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OFFICE OF GENERAL COUNSEL FISCAL YEAR 2019 ANNUAL REPORT

Sharon Fast Gustafson
General Counsel

 

TABLE OF CONTENTS

I. Structure and Function of the Office of General Counsel

A. Mission of the Office of General Counsel

B. Headquarters Programs and Functions

1. General Counsel

2. Deputy General Counsel

3. Litigation Management Services

4. Internal Litigation Services

5. Appellate Litigation Services

6. Research and Analytic Services

C. District Office Legal Units

II. Fiscal Year 2019 Accomplishments

A. Summary of District Court Litigation Activity

B. Selected Systemic Resolutions

C. Other Selected District Court Resolutions

D. Selected Appellate Resolutions

III. Litigation Statistics

A. Overview of Suits Filed

1. Filing Authority

2. Statutes Invoked

3. Bases Alleged

4. Issues Alleged

B. Suits Filed by Bases and Issues

1. Sex Discrimination

2. Race Discrimination

3. National Origin Discrimination

4. Religious Discrimination

5. Age Discrimination

6. Disability Discrimination

7. Retaliation

C. Bases Alleged in Suits Filed from FY 2015 through FY 2019

D. Suits Resolved

1. Types of Resolution

2. Monetary Relief by Statute

E. Appellate Activity

F. Attorney's Fees Awarded against EEOC

G. Resources

1. Staffing

2. Litigation Budget

H. EEOC 10-Year Litigation History: FY 2010 through FY 2019

I. Structure and Function of the Office of General Counsel

 A. Mission of the Office of General Counsel

The Equal Employment Opportunity Act of 1972 amended Title VII of the Civil Rights Act of 1964 (Title VII) to give litigation authority to the Equal Employment Opportunity Commission (EEOC or Commission) and provide for a General Counsel, appointed by the President and confirmed by the Senate for a 4-year term, with responsibility for conducting the Commission's litigation program. Under a 1978 Presidential Reorganization Plan, the General Counsel became responsible for conducting Commission litigation under the Equal Pay Act of 1963 (EPA) and the Age Discrimination in Employment Act of 1967 (ADEA) (both formerly enforced by the Department of Labor). Subsequently, the General Counsel's authority was extended to Commission litigation under the employment provisions of the Americans with Disabilities Act of 1990 (ADA) (Title I; effective July 26, 1992) and the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) (Title II; effective November 21, 2009).

The mission of EEOC's Office of General Counsel (OGC) is to conduct litigation 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 and the EPA includes both private and state and local governmental employers. Private employers must have 20 or more employees for ADEA coverage, but there is no employee minimum for governmental employers; there is no employee minimum for EPA coverage, but for most private employers coverage requires $500,000 or more in annual business. Title VII, the ADA, GINA, and the ADEA also cover labor organizations and employment agencies, and the EPA prohibits labor organizations from attempting to cause an employer to violate that statute. OGC also represents the Commission on administrative claims and litigation brought by agency applicants and employees.

 B. Headquarters Programs and Functions

1. General Counsel

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

OGC, including district office legal units. The General Counsel recommends cases for litigation to the Commission and approves other cases for filing under authority delegated to the General Counsel by the Commission in its Strategic Enforcement Plan for Fiscal Years 2017-2021. The General Counsel provides reports regularly to the Commission on litigation activities and advises the EEOC Chair and Commissioners on agency policies and other matters affecting enforcement of the statutes within the Commission's authority.

2. Deputy General Counsel

The Deputy General Counsel is responsible for overseeing all programmatic and administrative functions of OGC, including the litigation program and the litigation support budget allocated to OGC by the EEOC Chair. OGC functions are carried out through the operational program and service areas described below, which report to or through the Deputy.

3. Litigation Management Services

Litigation Management Services (LMS) oversees and supports the Commission's court enforcement program in the agency's district offices. In conjunction with EEOC's Office of Field Programs, LMS also oversees the integration of district office legal units with the offices' investigative units. LMS provides direct litigation assistance to district office legal units, drafts guidance, develops training programs and materials, and collects and creates litigation practice materials. LMS also reviews and drafts recommendations on suit filings proposed by Regional Attorneys. LMS reviews various other field litigation related matters, such as requests to contract for expert services and proposed resolutions in cases in which the General Counsel has retained settlement authority. LMS contains a unit that provides technical support to field offices in matters such as producing, receiving, and organizing electronically stored information in discovery, extracting and preserving digital media, and collecting and preserving information from social media sites.

4. Internal Litigation Services

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

5. Appellate Litigation Services

Appellate Litigation Services (ALS) is responsible for conducting all appellate litigation where the Commission is a party. ALS also participates as amicus curiae, as approved by the Commission, in United States courts of appeals, federal district courts, and state courts, in cases involving novel issues or developing areas of the law. The Attorney General conducts all litigation to which the Commission is a party in the Supreme Court. ALS also makes recommendations to the Department of Justice in cases where the Department is defending other federal agencies on claims arising under the statutes the Commission enforces. ALS 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.

