The U.S. Equal Employment Opportunity Commission

FY 2007 Annual Report on the Operations and Accomplishments of the Office of the General Counsel

Table of Contents

  1. Structure and Function of the Office of General Counsel
    1. Mission of the Office of General Counsel
    2. Headquarters Programs and Functions
      1. General Counsel
      2. Deputy General Counsel
      3. Litigation Management Services
      4. Internal Litigation Services
      5. Litigation Advisory Services
      6. Appellate Services
      7. Research and Analytic Services
      8. Administrative and Technical Services Staff
    3. District Office Legal Units
  2. Summary of Fiscal Year 2007 Accomplishments
    1. Systemic Enforcement
    2. Review of Litigation Results and Docket Content
      1. Review of Results in EEOC Suits Compared to Private Suits
      2. Review of EEOC Litigation Docket by Selected Statutory Bases
    3. Summary of District Court Litigation Activity
    4. Appellate Court Litigation
      1. Timeliness and Administrative Prerequisites to Suit
      2. Challenges to EEOCís Internal Processes
      3. EEOCís Regulatory Authority
      4. Pleading and Proof Issues
      5. Punitive Damages Standard
      6. Sex Discrimination and Sexual Harassment
      7. Race Discrimination
      8. National Origin Discrimination
      9. Religious Accommodation
      10. Disability Discrimination
      11. Age Discrimination
      12. Retaliation
    5. Litigation in Federal District Courts
      1. Race
        1. Hiring
        2. Discipline
        3. Pay
        4. Discharge/Layoff
        5. Race-Based Harassment
      2. Sex Discrimination
        1. Hiring
        2. Pay
        3. Sexual Harassment
        4. Pregnancy
      3. National Origin Discrimination
      4. Religious Discrimination
      5. Title VII Discrimination Involving Multiple Bases
      6. Age Discrimination
        1. Hiring and Promotion
        2. Downsizing and Restructuring
        3. Age-Based Harassment
        4. Age-Based Policies
      7. Disability Discrimination
        1. Hiring and Promotion
        2. Discharge
        3. Disability-Based Harassment
        4. Reasonable Accommodation
      8. Retaliation
        1. Limitations on the Right to File Charges or Assist Others
        2. Asserting Oneís Own Rights
        3. Protecting the Rights of Others
    6. Outreach: Educating the Public
  3. Litigation Statistics
    1. Overview of Suits Filed
      1. Litigation Workload
      2. Filing Authority
      3. Statutes Invoked
      4. Bases Alleged
      5. Issues Alleged
    2. Suits Filed by Bases and Issues
      1. Sex Discrimination
      2. Race Discrimination
      3. National Origin Discrimination
      4. Religious Discrimination
      5. Disability Discrimination
      6. Age Discrimination
      7. Retaliation
    3. Bases Alleged in Suits Filed from FY 2003 through FY 2007
    4. Suits Resolved
      1. Types of Resolutions and Success Rate
      2. Statutes Invoked
      3. Bases Alleged
      4. Issues Alleged
    5. Resources
      1. Staffing
      2. Litigation Budget
    6. Historical Summary: Tables and Charts
      1. EEOC Ten-Year Litigation History: FY 1998 through FY 2007
      2. Merits Suits Filed FY 1998 through FY 2007
      3. Merits Suits Resolved FY 1998 through FY 2007
      4. Monetary Recovery FY 1998 through FY 2007

I. Structure and Function of the Office of General Counsel

A. Mission of the Office of General Counsel

The Equal Employment Opportunity Act of 1972 amended Title VII of the Civil Rights Act of 1964 (Title VII) to give litigation authority to the Equal Employment Opportunity Commission and provide for a General Counsel, appointed by the President and confirmed by the Senate for a 4-year term, with responsibility for conducting the Commission's litigation program. Following transfer of enforcement functions from the U.S. Department of Labor to the Commission under a 1978 Presidential Reorganization Plan, the General Counsel became responsible for conducting Commission litigation under the Equal Pay Act of 1963 (EPA) and the Age Discrimination in Employment Act of 1967 (ADEA). With the enactment of the Americans with Disabilities Act of 1990 (ADA), the General Counsel became responsible for conducting Commission litigation under the employment provisions of that statute (Title I; effective July 1992).

The mission of EEOC’s Office of General Counsel (OGC) is to conduct litigation on behalf of the Commission to obtain relief for victims of employment discrimination and ensure compliance with the statutes that EEOC is charged with enforcing. Under Title VII and the ADA, the Commission can sue nongovernmental employers with 15 or more employees. The Commission’s suit authority under the ADEA (20 or more employees) and the EPA (no employee minimum) includes state and local governmental employers as well as private employers. Title VII, the ADA, and the ADEA also cover labor organizations and employment agencies, and the EPA prohibits labor organizations from attempting to cause an employer to violate that statute. OGC also represents the Commission on administrative claims and litigation brought by agency applicants and employees, and provides legal advice to the agency on employment-related matters.

B. Headquarters Programs and Functions

1. General Counsel

The General Counsel is responsible for managing, coordinating, and directing the Commission’s enforcement litigation program. He or she also provides overall guidance and management to all the components of OGC, including district office legal units. The General Counsel recommends cases for litigation to the Commission and approves other cases for filing under authority delegated to the General Counsel under the Commission’s 1996 National Enforcement Plan. The General Counsel also reports regularly to the Commission on litigation activities, including issues raised in litigation which may affect Commission policy, and advises the Chair and Commissioners on agency policies and other matters affecting the enforcement of the statutes within the Commission’s authority.

2. Deputy General Counsel

The Deputy General Counsel serves as the alter ego of the General Counsel and as such is charged with the daily operations of OGC. The Deputy is responsible for overseeing all programmatic and administrative functions of OGC, including overseeing the litigation program. OGC functions are carried out through the operational program and service areas described below, which report to or through the Deputy.

3. Litigation Management Services

Litigation Management Services (LMS) oversees and supports the Commission's court enforcement program in the agency’s district offices. Also, in conjunction with the Office of Field Programs (OFP), LMS oversees the integration of district office legal units into the investigative enforcement structure of the district offices. LMS staff provide direct litigation assistance to district offices as needed, draft guidance (including maintaining the Regional Attorneys’ Manual), develop training programs and materials, and collect and create litigation practice materials. LMS also has an assistant general counsel for technology responsible for providing technical guidance and oversight to OGC headquarters and district offices on the use of technology in litigation and the development of OGC’s computer systems. LMS and OFP staff make joint visits to district offices to provide technical assistance regarding the integration of the district legal and investigative units.

4. Internal Litigation Services

Internal Litigation Services represents the Commission and its officials on administrative claims and litigation brought by Commission applicants and employees, and provides legal advice to the Commission and agency management on employment-related matters.

5. Litigation Advisory Services

Litigation Advisory Services (LAS) evaluates district office suit recommendations in cases that require General Counsel or Commission authorization, and drafts litigation recommendations to the General Counsel for approval or submission to the Commission. LAS responds to Commissioner inquiries on cases under consideration for litigation, acting as OGC's liaison and contact point between the Commissioners and the district office legal units. LAS also performs special assignments as requested by the General Counsel.

6. Appellate Services

Appellate Services (AS) is responsible for conducting all appellate litigation where the Commission is a party. AS also participates as amicus curiae, as approved by the Commission, in United States courts of appeals, as well as federal district courts and state courts, in cases involving novel issues or developing areas of the law. AS represents the Commission in the United States Supreme Court through the Office of the Solicitor General. AS also makes recommendations to the Department of Justice in cases where the Department is defending other federal agencies on claims arising under the statutes the Commission enforces. In addition, AS reviews EEOC policy materials, such as proposed regulations and enforcement guidance drafted by the Commission’s Office of Legal Counsel, prior to their issuance by the agency.

7. Research and Analytic Services

Research and Analytic Services (RAS) provides expert and analytical services for cases in litigation, assists EEOC attorneys in obtaining expert services from outside the agency, and provides technical support to field staff investigating charges of discrimination. RAS has a professional staff with backgrounds and advanced degrees in the social sciences, economics, statistics, and psychology who serve as testifying and consulting experts on cases in litigation. RAS also provides services to other agency offices, such as conducting social science research on issues related to civil rights enforcement, advising the agency on the collection of workforce data, and developing and maintaining special census files by geography, race/ethnicity and sex, and occupation.

8. Administrative and Technical Services Staff

OGC’s Administrative and Technical Services Staff (ATSS) provides administrative and technical services to all headquarters components of OGC. ATSS also is responsible for preparing the OGC budget request to the EEOC Chair for submission to the Office of Management and Budget and Congress as well as for handling various budget execution duties such as transferring funds to district offices and monitoring expenditures. ATSS maintains nationwide data on the Commission's litigation activities.

C. District Office Legal Units

District office legal units conduct Commission litigation in the geographic areas covered by the respective offices and provide legal advice and other support to district office staff responsible for investigating charges of discrimination. District office attorney staff also participate in outreach efforts, and in most offices the legal unit is responsible for responding to Freedom of Information Act requests. Legal units are under the direction of regional attorneys, who manage staffs consisting of supervisory trial attorneys, trial attorneys, paralegals, and support personnel.

II. Summary of Fiscal Year 2007 Accomplishments

In fiscal year 2007 the Office of General Counsel filed 336 new lawsuits and resolved 365 cases for a total monetary recovery of more than $54 million. Our litigation activities encompassed a wide range of issues and obtained relief for victims of employment discrimination under all of the federal statutes we are charged with enforcing. Under the Commission’s new systemic initiative, our litigation focused more on class and systemic cases under all the statutes. Our systemic activities in this fiscal year are summarized in section II.A. below. Also in fiscal year 2007, as detailed in section II.B., we updated the review we conducted last year of the Commission’s litigation outcomes in the trial courts, as compared to outcomes in privately litigated employment discrimination cases, and we examined the coverage of our docket by statutory basis. In sections II.C.-E., we provide detailed summaries of trial and appellate litigation activity and accomplishments in particular cases this fiscal year.

A. Systemic Enforcement

A chief priority of the Office of General Counsel in fiscal year 2007 was implementation of the agency’s systemic initiative as an integral part of our law enforcement function. The systemic initiative had begun in April 2006, following the Commission’s adoption of recommendations of an internal task force on comprehensive measures to improve all aspects of the agency’s systemic work. The Commission’s objective was to strengthen and modernize its nationwide approach to identifying, investigating, and litigating systemic cases, which the task force report defines as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.” The Commission endorsed the task force’s recommendation that “combating systemic discrimination should be a top priority at EEOC and an intrinsic, ongoing part of the agency's daily work.”

The 2006 task force report had noted a number of reasons why the agency’s litigation program should increase its emphasis on class cases. The EEOC, the task force report said, is “uniquely positioned to litigate systemic cases. First, unlike private litigants, EEOC need not meet the stringent requirements of Rule 23 of the Federal Rules of Civil Procedure in order to maintain a class suit in federal court. Second, as a practical matter, EEOC may be able to bring certain systemic cases that the private bar is not likely to handle, for example, where the monetary relief might be limited, the focus is on injunctive relief, or the victims are in underserved communities. EEOC also can file ADEA suits against state entities and obtain monetary relief, whereas private litigants are limited by sovereign immunity to obtaining only injunctive relief in such cases. Finally, the task force believes that EEOC's nationwide presence permits it to act as a large yet highly specialized law firm with a unique role in civil rights enforcement.”

The full task force report is available at www.eeoc.gov/abouteeoc/task_reports/systemic.html.

The Office of General Counsel devoted extensive efforts in fiscal year 2007 to implementation of the task force recommendations that pertained to the litigation program. Two of the most significant and overarching recommendations were that:

In the first quarter of the fiscal year, the district offices drafted systemic plans, which mapped out their anticipated systemic activities and enforcement priorities. Each plan was required to have two “focus areas” in which the district would attack systemic discrimination. The plans identified potential systemic cases based on individual charges and Commissioner charges, and included pending or planned litigation of a systemic nature. The plans also outlined the kinds of outreach activities that the offices would undertake to explain the initiative to the public. Outreach and technical assistance are important components of the initiative, designed to educate employers and employees and encourage prevention of systemic discrimination.

Because systemic work requires close coordination between investigators and attorneys, the task force had recommended that the district office systemic plans be developed jointly by the district director and regional attorney. The General Counsel and the Director of the Office of Field Programs jointly reviewed the draft plans and worked with the offices on modifications to the plans. This was done to coordinate the offices’ systemic activities, particularly for cases involving respondents with regional or nationwide operations, and to ensure coverage of a range of issues under all of the statutes enforced by the Commission. Each district plan was given final approval by the deadline set by the Commission and went into effect in January, 2007.

Throughout the year, the Offices of General Counsel and Field Programs continued to monitor the district offices’ implementation of the systemic plans. The plans are considered dynamic; as investigations progress, offices modify their efforts and priorities as needed to ensure that the agency’s resources are focused most effectively on the elimination of systemic discrimination.

The task force report had recommended that systemic litigation be carried out using a national law firm model. In fiscal year 2007, the Office of General Counsel took steps to bring about greater collaboration among district offices, creating multi-office litigation teams for larger cases and staffing cases based on the needs of the case, rather than the office in which the case originated. Under the national law firm approach, offices with the greatest experience and expertise in systemic cases are partnered with other offices, working to ensure that each district office develops a vigorous systemic program. The partnered offices coordinate litigation of regional or nationwide cases across district boundaries; provide training on systemic issues; and share expertise and resources. These steps are designed to leverage the agency’s legal resources to achieve a greater impact.

Systemic cases are significantly more complex cases. They require greater resources and highly trained, experienced attorneys as well as expert statisticians, industrial psychologists, and labor market economists. The Office of General Counsel has worked hard to secure the technology tools that are critical to a vigorous nationwide litigation practice. Our objective is to better equip the lawyers and the investigators to manage and analyze the very large amounts of case-related data in support of systemic investigations and litigation.

To accomplish the goals of the systemic initiative, the Office of General Counsel anticipates a shift in the composition of its litigation docket over time. We expect fewer small, individual cases and more cases on behalf of larger groups of individuals. While this is leading to a decline in the total number of new suits filed each year, compared to previous years, we expect that the overall impact of our litigation will be enhanced as larger cases are filed and resolved. Shifting the balance will enable us to use the agency’s limited resources in the most efficient and effective manner. Focusing on the eradication of systemic discrimination will increase the benefit of our work to the public in that our cases will have a much broader reach. Nonetheless, individual cases, particularly those under the Americans with Disabilities Act, will remain an important component of the agency’s docket and will continue to be strategically selected to have impact beyond their individual circumstances.

In this fiscal year, we began to see indicators of the shift to systemic cases. In fiscal year 2007, we filed 14 law suits with 20 or more identified victims compared to 11 such law suits in the previous year. In fiscal year 2007, we resolved 20 cases with at least 20 class members compared to only 7 such cases in the previous fiscal year. This group included 4 lawsuits with an estimated class size of more than 100 individuals; in the previous year, there were no suits with classes that large.

Systemic cases have been filed across the country under every statute, involving a variety of issues and including cases that highlight Commission initiatives, the E-RACE Initiative as well as the Commission’s May 2007 Enforcement Guidance on “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” The field legal units also continued the vigorous litigation of existing systemic cases in their pending dockets, and accomplishments in these cases are set forth in succeeding portions of this report.

B. Review of Litigation Results and Docket Content

1. Review of Results in EEOC Suits Compared to Private Suits

For several years, the EEOC has attained the goal set forth in its Strategic Plan of maintaining at least a 90% success rate in lawsuit resolutions. (This performance measure is detailed in the agency’s Performance and Accountability Report (PAR), available at http://www.eeoc.gov/abouteeoc/plan/par/2007/index.html.) Because the majority of lawsuits are resolved through settlement, this performance measure does not describe EEOC’s results in cases decided by a judge or jury. As in last fiscal year, the Office of General Counsel again conducted a review of the cases resolved by a judge or jury over the past 5 years, from FY 2003 through FY 2007. We also reviewed the results for private plaintiffs represented by counsel in employment discrimination cases resolved by a judge or jury in the federal courts, using data compiled by the Administrative Office of the United States Courts.(1)

Our review focused on the results for two separate types of outcomes, both at the district court level: 1) nontrial adjudications (i.e., cases resolved by court orders such as summary judgment and dismissals), and 2) trial results.

Our review showed that:

The table below illustrates the results of our review in more detail.

Comparison of Success Rates in U.S. District Courts, Private Federal Employment Discrimination Cases to EEOC Enforcement Suits
Federal employment discrimination cases w/ represented plaintiffs excluding U.S. as plaintiff (2003-2007) EEOC enforcement suits (FY 2003-2007)
Nontrial adjudications lost by plaintiff as a percentage of all case resolutions
13.2%
(9.068/68,782)
5.9%
(103/1,754)
Trial wins for plaintiff as a percentage of all trials
38.3%
(809/2,110)
50.8%
(31/61)

This review is intended to provide context for the data on EEOC litigation results. It is not intended to represent that the differences in results are statistically significant, and it attempts no judgment on the reasons for the different outcomes.

In the future, we plan to perform a similar comparative review of data at the appellate court level, focusing on the reversal rate for plaintiff wins and the reversal rate for defendant wins. Our internal data shows that in EEOC cases where there was a decisive outcome on appeal in the period from FY 2003 to FY 2007:

2. Review of EEOC Litigation Docket by Selected Statutory Bases

As in last fiscal year, we also reviewed the content of our litigation docket in fiscal year 2007 to determine whether our case filings were representative of the categories of claims we are charged with enforcing. To maintain a balanced litigation program, we seek to enforce the law actively with respect to each of the categories protected by the statutes under our charge. The figure below illustrates the number of cases filed in fiscal year 2007 containing allegations with respect to each of the protected categories for which we have litigation authority. (Note that the total number of allegations represented in this chart exceeds the total number of cases filed because many cases contain multiple allegations. Refer to www.eeoc.gov for additional statistics on suit filings and resolutions.)Chart: Number of Suits Filed in FY 2007 by Basis

*Of these 146 sex discrimination suits, 102 suits contained claims of sexual harassment.

**Of these 127 retaliation suits, 100 suits contained claims under additional bases.

Because of statutory prerequisites for our litigation, a further analysis is necessary to evaluate our case-selection decisions. Under Title VII, the ADA, and the ADEA, the EEOC must make efforts to resolve violations through informal conciliation before filing suit. For those statutes, only cases in which conciliation efforts have failed comprise the pool of potential litigation vehicles for the Commission. We looked at the number of conciliation failures in some typical categories of our litigation to determine whether our suit filings were reflective of the pool of available cases. We focused on five representative types of cases subject to a conciliation requirement: race/black, sexual harassment, national origin/ Hispanic, age and disability. We calculated the percentage of each type of case filed compared to the total number of suits filed and also calculated the percentage of conciliation failures under each of these case-types compared to all conciliation failures (using FY 2007 data).


The figure below illustrates these comparisons:

Chart: Comparison of Percent of Conciliation Failures to Percent of Cases Filed by Selected Case Types

This review reveals that our selection of race/black, national origin/Hispanic, and sexual harassment cases for litigation was comparable to their respective share of the cases available to consider for litigation after conciliation efforts failed. We also noted that, to the extent that our selection of sexual harassment cases for litigation exceeded the percentage of these charges available for litigation, most of our sexual harassment cases achieve a high impact by seeking relief for multiple victims of discrimination. Our selection of age and disability cases for litigation was lower than the availability of these cases for litigation to a statistically significant degree. This finding provides us with a useful tool to explore ways in which we can increase the representation of these types of cases on our docket. Overall, these results demonstrate that we are maintaining a docket that is reasonably representative of the categories of claims we are charged with enforcing.

C. Summary of District Court Litigation Activity

OGC resolved 365 merits suits in fiscal year 2007. Merits suits include direct suits and interventions alleging violations of the substantive provisions of the Commission’s statutes, and suits to enforce administrative settlements. These resolutions resulted in monetary relief of $54,792,069.

The 365 FY 2007 resolutions had the following characteristics:

The above claims exceed the number of suits resolved because cases sometimes contain claims under more than one statute. There were 19 of these “concurrent” suits among the FY 2007 resolutions.

OGC filed 336 merits suits in FY 2007. Of the suits filed, 333 were direct suits and 3 were actions to enforce administrative settlements. OGC also filed 26 actions to enforce subpoenas issued during EEOC investigations.

These 336 suit filings had the following characteristics:

Section III of the Annual Report contains detailed statistical information on OGC’s FY 2007 litigation activities, as well as summary information for past years.

