Office of General Counsel Fiscal Year 2020 Annual Report

TABLE OF CONTENTS

I. Structure and Function of the Office of General Counsel

A.   Mission of the Office of General Counsel

B.    Headquarters Programs and Functions

1.     General Counsel

2.     Deputy General Counsel

3.     Litigation Management Services

4.     Internal Litigation Services

5.     Appellate Litigation Services

6.     Research and Analytic Services

C.    District Office Legal Units

II. Fiscal Year 2020 Accomplishments

A.   Summary of District Court Litigation Activity

B.    Selected Systemic Resolutions

C.    Other Selected District Court Resolutions

D.   Selected Appellate Resolutions

III. Litigation Statistics

A.   Overview of Suits Filed

1.   Filing Authority

2.   Statutes Invoked

3.   Bases Alleged

4.   Issues Alleged

B.    Suits Filed by Bases and Issues

1.   Sex Discrimination

2.   Race Discrimination

3.   National Origin Discrimination

4.   Religious Discrimination

5.   Age Discrimination

6.   Disability Discrimination

7.   Retaliation

C.    Bases Alleged in Suits Filed from FY 2016 through FY 2020

D.   Suits Resolved

1.   Types of Resolution

2.   Monetary Relief by Statute

E.    Appellate Activity

F.    Attorney’s Fees Awards

G.   Resources

1.   Staffing

2.   Litigation Budget

H.   EEOC 10-Year Litigation History: FY 2011 through FY 2020

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 (EEOC or 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. 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) (both formerly enforced by the Department of Labor). Subsequently, the General Counsel’s authority was extended to Commission litigation under the employment provisions of the Americans with Disabilities Act of 1990 (ADA) (Title I; effective July 26, 1992) and the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) (Title II; effective November 21, 2009).

The mission of EEOC’s Office of General Counsel (OGC) is to conduct litigation authorized by the Commission to obtain relief for victims of employment discrimination and ensure compliance with the statutes EEOC is charged with enforcing. Under Title VII, the ADA, and GINA, the Commission can sue nongovernmental employers with 15 or more employees. The Commission’s suit authority under the ADEA and the EPA includes both private and state and local governmental employers. Private employers must have 20 or more employees for ADEA coverage, but there is no employee minimum for governmental employers; there is no employee minimum for EPA coverage, but for most private employers coverage requires $500,000 or more in annual business. Title VII, the ADA, GINA, 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.

B.   Headquarters Programs and Functions

1.     General Counsel

The General Counsel is responsible for managing and coordinating the Commission’s enforcement litigation program, and provides overall direction to all components of

OGC, including district office legal units. The General Counsel also provides reports to the Commission on litigation activities and, upon request, advises the EEOC Chair and Commissioners on agency policies and other matters affecting enforcement of the statutes within the Commission’s authority.

2.     Deputy General Counsel

The Deputy General Counsel is responsible for overseeing all programmatic and administrative functions of OGC, including the litigation program and the litigation support budget allocated to OGC by the EEOC Chair. 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. In conjunction with EEOC’s Office of Field Programs, LMS also oversees the integration of district office legal units with the offices’ investigative units. LMS provides direct litigation assistance to district office legal units, drafts guidance, develops training programs and materials, and collects and creates litigation practice materials. LMS also reviews litigation recommendations submitted by district offices. LMS reviews various other field litigation related matters, such as requests to contract for expert services and proposed resolutions in cases in which the General Counsel has retained settlement authority. LMS contains a unit that provides technical support to field offices in matters such as producing, receiving, and organizing electronically stored information in discovery, extracting and preserving digital media, and collecting and preserving information from social media sites.

4.      Internal Litigation Services

Internal Litigation Services (ILS) represents the Commission and its officials on claims brought against the Commission by agency employees and applicants for agency positions and provides legal advice to the Commission and agency management on employment-related matters.

5.     Appellate Litigation Services

Appellate Litigation Services (ALS) is responsible for conducting all appellate litigation where the Commission is a party. ALS also participates as amicus curiae, as approved by the Commission, in United States courts of appeals, federal district courts, and state courts, in cases of interest to the Commission. ALS represents the Commission in the United States Supreme Court through the Department of  Justice’s Office of the Solicitor General. ALS 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. ALS may review 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.

6.     Research and Analytic Services

Research and Analytic Services (RAS) provides testifying and consulting expert services for EEOC cases in litigation. RAS also provides various forms of litigation-related assistance, including advice on drafting discovery requests, database construction, statistical analyses, and labor market determinations; reviews of employment tests and other selection procedures; and damages calculations. RAS also performs analytic work in support of select charges during administrative investigations that involve complex analyses or large, complicated datasets. Other RAS activities include providing training to field legal and enforcement staff in RAS areas of expertise (e.g., economics, statistics, industrial organizational psychology), and representation of EEOC at various agency and interagency initiatives that involve analytic and data-related issues.

