EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 17 license . 101 The employer argued that the EEOC’s expert analysis had improperly aggregated selection rates across positions, operating companies, and years, and had failed to properly control for differences in experience among applicants. The court held that the EEOC “clearly has made out a prima facie case with respect to its pattern or practice claim,” finding that “[t]he EEOC’s statistical analysis shows statistically significant disparities in the hiring of male and female applicants, adverse to female applicants, across operative positions and OpCos, even when controlling for experience. It has presented other statistical evidence showing that some OpCos hired no female applicants in certain positions for the entire period 2004–2009 or 2009–2013.” 102 The court stopped short of finding in favor of the EEOC with respect to liability under the two-part Teamsters framework applied to pattern or practice cases. Although the EEOC met its burden as to its prima facie case, the court held there were numerous genuine disputes of material fact regarding the statistical analysis and anecdotal evidence that precluded summary judgment. 103 Other cases of discrimination are arguably more clear cut. Where there is direct evidence of discriminatory intent, the path for the EEOC is much easier, and the path for the employer is much more difficult. For example, in EEOC v. NDI Office Furniture LLC , 104 the EEOC alleged that the employer did not hire women for warehouse positions because they would be a “distraction” to male employees and retaliated against the charging party and her son due to her complaints about the allegedly discriminatory treatment . 105 Among other things, the court pointed to statements by the warehouse manager and more senior managers that the employer does not hire women for warehouse positions. 106 The court held that these statements are ’“prime examples ’of direct evidence of discrimination without the need to infer discriminatory intent.” 107 With respect to the pattern or practice allegations, the court held that “the content of these statements suggests a broad discriminatory policy toward all women,” and concluded: “the existence of that evidence simply means that a jury must decide this question by balancing it against other evidence, such as the ‘fact ’that there no women were employed in a warehouse role during the period contemporaneous with the statements evidencing discrimination and that Defendant failed to hire any of the eleven women who applied for the Warehouse Coordinator Position.” 108 Another case decided this year demonstrates the unique problems that the EEOC can encounter when it brings lawsuits that allege discriminatory hiring practices. In EEOC v. USF Holland, LLC , 109 the EEOC alleged that the employer had discriminated against female applicants for truck driving positions. The charging party was allegedly denied a position due to discrimination in May 2015, but did not file a charge of discrimination until October 8, 2015. The court held that “Section 706 authorizes the EEOC to sue on behalf of one or more ‘persons aggrieved’ by an unlawful employment practice,” and “when a plaintiff brings a class action on behalf of aggrieved applicants, the plaintiff may allow applicants who did not file a charge to ‘piggyback’ onto a timely charge filed by another applicant.” 110 However, The “piggyback” (or “single-filing”) rule, only allows such aggrieved applicants to do so “if the discrimination they allege occurred during the relevant limitations period, as determined by the charge underlying the federal court action. ” 111 The relevant timeline in that case was 180 days. Accordingly, the court held that any claim predating April 11, 2015 (180 days prior to the date of the charging party’s charge) was time-barred. 112 101 Id. at *3. 102 Id. at *7. The court also faulted the employer’s recruiting efforts, finding that it had identified the target demographic for its radio ads as “male,” and that it had intentionally sought males for warehouse positions and females for receptionist positions. Id. 103 Id. at *8. Under that framework, the EEOC bears the initial burden of making out a prima facie case of discrimination by establishing by a preponderance of the evidence that sex discrimination was the company’s standard operating procedure. 104 EEOC v. NDI Office Furniture LLC , No. 2:18-CV-01592, 2021 WL 2635356 (N.D. Ala. June 25, 2021). 105 Id. at *5-6. 106 Id. at *9. 107 Id. 108 Id. at *10 (emphasis in original). 109 EEOC v. USF Holland, LLC , No. 3:20-CV-270, 2021 WL 4497490 (N.D. Miss. Sept. 30, 3021). 110 Id . 111 Id . 112 Id . Moreover, the court held that the EEOC could not resort to the “continuing violation doctrine” because that doctrine does not apply to a failure-to-hire claim, even in the case of an alleged systemic policy or pattern and practice. Id . at *2. This is because