D. Appellate Court Litigation

The Office of General Counsel’s appellate litigation program is the agency’s primary vehicle of law development. Practicing before the federal courts of appeals, in the Supreme Court in conjunction with the Solicitor General’s Office of the Department of Justice, and on occasion in federal district courts and state courts, OGC appellate attorneys handle Commission cases on appeal and, as approved by the Commission, appear as amicus curiae in private actions. Handling Commission cases involves review of the record of proceedings below and, in cases where the Commission lost below, advancing an independent analysis of the likelihood of success on appeal in a recommendation to the General Counsel. This year appellate lawyers prepared 46 briefs on appeal in Commission cases. Appellate also reviewed more than 2,000 district court decisions in private lawsuits filed under EEOC’s statutes and prepared recommendations for participation as amicus curiae in 20 cases raising novel or important issues under the statutes. The Commission approved all amicus recommendations made by the General Counsel. In this section of the Annual Report, the Office of General Counsel highlights significant appellate cases decided or briefed during fiscal year 2007.

1. Timeliness and Administrative Prerequisites to Suit

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (May 29, 2007)

The plaintiff in this Title VII action, Lilly Ledbetter, alleged that the paychecks she received during the 180-day period before she filed a charge with the EEOC were lower because of her sex. In support of her claim, she offered evidence that she received lower raises during the years preceding Title VII’s 180-day charge-filing period based on discriminatory performance evaluations. (A 180-day filing period applied because her claim arose in Alabama, which does not have a state fair employment practices law comparable to Title VII; a 300-day filing period for EEOC charges applies in states and localities with such laws. (See http://www.eeoc.gov/charge/overview_charge_filing.html.) A jury found in Ledbetter’s favor, but the Court of Appeals for the Eleventh Circuit reversed, holding that her charge was untimely. In an amicus curiae brief supporting rehearing, the Commission argued that Ledbetter’s claim was timely under the Supreme Court’s decision in Bazemore v. Friday, 478 U.S. 385 (1986). In the Supreme Court, the Solicitor General argued, contrary to the Commission’s position in the court of appeals, that Ledbetter’s claim was untimely.

The Supreme Court, in a 5-4 decision, agreed with the Solicitor General and affirmed the decision of the court of appeals. The Court held that a challenge to a discriminatory paycheck is timely only if it is based on an intentionally discriminatory pay-setting decision made within the charge-filing period or is issued pursuant to a facially discriminatory pay structure. The Court reasoned that the “central element” of Ledbetter’s disparate treatment claim was “discriminatory intent,” and that there was no evidence of such intent during the 180-day charge-filing period; rather, the paychecks Ledbetter received carried forward the effects of intentionally discriminatory decisions made outside that period, a claim the Court considered squarely foreclosed by its precedents that prohibit challenges to adverse effects resulting from past discrimination. According to the Court, Bazemore’s holding -- that pay discrimination can be challenged each time a paycheck is issued -- is limited to cases where an employer adopts a facially discriminatory pay structure outside the limitations period and intentionally retains such a pay structure into the charge-filing period. [Note: This decision has been superseded by the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 111-2, 123 Stat. 5 (2009), which restores the pre-Ledbetter position of the Commission that each paycheck that delivers discriminatory compensation is a wrong actionable under the federal EEO statutes, regardless of when the discriminatory compensation decision was made.]

Hulteen v. AT&T Corp., 498 F.3d 1001 (9th Cir. Aug. 17, 2007) (en banc), cert. granted, 128 S. Ct. 2957 (2008)

Agreeing with the position advanced by the Commission as amicus curiae, the Ninth Circuit held that an employer violates Title VII, as amended by the Pregnancy Discrimination Act (PDA), whenever it treats employees who have taken pregnancy leave differently from employees who have taken nonpregnancy-related disability leave, even if the pregnancy leave in question was taken before the PDA’s effective date (April 29, 1979, for existing health benefit plans). The court reaffirmed its earlier decision in Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), and expressly disagreed with the Seventh Circuit’s contrary decision in Ameritech Benefit Plan Committee v. Communication Workers of America, 220 F.3d 814 (7th Cir. 2000). [A petition for writ of certiorari was granted by the Supreme Court on June 23, 2008.]

Isaacs v. Hill's Pet Nutrition, 485 F.3d 383 (7th Cir. May 4, 2007)

The Seventh Circuit Court of Appeals reversed the district court's decision, which had dismissed this Title VII action on the grounds that the sexual harassment the plaintiff allegedly suffered was not part of a single employment practice because she was harassed in two different jobs by different coworkers, and that, considered alone, the harassment that occurred within 300 days before she filed her charge was not sufficiently severe or pervasive to constitute a hostile work environment. The court of appeals, agreeing with the position asserted by the EEOC as amicus curiae, held that under the Supreme Court’s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), a course of harassment occurring prior to and during the charge-filing period is a single employment practice; that in the present case, despite the plaintiff’s transfer to a different job, the managers who controlled how the employer addressed problems in the workplace were the same before and after the transfer; and that therefore there was only one employment practice and all occurrences of sexual harassment had to be considered to determine whether a Title VII violation occurred. The court held that when all of the harassment was considered, there was sufficient evidence from which a reasonable jury could find that the conduct was sufficiently severe or pervasive to constitute a hostile work environment.

Bright v. Hill’s Pet Nutrition, Inc. and Colgate-Palmolive, No. 06-3927 (7th Cir.), brief as amicus curiae filed July 9, 2007

In this Title VII sexual harassment action, the district court instructed the jury that it could not consider any harassing acts that occurred more than 300 days before the plaintiff filed her charge or that occurred in the “Processing” area of the plant, which is where she worked prior to being transferred to “Stretchwrap” (the transfer occurred about 2 years before she filed her charge). The court also prohibited the jury from considering any evidence of pornography because, in the court’s view, the employer remedied the pornography as soon as it learned of it, and if there were any sporadic violations, they were neither severe nor pervasive.

The Commission argued as amicus curiae that the court erred in excluding the earlier harassment. Under the Supreme Court’s Morgan decision, acts of harassment that occur before the charge-filing period should be considered if they are relevant, unless there was an intervening action. The acts plaintiff complained of were all relevant because they were of a similar nature and involved some of the same harassers. The plaintiff’s transfer was not an “intervening action” because the harassment continued unabated and those in charge of the plaintiff’s work environment remained the same. The court also erred in excluding the pornography because whether it was remedied goes to the employer’s liability, not to whether the harassment was actionable, and because there was evidence that it persisted even after the employer purported to remedy it. [The Seventh Circuit issued a decision on Dec. 21, 2007, (510 F.3d 766) reversing judgment in favor of Hill’s Pet Nutrition and remanding for a new trial.]

Holender v. Mutual Industries North, No. 05-4632 (3rd Cir.), brief as amicus curiae filed April 12, 2007

The district court granted Mutual Industries’ motion for summary judgment, holding that plaintiff Holender did not exhaust his administrative remedies because, although he timely filed a completed charge form with an EEOC district office, he failed to respond to the Commission’s request for additional information which, according to the Commission’s correspondence to him, was needed “before the EEOC can formally docket this matter as a charge.” The court held that the result of the failure to provide the additional information was that “no charge was ever filed and there was no administrative process.” As amicus, EEOC argued that the district court erred in holding that even though Holender’s claim appeared to satisfy the ADEA’s legal threshold to be treated as a charge, it was nonetheless insufficient because the Commission refused to treat it as a formal charge. EEOC argued that by filling out a charge form and supplying on it all the information requested, including details of the merits of the claim, and expressing his intent to file a charge, Holender fully satisfied the statutory requirements. [The Third Circuit issued a decision on June, 3, 2008, (527 F.3d 352) agreeing with the Commission and reversing the grant of summary judgment.]

Also see Federal Express Corp. v. Holowecki and EEOC v. Bridgestone American Holdings, Inc., and Firestone Fibers & Textiles, discussed in Sections II.D.3 & 9 below.

2. Challenges to EEOCís Internal Processes

In re Equal Employment Opportunity Commission, 207 Fed.Appx. 426 (5th Cir. Nov. 28, 2006)

Agro Distribution, the defendant in an EEOC enforcement action under the ADA, prevailed on summary judgment and then sought attorney’s fees on the grounds that the Commission’s suit was unreasonable because the Commission had not conciliated in good faith and had continued its litigation after learning that the individual for whom it sought relief did not have a disability. Seeking discovery to support this claim, Agro noticed the deposition of one of EEOC’s attorneys. The district court denied EEOC’s motion for a protective order prohibiting the deposition, and EEOC filed an emergency motion for a stay of the deposition and a petition for a writ of mandamus in the Fifth Circuit Court of Appeals. In an unpublished decision, the Fifth Circuit granted the writ of mandamus, agreeing with the Commission’s argument that the district court exceeded its authority by permitting discovery of litigated-related communications by Commission attorneys protected by the attorney-client privilege and the work product doctrine.

3. EEOCís Regulatory Authority

Federal Express Corp. v. Holowecki, No. 06-1322 (S. Ct.), cert. granted, 127 S. Ct. 2914 (2007), decision below reported at 440 F.3d 558 (2d Cir. 2006), brief as amicus curiae filed September 2007

The Supreme Court granted certiorari to determine whether an EEOC intake questionnaire that contains all the information required by the agency’s regulations can constitute a charge under the ADEA, at least where the submitter manifested an intent to trigger proceedings at the EEOC. In an amicus brief filed by the Solicitor General, the Commission argued that the Supreme Court should defer to the agency’s administrative interpretation of the statute in its regulations, compliance manual, and memoranda to the field, which state that any written document, including an intake questionnaire, which contains the requisite information should be considered a charge if there is a clear indication of an intent to initiate proceedings.

The Commission urged the Court to reject Federal Express’s position that the Commission’s failure to docket the questionnaire as a charge and serve notice on the employer conclusively established that the questionnaire was not a charge, arguing that such a rule would unfairly penalize the plaintiff for the agency’s failure to follow its established procedures. Here, the Commission argued, the plaintiff’s intake questionnaire was a charge because it contained the required information and the plaintiff manifested an intent to initiate proceedings by, inter alia, checking a box on the form indicating that her employer could be notified and stating in an attached affidavit that she wanted the EEOC to stop her employer’s discriminatory conduct. [On February 27, 2008, the Supreme Court issued a decision endorsing the Commission’s view (128 S. Ct. 1147).]

AARP v. EEOC, 489 F.3d 558 (3d Cir. June 4, 2007)

The Court of Appeals for the Third Circuit upheld the EEOC’s authority under the ADEA to promulgate a regulatory exemption to allow employers to coordinate retiree health care benefits with age-based eligibility for Medicare (or a comparable State-sponsored retiree health benefits program), without satisfying the ADEA’s “equal benefit or equal cost” rule. The court of appeals held that section 9 of the ADEA “clearly and unambiguously grants to the EEOC the authority to provide, at least, narrow exemptions from the prohibitions of the ADEA.” The court rejected AARP’s argument that section 9 unconstitutionally delegates legislative power to an administrative agency. The court was persuaded that “the EEOC ha[d] shown that this narrow exemption from the ADEA is a reasonable, necessary and proper exercise of its section 9 authority, as over time it will likely benefit all retirees.” The final rule appears at 29 C.F.R. § 1625.32.

Also see EEOC v.WC&M Enterprises and Huber v. Wal-Mart Stores, Inc., discussed in Sections II.D.8 & 10 below.

4. Pleading and Proof Issues

EEOC v. Concentra Health Services, 496 F.3d 773(7th Cir. Aug. 3, 2007)

In this Title VII retaliation suit challenging the termination of an employee who complained to his employer about sexual misconduct in the workplace, the Seventh Circuit affirmed the district court’s dismissal of the Commission’s amended complaint. The court agreed with the Commission’s argument that the agency is not confined in its litigation to the allegations contained in the charge of discrimination on which its suit is based. Nevertheless, the court held that the Commission’s complaint was not specific enough regarding the employee’s protected opposition (i.e., what he had told the employer about alleged discriminatory conduct), and thus “failed to provide Concentra with sufficient notice of the nature of the EEOC’s claim.”

Charles Horn had complained to his employer that his supervisor was engaging in sexual relations with a subordinate employee and that her conduct was adversely affecting the work environment; he was then fired. The Commission sued Concentra for retaliation, but the district court dismissed the complaint because it thought the gist of Horn’s internal complaint was about a situation of “paramour preference,” which is not unlawful under Title VII. The Commission argued on appeal that its amended complaint clearly satisfied the liberal pleading standard of the federal rules as it provided notice to the defendant that the Commission was alleging a retaliation claim pursuant to Title VII, set forth the time period that the violation occurred, and indicated that the retaliation was the result of a complaint to the company’s director of human resources. The Commission also argued that even if the underlying facts of Horn’s internal complaint were considered, it was possible to envision scenarios in which Horn’s supervisor’s multiple sexual relationships with company employees could have resulted in a violation of Title VII, because Horn could have believed her conduct created a hostile work environment or constituted implicit demands for sex from employees as a condition of employment.

In rejecting these arguments, the Seventh Circuit held only that the complaint was too vague as worded, but in dicta indicated that if the underlying facts of Horn’s charge had been included, the complaint would have been properly dismissed for failure to state a claim because the “paramour preference” he objected to is not unlawful.

EEOC v. Lee’s Log Cabin, No. 05-0507 (7th Cir.), brief as appellant filed Dec. 15, 2006

EEOC alleged in this ADA action that a teenaged job applicant was denied employment as a waitress because she was HIV-positive. The district court granted summary judgment to defendant, reasoning that EEOC failed to prove that the applicant was substantially limited in a major life activity by having the human immunodeficiency virus (HIV). The court said that EEOC submitted evidence regarding only the impact of acquired immune deficiency syndrome (AIDS) on the applicant’s major life activities, and that having AIDS and being HIV-positive are “not synonymous” for purposes of the ADA. Thus, the district court held that no reasonable jury could conclude from EEOC’s evidence that having HIV substantially limited one or more of the individual’s major life activities. The court also questioned whether the individual was qualified for the job since at the time she applied she had a 10-pound lifting restriction.

On appeal, the Commission argued that the allegation in the complaint that Log Cabin did not hire the applicant because of her HIV status was adequate to embrace a claim that Log Cabin discriminated against her because she had AIDS. Moreover, the complaint was sufficient to meet the requirements of notice pleading, and if it was not, the district court should have permitted an amendment to clarify that the applicant’s HIV infection had progressed to AIDS. Next, because HIV and AIDS are synonymous when a person has AIDS, the evidence in the record was sufficient to demonstrate that Log Cabin had either actual or constructive knowledge of the applicant’s AIDS condition. Summary judgment was also inappropriate because EEOC submitted evidence that clearly established that the individual’s HIV status rose to the level of a disability under the ADA: her HIV infection had advanced to AIDS, which is the last stage of the disease before death, and the HIV infection substantially limited her reproductive ability. Finally, the Commission argued, the applicant’s lack of qualifications for the job did not provide an alternative basis for affirmance because there was disputed evidence about whether heavy lifting was an essential function of the position. [The Seventh Circuit issued a decision on Oct. 6, 2008, (546 F.3d 438) affirming the district court’s decision. A petition for rehearing or rehearing en banc was denied on February 2, 2009, (554 F.3d 1102) with four judges dissenting.]

BCI Coca-Cola v. EEOC, No. 06-341 (S. Ct.), decision below reported at 450 F.3d 476 (10th Cir. 2006), brief as respondent filed March 27, 2007

In June 2006, the Tenth Circuit reversed the district court’s grant of summary judgment to defendant and remanded this Title VII race discrimination case for trial, holding that the racial animus of a supervisor could be imputed to the employer and render it liable for the discharge of a black employee even though the decisionmaker did not harbor any discriminatory motives. The Supreme Court granted BCI’s petition for review of that decision, and the Solicitor General filed a brief advancing the Commission’s position on the proper rule for imputing bias to the employer. On April 12, 2007, before oral argument in the case, BCI withdrew its petition for certiorari.

The government’s brief pointed out that Title VII provides that an employer is liable when it subjects an employee to an adverse action “because of” the individual’s race or other protected trait. Title VII defines “employer” to include an employer’s agents and, consequently, imposes liability on an employer for discriminatory conduct of its agents that results in a tangible employment action. Because BCI’s discharge of the employee was indisputably a tangible employment action, employer liability in this case should be determined with reference to agency principles. When tangible actions are taken, although companies sometimes act through a single agent or decisionmaker, it is likely that important decisions such as hiring, promotion, and job termination more often involve a sequence of events that may be initiated by a company’s managers and supervisors but culminate in a final approval or authorization after several layers of consideration and review. Consistent with this workplace reality, the government argued, liability under Title VII is not limited to only those situations where the individuals who give final approval act with a discriminatory motive. As the 1991 amendments to Title VII made clear, “an unlawful employment practice” occurs “when the complaining party demonstrates that race . . . was a motivating factor for any employment action” (emphasis added). Therefore, the government argued, where an agent of the employer, acting within the scope of employment and out of prohibited bias, engages in conduct that is a motivating factor for an adverse tangible employment action, Title VII places responsibility and, therefore, liability on the employer. Such a result gives effect to both the language of Title VII and its dual purposes to compensate victims of discrimination and deter future discrimination.

5. Punitive Damages Standard

EEOC v. Heartway Corporation, 486 F.3d 1156 (10th Cir. Oct. 26, 2006)

In this “regarded as substantially limited in working” ADA case, a jury awarded $30,000 in backpay and $20,000 in compensatory damages for defendant’s unlawful termination of a nursing home cook who had hepatitis. The district court, however, had refused to give the jury an instruction on punitive damages, and the Commission appealed that ruling while the defendant cross-appealed on liability. The Tenth Circuit affirmed the jury’s liability determination, finding there was a legally sufficient evidentiary basis for the jury to conclude that the employer “treated [the employee’s] hepatitis as significantly restricting her ability to perform either a class of jobs or a broad range of jobs in various classes.” The court ruled that the jury could have concluded that the employer believed the employee was restricted in her ability to do “any kitchen job” as well as “any other job where there is a chance of bleeding and thereby transmitting hepatitis.” The court also reversed the district court’s failure to give a punitive damages instruction, holding it was for a jury to determine whether the employer knew it was a violation of the ADA to fire someone because it regarded the person as disabled, and remanded the case for trial limited to the punitive damages claim.

EEOC v. Stocks, Inc., 228 Fed.Appx. 429 (5th Cir. April 16, 2007)

In this Title VII retaliation case, the jury awarded the discrimination victim $10,000 in compensatory damages, but the court had refused to give a punitive damages instruction and the Commission appealed that ruling. The Commission argued that the jury should have been permitted to consider whether the employer acted with malice or reckless indifference to the employee’s federally protected rights when it reduced her shifts and terminated her in retaliation for complaining of sexual harassment. Under the Supreme Court’s decision in Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999), punitive damages can be awarded where the plaintiff demonstrates that the employer’s illegal actions were committed by a managerial agent acting within the scope of his employment, and that the employer discriminated in the face of a perceived risk that its actions would violate federal law.

The Fifth Circuit agreed with the Commission’s arguments. In an unpublished decision, the court of appeals reversed the district court’s ruling on the punitive damages instruction and remanded the case for a new trial. The court said there was “no dispute that the EEOC had established vicarious liability by showing that the retaliatory actions were taken by management-level employees acting within the scope of their employment.” The court also found that because defendant had no antidiscrimination policies in place, it was not entitled to the good faith exception. The only question remaining then was whether the defendant retaliated “in the face of a perceived risk that the retaliation would violate federal law.” The court concluded that there was evidence demonstrating that the defendant’s decisionmakers were aware of their duty not to retaliate against an employee who brought a sexual harassment complaint, and that they acted in the face of a perceived risk that their actions would violate the statute. The court of appeals thus held that a punitive damages instruction should have been given.

6. Sex Discrimination and Sexual Harassment

EEOC v. Dial Corp., 469 F.3d 735 (8th Cir. Nov. 17, 2006)

The Eighth Circuit affirmed the district court’s ruling that Dial Corporation violated Title VII when it used a physical strength test to screen job applicants for entry-level positions at an Iowa meat-processing plant, resulting in a drastic reduction in the number of women hired. The court of appeals affirmed the district court’s disparate impact ruling and also affirmed the district court’s denial of judgment as a matter of law on the Commission’s intentional discrimination claim, holding that the huge statistical disparity in the rate of hiring women was probative of discrimination under both theories. The Eighth Circuit agreed with the Commission and the district court that Dial had not demonstrated any business necessity for the test, and thus could not defeat the disparate impact challenge to its test. The Eighth Circuit also remanded for further proceedings the district court’s denial of monetary relief to one of the 54 women denied employment.