C.   District Office Legal Units

District office legal units conduct Commission litigation in the geographic areas covered by the agency’s 15 district offices and provide legal advice and other support to district staff responsible for investigating charges of discrimination. In addition to the district office itself, OGC Trial Attorneys are stationed in most field, area, and local offices within districts. Legal units are under the direction of Regional Attorneys, who manage staffs consisting of Supervisory Trial Attorneys, Trial Attorneys, Paralegals, and support personnel.

II.  Fiscal Year 2020 Accomplishments

In fiscal year 2020, OGC filed 93 merits lawsuits and resolved 165, obtaining over $106 million in monetary relief. Section A below contains summary statistical information on the fiscal year’s trial court litigation results (more detailed statistics appear in part III of the Annual Report). Sections B and C contain descriptions of selected district court resolutions, and Section D contains descriptions of selected appellate and amicus curiae resolutions.

A.  Summary of District Court Litigation Activity

OGC filed 93 merits suits in FY 2020. Merits suits consist of direct suits and interventions alleging violations of the substantive provisions of the Commission’s statutes, and suits to enforce settlements reached during EEOC’s administrative process. All FY 2020 merits suits were direct actions. In addition to merits suits, OGC filed four actions to enforce subpoenas issued during EEOC charge investigations.

OGC’s FY 2020 merits suit filings had the following characteristics:

• 59 contained claims under Title VII (63.4%)
• 1 contained a claim under the EPA (1.1%)
• 7 contained claims under the ADEA (7.5%)
• 32 contained claims under the ADA (34.4%)
• 25 sought relief for multiple individuals (26.9%)

The above statutory claims exceed the number of suits filed (and percentages total over 100) because cases sometimes contain claims under more than one statute. There were six of these “concurrent” suits (6.5%) among the FY 2020 filings.

OGC’s merits filings alleged violations covering a variety of bases: sex (37), disability (29), retaliation (26), race (13), age (7), religion (5), national origin (4), and EPA (1). The issues raised most frequently in EEOC suits were discharge (59), harassment (36), disability accommodation (19), and hiring (14). At the end of FY 2020, EEOC had 201 merits cases on its active district court docket, of which 72 (35.8%) sought relief for multiple individuals.

In FY 2020, the Commission filed 13 systemic lawsuits. These suits contained a variety of claims, including: disability; race and sex hiring; harassment; age-based layoffs; and an action under the EPA. Systemic suits comprised 14% of all merit suits filed in FY 2020. At the end of FY 2020, 41 cases on EEOC’s active litigation docket were systemic suits, accounting for 20.4% of the 201 merits suits.

OGC resolved 165 merits suits in FY 2020, recovering $106,193,215 for 25,925 individuals. OGC achieved a successful outcome (settlement or favorable judgment) in 95.7% of all suit resolutions. Suit resolutions had the following characteristics:

• 99 contained claims under Title VII (60%)
• 5 contained claims under the EPA (3%)
• 11 contained claims under the ADEA (6.7%)
• 58 contained claims under the ADA (35.2%)
• 72 cases sought relief for multiple individuals (43.6%)

The above statutory claims exceed the number of suits filed (and percentages total over 100) because cases sometimes contain claims under more than one statute. There were eight of these “concurrent” suits (4.8%) among the FY 2020 resolutions.

Part III of the Annual Report contains detailed statistical information on OGC’s FY 2020 litigation activities, as well as summary information for past years.

B.   Selected Systemic Resolutions

This past year, OGC resolved 33 systemic cases, recovering $69.9 million for approximately 26,000 individuals. EEOC’s litigation program achieved a 100% success rate in its resolution of systemic suits this year. Below are a few examples of FY 2020 systemic resolutions:

EEOC v. Dolgencorp., LLC d/b/a Dollar General, No. 1:13-cv-04307 (N.D. Ill. Nov. 18, 2019)

EEOC alleged in this Title VII lawsuit that a national low-cost retailer’s use of criminal history in its hiring process had a disparate impact on black applicants, who were rejected due to criminal history at a statistically significant higher rate than nonblack applicants, and was not job related and consistent with business necessity. The case was resolved through a 3-year consent decree providing that any future use of criminal history in hiring must comply with the recommendations of a consultant identified in the decree. The decree also provides that defendant will not discourage applicants with criminal histories from applying; will establish a reconsideration process for individuals whose conditional job offers are rescinded based on criminal history; and will inform individuals receiving conditional job offers that criminal history is not automatically disqualifying and that a reconsideration process exists. The decree provides $6 million in backpay to black applicants during the period January 1, 2004, to September 30, 2019, whose conditional job offers were rescinded based on defendant’s criminal history policy.

EEOC v. Walmart, Inc., No. 6:20-cv-00163 (E.D. Ky. Sept. 9, 2020)

EEOC alleged in this Title VII lawsuit that an international retailer used a physical abilities test in hiring orderfillers at its grocery distribution centers in the United States that had a disparate impact on female applicants, who failed the test at a statistically significant higher rate than male applicants, and was not job related and consistent with business necessity. Orderfiller applicants who failed the physical abilities test were removed from the hiring process. The case was resolved through a 2-year consent decree that includes a 5-year injunction prohibiting use of any physical ability testing in hiring grocery distribution center orderfillers. Defendant will provide written notice to individuals receiving relief under the decree, and notice on its job applicant website, that it does not require physical abilities testing for grocery distribution center orderfiller positions. The decree provides $20 million in backpay to women who applied for grocery distribution center orderfiller positions between February 1, 2010, and defendant’s cessation of use of the physical abilities test, and did not move forward in the hiring process due to their performance on the test.