6. Research and Analytic Services

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

C. District Office Legal Units

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

II. Fiscal Year 2019 Accomplishments

In fiscal year 2019, OGC filed 144 merits lawsuits and resolved 173, obtaining over $39.1 million in monetary relief. Section A below contains summary statistical information on the fiscal year's trial court litigation results (more detailed statistics appear in part III of the Annual Report). Sections B and C contain descriptions of selected district court resolutions, and Section D contains descriptions of selected appellate and amicus curiae resolutions.

A. Summary of District Court Litigation Activity

OGC filed 144 merits suits in FY 2019. Merits suits consist of direct suits and interventions alleging violations of the substantive provisions of the Commission's statutes, and suits to enforce settlements reached during EEOC's administrative process. All FY 2019 merits suits were direct actions. In addition to merits suits, OGC filed 13 actions to enforce subpoenas issued during EEOC charge investigations.

OGC's FY 2019 merits suit filings had the following characteristics:

  • 87 contained claims under Title VII (60.4%)
  • 7 contained claims under the EPA (4.9%)
  • 7 contained claims under the ADEA (4.9%)
  • 55 contained claims under the ADA (38.2%)
  • 44 sought relief for multiple individuals (30.1%)

The above statutory claims exceed the number of suits filed (and percentages total over 100) because cases sometimes contain claims under more than one statute. There were 12 of these "concurrent" suits (8.3%) among the FY 2019 filings.

OGC's merits filings alleged violations covering a variety of bases, including sex (61), disability (53), retaliation (47), race (16), religion (7), equal pay (7), age (6), and national origin (4). The issues raised most frequently in EEOC suits were discharge (101), harassment (48), disability accommodation (29), and hiring (28). At the end of FY 2019, EEOC had 273 merits cases on its active district court docket, of which 118 (43.2%) sought relief for multiple individuals.

In FY 2019, the Commission filed 17 systemic lawsuits. These suits challenged a variety of types of discrimination, including: ADA policy claims (leave limitations, restriction- free return-to-work requirements, and rules disallowing accommodations); race and sex hiring claims; harassment based on race, sex, or national origin; equal pay claims; and claims involving the failure to accommodate pregnant employees to the same extent as nonpregnant employees with similar work restrictions. Systemic suits comprised 11.8% of all merits suits filed in FY 2019. At the end of FY 2019, 60 cases on EEOC's active litigation docket were systemic suits, accounting for 22% of the 273 active merits suits.

EEOC filed 48 lawsuits in FY 2019 challenging workplace harassment. Thirty-four suits raised claims of a hostile work environment based on sex, and 13 raised claims of a hostile work environment based on race. Twenty-four harassment suits sought relief for multiple individuals, six of which were systemic cases.

OGC resolved 173 merits suits in FY 2019, recovering $39,148,038 for 2,479 individuals. OGC achieved a successful outcome (settlement or favorable court order) in 95% of all suit resolutions. Suit resolutions had the following characteristics:

  • 96 contained claims under Title VII (55.5%)
  • 6 contained claims under the EPA (3.5%)
  • 6 contained claims under the ADEA (3.5%)
  • 77 contained claims under the ADA (45.1%)
  • 62 cases sought relief for multiple individuals (35.8%)

The above statutory claims exceed the number of suits filed (and percentages total over 100) because cases sometimes contain claims under more than one statute. There were 13 of these "concurrent" suits (7.5%) among the FY 2019 resolutions.

Part III of the Annual Report contains detailed statistical information on OGC's FY 2019 litigation activities, as well as summary information for past years.

B. Selected Systemic Resolutions

This past year, OGC resolved 27 systemic cases, recovering $22.8 million for 2,022 individuals. EEOC's litigation program achieved a 100% success rate in its systemic cases this year. Below are a few examples of FY 2019 systemic resolutions:

EEOC v. Sherwood Food Distributors, LLC, No. 1:16-cv-02386 (N.D. Ohio Oct. 16, 2018)

EEOC alleged in this Title VII lawsuit that a distributor of refrigerated and frozen foods denied women entry-level warehouse laborer positions at its Cleveland, Ohio, and Detroit, Michigan, facilities. The suit was resolved through a 5-year consent decree providing $3.6 million to women who sought or were otherwise considered for an entry-level warehouse position from January 1, 2009, through June 30, 2018, and were not hired. As vacancies become available during the decree, defendant will offer employment to no less than 150 affected women. The decree also provides annual female hiring goals of the higher of 15% or applicant flow at each facility. Defendant will report to EEOC quarterly on applicants and hires for entry-level warehouse positions, and on all terminations in entry-level warehouse positions, identified by sex; it will also report on affected women who were offered positions, and provide reasons why any affected woman was considered not qualified.

