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OFFICE OF GENERAL COUNSEL
FISCAL YEAR 2012 ANNUAL REPORT

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. Fiscal Year 2012 Accomplishments
    1. Summary of District Court Litigation Activity
    2. Significant District Court Resolutions
      1. Title VII
        1. Race Discrimination
          1. (1) Hiring
          2. (2) Hiring and Discharge
          3. (3) Discharge
          4. (4) Harassment
        2. Sex Discrimination
          1. (1) Discharge
          2. (2) Harassment
          3. (3) Pregnancy
        3. National Origin Discrimination
        4. Religious Discrimination
      2. Equal Pay Act
      3. Age Discrimination in Employment Act
      4. Americans with Disabilities Act
        1. Hiring
        2. Reasonable Accommodation
        3. Medical Inquires
        4. Discharge
        5. Harassment
      5. Retaliation
    3. Appellate Court Litigation
      1. EEOC's Investigative Authority
      2. Individuals Covered
      3. Conditions Precedent to EEOC Suits
      4. Conditions Precedent to Private Suits
      5. Pleading Requirements
      6. Limitations Periods
      7. Arbitration
      8. Proof Issues
        1. Title VII
        2. Equal Pay Act
        3. Age Discrimination in Employment Act
        4. Americans with Disabilities Act
      9. Retaliation
        1. Protected Activity
        2. Adverse Action
      10. Relief Issues
      11. EEOC Liability for Attorney's Fees
    4. 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. Age Discrimination
      6. Disability Discrimination
      7. Retaliation
    3. Bases Alleged in Suits Filed from FY 2006 through FY 2010
    4. Suits Resolved
      1. Types of Resolutions
      2. Statutes Invoked
      3. Bases Alleged
      4. Issues Alleged
      5. Appellate Activity
    5. Attorney's Fees Awarded against EEOC
    6. Resources
      1. Staffing
      2. Litigation Budget
    7. Historical Summary: Tables and Charts
      1. EEOC 10-Year Litigation History: FY 2003 through FY 2012
      2. Merits Suits Filed FY 2003 through FY 2012
      3. Merits Suits Resolved FY 2003 through FY 2012
      4. Monetary Recovery FY 2003 through FY 2012

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 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 on behalf of 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 (20 or more employees) and the EPA (no employee minimum, but for most private employers $500,000 or more in annual business) includes state and local governmental employers. 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, coordinating, and directing the Commission's enforcement litigation program. He or she also provides overall guidance and management to all 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 provides reports regularly to the Commission on litigation activities, and advises the 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 is responsible for overseeing all programmatic and administrative functions of OGC, including 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 EEOC's 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 provides 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 reviews proposed suit filings by regional attorneys under their redelegated litigation authority from the General Counsel, and reviews various litigation related matters, such as requests to contract for expert services and proposed resolutions in cases in which OGC 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. 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 claims brought against the Commission by agency employees and applicant for agency jobs, 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 Department of Justice's 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. 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 areas such as economics, statistics, and psychology, who serve as consulting and testifying 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 coordinates with EEOC's procurement division in contracting for expert and other services that due to the cost (over $25,000) require headquarters approval.

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 staff responsible for investigating charges of discrimination. In addition to the district office itself, OGC trial attorneys are stationed in most of the 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 2012 Accomplishments

In fiscal year 2012, OGC filed 122 merits lawsuits and resolved 251, obtaining ­­­over $43 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 trial and appellate cases. Section D describes some of the outreach conducted by OGC staff during the year

A. Summary of District Court Litigation Activity

OGC filed 122 merits suits in FY 2012. 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. No interventions were filed during the fiscal year; two suits were filed to enforce administrative settlements. In addition to merits suits, OGC filed 33 actions to enforce subpoenas issued during EEOC investigations.

OGC's FY 2012 merits suit filings had the following characteristics:

66 contained claims under Title VII (54.1%)
2 contained claims under the EPA (1.6%)
12 contained claims under the ADEA (9.8%)
45 contained claims under the ADA (36.9%)
36 sought relief for more than one person (29.5%)

The above claims exceed the number of suits filed (and percentages total over 100) because cases sometimes contain claims under more than one statute. There were three (2.5%) of these "concurrent" suits among the FY 2012 filings.

OGC resolved 251 merits suits in fiscal year 2012, resulting in monetary relief of $43,262,099. These resolutions had the following characteristics:

159 contained claims under Title VII (63.3%)
29 contained claims under the ADEA (11.6%)
72 contained claims under the ADA (28.7%)
90 cases sought relief for more than one person (35.8%)
11 were concurrent suits (4.4%)

Part III of the Annual Report contains detailed statistical information on OGC's FY 2012 litigation activities, as well as summary information for past years.

B. Significant District Court Resolutions

1. Title VII

a. Race Discrimination

(1) Hiring

In EEOC v. Choctaw Transportation, Inc., No. 1:10-cv-01248 (W.D. Tenn. Jan. 18, 2012), EEOC alleged that a provider of marine construction and transportation services denied employment to a black applicant because of his race. In December 2007, an experienced black applicant was offered a deckhand position at defendant's Dyersburg, Tennessee, facility. He was sent to orientation where he was given a physical and a drug test and completed necessary paperwork. During subsequent telephone conversations with the boat pilot who had offered him the position, the applicant was assured that he had been hired and that defendant was looking for a position for him. In April 2008, the boat pilot told the applicant he had been told he could not put him on a boat because he is black. In an interview with EEOC after leaving defendant, the boat pilot said defendant's safety director had told him defendant could not place a black man with white men as a deckhand because there would be problems when the white employees said "nigger," and there would be fights. A 3-year consent decree provides $75,000 to the black applicant, and enjoins defendant from discriminating against African Americans in hiring. Defendant will make a good faith effort to hire African American employees at the rate of at least 25%, which represents the external availability for the area.

In EEOC v. Bankers Asset Mgmt., Inc., No. 4:10-cv-02070 (E.D. Ark. April 17, 2012), EEOC alleged that a real estate brokerage firm in Little Rock, Arkansas, failed to hire black applicants for positions such as premarketer and asset manager due to their race. Defendant's president told employees responsible for screening and hiring applicants to identify the race of applicants by name or voice and to discard applications and resumes from applicants believed to be black. EEOC also alleged that in August 2008 defendant demoted and constructively discharged an asset manager in retaliation for her opposition to the president's race discrimination, and that in July 2009 defendant filed a third-party state court complaint for indemnification against the asset manager and two other former employees in retaliation for their submission of affidavits in support of a black applicant's state court race discrimination suit. A 3-year consent decree provides for $600,000 to be paid in installments to about 15 rejected black applicants and three individuals who were retaliated against, and enjoins defendant from race discrimination against blacks in hiring and from retaliation under Title VII. Defendant will use its best efforts during the decree to hire qualified black employees at a 25% rate, reflecting the external availability of the workforce in the area.

(2) Hiring and Discharge

In EEOC v. New Indianapolis Hotels, LLC d/b/a Hampton Inn, and Noble Management Company, LLC, No. 1-10-CV-01234 (S.D. Ind. Sept. 20, 2012), EEOC alleged that a Hampton Inn hotel franchise in Indianapolis, Indiana, and a company that managed the hotel, denied housekeeping positions to black applicants because of their race; paid black housekeeping employees less and gave them fewer hours than nonblack housekeepers because of their race; and discharged black housekeepers because of their race and in retaliation for complaining about race discrimination. In December 2007, defendant New Indianapolis Hotels purchased the Hampton Inn East hotel in Indianapolis and hired a new general manager, who over the next year and a half replaced the almost all black housekeeping staff with Hispanic employees. The general manager also paid some Hispanic employees more, and gave them more hours, than black employees, and following a November 2008 meeting during which black housekeepers complained about their treatment, she reduced the hours of several black housekeepers and then fired some of them. A 5-year consent decree provides $355,000 to rejected black applicants and to black employees who were paid less because of their race or discharged because of their race or in retaliation for opposing race discrimination. The decree enjoins defendants from race discrimination and retaliation. Defendants will offer jobs to three discharged black housekeepers.

(3) Discharge

In EEOC v. Matrix, LLC, No. 2:11-cv-06183 (E.D. Pa. Jan. 6, 2012), EEOC alleged that a provider of commercial cleaning services operating in seven mid-Atlantic states discharged a class of black cleaning employees because of their race, and discharged their white supervisor for opposing an instruction not to hire any additional black employees. In late 2006, defendant was awarded a contract to provide janitorial services to a State Farm Insurance building in Concordville, Pennsylvania. Almost all members of the 15-member night cleaning crew at the building were black. A white supervisor hired in June 2007 was told the next month not to hire any more black cleaners, but she hired four additional black cleaners, the last on October 15, 2007. Defendant terminated the supervisor and all of the black cleaners on October 19, 2007, and replaced the black cleaners with nonblack employees. A 3-year consent decree provides $450,000 in backpay and compensatory damages, distributed by EEOC to 14 former black cleaners and the former white supervisor. The decree enjoins defendant from making adverse employment and hiring decisions based on race, and from retaliation.

In EEOC v. U.S. Foodservice, Inc., No. 2:11-cv-02861 (W.D. Tenn. Sept. 10, 2012), EEOC alleged that a national distributer of food products, cleaning supplies, and food service equipment disciplined and discharged a black night warehouse supervisor because of his race. In January 2010, a white delivery driver reported to work late and admitted to the black supervisor that he had been drinking. The supervisor spoke with the transportation manager, who told him to detain the driver. Despite the supervisor's efforts, the driver left on his route. The transportation manager sent a safety specialist (white) to the driver's first stop to evaluate the driver's condition. The safety specialist accepted the driver's word that although he had been drinking, he was fit to drive. Due to a customer's complaint about the driver's condition, defendant conducted an investigation and discharged the black supervisor for allowing the driver to go out on his route. Defendant did not discipline the safety specialist, and only issued the driver a final warning. An 18-month consent decree, applicable to defendant's East Holmes Road facility in Memphis, Tennessee, provides $40,000 in backpay and $125,000 in compensatory damages to the discharged black supervisor and enjoins defendant from race discrimination.

(4) Harassment

In EEOC v. Ready Mix USA dba Couch Ready Mix USA LLC, No. 2:09-CV-00923 (M.D. Ala. Feb. 2, 2012), EEOC alleged that a cement manufacturer subjected black truckdrivers at three Montgomery, Alabama-area plants to a racially hostile work environment through the conduct of a white supervisor. The supervisor, often in the presence of other supervisors and managers, used racial slurs and stereotypes, commented about the Ku Klux Klan, and made implied threats of violence. A black driver complained to management in the fall of 2007, but defendant failed to investigate until a complaint made a year later to two human resources managers resulted in the white supervisor's discharge. A 2-year consent decree provides $400,000 in compensatory damages for seven black drivers, including attorney's fees for six who intervened. The decree applies to defendant's facilities in Montgomery and Elmore Counties, Alabama, and enjoins defendant from race discrimination and from permitting a racially hostile work environment.

In EEOC v. AA Foundries, Inc., No. SA-11-CA-792 (W.D. Tex. Sept. 26, 2012), EEOC alleged that a foundry in San Antonio, Texas, that manufactures metal castings and other foundry products subjected African American employees to a racially hostile work environment from at least January 2010. The harassment included the regular use of racial epithets by defendant's white superintendent and white employees, and the display of racially offensive pictures and posters and of a hangman's noose. Following a 3-day trial in September 2012 on EEOC's claims for four African Americans, the jury returned a verdict for EEOC on three of the four individuals, awarding them $40,000, $60,000, and $100,000 in punitive damages (subject to $50,000 statutory caps); the jury returned a verdict for defendant on the fourth person. The court permanently enjoined defendant from facilitating, condoning, or encouraging a hostile work environment based on race, or engaging in any other employment practice that discriminates based on race. The court also ordered that defendant adopt and distribute a policy prohibiting racial harassment; adopt a complaint procedure designed to encourage employees to report violations of defendant's racial harassment policy; promptly investigate all racial harassment complaints and take prompt and effective action to remedy any violations found; and conduct equal employment opportunity training for all employees.

