EEOC-Initiated Litigation - 2022 Edition

66 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP law concerning religious accommodation claims under Title VII remained the same as it was before the Exby-Stolley decision, and therefore it denied the EEOC’s motion for reconsideration. 3. Sex/Pregnancy Discrimination/Hostile Work Environment Cases EEOC v. Wal-Mart Stores East, L.P. , No. 18-CV-783, 2021 WL 664929 (W.D. Wis. Feb. 19, 2021. The EEOC filed an action on behalf of a group of current and former female employees alleging that Defendant failed to accommodate the claimants’ pregnancy-related medical restrictions in violation of Title VII and the Pregnancy Discrimination Act (“PDA”). Specifically, most of Defendant’s employees were required to be able to lift between 40 and 60 pounds, but Defendant also maintained a temporary alternative duty (“TAD”) program under which associates who had suffered occupational injuries could apply for temporary alternative duty or light duty. According to the EEOC, Defendant violated Title VII and the PDA by forcing pregnant employees to take unpaid leave if they could not perform their job duties, rather than allowing them to receive light duty under the TAD program. Defendant asserted that it did not discriminate against its pregnant employees because, during the relevant time period, the TAD program was a national policy applying only to associates who suffered work-related injuries. Id. at *2. The parties filed cross-motions for summary judgment, and the Court granted Defendant’s motion while denying the EEOC’s motion. As a threshold matter, the Court reasoned that the EEOC established a prima facie case of discrimination by alleging that the claimants were members of a protected class who sought – and were subsequently denied – an accommodation. Defendant contended that the EEOC failed to show that Defendant accommodated other non-pregnant employees with a similar inability to work, but the Court found that employees who suffered occupational injuries and applied to the TAD program were sufficiently similar for purposes of establishing a prima facie claim under the PDA. In response to the Court’s finding, Defendant argued that the TAD program was a facially neutral policy that consistently applied only to workers injured on the job, thus making the TAD program “pregnancy blind.” Id. at *26. The Court shifted the burden to the EEOC to show that Defendant’s TAD policy imposed a significant burden on pregnant workers as compared to non-pregnant workers. To that end, the EEOC again pointed to the fact that no pregnant employees with medical restrictions were eligible for TAD. However, the Court held that the EEOC’s argument said little about non-pregnant employees when its burden at this stage specifically required it to offer evidence about how Defendant treated non-pregnant employees with medical restrictions who were not injured at work. Id. at *31. The Court further found that the record clearly established that Defendant treated pregnant employees seeking an accommodation exactly like other employees with medical restrictions not stemming from a work-related injury. The EEOC also offered testimony by the claimants regarding allegedly harassing statements made by management about breastfeeding in general, but the Court noted that these statements were made by individuals who had no authority with respect to the TAD program or the claimants’ requests for accommodations. Id. at *42. Therefore, the Court granted Defendant’s motion for summary judgment. EEOC v. Schuster Co. , No. 13-CV-4063, 2021 U.S. Dist. LEXIS 79815 (N.D. Iowa April 13, 2021). The EEOC filed an enforcement action alleging that Defendant’s use of an isokinetic strength test (the “CRT Test”) had a disparate impact on female job applicants in violation of Title VII of the Civil Rights Act. Id . at *3. Following discovery, the parties filed cross-motions for summary judgment, which the Court denied. In its motion, the EEOC asserted that from June 2014 to present, Defendant violated Title VII by refusing to hire women who failed a pre-employment physical test that had a disparate impact on women. In support of its motion for summary judgment, the EEOC’s cited its expert’s opinion that Defendant’s use of the CRT test had a statistically significant adverse, disparate impact on women. The EEOC argued that Defendant could not raise an issue of fact as to whether the CRT test was job-related and consistent with business necessity when: (i) it could not explain how the test was scored or whether the passing score related to the physical demands of the job; (ii) the test did not accomplish Defendant’s stated goals of reducing workers’ compensation injuries or costs; and (iii) Defendant retained incumbent drivers who failed the test. Id . at *4. Finally, the EEOC asserted that Defendant hired many males who failed the CRT test, but refused to hire more than two dozen women who failed the test, yet scored higher than the males who passed. In Defendant’s motion for summary judgment, it argued it was entitled to summary judgment because: (i) the CRT test did not have a disparate impact on female applicants for the position of truck driver; (ii) it was

RkJQdWJsaXNoZXIy OTkwMTQ4