EEOC v. PVNF, L.L.C., d/b/a Chuck Daggett Motors, 487 F.3d 790 (10th Cir. May 14, 2007)

EEOC presented evidence at trial in this Title VII action that Chuck Daggett Motors (CDM) subjected a female employee to a sex-based hostile work environment and sex-based disparate treatment, and retaliated against her for complaining, causing her constructive discharge. At the close of EEOC’s case-in-chief, the district court granted CDM’s motion for judgment as a matter of law on all of the Commission’s claims. The district court later granted CDM’s motion for attorney’s fees, finding that EEOC’s action was “frivolous, unreasonable, or without foundation” under the Supreme Court’s decision in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978).

The Tenth Circuit reversed and remanded for a new trial on the sexual hostile work environment claim, rejecting CDM’s argument that many of the sex-based comments at issue were either “stray remarks” or “not humiliating.” Specifically, the court of appeals agreed with EEOC that vulgar emails not intended to be seen by the claimant were nevertheless part of her work environment when she discovered them, and that use of the word “bitch” constitutes sex-based harassment because it is a “sexual epithet” that is “intensely degrading.” The court of appeals affirmed judgment for CDM on the Commission’s other claims, but reversed the award of attorney’s fees against the EEOC on those claims, finding that they were not frivolous.

EEOC v. V & J Foods, Inc., No. 07-1009 (7th Cir.), brief as appellant filed May 1, 2007

In this sexual harassment and retaliation case, the district court agreed with EEOC that a 16-year-old female employee at a Burger King restaurant had been subjected to a severe or pervasive sexual hostile work environment by her 35-year-old male supervisor, but granted summary judgment to the defendant on the ground that the company had made out an affirmative defense under the Supreme Court’s decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), because the employee had not availed herself of the company’s complaint procedures. The court granted summary judgment to the defendant on the retaliation claim, finding that the employee was fired because her mother complained to the manager and her mother’s complaint did not constitute protected activity triggering the protections of Title VII’s retaliation provision.

On appeal, the Commission argued that the sexual harassment culminated in the employee’s discharge and that this tangible action against her rendered the Faragher/Ellerth affirmative defense inapplicable. The Commission also argued that summary judgment based on the affirmative defense was improper because V & J’s sexual harassment policy was inadequate and because the victim made numerous and reasonable attempts to stop the harassment. Finally, the Commission argued that summary judgment on the retaliation claim was improper because the victim’s mother’s complaint constituted protected activity and there was a causal connection between the victim’s and her mother’s complaints and the victim’s termination. [The Seventh Circuit issued a decision on November 7, 2007, (507 F.3d 575) reversing the judgment and remanding for trial.]

Also see Vajdl v. Mesabi Academy of Kidspeace, discussed in Section II.D.12 below.

7. Race Discrimination

Brewer v. Cedar Lake Lodge, Inc., 243 Fed.Appx. 980 (6th Cir. July 30, 2007)

In this Title VII suit, Aria Brewer alleged that Cedar Lake Lodge, a facility providing residential care and support services for individuals with mental retardation, refused to promote her because of her race, African American. Brewer’s evidence included testimony that one of the officials involved in the promotion decision suggested that if Cedar Lake offered the position to Brewer, people would think she was selected because she was black. In a brief filed as amicus curiae in support of Brewer, EEOC argued that the district court’s grant of summary judgment to Cedar Lake was improper because Brewer presented sufficient evidence – whether categorized as direct or circumstantial – that race was a factor motivating Cedar Lake’s challenged employment decision. In an unpublished decision, the Sixth Circuit agreed in part with the EEOC’s argument, reversed summary judgment, and remanded the case for trial. The court concluded that the evidence that race came into the decision did not constitute “direct” evidence, but was sufficient for a reasonable jury to find that Cedar Lake’s proffered reasons were pretextual.” Brewer’s evidence, the court said, would support the conclusions that “the subject of race was improperly introduced into the selection process and used as a consideration in . . . [the] hiring decision,” and that the selecting official was “motivated by Brewer’s race, rather than [the selected candidate’s] seniority or experience,” as Cedar Lake asserted.

8. National Origin Discrimination

EEOC v. WC&M Enterprises, 496 F.3d 393 (5th Cir. Aug. 10, 2007)

The Fifth Circuit Court of Appeals reversed the district court’s grant of summary judgment against EEOC in this Title VII action and remanded the case for trial. The court of appeals agreed with the Commission that there was sufficient evidence to support a finding that WC&M violated Title VII by subjecting Mohommed Rafiq to a hostile work environment on the basis of his religion and national origin, and that it was error for the district court to require proof of economic harm as a consequence of the harassment. The court of appeals also rejected the district court’s ruling that EEOC could not make out a claim of national origin discrimination because Rafiq, who is from India, was harassed for being “Arab” and no one ever mentioned India. Relying primarily on EEOC’s guidelines, the court held that “a party is able to establish a discrimination claim based on its own national origin even though the discriminatory acts do not identify the victim’s actual country of origin.” The court noted that EEOC’s guidelines make clear that “‘it is enough to show that the complainant was treated differently because of his foreign accent, appearance or physical characteristics.’” (quoting Guidelines on Discrimination Because of National Origin, 45 Fed. Reg. 85,632-33 (Dec. 29, 1980)).
EEOC v. Peabody Western Coal Company, No. 06-17261 (9th Cir.), brief as appellant filed July 25, 2007

The Commission alleged that Peabody Western Coal Company discriminated based on national origin in violation of Title VII when it refused to hire two non-Navajo Native Americans pursuant to a provision in its mining leases with the Navajo tribe requiring it to prefer Navajos. The district court dismissed EEOC’s lawsuit on the grounds that (1) in naming the Navajo Nation as a necessary party under Rule 19 of the Federal Rules of Civil Procedure, EEOC improperly sought affirmative relief against the Nation, which as an Indian tribe is exempt from Title VII’s definition of “employer”; (2) the Secretary of Interior should, but cannot, be joined as an indispensable party under Rule 19; and (3) the Navajo-Hopi Rehabilitation Act of 1950 expressly authorizes the Navajo hiring preference in the two leases at issue.

The Commission argued on appeal that the district court erred in dismissing EEOC’s lawsuit under the mistaken belief that the suit sought affirmative relief against the Navajo Nation. The district court also erred in concluding that the Navajo-Hopi Rehabilitation Act authorized Peabody Coal to give hiring preferences to Navajos. The Rehabilitation Act predates Title VII by some 14 years and, by its own terms, applies only to construction projects funded by the Act and intended to be completed by approximately 1960. Finally, EEOC argued that the district court erred in ruling that the Secretary of Interior is a necessary party to the lawsuit. The Secretary’s interest is only in protecting the economic interests of the Navajo Nation, something the Nation is wholly capable of doing in this instance as a Rule 19 defendant. In addition, the court abused its discretion in dismissing the suit on the ground that the Secretary is indispensable; even if the Secretary has some level of interest in this lawsuit based on his approval of the leases, that interest is not so compelling that EEOC’s enforcement action should be dismissed.

9. Religious Accommodation

EEOC v. Bridgestone American Holdings, Inc., and Firestone Fibers & Textiles, No. 06-2203 (4th Cir.), brief as appellant filed Feb. 1, 2007

The Commission brought suit alleging that defendants failed to accommodate charging party David Wise’s observance of his Sabbath, resulting in his termination. Wise, a member of the Living Church of God, a Christian faith, has a sincere religious belief that he cannot work on the Sabbath, which extends from sundown Friday to sundown Saturday. The district court granted summary judgment to defendants, concluding that (1) Bridgestone Americas Holdings, Inc. (BAH), the parent company of Firestone, was not a proper defendant in the suit because its name was not on the charge of discrimination, and (2) Firestone did provide a reasonable accommodation of Wise’s religious beliefs, and was not required to provide an accommodation that “completely eliminated” the conflict between his religious practice, and his job schedule.

On appeal, the Commission argued that its evidence was more than adequate, when viewed under proper summary judgment principles and the correct legal standards, to support a reasonable finder of fact’s conclusion that BAH was a proper party to the suit. BAH’s notice of and participation in the Commission’s administrative processing of the charge, including conciliation, was sufficient to meet the judicially-recognized exception to Title VII’s charge-naming requirement for defendants. The district court also erred in holding that an employer is not required, short of incurring undue hardship, to completely resolve an employee’s religious conflict with a work requirement in order to meet its reasonable accommodation obligations under Title VII. [The Fourth Circuit issued a decision affirming summary judgment on February11, 2008 (515 F.3d 307).]

10. Disability Discrimination

EEOC v. Wal-Mart Stores, 477 F.3d 561 (8th Cir. Feb. 13, 2007)

The Eighth Circuit reversed summary judgment for the defendant in this suit alleging that Wal-Mart violated the Americans with Disabilities Act by refusing to hire Stephen Bradley, who has cerebral palsy, as a greeter or cashier. The court of appeals held that the Commission’s evidence adequately established that Bradley was qualified, with reasonable accommodation, to perform the essential functions of these jobs because the Commission needed only to make a “facial showing” that a reasonable accommodation was possible, and the Commission’s expert’s evidence that Bradley could use a sit-to-stand wheelchair, a narrow wheelchair, a handscanner, or an electric scooter met that standard. The court of appeals also concluded that there was a triable question on whether Wal-Mart’s proffered reasons for rejecting Bradley were pretexts for discrimination, stating that the fact-finder must look at the reasons that actually motivated the hiring decision, and that here the jury could find that Wal-Mart’s asserted reasons were merely a post-hoc rationalization. The appellate court also held that where, as here, the employer contends that an individual would pose a “direct threat” to safety or health in the workplace, the employer bears the burden of proving this affirmative defense, and found that Wal-Mart failed to carry that burden because it presented no evidence that a reasonable accommodation would not remove the perceived risk to Bradley’s safety.

Holly v. Clairson Industries, 492 F.3d 1247 (11th Cir. July 19, 2007)

Plaintiff Tommy Holly alleged that Clairson Industries violated the ADA by failing to provide him a reasonable accommodation for his disability and by discharging him for violating the company’s “no fault” punctuality policy. Holly, a paraplegic who uses a wheelchair, was frequently late to work at Clairson. EEOC filed a brief as amicus curiae on Holly’s appeal, arguing that the district court erred in ruling as a matter of law that punctuality was an essential function of Holly’s job and that no reasonable accommodation would have enabled Holly to perform his job duties. EEOC also argued that the district court erred in requiring Holly to show disparate treatment – i.e., that Clairson applied its attendance policy in a discriminatory manner – to prevail, since the failure to provide reasonable accommodation, without more, is unlawful discrimination under the ADA.

The Eleventh Circuit agreed with EEOC and ruled there was a genuine issue as to whether “strict punctuality” was essential to Holly’s mold polisher position. The court noted that essential functions “are the fundamental job duties of a position that an individual with a disability is actually required to perform.” The court found that the district court had erred in relying almost exclusively on Clairson’s assessment in determining that strict punctuality was an essential function of Holly’s job. The court said that the employer’s view on the question “is entitled to substantial weight in the calculus, . . . [but] alone may not be conclusive.” The Eleventh Circuit also held that an employer’s failure to reasonably accommodate a disabled individual itself constitutes discrimination under the ADA: “There is no additional burden on Holly to show that Clairson enforced its punctuality policy in a discriminatory manner by granting leniency under the policy to Holly’s non-disabled co-workers while denying Holly the same leniency.”

EEOC v. E.I. Du Pont De Nemours, 480 F.3d 724 (5th Cir. March 1, 2007)

Following a trial in this ADA case, the jury awarded charging party Laura Barrios $91,000 in backpay, $200,000 in frontpay, and $300,000 in punitive damages. The defendant appealed, arguing that (1) the district court erred in holding as a matter of law that the company regarded Barrios as substantially limited in walking; (2) there was insufficient evidence to support the jury’s determination that Barrios was qualified to perform her job and was not a direct threat; and (3) the awards of backpay, frontpay, and punitive damages were improper. The Fifth Circuit affirmed the district court’s ruling that the company regarded Barrios as disabled; upheld the jury’s implicit determination that Barrios was qualified; and affirmed the backpay and punitive damages awards but not the frontpay award.

EEOC v. Convergys Customer Management Group, 491 F.3d 790 (8th Cir. July 6, 2007)

A jury found that Convergys violated the ADA by denying Ahmet Demirelli, who has brittle bone disease and uses a wheelchair, a longer lunch break as a reasonable accommodation for his disability, and then firing him for being late. Convergys appealed. The Commission argued in the Eighth Circuit that there was no legal basis for Convergys’s contention that an individual who can perform essential job functions with accommodation is rendered unqualified if he does not ask for the right accommodation. The question whether Demirelli adequately informed Convergys of his need for an accommodation goes to whether the company’s duty to accommodate was triggered, not to whether Demirelli was qualified. The Commission also argued that the district court’s jury instruction that an employee is required to notify the employer only of the general need for an accommodation was an accurate statement of the law. Although an employee must provide enough information for the employer to determine the type of accommodation needed, or whether one is possible, it was undisputed that Convergys knew that Demirelli needed an accommodation and an effective accommodation would have been obvious to any reasonable employer.

The court of appeals held, inter alia, that the district court properly ruled that an employer’s duty to reasonably accommodate an employee’s disability is triggered where the employee makes the employer “aware of the need for an accommodation,” even though he does not request a specific accommodation. In addition, the Eighth Circuit held that even if punctuality were an essential function of Demirelli’s job, Convergys could still be required to give him a modified work schedule as an accommodation where the new schedule “merely create[s] a different time” for the employee to be punctual. The court rejected Convergys’ argument that extending Demirelli’s break time by 15 minutes would eliminate the company’s punctuality requirement.

EEOC v. Mothers Work, Inc., 233 Fed.Appx. 395 (5th Cir. June 21, 2007)

In an unpublished per curiam decision, the Fifth Circuit affirmed an award of summary judgment against EEOC in this ADA suit. The Fifth Circuit agreed with the district court that EEOC had not raised a genuine issue of material fact regarding whether the claimant was substantially limited in one or more major life activities by bipolar disorder. (EEOC had argued that the claimant was substantially limited in interacting with others, thinking, and caring for herself.) The court did not reach EEOC’s argument that discrimination based on the symptoms of bipolar disorder is the same as discrimination based on the disability itself. The court also did not reach EEOC’s argument that an employer cannot shield itself from liability by intentionally remaining ignorant about an employee’s disability. The court, however, upheld the district court’s denial of attorney’s fees and certain costs.

Bates v. UPS, 465 F.3d 1069 (9th Cir. Oct. 10, 2006)

United Parcel Service (UPS) appealed the district court’s judgment that UPS violated the ADA by applying the Department of Transportation hearing standard to driver positions not covered by the standard. EEOC filed a brief as amicus curiae in support of the plaintiffs. The Ninth Circuit Court of Appeals held that when “plaintiffs challenge an employer’s use of a safety-based qualification standard, they need not, independently of that challenge, establish that they can perform the essential function of doing the job safely.” Instead, the court said, they are required to show only that they are “qualified” in the sense that they satisfy prerequisites for the position, including safety-related prerequisites not connected to the challenged criterion. Further, the court held, once plaintiffs have made these showings and further shown that the qualification standard screens out or tends to screen out an individual with a disability or class of individuals with disabilities, “the burden shifts to the defendant to establish that the challenged qualifications standard is job-related and consistent with business necessity.” Since plaintiffs here satisfied their burden and defendant offered no persuasive basis for its categorical exclusion, the district court did not clearly err in enjoining use of UPS’s present policy and requiring the company to individually assess deaf applicants’ driving ability.

Bates v. UPS, 485 F.3d 1053 (9th Cir. April 24, 2007) (vacating 465 F.3d 1069, and granting reh’g en banc), brief as amicus curiae filed June 5, 2007

The Commission filed a brief as amicus curiae on rehearing to respond to the Ninth Circuit’s question about its prior decision in Morton v. UPS, 272 F.3d 1249 (9th Cir. 2001), and the standard adopted in that case for proving direct threat and business necessity. The Commission noted initially that where an employer seeks to justify a blanket exclusion policy based on risk rather than ability, EEOC’s longstanding position is that the appropriate defense is direct threat. If the court rejects that position, the Commission argued, it should hold that the appropriate defense is business necessity, defined to require proof that the challenged job requirement accurately measures the individual’s ability to do an essential function. Where safety is the asserted justification, the court should consider the level of risk the employer deems acceptable for discrete groups of nondisabled applicants. [The Ninth Circuit issued an en banc decision on Dec. 28, 2007, (511 F.3d 974) vacating the district court’s injunction, reversing in part, and remanding for further proceedings.]

Jones v. United Parcel Service, 502 F.3d 1176 (10th Cir. Sept. 13, 2007)

The Tenth Circuit affirmed summary judgment against Keith Jones on his claims that United Parcel Service (UPS) violated the ADA by denying his requests to return to work after recovery from an on-the-job injury, and by retaliating against him. The court of appeals agreed with EEOC’s argument as amicus curiae that the district court had erred in failing to consider evidence that UPS had acted pursuant to a policy requiring injured employees to provide an unrestricted medical release to return to work from medical leave. The court found, however, that Jones had not presented sufficient evidence that UPS regarded him as having a disability under the ADA, and had failed to demonstrate the requisite causal nexus between any protected activity and the company’s refusal to reinstate him.

Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. May 30, 2007), brief as amicus curiae in support of rehearing filed June 27, 2007

A panel of the Eighth Circuit decided in this ADA reassignment case that employers do not have to reassign a qualified disabled employee to a vacant position if doing so would violate a nondiscriminatory policy of selecting the most qualified candidate. The plaintiff, Huber, filed a petition for rehearing and suggestion for rehearing en banc, and the Commission filed an amicus brief in support of that petition. The Commission’s brief explained EEOC’s regulation and interpretive guidance on the reassignment obligation, and advanced two principal arguments: (1) that the regulation and the EEOC’s interpretation were “controlling” under the Supreme Court’s recent decision in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007); and (2) that the Eighth Circuit panel’s rationale for rejecting the reassignment claim—that it would amount to an unlawful “mandatory preference”—was considered and rejected by the Supreme Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Although three judges voted to grant rehearing, the petition was denied on July 18, 2007 (493 F.3d 1002). [The Supreme Court granted a petition for writ of certiorari on December 7, 2007, but the case settled and the petition was dismissed on January 14, 2008.]

11. Age Discrimination

EEOC v. City of Independence, 471 F.3d 891 (8th Cir. Dec. 22, 2006)

The Eighth Circuit Court of Appeals reversed the district court’s decision granting summary judgment to the defendant on the Commission’s claim that the defendant violated the ADEA when it excluded Richard Hopkins and other employees who were age 60 or older from its leave donation program. The leave donation program was not available to employees eligible for regular retirement, which was determined by age (60; 55 for police and firefighters) and years of services (5). The court of appeals found the evidence that several city administrators told Hopkins he could not receive donated leave because he was over 60 to be sufficient to preclude summary judgment as this constituted direct evidence of age discrimination and demonstrated that age had a determinative influence on the decision to deny him leave. The Eighth Circuit, however, affirmed the district court’s grant of summary judgment to the defendant on the Commission’s claim that Hopkins was constructively discharged on the basis of age.

Sprint/United Management Co. v. Mendelsohn, No. 06-1221 (S. Ct.), cert. granted, 127 S. Ct. 2937 (2007), decision below reported at 466 F.3d 1223 (10th Cir. 2006), brief as amicus curiae filed August 2007

The Supreme Court granted certiorari to determine whether, and under what circumstances, district courts are required to admit anecdotal evidence of discrimination against nonparty employees in support of a plaintiff’s claim of discrimination. More specifically, the question was whether such evidence is admissible if the nonparties work for different supervisors than the plaintiff.

Mendelsohn challenged under the ADEA her discharge in a companywide reduction-in-force (RIF) and sought to introduce testimony from five other employees terminated during the same RIF and time period, who would have presented evidence that their discharges were motivated by age discrimination. The district court excluded this evidence based on its reading of a Tenth Circuit decision in Aramburu v. The Boeing Co., 112 F.3d 1398 (10th Cir. 1997), which stated that a plaintiff in a disparate discipline case must compare his treatment to that of “similarly situated” individuals, defined in part as having the same supervisor. Mendelsohn lost and appealed. The Tenth Circuit reversed and remanded for a new trial, holding that the “same supervisor rule” does not apply when a plaintiff is challenging a companywide RIF. The dissent contended that the majority had created a per se rule that anecdotal evidence is always admissible, and would have held that the admission of testimony of other employees not similarly situated should be limited to cases in which the plaintiff has “independent” evidence of a companywide policy of discrimination.