In EEOC v. Yellow Transportation, Inc., and YRC, Inc., No. 1:09-cv-07693 (N.D. Ill. Sept. 25, 2012), EEOC alleged that an interstate trucking company and its successor subjected black employees at the companies' former Chicago Ridge, Illinois, freight terminal to a racially hostile work environment and disparate terms and conditions of employment (more difficult assignments, more frequent and greater discipline, greater scrutiny, and lower paying or less favorable work assignments). EEOC's suit was consolidated for purposes of settlement with a private class action filed under 42 U.S.C. § 1981. A consent decree provides for $11 million (including $1.1 million attorney's fees to section 1981 class counsel) to be paid into a settlement fund for black dockworkers, hostlers, spotters, janitors, and clerical employees. EEOC will determine eligibility for and the amount of monetary awards (subject to court approval). The decree states that the court finds that adequate injunctive relief to the settlement class is provided by a consent decree entered in December 2010 resolving a suit filed by EEOC against defendants involving racial harassment of black employees and racially discriminatory terms and conditions of employment at two other Illinois facilities.

b. Sex Discrimination

(1) Discharge

In EEOC v. Filterfresh Coffee Services, Inc., No. 1:11-cv-03331 (N.D. Ga. Sept. 10, 2012), EEOC alleged that a coffee service provider with over 40 locations nationwide discharged a female business development representative at its Atlanta, Georgia, branch because of her sex. The business development representative and a male coworker were responsible for generating new business and cultivating existing client relationships in the Atlanta branch. In June 2009, defendant placed them on identical performance improvement plans (PIPs) due to their failure to meet sales goals. Defendant's male Atlanta general manager engaged in conduct impeding the female employee's ability to pass her PIP (omitting major accounts from her sales reports, failing to provide sufficient sales leads, rejecting several sales, requiring her to perform administrative tasks), while treating her male coworker more favorably (providing him with leads, approving his deals). The male employee successfully completed his PIP, while the female employee was discharged in July 2009 and replaced by a man. A 2-year consent decree provides $90,000 in compensatory damages and backpay to the discharged female employee and enjoins defendant from sex discrimination. .

(2) Harassment

In EEOC v. AHMC Garfield Medical Center LP dba Garfield Medical Center, No. 10-CV-06179 (C.D. Cal. Nov. 11, 2011), EEOC alleged that an acute care medical facility in Monterey Park, California subjected female employees to a sexually hostile work environment. A male emergency room employee made sexually explicit and suggestive comments to female employees, touched them inappropriately, and commented about their bodies and the bodies of female patients. Female employees reported the conduct to supervisors but it continued, causing some of the female employees to resign. Although complaints were made about the male employee beginning in early 2007, he was not discharged until over 2 years later. A 3-year consent decree provides $530,000 in compensatory damages ($430,000 to 10 identified individuals and $100,000 into a class fund to be distributed by EEOC). The decree enjoins defendant from sex discrimination, sexual harassment, and retaliation. Defendant will hire an EEOC-approved EEO consultant to monitor compliance with the decree and provide semiannual reports on defendant's compliance with Title VII and the decree.

In EEOC v. DynCorp Int'l, LLC, No. 1:11cv-874 (E.D. Va. Jan. 6, 2012), a Falls Church, Virginia-based provider of security, aircraft maintenance, and other services to the federal government subjected a male aircraft mechanic to a sexually hostile work environment and transferred him in retaliation for complaining about the harassment. Shortly after the mechanic was assigned to a team based in Iraq, a male coworker began making daily derogatory comments to him, using terms such as "faggot," "dick-sucker," "queer," "whiny little bitch," and "short little bitch." The coworker also accused the mechanic of engaging in homosexual acts and described such acts to him. The mechanic regularly complained to onsite managers about the coworker's conduct, but nothing was done to stop it. A manager told the mechanic that if he continued to complain, defendant would get rid of him. Shortly after he emailed complaints about the coworker to defendant's regional manager and the human resources office, the mechanic was transferred to a site in Germany, which resulted in lower pay and benefits. A 2-year consent decree provides $25,000 in backpay and $130,000 in compensatory damages to the mechanic, and prohibits sex discrimination and retaliation.

In EEOC v. 441 S.B. LLC dba Hurricane Grill & Wings, No. 9-11-cv-80766 (S.D. Fla. Feb. 22, 2012), EEOC alleged that the former operator of a Hurricane Grill & Wings franchise in Royal Palm Beach, Florida, permitted a male customer to sexually harass female employees, and changed a server's working hours and terminated her in retaliation for complaining about the customer's conduct. A Palm Beach County deputy sheriff who was married to a shift manager/bartender at the restaurant regularly frequented the restaurant's bar during his wife's shifts, and while there subjected female employees to offensive sexual conduct, including touching, sexually explicit language, and sexual propositions. A female server complained to multiple managers about the customer, but instead of banning him, defendant rearranged the server's schedule so that she didn't share shifts with the customer's wife; the schedule change (mostly to day shifts) caused the server to earn less. A few months after the schedule changes, the server was fired. A 3-year consent decree provides $75,000 to the discharged server and $125,000 to five female employees. The decree enjoins defendant and the restaurant's new owner from permitting or engaging in sex discrimination, including sexual harassment by employees and customers, and enjoins retaliation. The decree requires the new owner to formally notify the deputy sheriff to remain at least 200 feet away from the restaurant at all times unless on police business; if the deputy fails to comply, the owner must seek a No-Trespass Order in state court or file a written complaint against the customer with the Palm Beach County Sheriff's Office.

In EEOC v. Kaizen Restaurants, Inc., d/b/a Burger King, No. 11-cv-01181 (D. Ore. April 16, 2012), EEOC alleged that an owner and operator of 31 Burger King fast food restaurants in Oregon and Washington subjected a female crewmember to a sexually hostile work environment, causing her constructive discharge. The female employee started at a restaurant in Sandy, Oregon in May 2007 at the age of 16. After being placed on the evening shift in 2008, she was subjected to continuous requests for sex and inappropriate sexually suggestive comments and jokes by her male shift supervisor. She complained to the restaurant manager and other managers on several occasions, but nothing was done to stop the supervisor's conduct, which escalated to touching and tickling in 2009. In May 2010, the supervisor warned the female crewmember about complaining to the restaurant manager about him, became physically threatening, and sent her home early. She resigned the next day, due to fear for her safety. A 3-year consent decree provides $10,000 in backpay, $123,334 in compensatory damages, and $17,666 in attorney's fees to the former crewmember and enjoins defendant from sexual harassment and retaliation.

In EEOC v. Missoula Mac, Inc., d/b/a McDonalds's Restaurants, No. 3:11-cv-267 (W.D. Wis. July 17, 2012), EEOC alleged that the franchisee of approximately 25 McDonald's restaurants in Wisconsin subjected female crewmembers and cashiers at a Reedsburg, Wisconsin, restaurant, some of whom were teenagers, to a sexually hostile work environment and retaliated against employees who complained. From late 2006 through early 2008, male coworkers subjected female employees to sexual comments and gestures, kissing, and grabbing and groping of private areas. Three of the female employees complained about the harassment to various managers, but defendant's response was inadequate. One of the three quit due to the continuing harassment, and the two others were discharged. The restaurant's general manager told one of the two discharged women that she complained too much and that the other woman had been fired for complaining. A 4-year consent decree provides $1 million to the three discharged women and seven other female employees. The decree covers all of defendant's restaurants and prohibits defendant from facilitating or permitting a sexually hostile working environment and from retaliation. Defendant will create an ombudsperson position filled by a person bilingual in English and Spanish, who will be responsible for resolving complaints relating to working conditions at its restaurants, and for reporting such complaints to defendant's vice president and president on a monthly basis, with copies to EEOC quarterly. Defendant will establish a sexual harassment/retaliation 24/7 telephone hotline and email address.

(3) Pregnancy

In EEOC v. Olam Americas, Inc., and Olam West Coast, Inc., No. 1:11-CV-01548 (E.D. Cal. March 15, 2012), EEOC alleged that a global supplier and processor of agricultural products and a subsidiary rejected a female applicant due to her pregnancy. The applicant was recruited by a staffing firm for an executive assistant position at Olam West Coast's Fresno, California, headquarters and in December 2010 was offered the job. After accepting, she informed Olam West Coast's human resources director that she was pregnant. Three days later, defendants rescinded the job offer. The human resources director told the staffing firm to inform the applicant that defendants had decided not to fill the job, but that if the position reopened she would be called back and considered. A few days later, defendants hired an individual it had initially rejected in favor of the pregnant applicant. A 3-year consent decree, applicable to the Fresno headquarters and six California facilities, provides the rejected applicant $140,000, and enjoins defendants from pregnancy discrimination and retaliation

c. National Origin Discrimination

In EEOC v. TOG Enterprises, Inc., and TOG Hotels, LLC d/b/a Four Points by Sheraton, No. 10-CV 10-1230 (D. Ariz. May 4, 2012), EEOC alleged that the owners and operators of the Four Points by Sheraton hotel in Phoenix, Arizona, subjected an executive chef to a hostile work environment because of his national origin, Iraqi/Middle Eastern, resulting in his constructive discharge. The chef began working at the hotel in 2003. Starting in late 2005, the hotel's banquet manager began calling him "camel jockey," mimicking his accent, taunting him with news stories relating to Iraq and the capture of terrorists, and making references to harming Arabs. The chef complained about the banquet manager's conduct to various managers, some of whom witnessed the conduct, but the situation did not improve and the chef resigned in October 2006. A 3-year consent decree provides $7,000 in backpay and $43,000 in compensatory damages to the former executive chef. The decree permanently enjoins defendants from discrimination and harassment on the basis of national origin and from retaliation. Defendants will provide the former executive chef with a personalized copy of a favorable letter of reference and a letter of apology.

In EEOC v. Fremont Automobile Dealership dba Fremont Toyota, No. 11-04131 (N.D. Cal. Aug. 3, 2012), EEOC alleged that a car dealership with multiple locations in the greater San Francisco Bay area, subjected four Afghani salespersons to harassment due to their national origin, resulting in their constructive discharges, and discharged an Afghani sales/finance manager in retaliation for opposing the harassment of the salespersons. At a staff meeting on October 18, 2007, defendant's general manager, who had had little interaction with the Afghani salespersons, launched a hostile tirade against them, calling them terrorists, asking if they were planning a terrorist attack against the United States, and threatening to "blow them up." The salespersons complained to other managers the next day, but no action was taken. The general manager began following the salespersons around in a golf cart and glaring at them. The salespersons called defendants' hotline number but were unable to register a complaint, and feeling threatened and isolated, they resigned on October 23. 2007. After receiving notice in November 2007 of the salespersons' EEOC charges, the general manager accused the Afghani sales/finance manager of assisting them. The sales/finance manager was discharged in early December 2007. A 3-year consent decree provides $400,000 to the four salespersons and the sales/finance manager in amounts determined by EEOC, and enjoins defendant from discriminating on the basis of national origin in terms and conditions of employment, and from retaliating for opposing national origin discrimination.

In EEOC v. Central California Foundation for Health d/b/a Delano Regional Medical Center, and Delano Health Associates, Inc., No. 10-CV-01492 (E.D. Cal. Sept. 17, 2012), EEOC alleged that an acute care hospital in Delano, California, and a subsidiary that provides registered nurses for the hospital, subjected Filipino employees to a hostile work environment and adverse terms and conditions of employment due to their national origin. Most of the hospital's nursing staff are Filipino. In August 2006, following a patient complaint about two Filipino nurses speaking to each other in their native language, the hospital's CEO held two meetings at which he discussed the patient's complaint and a previously unenforced, and largely unknown, policy prohibiting speaking languages other than English unless necessary for business purposes. After the meetings, supervisors and coworkers began taunting the Filipino nursing staff about compliance with the English-only policy, and supervisors threatened them with suspensions for noncompliance. The policy was not enforced against employees of Mexican and East Indian national origins who spoke Spanish or Punjabi at work. A 3-year consent decree provides $975,000 to approximately 70 individuals and enjoins defendants from national origin discrimination and retaliation. Defendants will hire an EEO monitor (identified in the decree) to ensure their compliance with the decree, including appointment of an independent agency to conduct harassment, discrimination, and retaliation investigations.