EEOC v. Marquez Brothers International, Inc., Marquez Brothers Enterprises, Inc., Marquez Brothers Food, Inc., Marquez Brothers Southern California, Inc., Marquez Brothers Texas I, Inc.. No. 1:17-cv-00044 (E.D. Cal. Sept. 17, 2019)

EEOC alleged in this Title VII lawsuit that related entities that manufacture and market traditional Mexican foods denied employment on the basis of race to non-Hispanic applicants for unskilled operative and laborer positions at nine locations in California, Colorado, Nevada, and Texas. The suit was resolved through a 3-year consent decree providing $2 million in compensatory damages to affected individuals through a notice and claims process. The decree enjoins failing to hire individuals into positions identified in the decree due to race or national origin. Defendants will send a letter to all staffing agencies with which it contracts for the designated positions, expressing the expectation that the agency will refer and place workers without regard to race or national origin. As a condition of doing business with defendants, the staffing agencies must agree to adhere to decree requirements related to tracking referrals and placements. Defendants will not engage in word-of-mouth recruiting and will hire for the designated positions only through the staffing agencies.

EEOC v. United Parcel Service, Inc., No. 15-cv-04141 (E.D.N.Y. Dec. 21, 2018)

EEOC alleged in this Title VII lawsuit that a national package delivery service discriminated against applicants and employees whose religious beliefs conflicted with its appearance guidelines that prohibited males in customer contact positions from wearing beards or having hair that extended below the bottom of the ear. The discriminatory practices included: failing to hire, promote, and transfer individuals into positions covered by the guidelines; refusing to reasonably accommodate applicants and employees, or unreasonably delaying accommodation requests; and segregating individuals into nonsupervisory noncustomer contact positions. The suit was resolved through a 5-year consent decree providing $4.9 million in backpay and compensatory damages: $4.4 million to approximately 100 identified individuals, and $500,000 to potentially affected individuals who have not yet been identified. The decree enjoins defendant from discriminating on the basis of religion in relation to the appearance guidelines regarding the following: accommodation of religious beliefs, observances, or practices; job segregation; transfer or promotion; and harassment or different terms and conditions of employment. Defendant will implement a revised religious accommodation policy and revised religious accommodation request form, and update and audit its website regarding the revised policies and processes.

EEOC. v. Connections CSP, Inc., No. 1:17-cv-00862 (D. Del. Sept. 10, 2019)

EEOC alleged in this ADA lawsuit that a nonprofit provider of housing, employment, and other services to vulnerable individuals at locations throughout Delaware denied leave as an accommodation to disabled employees and terminated disabled employees unable to return to work at the expiration of their 12-week FMLA leave. The suit was resolved through a 3-year consent decree applicable to all of defendant's facilities. The decree enjoins taking adverse actions against individuals due to their disabilities or the need to accommodate their disabilities. The decree provides $224,488.50 in backpay and $325,511.50 in compensatory damages to five affected individuals in amounts determined by EEOC. Defendant will implement and distribute a modified reasonable accommodation policy stating that it will provide additional unpaid leave when necessary as reasonable accommodations to employees with disabilities and designating specific individuals or positions to which requests for accommodations should be made.

C. Other Selected District Court Resolutions

Below are representative non-systemic FY 2019 resolutions:

EEOC v. Fanatics Retail Group Fulfillment, LLC, No. 3:18-cv-900 (M.D. Fla. Apr. 17, 2019)

EEOC alleged in this Title VII lawsuit that a Jacksonville, Florida, online retailer of officially licensed merchandise for professional sports' leagues subjected a black employee to a racially hostile work environment and denied him a promotion due to his race and in retaliation for complaining of race discrimination. The black employee, a screen room lead, complained to human resources and defendant's CEO about managers' and coworkers' use of racial slurs and racially derogatory language. The employee's supervisor told him that because he hadn't kept his complaint "in house," he would not receive a promised promotion to a supervisory position. The suit was resolved through a 3-year consent decree providing $322,050 ($57,050 in backpay and $265,000 in compensatory damages) to the black employee, who intervened. The decree enjoins creating a racially hostile work environment, using race as a factor in promotions, and retaliation.

EEOC v. Danny's Restaurant, LLC and Danny's of Jackson, LLC f/k/a Baby O's Restaurant, Inc., d/b/a Danny's Downtown Cabaret, No. 3:16-CV-00769 (S.D. Miss. May 16, 2019)

EEOC alleged in this Title VII lawsuit that operators of a gentleman's club in Jackson, Mississippi, subjected black female entertainers to disparate terms and conditions of employment. The court entered a default judgment against Danny's Restaurant, LLC, and on September 30, 2018, the court granted summary judgment to EEOC on liability against the remaining defendant, Danny's of Jackson, LLC. The court found that Danny's of Jackson subjected black dancers to employment conditions not imposed on white dancers, including requiring black dancers to work scheduled shifts and fining them if they failed to appear for a shift; sending black dancers home if defendant believed there were too many black dancers compared to white dancers; and forcing black dancers to work at a club opened by defendant to appeal to black customers, and fining black dancers who refused to work at the new club, which was not covered by the dancers' licenses and was in a poorer physical facility with less security. Following a trial on relief, the jury awarded five black dancers $130,550 in backpay in amounts ranging from $1,500 to $79,200; $1.68 million in compensatory damages in amounts ranging from $100,000 to $630,000; and $300,000 each in punitive damages.

