On December 17, 2015, the U.S. Court of Appeals for the Seventh Circuit affirmed a district court’s dismissal of the Equal Employment Opportunity Commission’s lawsuit against CVS Pharmacy.1 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. Like the district judge’s decision, the appellate court panel of three judges resolved the case based on the EEOC’s failure to engage in conciliation required by Title VII of the Civil Rights Act, but also provided important commentary on the merits of the EEOC’s claims.2
Articles Discussing The Equal Employment Opportunity Commission.
This Annual Report on EEOC Developments—Fiscal Year 2015 (hereafter “Report”), our fifth annual Report, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year. The Report does not merely summarize case law and litigation statistics, but also offers an analysis of what the EEOC has and has not accomplished, and the implications of those outcomes. By focusing on key developments and anticipated trends, the Report provides employers with a roadmap to where the EEOC is headed in the year to come.
On November 19, 2015, the Equal Employment Opportunity Commission (EEOC) issued its annual Performance and Accountability Report (PAR), which highlights key EEOC developments over the past fiscal year, ending September 30, 2015. This Insight provides a preliminary review of selected statistics highlighted in the PAR and discusses the EEOC’s successes and failures during the past fiscal year, particularly focusing on the EEOC’s “national priorities” discussed in its Strategic Enforcement Plan.
The Equal Employment Opportunity Commission’s recently released Performance and Accountability Report (“PAR”) for Fiscal Year 2015 shows the EEOC recovered more than a half billion dollars through litigation and other enforcement activities this past fiscal year, a significant increase over FY 2014.
Highlighting just how far the Equal Employment Opportunity Commission investigative powers can go, a staffing firm under agency investigation for purportedly handling clients’ job requisitions that are facially discriminatory has been ordered to comply with an EEOC subpoena seeking the names of all of the firm’s clients — 22,000 of them — at 62 of the firm’s offices. EEOC v. Aerotek, Inc., No. 1:15-cv-00275 (N.D. Ill.). The firm has asked the U.S. Court of Appeals for the Seventh Circuit to reconsider its decision to deny a stay of the district court’s order that it produce the data requested by the EEOC.
The Equal Employment Opportunity Commission’s enforcement strategies and ligation history came under fire from Republican members of the Senate Committee on Health, Education, Labor and Pensions on Tuesday. During the hearing to examine the agency’s recent activities, EEOC Chair Jenny R. Yang and General Counsel P. David Lopez responded to a variety of questions about the agency’s charge backlog, recent proposed rule governing wellness programs under the Americans with Disabilities Act, and the use of commissioner’s charges and directed investigations to pursue alleged discrimination when no claimant has come forward.
Executive Summary: In a limited victory for employers, the Supreme Court held last week in Mach Mining, LLC v. EEOC that courts have jurisdiction to review whether the Equal Employment Opportunity Commission (“EEOC”) fulfilled its statutory obligation to conciliate with an employer before filing a lawsuit against it. A court’s scope of review is extremely limited, however, with an inquiry limited to the quality or nature of the EEOC’s conciliation efforts. Courts may review that the EEOC: 1) informed the employer about the nature of the alleged discrimination and which employee(s) have allegedly suffered from such discrimination, and 2) tried to “engage the employer in some form of discussion,” written or oral. If the court finds the EEOC neglected these “barebones” requirements to conciliate prior to litigation, the employer’s remedy is a stay of the lawsuit and an order requiring the EEOC to undertake the mandated conciliation efforts.
Executive Summary: The Equal Employment Opportunity Commission (EEOC) recently announced a pilot program for online submissions in response to a Notice of Charge. The online system will allow employers (or their legal representatives) to elect mediation, request extensions of time, and file position statements. Select regions will begin the pilot program on May 4, 2015, and the agency plans on rolling out the program nationally by October 2015.
On April 29, 2015, the U.S. Supreme Court ruled that courts have the authority to review whether the Equal Employment Opportunity Commission (EEOC) has fulfilled its statutory obligation to pursue pre-suit conciliation. The Supreme Court’s decision resolves a split that existed between the circuit courts as to whether courts had the requisite authority to review the adequacy of the EEOC’s conciliation efforts. Yesterday’s decision addresses the issue of how far a judge may delve into whether the EEOC made a “good faith” attempt at conciliation. The previously existing split among the circuit courts resulted in some courts requiring only a minimum level of “good faith,” while other courts required a significant showing that meaningful efforts were pursued. Title VII of the Civil Rights Act of 1964 requires that the EEOC attempt to negotiate a settlement between an employer and the allegedly aggrieved employee prior to suing for judicial remedy.
The number of discrimination charges filed with the Equal Employment Opportunity Commission that included allegations of retaliation reached an all-time high in FY 2014, according to newly released enforcement and litigation statistics. Of the 88,778 charges filed with the EEOC from October 1, 2013 through September 30, 2014, 42.8% included retaliation claims.
When noteworthy cases are decided or rules issued involving federal anti-discrimination law, Littler often publishes timely articles on these events, particularly when they involve the Equal Employment Opportunity Commission (EEOC or “the Commission”). Littler recognizes, however, that employers benefit also from a yearly overview of these legislative and regulatory activities.
The number of private-sector charges of discrimination filed with the Equal Employment Opportunity Commission declined for the third year in a row, according to the newly released Performance and Accountability Report (PAR) for fiscal year 2014. The significant drop from 93,727 charges filed in FY 2013 to 88,778 charges filed in FY 2014 can be attributed, in part, to last year’s government shutdown and sequestration, the EEOC said. Highlights of the PAR include:
In its first full hearing since the November elections, the Senate Committee on Health, Education, Labor and Pensions (HELP) met on Thursday to discuss the nominations of P. David Lopez to serve another term as General Counsel of the Equal Employment Opportunity Commission (EEOC), and Charlotte Burrows to serve as an EEOC Commissioner.
On September 17, 2014, the House Subcommittee on Workforce Protections held a hearing to discuss legislative proposals to increase transparency and accountability at the Equal Employment Opportunity Commission (EEOC). In his opening statement, Chairman of the Subcommittee, Rep. Tim Walberg (R-MI), said the EEOC “has spent a great deal of time and resources advancing a deeply flawed enforcement and regulatory agenda” and that “[e]mployers have fallen under EEOC’s intense scrutiny without any allegation of employment discrimination.” Chairman Walberg also criticized the agency for “pursuing a regulatory scheme that is making it more difficult for employers to protect employees and consumers.” Walberg urged his colleagues to support legislation that would “help shine more sunlight on EEOC activities, compel the agency to work with employers in good faith to resolve complaints, force the commissioners to do their jobs and oversee the agency’s enforcement actions, and provide a safe harbor to employers complying with federal, state, and local mandates, such as laws requiring criminal background checks during the hiring process.”
Days after President Obama stated he was naming Equal Employment Opportunity Commission (EEOC) Vice Chair Jenny Yang (D) to fill departing Chair Jacqueline Berrien’s seat on the Commission, the White House announced that it was nominating Department of Justice (DOJ) Associate Deputy Attorney General Charlotte Burrows to become a new member to complete the five-member board.