In EEOC v. Scully Distributions Services, Inc., and Ryder System, Inc., No. 11-CV-08090 (C.D. Cal. Sept. 27, 2012), EEOC alleged that Scully Distribution Services, which provided custom transportation services to businesses in a number of Western States, subjected employees (mostly drivers) to harassment and disparate terms and conditions of employment based on race (black, Asian), national origin (Hispanic, East Indian), and religion (perceived Muslim), and discharged a manager for opposing the discrimination. From 2006, managers at Scully's northern California locations referred to minority employees as "lazy niggers," "sand nigger," "Al Qaeda," "camel jockey," "Taliban," "terrorist," and "spic." Managers also assigned minority, but not white, drivers to runs longer than permitted under Department of Transportation regulations, failed to provide minority drivers with lodging and overtime pay for the runs, and required them to falsify their trip sheets and log books. Scully's northern California operations manager was discharged in August 2010, just 3 weeks after complaining to higher level officials about other managers' discriminatory conduct and disciplining one of the managers. Scully was purchased by defendant Ryder in January 2011. A 2-year consent decree applies to Scully for monetary and to Ryder for equitable relief. Scully will pay a total of $630,000 ($390,000 to three drivers and $240,000 into a class fund) to be distributed at EEOC's discretion. Ryder has implemented antidiscrimination policies and complaint procedures.

d. Religious Discrimination

In EEOC v. Dresser-Rand Co., No. 0:04-CV-06300 (W.D.N.Y. Oct. 28, 2011), EEOC alleged that a manufacturer of products for the power and energy industries failed to accommodate the religious practices of a Jehovah's Witness working as a parts inspector/machinist and disciplined and discharged him because of his religion. The employee's religious beliefs prohibit him from working on implements of war, and when in December 2002 defendant assigned him to work on a Navy contract he objected on religious grounds. Defendant told him refusing the job would constitute insubordination, and then suspended him and 10 days later discharged him. The employee had worked for defendant on and off for close to 30 years, and in the past defendant had reassigned him from work on military contracts when he raised religious objections. A 3-year consent decree provides the former employee $110,000 (half backpay and half compensatory damages). The decree enjoins defendant from failing to provide reasonable religious accommodations as required under Title VII.

In EEOC v. AutoZone, Inc., LLC, No. 1:10-cv-11648 (D. Mass. March 29, 2012), EEOC alleged that a national distributer and retailer of autoparts failed to accommodate a senior sales associate's religious practices and discharged him because of his religion and in retaliation for opposing unlawful employment practices. In September 2009, the employee told his store manager that he had converted to the Sikh religion and was required to wear a turban and kara (a steel slave bangle) and leave his facial hair uncut. Defendant managers then began subjecting him to harassing conduct, such as asking if he was a terrorist, calling him "Sikhi" and "Poon-Jabi King," and referring to his turban as a towel. After the employee complained, defendant placed him on paid leave and investigated. Defendant found that the employee had been subjected to inappropriate comments about his religion, but refused to return him to work without written documentation of his need for a religious accommodation, even though he had previously provided such information. Defendant discharged the employee in late December 2009. A 3-year consent decree provides the former employee $13,000 in backpay and $62,000 in compensatory damages and enjoins defendant from religious discrimination and retaliation. Defendant will adopt a religious nondiscrimination and accommodation policy (attached to the decree) and notify all store and human resources managers that the policy has been added to defendant's handbook. 

2. Equal Pay Act

In EEOC v. National Railroad Passenger Corp., aka Amtrak, No. 11-00692 (E.D. Pa. Nov. 9, 2011), EEOC alleged that a national passenger rail network paid a female regional human resources director less than male employees in the same position, and retaliated against her for filing a discrimination charge under the Equal Pay Act and Title VII. As director of human resources for defendant's East Region from 2000 through 2006, the female director had a much greater workload than her male counterparts in defendant's Central and West Regions, but was paid the same or less than they were. In August 2006, defendant reorganized, combining the female director's position with that of the Central Region director and transferring her to the position of director of workforce planning (a position not comparable for Equal Pay Act purposes to region director) at the salary she was earning as a region director. Defendant paid the female director's male successor (in the combined East/Central Region director of human resources position) approximately $15,000 a year more than it had paid her. A 2-year consent decree provides the former regional human resources director $114,096.57 in backpay and interest, $50,000 in compensatory damages, and $7,386.62 in retroactive contributions to her 401(k) plan; in addition, her annual salary was raised effective September 1, 2011, from $99,934 to $116,439. The decree prohibits Title VII discrimination based on terms and conditions of employment, including workload and pay, and prohibits retaliation under Title VII and the EPA. 

3. Age Discrimination in Employment Act

In EEOC v. Kelley Drye & Warren, LLP, No. 10-CV-0655 (S.D.N.Y. April 10, 2012), EEOC alleged that a New York City-based law firm with over 300 attorneys discriminated against age-70 equity partners, and retaliated against one of them for filing a charge with EEOC. Under defendant's partnership agreement, attorneys who wished to continue practicing law with defendant after reaching age 70 were required to give up any equity interest they had in defendant and relinquish their authority to manage or significantly influence the firm; they were compensated solely through an annual "bonus" payment, the amount of which was wholly discretionary with defendant's executive committee and was significantly less than that paid to younger attorneys in the firm with similar billings, client collections, and other measures of productivity. After an adversely affected partner filed an EEOC charge in 2008, his bonus payment was reduced from $75,000 to $25,000 notwithstanding productivity similar to previous years. A 3-year consent decree provides the partner with $574,000 in backpay; future compensation of 12% of fees collected in the immediately preceding year for most client matters; and direct payments from certain clients designated in a separate settlement agreement. The decree states that defendant amended its partnership agreement in February and March of 2010 to eliminate the provisions requiring a partner to relinquish his or her equity interest in the firm at the age of 70. The decree permanently enjoins defendant from adverse changes to an individual's status, pay, or activities with the firm, including involuntary termination or retirement, due to the individual's age.

In EEOC v. Nassau County Dep't of Parks, Recreation and Museums, and Nassau County, No. CV 10-4471 (E.D.N.Y. May 29, 2012), EEOC alleged that a county in New York State and a county agency that oversees parks, museums, and other recreational facilities suspended and terminated a seasonal lifeguard because of his age, 71. The lifeguard was hired in 2007. In 2009, he failed two parts of a seven-part performance test, and was immediately suspended for a week without pay. The lifeguard retook one of the parts and passed, but was discharged before he could reschedule the second part. Younger lifeguards, all in their teens, who failed the same two parts of the test during 2009 were not suspended or discharged. A 3-year consent decree provides $65,000 in backpay to the former lifeguard. The decree enjoins defendants from discrimination against employees age 40 and older in regard to suspension or termination.

In EEOC v. RadioShack Corporation, No. 10-cv-02365 (D. Colo. Sept. 17, 2012), EEOC alleged that a national communications equipment retailer discharged a district manager because of his age, 55, and because of his opposition to age discrimination. Ranked in the top 10% of defendant's district managers nationwide, the district manager was transferred to defendant's Denver district in May 2006 to address various problems in the district. In the fall of 2007 a new regional manager, age 43, began supervising the district manager. Within 4 months of the regional manager's arrival, he placed the district manager, who previously had a spotless performance record, on two performance improvement plans. The district manager was fired on February 3, 2008, prior to the expiration of the performance improvement plans, ostensibly for performance reasons. Five days earlier, the district manager had complained to defendant's human resources department that the new regional manager was discriminating against him because of his age. Following a week-long trial in September 2012, the jury returned a verdict for EEOC on its retaliatory discharge claim. On March 1, 2013, the court entered judgment, awarding the former district manager $187,706 in backpay, $187,706 in liquidated damages (due the jury's finding of wilfullness), $199,281 in frontpay, and tax offsets of $47,946 on the backpay and $53,711 on the frontpay (tax offsets are compensation for the increased taxes resulting from the discharged district manager receiving the entire backpay and frontpay awards in a single tax year).

4. Americans with Disabilities Act

a. Hiring

In EEOC v. Randstad US, LP, No. 1:11-cv-01303 (D. Md. May 8, 2012), EEOC alleged that a national provider of employment referral and placement services rejected an applicant with Asperger's syndrome due to his disability. In September 2009, defendant posted an online advertisement for a manufacturing lab technician position at a biotech firm. An individual who met the posting requirement of a bachelor's degree in biology applied online. A few days later, defendant telephoned the applicant and said that based on his qualifications defendant would bypass the formal interview process and begin the hiring process. While completing the hiring paperwork the applicant had to ask a number of questions, and apologetically told defendant's representative that he had a disability and just wanted to make sure he filled the forms out correctly. A few minutes later, defendant's representative told the applicant the position had been put on hold and someone would contact him regarding the status of the job and to arrange completion of the hiring process. The applicant's mother telephoned defendant later that day, and again after a week, and both times was told that the lab technician job was still open. Defendant never contacted the applicant to complete the hiring process. A 2½-year consent decree provides $60,000 to the applicant and enjoins defendant from violating the ADA. The applicant will be able to enroll in courses at defendant's Randstad University Online Training Center for a year free of charge.

b. Reasonable Accommodation

In EEOC v. Walmart Stores, Inc., No. 2:10-cv-00222 (E.D. Tenn. Dec. 15, 2011), EEOC alleged that the discount retail chain denied the requests of a forklift operator at its Midway, Texas, distribution center for a reasonable accommodation for his disability, thyroid cancer, and discharged him because of his disability and in retaliation for requesting a reasonable accommodation. After cancer-related surgery in late 2005, the employee had little strength in his right shoulder and arm, but was able to perform his job in the facility's stock replenishment department without assistance or need for an accommodation. In November 2008, a manager asked him to cover a 20-minute break for a person in another department. The employee said he could not do the work because of his lifting restriction, and subsequently submitted an accommodation request to work only in his regular department. Defendant denied the request without engaging in the interactive process, placed the employee on a 90-day unpaid personal leave, and terminated him in July 2009. Under an 18-month consent decree, the employee will receive $110,000 in backpay and interest and $165,000 in compensatory damages. The decree enjoins defendant at the distribution center from failing to provide reasonable accommodations and failing to enter into the interactive process, and from retaliation under the ADA.

In EEOC v. UPS Supply Chain Solutions, No. 2:06-06210 (C.D. Cal. Dec. 20, 2011), EEOC alleged that a national provider of transportation and freight services and contract logistics failed to provide a hearing impaired file clerk at its Gardena, California, facility with a reasonable accommodation for his disability. The clerk uses American Sign Language (ASL) as his first language and is not fluent in English. He requested an ASL interpreter for weekly and monthly staff meetings, counseling and discipline sessions, and performance meetings. Defendant provided him with written notes of some of the meetings, telling him to look up unfamiliar words in a dictionary, but provided an interpreter only sporadically. A 2-year consent decree provides the employee $95,000 in compensatory damages, and enjoins defendant from disability discrimination and retaliation. Defendant will designate an ADA coordinator, whose oversight duties will include conducting quarterly audits of accommodation requests and decisions.