EEOC v. Pape Material Handling, Inc., No. 1:17-cv-01291 (E.D. Cal. May 14, 2019)

EEOC alleged in this Title VII lawsuit that a national provider of forklift products and services, subjected Mexican and other Hispanic employees at its Fresno, California, facility to national origin harassment, permitting an employee to refer to Hispanic workers with ethnic slurs, ridicule their accents, and threaten them with physical harm. The suit was resolved through a 3-year consent decree providing $650,000 in compensatory damages and backpay to affected individuals. The decree enjoins harassment and disparate treatment based on race; permitting a work environment hostile to Mexican or Hispanic employees; and retaliation. Defendant will retain an EEOC-approved monitor to review decree compliance. Defendant will implement a centralized system of tracking discrimination harassment, and retaliation complaints, and conduct annual audits on racial harassment and retaliation at the Fresno location.

EEOC v. Cummins, Inc., d/b/a Cummins Business Services, No. 3:17-cv-01306 (M.D. Tenn. Mar. 29, 2019)

EEOC alleged in this Title VII/EPA lawsuit that a manufacturer of diesel engines paid a woman working in an employee benefits position at its Nashville, Tennessee, call center less than a man holding the same position. After 17 months in the position, the woman was earning $40,900 annually. When she learned that a newly hired man was being paid $47,000, she asked for a salary review. The salary review showed she was not being compensated at the market rate, but defendant refused to adjust her salary. The suit was resolved through a 2.5-year consent decree providing $77,500 to the female employee ($4,000 in backpay and the rest in compensatory damages), who resigned 10 months after the salary review. The decree provides that defendant will not rely solely on prior salary in determining compensation, and will investigate and take appropriate action after learning of any pay disparity between men and women performing substantially the same work.

EEOC v. Favorite Farms, Inc., No. 8:17-cv-01292 (M.D. Fla. Dec. 19, 2018)

EEOC alleged in this Title VII lawsuit that a Dover, Florida, strawberry and cantaloupe grower subjected a female seasonal farmworker to a sexually hostile work environment and retaliated against her for opposing the harassment. At trial, EEOC and the farmworker, who intervened, presented evidence that a male foreman raped the farmworker in her company-provided housing, and that after the rape was reported to the police and the farmworker obtained a restraining order against the foreman, defendant denied her work. The jury returned a verdict for EEOC and the farmworker on the hostile work environment claim, awarding the farmworker $150,000 in compensatory damages and $150,000 in punitive damages; returned a verdict for EEOC and the farmworker on the retaliation claim, awarding the farmworker $250,000 in compensatory damages and $250,000 in punitive damages; and returned a verdict for the farmworker on her State law assault claim, awarding her $50,000 in compensatory damages.

EEOC v. Sumitomo Metal Mining Pogo, LLC, No. 4:18-cv-00034 (D. Alaska June 12, 2019)

EEOC alleged in this Title VII lawsuit that the operator of an underground gold mine in a remote area of Alaska denied a female miner training and promotional opportunities and retaliated against her for opposing sex discrimination, resulting in her constructive discharge. Despite meeting the criteria for promotion from level four to level five miner (the highest level), the female miner was not advanced because her male trainer would not sign off on her training. She complained to management about disparate treatment in her lack of advancement, and about sexually offensive materials in the workplace, and defendant removed the offensive materials but did not otherwise address her complaints. The female miner was then placed on a training plan that contained requirements not imposed on recently promoted male miners. When 10 months later she still had not been promoted, the female miner resigned. The suit was resolved through a 3-year consent decree providing $222,300 in backpay and $240,000 in compensatory damages to the female miner, who intervened, and $227,700 in attorney's fees to Equal Rights Associates, a nonprofit organization. The decree enjoins sex discrimination and retaliation.

EEOC v. Community Care Health Network, LLC d/b/a Matrix Medical Network, No. 2:18-cv- 03008 (D. Ariz. Aug. 6, 2019)

EEOC alleged in this Title VII lawsuit that a provider of in-home and facility health assessments for Medicare, Medicaid, and private insurers rescinded a job offer to an applicant for a credentialing manager position because of the applicant's pregnancy. Immediately after receiving the job offer, the applicant informed defendant she was pregnant and due to deliver in approximately 3 months. A week later, defendant rescinded the offer, telling the applicant she created an "air of mistrust" by not disclosing her pregnancy during the interview process. The suit was resolved through a 1-year consent decree providing the applicant $50,000 in backpay and $100,000 in compensatory damages. The decree enjoins pregnancy discrimination. Defendant will revise its personal leave of absence policy to indicate that pregnant employees may take leave during their first 6 months of employment.