EEOC v. Champion Fiberglass, Inc., No. 4:17-cv-2226 (S.D. Tex. April 17, 2020)

EEOC alleged in this Title VII lawsuit that a Spring, Texas-based manufacturer of fiberglass conduit, strut, and hangers failed to recruit and hire non-Hispanics for laborer positions because of their race and national origin, and engaged in practices that had a disparate impact on non-Hispanic applicants and job seekers. From at least 2013, defendant preferred Spanish-speaking individuals for laborer positions, and relied on word-of-mouth recruiting from its almost exclusively Hispanic workforce. The case was resolved through a 4-year consent decree providing $225,000 to non-Hispanic, non-Spanish-speaking individuals denied, or deterred from applying for, laborer positions during the period from January 1, 2013, to the effective date of the decree. The decree enjoins expressing a preference for Hispanic and Spanish-speaking applicants or employees, and enjoins relying solely or primarily on word-of-mouth recruiting. Defendant will make good faith efforts to hire qualified non-Hispanic applicants at the 46% availability rate of such individuals in the relevant labor market.

EEOC v. Jackson National Life Insurance Company, Jackson National Life Distributors, LLC, and Jackson National Life Insurance Company of New York, No. 16-cv-02472 (D. Colo. Jan. 7, 2020)

EEOC alleged in this Title VII lawsuit that affiliated providers of insurance and financial products subjected black, female, and African employees to race, color, sex, and national origin discrimination in promotions, compensation, terms and conditions of employment, discipline, discipline, and discharge, and retaliated in various ways against employees who opposed the discriminatory conduct or filed charges with EEOC. The case was resolved through a 4-year consent decree providing $20.5 million to affected individuals, including attorney’s fees to six intervenors. The decree enjoins race, color, sex, and national origin discrimination, and retaliation. Defendants will retain an outside consultant with extensive responsibilities detailed in the decree.

EEOC v. Upstate Niagara Cooperative, Inc., No. 1:16-cv-00842 (W.D.N.Y. Feb. 10, 2020)

EEOC alleged in this Title VII lawsuit that an upstate New York dairy cooperative rejected female applicants for production positions at three facilities because of their sex. The case was resolved through a 4-year consent decree providing $1,350,000 (half backpay and half compensatory damages) to women who applied and were not hired for production positions at any of the three facilities during the period January 1, 2008, through October 31, 2019. The decree prohibits sex discrimination in hiring and recruiting for production positions. Defendant will implement a recruitment plan with a 15% hiring goal for females in production jobs, with quarterly monitoring.

EEOC v. Norfolk Southern Corporation, No. 2:18-cv-14272 (D.N.J. Jan. 30, 2020)

EEOC alleged in this ADEA lawsuit that the operator of a freight railroad system in the Eastern United States denied individuals over the age of 51 positions as special agents monitoring and securing railway operations. A 56-year-old applicant for a special agent position in Elizabeth, New Jersey, was deemed by defendant one of the most competitive candidates based on his online application. When he inquired about his status, he was told by a hiring official that he had been removed from consideration due to his age. The official told him that because employees became eligible to retire at age 62, defendant preferred candidates who would work at least 10 years. The case was resolved through a 3-year companywide consent decree that prohibits refusing to consider or rejecting job applicants age 52 or older because of age. The decree provides $444,500 in backpay and liquidated damages to individuals age 52 and older who applied for special agent or special officer positions between January 1, 2014, and December 31, 2019, and EEOC determines were not hired due to their age.

EEOC v. Jet Propulsion Laboratory, No. 2:20-cv-03131 (C.D. Cal. June 9, 2020)

EEOC alleged in this ADEA lawsuit that a provider of research on space and earth science for NASA laid off, forced into retirement, and denied rehire to employees age 40 and over due to their ages. Defendant underwent a reduction-in-force that disproportionately affected employees in the protected age group, and recruited individuals with an average age of 25 as replacements for the laid off employees. Defendant managers and supervisors referred to new hires as “new blood,” and “training the farm team.” The case was resolved through a 3-year consent decree providing $10 million to affected individuals employed at any time since January 1, 2010. The decree enjoins age discrimination in layoffs and in hiring or rehiring.

