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Will Employers Have an Affirmative Defense in EEOC Litigation? A Look at the Supreme Court’s Upcoming Decision

In the coming months, the Supreme Court of the United States will determine the level of judicial review, if any, that will be applied to employers’ pre-litigation negotiations with the U.S. Equal Employment Opportunity Commission (EEOC) in discrimination cases. In Mach Mining, L.L.C. v. Equal Employment Opportunity Commission, the Court will consider language in Title VII requiring the EEOC to “endeavor to eliminate any . . . alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Specifically, the question is whether—and to what extent—courts may review the EEOC’s efforts to conciliate discrimination claims before the agency files suit against an employer. Employers argue that the EEOC’s failure to conciliate provides them with an affirmative defense to the merits of a discrimination suit.

Retaliation Dominated EEOC Charges in 2014, Agency Statistics Show

The number of discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in fiscal year 2014 reached the lowest level since 2007, according to recently published statistics from the EEOC. Retaliation charges, however, made up 42.8 percent of all charges in the same time period, the highest percentage ever.

What’s your workplace retaliation IQ?

It’s been a while since we’ve had an employment law quiz, so let’s do it! This one is on retaliation. As always, the answers will be provided after each question — you have our “no-pressure” guarantee.

Fifth Circuit Declines to Clarify When an Employment Action is "Adverse" Enough to Support a Discrimination Claim

When presented with an employment discrimination claim, one of the early questions any agency or court must answer is whether the claimant has suffered an “adverse employment action.” Simply stated, even if a discriminatory motive can be shown, is the harm suffered by the claimant significant enough to support a viable discrimination claim? This question arises regardless of whether the complaint is made under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), or other state or federal employment law. Not every slight, indignity, or inconvenience experienced in the workplace is sufficient to meet this standard, but where does one draw the line?

You've gotta be kidding. THIS is retaliation?

Guess what? You know those SEC disclosures about pending litigation that publicly held companies are required by law to make? Well, if an employer says too much, it may be “retaliating” against the litigants.

Avoiding Liability For Retaliation Claims: Issue Spotting In Real Time

Lonnie Giamela and John Mavros’ article “Avoiding Liability For Retaliation Claims: Issue Spotting In Real Time” was featured in the December issue of Hotel Executive.

Confidentiality Clauses in Settlement Agreements are Under Increasing Scrutiny by Regulators

In 2014 regulators increased their focus on the content of employee confidentiality, settlement and separation agreements. In particular, these regulators have expressed concern about clauses in agreements that may be construed as preventing an individual from cooperating or communicating with an investigatory agency.

Upcoming Supreme Court Decision Could Change the EEOC Litigation Landscape for Employers

A decision by the U.S. Supreme Court on whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s (EEOC) mandatory duty to conciliate discrimination claims before filing suit could significantly change the landscape of EEOC litigation for employers. The court will hear the case during its 2014–2015 term, and its decision has the potential to prevent federal courts from reviewing pre-suit conciliation efforts. This would, in effect, allow the EEOC to proceed unchecked with respect to conciliation. It could also result in less productive conciliation and increased litigation for employers. More importantly, such an outcome would deprive employers of any meaningful recourse in the event that the EEOC’s conciliation efforts are not made in good faith.

EEOC Lawsuit Against CVS Pharmacy Challenging Severance Agreements Dismissed

On October 7, 2014, District Judge John Darrah of the North District of Illinois dismissed the Equal Employment Opportunity Commission’s lawsuit against CVS Pharmacy. Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., civil action no. 1:14-cv-00863, (N.D. Ill, October 7, 2014) (“10/7/2014 Memorandum and Order”). This lawsuit has been the subject of significant media attention due to the EEOC’s challenge to common provisions included in many standard severance agreements. While the decision is helpful for employers in that the EEOC did not prevail in this initial effort, the decision leaves many questions unanswered regarding the EEOC’s recent enforcement efforts and the appropriate employer response to the EEOC’s actions.

Court Dismisses EEOC’s Controversial Severance Agreement Lawsuit

As we reported in February 2014, the U.S. Equal Employment Opportunity Commission sued CVS Pharmacy in federal court in Chicago on a novel theory that the company’s standard separation agreement unlawfully deterred departing employees from later filing discrimination charges or participating in EEOC investigations. CVS’s severance agreement contained a common clause that required departing employees to agree they had not and would not sue the company. But the agreement also went on to state that it was not intended to prevent or interfere with an employee’s “right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws” and that the agreement will not “prohibit employees from cooperating with any such agency in its investigation.”