EEOC v. Atlantic Capes Fisheries, Inc., and BJ's Services Co., Inc., No. 1:17-cv-11860 (D. Mass. Jan. 29, 2019)

EEOC alleged in this Title VII lawsuit that a shellfish harvester and processor (ACF) and a staffing agency (BJ's) that supplied and transported workers to ACF's scallop processing facility in Fall River, Massachusetts, acting as joint employers, subjected female production employees at the facility to a sexually hostile work environment through the conduct of a male line supervisor directly employed by BJ's, and terminated two employees for opposing the harassment. The suit was resolved through a 4-year consent decree providing $675,000 in compensatory damages to 14 affected individuals. The decree enjoins defendants from maintaining a hostile work environment based on sex and from retaliation. Defendants will implement policies (in English and Spanish) against discrimination that meet criteria detailed in the decree, and ACF will provide its policies to third-parties that supply workers to the Fall River facility.

EEOC v. Saint Thomas Health, No. 3:18-cv-0978 (M.D. Tenn. April 17, 2019)

EEOC alleged in this Title VII lawsuit that a hospital in Murfreesboro, Tennessee, interfered with an individual's employment by a third-party by denying the individual a religious accommodation. The individual was employed by an entity that contracted with the hospital to provide food and environmental services, and he performed cleaning and maintenance duties at the hospital. The individual was a member of the Moorish Science Temple of America and held a sincere religious belief against putting unnatural substances into his body, including receiving a flu shot. Defendant required everyone working at the hospital to receive an annual flu shot, and it denied the contractor's employee's request to wear a protective mask in lieu of receiving the shot; the contractor then terminated him. The suit was resolved through a 2-year consent decree providing the contractor's employee with $75,000 and enjoining defendant from failing to provide religious accommodations for sincerely held religious beliefs.

EEOC v. AZ Metro Distributors, LLC, No. 15-CV-05370 (E.D.N.Y. Sept. 24, 2019)

EEOC alleged in this ADEA lawsuit that a distributor of beverages to retail outlets throughout the New York metropolitan area discharged two salespersons because of their ages, 64 and 66. The salespersons were the two oldest employees in the sales department and were fired on the same day. EEOC presented evidence at trial that defendant's top sales manager "wanted a younger sales force," and that defendant later hired much younger salespeople. Defendant contended that both employees had voluntarily resigned. The jury returned a verdict for EEOC, awarding one salesperson $250,000 in lost wages and the other $208,000. The jury found that defendant acted "willfully," and the court therefore can award the salespersons liquidated damages in amounts up to their lost wages.

EEOC v. Dignity Health d/b/a Mercy Medical Center, Redding, No. 3:18-cv-04135 (N.D. Cal. Sept. 18, 2019)

EEOC alleged in this ADA lawsuit that an acute care hospital in Redding, California, denied a food services employee a reasonable accommodation for her vision impairment and discharged her due to her disability. For 10 years the employee performed tasks in defendant's cafeteria, such as grilling food, operating the cash register, and stocking and cleaning. In February 2014, due to an illness, she lost almost all vision in both eyes. She took a yearlong unpaid leave of absence and received rehabilitation services that enabled her to live independently and cook safely at home. Defendant denied her request to return to work, rejecting her suggested accommodations and refusing to permit the California Department of Rehabilitation Services to conduct a workplace assessment. The suit was resolved through a 3-year consent decree providing the employee, who intervened, $148,008.08 in backpay, $222,012.12 in compensatory damages, and $199,979.80 in attorney's fees. The decree contains specific injunctions on providing reasonable accommodations and conducting individualized assessments. Defendant will require its director of human resources to attend an 8-hour training focusing on how blind people accomplish tasks through nonvisual means.

EEOC v. Grand Hyatt New York, Inc., No. 1:18-cv-07374 (S.D.N.Y. May 28, 2019)

EEOC alleged in this ADA lawsuit that a New York City hotel refused to reasonably accommodate a front desk agent's spinal impairment. The employee had disc herniation and facet arthropathy (degeneration of joints in the spine), which caused him pain after standing or walking for 20 minutes and severe pain after standing for an hour. He asked to sit while working, but other than providing him two additional 15 minute breaks, defendant required him to stand, telling him that a front desk clerk sitting would detract from the hotel's image. The suit was resolved through a 3-year consent decree providing the employee $35,000 in backpay (for unpaid leave taken to alleviate pain from standing); $50,000 in compensatory damages; and 12 weeks of paid leave to be used in relation to his partner's pregnancy and delivery. The decree requires defendant to provide the employee a chair with a back and allow him to sit while performing his front desk duties.

EEOC v. Work Services, Inc., No. 3:16-cv-03257 (D.S.C. Nov. 27, 2018)

EEOC alleged in this ADA lawsuit that a Newberry, South Carolina, provider of unskilled laborers to perform turkey-processing work denied six employees wages and subjected them to disparate terms and conditions of employment and a hostile working environment due to their intellectual and developmental disabilities, or because defendant regarded them as disabled. Four of the employees were assigned to a Kraft Foods turkey processing plant in Newberry; the other two performed janitorial duties at the bunkhouse where the six individuals were lodged by defendant. The suit was resolved through a 5-year consent decree providing $342,000 in backpay and damages to the six individuals, covering the period from December 2012 until December 2014, when they were removed from the abusive work situation by county and State entities. The decree enjoins defendant from discriminating against applicants or employees because of disabilities with regard to pay, terms and conditions of employment, and harassment.

