EEOC Initiated Litigation Fiscal Year 2016: Developments ... · Webinar Hashtag: #SSEEOC2016 ....

“Seyfarth Shaw” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). Seyfarth Shaw LLP

EEOC Initiated Litigation Fiscal Year 2016: Developments And Trends

Gerald L. Maatman, Jr.

Christopher J. DeGroff

Matthew J. Gagnon

March 1, 2017

©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Speakers

Matthew J. Gagnon

matthew-gagnon

Christopher J. DeGroff

christopher-degroff

@DeGroffChrisJ

Gerald L. Maatman,

Gerald-Maatman

@g_maatman


Tweet And Follow Us:

@sswcab

Webinar Hashtag:

#SSEEOC2016

About The Book • Data compiled from the EEOC’s fiscal year,

November 1, 2015 through September 30,

2016, to reveal substantial trends of the

Commission.

• Focus on new lawsuits filed, EEOC

enforcement activities, and continuing

EEOC-initiated litigation.

• Distributed to hundreds of companies,

lawyers, and journalists

• Featured in Wall Street Journal, Bloomberg

BNA, HR.com, and Law360


What We Will Cover

1 FY 2016 EEOC Litigation Statistics

2 Industries Targeted By The EEOC

3 EEOC’s Strategic Priorities

4 Stages of EEOC Litigation

5 Significant Litigation Decisions

6 Looking Ahead to 2017



FY 2016 EEOC Litigation Statistics

What types of cases

are being filed?

• Title VII and ADA

lead the pack

• Within Title VII, sex

and race

discrimination

cases were highest

on the agenda


FY 2016 EEOC Litigation Statistics

• 86 merits lawsuits filed in FY 2016 • 142 filed in FY 2015

• 133 filed in FY 2014

• 131 filed in FY 2013

• 18 of those cases were considered “systemic” • 16 systemic suits in FY 2015

• 17 systemic suits in FY 2014

• 21 systemic suits in FY 2013

Industries Targeted By The EEOC


EEOC Lawsuits Filed FY 2016 By Industry

Industries Targeted By The EEOC Business Services


• Staffing firms, finance, law,

transportation, distribution,

real estate, marketing,

consulting, insurance, and

security

• Systemic barriers such as

criminal history background

checks

• Highly targeted, but low

settlements ($1-2 million)

Industries Targeted By The EEOC Natural Resources & Construction


• Agriculture, mining, and

construction companies

• Focus: protecting

immigrant/migrant

workers

• Only industry where

number of case filings

increased in FY 2016, but

still among least targeted

• Large class actions with

large settlements

($17 million, $5 million)

Industries Targeted By The EEOC Hospitality


• Restaurant, hotels, and

entertainment venues

• Second highest targeted

industry

• Younger workforce,

informal setting

• Substantial need for

frequent training

EEOC’s Strategic Priorities The EEOC’s 2017 SEP Initiatives


EEOC’s Strategic Priorities The EEOC’s 2017 SEP Initiatives


Two New Areas Of Focus In 2017: • Complex employment relationships

• joint employers and independent contractors

• Backlash discrimination

• Muslim, Sikh, Arab Middle Eastern

EEOC’s Strategic Priorities Elimination of Systemic Barriers in Recruitment


Additional Areas Of Focus For 2017:

• Lack of diversity in certain industries

(Technology)

• Increasing use of data driven tools

EEOC’s Strategic Priorities Elimination Of Systemic Barriers In Recruitment


• Biggest target areas: credit and criminal background checks

• EEOC v. BMW Mfg Co. LLC, No. 13-CV-1583 , 2015 WL 5431118

(D.S.C. July 30, 2015)

• Major settlements in recruitment/hiring cases

• EEOC v. PMT Corp., 40 F. Supp. 3d 1127 (D. Minn. 2014)

• EEOC v. Georgia Power Co., No. 13-CV-3225 (N.D. Ga. 2013)

EEOC’s Strategic Priorities Addressing Emerging And Developing Issues


Expanding Title VII To Cover LGBT Discrimination: • Near the forefront of the EEOC’s priorities

• 25% increase in charges filed from FY 2015 to FY 2016

• February 23, 2017 – Withdrawal of Obama’s May 2016 guidance

letter on transgender bathroom rights

EEOC’s Strategic Priorities Addressing Emerging And Developing Issues


New Litigation Strategies to Combat Discrimination

• LGBT

• March 2016: First ever complaints alleging that Title VII

covers discrimination based on sexual orientation

• Race (Dreadlocks)