In EEOC v. United Road Towing, Inc., No. 10 C 6259 (N.D. Ill. June 20, 2012), EEOC alleged that a provider of towing services with locations in nine states maintained an inflexible medical leave policy that did not provide reasonable accommodations for disabled employees, and failed to rehire a class of qualified disabled employees because of their disabilities and in retaliation for requesting reasonable accommodations. Defendant's companywide leave policy provided for 12 weeks of FMLA leave, after which a "break in service" is incurred. Separated employees who reapplied had no guarantee of rehire. A 3-year consent decree provides $380,000 in backpay and compensatory damages to 13 individuals and enjoins defendant from disability discrimination and retaliation. Defendant will revise its employee handbook to prohibit disability discrimination, and to include instructions for requesting reasonable accommodations with examples of the types of accommodation available.
In EEOC v. Home Depot USA. Inc., No. 12-cv-01952 (D. Md. Sept. 5, 2012), EEOC alleged that the home improvement retailer denied a part-time cashier at its Towson, Maryland, store a reasonable accommodation for her disability and discharged her because of her disability. The employee went on approved medical leave from July 25 to September 25, 2010 for treatment of thyroid cancer. At the end of the leave period, her doctor informed defendant she would require additional leave through October 27. Defendant hired a cashier 2 weeks prior to the employee's new return-to-work date, and discharged the disabled employee on October 26, 2010, allegedly due to a seasonal slowdown. Less than 3 weeks later, defendant hired another cashier without first offering the position to the former employee. A 3-year consent decree provides $84,224 in compensatory damages and $15,776 in backpay to the former employee and enjoins defendant within its District 27 from disability discrimination.

In EEOC v. Miles Kimball Company, No. 11-C-850 (E.D. Wis. Sept. 12, 2012), EEOC alleged that an Oshkosh, Wisconsin-based direct marketer of consumer gifts and household goods failed to accommodate an employee's hearing impairment, and discharged her because of her disability. Defendant hired the profoundly deaf individual as a programmer in the information technology department of its Oshkosh facility in 1995, and later promoted her to application specialist. In 2007, defendant changed its computer software program, and all application specialists were required to learn new programming languages and techniques. The deaf employee asked for and was denied a sign language interpreter for training on the new program. When she had difficulty learning the program, defendant discharged her in February 2008. A 2-year consent decree provides $95,000 (two-thirds as compensatory damages and one-third as backpay) to the former employee, requires compliance with the ADA, and prohibits retaliation.

c. Medical Inquiries

In EEOC v. Dura Automotive Systems, Inc., No. 1:09-cv-0059 (M.D. Tenn. Aug. 31, 2012) , EEOC alleged that a global provider of parts for automobiles and specialty vehicles subjected employees at its Lawrenceburg, Tennessee, window manufacturing facility to illegal medical inquiries; suspended and discharged employees based on the results of the inquiries; and disclosed the results of the inquiries in violation of the ADA's confidentiality provisions. Due to higher rates of accidents and injuries at the Lawrenceburg plant compared to its other facilities, defendant, in May 2007, tested over 450 production workers and supervisors for 22 drugs (5 controlled substances and 17 legally prescribed) that defendant believed could impair employees' ability to safely operate equipment and machines. Large groups of employees were assembled in a room and waited while their urine samples were tested; all were present when defendant indicated whether an individual had passed or failed the test. Employees who failed the test were sent home and given 30 days to stop taking prescription medication that contained any of the tested drugs. Employees who continued taking the medication were discharged or constructively discharged. A 4-year consent decree provides $750,000 in backpay and damages to 27 individuals. The decree enjoins defendant from making illegal disability-related or medical inquiries, disclosing confidential information obtained through medical inquiries, and taking adverse employment actions against employees taking legally prescribed medication without making an individualized assessment of the employee's ability to do his or her job.

In EEOC v. Professional Media Corp. T/A Your Health Magazine, No. 8:10-CV-02689 (D. Md. Feb. 2, 2012), EEOC alleged that the publisher of Your Health magazine harassed and discharged a bookkeeper because of her attention deficit hyperactivity disorder (ADHD), and required that new employees sign "health warranties" that screened out individuals with disabilities. The bookkeeper was hired in February 2008 and until early August 2008, when she told the magazine's owner that she took Ritalin for ADHD her employment went fairly smoothly. After the disclosure, the owner subjected the bookkeeper to nearly daily abuse and intimidation: in person, over the phone, and by email. The owner also changed the magazine's employment contract to require new employees to warrant that they had "no existing medical conditions which would affect job performance" and were "not required to take any drugs, or narcotics, for any medical, physical or psychological disorder which would effect [sic] job performance." In February 2009 the owner terminated the bookkeeper for failing to disclose that she had ADHD and was taking medication for it. A 3-year consent decree provides the former bookkeeper with $8,000 in backpay and $50,000 in compensatory damages and enjoins defendant from denying employment opportunities to qualified individuals with disabilities and from requiring the "health warranties" described above.

d. Discharge

In EEOC v. Resources for Human Development, Inc., d/b/a Family House of Louisiana, No. 10-3322 (E.D. La. April 9, 2012), EEOC alleged that a nonprofit corporation overseeing and supporting more than 160 programs in 14 states that address homelessness and addiction discharged an employee because it regarded her as substantially limited in walking due to her morbid obesity. The employee was hired in 1999 as a prevention intervention specialist overseeing a daycare program in Harvey, Louisiana, for children whose mothers were part of defendant's long-term residential treatment facility for chemically dependent women. At the time, she was 5'2" tall and weighed 547 pounds. Defendant claimed that beginning in 2006, the employee gained a large amount of weight that adversely affected her ability to perform her job -- she could not run after an escaping child, administer CPR, or play with the children, and she failed to supervise her assistants because of the amount of walking this would require. The former employee died in November 2009, and a 3-year consent decree provides $125,000 in compensatory damages to her estate.

In EEOC v. Banner Health, An Arizona Corporation, No. CV-10-1432 (D. Ariz. July 27, 2012), EEOC alleged that a Phoenix, Arizona-based health care system operating in several Western States failed to provide a reasonable accommodation for an employee's cognitive limitations, and terminated him because of his disability. The employee has an IQ of around 60 and is substantially limited in at least thinking, concentrating, and interacting with others. He was employed as a kitchen worker/dietary aid at defendant's Mesa, Arizona, health care facility. In March 2005, the employee's brother learned of performance-related disciplinary actions taken against the employee, and began requesting accommodations for him, including job coach assistance. Defendant did not respond, and discharged the employee in October 2005, citing performance reasons. A 2-year consent decree provides $90,000 in backpay and $165,000 in compensatory damages to a special needs trust for the former employee, and enjoins defendant from disability discrimination and retaliation. Defendant will provide the former employee with a positive employment reference (stating that he is eligible for rehire) and a letter of apology.

e. Harassment

In EEOC v. Family Video Movie Club, Inc., dba Family Video No. 1:12-cv-192 (W.D.N.Y. March 5, 2012), EEOC alleged that a seller and renter of movies and games harassed and disciplined a sales associate at its store in Lackawanna, New York, because of his disability, and discharged him in retaliation for complaining about disability discrimination. The sales associate suffers from major depression and social anxiety disorder, which caused stuttering, panic attacks, suicidal ideation, and difficulty interacting with others. In February 2009, in written materials distributed to other employees, the store manager made fun of the sales associate's stuttering, and knowing of a prior suicide attempt, referred to him being killed. The sales associate complained to the district manager, but nothing was done. Two weeks after he complained, the sales associate was given a corrective action memo stating that his anxiety issues were affecting customer service. The district manager told the sales associate that he would lose his job if he continued to stutter. The discipline exacerbated the sales associate's symptoms and the district manager sent him home on March 8, 2009, and told him not to return until he was 100 percent cured. The sales associate filed an EEOC charge on March 19. He returned to work on April 8, and was discharged on April 30. A 3-year consent decree provides $27,345.29 in backpay and $42,654.71 in compensatory damages to the sales associate and enjoins defendant from disability discrimination and retaliation.

5. Retaliation

In EEOC v. Gerresheimer Peachtree City (USA), L.P., No. 1:10-CV-03082 (N.D. Ga. March 6, 2012), EEOC alleged that a manufacturer of specialty products for the pharmaceutical and healthcare industries discharged an employee in retaliation for complaining about discrimination in wages and for filing a charge with EEOC. The employee, a black woman, was hired at defendant's Peachtree, Georgia, location in February 2008 as a quality assurance manager in the medical devices division. In October 2008, she complained about being paid less than a white male employee doing similar work. Defendant hired an outside investigator, who concluded that there was no merit to the wage discrimination claim. The black female employee filed a charge with EEOC in December 2008. In January 2009, she complained to defendant officials that she was being harassed and intimidated for filing her EEOC charge. The employee was discharged less than a week later -- according to her separation notice, for willful misconduct, including lying to her supervisor, insubordination, and unprofessional conduct towards coworkers. A 3-year consent decree provides $90,000 to the former employee and prohibits retaliation.

In EEOC v. Atsalis Bros. Painting Co., No. 11-cv-11296 (E.D. Mich. March 8, 2012), EEOC alleged that a Michigan-based provider of industrial painting services discharged an employee because he complained about race discrimination. In July 2007, an African American painter learned that his foreman referred to him as a "nigger," and in October, he overheard the foreman use the word again and confronted him about it. After learning from coworkers that the foreman regularly used the word, the painter contacted his union representative, who notified defendant's owner about the foreman's repeated racial slurs. The owner told the painter he would talk to the foreman and there would be no retaliation for making the complaint. On December 4, 2007, the painter was told by defendant's office manager that he was one of seven people being let go. The other six employees defendant claimed to have let go either left voluntarily or were recalled. Defendant hired many painters in 2008 and 2009. A 2-year consent decree provides $60,000 in backpay and $5,000 in compensatory damages to the discharged painter and permanently enjoins defendant from retaliation. 

C. Appellate Court Litigation

1. EEOC's Investigative Authority

Schwend, Inc. v. Zurita, Lo-Chin & Diaz, 442 F.App'x 530 (11th Cir. Oct. 13, 2011) (unpublished)

In this civil damages action against two EEOC investigators, the plaintiff employer challenged the investigators' authority to conduct an onsite investigation of a race discrimination charge and to execute an access subpoena without providing advance notice to the company. The district court granted EEOC's motion for summary judgment on qualified immunity grounds and the plaintiff appealed. The Eleventh Circuit affirmed for the reasons stated in the district court's decision -- that the employees were acting within the scope of their official duties and had not violated any established law or policy. EEOC's Compliance Manual authorizes the issuance of subpoenas without notice in conjunction with unannounced onsite investigations when there is a reasonable determination that the charged party might remove or destroy evidence. Here, the court held, the investigators' conduct was entirely justified and reasonable, and therefore protected by qualified immunity.

EEOC v. BNSF Railway Co., 669 F.3d 1154 (10th Cir. Feb. 27, 2012)

In the course of investigating two individuals' ADA charges alleging that respondent railroad had refused to hire them due to their disabilities, EEOC issued a subpoena seeking preliminary national data on respondent's electronic record keeping practices. The district court refused to enforce the subpoena, holding that EEOC could not expand an investigation of two charges filed in Colorado to seek information about the company's practices nationwide. The Tenth Circuit affirmed, holding that the nationwide information EEOC sought was not relevant to the individual allegations in the charges that formed the basis of EEOC's subpoena authority.

EEOC v. UPMC, 471 F.App'x 96 (3d Cir. March 27, 2012) (unpublished)

In the course of EEOC's investigation of an individual charge of discrimination under the ADA, the employer said it had terminated the charging party in accordance with its uniformly applied leave policy. EEOC then issued a subpoena seeking information about other employees terminated under the leave policy and the district court denied enforcement, ruling that the information EEOC requested was not relevant to the allegations in the underlying charge. The Third Circuit vacated and remanded with instructions that the district court properly apply circuit precedent, specifically EEOC v. Kronos, 620 F.3d 287 (3d Cir. 2010), in which the court had held that the meaning of relevance in a subpoena enforcement proceeding is quite broad and that EEOC is entitled to investigate possible unlawful employment practices uncovered while investigating a charge as long as the new matters might cast light on the underlying charge.
EEOC v. Randstad, 685 F.3d 433 (4th Cir. July 18, 2012)
In this Title VII and ADA investigation of an individual's allegation that after having successfully completed a job placement a year earlier, one of respondent's Maryland offices refused to consider him for any further placements on the ground that he cannot read English, EEOC subpoenaed information about warehouse and other nonclerical job assignments that respondent's 13 Maryland offices had made over a 5-year period. Respondent refused to comply, and the district court denied enforcement of the subpoena, holding that EEOC lacked a timely ADA charge because the individual's amendment of his Title VII national origin charge to add a learning disability claim did not relate back to the date of his original charge. The court also said that even if EEOC had jurisdiction to investigate, the information sought was not relevant because the individual had applied at only one facility, and that in any event, the information request was too burdensome. The Fourth Circuit, deferring to EEOC's interpretation of its relation-back regulation, held that EEOC's subpoena should be enforced. The court of appeals found a jurisdictional basis for the EEOC's investigation under both Title VII and the ADA, and concluded that the information sought was relevant to the EEOC's investigation of both claims. The Fourth Circuit further held that respondent failed to demonstrate that complying with the subpoena would impose an undue hardship.