EEOC v. Party City Corporation, No. 1:18-cv-00838 (D.N.H. April 22, 2019)

EEOC alleged in this ADA lawsuit that a national discount retailer of party products and costumes denied an individual with autism and severe anxiety a sales associate position due to her disabilities. The individual applied at defendant's Nashua, New Hampshire, store accompanied by a job coach provided by Easter Seals. She was interviewed by the hiring manager, who initially thought the job coach was her mother. After learning the applicant had a disability and required a job coach, the hiring manager's demeanor changed, and she said that people like the applicant do not work out because they sleep on the job, play with the props in the store, and do not work. The suit was resolved through a 3-year consent decree providing $155,000 in compensatory damages to the rejected applicant and enjoining discrimination against job applicants who require a job coach as a reasonable accommodation. Managers in a geographic region specified in the decree (12 stores in 4 States) who have hiring authority will receive training on reasonable accommodation of applicants, including applicants with job coaches.

EEOC v. Safeway, Inc., No. 2:18-cv-01352 (W.D. Wash. April 17, 2019)

EEOC alleged in this ADA lawsuit that a national grocery chain denied a deaf individual a reasonable accommodation for a job interview and denied him a job because of his disability. The individual applied for clerk positions at a store in Seattle, Washington, and the in-store recruiter called and offered him an interview. The call was conducted through a video relay service, and when the individual explained he was deaf and would need an interpreter for the interview, the recruiter told him she would check with management and call him back. The applicant never heard from defendant again, although he left several followup messages. The suit was resolved through a 3-year consent decree providing the individual $75,000 ($2,200 in backpay and $72,800 in compensatory damages) and enjoining hiring practices that discriminate against deaf or hard of hearing individuals in violation of the ADA. Defendant's Seattle Division employee relations and human resources personnel will attend a 6-hour training session conducted by the Director of the Hearing Speech and Deaf Center for Seattle.

Waterford School District. No. 2:18-cv-11015 (E.D. Mich. Sept. 18, 2019)

EEOC alleged in this ADEA lawsuit that a Michigan school district failed to recall a high school social studies teacher from layoff because he filed an age discrimination charge with EEOC. The case was resolved through a 2.5-year consent decree providing the teacher $107,000 in monetary relief. The decree enjoins failing to reinstate a teacher because the teacher complained of age discrimination and enjoins retaliation under the ADEA. Defendant will report to EEOC on individuals who have complained of age discrimination and the response.

D. Selected Appellate Resolutions

In addition to its nationwide litigation program at the district court level, OGC represents the agency in federal courts of appeals, and participates as amicus curiae in private actions in federal courts of appeals and, on occasion, in federal district courts and state courts. Some notable appellate decisions in FY 2019 include:

EEOC v. McLeod Health, Inc., 914 F.3d 876 (4th Cir. 2019)

EEOC alleged in this ADA lawsuit that an operator of hospitals and other healthcare facilities in South Carolina subjected the editor of its internal newsletter to two illegal medical examinations and ultimately fired her because of her disability. The employee lacked certain bones in her legs and feet due to a congenital condition, "postaxial hypoplasia of the lower extremity," but had worked successfully at her job for 28 years. The district court granted summary judgment to defendant, holding that medical examinations defendant required after the employee had fallen were justified based on defendant's fear that the employee could not perform the essential functions of her job, and that defendant reasonably relied on the results of the examinations in terminating the employee. The Fourth Circuit reversed, finding there were genuine issues of material fact on whether the job functions defendant identified were essential, and on whether the employee could perform her job without posing a direct threat to her safety. The court also found there were factual issues regarding whether the employee was a qualified individual at the time she was removed from her job.

EEOC v. Global Horizons, Inc., 915 F.3d 631 (9th Cir. 2019)

EEOC alleged in this Title VII lawsuit that a labor broker ("Global"), and two Washington State fruit growers operating as joint employers with Global, subjected Thai H-2A guest workers to discriminatory terms and conditions of employment due to their national origin and retaliated against workers for opposing the discrimination.

The district court entered a default judgment against Global, which had gone out of business. In a series of rulings, the district court dismissed EEOC's claims against the growers, and then awarded the growers nearly $1 million in attorneys' fees against the agency. The Ninth Circuit reversed and remanded. The court held that the common-law agency test should be applied in the Title VII context when determining whether two entities are joint employers. It then found that EEOC had adequately alleged from the beginning of the litigation that Global was a joint employer with each grower as to all aspects of the Thai workers' employment. The court also found there were genuine issues of material fact as to the growers' liability both for their own alleged discriminatory actions and for Global's, insofar as the growers knew or should have known about Global's conduct but failed to take corrective action within their control. Finally, the court vacated the award of attorney's fees to the growers, as they were no longer prevailing parties.

