EEOC-Initiated Litigation 2023 Edition
EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | i Dear Clients and Friends, We are once again pleased to provide you with the latest edition of our annual analysis of trends and developments in EEOC litigation, EEOC-Initiated Litigation: 2023 Edition. This desk reference compiles, analyzes, and categorizes the major case filings and decisions involving the EEOC in 2022 and recaps the major policy and political changes we observed in the past year. Our goal is to guide clients through decisional law relative to EEOC-initiated litigation, and to empower corporate counsel, human resources professionals, and operations teams to make sound and informed litigation decisions. We hope that you find this report to be useful. By any measure, 2022 was another year of great change at the Commission. Even two years into a new presidential administration, the Commission remained a bipartisan mix of individuals with differing goals and ideologies. This mix has, at times, strengthened the Commission’s resolve, but often created political schisms that could leave employers guessing as to how to prioritize the agency’s messages. This political dynamic has played out amidst tumultuous times for employers. Issues related to the Covid-19 pandemic that emerged years ago are just now maturing to litigation. Upheavals in the global economy are translating to real-world employment issues from coast to coast. The EEOC’s mission to identify and address equal employment opportunity issues is being put to the test in profound and often unique ways. This publication is meant to equip employers with information so they can protect themselves and their employees in this ever-changing regulatory and litigation environment. Part I explores current trends in EEOC litigation, including a discussion of the political dynamics within the agency. Showcasing some new and innovative sections of this year’s publication: Part 1. C includes a unique and in-depth examination of the often confounding area of conciliation, and is a particularly interesting read for those engaging in that process. Part I analyzes current trends in EEOC enforcement, from administrative charge investigation and processing through federal court litigation. This includes detailed District by District profiles and analysis of the EEOC’s structure, demonstrating how an employer can expect the EEOC to operate often depends on the District it encounters. Part II of the book is an in-depth review of the EEOC’s evolving strategic priorities. This includes a fascinating review of the developing conflict between religious and LGBTQ+ rights, and describes the new and emerging area of the intersection between Artificial Intelligence issues and the EEOC’s agenda, among a host of other topics. Our hope is that this book provides companies and business leaders with the tools and information they need to implement well-informed personnel decisions and strategies to comply with workplace laws and craft optimal defense strategies against EEOC litigation in this rapidly evolving regulatory environment. A special thanks to the team of lawyers and professionals who made this publication possible with tireless efforts throughout the year. This book is meant to be the start of a conversation, and we are standing by to address any further questions or issues our readers wish to share. Matthew J. Gagnon Chicago Partner firstname.lastname@example.org Sarah K. Bauman Chicago Associate email@example.com Andrew L. Scroggins Chicago Partner firstname.lastname@example.org James P. Nasiri Chicago Associate email@example.com Christopher J. DeGroff Chicago Partner and practice group co-chair firstname.lastname@example.org
ii | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP TABLE OF CONTENTS PART I: Current Trends in EEOC Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. A Year Of Shifting Leadership; A New Democratic Regime On The Horizon . . . . . . 1 B. Changes Made; Changes Continue To Be Reversed . . . . . . . . . . . . . . . . . . 1 C. Demystifying EEOC Determination, Conciliation & Litigation Timeline . . . . . . . . . 3 D. Trends In EEOC Federal Court Filings In FY 2022 . . . . . . . . . . . . . . . . . . . 5 E. EEOC Charge Data Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 F. EEOC District Office Profiles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 PART II: EEOC’s Strategic Enforcement Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 A. The EEOC’s Strategic Enforcement Plan . . . . . . . . . . . . . . . . . . . . . . . 27 1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 2. FY 2022 Strategic Enforcement Priorities . . . . . . . . . . . . . . . . . . . 28 B. A Developing Conflict Between Religious And LGBTQI+ Rights After Bostock . . . . 32 C. Ensuring Equal Pay Protections For All Workers . . . . . . . . . . . . . . . . . . . 37 D. Preventing Discrimination In Recruitment And Hiring . . . . . . . . . . . . . . . . .40 1. Recent Judicial Decisions Involving Discrimination Resulting From Pre-Employment Screening Tests . . . . . . . . . . . . . . . . . . . . . . . .40 2. Preventing Disability Discrimination In Recruitment And Hiring . . . . . . . . . 44 a. EEOC’s Guidance On Preventing AI- And Technology-Related Disability Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 b. EEOC Pursues An Anomalous ADA Title V Claim . . . . . . . . . . . . . 45 E. Preventing Harassment In The Workplace . . . . . . . . . . . . . . . . . . . . . . 47 Seyfarth’s Complex Litigation Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 1 PART I: Current Trends in EEOC Enforcement A A Year Of Shifting Leadership; A New Democratic Regime On The Horizon Following the timeline-altering upheaval that characterized FY 2020, which led to structural changes and a new leadership regime in FY 2021, the EEOC’s Republican majority remained in FY 2022. With that came a strikingly (and unexpectedly) low number of EEOC filings in FY 2022. Last year marked a bullish outlook for 2022 with a revival from a down year in 2020 contributable in large part to the pandemic. Thus, FY 2022 was a surprisingly stagnant year for the agency. Nevertheless, with a Democratic majority inevitably on the horizon, a generous budget increase to $464,650,000—a whopping $60 million increase from last year—as well as several new strategic objectives planned for FY 2023, a busy year may very well lie ahead. Specifically, FY 2020 experienced a significant downturn in EEOC activity as a likely result of leadership changes and the COVID-19 pandemic. Questions thus remained as to the extent of the impact this might have on subsequent years. However, the EEOC quickly rebounded in FY 2021 with almost half of FY 2021 filings were in the month of September alone, signaling a busy year for FY 2022. But with a mere 95 filings at the close of the fiscal year, FY 2022 did not live up to that case-filing trajectory. The EEOC has seen budget boosts in the last two years, and has signaled the hiring of numerous field staff, including lawyers. The pieces seemed to be in place for a more robust year-end filing spike once again in FY 2022, but the numbers did not bear that out. This could