EEOC v. Kronos, Inc., 694 F.3d 351 (3d Cir. Sept. 14, 2012)

This was the second EEOC appeal related to an application to enforce a third-party subpoena seeking information from Kronos, a developer of employee assessment tools, about an employment test EEOC's considered relevant to its investigation of an ADA charge against Kroger Food Stores. In Kronos I, the Third Circuit held that the district court erred in narrowing the scope of EEOC's subpoena by time, geography, and job category, and in failing to conduct a "good cause" analysis to support a confidentiality order the court had issued. On remand, the district court again narrowed the scope of EEOC's subpoena; adopted confidentiality provisions vigorously opposed by EEOC; and ordered EEOC to pay half of Kronos's estimated costs of $75,000 for producing information sought by the subpoena. The Third Circuit reversed in part and remanded for further proceedings, holding that the court improperly restricted the scope of the subpoena and that Kronos must produce any documents that could reveal either that its employment test had an adverse impact on disabled Kroger applicants or that Kroger's use of the test constituted an unlawful employment action. Second, although it agreed with the district court that a confidentiality order was warranted in light of Kronos's valid concerns about disclosing trade secret information and personal data, the court remanded for additional analysis and redrafting consistent with its holding in Kronos I. Third, the court of appeals reversed the district court's cost-sharing order.

2. Individuals Covered

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (Jan. 11, 2012)

EEOC brought an ADA suit alleging that a parochial school teacher was fired for opposing what she reasonably believed was disability discrimination. The school argued that the suit was barred by the ministerial exception to employment laws because she was a "called" teacher (designated as a commissioned minister) who led students in daily prayers, and taught religion in addition to typical fourth grade subjects. The district court held that the suit was barred by the ministerial exception, but the Sixth Circuit reversed, holding that the teacher did not qualify as a minister because her duties as a "called" teacher were the same as those of lay teachers, who were not required to be Lutheran, but also led students in prayer and taught religion. In the Supreme Court, the government argued that the suit should not be barred by the First Amendment concerns animating the ministerial exception, and that the Court should not adopt a categorical rule about what types of persons or claims should be barred. The Supreme Court, in its first consideration of the issue, held unanimously that there is a ministerial exception, grounded in the Establishment and Free Exercise Clauses of the First Amendment, that precludes the application of the civil rights laws to claims concerning the employment relationship between a religious institution and its ministers. The Court declined to adopt a standard to identify who qualifies as a minister, but held that the teacher in this case was a minister for purposes of the exception.

EEOC v. Clark County, Nevada, 473 F.App'x 798 (9th Cir. June 14, 2012) (unpublished)

EEOC sued a Nevada County under the ADEA for not providing workers' compensation benefits to volunteer firefighters over age 54 who experienced heart disease in connection with the performance of their firefighting duties. The district court granted summary judgment to defendant on the ground that the volunteer firefighters were not "employees" within the meaning of the ADEA. EEOC argued on appeal that a reasonable jury could find that the volunteer firefighters were covered employees because they received significant economic benefits in exchange for their services. The Ninth Circuit disagreed, saying in full: "Considering 'all of the incidents of the relationship' between Clark County and its unpaid firefighters under the undisputed facts, the district court did not err in concluding that the balance of factors favors granting volunteer status, not employee status, to Clark County's volunteer firefighters under the Age Discrimination in Employment Act." (quoting Clackamas Gastroenterology Assoc. v. Wells, 538 U.S. 440, 451 (2003)).

3. Conditions Precedent to EEOC Suits

EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. Feb. 22, 2012)

In this Title VII action alleging widespread sexual harassment of female over-the-road truckdrivers by their male trainers and codrivers, the district court granted summary judgment on the merits of EEOC's claims for a large number of female drivers, and dismissed otherwise triable claims for 67 remaining individuals, finding that EEOC had not met its administrative investigation and conciliation requirements regarding those claims. The district court also awarded CRST approximately $4.5 million in attorney's fees and $93,000 in costs. The Eighth Circuit concluded that EEOC's presuit investigation and conciliation conduct were insufficient in this case and affirmed the district court's dismissals, with the exception of EEOC's claims for two women. Because of its reversal of the two claims, the court of appeals found that CRST was no longer a prevailing party, and therefore vacated the district court's award of fees and costs and remanded to the district court for further proceedings.

EEOC v. Service Temps, Inc., 679 F3d 323 (5th Cir. April 26, 2012)

EEOC obtained a jury verdict finding that a Texas-based staffing firm violated the ADA by refusing to allow a deaf individual to apply for a stock clerk position. The defendant appealed on a variety of grounds, challenging the court's jurisdiction, the satisfaction of EEOC's presuit administrative requirements, and the award of punitive damages and grant of injunctive relief. The Fifth Circuit upheld the jury's award of punitive damages and the district court's injunction, and affirmed all other rulings challenged by defendant, including the district court's decision that defendant's failure to specifically plead in its answer that EEOC failed to meet its conciliation requirement barred defendant under Fed. R. Civ. P. 9(c) (providing that conditions precedent can be pled generally, but must be denied with particularity) from raising that issue in its summary judgment motion.

EEOC v. Summer Classics, Inc., 471 F.App'x 868 (11th Cir. June 12, 2012) (per curiam) (unpublished)

In this ADA suit, EEOC sought relief for an individual who was terminated after he failed to provide his employer with medical records about his HIV status. The district court dismissed the case on the ground that the underlying charge was untimely. EEOC argued that the charge was timely because the individual had filed his EEOC intake questionnaire within 180 days of his termination, and also because the time for filing did not begin to run until the individual was given unequivocal notice of his termination, which occurred within 180 days of his perfected charge. The Eleventh Circuit affirmed, holding that the intake questionnaire did not constitute a charge under Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). The court further held that because EEOC's argument that the charge-filing period did not begin to run until the individual was officially notified of his termination was raised for the first time in a postjudgment motion, it was waived.

4. Conditions Precedent to Private Suits

James v. Sutliff Saturn, Inc., 468 F.App'x 118 (3d Cir. March. 15, 2012) (unpublished)

The issue on appeal in this case was whether the plaintiff had satisfied the administrative prerequisites for bringing an ADA suit where his initial charge filed with a state fair employment practices agency (FEPA) had alleged only race discrimination, but he had sought to amend that charge in accordance with the FEPA's directions. The Third Circuit agreed with EEOC's position as amicus curiae, and held that the plaintiff fulfilled the necessary procedural prerequisites to amend his initial charge when he followed all of the state FEPA's instructions but the FEPA failed to process his amendment. Accordingly, the court vacated the district court's grant of summary judgment on the plaintiff's disability claim and remanded for further proceedings.

Myers-Desco v. Lowe's HIW, Inc., 484 F.App'x 169 (9th Cir. June 14, 2012) (unpublished)

EEOC filed an amicus curiae brief in the Ninth Circuit arguing that the district court erred in dismissing the plaintiff's Title VII sex discrimination claims for failure to exhaust administrative remedies. The Ninth Circuit agreed and reinstated the claims. The court of appeals held that the plaintiff satisfied the statutory prerequisites to suit by filing a timely charge with EEOC and filing suit within 90 days of receiving a right-to-sue notice. The court said that the decisions by the Nevada Equal Rights Commission and EEOC to forgo any investigation of the plaintiff's charge after she filed a state law tort action had no impact on whether the plaintiff had exhausted her administrative prerequisites to filing suit on Title VII claims.

5. Pleading Requirements

Rhodes v. R&L Carriers, Inc., 491 F.App'x 579 (6th Cir. Aug. 6, 2012) (unpublished)

The Sixth Circuit reversed the district court's dismissal of plaintiff's age discrimination and retaliation complaint, agreeing with EEOC as amicus curiae that the claims described in the complaint were plausible under the pleading standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The complaint alleged that when plaintiff began objecting to numerous specific instances of discrimination (described in the complaint), defendant management told him that the company did not intend to come into compliance with the laws "because [defendant] had never had to write a big enough check to justify compliance with the rules." Defendant terminated plaintiff shortly after he put his opposition to discrimination in writing. The district court said the retaliation allegations were insufficient because the plaintiff did not plead the dates of meetings, identify the applicants or employees subjected to unlawful employment practices, or describe the manner of his opposition to unlawful practices. The court of appeals held that such detail is unnecessary where the facts pled allege a plausible claim. On the age claim, the court said that allegations in the complaint that management officials referred to a need to lower the age of the workforce, together with an allegation that plaintiff was in the protected age group, were sufficient to state a plausible claim of age discrimination.

Sheppard v. David Evans & Assoc., 694 F.3d 1045 (9th Cir. Sept. 12, 2012)

EEOC filed an amicus curiae brief in this ADEA case to argue that the district court erred in dismissing the plaintiff's complaint for failure to state a claim despite allegations that her performance was satisfactory or better and that at the time she was fired there were five comparable employees younger than she who retained their positions. EEOC argued that the district court imposed an inappropriate heightened pleading standard that conflicts with the Supreme Court's decision in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), that employment discrimination plaintiffs do not have to plead the elements of a prima facie case to survive dismissal. The Ninth Circuit reversed the dismissal, holding that the plaintiff pled sufficient facts to state a plausible age discrimination claim.

6. Limitations Periods

Hylind v. Xerox Corp., 481 F.App'x 819 (4th Cir. June 6, 2012) (unpublished)

EEOC filed an amicus curiae brief in this Title VII sex discrimination and retaliation action, arguing (1) that the "collateral source rule" turns on the nature of the benefits received, rather than their source, and that the district court applied the wrong legal standard in offsetting the plaintiff's disability insurance benefits from her backpay award, and (2) that the statute of limitations in a Title VII case begins to run under Delaware State College v. Ricks, 449 U.S. 250 (1980), only when an employee receives "final and unequivocal" notice of an adverse action. EEOC argued that because the jury heard evidence that the plaintiff did not receive final and unequivocal notice of her alleged discriminatory reassignment until a date within the limitations period, the district court properly denied the defendant's motion for judgment as a matter of law on the limitations issue. The Fourth Circuit agreed with EEOC on both issues and remanded the case for the district court to reassess its offset determination under the proper legal standard, while upholding the district court's rejection of defendant's limitations period defense.

7. Arbitration

Powell v. Anheuser-Busch, Inc., 457 F.App'x 679 (9th Cir. Nov. 3, 2011) (unpublished)

In a decision that essentially tracked the arguments in EEOC's amicus curiae brief, the Ninth Circuit held that an ADA plaintiff did not have to arbitrate his disability discrimination claims under the collective bargaining agreement (CBA) between defendant and the plaintiff's union. The court said the CBA did not "clearly and unmistakably" require plaintiff to arbitrate claims of statutory discrimination within the meaning of 14 Penn Plaza v. Pyett, 556 U.S. 247 (2009). The court said it would not interpret a CBA waver to cover individual statutory discrimination claims unless the waiver "explicit[ly] incorporat[ed] . . . statutory antidiscrimination requirements." Further, the court said the CBA provided arbitration procedures only between defendant and the union, and those procedures were unsuited to arbitration between the company and an individual employee.

In re D.R. Horton, Inc., 357 NLRB No. 184, 2012 WL 36274 (NLRB Jan. 3, 2012)

Defendant's mandatory arbitration agreement requires its employees to resolve all disputes through binding arbitration and prohibits arbitrators from hearing any dispute on a class, collective, or joint basis. EEOC filed an amicus curiae brief jointly with the Secretary of Labor arguing that such a provision is unenforceable when it does not allow effective vindication of rights under labor and employment discrimination statutes. The National Labor Relations Board held that the denial of class, collective, or joint arbitration violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), because it prohibited employees from engaging in statutorily protected "concerted activity" to improve their wages, hours, or working conditions.