EEOC v. FedEx Ground Package System, Inc., No. 2:15-cv-00256 (W.D. Pa. May 11, 2020)

EEOC alleged in this ADA lawsuit that a national package delivery service failed to hire and accommodate deaf and hard-of-hearing individuals who sought or held package handler positions at defendant’s distribution facilities. Defendant failed to provide deaf and hard-of-hearing applicants with reasonable accommodations during the hiring process; failed to provide deaf and hard-of-hearing package handlers with reasonable accommodations for safety and operational meetings, training, and workplace communications; and failed to modify equipment to ensure the workers could perform essential job functions, meet production quotas, and receive safety notifications. The case was resolved through a 2-year consent decree providing $3.3 million in backpay and compensatory damages to affected individuals identified in the decree. The decree enjoins failing to provide reasonable accommodations to deaf and hard-of-hearing package handler applicants or employees, and enjoins taking adverse actions against them based on their hearing disabilities or the need to make reasonable accommodations.

EEOC v. Norfolk Southern Corporation and Norfolk Southern Railway Co., No. 2:17-cv-01251 (W.D. Pa. July 27, 2020)

EEOC alleged in this ADA lawsuit that the operator of a freight railroad system in the Eastern United States, and its wholly-owned subsidiary, disqualified applicants and employees due to their medications or medical conditions without conducting individualized assessments or engaging in the interactive process. The case was resolved through a 2.5-year consent decree providing $2.5 million in backpay and compensatory damages to affected individuals identified in the decree. The decree prohibits unlawfully denying employment to individuals with disabilities for designated positions because of designated medical conditions (positions and conditions listed in the decree). Defendants will create ADA policies with provisions for individualized assessments and for third-party reviews by an EEOC-approved occupational expert of any guidelines related to medical qualifications.

C.   Other Selected District Court Resolutions

Below are representative nonsystemic FY 2020 resolutions:

EEOC v. Air Systems, Inc., No. 5:19-cv-07574 (N.D. Cal. Aug. 20, 2020)

EEOC alleged in this Title VII lawsuit that a San Jose, California, electrical contractor subjected African American employees to racial harassment. In 2016-17, defendant was a subcontractor on a construction site in Cupertino, California. African American Employees at the site were subjected to racially offensive conduct from coworkers, including constant racist graffiti in portable toilets (drawings of nooses and swastikas); racist slurs and taunting; threats of lynching; and display of a noose. The case was resolved through a 16-month consent decree providing $1.25 million in compensatory damages to seven affected individuals. The decree enjoins defendant from discriminating against or subjecting any employee to a hostile work environment based on race.

EEOC v. Albertsons Companies, Inc., and Albertson’s LLC, No. 3:18-cv-00852 (S.D. Cal. June 1, 2020)

EEOC alleged in this Title VII lawsuit that a national grocery chain subjected Hispanic employees at a store in San Diego, California, to a hostile work environment due to their race and national origin. The store director and assistant store director prohibited employees from speaking Spanish, even when they were on break or talking to Spanish-speaking customers. The case was resolved through a consent decree (2-year term from January 8, 2021; delayed implementation date due to COVID-19) applicable to defendant’s Southern California Division stores. The decree provides $210,000 in compensatory damages to affected employees and enjoins the use of training materials that discourage employees from speaking languages other than English. Defendant must inform employees they can speak their native language in all locations throughout the stores in which they work.

EEOC v. Bonneville Hot Springs, Inc. and Carson Hot Springs Resort, LLC, No. 3:19-cv-05409 (W.D. Wash. April 9, 2020)

EEOC alleged in this Title VII lawsuit operators of two resorts in Washington State subjected female employees to sexual harassment through the resorts’ male owner’s sexual comments and propositions and offensive touching. One of the female employees was forced to resign due to the owner’s conduct. The case was resolved through a 5-year consent decree providing $570,000 in compensatory damages to five affected individuals. The decree permanently enjoins defendant from maintaining a sex-based hostile work environment. Defendant will retain a consultant who will receive and investigate all complaints of sexual harassment and retaliation. Defendant’s owner and his daughter (defendant’s general manager) will receive individual, interactive EEOC-approved training of 8 hours on sexual harassment accountability and workplace power dynamics.

EEOC v. Halliburton Energy Services, Inc. No. 3:18-cv-01736 (N.D. Tex. Oct. 7, 2019)

EEOC alleged in this Title VII lawsuit that a provider of products and services to the energy industry subjected a Syrian employee and an Indian employee, both Muslims, to harassment and disparate terms and conditions of employment due to their national origins and religion, and discharged the Syrian employee in retaliation for complaining about the harassment. The two employees worked as operator assistants at defendant’s Odessa, Texas, facility. They were subjected to taunts and derogatory comments (“Syrian ninja,” “camel jockey,” “ISIS brother,” “pray to Allah”) from coworkers and managers, and were given more work and more difficult assignments than other employees. The case was resolved through a 3-year consent decree providing $275,000 to the two employees as directed by EEOC, and permanently enjoining discrimination and harassment based on national origin and religion, and retaliation.

EEOC v. Sunridge Nurseries, Inc., No. 1:19-cv-01365 (E.D. Cal. April 9, 2020)

EEOC alleged in this Title VII lawsuit that a nursery in Bakersfield, California, denied rehire to five long-term Filipino seasonal employees in retaliation for their complaints of national origin discrimination. The Filipino employees, members of the same family, first complained to defendant managers in 2011 that they were being treated less favorably than non-Filipino employees with respect to pay and assignments. When nothing changed after complaining for several seasons to direct supervisors, the five employees put a written complaint in defendant’s complaint box in early 2014. They were not rehired in subsequent seasons.  The case was resolved through a 2-year consent decree providing $237,500 in compensatory damages to the five individuals, and enjoining retaliation.