• EEOC v. Catastrophe Management Solutions, No. 14-

12482, 2016 WL 7210059 (11th Cir. Dec. 13, 2016)

EEOC’s Strategic Priorities Protecting Immigrant, Migrant, And Other Vulnerable Workers


EEOC’s Strategic Priorities Protecting Immigrant, Migrant, And Other Vulnerable Workers


Recent Major EEOC Victories:

• EEOC v. Vail Run Resort Community Ass’n, Inc. d/b/a Vail

Run Resort, et al., No. 15-CV-01592 (D. Colo.)

• Carzola v. Koch Foods of Miss., L.L.C., 838 F.3d 540, 544

(5th Cir. 2016)

EEOC Initiated Litigation Fiscal Year 2016: Developments And Trends


The CLE Code is…

EEOC’s Strategic Priorities Preserving Access To The Legal System


EEOC New Enforcement Guidance On Retaliation:

• August 29, 2016 – EEOC issued Final Enforcement

Guide on Retaliation (replacing 1998 version)

• Expansive interpretations of law to broaden protections

• Three elements of a claim: • (i) protected activity / participation in EEO process

• (ii) materially adverse action taken by employer

• (iii) causal connection between protected activity/adverse action

EEOC’s Strategic Priorities Preserving Access To The Legal System


Court Decisions Involving Retaliation:

• EEOC v. Day & Zimmerman NPS, Inc., 2016 U.S.

Dist. LEXIS 48800 (D. Conn. Apr. 12, 2016)

• EEOC v. Hobson Bearing International, Inc., No.

16-CV-5034, 2016 WL 4618760 (W.D. Mo. Aug.

25, 2016)

EEOC’s Strategic Priorities Enforcing Equal Pay Laws


EPA Litigation:

• Enacted by Congress in 1963

• EEOC has shown renewed interest in recent years

• Setback: EEOC v. Maryland Insurance Administration, No. 15-

1091, 2016 WL 6069488 (D. Md. Oct. 14, 2016)

EEOC’s Strategic Priorities Enforcing Equal Pay Laws


Changes To The EEO-1 Reporting Requirements:

• Most significant step in increasing enforcement potential

• EEO-1 Report: survey document mandated for 50+ years

• 2017: employers with 100+ employees required to submit

compensation data

• Opposition by new EEOC Acting Chair Vicki Lipnic

EEOC’s Strategic Priorities Preventing Harassment


Select Task Force to Study Workplace Harassment:

• Created in January 2015, report published in June 2016

• Goals:

• (1) reach more workers so they understand their rights

• (2) reach more employers to understand their challenges

• (3) promote best practices

Anti-Harassment Case Law Developments:

• EEOC v. East Columbus Host, LLC, 2016 LEXIS 118993 (S.D. Ohio

Sept. 2, 2016)

EEOC’s Strategic Priorities Preventing Harassment


EEOC’s Strategic Priorities Developments In Religious Discrimination


Religious Beliefs:

• EEOC v. Consol Energy, Inc., Case No. 13-CV-215 (N.

D. W.Va. Feb. 9, 2015

• EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No.

14-13710 (E.D. Mich. Aug. 18, 2016)

EEOC’s Strategic Priorities Developments In Disability Discrimination


Recent ADA Decisions:

• EEOC v. Grisham Farm Products, Inc., No.

16-CV-3105, 2016 U.S. Dist. LEXIS 76374

(W.D. Mo. June 8, 2016)

• EEOC v. Vicksburg Healthcare, L.L.C., No.

15-60764 (5th Cir. Oct. 12, 2016)

2017 SEP: Effect of Legal/Political Context

• Major Political Implications

• New EEOC Leadership

• New Supreme Court Justice



2017 Publications

http://www.workplaceclassaction.com/ http://www.eeoccountdown.com/

http://www.workplaceclassaction.com/

http://www.workplaceclassaction.com/

http://www.eeoccountdown.com/

http://www.eeoccountdown.com/

“Seyfarth Shaw” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). Seyfarth Shaw LLP

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EEOC Initiated Litigation Fiscal Year 2016: Developments ... · Webinar Hashtag: #SSEEOC2016 ....

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