8. Proof Issues

a. Title VII

EEOC v. Kansas City Southern Railway, Co.,675 F.3d 887 (5th Cir. June 22, 2012)
EEOC alleged that a railroad violated Title VII by disciplining four African American engineers and conductors more severely than their white counterparts for the same incident or under nearly identical circumstances. The African American employees and their comparators were involved in incidents of train derailment, sideswiping, or failing to stop at a signal, and in each instance the white employee received significantly less discipline than the black employee, who was fired for the infraction. The district court granted summary judgment to the employer, holding that EEOC had not established a prima facie case as to any of the four because of purported dissimilarities in the disciplinary processes affecting the employees. The Fifth Circuit reversed in part. The court held that EEOC established a prima facie case of discrimination under the McDonnell Douglas framework as to two of the black employees, and that the railroad "failed to produce admissible evidence of legitimate, nondiscriminatory reasons for those [disciplinary] decisions," entitling the employees to take their case to a jury. The court affirmed the district court's judgment as to the two other black employees.

 McDonnaugh v. Teva Specialty Pharmaceuticals, LLC, 489 F.App'x 550 (3d Cir. July 26, 2012) (unpublished)

In this Title VII case, the district court held that evidence that the African American plaintiff was fired and replaced with a white person was insufficient to establish the fourth prong of his prima facie case of race discrimination. According to the district court, such replacement evidence is relevant, if at all, only in age discrimination cases. EEOC filed a brief as amicus curiae, arguing that the undisputed evidence that the plaintiff was replaced by a white person was sufficient to establish the fourth prong of the plaintiff's prima facie case. The Third Circuit agreed that the plaintiff's replacement evidence sufficed to establish a prima facie case of race discrimination. The court of appeals nevertheless affirmed judgment for the defendant on the ground that the plaintiff had failed to establish a factual question as to pretext, an issue EEOC did not address.

Johnson v. Maestri-Murrell Property Management, LLC,487 F.App'x 134 (5th Cir. Aug. 14, 2012 ) (unpublished)

The Fifth Circuit reversed the judgment for defendant in this Title VII suit alleging that a property management concern denied the African American plaintiff an assistant manager position at an apartment complex because of her race. Consistent with EEOC's arguments as amicus curiae, the court of appeals held that evidence that a hiring official said she did not think the company wanted an African American in that position constituted "direct evidence" and, therefore, was sufficient to raise a triable issue of fact as to race discrimination. The appellate court also rejected the district court's ruling that the plaintiff was limited to a specific formulation of the prima facie case under the McDonnell Douglas framework. Rather, the court held, the plaintiff could and did satisfy her prima facie burden with evidence that "she applied for an available position for which she was qualified, but was rejected under circumstances which gave rise to an inference of unlawful discrimination."

EEOC v. Management Hospitality of Racine, Inc., d/b/a International House of Pancakes, 666 F.3d 422 (7th Cir. Jan. 9, 2012)

Following a trial in this Title VII lawsuit alleging that two teenage female servers were subjected to sexual harassment at an IHOP restaurant in Racine, Wisconsin, a jury awarded compensatory and punitive damages that the court apportioned among the franchise Management Hospitality of Racine (MHR), the franchise owner Sal Janmohammed, and the franchise's management company Flipmeastack, which was operated by the owner's wife. The defendants argued on appeal that the harassment verdict should be overturned and that the district court had improperly found Flipmeastack liable. The Seventh Circuit affirmed in part and reversed and remanded in part. The court agreed with EEOC that the servers were sexually harassed, that the defendants had not proven an affirmative defense, that "other acts" evidence was properly admitted, and that punitive damages were appropriate against MHR and Janmohammed. But the court of appeals ruled that the district court committed reversible error in finding Flipmeastack liable for the Title VII violation. The court said that the district court belatedly and sua sponte injected a new theory of liability into the case by using a test of whether Flipmeastack had exercised sufficient control over employees to be considered an employer, and that the postjudgment application of this new theory deprived the defendants of an opportunity to respond. Consequently, the Seventh Circuit ordered a new trial on Flipmeastack's liability.

Cherry v. Shaw Coastal, Inc., 668 F.3d 182 (5th Cir. Jan. 19, 2012)

In this Title VII sexual harassment suit, the male plaintiff's favorable jury verdict was overturned by the district court, which found that the plaintiff had failed to show that the offensive conduct toward him by his male second-level supervisor on an engineering firm's survey crew was based on the his sex; that the conduct was sufficiently severe or pervasive to constitute actionable harassment; and that the employer's response to the plaintiff's complaints had been inadequate. On appeal, the Fifth Circuit restored the plaintiff's jury verdict. Agreeing with the arguments presented by EEOC as amicus curiae, the court of appeals ruled that the plaintiff's evidence of sexualized touching and propositions was sufficient under Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998), for a jury reasonably to conclude that he had been subjected to harassment "because of" his sex; that the harassment was sufficiently severe or pervasive to support plaintiff's claim; and that there was sufficient evidence to support the jury's decision that the employer's response to the plaintiff's complaints about the harassment was insufficient to shield it from liability.

EEOC v. Boh Bros. Constr. Co., L.L.C., 689 F.3d 458 (5th Cir. July 27, 2012)

The Commission prevailed in a jury trial in this Title VII case alleging that a large Louisiana construction firm failed to stop the superintendent of an isolated all-male bridge maintenance crew from harassing one of the crew members on the basis of his sex. The jury awarded substantial compensatory and punitive damages, and the court ordered significant injunctive relief. On appeal, the central legal issue was whether an employee in a same-sex sexual harassment case can use evidence that the harasser believed the employee failed to conform to gender stereotypes to show that the harassment occurred "because of sex." The Fifth Circuit did not resolve that issue. Instead, it ruled that even assuming same-sex harassment could be proved using gender stereotyping evidence, EEOC had failed to introduce sufficient proof that the harassed employee in fact failed to conform to masculine stereotypes. The court thus vacated the judgment and remanded for entry of judgment dismissing EEOC's complaint. 

See also Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41 (2d Cir. May 9, 2012), at p. 37 infra.

b. Equal Pay Act

King v. Acosta Sales and Marketing, Inc., 678 F.3d 470 (7th Cir. March 13, 2012)

The district court dismissed pay discrimination claims under the Equal Pay Act and Title VII, finding that the female plaintiff had not shown that the defendant's explanations for the salary differential between her and men in the same position were pretextual. As amicus curiae on appeal, EEOC argued that the court failed to apply the proper standard for evaluating an affirmative defense under the EPA. The Seventh Circuit agreed, and ruled that under the proper legal standards the evidence was sufficient to permit a jury to rule in the plaintiff's favor on both her EPA and Title VII pay discrimination claims. The court said that although defendant had articulated reasons that might explain the pay disparity, it had not proven that the alleged differences in education or experience actually accounted for the difference in pay, as required by the EPA affirmative defense. The court also found that a jury could conclude that defendant's explanations were pretextual, as required under Title VII.

c. Age Discrimination in Employment Act

Marcus v. PQ Corp., 458 F. App'x 207 (3d Cir. Jan. 19, 2012) (unpublished)

The issue on appeal in this ADEA action was the proper causation standard for instructing a jury where age-biased individuals were not the decisionmakers but played a role in the decision that led to the plaintiffs' terminations in a reduction in force. The defendant argued that the verdict for the plaintiffs could not stand because the court had instructed the jury that it could find liability on a so-called "cat's paw" theory, which the defendant claimed was incompatible with the but-for causation standard applicable to age discrimination cases under the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009). This appeal presented one of the first opportunities for a court of appeals to address the Supreme Court's decision in Staub v. Proctor Hospital, 562 U.S. 411 (2011) (finding "cat's paw" liability in a case under the Uniformed Services Employment and Reemployment Rights Act), in the context of an ADEA claim. The Third Circuit affirmed the district court's entry of judgment in favor of the plaintiffs, holding that nothing in Gross or Staub precludes use of the subordinate bias, or "cat's paw," theory of liability in claims brought under the ADEA.

d. Americans with Disabilities Act

EEOC v. Greater Baltimore Medical Center, Inc., 477 F.App'x 68 (4th Cir. April 17, 2012)

In this ADA case, a 20-year employee of the defendant hospital applied for Social Security Disability (SSDI) benefits while he was hospitalized for several months. After he was cleared to return to work he sought a number of positions with defendant, but was not selected for any of them. He was terminated, and subsequently denied rehire in any of 28 additional positions for which he applied. The district court granted summary judgment to defendant on the ground that the individual's application for disability benefits was incompatible with a claim that he was a qualified individual under the ADA. The Fourth Circuit affirmed, agreeing with the district court that the individual's application for and receipt of SSDI benefits could not be reconciled with the EEOC's claim that the he could have worked "with or without reasonable accommodation" during the same time period he received benefits.

Lewis v. Humboldt Acquisition Corp. d/b/a Humboldt Manor Nursing Center, 681 F.3d 312 (6th Cir. May 25, 2012) (en banc)

The Sixth Circuit agreed with EEOC's position as amicus curiae that a plaintiff need not show that his or her disability was the "sole" cause of the employer's action in order to establish a violation of the ADA. The district court, over the plaintiff's objection, instructed the jury that the plaintiff had to show her disability was the sole reason for her termination, and a panel of the Sixth Circuit affirmed, stating it was bound by longstanding circuit precedent. On en banc review, the court unanimously overruled its prior "sole cause" decisions and remanded the case for a new trial. The court split 9-7 on the appropriate causation instruction: the majority ruled that a plaintiff must show his or her disability was the "but for" cause of the employer's action, while seven judges would require that the plaintiff show only that disability was "a motivating factor," with an affirmative defense available to the employer.

EEOC v. The Picture People, 684 F.3d 981 (10th Cir. July 10. 2012)

EEOC alleged that a national chain of portrait studios violated the ADA when it denied a deaf person hired as a studio photographer opportunities to work in positions involving customer contact, failed to provide her a sign language interpreters for staff meetings and training, and terminated her after she complained about the possibility that she had been left off the work schedule because she is deaf. In affirming summary judgment for defendant, the court of appeals rejected EEOC's position that oral communication was not an essential function of the photographer position, and held that the employee's inability to speak and hear rendered her unqualified for defendants "performer" job as a matter of law, and that no reasonable jury could find that defendant's asserted reasons for dropping the employee from the schedule were a pretext for retaliation.

EEOC v. United Air Lines, Inc., 693 F.3d 760 (7th Cir. Sept. 7, 2012)

In this suit under the ADA, EEOC challenged defendant's policy of requiring disabled employees no longer able to perform the essential functions of their current positions, even with an accommodation, to compete for jobs, rather than reassigning them to vacant positions for which they are qualified. On appeal, the Seventh Circuit rejected EEOC's claim, holding, consistent with its earlier decision in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), and its progeny, that the ADA "does not mandate reassignment." The appellate court explained that although it found EEOC's arguments persuasive, it was bound by circuit precedent to reject the claim.

9. Retaliation

a. Protected Activity

Minor v. Bostwick Labs., Inc., 669 F.3d 428 (4th Cir. Jan. 27, 2012), and Jafari v. Old Dominion Transit Mgt Co. a/k/a/ GRTC, 462 F.App'x 385 (4th Cir. Jan. 27, 2012) (unpublished)
In related decisions, the Fourth Circuit reversed the dismissal of claims challenging alleged violations of the antiretaliation provision of the Fair Labor Standards Act (FLSA), section 15(a)(3), 29 U.S.C. § 215(a)(3) (which also applies to the Equal Pay Act, 29 U.S.C. § 206(d)). In each case, the district court had held that internal complaints are not protected by section 15(a)(3), and that because the respective plaintiffs' allegations involved only reports of FLSA violations to their employers, their retaliatory discharge suits failed to state a claim. The appellate court disagreed, and consistent with the amicus curiae briefs filed jointly by the Department of Labor and EEOC, held that intracompany complaints can constitute protected activity within the meaning of section 15(a)(3). (This was an issue left open in the Supreme Court's decision in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), holding that section 15(a)(3) covers oral complaints.) The court cautioned, however, that to be protected, a complaint must be "sufficiently clear and detailed for a reasonable employer to understand it in light of both content and context as an assertion of rights protected by the statute and a call for their protection."

Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41 (2d Cir. May 9, 2012)

The issues on appeal in this Title VII sexual harassment and retaliation action were whether participants in an internal investigation of a harassment allegation are protected from retaliation under section 704(a)'s "participation clause," and whether the affirmative defense to a harassment claim established by Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), is available where the alleged harasser is the employer's proxy or "alter ego." These were issues of first impression in the Second Circuit. The court, disagreeing with EEOC's position as amicus curiae, held that Title VII's participation clause does not protect employees from retaliation for their involvement in an internal employer investigation of sexual harassment where the investigation is unrelated to a formal EEOC charge. The court agreed with the agency's position on the second issue, holding that the Faragher/Ellerth affirmative defense is unavailable to an employer where the alleged harassment is committed by a senior executive (in this case a vice president and shareholder) who can be considered an "alter ego" of the company.

b. Adverse Action

Bertsch v. Overstock.com, 684 F.3d 1023 (10th Cir. July 10, 2012)

In this Title VII retaliation suit, the Tenth Circuit reversed the grant of summary judgment for the employer, agreeing with EEOC's argument as amicus curiae that both placement of an employee on a performance improvement plan and threatening an involuntary transfer could constitute materially adverse actions for purposes of a retaliation claim under Burlington Northern v. White, 548 U.S. 53 (2006). The court also agreed with EEOC that the plaintiff established a causal connection between her complaint of sexual harassment and her termination more than 3 months later, based on evidence of pretext that the district court had erroneously refused to consider at the prima facie case stage.

10. Relief Issues

EEOC v. Product Fabricators, Inc., 666 F.3d 1170 (8th Cir. Jan. 31, 2012)

EEOC alleged in this ADA suit that defendant made unlawful medical inquiries under its drug policy, failed to keep medical information confidential, and terminated an employee due to his disability or as a result of an unlawful medical inquiry. The parties agreed to resolve the suit through a 2-year consent decree, but the district court refused to enter the decree, stating that EEOC had not identified conduct that would render the court's continuing jurisdiction appropriate. On appeal, the Eighth Circuit reversed and held that the district court abused its discretion in refusing to enter the decree because the court gave no consideration to the law's strong preference for settlement of employment discrimination cases, or to the fact that exercise of "[c]ontinuing jurisdiction is the norm (and often the motivation) for a consent decree[, which] offers more security to the parties than a settlement agreement."

See also Hylind v. Xerox Corp., 481 F.App'x 819 (4th Cir. June 6, 2012) (unpublished), at p. 30 supra.

11. EEOC Liability for Attorney's Fees

EEOC v. Tricore Reference Laboratories, 493 F.App'x 955 (10th Cir. Aug. 16, 2012) (unpublished)

EEOC alleged that defendant's refusal to accommodate and subsequent discharge of a phlebotomist after she had foot and ankle surgery violated the ADA. The district court granted summary judgment for defendant on the ground that EEOC had conceded that the employee was unable to meet the essential job functions of walking and standing. The court also awarded attorney's fees to defendant on the ground that EEOC should have known at certain points in the litigation that its claims were frivolous. On appeal, EEOC challenged the district court's dismissal of the discharge claim, arguing there was evidence that a jury could credit that the performance-based reasons for the employee's termination were pretextual, and also challenged the fees award. The Tenth Circuit affirmed the district court's decisions in all respects, and granted defendant's request for fees on EEOC's appeal of the discharge claim.

 EEOC v. Great Steaks, Inc., 667 F.3d 510 (4th Cir. Jan 26, 2012)

EEOC brought this Title VII suit alleging that a group of female servers at a restaurant were sexually harassed by their male supervisor. In the course of the litigation many of the female employees dropped out of the case, and at trial EEOC sought relief for just one person. The defendant prevailed and moved for attorney's fees under Title VII, 28 U.S.C. § 1927, and 28 U.S.C. § 2412(d) (the Equal Access to Justice Act (EAJA)). The district court denied the motion and defendant appealed. The Fourth Circuit affirmed, holding that defendant was not entitled to an award of attorney's fees under Title VII because the underlying litigation was not frivolous, unreasonable, or groundless within the meaning of Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978); that there was no basis for a finding that EEOC had engaged in vexatious litigation that would subject it to an award of sanctions under 28 U.S.C. § 1927; and that the EAJA's attorney's fee provision does not apply to Title VII as a matter of law because Title VII has its own fee-shifting provision in 42 U.S.C. § 2000e-5(k).

See also EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. Feb. 22, 2012), at p. 27 supra.

D. Outreach: Educating the Public

Office of General Counsel attorneys engage in a variety of informational activities, sometimes in conjunction with investigative staff, regarding the laws enforced by the agency and agency processes. In fiscal year 2012, legal staff made presentations at 550 "outreach" events involving over 40,000 participants. Some examples are provided below.

Vulnerable Populations

EEOC's General Counsel gave a presentation on criminal records and employment to the Criminal Justice Reform Group. He addressed EEOC's work with immigrants with officials from the National Employment Law Project, and at a National Low-Income Immigrants' Rights Conference sponsored by the National Immigration Law Center. The Houston regional attorney was part of an interreligious panel discussing reform of the immigration laws and legal initiatives opposing sexual trafficking. The General Counsel's special assistant discussed the use of Title VII to address discrimination against low-wage workers at a National Employment Lawyers Association's workers' rights luncheon. The San Francisco regional attorney gave the keynote speech on representing low wage workers at the Washington Employment Lawyers Association conference, and discussed human trafficking and forced labor at a conference sponsored by University of Washington School of Law.

Business Groups and Employers

The General Counsel participated in a panel discussion on systemic discrimination and the future of class action litigation at a Corporate Counsel Conference. Charlotte trial attorneys discussed the ADAAA and workplace substance abuse issues with contractor associations and construction unions, and spoke about harassment and arrest and conviction records at the annual meeting of Sibley Hospital/John Hopkins Medicine. A Dallas trial attorney discussed sexual harassment, retaliation, and top mistakes employers make that lead to litigation at an event for Genpak, a food service container and packaging company. The San Francisco regional attorney provided an EEOC update, and discussed EEOC litigation against healthcare facilities with the Hospital Council of Northern and Central California. An Atlanta trial attorney presented "The ABC's of EEO for Managers and Supervisors" to Landmark Hospital employees. A New York trial attorney spoke to New York City EEO Directors about EEOC.

Advocacy and Interest Groups

The General Counsel discussed Title VII's applicability to victims of domestic violence at a Legal Aid Society meeting, and discussed EEOC's recent directives, initiatives, and priorities with the National Organization for Mexican American Rights. He also discussed religious and national origin discrimination with the American Arab Anti-Discrimination Committee. The New York regional attorney met with the Legal Aid Society Employment Law Project about the EEOC. A New York trial attorney met with the Korea Work and Family Foundation to discuss EEOC, and gave the keynote speech at a conference of the Asian & Pacific Islander Institute on Domestic Violence and Sexual Assault. An Atlanta trial attorney discussed work/life issues at the Leadership Institute of Women of Color Attorneys' Conference.

Government Entities

The General Counsel spoke with the International Association of Official Human Rights Agencies about age discrimination, the Lily Ledbetter Act, and current challenges in employment discrimination. He also provided an EEOC litigation update to the Department of Energy, and presented on immigrant worker issues and development of EEOC's Strategic Enforcement Plan at the EEOC-FEPA National Training Conference. The Los Angeles regional attorney discussed various EEOC matters at a civil rights roundtable sponsored by the Department of Labor's Office of Contract Compliance. The Chicago regional attorney and a Chicago trial attorney participated in a "Labor Weeks" event at the Mexican Consulate in Chicago. The San Francisco regional attorney reviewed employer investigations with the California Department of Fair Employment and Housing. A Dallas trial attorney discussed EEOC compliance initiatives and legal developments with the North Central Texas Council of Governments. An Indianapolis trial attorney provided a legal update at the 25th Anniversary of the Kentucky Governor's EEO Conference. A New York trial attorney presented at a HUD Summit on LGBT issues. The San Francisco regional attorney conducted training for the Oregon Bureau of Labor and Industry on local EEOC litigation, the ADAAA, and assessing credibility in harassment cases. An Atlanta trial attorney discussed the district office's legal unit at a summer intern program sponsored by the Department of Education Office of Civil Rights. A Birmingham trial attorney discussed employment law on a panel for federal court clerk training.

Law and Bar Groups

The General Counsel was the keynote speaker on "Trends in Employment Law" at the ABA Section of Labor & Employment Law Annual Conference, and he discussed OGC priorities as the keynote speaker for the Academy of Florida Management Attorneys.
The General Counsel also discussed EEOC's systemic program and the impact of EEOC's Walmart, Cintas, and CRST cases with the Indianapolis Bar Association. The New York regional attorney spoke to clients of the Ford Harrison law firm about EEOC's systemic initiative, including criminal background checks, and about GINA and fair pay. A Houston trial attorney presented "Effectively Representing Your Client in Front of the EEOC" for a CLE program sponsored by the Texas Bar. A Los Angeles supervisory trial attorney gave a presentation to the Lesbian and Gay Lawyers Association of Los Angeles about EEOC issues relevant to LGBT employment and litigation. A San Francisco trial attorney participated on a panel discussing class and pattern and practice cases at the Practicing Law Institute's California Employment Law Update. The New York regional attorney spoke to a chapter of the National Employment Lawyers Association about pregnancy and caregiver discrimination. The Dallas regional attorney spoke about EEOC at the annual labor and employment program of the Thompson Coe law firm.

Educational Institutions

The General Counsel discussed pregnancy discrimination at a meeting sponsored by the Worklife Program at University of California, Hasting College of Law. The Houston regional attorney discussed federal government legal careers at Bellaire High School. The Miami regional attorney spoke about EEOC, Title VII, the effect of the economy on EEOC claims, and the Supreme Court's Dukes v. Wal-Mart decision as a participant on a Diversity Week panel hosted by the University of Miami School of Law. A Miami trial attorney gave a lecture to Stetson College law students and professors on "Disparate Impact/Treatment, Theories of Pattern and Practice Litigation." An Indianapolis trial attorney spoke to a "Women and the Law" class at Indiana University. A New York trial attorney spoke about EEOC to Seton Hall Law School students who provide pro bono representation in mediations.

Media Contacts

The General Counsel was interviewed by the Washington Post about EEOC's laws and about pregnancy and caregiver discrimination. The New York regional attorney spoke to reporters from various publications and media outlets including the Wall Street Journal about harassment in the restaurant industry and sex discrimination on Wall Street, Newsday about the accommodation of religious holiday observances, the New York Daily News about the EPA, the Boston Herald about EEOC's systemic initiative, and the New York German News about EEOC charge processing procedures. A San Francisco trial attorney discussed the ADA as a panelist on a local radio show, "Your Legal Rights."

III. Litigation Statistics

A. Overview of Suits Filed

In FY 2012, the field legal units filed 122 merits lawsuits: 120 direct suits and 2 actions to enforce administrative settlements. (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.) Thirty-six of the suits sought relief for more than one person. The field legal units also filed 33 actions to enforce subpoenas issued during EEOC investigations.

Merits Filings in FY 2012
Count
Direct 120
Intervention 0
Administrative Settlements 2
Total 122
86 Individual Suits
26 Class Suits
10 Systemic Suits

1. Litigation Workload

The FY 2012 litigation workload (merits cases active at the start of the fiscal year plus merits suits filed during the fiscal year) totaled 435.