In an amicus brief filed by the Solicitor General, the Commission argued in the Supreme Court that “other supervisor” evidence is sometimes, but not always, admissible in an ADEA disparate treatment case because it may generally be relevant under Rule 401 of the Federal Rules of Evidence, especially if the theory is that the plaintiff’s supervisor acted in conformity with a companywide plan to reduce the age of its workforce. The brief argued that Evidence Rule 403 would permit exclusion of such evidence if it would confuse the jury or unfairly prejudice the defendant, especially where its probative value is marginal. The decision about admission of the evidence should be left to the district court on remand. [The Supreme Court issued a decision on February 26, 2008, (128 S. Ct. 1140) agreeing with the views of the government.]

EEOC v. Jefferson County Sheriff’s Department, Kentucky Retirement Systems, and Commonwealth of Kentucky, 467 F.3d 371 (6th Cir. Oct. 31, 2006) (en banc)

The Sixth Circuit, ruling en banc, reversed summary judgment and remanded for further proceedings EEOC’s claim that the employee benefit plan offered by Kentucky Retirement Systems (KRS) was facially discriminatory under the ADEA because it denied or paid fewer disability retirement benefits to older workers. The court concluded that EEOC established a prima facie violation of the ADEA, and held that “when an employment policy or benefit plan such as the KRS plan is facially discriminatory, a plaintiff challenging that policy does not need additional proof of discriminatory animus in order to establish a prima facie disparate-treatment claim.” The court further determined that its previous decision in Lyon v. Ohio Education Association and Professional Staff Union, 53 F.3d 135 (6th Cir. 1995), had adopted a standard for a disparate-treatment age discrimination claim that was “inconsistent with Supreme Court authority as well as the rulings of several . . . sister circuits in cases involving the similar role of age in employee-benefit plans,” and overruled Lyon in part.

KRS filed a petition for certiorari review in the Supreme Court. In opposing certiorari, the Commission argued that the decision of the en banc court of appeals that petitioners’ employee benefit plan facially discriminates against older workers who, but for their age, would be eligible for disability retirement or would receive a larger disability benefit payment, was consistent with the decisions of the Supreme Court governing facial discrimination in employment; comported with the language, purpose, and history of the ADEA, as amended by the OWBPA; and, by partially overruling Lyon, eliminated the only disagreement among the circuits as to whether age-based distinctions in benefits provided to older workers pursuant to the terms of an employee benefit plan are facially discriminatory and establish a prima facie case under the ADEA. For those reasons, the Commission contended, the petition should be denied. [The Supreme Court granted certiorari on September 25, 2007, 128 S. Ct. 36, and issued a decision in favor of KRS on June 19, 2008, 128 S. Ct. 2361.]

EEOC v. Allstate Ins. Co., No. 07-1559 (8th Cir.), brief as appellee filed July 18, 2007

In June 2000, Allstate terminated all of its employee-agents and began selling its insurance products exclusively through independent contractors. (The employee-agents had the option of becoming independent contractors.) In September 2000, Allstate implemented a policy under which the 6,300 former employee-agents were ineligible for up to 2 years for rehire into any position with the company. The policy applied only to the former employee-agents. The Commission alleged that the moratorium on rehiring terminated agents violated the ADEA­ because it had a disparate impact based on age and was not based on a reasonable factor other than age. The district court granted the EEOC’s motion for partial summary judgment, ruling that the case was cognizable under a disparate impact theory and that EEOC’s statistical evidence established that the policy had a disparate impact on employees age 40 and older. The court denied the defendant’s motion for summary judgment on the question of whether the hiring moratorium was based on reasonable factors other than age, holding that this issue should be decided by a jury. The district court certified the following questions for interlocutory appeal pursuant to 28 U.S.C. § 1292(b): (1) whether a claim that a policy has a disparate impact on former employees based on age is cognizable under section4(a)(2) of the ADEA; and (2) whether the method of determining disparate impact used by the Commission and adopted by the district court is inadequate “as a matter of law” to establish a disparate impact.

On appeal, the Commission argued that Allstate’s policy restricting the rehire of former employee-agents could be challenged under section 4(a)(2) of the ADEA because the former employee-agents were classified as ineligible for rehire precisely because they had been Allstate employees. The Commission also argued that evidence that the employee-agents who were classified as ineligible for rehire were significantly older than Allstate’s other employees who were not subject to a restriction on rehire after termination established that the policy had a disparate impact on the basis of age.
[The Eighth Circuit issued a decision on June 10, 2008, (528 F.3d 1042) affirming the district court’s decision.]

Also see AARP v. EEOC discussed in Section II.D.3 above.

12. Retaliation

Vajdl v. Mesabi Academy of Kidspeace, 484 F.3d 546 (8th Cir. April 25, 2007)

The Eighth Circuit affirmed summary judgment for defendant in this suit under Title VII alleging that the plaintiff was subjected to a sexually hostile work environment and retaliated against for complaining about the harassment. Lisa Vajdl was hired as a “youth care worker” at a residential facility for male youths convicted of violent crimes and was assigned to the unit for violent sex offenders. While there, she was harassed by three of her male coworkers; the conduct included ogling, suggestive comments, touching, and requests for dates. The day after she complained to her supervisor about the harassment, she received a written warning, purportedly because of newly discovered performance problems, and as corrective action was required to obtain permission from her shift supervisor before sanctioning any inmate. The district court granted summary judgment to defendant, holding that the sexual conduct, including touching, was not sufficiently severe or pervasive to constitute actionable harassment, and holding that the retaliatory restriction on Vajdl’s authority to discipline did not cause any tangible effect on her employment. The Commission filed a brief as amicus curiae arguing that a jury could find the harassment sufficiently severe or pervasive; that the district court improperly failed to consider the social context— a facility housing violent sex offenders -- in determining the impact of the harassment on the plaintiff; and that under the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the loss of authority to discipline could dissuade a reasonable person from complaining about discrimination.

Contrary to the Commission’s arguments, the Eighth Circuit rejected both of plaintiff’s claims. On the sexual harassment claim, the court found that the alleged conduct consisted mainly of flirting or requests for dates and thus was not severe or pervasive enough to “clear the high threshold” required by the circuit for actionable harassment. On the retaliation claim, the court said Vajdl’s loss of authority to discipline was “largely a subjective harm” and would not have dissuaded a reasonable person from complaining or supporting a complaint of discrimination.

EEOC v. SunDance Rehabilitation Corp., 466 F.3d 490 (6th Cir. Oct. 24, 2006)

EEOC alleged that SunDance violated the antiretaliation provisions of the EPA, Title VII, the ADEA, and the ADA by refusing to provide severance benefits to employees terminated in a reduction-in-force unless the employees signed a release that included a waiver of their right to file an EEOC charge. A divided panel of the Sixth Circuit ruled that a severance policy that specifically conditions the payment of benefits on a promise not to file a charge (and allows the employer to sue any signatory who takes the money and then does file a charge) is not facially retaliatory under EEOC’s statutes. The majority ruled that the “mere offering” of a severance agreement, “without more,” could not be retaliatory – especially since the employees offered it were never entitled to severance pay in the first place.

EEOC v. SunDance Rehabilitation Corp., No. 04-4178 (6th Cir.), petition for rehearing or rehearing en banc filed December 7, 2006

In support of rehearing, the Commission argued that the panel decision contravened the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), which broadly and practically construed the antiretaliation provisions to prohibit any employer action that is likely to deter a reasonable employee from engaging in protected activity. The Commission argued that even though employees were not independently entitled to severance benefits, once the employer decided to offer severance it had to do so on a nonretaliatory basis (i.e., without regard to whether the putative recipients had engaged or would engage in any protected activity). Here, the Commission argued, the employer did the opposite by specifically conditioning severance on a promise not to come to or cooperate with the EEOC. The severance agreement was specifically designed to chill employees from filing EEOC charges or participating in EEOC proceedings and thus represented precisely the kind of retaliatory act the Supreme Court proscribed in White. The petition for rehearing was denied on March 13, 2007.

E. Litigation in Federal District Courts

In this section of the Annual Report, we discuss significant trial court resolutions during the fiscal year. The cases are organized generally by the basis (e.g., race, sex) of the discriminatory conduct, but suits often involve multiple bases and issues, and sometimes statutes. Also, although there is a separate subsection below on retaliation resolutions, more than a third of the suits filed and resolved during the year contained retaliation claims, and such claims are noted in a number of the cases discussed under other bases.

1. Race Discrimination

The lawsuits described below, many of which involve direct expressions of racial animus, are representative of the racially discriminatory conduct regularly addressed in EEOC suits.

a. Hiring

EEOC v. Ron Hoover Companies of Boerne, Inc., d/b/a Ron Hoover RV (W.D. Tex. Sept. 28, 2007) presented claims that a seller of RVs and motorboats in Boerne, Texas refused to hire a black applicant with substantial experience selling RVs because of his race. At trial two former salespersons testified that the general manager said she would not hire black applicants as salespersons because they would not be able to relate well to the employer’s predominately white customers. EEOC also presented evidence that the employer hired less qualified salespersons shortly after the black applicant was rejected. The employer claimed that the general manager did not know the applicant’s race and also denied that the general manager made the racial statements attributed to her. The jury returned a verdict for EEOC, awarding the applicant $42,000 in backpay.

In EEOC v. Sunrise Hospitality BC II, LLC d/b/a Microtel Inns & Suites (W.D. La. Mar. 27, 2007), EEOC alleged that a Bossier City, Louisiana motel terminated and refused to rehire a black front desk clerk because of her race, and refused to hire blacks for front desk positions. A former general manager and a former vice president said that the motel’s owners made numerous race-based comments about black employees, including that there were too many blacks working the front desk. The consent decree resolving the case provided $140,000 to four black claimants denied front desk positions. The motel sold all of its assets, but portions of the decree become effective if the motel or a legal successor commences operations in the United States during the decree’s 3-year term.

EEOC alleged in EEOC v. Michigan Seamless Tube (E.D. Mich. June 5, 2007) that a steel tubing manufacturer refused to hire African American applicants into production jobs at a South Lyon, Michigan facility it purchased. The defendant hired 52 former employees of the prior company, all of whom were white. None of the African American former employees were rehired, even though many of them had substantially more relevant experience than whites hired who had not worked for the prior company. A 3-year consent decree provided for $500,000 to be distributed to 20 African American applicants, including 9 former employees. The employer will recruit African Americans for employment by advertising in a variety of sources, including publications of interest to African Americans and websites of Detroit-area trade schools.

b. Discipline

Cases of unfair treatment based on race often also involve claims of retaliation when the employee complains about the discriminatory conduct. In EEOC v. Storage Technology Corp. (E.D. Pa. July 2, 2007), EEOC alleged that a designer and manufacturer of computer hardware products disciplined a black sales representative because of his race, and then terminated him for complaining of race discrimination. The day after a white district sales manager placed the sales representative on a Plan of Action (POA) for not meeting his sales goals, the employee wrote to the human resources manager complaining about race discrimination and providing examples of how he was being treated differently than white sales representatives, including being assigned a higher sales quota for a smaller territory. The employer concluded that no discrimination had occurred, and before the POA was completed, discharged the black sales representative for failing to meet sales goals. The 3-year consent decree provided $200,000 in monetary relief and prohibits race discrimination.

EEOC v. Bristol-Myers Squibb Co. (D.N.J. Dec. 6, 2006) involved a claim that a health and personal care company subjected an African American sales incentives manager to race-based disparate discipline and retaliatory termination. After a cursory investigation into inflated sales records prepared by sales representatives, defendant issued a written warning to the sales incentive manager, the only black employee in that position at defendant’s Plainsboro, New Jersey location, accusing her of advising sales representatives to falsify (inflate) their sales reports. The employee’s attorney sent defendant a letter denying any wrongdoing, and implying that the discipline was racially motivated. Shortly after receiving the letter, defendant fired the African American sales incentives manager for providing her attorney with proprietary information, which the manager denied doing. The consent decree resolving the case provided $90,350 to the employee, prohibits race discrimination and retaliation, and requires the employer to maintain a diversity site and an affinity group for African American employees on its Intranet.

c. Pay

Even where pay discrimination does not involve a lot of money in an absolute sense, the dignitary injury to the affected individuals can be substantial. In EEOC v. Williamhouse of Pennsylvania, L.L.C. (W.D. Pa. Oct. 13, 2006), EEOC alleged that an envelope-making company paid three African American shift supervisors less than it paid white shift supervisors. After acquiring the Scottsdale, Pennsylvania facility where the African American shift supervisors worked, defendant hired substantially all of the former owner’s employees into their same jobs at their same pay rates. An African American shift supervisor complained to defendant about pay discrepancies between black and white supervisors, but no corrective action was taken. Under a 2-year consent decree, the three African American shift supervisors shared $72,500 in monetary relief, and the shift supervisor who was still employed received a salary increase. The decree prohibits defendant from race discrimination and retaliation.

EEOC v. Stock Building Supply f/k/a Carolina Holdings, Inc., d/b/a Stuart Lumber Co. (M.D. Fla. Mar. 19, 2007) presented a claim that an operator of over 200 building supply and material stores denied a black machine operator a salary increase because of his race. The employee received several promotions during his first 2 years with defendant, but following his promotion to a supervisory position, he did not receive the pay increase he was promised, despite continually raising the matter with upper management. The employee received $60,000 in monetary relief.

d. Discharge/Layoff

In EEOC v. Great Atlantic & Pacific Tea Co. (D. Md. July 23, 2007), the Commission litigated a claim that a grocery and drug store chain discharged a white maintenance engineer because of his race. At trial, EEOC presented evidence that the claimant was demoted from his maintenance manager position and then discharged by a new black vice president of operations who had been brought in to “diversify” the organization. As part of that effort, the vice president marginalized white managers and fired the claimant. A former plant manager testified that the vice president had told her he was going to get rid of the “white boys.” The jury awarded the claimant $24,200 in compensatory damages. The court awarded the claimant, who intervened, $73,133.32 in backpay and $60,036 in attorney’s fees. The court also enjoined defendant from race discrimination and ordered it to provide training for managers and supervisors to enable them to work with employees in a nondiscriminatory manner.

The Commission alleged in EEOC v. Allstate Ins. Co. (E.D. Pa. Feb. 9, 2007) that defendant subjected a black customer service representative to discriminatory terms and conditions of employment and discharged her because of her race. When defendant acquired the insurance company where the customer service representative had worked for 13 years, she came under the supervision of a white manager who excessively scrutinized and criticized her work and told her she was “too ethnic” and “too animated.” The manager also told her not to talk at meetings because she was “too loud” and “too scary.” When the employee complained to defendant’s human resources manager that she was being subjected to racial discrimination, the HR manager responded that he was “tired of black employees thinking he would agree with them,” and failed to investigate her complaints. Defendant fired the black customer service representative for what it claimed were performance problems. The case was resolved in a consent decree providing $115,000 to the employee.

e. Race-Based Harassment

Offensive conduct based on race, color, sex, religion, national origin, disability, or age is unlawful when it is so severe or pervasive that it alters the conditions of the victim’s employment and creates an abusive working environment. Racial harassment can involve racially derogatory statements, racial slurs, and racist symbols and graffiti, as well as the imposition of harsher terms and conditions of employment on individuals of a particular race. Many of EEOC’s racial harassment lawsuits also include claims that employees were retaliated against for complaining of the harassment.

In EEOC v. Tyson Foods, Inc. (N.D. Ala. Nov. 7, 2006), the alleged racial harassment of black maintenance employees at an Alabama chicken processing plant included a “Whites Only” bathroom sign and a padlock on the bathroom door to which only white employees were given keys. EEOC also alleged that two employees were suspended in retaliation for complaining about racial conditions at the plant. The 3-year consent decree provided $871,000 in monetary damages to 13 individuals, and prohibits race discrimination and retaliation. The employer will develop and disseminate policies against discrimination, harassment, and retaliation, including a complaint process, and will develop and provide all employees with equal employment opportunity training. A consent decree coordinator will be responsible for ensuring compliance with the affirmative provisions of the decree and will monitor employee discipline to ensure it is imposed nondiscriminatorily. The employer must meet with employees to advise them of the injunctive and affirmative relief provisions in the decree.

The Commission alleged in EEOC v. AK Steel Corp. (W.D. Pa. Jan. 30, 2007) that a steel producer with locations in four states subjected a class of African American employees at its Butler, Pennsylvania facility to a racially hostile work environment. Employees described years of racially derogatory graffiti (including swastikas, the epithet “nigger,” and references to “KKK”) and racial comments (referring to blacks as “niggers” and “monkeys”). The settlement provided $550,000 to eight African American employees. Defendant will train all employees on its policy prohibiting racial harassment and will provide EEOC with all reports of racial harassment at the facility and defendant’s responses.

In EEOC v. Pemco Aeroplex, Inc. (N.D. Ala. April 16, 2007), EEOC alleged that a company that refits and maintains aircraft subjected black employees at its Birmingham, Alabama facility to race-based harassment, which included racial graffiti and slurs on restroom and other walls and rebel flags or hangman’s nooses in several locations, all in plain view of management officials. In addition, managers and coworkers directed racial slurs at black employees. Black employees also complained that they received less favorable treatment than white employees in job assignments, training, transfers, and discipline. The case was resolved on remand from the Commission’s appeal of summary judgment for the employer. Under a 3-year consent decree, the employer will pay $390,000 to current and former black employees at the subject facility. The decree enjoins defendant from racial harassment and retaliation. Defendant must survey employees annually on racial graffiti and discrimination at the facility; establish a procedure to receive complaints of racial discrimination and harassment; and report to EEOC on survey results and complaint investigations.

EEOC v. Target Corp. (E.D. Pa. Feb. 2, 2007) presented claims that a Minneapolis-based department store chain subjected a senior merchant and other black employees in its Springfield, Pennsylvania store to a hostile work environment and discriminatory terms and conditions of employment based on race, and constructively discharged the black senior merchant in retaliation for opposing the harassment. Several months after the senior merchant started working for the employer, the store manager began making racially stereotyped and insensitive comments and treating the senior merchant in an abusive and condescending manner. The senior merchant made a series of complaints about the manager’s conduct to district managers and human resources staff, which resulted in escalation of the manager’s abusive conduct. After a district manager denied several of the black senior merchant’s transfer requests, he was forced to resign his employment. Other black employees were subjected to verbal abuse and were denied promotions and staffing support. The 2-year consent decree provides $775,000 to 14 individuals and enjoins defendant from engaging in discrimination on the basis of race at the Springfield store.

EEOC v. CMR Partners, LLP d/b/a Ponderosa Steakhouse (S.D. Ind. June 27, 2007) alleged that the owner/operator of 11 restaurants subjected a server/trainer at its Anderson, Indiana restaurant to a hostile work environment because she is white and has biracial children. Two of the restaurant’s regular customers – friends of the general manager– made frequent racially hostile and derogatory comments about the white server and her children. Although the server and her coworkers complained to management, no corrective action was taken. About a month after the server filed a discrimination charge, defendant fired the GM. Defendant banned the customers who had made the comments from the restaurant because of a confrontation they had with another customer. Defendant will pay the server $75,000 and provided her with a letter of reference containing a positive description of her job performance, dependability, and ability to work as a team player.

A number of racial harassment claims brought by EEOC in FY 2007 involved an individual who was the only black employee at the premises or in the job category at issue. Each of the following cases presented claims of race-based harassment and retaliation for complaining of the harassment. EEOC v. Roswil, Inc., d/b/a Ramey’s Price Cutter, & RPCS, Inc. (W.D. Mo. Sept. 19, 2007) (consent decree paid assistant grocery store manager $100,000, and requires notice to employees of 30-store chain that includes a statement from the CEO of purchaser of the chain that race discrimination and retaliation will not be tolerated); EEOC v. CMH Homes, Inc. (M.D. La. April 20, 2007) (prefabricated home salesperson received $45,000 and employer is prohibited from rehiring or providing a positive job reference for alleged harasser); EEOC v. Wal-Mart Stores, Inc. (D. Idaho Feb. 5, 2007) (night maintenance supervisor of Idaho store received $125,000); EEOC v. East Valley Diagnostic Imaging, L.L.C. (D. Ariz. Mar. 13, 2007) (billing clerk at medical imaging service received $150,000, a letter of apology, and a positive written job reference; defendant is enjoined from racial harassment and retaliation).

2. Sex Discrimination

a. Hiring

The EEOC litigated a number of cases challenging the exclusion of women from traditionally male bastions of employment.