EEOC v. Whataburger Restaurants LLC, No. 4:17-cv-00428 (N.D. Fla. April 27, 2020)

EEOC alleged in this Title VII lawsuit that a Texas-based operator of fast food restaurants in 10 southern states harassed and constructively discharged the manager of a restaurant in Tallahassee, Florida, in retaliation for her refusal to participate in racially discriminatory hiring practices. In 2015, the general manager over the manager’s restaurant began pressuring her to hire more white employees. After the manager hired seven black employees in April 2015, the general manager reprimanded and attempted to transfer her. She complained to the area manager about the general manager’s hiring directive, and was told the directive was necessary due to the restaurant’s white customer base. Thereafter, the general manager increased the restaurant manager’s workload, demeaned her in front of customers, and reprimanded her, forcing her to resign in July 2015. The case was resolved through a 3-year consent decree providing the restaurant manager, who intervened, $180,000, including attorney’s fees. The decree enjoins defendant’s Tallahassee restaurants from retaliation.

EEOC v. Versant Supply Chain, Inc., and AT&T Services, Inc., No. 2:18-cv-02670 (W.D. Tenn. April 27, 2020)

EEOC alleged in this Title VII lawsuit that defendants denied religious accommodations to applicants assigned by Versant, a logistics provider, to work at AT&T’s Memphis, Tennessee, distribution center. The applicants practice Islam and wore hijabs (head coverings) for religious reasons. AT&T refused to permit them to work at the distribution center, citing safety concerns, and Versant failed to oppose AT&T’s conduct. The case was resolved through a 2-year consent decree applicable to AT&T’s Southaven, Mississippi, location (AT&T no longer operates the Memphis facility) and Versant’s Memphis corporate office. Versant will provide $150,000 in backpay and compensatory damages to be distributed at EEOC’s direction to three affected individuals. The decree enjoins defendants from refusing to permit employees to wear head coverings for religious reasons absent undue hardship.

EEOC v. Covenant Medical Center, Inc., No. 2:20-cv-10662 (E.D. Mich. Sept. 2, 2020)

EEOC alleged in this Title VII/EPA lawsuit that a provider of healthcare in northern and central Michigan paid a female employee less than two male employees who performed substantially the same work as she did. Following a reorganization, defendant placed the female employee and a male coworker into business intelligence developer positions (retrieving and analyzing medical data), and less than a year later hired a male into the same position. The female employee was paid $31.67 an hour, the male coworker $39.94, and the male new hire $35.05. When the female employee inquired about the wage differences, she was told they were based on factors other than sex: the coworker’s salary in his prior position at defendant, and the new hire’s negotiation of his rate. However, the female employee’s extensive experience and the mathematical formula defendant applied to transfer situations should have resulted in a higher hourly rate than she received, and defendant had refused to negotiate her pay rate. The case was resolved through a 2-year consent decree providing the female employee $104,707 (split equally between backpay and liquidated damages), and raising her pay to $40.54 an hour.

EEOC v. Wal-Mart Stores, No. 3:17-cv-739 (W.D. Wis., Oct. 10, 2019)

EEOC alleged in this ADA action that an international retailer denied a reasonable accommodation to an employee with a developmental disability and vision and hearing impairments, and discharged him due to his disabilities. The employee had worked with a job coach as a cart pusher in defendant’s Beloit, Wisconsin, store for 16 years when a new store manager started in June 2015. In the store manager’s first month, he suspended the employee and required him to resubmit medical paperwork to determine if he was fit to work. Although the employee’s condition had not changed, his legal guardian submitted new medical information and requested the continued accommodation of assistance from a job coach. The employee was never returned to work. At trial, defendant contended that the employee was responsible for any breakdown in communications, and that he had abandoned his job. The jury returned a verdict for EEOC, awarding the employee $200,000 in compensatory and $5 million in punitive damages. The court reduced the punitive damages award to $100,000 due to the $300,000 statutory cap on combined compensatory and punitive damages recoveries, and awarded the employee an additional $223,000 for back and frontpay, interest, and the tax consequences of receiving the pay awards in a single year.

EEOC v. Guidewire Software, Inc., No. 5:19-cv-06878 (N.D. Cal. July 24, 2020)

EEOC alleged in this ADA lawsuit that a Foster City, California, provider of software to the insurance industry denied an applicant for a User Experience Designer position a reasonable accommodation for her hearing impairment, and rejected her application because of her disability. The person applied online and was offered an initial telephone screening. She explained to defendant that she wears cochlear implants that limit the clarity of sound through telephones and computers, and requested a face-to-face meeting. Defendant did not follow through with the application process, and offered the position to another person. The case was resolved through a 3-year consent decree providing the applicant $60,000 in backpay and $140,000 in compensatory damages. The decree enjoins failing to engage in the interactive process with an applicant or employee with a disability, and denying reasonable accommodations to qualified individuals with disabilities.