EEOC v. Centura Health, 933 F.3d 1203 (10th Cir. 2019)

EEOC filed this action to enforce a subpoena issued during an investigation of 11 individual disability discrimination charges. The Tenth Circuit affirmed the district court's order requiring the employer to produce information about employees at eight facilities where the employer was alleged to have a policy that discriminated on the basis of disability. Observing that the relevance standard of EEOC's investigative authority (42 U.S.C. § 2000e-8(a)) "sweeps more broadly than it would at trial," the court said that because evidence of an employer's discriminatory policy "is relevant to individual charges under the narrower relevance standard in a civil case, it follows that such evidence is relevant to individual charges under the broader standard of § 2000e-8(a) because it 'might cast light' on the charges under investigation."

Logan v. MGM Grand Detroit Casino, No. 18-1381, 2019 WL 4668055 (6th Cir. Sept. 25, 2019)

In this private Title VII lawsuit alleging sex discrimination and retaliation, the district court granted summary judgment to the employer on the ground that although the suit was filed within Title VII's limitations period, it was untimely under a 6-month limitations period in the contract the plaintiff was required to sign as a condition of employment.

The Sixth Circuit reversed, agreeing with EEOC as amicus curiae that contracts to shorten the limitations period for bringing suit under Title VII are unenforceable. The court based its holding on two grounds: (1) the crucial role that Title VII's limitations period plays in the statute's detailed enforcement scheme, and (2) the need for uniform national enforcement. On the first point, the court summarized Title VII's presuit requirements and stressed the importance of the limitations period in that scheme. The court said: "[A]lter[ing] the statutory limitation period necessarily risk[s] upsetting [Congress'] delicate balance, removing the incentive of employers to cooperate with the EEOC, and encouraging litigation that gives short shrift to pre-suit investigation and potential resolution of disputes through the EEOC and [FEPAs]." In addition, the court explained that although limitations periods are typically categorized as procedural provisions, Title VII's limitations period is substantive because Title VII creates rights and remedies and contains its own limitations period. Because Title VII's limitations period is a substantive right, it was not prospectively waivable by contract.

Second, the court relied on the fact that Title VII's objective of achieving equality of employment opportunities was national in scope and required uniform enforcement. The goal of uniform enforcement would be frustrated if state law governed the enforceability of contracts shortening the limitations period for filing Title VII suits. Such a regime, the court said, "would give rise to the anomalous result that similarly situated plaintiffs in different states would have different rights in the enforcement of wholly federal claims in federal courts."

Mount Lemmon Fire District v. Guido, 139 S. Ct. 22 (2018)

In a unanimous decision, the Supreme Court held that a state and its political subdivisions constitute employers under the ADEA regardless of whether they meet the employee minimum applicable to private entities. The Court agreed with the government's brief as amicus curiae, which advanced EEOC's longstanding view that the ADEA applies to state entities of any size.

The first sentence of the ADEA's employer definition, 29 U.S.C. § 630(b), provides that the term "employer" means a person engaged in interstate commerce with twenty or more employees. The second sentence states that the term "also means . . . a State or political subdivision of a State." The Court held that "§ 630(b)'s two-sentence delineation, and the expression 'also means,'" dictate the conclusion that a State or political subdivision qualifies as an "employer" regardless of its size.

The Court noted that originally both Title VII and the ADEA defined "employer" as a "person" meeting a numerical employee threshold, and that both statutes excluded governmental entities. In amending Title VII in 1972 to apply to state and local government entities, Congress included them within the definition of "person," necessarily subjecting them to Title VII's 15-person employee requirement to be covered as employers. In contrast, the Court said, Congress amended the ADEA 2 years later by adding state entities, including political subdivisions, to the definition of "employer." Congress did so as part of an amendment that expanded the Fair Labor Standards Act's coverage to all government employers, regardless of size. The Court said that the disparity in coverage of state political subdivisions between Title VII and the ADEA "is a consequence of the different language Congress chose to employ," and "[t]he better comparator is the FLSA, on which many aspects of the ADEA are based."

Fort Bend County, Texas v. Davis, 139 S. Ct. 1843 (2019)

The Supreme Court unanimously held in this Title VII action that the statute's charge- filing requirement is not jurisdictional, but instead is a claim-processing rule subject to forfeiture. Agreeing with EEOC and the Department of Justice, the Court said that Title VII's charge-filing provisions do not contain the clear statement of congressional intent necessary to render a prelitigation requirement jurisdictional. Federal courts exercise jurisdiction over Title VII claims pursuant to 42 U.S.C. § 2000e-(5)(f)(3), Title VII's jurisdictional provision, and 28 U.S.C. § 1331, the general federal-question jurisdictional provision. Title VII's charge-filing provisions, 42 U.S.C. § 2000e-5(e)(1), (f)(1), do not refer to jurisdiction in any way; rather, they address only a party's procedural obligations. Thus, charge filing "may be 'mandatory' in the sense that a court must enforce the rule if a party properly raises it," but unlike a jurisdictional requirement, which may be raised at any time, "an objection based on a mandatory claim-processing rule may be forfeited if the party asserting the rule waits too long to raise the point." The Court affirmed the Fifth Circuit's ruling that the defendant in the instant case had forfeited the argument that the plaintiff failed to file an EEOC charge by not making the objection until years into the litigation, after an entire round of appeals including a petition for certiorari to the Supreme Court.