FY 2012 Litigation Workload
Active Filed Workload
313 122 435

2. Filing Authority

In EEOC's National Enforcement Plan, adopted in February 1996, the Commission delegated litigation filing authority to the General Counsel in all but a few areas. The General Counsel has redelegated much of this authority to EEOC's 15 regional attorneys. Redelegated cases are reviewed by staff in the Office of General Counsel prior to suit filing. The chart below shows the filing authority for FY 2012 merits suits.

FY 2012 Merits Suit Authority
Count Percent
Regional Attorney 110 90.2%
General Counsel 10 8.2%
Commission 2 1.6%

3. Statutes Invoked

Of the 122 merits suits filed, 54.1% contained Title VII claims, 1.6% contained EPA claims, 9.8% contained ADEA claims, 36.9% contained ADA claims, and 2.5% were filed under multiple statutes. (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.)

Merits Filings in FY 2012 By Statute
Count Percent of Suits
Title VII 66 54.1%
EPA 2 1.6%
ADEA 12 9.8%
ADA 45 36.9%
Concurrent 3 2.5%

4. Bases Alleged

As shown in the next chart, disability (36.1%), sex discrimination (31.1%), and retaliation (25.4%) were the most frequently alleged bases in EEOC suits. Race discrimination was alleged in 9% of the suits, and age in 9%. Bases numbers in the chart exceed the total suit filings (122) because suits often contain multiple bases.

Bases Alleged in Suits Filed
Count Percent of Suits
Disability 44 36.1%
Sex 38 31.1%
Retaliation 31 25.4%
Race 11 9.0%
Age 11 9.0%
Religion 9 7.4%
National Origin 5 4.1%
Equal Pay 2 1.6%

5. Issues Alleged

Discharge was the most frequently alleged issue in EEOC suits filed (57.4%) and disability accommodation the second (19.7%). Harassment was an issue in 18% of the suits, hiring in 17.2%, and terms and conditions in 10.7%.

Frequently Alleged Issues in Suits Filed
Count Percent of Suits
Discharge 70 54.7%
Disability Accommodation 24 19.7%
Harassment 22 18.0%
Hiring 21 17.2%
Terms and Conditions 13 10.7%
Religious Accommodation 4 3.3%
Pay 2 1.6%

B. Suits Filed by Bases and Issues

1. Sex Discrimination

As shown below, 57.9% of cases with sex as a basis contained a harassment allegation. Discharge was the second most frequently alleged issue in sex claims (44.7%).

Frequently Alleged Sex Discrimination Issues
Count Percent
Harassment 22 57.9%
Discharge 17 44.7%
Terms/Conditions 4 10.5%
Hiring 4 10.5%

2. Race Discrimination

Harassment was also the most frequently alleged issue in race discrimination claims (54.5%).

Frequent Alleged Race Discrimination Issues
Count Percent
Harassment 6 54.5%
Promotion 3 27.3%
Terms/Conditions 2 18.2%

3. National Origin Discrimination

As shown in the next chart, harassment was the most frequently alleged issue where national origin was the basis (80%).

National Origin Discrimination Issues
Count Percent
Harassment 4 80.0%
Constructive Discharge 2 40.0%
English-Only Rule 1 20.0%

4. Religious Discrimination

Discharge and failure to accommodate were issues in most of the religious discrimination cases.

Frequently Alleged Religious Discrimination Issues
Count Percent
Discharge 5 55.6%
Reasonable Accommodation 4 44.4%

5. Age Discrimination

Discharge was an issue in 54.5% of the age discrimination cases and hiring and benefits were each an issue in 27.3%.

Frequently Alleged Age Discrimination Issues
Count Percent
Discharge 6 54.5%
Hiring 3 27.3%
Benefits 3 27.3%

6. Disability Discrimination

Discharge was the most frequently alleged issue in disability suits (70.5%), followed by failure to accommodate (54.5%) and hiring (27.3%).

Frequently Alleged Disability Discrimination Issues
Count Percent
Discharge 31 70.5%
Reasonable Accommodation 24 54.5%
Hiring 12 27.3%

7. Retaliation

Discharge was an issue in 71% of retaliation claims.

Frequently Alleged Retaliation Issues
Count Percent
Discharge 22 71.0%
Terms/Conditions 7 22.6%
Harassment 5 9.7%

C. Bases Alleged in Suits Filed from FY 2008 through FY 2012

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

Bases Alleged in Suits Filed FY 2008 - 2012
Percent Distribution
FY Sex(F) Sex(P) Sex(M) Race Nat. Or. Relig. Dis. Age Retal.

2008

30.0%

8.6%

2.1%

23.4%

7.2%

6.2%

12.8%

13.1%

35.2%

2009

26.7%

5.7%

3.9%

17.4%

6.8%

3.9%

25.6%

8.2%

35.9%

2010

32.4%

7.6%

4.0%

17.2%

8.4%

9.6%

14.8%

10.4%

37.6%

2011

24.5%

7.3%

2.3%

12.3%

8.4%

5.7%

29.9%

7.7%

35.6%

2012

20.5%

9.0%

1.6%

9.0%

4.1%

7.4%

36.1%

9.0%

25.4%

D. Suits Resolved

In FY 2012, the Office of General Counsel resolved a total of 251 merits lawsuits, recovering $43,262,099 in monetary relief.

1. Types of Resolutions

As the chart below indicates, 85.3% of EEOC's suit resolutions were settlements, 11.6% were determinations on the merits by courts or juries, and 3.2% were voluntarily dismissed. (The figures on favorable and unfavorable court orders do not take appeals into account.)

Types of Resolutions FY 2012
Count Percent

Consent Decree

209

83.3%

Settlement Agreement

5

2.0%

Favorable Court Order

13

5.2%

Unfavorable Court Order

16

6.4%

Voluntary Dismissal

8

3.2%

Total 251 100%

2. Statutes Invoked

Of the 251 merits suits resolved during the fiscal year, 63.3% contained Title VII claims. ADA claims were present in 28.7% of the resolutions and ADEA claims in 11.6%. (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.)

FY 2012 Resolutions by Statute
Count Percent of Suits

Title VII

159

63.3%

ADEA

29

11.6%

EPA

2

0.8%

ADA

72

28.7%

Concurrent

11

4.4%

As shown below, Title VII suits accounted for about 79% of monetary relief obtained in FY 2012 and ADA suits for about 13%. Recoveries in concurrent suits are not included in the totals for the particular statutes.

FY 2012 Monetary Relief by Statute
(rounded)
Statute Relief
(millions)
Relief
Percent

Title VII

$34.2

79.0%

ADEA

$2.6

6.1%

ADA

$5.5

12.7%

Concurrent

$0.9

2.2%

Total $43.2 100.0%

3. Bases Alleged

As shown in the following chart, sex was a basis in 33.9% of the suits resolved, retaliation in 32.7%, disability in 27.5%, race in 13.9%, age in 10%, religion in 7.6%, and national origin in 6.4%. The total count exceeds suits resolved (251) because suits often contain multiple bases.

Bases Alleged in Suits Resolved
Count Percent of Suits

Sex

85

33.9%

Retaliation

82

32.7%

Disability

69

27.5%

Race

35

13.9%

Age

25

10.0%

Religion

19

7.6%

National Origin

16

6.4%

Equal Pay

1

0.4%

4. Issues Alleged

Discharge was an issue in 65.7% of the cases resolved, and harassment in 34.3%.

Frequently Alleged Issues in Suits Resolved
Count Percent of Suits

Discharge

165

65.7%

Harassment

86

34.3%

Hiring

30

12.0%

Terms and Conditions

28

11.2%

Disability Accommodation

28

 11.2%

Promotion

11

 4.4%

Religious Accommodation

8

 3.2%

Pay

8

3.2%

5. Appellate Activity

EEOC filed appeals in 22 merits cases during fiscal year 2012, and defended appeals in 4 cases (one of the 4 was in the Supreme Court on the grant of a writ of certiorari). At the end of the fiscal year, OGC had 15 cases pending in the United States courts of appeals involving merits suits, 12 as appellant and 3 as appellee. EEOC's Appellate Services also filed 17 briefs as amicus curiae during the fiscal year.

E. Attorney's Fees Awarded against EEOC

EEOC v. Tricore Reference Laboratories, 493 F.App'x 955 (10th Cir. Aug. 16, 2012) (unpublished)

EEOC alleged in this ADA case that defendant failed to reasonably accommodate an employee's disability and discharged her because of her disability. The district court granted summary judgment to defendant and awarded attorney's fees against EEOC for continuing to litigate the case after it should have known that neither of its claims had merit. EEOC appealed the dismissal of its disability discharge claim and the award of attorney's fees. The court of appeals affirmed both rulings, and granted defendant attorney's fees and costs on EEOC's appeal of the disability discharge claim, finding that the appeal was frivolous. Defendant was awarded $140,671.62 in attorney's fees for work performed in the district court and $21,179 for attorney's fees and costs in defending EEOC's appeal of the disability discharge claim.

F. Resources

1. Staffing

Both total field staff and field attorneys fell slightly from FY 2011.

OGC Staffing (On Board)
Year HQ All Field Field Attorneys*
2008

51

296

193

2009

54

311

211

2010

57

324

209

2011

56

333

213

2012

52

317

211

* Includes Regional Attorneys, Supervisory Trial Attorneys, and Trial Attorneys

2. Litigation Budget

As indicated in the chart below, OGC's FY 2012 litigation support budget was approximately the same as in FY 2011.

Litigation Support Funding (Millions)

FY FUNDING
2008

$3.58

2009

$4.60

2010

$4.96

2011

$4.10

2012

$4.07

G. Historical Summary: Tables and Charts

1. EEOC 10-Year Litigation History: FY 2003 through FY 2012

Litigation Statistics, FY 2003 through FY 2012

FY03

FY04

FY05

FY06

FY07

FY08

FY09

FY10

FY11

FY12

All Suits Filed

400

421

416

403

362

325

316

272

301

155

Merits Suits

366

378

381

371

336

290

281

250

261

122

Suits with Title VII Claims

298

297

295

294

268

224

188

192

162

66

Suits with ADA Claims

49

46

49

42

46

37

76

41

80

45

Suits with ADEA Claims

27

46

44

50

32

38

24

29

26

12

Suits with EPA Claims

12

5

13

10

7

0

2

2

2

2

Suits filed under multiple statutes1

19

14

17

22

16

9

9

14

9

3

Subpoena and Preliminary Relief Actions

34

43

35

32

26

35

35

22

40

33

All Resolutions

381

380

378

418

387

367

352

318

318

280

Merits Suits

351

346

338

383

364

336

324

289

278

251

Suits with Title VII Claims

275

277

259

295

297

265

254

201

215

159

Suits with ADA Claims

50

43

41

50

41

46

40

59

43

72

Suits with ADEA Claims

35

34

45

50

36

39

38

39

26

29

Suits with EPA Claims

13

9

12

8

14

3

5

0

0

2

Suits filed under multiple statutes

21

14

18

17

19

16

13

10

8

11

Subpoena and Preliminary Relief Actions

30

34

40

35

23

31

28

29

40

29

Monetary Benefits ($ in millions)2

146.6

168.6

104.8

44.3

54.8

101.1

81.6

85.6

89.7

43.2

Title VII

85.1

158.5

98

34.3

38.9

64.9

64.5

74.0

53

34.2

ADA

2.3

2.5

3.4

2.8

3.1

3.3

9.5

2.9

27.1

5.5

ADEA

57.8

5.4

2.4

5.1

2.4

29.9

6.7

5.8

8.4

2.6

EPA

0

0

0

0

0.2

1.0

0.02

0

0

0

Suits filed under multiple statutes3

1.5

2.3

1

2.1

10.2

1.7

0.9

2.9

1.1

0.9

2. Merits Suits Filed FY 2003 through FY 2012

The chart below shows the number of merits suits filed for FY 2003 through FY 2012.
Link to chart data

3. Merits Suits Resolved FY 2003 through FY 2012

The chart below shows the number of merits suits resolved for FY 2003 through FY 2012.
Link to chart data

4. Monetary Recovery FY 2003 through FY 2012

The chart below shows the monetary recovery for FY 2003 through FY 2012.
Link to chart data


Footnotes

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.