EEOC v. Faurecia Automotive Seating, LLC; Faurecia Madison Automotive Seating, Inc., No. 3:17-cv-757 (S.D. Miss. May 12, 2020)

EEOC alleged in this ADA lawsuit that a manufacturer of automobile seat frames and its Madison, Mississippi, facility denied employment to individuals due to their use of sick or FMLA leave while working for the Madison facility’s predecessor, Johnson Controls, Inc. (JCI). Defendants purchased the Madison facility from JCI in January 2011 and required all JCI employees to reapply for their jobs by completing an application and authorizing review of their JCI personnel records, which included the amount of sick and FMLA leave taken. Defendants admitted making hiring decisions based on sick and FMLA leave used in 2009 and 2010. The case was resolved through a 2-year consent decree providing $825,000 in backpay and compensatory damages to 15 affected individuals, with EEOC determining the distributions.

D.  Selected Appellate Resolutions

In addition to its nationwide litigation program at the district court level, OGC represents the agency in federal courts of appeals, and participates as amicus curiae in private actions in federal courts of appeals and, on occasion, in federal district courts and state courts. Notable appellate decisions in FY 2020 include:

EEOC v. Vantage Energy Services, Inc., 954 F.3d 749 (5th Cir. 2020)

EEOC filed suit seeking relief for an individual who timely filed an unverified EEOC intake questionnaire and later (9 months after the end of the charge-filing period) submitted a verified charge of discrimination alleging unlawful discharge based on disability. The district court issued a “terse, one-sentence judgment” dismissing the case on the ground that the intake questionnaire was not a verified charge. The Fifth Circuit reversed. The court first found that EEOC was not required to plead with specificity that a timely charge had been filed or that it had provided defendant notice of the charge, because Federal Rule of Civil Procedure 9(c) permits conditions precedent to be pled generally. The court next found that Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), an ADEA case involving whether an intake questionnaire could constitute a charge, applied to Title VII and the ADA. The court said that the intake questionnaire in the present case easily satisfied the minimal information requirements of EEOC’s regulation (29 C.F.R. § 1601.12(b)), and that the questionnaire satisfied Holowecki’s additional “request-to-act condition,” because the individual had checked the box on the questionnaire indicating that he wanted to file a charge of discrimination. The court rejected defendant’s argument that Edelman v. Lynchburg College, 535 U.S. 106 (2002), permits verification to relate back only when the verification occurs shortly after expiration of the charge-filing period, stating that nothing in Edelman suggested this. Finally, the court rejected defendant’s argument that its failure to receive notice of the formal charge within 10 days violated due process.

Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020)

In deciding Bostock and two related cases -- EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., and Zarda v. Altitude Express, Inc. -- the Supreme Court affirmed the Sixth Circuit’s ruling for EEOC in Harris Funeral Homes, in which the agency alleged that defendant’s termination of a funeral director because she was transgender constituted sex discrimination under Title VII. In Altitude Express, where EEOC supported the plaintiff as amicus curiae in the court of appeals, the Court affirmed the Second Circuit’s ruling that discrimination on the basis of sexual orientation claim constituted sex discrimination. In a 6-3 opinion, the Court held that Title VII’s “because  of . . . sex” provision prohibits termination based on an employee’s sexual orientation or transgender status. The Court acknowledged that the drafters of Title VII may not have anticipated this result, but found the statute clear, saying that “the written word is the law, and all persons are entitled to its benefit.” In reaching its decision, the Court adopted several of the arguments EEOC has advanced in developing and litigating these coverage issues.

The Court first addressed the meaning of “discriminate . . . because of . . . sex” in Title VII. The Court, for the sake of argument, accepted the employers’ definition of “sex” as “referring only to biological distinctions between male and female.” The Court then focused on the “but-for” standard of causation, finding that the standard is met whenever the purported cause is determinative of the outcome, even if that cause is not the exclusive reason for the challenged employment decision. Turning to “discriminate,” the Court defined the term as “treating [an] individual worse than others who are similarly situated,” and explained that the statute requires focusing on the treatment of individuals rather than groups. The Court framed the following rule: “If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.” 

Applying the above rule to termination based on sexual orientation or transgender status, the Court concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” because “homosexuality and transgender status are inextricably bound up with sex.” The Court said that because of the focus on treatment of the individual, it makes no analytical difference whether the employer discriminates against all men and women who are homosexual or transgender.  “At bottom,” the Court concluded, “these cases involve . . . straightforward application of legal terms with plain and settled meanings.” Finally, the Court noted a potential conflict between the reach of Title VII and employers’ religious convictions, but said that none of the employers in the cases before it represented there was such a conflict at the Supreme Court stage.

Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020)

At issue in this ADEA case, and a related ADA case, was whether the “ministerial exception” to employment discrimination laws applied to two elementary school teachers at Catholic schools who taught religion classes along with the rest of the curriculum. The Supreme Court, agreeing with the position of EEOC as set forth in the Department of Justice’s amicus curiae brief, held that the exception applied. The Court said that “[t]he First Amendment protects the right of religious institutions to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” The Court said that one component of a religious institution’s protected autonomy over internal management decisions is the organization’s selection of the individuals who play “certain key roles.” The Court said that because the teachers in these cases were required to instruct their students in the Catholic faith and to guide them in how to live their lives according to Catholic principles, they fell within the ministerial exception.

Rizo v. Yovino, 950 F.3d 1217 (9th Cir. 2020) (en banc)

In this EPA suit, the en banc Ninth Circuit unanimously affirmed the district court’s denial of summary judgment to defendant, the Fresno County Office of Education. The defendant argued that it had established an affirmative defense under the EPA by showing that the female plaintiff, a math consultant, was paid less than her male colleagues because she earned less than they did in previous jobs. EEOC filed an amicus curiae brief in support of the plaintiff. 

A six-judge majority concluded that an employer cannot rebut an EPA claim through evidence that it based starting salary on an employee’s prior pay, even in combination with other factors. Employers can justify different pay for employees of the opposite sex based on one of the EPA’s three enumerated affirmative defenses — a seniority system, a merit system, or a system that measures earnings by quantity or quality of production — or on a fourth “any other factor other than sex” defense. The court agreed with EEOC that because Congress intended through the EPA “to eliminate deeply rooted pay discrimination between male and female employees who perform the same work,” employers were not permitted to rely on prior pay to justify wage disparities. The majority rejected defendant’s argument that “any other factor other than sex” means any nonsex-based factor, including prior salary. The majority reasoned that if this were true, the three enumerated exceptions would be rendered meaningless. The majority said that because the enumerated exceptions, and the elements of the equal-work principle, are all job related, Congress’ use of the phrase “any other factor other than sex” signaled that the fourth exception is also limited to job-related factors. 

Garrison v. Dolgencorp, L.L.C., 939 F.3d 937 (8th Cir. 2019)

The Eighth Circuit reversed an award of summary judgment to defendant on the plaintiff’s ADA failure to accommodate claim, agreeing with EEOC’s argument as amicus curiae that the ADA does not require a separate adverse action in addition to the failure to accommodate.  The court articulated the elements of an ADA failure to accommodate claim as: (1) the employer knew the employee was disabled; (2) the employee requested a reasonable accommodation; (3) the employer failed to engage in an informal interactive process about possible accommodations; and (4) the disability could have been reasonably accommodated if the interactive process had taken place.  The court then found that a jury could determine that the plaintiff adequately requested an accommodation by repeatedly asking for leave to address her medical issues, even though she did not mention the ADA or use the phrase “reasonable accommodation.” Last, the court agreed with EEOC that a jury could find leave would have been a reasonable accommodation under the ADA where the plaintiff’s supervisor testified that she would have found a way to grant plaintiff leave under the Family Medical Leave Act. 

Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038 (10th Cir. 2020)

The Tenth Circuit held in this lawsuit that claims of discrimination based on sex plus age are cognizable under Title VII.  Nine former employees -- eight women and one man -- had sued defendant for discriminatory discharge under Title VII and the ADEA. The female plaintiffs alleged defendant discharged them because they were women age 40 or older. The district court ruled that sex-plus-age claims could not be brought under Title VII. EEOC filed an amicus curiae brief in support in support of the female plaintiffs’ appeal.

The Tenth Circuit said that although no court of appeals had yet addressed the sex-plus-age issue, EEOC in its compliance manual had recognized such claims.  Quoting Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the court said: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.’” Noting that both the Supreme Court and Tenth Circuit had recognized various sex-plus claims, including where the “plus” factor was not protected by any statute, the Tenth Circuit said there was “no material distinction between a sex-plus-age claim and the other sex-plus claims [it had] previously recognized for which the ‘plus-’ characteristic is not protected under Title VII.” The court rejected defendant’s argument that availability of relief under the ADEA obviated any need for a sex-plus-age claim, observing that “ADEA claims and Title VII sex-plus-age claims address different harms,” and that “[n]othing in the ADEA limits a plaintiff’s ability to bring a claim under Title VII.”  EEOC v. Vantage Energy Services, Inc., 954 F.3d 749 (5th Cir. 2020)

III.         Litigation Statistics

A.  Overview of Suits Filed

In FY 2020, EEOC’s field legal units filed 93 merits lawsuits. Merits suits include direct suits and interventions alleging violations of the substantive provisions of the Commission’s statutes, and suits to enforce settlements reached during EEOC’s administrative process. All FY 2020 filings were direct suits. Thirteen filings were systemic suits and 12 were nonsystemic suits that sought relief for multiple individuals. The field legal units also filed four actions during the fiscal year to enforce subpoenas issued during administrative charge investigations.

1.     Filing Authority

In EEOC's National Enforcement Plan, adopted in February 1996 and reaffirmed most recently in the Commission’s Strategic Enforcement Plan for Fiscal Years 2017-2021, the Commission delegated litigation filing authority to the General Counsel in all but a few areas.