be, in part, because the Commission was still led by a Republican majority, and the EEOC attorneys in the field are waiting for the composition to flip to the Democrats to increase the likelihood cases will receive a green light, or that the authority to file actions will once again be delegated to the field entirely. The Commission’s leadership team includes five members, including the Chair, Vice Chair, and three Commissioners, collectively appointed by the President and approved by the Senate.1 Of the five Commissioners, no more than three may be members of the same political party, a requirement promising bipartisanship outliving administration changes.2 In FY 2021, the EEOC’s leadership consisted of five commissioners and a Republican majority: Charlotte A. Burrows (Chair, Democrat); Jocelyn Samuels (Vice Chair, Democrat); Janet Dhillon (Commissioner, Republican); Keith E. Sonderling (Commissioner, Republican); and Andrea R. Lucas (Commissioner, Republican). The same leadership remained in FY 2022 until Commissioner Dhillon resigned in November 2022. Commissioner Dhillon’s term expired in July, but she was able to keep her seat because Biden’s nominee to fill the position, civil rights attorney Kalpana Kotagal, had not yet been confirmed by the Senate. Absent a Senateconfirmed replacement, Ms. Dhillon could have kept her seat until the end of the year. As of the publication of this book, Ms. Dhillon’s seat presently remains vacant, and there is currently a 2-2 partisan split on the Commission as result. The split will remain until Ms. Kotagal, Biden’s nominee, is confirmed by the Senate. B Changes Made; Changes Continue To Be Reversed Last year was one of change and recovery for the EEOC as a result of the pandemic and new leadership. At the close of FY 2021, we reported on how the new EEOC leadership, installed by the Trump administration late in his presidency, had been pushing to make substantive changes to how the EEOC approaches its litigation and enforcement programs. In particular, we noted two changes that we believed could have a lasting impact on EEOC litigation: the changes the EEOC tried to make to its conciliation and mediation procedures, and its efforts to scale back some of its own litigation authority by taking that authority out of the hands of the General Counsel and Regional Attorneys and placing it firmly back in the hands of the Commission. Both encountered setbacks in FY 2021, which continued into FY 2022. 1 U.S. Equal Employment Opportunity Commission, Legislative Affairs: The Commission, www.eeoc.gov/legislative-affairs/commission. 2 See 42 U.S.C.A. § 2000e-4 (West).
2 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP On July 7, 2020, the EEOC officially announced a new pilot program intended to improve conciliation procedures at the Commission.3 The program was built “on a renewed commitment for full communication between the EEOC and the parties, which has been the agency’s expectation for many years.” 4 On October 8, 2020, the EEOC released the specifics of additional proposed changes to the conciliation process in an NPRM. In its NPRM, the EEOC acknowledged that, historically, it had elected not to adopt detailed regulations relative to its conciliation efforts based on its belief that retaining flexibility over the conciliation process would “more effectively accomplish its goal of preventing and remediating employment discrimination.” 5 While the Commission’s NPRM made clear that the Commission still believes it is important to maintain a flexible approach to conciliation, it also acknowledged that its conciliation efforts had not been terribly successful at resolving charges.6 In an effort to improve the effectiveness of the conciliation process, the NPRM sought to amend the conciliation process for charges brought pursuant to Title VII, ADA, GINA, and the ADEA. The EEOC stated in the NPRM that the proposed amendments establish “basic information disclosure requirements that will make it more likely that employers have a better understanding of the EEOC’s position in conciliation and, thus, make it more likely that the conciliation will be successful.” 7 The EEOC’s perceived lack of transparency during the conciliation process had long troubled employers, who often felt they lacked information at the conciliation stage to meaningfully evaluate risk and make decisions about settlement. The changes proposed by the EEOC were seen by many as a welcome attempt to address this issue. The Republican-led Commission adopted the Final Rule in January 2021, just before the new Biden administration was sworn in. The new rule went into effect on February 16, 2021. But it did not last long. In the following months, Congress exercised its authority Under the Congressional Review Act, which allows it to overturn executive branch regulations within 60 legislative days of when they were issued.8 On May 19, 2021, the Senate approved Senate Joint Resolution 13, which rescinded the rule.9 The House followed suit with House Joint Resolution 33 on June 24, 2021.10 On June 30, 2021, President Biden signed the resolution that killed the new conciliation requirements.11 Further, despite the perceived benefits of the Commission’s previous transparency and delegation reforms, representatives have recently cried foul that they were being mismanaged under Commissioner Chair Charlotte Burrows.12 For example, on September 27, 2022, Richard Burr of the Senate Committee on Health, Education, and Labor and Pensions, and Virginia Foxx of the House Committee on Education and Labor, called out an opinion piece written by Commissioner Dhillon and Commissioner Sonderling as evidence of EEOC mismanagement.13 The opinion piece claims that when a majority of the Commissioners vote against filing a proposed lawsuit, Acting General Counsel Gwendolyn Reams “withdraws” the case administratively, rather than closing the matter.14 This purportedly allows the General Counsel to bring the proposed lawsuit before the Commission again when, according to Burr and Box, it has a majority in place that will support 3 Press Release, U.S. Equal Employment Opportunity Commission, EEOC Announces Pilot Programs to Increase Voluntary Resolutions (July 7, 2020) www.eeoc.gov/newsroom/eeoc-announces-pilot-programs-increase-voluntary-resolutions. 4 Id. 5 Update of Commission’s Conciliation Procedures, 85 Fed. Reg. 64079 (proposed Oct. 9, 2020) (to be codified at 29 C.F.R. pt. 1601 and 1626). 6 Id. Over the last several years, the EEOC’s conciliation efforts resolved less than half of the charges where a reasonable cause finding was made. Specifically, between fiscal years 2016 and 2019, only 41.23% of the EEOC’s conciliations with employers were successful. 7 Id. 8 See Congressional Review Act, 5 U.S.C. § 801. 9 S.J. Res., 117th Cong. (2021). 10 H.R.J. 33, 117th Cong. (2021). 11 Remarks on Signing Legislation Regarding Methane Pollution, Predatory Lending, and Employment Discrimination, Daily Comp. Pres. Doc. DCPD202100551 (June 30, 2021). 12 See Sept. 27, 2022 letter from R. Burr and V. Foxx to C. Burrows, at 2, republicans-edlabor.house.gov/uploadedfiles/9.27.22_eeoc_case_ management_and_bostock_letter.pdf. 13 Id. 14 Id.
