EEOC-Initiated Litigation - 2022 Edition

27 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP D. Addressing Emerging And Developing Issues Part of the EEOC’s mission is to monitor trends and developments in the law, workplace practices, and labor force demographics to identify emerging and developing issues that can be addressed through its enforcement program . 178 The 2017 Strategic Enforcement Plan identified five emerging and developing issues as strategic priorities:  Qualification standards and inflexible leave policies that discriminate against individuals with disabilities;  Accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA);  Protecting lesbian, gay, bisexual, and transgender (LGBT) individuals from discrimination based on sex;  Clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy; and  Addressing discriminatory practices against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, arising from backlash against them from tragic events in the United States and abroad . 179 This section describes how the EEOC has interpreted and targeted these developments and, in some cases, has been active in changing the law to address them. 1. Recent Court Decisions Involving Pregnancy Discrimination Pregnancy discrimination has been highlighted by the EEOC as an emerging and developing issue of concern for almost a decade. Yet cases alleging such discrimination and case law interpreting this area of the law have been few and far between. This year was a notable exception. In EEOC v. Wal-Mart Stores East, LP , 180 the U.S. District Court for the Western District of Wisconsin granted summary judgment in favor of an employer defending against pregnancy discrimination claims. The EEOC alleged that the employer discriminated against the charging party and ten other pregnant employees by failing to accommodate their pregnancy-related medical restrictions by allowing them to work light duty assignments under a temporary alternative duty program. 181 The EEOC alleged that the employer required them to take unpaid leave if they could not perform their job duties, even though they allowed employees with occupational or work-related injuries to use the light duty program. The employer argued that its light duty program was pregnancy-neutral and that the EEOC therefore could not point to employees in that program as comparators . 182 Relying on the recent Supreme Court case, Young v. United Parcel Service, Inc. , 183 the court held that a plaintiff’s burden to establish a prima facie case was not onerous. With respect to comparators, the EEOC must only show that the charging party’s employer “accommodated others ‘similar in their ability or inability to work.’” 184 The court then considered the employer’s reasons for restricting its light duty program to workers injured on the job, i.e., that it increased morale and loyalty, sped up recovery time, and decreased costs and legal 178 See U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2017 - 2021, available at https://www.eeoc.gov/eeoc/plan/sep-2017.cfm. 179 Id. 180 EEOC v. Wal-Mart Stores East, LP , No. 18-CV-783, 2021 WL 664929 (W.D. Wis. Feb. 19, 2021). 181 Id. at *1. 182 Id. at *8. 183 Young v. United Parcel Service, Inc. , 135 S. Ct. 1338 (2015). 184 Wal-Mart Stores East, LP , 2021 WL 664929, at *8 (quoting Young , 135 S. Ct. at 1354).