In EEOC v. Hill Brothers Construction & Engineering Co., Inc. (N.D. Miss. Nov. 15, 2006), the Commission alleged that defendant failed to recall a female eighteen-wheeler truck driver from layoff while recalling less senior male truck drivers. A supervisor told the female truck driver that male drivers could share hotel rooms, and that he did not want to pay extra for a hotel room for her. Following a 2-day trial, the jury returned a verdict for EEOC and awarded the claimant $10,400 in backpay.

EEOC v. Jeff Wyler Eastgate, Inc., f/k/a Jeff Wyler Chevrolet, Inc. (S.D. Ohio April 5, 2007) involved claims that 10 related automobile dealerships failed to hire women into sales positions because of their sex. According to former managers and employees at one of the dealerships, upper management decided not to hire women into sales positions following the settlement of a sexual harassment claim by a female salesperson. Under the 5-year consent decree resolving the case, 39 rejected female applicants received a total of $2.3 million. The decree enjoins defendants from sex discrimination in hiring; requires that six of the rejected applicants be offered sales positions; and requires reporting on applicants and hires for sales positions, including for the first 3 years brief explanations for why female applicants were rejected.

In EEOC v. Parker Palm Springs Hotel (C.D. Cal. July 6, 2007), EEOC alleged that a resort hotel refused to hire women as servers in its upscale restaurant. When the hotel decided to cease offering dinner service in its other restaurant, a supervisor told one of the female servers in the restaurant that she would have to work in the lounge as a cocktail server or bartender because the hotel was hiring only men as servers in its upscale restaurant. A 2-year consent decree provided $70,000 to three women denied server positions in the upscale restaurant. For the first year of the decree, the hotel is to strive for a hiring rate of 20% women in server positions in its restaurants, to increase to 40% for the second year. Defendant must report to EEOC on applicants and hires, by name and sex, during the term of the decree.

b. Pay

Title VII and the Equal Pay Act of 1963 (EPA) prohibit pay discrimination on the basis of sex between employees performing substantially equal work. The EPA does not require a showing of discriminatory intent.

In EEOC v. EGS Electrical Group, LLC (S.D. Tex. May 24, 2007), a Title VII/EPA action, EEOC alleged that two female sales representatives for a manufacturer of industrial electrical products earned approximately $36,000 a year, while a man doing the same job earned $50,000. After one of the women complained about the wage disparity to management and filed an EEOC charge, she was transferred and demoted in retaliation. A consent decree provided for $45,000 to each of the two women, as well as salary increases to eliminate the pay disparity.

EEOC v. Convergys Corp. (D. Utah May 31, 2007), another suit brought under both Title VII and the EPA, involved four women working as technical support engineers for an outsourcing business, whom EEOC alleged were paid less than men doing substantially equal work. Defendant categorized the 133 engineers working on a particular account into four tiers based on the complexity of their job assignments. Two of the claimants were the only women in their tiers and two others were the only women in a third tier. One of the women was paid less than 24 of the 28 men in her tier even though she had more project seniority and more overall job seniority than many of them. The consent decree provided $91,000 in monetary relief to the four women, and prohibits gender-based wage discrimination.

In EEOC v. Fort Osage School District (W.D. Mo. Nov. 30, 2006), EEOC brought suit under the EPA, and the case was consolidated with the female employee’s Title VII suit. (EEOC cannot sue public employers under Title VII.) The suit alleged that the school district paid a female assistant superintendent of education less than males in the same job. When she asked the superintendent to raise her salary to eliminate the pay disparity, he instead led the Board of Education to believe she wanted a higher salary than the men and would quit if her salary demands were not met. The Board rejected the request and the claimant’s contract was not renewed. Settlement was reached on the second day of trial, with an agreement providing the female assistant superintendent with $215,000 and requiring that the employer report gender and salary data about assistant superintendents to the Commission for 2 years.

In EEOC v. Woodward Governor Co. (N.D. Ill. Feb. 16, 2007), discussed in Section II.E.5 below, EEOC alleged that a designer and manufacturer of engine control systems engaged in a pattern and practice of discrimination in compensation, promotion, and training against African Americans, Hispanics, Asians, and women. The $5 million in monetary relief provided in the 42-month consent decree included a $2.6 million Gender Settlement Fund to be distributed among approximately 230 women.

c. Sexual Harassment

Many of the Title VII sexual harassment claims in the Commission’s litigation docket involve more than one victim. Although the vast majority present claims of harassment of female employees by male superiors or coworkers, some cases involve members of the same sex and some involve offensive sexual conduct by female employees towards males. EEOC has litigated a number of cases on behalf of particularly vulnerable employees, such as teens and immigrants. It is not uncommon for the challenged harassment to rise to the level of criminal conduct.

Following a 2-week trial in EEOC v. The Custom Companies, Inc. (N.D. Ill. June 21, 2007), a jury awarded over $2.3 million to three female sales representatives of a suburban Chicago trucking firm on EEOC’s claims that the women were subjected to verbal and physical sexually offensive conduct and that two of them were discharged because they complained about the harassment. The court reduced the verdict to $768,167 to conform to Title VII’s statutory caps on compensatory and punitive damages ($200,000 in the present case), and ordered extensive injunctive relief, including, for a 4-year period, enjoining defendant from violating Title VII with respect to sexual harassment and retaliation; requiring notice and reports to EEOC of sexual harassment or retaliation complaints; and requiring yearly training of managers and employees on sexual harassment, Title VII principles, and retaliation.

EEOC v. Lexus of Serramonte, Sonic Automotive, Inc., & First America Automotive (N.D. Cal. Jan. 22, 2007) alleged that female employees working at an automobile dealership were sexually harassed by male managers and coworkers (sexual invitations, comments about the women’s bodies, and physical touching). When one of the claimants complained to the sales manager, she allegedly was told “men are like that.” The consent decree provided for $375,000 in monetary relief to affected women. Defendants will select an EEO consultant who will administer antidiscrimination policies and verify that Lexus has an internal complaint procedure that includes a toll-free number or Internet-based reporting system administered by a third-party provider approved by EEOC.

A number of cases brought by EEOC on behalf of a class of women involve harassment perpetrated by the highest level manager at the facility, and sometimes even the employer’s owner. In such cases, complaints by the victims about the harassment may be futile, or even worse, subject the employees to retaliation. In EEOC v. David Lerner Associates, Inc. (D. Conn. Oct. 6, 2006), EEOC alleged that the branch manager of an investment brokerage firm made offensive sexual comments to female employees, touched them inappropriately, and threatened to fire them if they complained. When some women did complain, management told them to ignore the behavior. The branch manager retaliated against women who complained by undermining their client relationships, excessively scrutinizing their work, and pressuring them to quit. Some women were forced to resign due to the sexual harassment and retaliation. The 3-year consent decree provided for $1.5 million in monetary relief, and enjoins defendant from sex discrimination, sexual harassment, and retaliation. The branch manager must undergo at least 4 hours of training and counseling by an outside trainer regarding the federal antidiscrimination laws. The decree requires that defendant adopt antidiscrimination policies and procedures for complaints and reporting, including a toll-free telephone number staffed by trained human resources employees.

In EEOC v. Horseshoe Lake Golf Course, Inc. (W.D. Wash. Oct. 10, 2006), the suit alleged that the owner/general manager of a Port Orchard, Washington golf course subjected female waitresses/bartenders and “cart girls” to a daily barrage of inappropriate and offensive sexual remarks, and asked them to wear sexually revealing attire on the job. Female applicants also were subjected to sexual comments, questions, and requests. A 5-year consent decree provides $267,000 to eight claimants and $100,000 to a class settlement fund. The employer is required to retain an independent sexual harassment consultant to assist in adopting an EEO policy. Before the owner can resume the position of general manager, he must complete 18 1-hour training sessions addressing sexual harassment and the use and abuse of power over subordinates.

Employers are also liable for sexual harassment of supervisors by subordinates if they fail to take appropriate corrective action. In EEOC v. Woodmen of the World Life Ins. Soc’y (D. Neb. July 24, 2007), EEOC alleged that defendant’s State Manager for Pennsylvania was subjected to sex-based and sexual harassment by a male subordinate who openly expressed his resentment at having to work for a woman, and that the State Manager was retaliated against for complaining. The male subordinate discouraged other employees from working for the State Manager, led a work slowdown so she wouldn’t meet her sales goals, and made sexually suggestive remarks to her. The State Manager complained to her supervisor and to the human resources manager, and asked for permission to fire the male subordinate. Defendant took no action and demoted the State Manger after she filed an internal sex discrimination charge. The State Manager intervened in EEOC’s suit, and the case, together with the State Manager’s arbitration proceeding, was settled for monetary relief of approximately $334,000, with $285,000 in backpay and damages payable immediately and an additional $150,000 payable to the State Manager or her beneficiary over 20 years, commencing 10 years after execution of the settlement.

Immigrants, especially those with limited English skills, are particularly at risk of sexually abusive conduct by managers. In EEOC v. Caesars Entertainment, Inc., et al. (D. Nev. Aug. 22, 2007), EEOC alleged that a Las Vegas resort and casino subjected eight Latina female kitchen workers (primarily monolingual Spanish speakers) to a barrage of unwelcome sexually offensive conduct, including requests for sex, lewd jokes, and physical groping. The harassment was perpetrated by the kitchen’s executive steward and two assistant executive stewards, all male. The suit included claims that women who complained of the harassment were retaliated against in various ways (reduced work hours, more arduous assignments, discipline, and discharge). A 3-year consent decree resolving the case provided $850,000 to the victims. Defendant must revise its policy on discrimination and sexual harassment and report to EEOC annually on sexual harassment and retaliation complaints.

EEOC v. Gargiulo, Inc. (M.D. Fla. Jan. 17, 2007) alleged that a male supervisor sexually harassed (through requests for sex and grabbing and touching) female seasonal agricultural workers who spoke little or no English. The suit also alleged that the supervisor refused to rehire women for the following season who refused to have sex with him. A consent decree provided $215,000 to eight affected women. The employer must adopt antidiscrimination policies, approved by EEOC, that include complaint and reporting procedures (with Creole and Spanish interpreters for employees), and must report to EEOC semiannually for 3 years on harassment complaints it receives.

The Commission’s Youth@Work initiative aims to educate young workers about their workplace rights and responsibilities and help employers create positive first work experiences for young adults. It also includes a strong enforcement program on behalf of young workers, who may be victims of sexual harassment in the workplace. For example, most of the female claimants in EEOC v. Everdry Marketing & Management, Inc. (W.D.N.Y. Oct. 27, 2006) were teens, working part-time while still in high school as telemarketers for a national residential basement waterproofing company. EEOC presented evidence that male managers and employees engaged in sexually offensive conduct such as inappropriate touching, lewd and graphic sexual comments and gestures, requests that female employees wear specific types of clothing, and pressuring female employees for sex. Complaints to local and national management were made to no avail, and some women were forced to quit because of the working conditions. A jury returned a verdict for EEOC after a 2-week trial, awarding 13 claimants $10,000 each in punitive damages, as well as compensatory damages ranging from $4,500 to $59,000. Total recovery was $585,000.

EEOC v. Houston Fast Foods d/b/a Popeye’s Chicken (S.D. Tex. Oct. 4, 2006) presented a claim that two female cashiers and other female employees, including teens, at a Tomball, Texas fast food franchise were subjected to verbal and physical sexually offensive conduct by the restaurant’s male general manager, who warned them not to complain. After the cashiers complained to the assistant manager and district manager, one had her hours cut and the other was discharged. A consent decree provided a total of $86,000 to the two cashiers and $40,000 to other claimants. The cashiers received a written apology, and defendant is prohibited from rehiring the general manager or providing him with a positive job reference. Any person or entity seeking information about the general manager’s employment is to be informed that the EEOC filed a lawsuit alleging that he sexually harassed and retaliated against employees. Defendant will develop a plan to implement the EEOC’s Youth@Work Initiative at its eight Houston-area Popeye’s restaurants.

EEOC v. GLC Restaurants, Inc., d/b/a McDonalds’s Restaurant (D. Ariz. Mar. 21, 2007) involved a claim that a male assistant manager at one of defendant’s northern Arizona McDonald’s restaurant franchises subjected female employees, some only 16 years old, to inappropriate touching, compliments, and suggestive comments. The assistant manager had previously been the subject of a sexual harassment complaint at another facility and was transferred to the present location to “avoid possible future conflicts.” Complaints by female employees to other managers went unheeded until the stepfather of one of the claimants met with defendant’s corporate office staff. After an investigation, defendant determined that the assistant manager had engaged in inappropriate conduct and terminated him. The consent decree provided a total of $550,000 to eight women, and a letter of apology to each from defendant’s CEO. Defendant is enjoined from sex discrimination and retaliation, and will not rehire the assistant manager in any capacity.

Sexual harassment cases may sometimes involve conduct that is also criminal in nature.
EEOC v. Acepex Management Corp. (D. Colo. Oct. 23, 2006) involved the sexual assault of a female janitorial supervisor working for a firm that provides maintenance, janitorial, and other services to government agencies and private businesses in several states. The employee’s male supervisor at the Denver Federal Center physically abused her and raped her twice. Although the male supervisor was terminated after the rapes were reported to the Federal Protective Service, defendant, after learning of the female janitorial supervisor’s allegations, assigned her to an undesirable shift, disciplined her four times in quick succession, and then terminated her. Under a 3-year consent decree, the claimant received $190,000, a written apology, and a positive job reference. Defendant is enjoined at all of its Colorado facilities from sex discrimination and retaliation. Defendant must adopt an antidiscrimination policy and distribute it to all Colorado employees, and must translate all employee information into Spanish.

In another case involving criminal conduct, Norris Automotive Holdings, LLC d/b/a Norris Ford (D. Md. Sept. 24, 2007), EEOC alleged that two female employees of a Maryland automobile dealership and body shop were subjected to sexually offensive conduct by their male supervisor, including the placing of a camcorder in the facility’s unisex bathroom. When one of the women discovered the camcorder, she reported it to the general manager. The police were called in, and pictures of the claimants using the toilet were discovered on the supervisor’s computer. The supervisor was eventually convicted of visual surveillance with prurient intent. The consent decree provided $100,000 to be split equally between the two female employees and enjoins defendant from sex discrimination and retaliation.

It is not uncommon for black women to be subjected to both sexual and racial harassment. In EEOC v. Jewel Food Stores, Inc. (N.D. Ill. June 20, 2007), EEOC alleged that a white male assistant meat market manager at a Chicago suburban grocery store (owned by a division of the Albertson’s national chain) subjected female meat wrappers, some of whom were African American, to offensive sexual and racist comments, sexually offensive touching, and simulated sex acts. Under the consent decree resolving the case, four women, three of whom are African American, shared $200,000 in compensatory damages. The decree permanently enjoins defendant from race or sex discrimination, the sexual harassment of female employees, and the racial harassment of African American employees.

By far, the bulk of the EEOC’s sexual harassment litigation in FY 2007 involves the harassment of female employees by male employees. A number of cases, however, involved the alleged harassment of male employees by other men or by women. In EEOC v. Comcast Cable Communications, Inc. (D.N.J. Nov. 6, 2006), EEOC alleged that when a male communications technician told his supervisor he had been sexually assaulted by a male customer while on a service call, the supervisor just laughed. Afterwards, coworkers teased the communications technician about the matter, calling him “faggot” and making sexual comments to him. The employee repeatedly complained to management about his coworkers’ conduct, but without effect, and on one occasion, a manager told him he was being paranoid. When the employee went out on medical leave due to the ongoing harassment, defendant took his equipment and disconnected his cell phone, causing his constructive discharge. A consent decree provided the communications technician with $98,750, and enjoins defendant at its Vineland, New Jersey facility from sexual harassment and retaliation.

EEOC v. United Healthcare of Florida, Inc. (S.D. Fla. Sept. 28, 2007) involved allegations that a male account executive of a provider of health benefit plans was sexually harassed (sexually explicit comments and inappropriate touching) by a male management official. The account executive complained repeatedly to his supervisor, and human resources conducted an investigation, but the conduct continued. When the harasser became the account executive’s direct supervisor, he retaliated against him for reporting the harassment by putting him on a corrective action plan, taking away some of his accounts, and denying him stock options, causing the account executive to resign. The 3-year consent decree enjoins defendant from sex discrimination and retaliation. The account executive, who intervened in EEOC’s suit and alleged violations of Florida civil rights law, received $1.8 million ($660,000 in backpay, $500,000 for nonwage damages, and $640,000 in attorney’s fees). In addition, defendant must expunge any negative performance information from the account executive’s personnel file and consider in good faith his application to sell defendant’s products.

EEOC v. Taco Bell of America, Inc. (M.D. Fla. Aug. 9, 2007) presented a claim that a male crewmember at a Mulberry, Florida restaurant was subjected to daily unwelcome verbal and physical sexually offensive conduct, including sexual advances, by a female assistant manager. The crewmember complained to the area coach, who did not believe him, and also to another assistant manager. No corrective action was taken and the crewmember felt compelled to resign. In settlement, defendant paid the crewmember $76,050 and issued a written disciplinary warning to the female assistant manager. Defendant must provide EEO training to employees at six area restaurants annually for 3 years on recognizing and reporting sexual harassment.

d. Pregnancy

EEOC alleged in EEOC v. Mothers Work, Inc., d/b/a Motherhood (M.D. Fla. Jan. 5, 2007) that a leading designer and retailer of maternity apparel refused to hire pregnant women, and disciplined and discharged a female assistant manager at its St. Augustine, Florida store because of her complaints about pregnancy discrimination and because it believed she was pregnant. The store manager coded job applications with “PG” and “prego” and explained to the assistant manager that the company did not hire pregnant applicants because they might steal the merchandise or work at the store solely for the employee merchandise discount. The assistant manager complained to the district manager, regional manager, and corporate human resources about the store’s discrimination against pregnant applicants. When the assistant manager began to take time off from work due to health problems, the store manager questioned whether she was pregnant. Ultimately, the assistant manger was discharged when she refused to sign a warning about her attendance. Under a 3-year consent decree, the assistant manager and three class members received a total of $375,000 in monetary relief and letters of reference indicating they are eligible for rehire. The decree enjoins defendant from pregnancy discrimination and retaliation, and requires that defendant create a new policy against sex and pregnancy discrimination and retaliation and distribute it to employees at all of its Florida stores.

In EEOC v. Bed, Bath & Beyond, Inc. (D.N.J. Aug. 20, 2007), the suit alleged that the manager of defendant’s Bridgewater, New Jersey store forced a female employee to take a leave of absence because she had pregnancy-related work restrictions, including a 10-pound lifting limit, no lifting above the head, and no climbing ladders. The employee would have been able to perform her job managing the customer service department with these work restrictions. A consent decree provided $49,000 to the female employee; enjoins defendant from failing to treat the temporary disabilities of pregnant employees in the same manner as other temporary disabilities; and requires posting of a notice accessible to all employees in defendant’s New York City Region (30 stores) about the consent decree and defendant’s obligations regarding sex and pregnancy discrimination.

3. National Origin Discrimination

National origin discrimination includes treating individuals less favorably because of their place of birth, ethnicity, or linguistic or cultural characteristics, or because of their association with someone of a particular nationality. The cases below demonstrate the variety of litigation pursued by the EEOC this fiscal year to remedy national origin discrimination.

Employees who are foreign nationals may be susceptible to the most egregious types of exploitation and discrimination. In EEOC v. Trans Bay Steel Corp. (C.D. Cal. Dec. 8, 2006), the Commission charged that a small construction company discriminated against Thai nationals in recruitment, hiring, pay, and other terms and conditions of employment and harassed them based on their national origin. Trans Bay contracted with an employment agency to bring skilled welders into the United States from Thailand under guest worker visas. The visas required that the welders be paid the prevailing wage. Nine of the Thai welders sponsored by Trans Bay went to work for the company, but they were not paid the promised wages. The remaining sponsored Thai welders (about 40) were transported by the employment agency to other cities and forced to work long hours for no pay at restaurants, homes, and apartments owned by the agency’s owner (a Thai). The agency confiscated the welders’ passports, held them against their will (confining some to cramped apartments without electricity, water, or gas), and threatened to call police and immigration authorities if they tried to escape. Eventually several escaped and were put into contact with a Thai nonprofit organization that works with victims of slavery and trafficking. This organization filed a charge with the EEOC on the welders’ behalf. Under a consent decree, 48 persons shared in relief from Trans Bay valued at approximately $1 million (the employment agency was out of business and its owner could not be located). In addition, Trans Bay is required to employ a number of the Thai welders, help them obtain jobs with other employers, and sponsor some of them for guest worker visas if appropriate.