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 3 the agenda at issue.15 Burr and Foxx opined that such actions “render the transparency measures embodied by the reforms a mockery, as votes declining to authorize certain lawsuits do not appear publicly on EEOC’s website.” 16 Employers on the wrong side of an EEOC enforcement action know all too well that the EEOC’s internal deliberations are opaque and from the employers’ perspective there can seem to be little rhyme or reason to the timeline from investigation to litigation. While as iterated above, the EEOC has apparently sought to address the issue of transparency—in particular through Commissioner Dhillon’s leadership—and also through other means like issuing Performance and Accountability Reports for each fiscal year with information about the EEOC’s strategic priorities and the volume of charges and litigation matters it brings, the Agency has never reported information that shows how long a charge typically is in the pipeline before it reaches litigation. To that end, we have performed an in-depth analysis of information that the EEOC includes in its complaint to shed light on how quickly the EEOC moves matters from letter of determination, through conciliation, and ultimately through litigation. C Demystifying EEOC Determination, Conciliation & Litigation Timeline The EEOC must satisfy a number of prerequisite steps before taking any charge to litigation. Among these are issuing a letter of determination that explains the Agency has found reasonable cause to believe the employer has violated one of the statutes enforced by the EEOC, an invitation to resolve the charge through voluntary conciliate, and written notice that conciliation has failed. For charges that result in litigation, the EEOC spends, on average, about four months in conciliation. After declaring that conciliation has failed, the EEOC takes, on average, about five months to file suit. For complaints filed in FY2022, both of these figures are significantly longer than the last time we reported on this information. What remains true, however, is that location matters, and there are notable differences in speed among the EEOC’s district offices. In April 2015, the Supreme Court issued its decision in Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015), holding that the EEOC must demonstrate that it has satisfied its statutory duty of “conference, conciliation, and persuasion” before filing suit. In an apparent effort to meet the Court’s directive, the EEOC began later that year to routinely include additional information in its complaints, such as when it had issued determinations in connection with the underlying charges and when it had declared conciliation efforts to have failed. As part of our regular tracking of EEOC complaints, we have collected and analyzed this and other information from hundreds of complaints. From this data, we are able to calculate how long it typically takes for the EEOC to move from step to step, and to compare the relative pace of different EEOC district offices. A predicate to any EEOC-initiated litigation is receipt of a letter of determination, which triggers the EEOC and the employer to begin the conciliation process. For employers, a longer conciliation process generally is better, as it suggests that the EEOC is more engaged in a give and take process about how to resolve the dispute without resort to litigation. In contrast, a short conciliation suggests that one or both parties are unwilling to bend their positions to negotiate a mutually acceptable outcome. According to our analysis of 15 Id. 16 Id. Most Time for Conciliation: • Phoenix (171 days) • Chicago (163 days) • Los Angeles (155 days) • San Francisco (151 days) According to our analysis of complaints filed in EEOC District Offices in FY2022: Least Time for Conciliation: • Atlanta (73 days) • Houston (52 days) • Memphis (40 days) • Miami (37 days) 120 Average days spent in conciliation
4 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP complaints filed in FY2022, the average time spent in conciliation is 120 days. For employers hopeful to have more time to engage in conciliation, the most accommodating EEOC District Offices are Phoenix (171 days on average), Chicago (163 days), Los Angeles (155 days), San Francisco (151 days), and Charlotte (149 days). In contrast, the EEOC District Office with the quickest trigger is Miami, which on average spends just 37 days conciliating charges that it ultimately takes to litigation. Miami is followed by Memphis (40 days), Houston (52 days), and Atlanta (73 days). While the averages provide useful benchmarks for employers, it is important to keep in mind that each case moves at its own pace, and there can be extreme outliers in both directions. The Chicago District Office provides the best example: it is responsible for both the shortest and longest conciliations we tracked over the last year. In one case, it declared an end to conciliation in just nine days, while in another it conciliated for 706 days (nearly two years) before filing suit. But it is also true that the EEOC’s annual fiscal year end push does not include rushing from determination to litigation. In fact, our review showed there were only a handful of determinations in July that resulted in complaints filed by the September 30 fiscal year end, and none at all that were based on determinations issued in August and September. To say it another way, an employer who receives a letter of determination in the final quarter of the government’s fiscal year is far more likely to face litigation in the next fiscal year rather than immediately. The common assumption among employers is that it is a race to the courthouse once the EEOC deems conciliation failed, but our analysis suggests otherwise. In FY2022, only three complaints were filed within the first month after the EEOC declared that conciliation had failed. The average time to file the complaint is 145 days, or nearly five months. The EEOC District Offices that are quickest to