2.     Statutes Invoked

Of the 93 merits suits filed, 63.4% contained Title VII claims, 34.4% contained ADA claims, 7.5% contained ADEA claims, 1.1% contained an EPA claim, and 6.5% were filed under more than one statute. (Statute numbers in the chart below exceed the number of suits filed and percentages total over 100 because suits filed under multiple statutes (“concurrent” cases) are included in the totals of suits filed under each of the statutes.)

3.     Bases Alleged

As shown in the next chart, sex (39.8%), disability (31.2%), retaliation (28%), and race (14%) were the most frequently alleged discriminatory bases in EEOC suits. Bases numbers in the chart exceed the total suit filings because suits often contain multiple bases.

4.     Issues Alleged

As shown in the chart below, discharge was the most frequently alleged issue (64.5%) in EEOC suits filed, followed by harassment (38.7%), disability accommodation (20.4%), and hiring (15.1%). (Counts of discharge include constructive discharge.)

B.   Suits Filed by Bases and Issues

1.     Sex Discrimination

As shown below, 70.3% of sex discrimination claims included a harassment allegation; 45.9% contained a discharge allegation.

 

2.     Race Discrimination

As shown in the next chart, harassment was the most frequent allegation (69.2%) in race discrimination claims.

3.     National Origin Discrimination

As shown in the next chart, discharge and harassment were allegations in half of the national origin claims.

4.     Religious Discrimination

Discharge and failure to accommodate were the most frequent allegations in religious discrimination claims.

5.     Age Discrimination

Discharge was alleged in over half of the age discrimination claims.

6.     Disability Discrimination

Discharge was the most frequent allegation in disability claims (58.6%), followed by failure to accommodate (51.7%) and hiring (24.1%).

 

 

7.     Retaliation

Discharge was by far the most frequent allegation in retaliation claims.

 

C.   Bases Alleged in Suits Filed from FY 2016 through FY 2020

The table below shows the bases on which EEOC suits were filed over the last 5 years.

 

D.  Suits Resolved

In FY 2020, the Office of General Counsel resolved 165 merits lawsuits, obtaining $106,193,215 in monetary relief.

1.     Types of Resolution

As the next chart indicates, 93.3% of EEOC’s suit resolutions were settlements, 6% were determinations on the merits by courts or juries, and .6% were voluntary dismissals. (The figures on favorable and unfavorable court orders do not take appeals into account.)

2.     Monetary Relief by Statute

Of the 165 merits suits resolved during the fiscal year, 60% contained Title VII claims and 35.2% contained ADA claims. (Statute numbers in the chart below exceed the number of suits resolved and the percentages total over 100 because suits resolved under multiple statutes (“concurrent” cases) are also included in the totals of suits resolved under each statute.)

 

As shown in the next chart, Title VII suits accounted for just over two-thirds of the monetary relief obtained in FY 2020, while ADA and ADEA suits each accounted for about 15% of relief recovered. Recoveries in concurrent suits are not included in the totals for the particular statutes.

E.    Appellate Activity

OGC filed 9 briefs on appeal in Commission cases in FY 2020, 8 as appellant and 1 as appellee, and filed 16 briefs as amicus curiae in private suits. Appellate also filed one brief in response to a motion to stay the mandate and one response to a motion to dismiss the Commission’s case as moot and to vacate the courts of appeals’ decision. At the end of FY 2020, EEOC had 7 cases pending in courts of appeals in EEOC suits and was amicus curiae in 23 pending cases. EEOC prevailed in one of two merits cases decided on appeal in FY 2020.

F.    Attorney’s Fees Awards

OGC’s FY 2019 Annual Report stated that EEOC had filed an appeal of an attorney’s fees award against the agency in FY 2019 of $36,397 in EEOC v. Mathews Ford Marion, Inc., No. 3:16-cv-2406 (N.D. Ohio), a disability discrimination case EEOC lost following a bench trial. EEOC later withdrew the appeal, so that attorney’s fees award became final. The FY 2019 Annual Report also included the $3.3 million award against the agency in EEOC v. CRST Van Expedited, Inc., No.  18-1446 (8^th Cir.), a sex discrimination case EEOC lost on summary judgment; the award became final in December 2019, when it was affirmed by the Eighth Circuit.

The statutes enforced by EEOC due not permit the award of attorney’s fees to the agency when it prevails on the merits in a case.

In FY 2020, EEOC was awarded $6,125 in attorney’s fees under Fed. R. Civ. P. 37(a)(5) in discovery matters (two cases) and was required to pay $4,300 in attorney’s fees under that rule (one case).

G.  Resources

1.     Staffing

As shown in the next chart, the number of field attorneys decreased significantly from last fiscal year.

2.     Litigation Budget

EEOC‘s litigation funding for FY 2020 was close to that of FY 2019, and has not varied substantially over the past 5 fiscal years.

 

 

H.  EEOC 10-Year Litigation History: FY 2011 through FY 2020

1 Suits filed or resolved 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 different from 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 the particular statutes.