In EEOC v. Quietflex Manufacturing Co. (S.D. Tex. Jan. 23, 2007), EEOC intervened in consolidated private actions and presented claims that a Houston air conditioning duct manufacturer failed to recruit and hire qualified Hispanics for machine operator positions in a specific department, denied Hispanics transfers and promotions to the department, and used a non-job-related English proficiency requirement as a prerequisite for hiring/transfer into the department, while exempting non-Hispanic applicants and employees from the requirement. Hispanics were assigned almost exclusively to the duct/insulation department, which required longer working hours and more physical labor for less money than the core/jacket department, which was staffed primarily by Vietnamese individuals. The 30-month consent decree provided $1,933,334 for approximately 78 individuals (10% of which was attributable to claims brought by the private plaintiffs under the Fair Labor Standards Act), plus attorney’s fees to private counsel. Under the decree, all vacancies in the core/jacket department will be posted and applicants will be selected according to their plant seniority.

In EEOC v. Sephora USA, LLC (S.D.N.Y. Aug. 7, 2007), the agency alleged that a fragrance and cosmetics retailer engaged in a pattern or practice of national origin discrimination against Hispanic salespersons at its New York Metropolitan Area (NYMA) stores by maintaining an “English-only” rule and otherwise discriminating in their terms and conditions of employment, and that it took adverse actions (discipline, reductions in hours, and denial of transfer opportunities) against several employees at one store in retaliation for complaining about discrimination. Some of the defendant’s managers told Hispanic employees not to speak Spanish at work, even when on breaks, and mimicked Spanish-speaking employees’ accents or made disparaging comments about their language and other cultural characteristics. A consent decree provided 20 claimants with $565,000, and prohibits discrimination against Hispanic employees at defendant’s seven NYMA stores with respect to languages spoken during breaks and nonbusiness hours or when customers are not present (the court had earlier ruled that defendant could require that employees speak English in the presence of customers).

As in the preceding case, many of EEOC’s lawsuits alleging national origin discrimination include claims of a hostile work environment and retaliation. In EEOC v. Japanese Food Solutions, Inc. d/b/a Minado Restaurant (E.D.N.Y. Feb. 21, 2007), the Commission alleged that the owner of a Japanese restaurant imposed an English-only/no-Chinese language policy upon employees of Chinese descent, and otherwise subjected employees of Chinese descent to a hostile work environment. The employer allowed Korean-speaking employees to communicate in Korean, while restricting Chinese-speaking employees to English. The employer also yelled at Chinese-speaking employees, and threatened to fire them for speaking Chinese. Shortly after complaining about the no-Chinese rule, a waiter of Chinese ancestry was assigned unfavorable shifts, had his hours reduced, and was terminated. Under a 3-year consent decree, the employer paid $130,000 in monetary relief to aggrieved employees. The employer was enjoined from national origin discrimination and retaliation and required to adopt an antidiscrimination policy, rescind its language policy, and advise all employees of the rescission.

EEOC v. Rainbow Restaurant Properties, Inc., d/b/a Chino Latino Restaurants (D. Minn. Sept. 11, 2007) alleged that a company operating six restaurants in Minneapolis and St. Paul, Minnesota subjected Hispanic employees at a trendy Minneapolis restaurant to harassment and discriminatory terms and conditions of employment. Managers used racial epithets and slurs, and told jokes in which employees were referred to as “wetbacks” and were questioned about crossing the border by “swimming, running or jumping.” The employees also claim they were given shorter breaks and subjected to disparate discipline and harsher treatment than non-Latinos, and that complaints about their treatment were ignored. The suit alleged that two employees were terminated in retaliation for facilitating an employee meeting in which complaints of discrimination were aired by Hispanic employees. The consent decree provides $325,000 to 104 class members and prohibits national origin discrimination and retaliation. The decree requires that the employer create an ombudsperson position (to be held by a Spanish speaker) to monitor and respond to complaints; maintain a complaint hotline in Spanish and English; and create an employee advisory committee, half of whom are Hispanic employees, to provide feedback to the employer on its marketing and advertising efforts. All documents discussed in the decree will be available in English and Spanish.

In EEOC v. MBNA America Bank, N.A. (D. Del. Mar. 27, 2007), EEOC alleged that a company providing technology support and services to MBNA Corporation and its affiliates across the United States discriminated against an East Indian senior PC specialist because of his national origin, and discharged him in retaliation for complaining about the discrimination. Coworkers taunted the East Indian employee, calling him “sand nigger,” “Osama Bin Laden,” and “OBL.” He was also denied training given to non-Indian employees, and subjected to excessive scrutiny from his supervisor. The employee complained to management about the harassment, but it continued. Three weeks after filing an EEOC charge, the employee was terminated. The consent decree resolving the case provided the employee with $147,000.

4. Religious Discrimination

Under Title VII, it is illegal to favor particular religions in the workplace or to require that employees engage in religious practices or religious training. In EEOC v. AKZ Management (S.D.N.Y. Sept. 28, 2007), EEOC alleged that an owner/operator of medical practices in the New York Metropolitan Area subjected non-Scientologist employees to a hostile work environment by conditioning their employment on participation in Scientology-based training and on their use of Scientology-based terminology, and by pressuring them to adopt the Scientology religion in their personal lives. The suit also alleged that an employee (a chiropractor and practice administrator) was terminated in retaliation for protesting the religious discrimination, and that other employees were constructively discharged as a result of the religious-based harassment. A 4-year consent decree provided for payment of $400,000 into a claims fund, with EEOC determining eligibility for relief. Defendant is prohibited from discrimination or harassment on the basis of religion, and will not request that employees attend training at any Church or Mission of Scientology, or any training in a religious context.

Title VII not only prohibits adverse treatment of employees due to their religious beliefs, but also requires employers to reasonably accommodate employees’ religious observances and practices unless doing so would impose an undue hardship on the employer’s business. Most of EEOC’s religious discrimination cases contain failure to accommodate claims. EEOC v. Razzoo’s (N.D. Tex. June 18, 2007) challenged the refusal of the owner of 11 Cajun-theme restaurants in the Dallas-Fort Worth area to excuse a food server from celebrating customer birthdays, resulting in her discharge. The server is a Jehovah’s Witness and believes that birthdays are pagan celebrations and place excessive importance on the individual. A consent decree provided $38,750 to the server and enjoins defendant from denying employees a reasonable accommodation of their religious observances and practices and from engaging in employment practices that discriminate on the basis of religion.

Several failure to accommodate claims involved employers who refused to accommodate women who wore head coverings in accordance with their religious beliefs. In EEOC v. RaceTrac Petroleum (N.D. Ga. Jan. 24, 2007), EEOC alleged that defendant, an operator of gas stations/convenience stores throughout the Southeast, failed to accommodate a Rastafarian employee’s religious practice of wearing her hair in dreadlocks covered by a head wrap. Defendant’s area personnel manager considered the employee’s head covering unprofessional, and defendant discharged her for failing to adhere to defendant’s dress code. A consent decree provided the claimant with $125,000, prohibits religious discrimination and retaliation, and requires defendant to instruct management officials and supervisors in its Georgia region (42 stores) on the terms of the decree and on defendant’s Title VII obligations. Similar cases include: EEOC v. Mid-State Petroleum, d/b/a The Pop Shoppe (W.D.N.C. March 4, 2007) (owner/operator of convenience stores paid $40,000 to Muslim applicant who was rejected for hire because she wore a hijab (head scarf), and modified its dress code to permit religious-based exceptions); EEOC v. AAA Parking (N.D. Ga. June 7, 2007) ($29,500 paid to Muslim cashier who was discharged because she wore a hijab to work in observance of Ramadan; defendant, which provides parking and valet services for major hotels, must implement procedures at each of its Atlanta, Georgia facilities to reasonably accommodate employees’ religious beliefs).

5. Title VII Discrimination Involving Multiple Bases

A significant number of EEOC’s Title VII lawsuits allege multiple discriminatory practices involving more than one protected basis (i.e., race, sex, color, national origin, religion, age, or disability). The following cases were resolved in this fiscal year for significant amounts of monetary relief and substantial injunctive relief.

In EEOC v. Woodward Governor Co. (N.D. Ill. Feb. 16, 2007), EEOC filed a Title VII/EPA pattern-or-practice suit against a designer and manufacturer of engine control systems and components, alleging race and national origin discrimination against African Americans, Hispanics, and Asians with respect to compensation, promotion, and training. The suit also alleged sex discrimination against women in compensation, promotion, and training in violation of Title VII, and unequal pay to women in violation of the EPA. EEOC’s suit was consolidated with a Rule 23 private class action. Defendant’s supervisors had essentially standardless authority to make compensation, promotion and training decisions, and expert analyses showed there were significant disparities between the compensation of minority and white employees and between female and male employees. In addition, there were many individual instances of minority and female employees being paid less than less experienced white and male employees and being denied promotions or training provided to similarly situated white and male employees. The 42-month consent decree provided $2.4 million for a Minority Settlement Fund (approximately 120 African American, Hispanic, and Asian claimants) and $2.6 million for a Gender Settlement Fund (approximately 230 female claimants). An order implementing the decree also directs the employer to pay $4.67 million in attorney’s fees and expenses to counsel for the private class. In addition, the employer must pay fees and expenses for: (1) a claims administrator, (2) a person to administer the decree, (3) an expert psychologist to perform job analyses, and (4) equal employment opportunity training. The decree requires the employer to make available to minority and female employees the same employment opportunities and terms and conditions of employment (including job assignments and promotions) that it affords to similarly situated white male employees. The decree’s numerous affirmative relief provisions apply to the employer’s Rockford and Rockton, Illinois facilities.

EEOC v. William O. Benenson Rehabilitation Pavilion & Flushing Manor Geriatric Center, Inc. (E.D.N.Y. April 20, 2007) presented claims that a nursing home and rehabilitation facility subjected five certified nursing assistants and other employees in the nursing, food service, housekeeping, and recreation departments to discrimination based on race (black) and national origin (Haitian and Jamaican). The discrimination claims included harassment, stricter supervision, a “No Creole” language rule for Haitian employees, discipline, and termination. The director of nursing, another supervisor, and some of the residents directed hostile racial or national origin-based comments at the employees, and several managers told the Haitian employees not to speak Creole, even during breaks, although employees were permitted to speak in other non-English languages. The complaint also alleged that the employer disciplined and terminated employees, regardless of their race or national origin, for opposing or for refusing to participate in harassment and discrimination. Under a 5-year consent decree, 29 employees shared $900,000. The decree enjoins defendant from race and national origin discrimination and retaliation, and from implementing or enforcing a “No Creole” policy. Defendant must provide the director of nursing with 4 hours of EEOC-approved EEO training and counseling each year, and she must also attend the 6 hours of yearly EEO training required of all managers. The employer will hire a coordinator to implement and oversee compliance with the decree and receive and investigate discrimination complaints.

EEOC v. Professional Transit Management Ltd. (D. Colo. May 22, 2007) involved claims that a Colorado Springs, Colorado express bus service created hostile working environments for African American employees based on their race and color and for Hispanic and Asian employees based on their national origin. Employees, including supervisors, regularly referred to African American, Hispanic, and Asian employees in racially and ethnically derogatory terms, and some employees made remarks about shooting or gassing them. Complaints were made to management about the conduct but it continued. A consent decree provided $450,000 to six affected employees, and prohibits defendant from discriminating on the basis of race, color, or national origin and from retaliation. Defendant must report to EEOC semiannually for 3 years on complaints of race, color, or national origin discrimination.

In EEOC v. The Lubrizol Corp. & Noveon, Inc. (D. Mass. Dec. 18, 2006), EEOC alleged that Lubrizol, a Fortune 500 producer and marketer of specialty chemical products, and Noveon, a wholly-owned subsidiary, subjected an employee to a hostile work environment and constructively discharged him based on his race (Asian) and national origin (Chinese and Vietnamese), and terminated a second employee in retaliation for supporting the first employee’s claims. Both employees worked at Noveon’s Wilmington, Massachusetts facility. The Asian employee’s coworkers called him ethnically derogatory names, ridiculed him because of his accent, and sabotaged his work. He complained to supervisors and to a human resources representative, but the employer took no corrective action. Following a shouting match with a coworker who was interfering with his work, the Asian employee quit and filed an EEOC charge. The second employee was fired 3 months after he corroborated the Asian employee’s harassment allegations to a company official investigating the EEOC charge, and just 1 month after the main harasser, who was aware of the corroboration, became his supervisor. The consent decree provided $330,000 to the Asian employee and $84,000 to the other employee, and prohibits race or national origin discrimination and retaliation under Title VII.

6. Age Discrimination

a. Hiring and Promotion

In EEOC v. City Colleges of Chicago d/b/a Wilbur Wright College (N.D. Ill. July 27, 2007), EEOC alleged that the defendant, one of seven colleges comprising City Colleges of Chicago, refused to promote an adjunct instructor in the English department to a full-time tenured position because of her age, 67. From 1996 to 2005, the instructor had applied and been rejected for four full-time positions. During that same period, defendant hired 11 full-time English instructors, only one of whom was over the age of 50. A consent decree provided for $40,000 to the instructor and a promotion to a full-time, tenure-track faculty position in the English department commencing with the 2007-2008 academic year. The decree also prohibits age discrimination and retaliation.

b. Downsizing and Restructuring

When employers downsize or make other changes in their workforces, older employees may be adversely affected on the basis of age, as demonstrated in the cases discussed below.

In EEOC v. Medegen Medical Products, LLC (D. Colo. Oct. 11, 2006), EEOC alleged that a manufacturer of plastic and stainless steel products for hospital patients, with plants in several states, laid off employees at its Northglen, Colorado facility due to their ages. In selecting employees for layoff after losing several contracts, defendant applied inconsistent criteria and most of the laid off employees were older than those retained. Just prior to and shortly after the layoffs, the defendant hired younger individuals into maintenance, technical, and distribution positions allegedly eliminated in the layoffs. The case was settled for a payment of $462,162 to eight affected individuals in their 50s and 60s, and $182,879 in attorney’s fees.

EEOC v. ADESA New York, LLC (W.D.N.Y. May 31, 2007) presented a claim that during a restructuring, a wholesale vehicle auction company based in Buffalo, New York discharged four employees, ranging in age from 49 to 57, because of their ages. Of the 11 employees affected, 6 were younger than 40. The six employees under age 40 had their jobs eliminated but were retained and given different job titles. Two of the older employees, one employed as a registration clerk and maintenance worker and the other as a numbers registration supervisor, asked if they could take pay cuts, work part time, or be transferred in order to continue working, but were told defendant did not have jobs for them and would not hire them back. A 3-year consent decree provided the employees a total of $200,000 in monetary relief, and enjoins defendant from age discrimination. Defendant is required to redact references to performance concerns from the employees’ personnel files; train all employees on employment discrimination; report to EEOC quarterly on complaints of age discrimination; and distribute and incorporate into its employee handbook an EEO policy approved by EEOC.

EEOC v. Lucent Technologies, Inc. (E.D. Mo. April 17, 2007) involved a claim that a global provider of communications services discharged an installation estimator based on his age, 55, in the course of a reduction-in-force (RIF). The claimant had 34 years of service with defendant, including 10 in the estimator position. Several months prior to the RIF, the claimant’s supervisor gave him an “outstanding” evaluation and characterized him as the top performer in his group of four estimators. In the RIF, defendant terminated the two older estimators (ages 55 and 51) and retained the two younger ones (ages 42 and 27). The retained estimators were less experienced than the claimant and had received lower ratings on their most recent evaluations. The 2-year consent decree provided $195,000 to the claimant; requires removal from his personnel file of documents concerning his termination; and prohibits defendant from discrimination against its Missouri-based employees because of age. Defendant must submit semiannual reports to the EEOC on the composition of its workforce in Missouri by age and title, including hire and termination dates.

In EEOC v. Otis Elevator (D. Minn. Sept. 19, 2007), EEOC alleged that defendant, the world’s largest manufacturer and installer of elevators, laid off an elevator mechanic in its Duluth, Minnesota office because of his age, 58. The claimant was the only mechanic of six in the office who was laid off. The only older mechanic was scheduled to retire in a few months, which he did; the remaining mechanics were ages 48, 45, 41, and 35. The two managers who had the most input into the evaluation and ranking of the mechanics for layoff allegedly made statements that the claimant “was kind of an old school mechanic” and was “nothing but an old freight elevator mechanic.” The 2-year consent decree provided $200,000 in monetary relief to the claimant; enjoins defendant from engaging in age discrimination in discharge in the Minnesota District; and requires defendant to send a letter to all personnel involved in the claimant’s termination describing the settlement of the lawsuit and stating defendant’s commitment to equal employment opportunity.

In EEOC v. Shaw Creations, Inc. (S.D.N.Y. Dec. 12, 2006), EEOC alleged that a wholesale supplier of umbrellas discharged an 83-year-old employee from his sales position because of his age. Shortly upon gaining control of the company following the death of his father-in-law, defendant’s new owner discharged the two oldest employees: an 85-year-old sales manager (who had 60 years with the company) and the 83-year-old claimant (19 years with the company and 60 years in the field). The 5-year consent decree provided $65,000 in backpay to the claimant and enjoins defendant from age discrimination and retaliation.

c. Age-Based Harassment

EEOC v. Scott & Patty Corp. f/k/a Woodburn Fertilizer, Inc. (D. Ore. Feb. 28, 2007) presented a claim that defendant, a family-owned and operated fertilizer and pesticides business in Woodburn, Oregon, subjected an accounting secretary to harassment and discriminatory terms and conditions of employment due to her age, 55, resulting in her constructive discharge. A new 25-year-old office manager (the stepdaughter of defendant’s president) regularly subjected the accounting secretary to offensive and ageist comments. Shortly after giving the accounting secretary (who in the past had received good ratings) a negative rating in an unscheduled performance review, the office manager denied her a raise, berated her performance in front of coworkers and customers, and gave her 30 days to improve. Claimant quit the same day and was replaced by a 23-year-old woman. She received $85,000 in monetary relief.

EEOC claimed in EEOC v. Town & Country Credit Corp. (N.D. Ill. Oct. 5, 2006) that a residential mortgage banking business subjected a 53-year-old branch manager to a hostile work environment and demoted her to loan officer because of her age. While she was serving as manager of defendant’s Naperville, Illinois facility, two coworkers and the area manager directed derogatory age-related comments at the claimant. The area manager demoted her and transferred her to a loan officer position at another facility, ostensibly due to poor performance, while retaining as manager of another branch a 34-year-old whose performance problems, according to the area manager’s own evaluations, were more significant. The claimant received $70,000 under the consent decree resolving the case.

d. Age-Based Policies

EEOC v. Burlington Northern Santa Fe Railway Co. (D. Kan. Aug. 28, 2006, and March 30, 2007) involved claims that a railroad violated the ADEA by denying “protected status” (pay retention and other rights in the event of layoff) to employees age 70 and older who are eligible for an annuity (requiring 5 years of service), and denying age-70 annuity-eligible employees and employees eligible for an unreduced annuity (age 60 with 30 years of service and ages 65-67 with under 30 years) the right to participate in certain exit incentive programs. The programs were offered to clerical employees represented by the Transportation Communications International Union (TCU) at certain locations in Minnesota, Missouri, Nebraska, Kansas, and Texas. Eligible employees were given the option of going on the reserve board and receiving $2,500 a month for 3 years, or terminating their employment immediately and receiving a lump sum payment of $90,000. Through a partial consent decree filed in August 2006, defendant and TCU (originally also a defendant) agreed to delete the language in their collective bargaining agreement denying protected status to age-70 annuity-eligible employees. In a subsequent consent decree, defendant railroad agreed to provide $800,000 in monetary relief to employees denied the right to participate in exit incentive programs (or to participate for the maximum program periods) because of their eligibility for an unreduced annuity. Under the 2-year consent decree, defendant is prohibited from offering any voluntary retirement incentive to TCU-represented clerical employees that discriminates on the basis of age, and must inform EEOC of the terms and conditions of any voluntary retirement incentives it offers to those employees.