proceed to court are Memphis (42 days after ending conciliation, on average), Indianapolis (73 days), Dallas and Philadelphia (both 104 days), and Chicago (118 days). The slowest moving District Offices at this step are Houston (247 days), St. Louis (226), Charlotte (205), Miami (193 days), and Birmingham (155 days). Our analysis suggests that the end of the EEOC’s fiscal year remains the best predictor for how long it will take for the EEOC to file a complaint. Nearly all notices that conciliation has failed which are issued in the period from May to September result in complaints filed in September. In other words, an employer that receives a conciliation failure notice in this window should expect to see the complaint during the EEOC’s annual September filing push. In contrast, a conciliation failure notice served between October to April is more likely to result in a complaint filed sometime well ahead of the September 30 deadline. It is debatable whether employers should prefer a shorter or longer time period from the end of conciliation to filing of a complaint. On the one hand, it has been our experience that the EEOC will sometimes choose not to move forward with litigation even though it has attempted conciliation, and a longer period could mean that the EEOC is considering whether it has the resources and appetite to the litigate the claim. Employers also can use this time to prepare for any anticipated litigation. On the other hand, as time passes, the memories of witnesses will continue to fade and it may be more difficult to ensure that relevant records are maintained. This is particularly so where the precise theory the EEOC may choose to litigate is not clear to the employer. When that is the case, it may be useful for employers to document what they understand the potential claims to be so that they may retain possible laches arguments if a complaint eventually is filed. Any case that the EEOC takes to litigation proceeds through both of these steps. Taking both together, the average time from determination to complaint is 262 days. Nonetheless, there continue to be meaningful differences from one EEOC District Office to another. The EEOC’s Memphis District Office is the fastest. On average, it took just 83 days to move from issuing a determination to filing a complaint. The next fast office, Indianapolis, took more than twice that amount of time, averaging 168 days. It is followed by Atlanta (200 days), Miami (209 days), and Dallas (230 days). On the slower side are the EEOC’s Charlotte District Office, which on average took more than 350 days to move from determination to complaint. It is followed by St. Louis (321 days), Phoenix (320 days), and Houston and San Francisco (both 300 days). While each charge and investigation moves at its own pace, there are discernible trends evident in the data. Employers trying to gauge whether the EEOC is teeing up a charge for litigation should remain mindful of which EEOC District Office will be responsible for filing suit and what time it is on the EEOC’s fiscal year clock.
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 5 D Trends In EEOC Federal Court Filings In FY 2022 Each fiscal year we analyze the types of lawsuits the EEOC files, in terms of the statutes and theories of discrimination alleged. The chart below shows the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, and Age Discrimination in Employment Act, etc.) and, for Title VII cases, the theory of discrimination alleged. This analysis can often reveal how the EEOC is shifting its strategic priorities. In FY 2022, we saw the total number of filings—95—decreased a sizable amount from FY 2021’s 114 total filings. When considered on a percentage basis, however, the distribution of cases filed by statute remained roughly consistent compared to the last few years. The graphs below show the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, and Age Discrimination in Employment Act) and, for Title VII cases, the theory of discrimination alleged. 0 10 20 30 40 50 60 Sep. Aug. Jul. Jun. May Apr. Mar. Feb. Jan. Dec. Nov. Oct. FY 2019 FY 2020 FY 2021 FY 2022 Cases Filed By Month FY 2019-2022 Title VII Sex Religion Race National Origin PDA EPA ADEA ADA 0 10 20 30 40 50 60 70 80 Cases Filed By Statute FY 2022 Title VII Cases By Allegation 61 53 3 17 4 6 2 7 27
6 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP When considered on a percentage basis, the distribution of cases filed by statute remained roughly consistent compared to FY 2021 and 2020. Title VII cases once again made up the majority of cases filed, accounting for 65% of all filings (on par with the 62% in 2021 and 60% in FY 2020). ADA cases also made up a significant percentage of the EEOC’s filings, totaling 29% this year, a moderate decline from 36% in 2021 and 30% in FY 2020. Notably, there were 7 age discrimination cases filed this year, a significant increase from last year’s single case. The most noticeable trend of this fiscal year is a return of the usual leaders of the pack: the Chicago, Miami, and Los Angeles District Offices, with 12, 8 and 8 filings, respectively. Chicago experienced a surprising dip in FY 2020 at only 3 filings, shot back up in 2021, but still lagged behind several other districts until this year. Similarly, the Los Angeles District, which historically has been a leading district for the EEOC, ended the year on top as well. The Miami District has also been very consistent, lodging at least 8 filings for five years in a row. Finally, the biggest surprise District in FY 2022 was Charlotte, which filed 10 merit cases this year after accounting for only 4 filings last year and only 1 filing in FY 2020. GA SC Atlanta MS AL FL Birmingham VA SC NC Charlotte IL WI MN IA SD ND Chicago NM TX Dallas TX LA Houston MI OH IN KY MI Indianapolis NV CA Los Angeles Hawaiian Islands American Samoa Guam Northern Mariana Islands Wake Island FL Miami Puerto Rico Virgin Islands AR MS TN Memphis NJ NY VT NH MA CT ME New York OH WV PA NJ Philadelphia MD DE RI WY CO UT AZ NM Phoenix WA MT ID NV CA OR San Francisco AK NE KS OK MO IL St. Louis DC 5 12 10 2 7 4 5 1 8 7 3 8 7 4 5 6 Filings by EEOC District FY 2022
