw LLP mak[ing] an investigation thereof determining whether there is reasonable cause to believe that the charge is true, and endeavor[ing] to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion The EEOC is actively challenging courts power to review how the EEOC conducts the conciliation and investigation steps

33 Disarming Employers Pre-suit obligations: Conciliation Title VII explicitly favors resolution of discrimination claims outside of court. The conciliation process is a key element of that process. EEOC s take it or leave it approach has given rise to frequent challenges by employers But can the court scrutinize how this is done? The Supreme Court will decide: Mach Mining, LLC v. EEOC, 738 F.3d 171 (7th Cir. 2013) Seyfarth Shaw LLP

34 Disarming Employers Pre-suit obligations: Investigation Some would argue that investigation is as important as conciliation in fostering resolution outside of court Meaningful negotiation requires that employers know what claims they are facing and what evidence supports those claims The EEOC is actively challenging employers efforts to hold the EEOC accountable for its pre-suit investigation Can they do that? EEOC v. Sterling Jewelers Inc., 3 F. Supp. 3d 57 (W.D.N.Y. 2014) Seyfarth Shaw LLP

35 Disarming Employers Extending the reach of the pattern or practice framework Pattern or practice cases follow the burden-shifting framework set forth in International Brotherhood of Teamsters v. United States Seyfarth Shaw LLP EEOC must show that discrimination is the employer s standard operating procedure Arguably creates a presumption that all individuals in the EEOC s class were victims of discrimination Employer must then rebut individual claims, often years after employment decisions were made Bottom line: The Teamsters framework can result in a significant litigation advantage for the EEOC

36 Disarming Employers Extending the reach of the pattern or practice framework Pattern or practice cases have traditionally been litigated under Section 707 of Title VII Seyfarth Shaw LLP Section 707: explicitly authorizes the EEOC to bring cases alleging a pattern or practice of discrimination Section 706: representative actions, where the EEOC steps into the shoes of individual claimants and sues on their behalf EEOC actively pursuing the application of the Teamsters framework to cases brought under Section 706 despite the major case management issues that would result EEOC v. Bass Pro Outdoor World, LLC, No. 4:11-CV-3425 (S.D. Tex. July 30, 2014).

37 Disarming Employers Advancing an entirely new cause of action under Title VII Increased focus on separation agreements, which the EEOC argues can interfere with employees rights to file charges and communicate voluntarily with the EEOC Seyfarth Shaw LLP EEOC v. CVS Pharmacy, Inc., No. 14-CV-863 (N.D. Ill. Oct. 7, 2014) EEOC v. CollegeAmerica Denver, Inc., No. 14-CV LTB- MJW (D. Colo. Apr. 30, 2014) EEOC argued that these were not the usual pattern or practice claims under section 707(e); they were a different species arising under section 707(a) resistance to the full enjoyment of rights created by Title VII

38 2014 Trends In EEOC Litigation Part IV: Looking Ahead Seyfarth Shaw LLP

39 Looking Ahead What political developments will guide the EEOC s agenda? New Chair: Jenny Yang Comes from the Plaintiffs bar with extensive experience litigating complex civil rights and employment cases Her focus includes pregnancy discrimination and extending Title VII to include gender identity and sexual orientation New Commissioner: Charlotte Burrows Same General Counsel: David Lopez Will likely remain focused on systemic litigation Remains to be seen how he will respond to criticism Seyfarth Shaw LLP

40 Looking Ahead Mr. Lopez, do you realize how big the power or how enormous the power would be if we were going to have a government that initiates police action when there are no complaints to where there would be no limit to where you could look? Sen. Rand Paul You re going after law-abiding people where there has been no complaint, and you don t feel at all any compunction or guilt over what you re doing? How can you show up to work? How can you show up to work with a straight face and prosecute people where there has been no complaint? How can you do this? I don t understand how you wouldn t resign immediately and say this is so abhorrent Sen. Rand Paul Seyfarth Shaw LLP

41 Looking Ahead You have 70,000 things waiting where people who actually had a complaint a real, maybe valid maybe not, but at least a complaint and you re going to go looking for things in businesses that have no complaints. I think that is absolutely inexcusable. I think it s un- American. I think it s dishonorable and I could go on, and on, and on. I hope you will rethink your position on these things. It is something we should eliminate and I ll do everything in my power to make sure you re not allowed to do it anymore. Sen. Rand Paul Seyfarth Shaw LLP

42 Looking Ahead Enforcement Guidance on Pregnancy Discrimination and Related Issues Takes the position that all pregnant employees are entitled to reasonable accommodation Focuses on pregnancy-based comments as evidence of harassment or disparate treatment Controversial from the outset: received support from only three of five commissioners Commissioners Barker and Lipnic were highly critical of the substance and also of the agency s decision to issue the guidance without public review or comment Seyfarth Shaw LLP

43 Looking Ahead Guide to Religious Garb and Grooming Takes the position that any affectation, behavior, or mode of dress that can be tied to religious practice must be accommodated, so long as it does not cause undue hardship for the employer If an employer believes or should have known that an employee s garb or grooming is religious in nature, the EEOC may still treat that employer as liable whether or not the employer actually had knowledge of the religious restriction EEOC v. Abercrombie & Fitch, Supreme Court Case No (Docketed July 28, 2014) Seyfarth Shaw LLP

44 Looking Ahead Should employers expect additional guidance this year? Some in the defense bar believe that the EEOC s reasonable accommodations guidance is due for an update given the agency s focus on these issues Health and wellness plans The EEOC s position on health and wellness plans appears to be at odds with the ADA and the Affordable Care Act and has come under intense scrutiny and criticism by Congress and the Obama administration Seyfarth Shaw LLP

45 Looking Ahead What are the new theories that the EEOC is exploring for future litigation? One of the EEOC s enforcement priorities is addressing emerging and developing issues Two issues in particular fit that description and are on the EEOC s radar: Social Media: Under what circumstances can employers resort to social media to make hiring and other employment decisions? Big Data: Like criminal and credit history background checks, it can be used to find out key facts about individuals. That makes it a prime target for lawsuits alleging disparate impact Seyfarth Shaw LLP

46 Questions? Matthew J. Gagnon (312) Seyfarth Shaw LLP