In EEOC v. Centerport Fire Dist. & Centerport Fire Dept. (E.D.N.Y. Feb. 15, 2007), the EEOC alleged that defendants discriminated against a class of volunteer firefighters age 65 and older by not allowing them to accrue credit toward a “length of service award” for service performed after reaching age 65. A 1988 New York law permits fire districts to award service credit for various activities volunteer firefighters perform and to pay them monthly pensions upon retirement. Defendants were required to set an entitlement age at which firefighters became eligible for a pension; they set the entitlement age at 65 and did not permit firefighters to accrue benefits for service at that age or above. Defendants eventually amended their award program to allow firefighters to accrue service credits without regard to age, but benefits were not provided for prior service at age 65 or above. Under a consent decree, defendants agreed to award 22 volunteer firefighters age 65 and older between 1 and 14 years of additional years of creditable service and pay them $353,229 in service award benefits. Defendants are permanently enjoined from denying service credit in their award program because of age.

EEOC v. Alex C. Fergusson, Inc. (W.D.N.Y. Jan. 31, 2007) alleged that the defendant, a small manufacturer and distributor of cleaning products for the food production industry, maintained a mandatory retirement policy and constructively discharged a salesman because of his age, 65. The employee, who had worked for defendant for 5 years, received a letter advising him that defendant had a policy of retiring all full-time employees at age 65. The letter offered him part-time employment, which he accepted; however, he soon was forced to resign because of defendant’s refusal to reimburse him for his car and other expenses. A consent decree provided the employee with $50,000 and enjoins defendant from age discrimination and retaliation, and specifically from maintaining a mandatory retirement policy.

7. Disability Discrimination

a. Hiring and Promotion

Individuals with disabilities frequently encounter attitudinal barriers that limit opportunities to obtain employment or advance in their jobs. In EEOC v. Sears, Roebuck & Co. (D. Mass. April 17, 2007), EEOC alleged that defendant failed to hire a deaf applicant because of his disability. The applicant primarily relies on American Sign Language to communicate, but also reads lips and writes in English. When he attempted to apply for a job at defendant’s Hyannis, Massachusetts store, a human resources specialist told him he was not qualified for any job at Sears because he is deaf. The 2-year consent decree paid the applicant $130,000, and prohibits Sears from engaging in disability discrimination or retaliation. Sears is required to add language to the Welcome Screen of its Job line electronic application stating that it will endeavor to make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability, and that applicants requiring assistance should contact the unit human resources representative. The decree also requires Sears to contact the Cape Cod Organization for Rights of the Disabled each time it advertises job opportunities to the general public during the term of the decree.

EEOC v. JPMorgan Chase Bank, N.A., successor in interest to The Chase Manhattan Bank (S.D.N.Y. Nov. 27, 2006) involved allegations that an employee with a severe stutter was paid less and rejected for promotion because of his disabling speech impairment, and was discharged because of his disability and his complaints about disability discrimination. The employee had worked for Chase Manhattan for 12 years in an entry-level position without being promoted. Under the consent decree, he received $200,000 in monetary relief.

b. Discharge

EEOC v. Capital Pizza Huts, Inc., d/b/a Capital Pizza Huts of Vermont (D. Vt. May 7, 2007) alleged that the defendant, which operates pizza restaurants in seven states, discharged an employee with Down Syndrome because of his disability. The employee had worked at defendant’s Brattleboro, Vermont location for about 13 years as a dishwasher/cleaner when one day the store manager called the employee’s mother and told her he was firing her son. The manager told employees of a state healthcare and rehabilitation agency that defendant “should not lose money by paying [the employee] to do nothing when he could have someone ‘normal’ doing the job.” The manager added, “these kinds of people shouldn’t work.” The manager was later fired for poor judgment and rudeness to various Pizza Hut employees. This case was resolved through a consent decree, which provided $55,000 and an offer of reinstatement to the employee and prohibits defendant from disability discrimination and retaliation. The decree requires defendant to designate an employee to act as a liaison to a job coach/placement agency for persons with disabilities for the purpose of receiving communications concerning job openings for participants in the agency’s job placement programs.

Several of the EEOC cases resolved in FY 2007 involved employees who were discharged when they became disabled during the course of their employment. In EEOC v. United Parcel Service (E.D. Pa. Dec. 5, 2006), EEOC alleged that defendant discharged an employee from his loader/unloader position because of a vision impairment, retinitis pigmentosa, a progressive eye disease which developed during the course of his employment. A new supervisor complained that the employee’s vision was interfering with job safety, although his previous supervisors had not documented any such problems. Defendant suspended the employee, pending information from his doctor. After reviewing the doctor’s information, but without following up with the employee or the doctor concerning the employee’s ability to safely perform the essential functions of his job, defendant discharged him. This case was resolved by consent decree providing the employee with $100,000 and enjoining defendant from disability discrimination and retaliation at its Horsham, Pennsylvania facility.

In EEOC v. Allan A. Myers (a Subsidiary of American Infrastructure, Inc., Worcester, Pa.) (E.D. Pa. May 15, 2007), a long-term heavy equipment operator for a construction company was diagnosed with Hepatitis C when tested at a bloodmobile the employer had sent to a jobsite. The employee told his foreman and coworkers about the diagnosis, and shortly after telling defendant’s owner he was permanently laid off. Two superintendents told him that defendant was downsizing and “he didn’t fit the future image,” and a human resources representative told him “no one wants to work with you.” A 3-year consent decree provided $120,000 to the employee, enjoins discrimination and retaliation under the ADA, and requires annual ADA training of managers and supervisors, including live presentations by a high-ranking official emphasizing defendant’s commitment to preventing disability discrimination.

Employers are liable for discriminating against employees whom they mistakenly think are disabled. In EEOC v. Arizona Public Service Co. (D.N.M. June 14, 2007), EEOC alleged that an electric power company discharged an electrical planner-inspector because it regarded him as substantially limited in working due to a heart condition. The employee had coronary artery disease, necessitating a number of surgeries after which he was able to return to work without restrictions. After surgery, his doctor imposed a 5-pound lifting restriction lasting 6 weeks. Although the employee primarily worked at his desk or on a computer and his job did not require lifting, his supervisor expressed concern about his fitness for employment and caused his termination. A 3-year consent decree provided the employee, who has been rehired by defendant, with $125,000 and enjoins defendant from disability discrimination and retaliation.

In a similar case, EEOC v. Specialty Brands (C.D. Cal. March 9, 2007), EEOC alleged that a manufacturer of frozen specialty food products discharged a sanitation worker because it regarded him as substantially limited in working due to a cardiac impairment. After the employee experienced symptoms of a heart attack, the defendant told him he needed to provide a doctor’s note releasing him to work. Although the employee submitted several doctor’s notes and was fully cleared for work, defendant did not allow him to come back. A 3-year consent decree provided the employee with $75,000, and enjoins defendant from disability discrimination. Defendant must retain an EEO consultant to assist in developing a disability discrimination policy and in implementing procedures to respond to complaints of disability discrimination and requests for reasonable accommodation.

c. Disability-Based Harassment

In EEOC v. Bobrich Enterprises (N.D. Tex. July 27, 2007), EEOC prevailed in a jury trial on a claim that an individual with a severe hearing impairment, who worked as the area supervisor of a number of Subway restaurants in the Dallas metropolitan area, was subjected to a hostile work environment. EEOC presented evidence that defendant’s owner and its human resources manager repeatedly mocked the area supervisor about her hearing impairment and hearing aides, making comments to her in front of other employees such as: “read my lips,” “can you hear me now?” and “you got your ears on?” These comments were made when there was no indication that the employee was having trouble hearing, and were often accompanied by the owner’s and manager’s laughter. The area supervisor resigned because she could no longer tolerate the verbal abuse. The jury awarded her $16,500 in backpay, $50,000 in compensatory damages, and $100,000 in punitive damages. The case is on appeal, as of the date of this report.

d. Reasonable Accommodation

A significant portion of EEOC’s ADA suits result from the failure of employers to meet their responsibilities under the statute to reasonably accommodate the physical or mental limitations of qualified individuals with disabilities. In EEOC v. Fiserv & Fiserv Solutions, d/b/a MortgageServ. (N.D. Ind. Oct. 24, 2006), EEOC alleged that defendant, a provider of management systems, and its subsidiary discriminated against a software development engineer employed at MortgageServ’s South Bend, Indiana facility by failing to reasonably accommodate his disability, resulting in his constructive discharge. The software engineer has cerebellar degeneration, which causes gradual deterioration in the nerves controlling balance and movement. He uses a wheelchair, and eventually became unable to drive himself to work. Defendants permitted him to work from home 3 days a week, but his mother, who drove him to the office the other 2 days and also provided assistance with personal care, moved out of the commuting area. The software engineer was unable to find local affordable assisted living, and asked to work from home full time so he could continue to live with his mother. Defendants denied his request, although it permitted other software development engineers who lived in remote areas to work from home full time. A consent decree provided the employee with $175,725.

In EEOC v. United Parcel Service (C.D. Ill. Dec. 11, 2006), EEOC alleged that defendant failed to provide a reasonable accommodation to an employee with epilepsy, bipolar disorder, and attention deficit hyperactivity disorder, and then discharged him because he was disabled. The employee worked successfully as a loader/unloader for about a year, until UPS assigned him the additional duty of routing packages being loaded onto trucks. This function required him to remember ZIP codes, which he had difficulty doing because of learning problems caused by his impairments. He requested additional training and a transfer to a job that involved only unloading trucks, so he would not have to sort packages by ZIP code. In response, defendant asked for medical information about the need for accommodation, which the employee’s doctor provided. UPS gave the employee additional training, but refused to transfer him because it determined, without clarifying contradictory information provided by his doctor, that he was not disabled. Following its progressive discipline policy, defendant fired the employee because he made too many mistakes sorting packages. The consent decree resolving the case provided for payment of $110,000 to the employee, and enjoins defendant from disability discrimination at its Decatur, Illinois facility.

EEOC v. Daimler Chrysler Corp. (E.D. Mo. Jan. 5, 2007) involved an employee who needed an accommodation due to a severe injury to his right foot, which was run over by a forklift truck at work. After an initial recovery period, the employee was able to perform his job despite restrictions on how long he could stand. However, when he attempted to return to work following medical leave for injuries suffered in a car accident, he discovered that his job had been restructured and was no longer within his work restrictions. Defendant rejected the employee’s accommodation suggestions and never returned him to work. The case settled for $95,000 in monetary relief to the employee. Defendant must report for 2 years on reasonable accommodation requests at its St. Louis South plant and their resolution.

In EEOC v. Starbucks Corp. (W.D. Wash. June 12, 2007), a barista with mental impairments (including bipolar and attention deficit disorders) performed well when she was accommodated with extra training and support, but a new manager stopped accommodating her, and when her performance suffered, he cut her hours, berated her in front of customers, placed her on a performance improvement plan, and discharged her. The case settled for $75,000 in monetary relief to the barista and an additional $10,000 to the Disability Rights Legal Center. Defendant is also required to purge the barista’s employment file of all reviews and notes written by the new manager and to post its EEO policy and a notice of the settlement at all stores in District 127.

Reasonable accommodation sometimes means modifying existing leave policies, unless doing so would cause undue hardship. In EEOC v. Swift Transportation Co. (D. Ariz. Jan. 31, 2007), the defendant denied a month of unpaid leave to an employee who underwent surgery for cancer. Because the employee had worked for defendant less than 6 months at the time of the surgery, he was ineligible for leave under defendant’s policies. The employee received $95,000 in compensatory damages and the employer is enjoined from disability discrimination, refusing to provide reasonable accommodations, and retaliation.

8. Retaliation

Retaliating against individuals because they have opposed discrimination, filed charges, or participated in EEO investigations is prohibited under all the laws enforced by the EEOC. The cases below highlight the variety of retaliation claims resolved during FY 2007.

a. Limitations on the Right to File Charges or Assist Others

In EEOC v. Land O’Lakes, Inc. (D. Minn. Feb. 5, 2007), EEOC alleged that a national food and agriculture cooperative violated the retaliation provisions of Title VII, the ADEA, and the EPA by requiring as a condition of receiving separation payments that terminated employees agree that they had not and would not file a discrimination claim with an administrative agency. The 2-year nationwide consent decree enjoins the employer from entering into any agreement with employees that prohibits the filing of EEOC charges. The decree requires notice to and corrective action towards former employees who were presented with the challenged agreement since April 1, 2004, including tolling of the period to file an EEOC charge and, for those who did not sign the agreement, the opportunity to receive separation benefits under a revised agreement.

EEOC v. Eastman Kodak Co. (W.D.N.Y. Oct. 11, 2006) challenged as retaliatory under Title VII and the ADEA a waiver agreement that employees had to sign to receive severance benefits during a 2003 reduction–in-force and thereafter. The agreement prohibited the employee from “assist[ing] any person or entity in bringing any lawsuit against Kodak,” and stated that any employee providing such assistance must repay the severance benefits received and pay any costs or attorney’s fees incurred by defendant due to violation of the waiver. The nationwide consent decree permanently enjoins Kodak from offering or enforcing any waiver that prevents former employees from assisting others with their discrimination claims. Former employees who executed the challenged agreement within the last 5 years are to be notified that the waiver does not prevent them from filing a charge with EEOC or a state agency or assisting another in the litigation of discrimination claims.

b. Asserting Oneís Own Rights

Following a trial in EEOC v. GoDaddy Software, Inc. (D. Ariz. Dec. 15, 2006) , the jury returned a verdict for defendant, a developer and marketer of computer software and related products, on EEOC’s claim that an employee was denied a sales supervisor position because of his Moroccan national origin and Muslim religion, but the jury found for EEOC on its claim that the employee had been discharged for complaining about national origin and religious discrimination in the selection of sales supervisors. The employee was awarded $41,708 in backpay, $5,000 in compensatory damages, and $195,000 in punitive damages. The case is on appeal, as of the date of this report.

In EEOC v. Comprehensive Benefits Consultants, Inc. (E.D.N.Y. Dec. 10, 2006), EEOC alleged that a third-party health plan administrator retaliated against two female employees who had filed EEOC sexual harassment charges. After the EEOC filed suit under Title VII to challenge the harassment, defendant’s president (the son of defendant’s owner, both of whom harassed female employees) sued each of the claimants in state court for defamation. EEOC amended its complaint to allege retaliation. Under a consent decree resolving the harassment and retaliation claims, four women shared $150,000, and the president was required to dismiss with prejudice the defamation suits. The decree also enjoins sex discrimination and retaliation, and requires the adoption of an antidiscrimination policy and appointment of an individual, named in the decree, as defendant’s human resources officer responsible for receiving and investigating discrimination complaints.

EEOC v. Shaw Environmental, Inc., & Environmental Dimensions, Inc. (E.D. Mo. Sept. 19, 2007) involved claims that a contractor and subcontractor at a nuclear waste cleanup site laid off a female technician, employed by the subcontractor, because of her sex and in retaliation for filing a Title VII suit against her previous employer, who was another subcontractor at the site. Defendant Shaw, the contractor, admitted that at the prior employer’s request it did not assign the female employee to work when the prior employer was on site (Saturdays). The employee was laid off at Shaw’s direction while less experienced and less qualified males were retained. Separate settlements with each defendant provided a total of $95,000 to the employee.

In EEOC v. Circuit City Stores, Inc. (N.D. Ill. July 31, 2007), EEOC alleged that defendant violated Title VII and the ADEA when a custodian at its Naperville, Illinois store with a 6-year exemplary work record was denied compensation, disciplined, and discharged for filing a charge alleging pay discrimination based on his age (54) and national origin (Iraqi). The claimant’s supervisor told him that “he did not think it was a good idea that he had ‘pressed charges’ against Circuit City.” Thereafter, the employee was denied further opportunities to earn extra money by working at other stores lacking full-time custodians. He was then fired for receiving too many “coachings” and “corrective actions” about his performance. The 2-year consent decree provided $75,000 to the claimant and enjoins defendant from retaliation against any person employed in the district.

EEOC v. United Refining Co. (W.D. Pa. Sept. 14, 2007) alleged that two secretaries were discharged for complaining that they were being sexually harassed (sexually explicit comments, sexual jokes and gifts, and touching) by a male supervisor and male coworker. Defendant’s vice president of human resources admonished the two women for complaining of the conduct, which he described as unprofessional and childish. The two secretaries were encouraged to use the employee assistance program to deal with stress and their interactions with other employees. Six months later they were fired as part of an alleged restructuring of their department. The consent decree provided for a total of $170,000 to the two women. Defendant is prohibited from retaliation and must draft and distribute to all employees at the facility an antidiscrimination policy that includes a complaint procedure designed to encourage employees to come forth with discrimination complaints.

In EEOC v. Sierra Aluminum Co. (C.D. Cal. Aug. 17, 2007), EEOC alleged that defendant, a Riverside, California manufacturer of aluminum extrusions, violated Title VII when it fired a female lead person for reporting sexually intimidating conduct by a manager. The employee complained to human resources staff and to the plant manager that she witnessed an assistant manager viewing graphic pornography on his company computer. She was fired within days. EEOC’s settlement provided the employee with $200,000 in compensatory damages. Defendant will adopt an antidiscrimination policy, including a toll free complaint line, and will report semiannually to EEOC for the 3-year term of the consent decree on its investigations of discrimination and retaliation complaints. Defendant must retain an EEO consultant to monitor its compliance with decree and Title VII.

c. Protecting the Rights of Others

EEOC v. Atlanta Gastroenterology Associates, LLC (N.D. Ga. Sept. 21, 2007) involved a Title VII claim that a site manager for a specialty medical practice was discharged because she complained about racially discriminatory practices by managers at an Atlanta-area hospital. The site manager complained on a number of occasions about discrimination against black employees, and was fired a week after writing a letter to management citing examples of racial discrimination. A consent decree provided her with $145,000 in monetary relief, prohibits retaliation, and requires training of managers at all of defendant’s Georgia facilities on Title VII’s prohibitions against retaliation.

In EEOC v. MGM Mirage, Inc., d/b/a Mandalay Bay Resort & Casino (D. Nev. May 29, 2007), EEOC alleged that a Las Vegas luxury hotel and casino violated Title VII by retaliating against kitchen employees for complaining about the sexual harassment of a female cook by a male cook. Coworkers of the female cook complained to management about the male cook’s conduct and the hotel’s failure to take remedial action. The coworkers were subjected to retaliatory conduct by the male cook and a supervisor friendly to him, including threats, physical violence, vandalism of personal property, discipline, and, in one instance, discharge by the supervisor. The settlement provided $300,000 to be distributed to eight claimants, and $10,000 to be paid to a charitable organization. Policies and procedures against discrimination, harassment, and retaliation are to be reviewed, revised, implemented, and distributed in English, Spanish, and Chinese.

EEOC v. Thorman & Wright Corp., et al. (D. Kan. Aug. 17, 2007) alleged that related entities that own and operate hotels and motels in central and western Kansas fired or constructively discharged a general manager at its Topeka Best Western motel because of her pregnancy and in retaliation for her refusal to comply with defendants’ co-owner’s discriminatory instructions. The co-owner frequently made racially derogatory comments about blacks and Mexicans, criticized the manager for hiring minorities, and stated that no minorities had ever worked in the “front of the house.” Shortly after informing defendants’ owners that she was pregnant, the manager told the discriminating co-owner in a meeting that she would not comply with his directive to fire black and Mexican employees. Three weeks later, defendant told the manager it was hiring a new general manager, offered her a sales job with no guaranteed salary, and made her vacate her apartment at the motel. Under the consent decree resolving this case, the manager received $325,000 and a positive job reference. The decree requires that the discriminating co-owner transfer all of his ownership interests in defendants’ motels to a trust and that he be replaced as an officer or board member of any defendant. The co-owner must attend an EEOC-approved cultural sensitivity or employment discrimination program within 6 months of entry of the decree.

F. Outreach: Educating the Public

Outreach and community education are part and parcel of EEOC’s tools to combat employment discrimination, and Office of General Counsel staff are a significant part of these efforts. In fiscal year 2007, legal staff made presentations at 777 outreach events addressing more than 39,630 individuals. In this section of the Annual Report we provide a few examples of OGC’s educational efforts.

The agency’s field legal units have close relationships with advocacy groups and other stakeholder organizations. The following are some examples of this involvement.
The regional attorney from New York provided training on employment discrimination to members of the New York Immigration Coalition. The regional attorney from San Francisco presented “Civil Rights Enforcement in the Post 9/11 and Immigration Debate Climate” at the Filipino American Civic Employees of Seattle annual conference, and presented “The Global Economy and Global Migration: The Impact on Equal Employment Opportunity” at the QUAD Council Conference in San Francisco. A trial attorney from New York conducted a “train the trainers” session on sex harassment and sex discrimination for Non‑Traditional Employment for Women, and participated in a panel discussion on sex discrimination in the construction industry at the “Women ReBuild New York” conference.