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 7 E EEOC Charge Data Analysis In addition to the EEOC’s annual merit filings, an in-depth analysis of EEOC charge statistics can also provide an interesting perspective on the status of the employment discrimination space. While merit filings reflect more on the Commission’s priorities, the EEOC’s charge data represents how American workers themselves feel they are being treated in the workplace. Because filing an administrative charge with the EEOC is a prerequisite to filing a lawsuit under federal antidiscrimination law, employees throughout the country regularly file between 60,000-80,000 EEOC charges per year. To that end, the Commission received 61,331 charges in FY 2021.17 This number represented a decrease of more than 6,000 charges as compared to FY 2020, in which the EEOC saw 67,448 charges filed. In fact, the EEOC’s amount of charges received has been consistently declining since FY 2017, when the Commission received a five-year high of 84,254 charges. With respect to where these charges are being filed, there are certain geographic “hot spots” in which employees consistently file the most EEOC charges. These states are highlighted by the map graphic below. In FY 2021, Texas outpaced the rest of the country by over 1,500 charges. Following Texas, which saw 6,508 charges filed in FY 2021, Florida (4,941), Pennsylvania (3,960), California (3,865), and Illinois (3.634) rounded out the top five most popular filing locations. 17 As of the date of publication, the most recent charge data released by the EEOC was from Fiscal Year 2021. Top 10 States in EEOC Charges Received FY 2021 CHARGES RECEIVED BY STATE ■ Texas: 6,508 ■ Florida: 4,941 ■ Pennsylvania: 3,960 ■ California: 3,865 ■ Illinois: 3,634 ■ Georgia: 3,362 ■ North Carolina: 2,958 ■ New York: 2,580 ■ Ohio: 2,265 ■ Tennessee: 2,256 WA AK HI MT WY CO UT AZ NM TX LA AR MS AL TN FL GA NE KS OK MO IL WI MI OH IN KY VA WV PA NY VT NH CT ME MA MN IA SD ND SC NC ID NV CA OR DC MD DE NJ RI
8 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP However, when adjusted to account for state population, the Southeast region of the country lead the way in terms of EEOC charge filings per capita. As demonstrated by the map graphic below, in FY 2021, Arkansas and Mississippi both saw over 3.5 EEOC charges filed for every 10,000 people living in the state. Other popular states in this per-capita category include Alabama, Tennessee, and Nevada. In terms of the types of charges filed with the EEOC, retaliation is consistently the most common allegation, outpacing the next most popular category (typically race discrimination) by at least 10,000 charges per year. Following with that trend, retaliation claims accounted for approximately 24% of all charges filed in FY 2021. The next most popular charge types in FY 2021 were disability discrimination, harassment, and race discrimination. Top 10 States in EEOC Charges Received Relative to State Population FY 2021 CHARGES RECEIVED PER 10,000 POPULATION ■ Arkansas: 3.65 ■ Mississippi: 3.54 ■ Alabama: 3.27 ■ Tennessee: 3.21 ■ Nevada: 3.16 ■ Georgia: 3.08 ■ Pennsylvania: 3.03 ■ Maryland: 2.91 ■ Illinois: 2.84 ■ North Carolina: 2.79 WA AK HI MT WY CO UT AZ NM TX LA AR MS AL TN FL GA NE KS OK MO IL WI MI OH IN KY VA WV PA NY VT NH CT ME MA MN IA SD ND SC NC ID NV CA OR DC MD DE NJ RI 2022 state population data courtesy of https://worldpopulationreview.com/states.
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 9 The bar graph below represents the types of charges filed with the EEOC between FYs 2017-2021. As this graph demonstrates, the amount of age, race, religion, and sex-based discrimination charges have remained relatively steady over the past five years. However, one type of charge that is becoming more prevalent is disability discrimination. ADA charges accounted for over 37% of all EEOC charges in FY 2021, compared to just over 30% in FY 2016. Preventing sexual harassment in the workplace remains a top priority for the EEOC. Indeed, one of the six EEOC priorities is “Preventing Harassment” (and has been since 2013). The EEOC also launched a Select Task Force on the Study of Harassment in the Workplace in 2015. To this end, sexual harassment charges made up over 10% of all charges filed in FY 2019, compared to just 7% in FY 2016. In FY 2021 alone, employees filed 5,581 EEOC charges alleging sexual harassment. 2021 2020 2019 2018 2017 Age Disability Equal Pay Harassment National Origin Pregnancy Race Religion Retaliation Sex 18,376 26,838 996 26,978 8,299 3,174 28,528 3,436 41,097 25,605 16,911 24,605 1,066 26,699 7,106 2,790 24,600 2,859 39,469 24,655 15,573 24,238 1,117 26,221 7,009 2,753 23,976 2,725 39,110 23,532 14,183 24,324 980 24,221 6,377 2,698 22,064 2,404 37,632 21,398 12,965 22,843 885 21,270 6,213 2,261 20,908 2,111 34,332 18,762 EEOC Charges by Basis FY 2017-2021
10 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP Sexual harassment charges have also proven to result in significant monetary relief for the EEOC. As a result of the frequency of these types of claims, the Commission recovered over $142 million for employees asserting sexual harassment claims in FY 2021. For perspective, in FY 2017, the EEOC recovered just $125.5 million for the same category of claims. The graphic below demonstrates the monetary benefits received from sexual harassment charges between FYs 2017-2021, as well as how these charges were commonly resolved. 0 5,000 10,000 15,000 20,000 25,000 30,000 35,000 40,000 2021 2020 2019 2018 2017 Administrative Closure/Withdrawl Merit Resolutions No Reasonable Cause Reasonable Cause Successful Conciliation Settlement $142.2 5,896 4,480 13,752 2,074 239 348 498 312 304 601 970 1,199 831 750 $137.3 6,475 4,829 16,376 2,172 $139.6 6,449 4,686 18,902 1,982 $134 6,738 5,083 20,710 1,938 $125.5 2,198 21,375 5,017 6,868 Monetary Benefits (Millions) EEOC Harassment Charge Resolutions FY 2017-2021
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 11 Finally, the map graphic below highlights the top 10 states in terms of the amount of Title VII sexual harassment charges received during FY 2021. Similar to the state-by-state breakdown of overall charge filings on pg. 7, Texas was also the leader in sexual harassment charges received in FY 2021. After Texas, the next most popular filing locations for sexual harassment charges were Florida, Georgia, Pennsylvania, and New York. Interestingly, the only state represented in the graphic below that was not also in the top 10 states for overall charges received is Missouri. Top 10 States in EEOC Sexual Harassment Charges Received FY 2021 SEXUAL HARASSMENT CHARGES RECEIVED BY STATE ■ Texas: 596 ■ Florida: 501 ■ Georgia: 342 ■ Pennsylvania: 323 ■ New York: 307 ■ Illinois: 277 ■ California: 272 ■ Missouri: 229 ■ North Carolina: 216 ■ Tennessee: 208 WA AK HI MT WY CO UT AZ NM TX LA AR MS AL TN FL GA NE KS OK MO IL WI MI OH IN KY VA WV PA NY VT NH CT ME MA MN IA SD ND SC NC ID NV CA OR DC MD DE NJ RI
12 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP F EEOC District Office Profiles While the EEOC is a national enforcement body, the Commission’s 15 District Offices often take different approaches to their respective litigation and settlement activity. To that end, Subsection F provides an overview of key developments from each District Office in FY 2022. Each full-page summary begins with a District Profile, which outlines key players and litigation statistics. These statistics include: 1) the number of lawsuits filed in FY 2022, followed by the District’s rank among other Offices; 2) the average time period between the issuance of a Determination Letter and the subsequent Failure to Conciliate notice; 3) the average time period between the Failure to Conciliate notice and the EEOC’s Complaint; and 4) the average time period between the issuance of a Determination Letter and the EEOC’s Complaint. Finally, the District breakdowns also contain summaries of notable lawsuits and settlements attributable to each Office in FY 2022. KEY CASES FILED IN FY 2022 EEOC v. Fischer Connectors, Inc., 1:22-cv-3884 (N.D. Ga.) The EEOC filed a lawsuit alleging that the defendant electrical connector manufacturer terminated the company’s HR Director on the basis of his age in violation of the ADEA. According to the EEOC, executives at Fischer Connectors first informed its 67-year-old HR Director that the company would be terminating any senior managers over the age of 55, before subsequently terminating the HR Director because of his age. EEOC v. Del Frisco’s of Georgia, LLC, 1:22-cv-2234 (N.D. Ga.) In this Title VII lawsuit, the EEOC claimed that Del Frisco’s of Georgia refused to grant a server’s religious accommodation request to have a particular day off to attend bible study and a special church service. Furthermore, the EEOC alleged that, when this server missed work to attend her religious obligations, the defendant restaurant unlawfully terminated her employment because of her sincerely-held religious beliefs. KEY SETTLEMENTS SECURED IN FY 2022 EEOC v. Ranew’s Management Company, Inc., 5:21-cv-443 (M.D. Ga.) Ranew’s, a Georgia-based industrial fabrication company, settled an EEOC-initiated lawsuit alleging that the company terminated an executive upon his return from mental health leave in violation of the ADA. Pursuant to the parties’ oneyear consent decree, Ranew’s agreed to pay $250,000 to the terminated executive, implement an ADA policy and training, and provide periodic compliance reports to the EEOC. EEOC Atlanta District Office DISTRICT PROFILE Director: Darrell Graham Regional Attorney: Marcus G. Keegan Merit Cases Filed in FY 2022: 5 (T-6th) Average Days Between Determination Letter & Failure to Conciliate: 73 Average Days Between Failure to Conciliate & Complaint: 127 Average Days Between Determination Letter & Complaint: 201 GA SC Atlanta
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 13 KEY CASES FILED IN FY 2022 EEOC v. Chipotle Mexican Grill, Inc., 2:22-cv-326 (M.D. Ala.) The EEOC sued Chipotle Mexican Grill alleging that the company’s General Manager (“GM”) for its Prattville, Alabama location subjected female employees to a hostile work environment in violation of Title VII. The EEOC’s Complaint stated that the GM would consistently touch female employees and make inappropriate sexual comments, and that on one occasion, the GM harassed a female employee to such an extent that she promptly resigned her employment. EEOC v. Tractor Supply Company, 2:22-cv-131 (S.D. Miss.) The EEOC filed a lawsuit on behalf of an anonymous former employee with a disability (HIV) asserting claims for disability discrimination and retaliation pursuant to the ADA. More specifically, the EEOC alleged that defendant farm products retailer improperly disclosed the employee’s HIV status to various employees and customers, resulting in a disability-based hostile work environment. The EEOC further claimed that, after the employee complained of this alleged harassment, Tractor Supply Company terminated her employment in retaliation for her complaint. KEY SETTLEMENTS SECURED IN FY 2022 EEOC v. American Freight Management Co., LLC d/b/a American Freight Furniture and Mattress, 2:19-cv-273 (N.D. Ala.) American Freight Furniture and Mattress agreed to pay $5 million to settle an EEOC suit claiming that the company maintained a pattern or practice of discriminating against women in the hiring process. In addition to the monetary payment, American Freight signed a three-year consent decree in which it committed to retain a Title VII compliance expert, develop a recruitment plan for female applicants, and provide job offers to all eligible claimants who were previously denied employment, among other requirements. EEOC v. Huntington Ingalls Inc. & NSC Technologies, LLC, 1:22-cv-2 (S.D. Miss.) The defendants—shipbuilder Huntington Ingalls and its recruiting agency NSC Technologies—settled