An essential aspect of outreach is providing basic information to individuals whose knowledge about EEOC and the civil rights laws is limited. A group of EEOC attorneys from San Francisco were featured speakers at the first national conference for farmworker advocates sponsored by the Southern Poverty Program. A trial attorney from San Francisco spoke about EEOC at "Push and Pull: Free Trade & Immigration," a program co-sponsored by Oakland Worker Center and Centro de la Raza. A trial attorney from the Dallas district discussed the federal antidiscrimination laws on a Catholic TV show entitled “Sus Derechos Legales” sponsored by the San Antonio Catholic Archdiocese and St. Mary’s University School of Law. A trial attorney from the Chicago district represented the EEOC at a Somali Community Forum on “Knowing Your Rights Under Federal, State, and Local Civil/Human Rights Laws” in St. Paul, Minnesota. A trial attorney from San Francisco conducted a workshop on “Fighting Employment Discrimination against Immigrant Workers" at the 2007 San Francisco Immigrant Rights Summit.

Because of the complexities of many aspects of the Americans with Disabilities Act, there is an ongoing demand for information that Commission attorneys are in a unique position to provide. To provide a few examples, the regional attorney from Phoenix gave presentations on ADA coverage, employer responsibilities, undue hardship, and reasonable accommodation for the National Association of ADA Coordinators. A trial attorney from the New York district participated in a panel discussion about the ADA and the ADEA for the Massachusetts Counsel on Aging Workshop. A trial attorney from Philadelphia gave a presentation about the ADA, including prohibited medical inquires and reasonable accommodations, for Moss Rehabilitation Hospital. A trial attorney from St. Louis presented an overview of the ADA to small business employers as part of a seminar geared to "untapped" employee groups. A trial attorney from the Memphis district delivered a speech on mental disabilities to employees and managers at the University of Arkansas.

Commission attorneys frequently meet with employer groups to explain coverage of the federal discrimination laws and the EEOC’s processes. For example, the regional attorney from Dallas presented “National Origin Employment Issues – It’s a Small World” at the annual Southwest SHRM Conference, and discussed citizenship and national origin discrimination at an event for human resources personnel sponsored by Catholic Charities. A supervisory trial attorney from New York gave a presentation to the Greater New York Automobile Dealers Association about sexual harassment.
A trial attorney from the Charlotte district discussed "Retaliation Complaints: The EEOC's Perspective” with human resources managers from the Eastern Region Virginia Chapter of the International Public Management Association. The regional attorney from Houston discussed the EEOC’s new caregiver guidance with the Houston Management Labor Forum.

Office of General Counsel staff continued their support of the Commission’s Youth@Work Initiative, an educational effort directed at teens and their employers. Trial attorneys throughout the Commission have made numerous presentations to high school students about Youth@Work. For example, a trial attorney from San Francisco gave presentations and answered questions at the Galileo High School's STAND (Stop the Abuse and Discrimination) conference, and also gave a Youth@Work presentation to high school students for Chinatown Youth Center. The regional attorney from New York spoke with Business Insurance Magazine about the Youth@Work initiative and a trial attorney from New York spoke about the initiative to the Barnard Young Women’s Leadership Institute. A trial attorney from the Dallas district was interviewed about Youth@Work for a program on a local news program in San Antonio, Texas. A supervisory trial attorney from New York spoke to National Public Radio about sexual harassment against teens and the Commission’s Youth@Work Initiative.

The Commission’s E-RACE Initiative is designed to address major issues of race and color discrimination through an outreach, education, and enforcement campaign focusing on new and emerging race and color issues in the 21st century workplace. The initiative was launched at a February 2007 public Commission meeting at which four regional attorneys made presentations about significant race discrimination cases won by the agency. The regional attorneys were accompanied by the charging parties for whom the Commission had obtained relief. Office of General Counsel staff in all offices worked actively throughout the year to implement this initiative. To name a few examples, the regional attorney and district director from Birmingham held a roundtable discussion with the Birmingham Urban League and the Director of Workforce Development to discuss the E-RACE initiative and opportunities for outreach partnerships. The regional attorney from Atlanta met with the Southern Christian Leadership Conference to discuss E-RACE, the agency’s systemic discrimination initiative, and partnering opportunities. A supervisory trial attorney from San Francisco discussed the systemic discrimination and E-RACE initiatives at a joint presentation with OFCCP at the monthly Northern California Industry Liaison Group meeting. The regional attorney from Memphis spoke to the Memphis Branch of the NAACP about E-RACE and charge processing procedures. A trial attorney from Miami participated in a discussion on race relations with the Anti-Defamation League at the Dade Civil Rights Committee meeting.

Commission attorneys regularly speak to national and local bar groups. To give a few examples, General Counsel Ronald S. Cooper discussed current enforcement issues including ADEA and EPA cases and retaliation and waiver claims with the Federal Labor Standards Legislation Subcommittee of the ABA's Section of Labor and Employment Law. Mr. Cooper also discussed EEOC’s systemic program on a panel at the Midwinter Meeting of the ABA Section of Labor and Employment Law's Equal Employment Opportunity Committee, and spoke about the legal obligations of multinational and overseas employers at the International Employment Law Conference of the Bar Association of San Francisco. The regional attorney from Chicago discussed “EEOC Basics” at presentations before the American Bar Association and the Practicing Law Institute's 35th Annual Institute on Employment Law. The regional attorney from San Francisco discussed “Representing Immigrant Workers” at the State Bar of California, Labor and Employment Section Conference. A trial attorney from Los Angeles spoke about the EEO laws and litigating employment discrimination cases with members of the Guam Bar Association. An assistant general counsel in Washington, DC participated in a panel discussion of whether the "New American Dream is Available to All?" presented at the Labor and Employment Relations Association National Policy Forum. The regional attorneys from Chicago and New York discussed EEOC litigation priorities and strategies at the American Conference Institute's 12th Annual Conference on Employment Practices Liability Insurance.

Office of General Counsel attorneys are frequently interviewed by national and local media on Commission litigation and employment discrimination issues. To highlight just a few examples, the regional attorney from New York was interviewed by numerous media sources about the EEO laws and EEOC charge processing procedures. In particular, she gave multiple interviews concerning pregnancy or caregiver discrimination, including to Good Morning America, the Wall Street Journal, the Boston Globe, National Public Radio, Diversity, Inc., and MSNBC. A trial attorney from Dallas was interviewed about EEOC and discrimination against Latinos and immigrants by the Univision radio program “Buenos Dias Dallas Fort Worth.” A trial attorney from the New York district spoke to the Boston Globe about religious discrimination. In addition, EEOC attorneys across the nation gave media interviews regarding particular Commission lawsuits.

III. Litigation Statistics

A. Overview of Suits Filed

In FY 2007, the field legal units filed 336 merits lawsuits: 333 direct suits and 3 actions to enforce administrative settlements obtained through the agency’s mediation program. (Merits suits include direct suits and interventions alleging violations of the substantive provisions of the Commission’s statutes, and suits to enforce administrative settlements.) One hundred and fifteen of the suits sought relief for multiple aggrieved individuals. The field legal units also filed 26 actions to enforce subpoenas issued during EEOC investigations.

Merit Filings in FY 2007
Count
Direct 333
Intervention 0
Administ. Enf. 3
Total 336
221 Individual Suits
115 Class Suits

1. Litigation Workload

The FY 2007 litigation workload (merits cases active at the start of the fiscal year plus merits suits filed during the fiscal year) totaled 937 suits.

Litigation Workload
Active Filed Workload
FY 2007 601 336 937

2. Filing Authority

With the adoption of the National Enforcement Plan in February 1996, the Commission delegated litigation filing authority to the General Counsel in all but a few areas; in July 1996, the General Counsel redelegated much of his authority to the regional attorneys. Approximately 83% of the cases filed in FY 2007 were authorized by the regional attorneys under their redelegated authority. (Redelegated cases are reviewed by staff in the Office of General Counsel prior to filing.)

FY 2007 Suit Authority
Count Percent
Regional Attorney 278 82.7%
Commission 47 14.3%
General Counsel 11 3.3%

3. Statutes Invoked

Of the 336 merits suits filed, 79.8% contained Title VII claims, 13.7% contained ADA claims, 9.5% contained ADEA claims, 2.1% contained EPA claims, and 4.3% were filed under multiple statutes (concurrent cases). Note: the total percentage exceeds 100% because suits filed under multiple statutes are also included in the tally of suits filed under the particular statute.

Merit Filings in FY 2007
By Statute
Count Percent
Title VII 268 79.8%
ADA 46 13.7%
ADEA 32 9.5%
EPA 7 2.1%
Concurrent 16 4.8%

4. Bases Alleged

As shown in the next table, sex discrimination (43.5%) and retaliation (37.8%) were the bases alleged most often in suits filed on the merits. Race (19.3%), disability (12.2%), and national origin discrimination (11.3%) were the next most frequently alleged bases. Note: Total count exceeds suits filed (336) because suits often contain multiple bases.

Bases Alleged in Suits Filed
Count Percent
Sex 146 43.5%
Retaliation 127 37.8%
Race 65 19.3%
Disability 41 12.2%
National Origin 38 11.3%
Age 32 9.5%
Religion 26 7.7%
Equal Pay 5 1.5%

5. Issues Alleged

Discharge was an issue in over 66.7% of the merits suits filed in FY 2007 when constructive discharge is included. Harassment of all varieties was an issue in 39.3% of suits filed. The chart below shows the most frequently alleged issues.

Issues Alleged in Suits Filed
Count Percent
Discharge 224 66.7%
Constructive Discharge
37 11.0%
Harassment 132 39.3%
Hiring 39 11.6%
Promotion 24 7.1%
Reasonable Accommodation For Disability 20 6.0%
Wages 20 6.0%
Religious Accommodation 15 4.5%

B. Suits Filed by Bases and Issues

1. Sex Discrimination

As shown below, 59.6% of cases with sex as a basis alleged some form of harassment; 36.3% of the cases with sex as a basis alleged some form of discharge.

Sex Discrimination Issues
Count Percent
Harassment 87 59.2%
Discharge 53 36.3%
Terms/Conditions 10 6.8%
Wages 9 6.2%
Hiring 7 4.8%

2. Race Discrimination

As shown below, cases with race as a basis had a higher percentage of harassment alleged (46.2%) than any other issue; race cases alleging discharge were second (30.8%).

Race Discrimination Issues
Count Percent
Harassment 30 46.2%
Discharge 20 30.8%
Terms/Conditions 13 20.0%
Promotion 8 12.3%

3. National Origin Discrimination

As shown in the next table, harassment was the most frequently alleged issue in suits with national origin as a basis (52.6%), followed by discharge at 36.8%.

National Origin Discrimination Issues
Count Percent
Harassment 20 52.6%
Discharge 14 36.8%
Terms/Conditions 12 31.6%
Hiring 5 13.2%

4. Religious Discrimination

As shown below, discharge (57.7%) and reasonable accommodation (57.7%) were the issues most often alleged with religion as a basis.

Religious Discrimination Issues
Count Percent
Discharge 15 57.7%
Reas. Accom. 15 57.7%
Terms/Conditions 3 11.5%
Hiring 2 7.7%

5. Disability Discrimination

As the following table indicates, discharge was the most frequently alleged issue with disability as a basis (65.1% of all suits filed). Reasonable accommodation was the issue next most often alleged (44.2%). Hiring was the issue in 23.3% of the cases filed with disability as a basis.

Disability Discrimination Issues
Count Percent
Discharge 27 57.4%
Reasonable Accom. 19 40.4%
Hiring 7 14.9%
Terms/Conditions 3 6.4%
Promotion 2 4.3%

6. Age Discrimination

As shown below, discharge was the most frequently alleged issue with age as a basis (46.9%). Hiring at 37.5% was the next most frequent issue.

Age Discrimination Issues
Count Percent
Discharge 15 46.9%
Hiring 12 37.5%
Promotion 3 9.4%

7. Retaliation

Discharge was alleged in 86.6% of the suits filed with retaliation as a basis.

Retaliation Issues
Count Percent
Discharge 110 86.6%
Terms/Conditions 9 7.1%
Harassment 8 6.3%

C. Bases Alleged in Suits Filed from FY 2003 through FY 2007

As the following table indicates, during the past 5 fiscal years, from FY 2003 through FY 2007, suits alleging discrimination on the basis of sex, female (excluding pregnancy) ranged from 43.5% to 30.1% of suits filed each year by the EEOC. Race discrimination claims ranged from 21.3% to 15.3%; national origin claims from 11.3% to 7.8%; religion claims from 7.7% to 3.9%; disability claims from 12.8% to 10.5%; age claims from 7.5% to 6.5%; and retaliation claims from 37.9% to 35.8%.

Bases Alleged in Suits Filed FY 2003 - 2007
Percent Distribution
FY Sex(F) Sex(P) Sex(M) Race Nat. Or. Relig. Dis. Age Retal.
2003 43.5% 3.1% 1.9% 17.7% 10.5% 5.5% 12.7% 7.5% 36.3%
2004 42.7% 6.3% 3.4% 15.3% 9.7% 4.2% 11.8% 11.8% 37.9%
2005 34.9% 8.1% 3.9% 21.1% 7.8% 3.9% 12.8% 11.2% 35.8%
2006 33.4% 8.6% 3.2% 21.3% 10.0% 6.5% 10.5% 11.2% 35.8%
2007 30.1% 8.6% 4.8% 19.3% 11.3% 7.7% 12.2% 9.5% 37.8%

D. Suits Resolved

In FY 2007, the Office of General Counsel resolved a total of 365 merits lawsuits, recovering $54,792,069 in monetary relief.

1. Types of Resolutions and Success Rate

As the table below indicates, of the 365 resolutions of merits suits, 77% were by consent decree, 3.6% by settlement agreement, 6.3% by favorable court order, 7.4% by unfavorable court order, and 5.8% by a voluntary dismissal. In 86.9% of the FY 2007 merits resolutions, EEOC obtain a successful result – i.e., either a settlement or a favorable court order.

Types of Resolutions FY 07
Count Percent
Consent Decree 281 77.0%
Unfavorable Court Order 27 7.4%
Favorable Court Order 23 6.3%
Voluntary Dismissal 21 5.8%
Settlement Agreement 13 3.6%
Total 365 100.0%

2. Statutes Invoked

Of the 365 merits suits resolved during the fiscal year,76.3% contained Title VII claims, 10.8% contained ADA claims, 9.3% contained ADEA claims, 4.9% were filed under multiple statutes and 3.6% contained EPA claims. Note: the total percentage exceeds 100% because suits resolved under multiple statutes are also included in the tally of suits resolved under the particular statute.

FY 2007 Resolutions by Statute
Count Percent
Title VII 297 81.4%
ADA 42 11.5%
ADEA 36 9.9%
EPA 14 3.8%
Concurrent 19 5.2%

As shown below, Title VII suits accounted for 71% of all monetary relief obtained, ADEA suits accounted for 5.6%, and ADA suits accounted for 4.3%; 18.7% of the relief came from cases filed under multiple statutes.

FY 2007 Monetary Relief by Statutes
Statute Relief
(Millions)
Relief
Percent
Title VII $38.9 71.0%
ADEA $3.1 5.6%
ADA $2.4 4.3%
EPA $0.2 0.4%
Concurrent $10.2 18.7%
Total $54.7 100.0%

3. Bases Alleged

As shown in the following table, sex was a basis in 47.1% of the suits resolved, retaliation in 38.4% and race in 20.8%. Disability was a basis in 11.5% of the suits resolved and age in 5.6%. Note: Total count exceeds suits resolved (365) because suits often contain multiple bases.

Bases Alleged in Suits Resolved
Count Percent
Sex 172 47.1%
Retaliation 140 38.4%
Race 76 20.8%
Disability 42 11.5%
National Origin 39 10.7%
Age 30 8.2%
Religion 20 5.5%
Equal Pay 10 2.7%

4. Issues Alleged

As shown below, the most frequent issue alleged in suits resolved involved some form of discharge (68.8%). Harassment of some kind was an issue in 46.6% of the suits resolved. The table below shows the most frequently alleged issues.

Issues Alleged in Suits Resolved
Count Percent
Discharge 251 68.8%
Harassment 170 46.6%
Hiring 43 11.8%
Terms/Conditions 42 11.5%
Promotion 24 6.6%
Wages 23 6.3%
Reasonable Accom. for Disability 19 5.2%
Religious Accommodation 11 3.0%

E. Resources

1. Staffing

Since FY 2003, OGC’s field staff has decreased from 332 to 299, with attorney staff decreasing from 210 to 194. The following table shows field and headquarters staffing numbers for the last 5 years.

OGC Staffing (On Board)
Year HQ All Field Field Attorneys*
2003
86
332
210
2004
83
318
208
2005
77
311
203
2006
56
308
200
2007
55
299
194
*Includes Regional Attorneys, Supervisory Trial Attorneys, and Trial Attorneys

2. Litigation Budget

In FY 2007, the litigation support budget was $3.35 million. From FY 2003 through FY 2007, the litigation support funding ranged from $3.30 to $3.65 million. The following table shows litigation support figures for the last 5 years.

Litigation Support Funding
(Millions)
FY FUNDING
2003 $3.30
2004 $3.36
2005 $3.65
2006 $3.48
2007 $3.35

F. Historical Summary: Tables and Charts

1. EEOC Ten-Year Litigation History: FY 1998 through FY 2007

Litigation Statistics, FY 1998 through FY 2007
FY98 FY99 FY00 FY01 FY02 FY03 FY04 FY05 FY06 FY07
Suits
All Suits Filed 414 465 329 428 370 400 421 416 403 362
Merits Suits 374 438 292 388 342 366 387 381 371 336
Suits with Title VII Claims 254 341 236 289 268 298 297 295 294 268
Suits with ADA Claims 87 55 29 66 44 49 46 49 42 46
Suits with ADEA Claims 44 47 33 42 39 27 46 44 50 32
Suits with EPA Claims 10 9 9 14 12 12 5 13 10 7
Suits filed under multiple statues1 19 13 14 19 19 19 14 17 22 16
Subpoena and Preliminary Relief Actions 40 27 37 40 28 34 43 35 32 26
Resolutions
All Resolutions 331 350 440 362 381 381 380 378 418 390
Merits Suits 295 320 407 321 351 351 346 338 383 365
Suits with Title VII Claims 189 211 315 232 266 275 277 259 295 297
Suits with ADA Claims 73 74 53 48 65 50 43 41 50 42
Suits with ADEA Claims 38 51 41 39 26 35 34 45 50 36
Suits with EPA Claims 4 7 6 15 9 13 9 12 8 14
Suits filed under multiple statues 9 22 8 12 15 21 14 18 17 19
Subpoena and Preliminary Relief Actions 36 30 33 41 30 30 34 40 35 25
Monetary Benefits ($ in millions)2 95.6 98.7 52.2 49.8 56.2 146.6 168.6 104.8 44.3 54.8
Title VII 62 49.2 35 33.6 29.2 85.1 158.5 98 34.3 38.9
ADA 2.8 2.9 2.9 2.3 15.1 2.3 2.5 3.4 2.8 3.1
ADEA 29.8 42.8 13.8 3.1 1.4 57.8 5.4 2.4 5.1 2.4
EPA 0 0 0.2 0.2 0.2 0 0 0 0 0.2
Suits filed under multiple statues3 1 3.8 0.4 10.7 10.3 1.5 2.3 1 2.1 10.2

1. Suits filed under multiple statutes are also included in the tally of suits filed under the particular statutes.

2. The sum of the statute benefits in some years will be less than total benefits for the year due to rounding.

3. Monetary benefits recovered in suits filed under multiple statutes are counted separately and are not included in the tally of suits filed under any particular statute.

2. Merits Suits Filed FY 1998 through FY 2007

The chart below shows the number of merits suits filed for FY 1998 through FY 2007.

Chart: Merit Suits Filed

3. Merits Suits Resolved FY 1998 through FY 2007

The chart below shows the number of merits suits resolved for FY 1998 through FY 2007.

Chart: Merit Suits Resolved

4. Monetary Recovery FY 1998 through FY 2007

The chart below shows the monetary recovery for FY 1998 through FY 2007.

Chart: Total Monetary Relief

FOOTNOTES:

(1) The federal district court data relied upon in our review focuses on codes 442 and 445 used by the Administrative Office of the United States Courts. These codes include all suits under Title VII, the ADA, the ADEA, and the Family and Medical Leave Act, and employment-related actions under 42 U.S.C. §§ 1981 and 1983 (Civil War-era civil rights statutes). The federal district court data for non-EEOC cases covers January 2003 through December 2007, and EEOC data covers October 2002 through September 2007.


This page was last modified on December 2, 2009.

Home Return to Home Page