a Title VII lawsuit in which the EEOC claimed that a supervisor at Huntington Ingalls subjected several female temporary employees to a hostile work environment and subsequently retaliated against them for filing complaints. Pursuant to the parties’ 30-month consent decree, the defendants agreed to pay $350,000 to two named victims, as well as a class of unnamed female temporary employees. The consent decree also required the defendants to revise their harassment and retaliation policies and conduct annual trainings focused on internal reporting procedures and Title VII compliance. EEOC Birmingham District Office DISTRICT PROFILE Director: Bradley A. Anderson Regional Attorney: Marsha Rucker Merit Cases Filed in FY 2022: 2 (9th) Average Days Between Determination Letter & Failure to Conciliate: 98 Average Days Between Failure to Conciliate & Complaint: 155 Average Days Between Determination Letter & Complaint: 253 MS AL FL Birmingham
14 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP KEY CASES FILED IN FY 2022 EEOC v. R3 Government Solutions, LLC, 1:22-cv-1095 (E.D. Va.) The EEOC filed suit alleging that R3 Government Solutions violated the ADEA and Title VII with respect to the company’s treatment of a former recruiter. Namely, the EEOC alleged that the federal contractor defendant instructed its in-house recruiter to place applicants into government positions on the basis of their age, race, and/or national origin. According the EEOC, after this recruiter objected to the company’s improper recruitment standards, R3 Government Solutions required her to comply with unfair performance expectations and subsequently terminated her employment because of her race and in retaliation for her internal complaints. EEOC v. Aurora Renovations & Developments, LLC, 1:22-cv-490 (M.D.N.C.) The EEOC filed a lawsuit on behalf of two former employees of Aurora Renovations & Developments, alleging that the North Carolina-based contractor engaged in acts of religious discrimination and retaliation in violation of Title VII. More specifically, the EEOC’s Complaint asserted that Aurora Renovations & Developments required employees to attend a daily Christian prayer meeting as a condition of their employment. When one former employee requested to be excused from the prayer meeting, the EEOC claimed that the company retaliated against him by reducing his wages. The EEOC further alleged that Aurora Renovations & Developments terminated both former employees at issue because of their religious beliefs (Agnostic and Atheist). KEY SETTLEMENTS SECURED IN FY 2022 EEOC v. Strategic Equipment, LLC d/b/a TriMark Foodcraft, LLC, 1:20-cv-1000 (M.D.N.C.) TriMark Foodcraft, a North Carolina-based restaurant supply company, settled an ADA suit brought by the EEOC alleging that TriMark Foodcraft denied a disabled employee’s request to use her oxygen tank as a reasonable accommodation and fired her shortly after this request. As part of the two-year consent decree, TriMark Foodcraft agreed to pay $25,000 to the disabled employee, provide her with a letter of reference, and revise its anti-discrimination policy to elaborate on available employee accommodations. EEOC Charlotte District Office DISTRICT PROFILE Director: Carmen M. Whaling (Acting) Regional Attorney: Melinda Dugas Merit Cases Filed in FY 2022: 10 (2nd) Average Days Between Determination Letter & Failure to Conciliate: 150 Average Days Between Failure to Conciliate & Complaint: 205 Average Days Between Determination Letter & Complaint: 355 VA SC NC Charlotte
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 15 KEY CASES FILED IN FY 2022 EEOC v. Walmart Inc., 4:22-cv-37 (S.D. Ind) The EEOC filed suit alleging that Walmart subjected a Black female employee to discrimination on the basis of her sex and race in violation of Title VII. According to the EEOC’s Complaint, Walmart failed to promote this employee because she had young children at home. The EEOC further claimed that Walmart provided this employee an unsanitary storage closet for expressing breastmilk, while the company provided a clean office space to a White employee for the same purpose. EEOC v. Lacey’s Place, 2:22-cv-2161 (C.D. Ill.) The EEOC’s lawsuit asserted that Lacey’s Place engaged in a pattern of paying female district managers at rates lower than male district managers in violation of the EPA and Title VII. The EEOC also alleged that Lacey’s Place terminated a female district manager in retaliation for complaining about the supposed wage disparity. KEY SETTLEMENTS SECURED IN FY 2022 EEOC v. Chicago Meat Authority, 19-cv-1357 (N.D. Ill.) Chicago Meat Authority entered into a three-year consent decree settling a Title VII race discrimination, harassment, and retaliation lawsuit brought by the EEOC on behalf of four African American employees and a group of African American job applicants. As part of the settlement, Chicago Meat Authority agreed to pay $1.1 million to the discrimination victims, hire any improperly rejected job applicants, incorporate hiring goals for African American applicants, and implement anti-harassment training and policies. EEOC v. Stan Koch & Sons Trucking, Inc., 19-cv-2148 (D. Minn.) Minneapolis-based trucking company Stan Koch & Sons Trucking settled an EEOC-initiated lawsuit alleging that the company used a strength test that discriminated against women in the hiring process. In its five-year consent decree with the EEOC, Stan Koch & Sons Trucking agreed to pay $500,000 to the class of women whose job offers were revoked after failing the strength test, send reports to the EEOC concerning its hiring practices, and stop using the strength test at issue. EEOC v. LJC Opco Two, LLC d/b/a Long John Silver’s Store #70250, 3:21-cv-717 (S.D. Ill.) The defendant Long John Silver’s franchise settled the EEOC’s Title VII suit, which alleged that the franchise subjected a female employee to sexual harassment and subsequent retaliation for her complaints. The parties entered into a two-year consent decree providing for a $200,000 payment to the female employee, as well as the implementation of anti-harassment policies and reporting requirements for any future complaints of sex discrimination. EEOC Chicago District Office DISTRICT PROFILE Director: Julianne Bowman Regional Attorney: Gregory M. Gochanour Merit Cases Filed in FY 2022: 12 (1st) Average Days Between Determination Letter & Failure to Conciliate: 163 Average Days Between Failure to Conciliate & Complaint: 119 Average Days Between Determination Letter & Complaint: 282 IL WI MN IA SD ND Chicago
16 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP KEY CASES FILED IN FY 2022 EEOC v. Univ. of Texas Permian Basin, 7:22-cv-210 (W.D. Tex.) The EEOC filed a lawsuit pursuant to the EPA claiming that the University of Texas Permian Basin illegally paid a female Professor of Accounting at least $8,000 less than two similarly-situated male Professors of Accounting. The EEOC’s Complaint further stated that, after the female Professor complained to the Dean about this alleged pay disparity, the University lowered this Professor’s performance evaluation in retaliation for her complaint. EEOC v. Brinker Int’l Payroll Co., L.P. d/b/a Chili’s Grill & Bar, 3:22-cv-2017 (N.D. Tex.) The EEOC’s Complaint, filed on behalf of two female former employees of Brinker International, alleged that the company subjected these female employees to a sex-based hostile work environment in violation of Title VII. According to the EEOC, this Chili’s Grill & Bar franchisee allowed its male kitchen employees to make sexual comments towards and inappropriately touch the two charging parties. The EEOC also claimed that Brinker International refused to correct this alleged behavior, even after receiving complaints from the charging parties. EEOC v. Int’l Paper Co., 3:22-cv-810 (N.D. Tex.) The EEOC filed suit alleging that International Paper Company engaged in unlawful disability-based discrimination in violation of the ADA. Specifically, the EEOC claimed that the company made a conditional job offer to an applicant, but that after the applicant tested positive for a prescription drug, International Paper Company rescinded his job offer. The EEOC’s Complaint further stated that the applicant disclosed his disability (ADHD) for which he required the medication during the drug testing process, but the company allegedly refused to grant the applicant an exception to its drug testing policy. KEY SETTLEMENTS SECURED IN FY 2022 EEOC v. Wellpath, LLC, 5:20-cv-1092 (W.D. Tex.) Wellpath, LLC, a healthcare services provider for correctional facilities, agreed to settle a lawsuit in which the EEOC claimed that the company refused to accommodate a nurse’s religious beliefs by denying her request to wear a certain type of skirt. In addition to providing the nurse with $75,000, Wellpath’s two-year consent decree also required it to implement a policy to address requests for religious accommodations and provide an anti-discrimination training to its employees. EEOC Dallas District Office DISTRICT PROFILE Director: Travis Nicholson Regional Attorney: Robert Canino Merit Cases Filed in FY 2022: 7 (T-4th) Average Days Between Determination Letter & Failure to Conciliate: 126 Average Days Between Failure to Conciliate & Complaint: 105 Average Days Between Determination Letter & Complaint: 230 NM TX Dallas
©2023 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2023 EDITION | 17 KEY CASES FILED IN FY 2022 EEOC v. Walgreens, Co., 1:22-cv-5357 (W.D. La.) The EEOC sued Walgreens claiming that the company subjected a female employee to discrimination on the basis of her pregnancy and disability (diabetes) in violation of Title VII and the ADA. In terms of the employee’s disability, the EEOC alleged that Walgreens refused to allow her to take periodic snack breaks as required by her doctor. The EEOC also claimed that the company denied the employee’s request to leave work and see her doctor immediately upon realizing that she was spotting during her pregnancy. EEOC v. Affordable Rent-to-Own, LLC, 3:22-cv-676 (M.D. La.) The EEOC filed suit alleging that Affordable Rent-to-Own subjected an African American employee to a race-based hostile work environment pursuant to Title VII. According to the EEOC, the furniture retailer’s account manager regularly used a racial slur in front of the employee. Following the employee’s complaint about this alleged conduct, the EEOC claims that the company terminated this employee in retaliation for his complaint. KEY SETTLEMENTS SECURED IN FY 2022 EEOC v. Willis-Knighton Medical Center, 2:21-cv-1774 (E.D. La.) Willis-Knighton Medical Center agreed to settle an ADA lawsuit brought on behalf of 30 putative claimants alleging that the defendant medical center placed an unlawful cap on both the amount of leave and light duty that an employee with a disability may obtain. Pursuant to the three-year consent decree, Willis-Knighton Medical Center committed to pay $450,000 to the 30 putative claimants, revoke its caps on leave and light duty, implement ADA policies, and create various processes to handle employee complaints of discrimination. EEOC v. Hollingsworth Richards, LLC, d/b/a Honda of Covington, 2:20-cv-2511 (E.D. La.) The defendant Honda dealership settled an EEOC-initiated ADA lawsuit which alleged that Honda of Covington subjected a sales representative with ADHD to an illegal medical examination and terminated her employment for taking her prescribed medication. In addition to providing the former sales representative with $100,000, the three-year consent decree required Honda of Covington to put into place relevant policies, trainings, and a notice regarding employers’ responsibilities under the ADA. EEOC Houston District Office DISTRICT PROFILE Director: Rayford O. Irvin Regional Attorney: Rudy L. Sustaita Merit Cases Filed in FY 2022: 5 (T-6th) Average Days Between Determination Letter & Failure to Conciliate: 53 Average Days Between Failure to Conciliate & Complaint: 247 Average Days Between Determination Letter & Complaint: 300 TX LA Houstonseyfarth.com