III. Litigation Statistics

A. Overview of Suits Filed

In FY 2019, EEOC's field legal units filed 144 merits lawsuits. Merits suits include direct suits and interventions alleging violations of the substantive provisions of the Commission's statutes, and suits to enforce settlements reached during EEOC's administrative process. All FY 2019 filings were direct suits. Seventeen filings were systemic suits and 27 were nonsystemic suits that sought relief for multiple individuals. The field legal units also filed 13 actions during the fiscal year to enforce Investigative subpoenas.

1. Filing Authority

In EEOC's National Enforcement Plan, adopted in February 1996 and reaffirmed most recently in the Commission's Strategic Enforcement Plan for Fiscal Years 2017-2021, the Commission delegated litigation filing authority to the General Counsel in all but a few areas. The General Counsel has redelegated much of this authority to EEOC's 15 Regional Attorneys; however, all cases are reviewed by Office of General Counsel headquarters staff prior to suit filing.

2. Statutes Invoked

Of the 144 merits suits filed, 60.4% contained Title VII claims, 38.2% contained ADA claims, 4.9% contained ADEA claims, 4.9% contained EPA claims, and 8.3% were filed under more than one statute. (Statute numbers in the chart below exceed the number of suits filed and percentages total over 100 because suits filed under multiple statutes ("concurrent" cases) are included in the totals of suits filed under each of the statutes.)

 

Merits Filings in FY 2019 by Statute

 

Count

Percentof Suits

Title VII

87

60.4%

ADA

55

38.2%

ADEA

7

.9%

EPA

7

4.9%

Concurrent

12

8.3%

3. Bases Alleged

As shown in the next chart, sex (42.2%), disability (36.8%), retaliation (32.6%), and race (11.1%) were the most frequently alleged discriminatory bases in EEOC suits. Bases numbers in the chart exceed the total suit filings because suits often contain multiple bases.

FY 2019 Bases Alleged in Suits Filed

 

Count

Percentof Suits

Sex

61

42.4%

Disability

53

36.8%

Retaliation

47

32.6%

Race

16

11.1%

Religion

7

4.9%

Equal Pay

7

4.9%

Age

6

4.2%

National Origin

4

2.8%

4. Issues Alleged

As shown in the chart below, discharge was the most frequently alleged issue (70.1%) in EEOC suits filed, followed by harassment (33.3%), disability accommodation (20.1%), and hiring (19.4%). (Counts of discharge include constructive discharge.)

 

FY 2019 Issues Alleged in Suits Filed

 

Count

PercentofSuits

Discharge

101

70.1%

Harassment

48

33.3%

Disability Accommodation

29

20.1%

Hiring

28

19.4%

Terms/Conditions

8

5.6%

Wages

8

5.6%

Recordkeeping

6

4.2%

Religious Accommodation

4

2.8%

Assignment

3

2.1%

Promotion

1

0.7%

Discipline

1

0.7%

Prohibited Med. Inq./Exam

1

0.7%

B. Suits Filed by Bases and Issues

1. Sex Discrimination

As shown below, 55.7% of cases with sex as a basis contained a harassment allegation; 45.9% contained a discharge allegation.

Sex Discrimination Issues

 

Count

Percent

Harassment

34

55.7%

Discharge

28

45.9%

Hiring

9

14.8%

Wages

5

8.2%

2. Race Discrimination

As shown in the next chart, harassment was the most frequently alleged issue (81.3%) in suits containing race discrimination claims.

Race Discrimination Issues

 

Count

Percent

Harassment

13

81.3%

Discharge

5

31.3%

Hiring

3

18.8%

Terms/Conditions

1

6.3%

3. National Origin Discrimination

As shown in the next chart, harassment was alleged in all suits where national origin was a basis.

National Origin Discrimination Issues

 

Count

Percent

Harassment

4

100.0%

Discharge

2

50.0%

Demotion

1

25.0%

 

4. Religious Discrimination

Discharge and failure to accommodate were the most frequently alleged issues in suits containing religious discrimination claims.

 

Religious Discrimination Issues

 

Count

Percent

Discharge

5

71.4%

Reasonable Accommodation

4

57.1%

Harassment

2

28.6%

Hiring

1

14.3%

5. Age Discrimination

Hiring and discharge were the substantive issues in cases with age discrimination claims.

Age Discrimination Issues

 

Count

Percent

Hiring

4

66.7%

Discharge

3

50.0%

Recordkeeping

1

16.7%

 

6. Disability Discrimination

Discharge was the most frequently alleged issue in disability suits (67.9%), followed by failure to accommodate (54.7%) and hiring (20.8%).

 

Disability Discrimination Issues

 

Count

Percent

Discharge

36

67.9%

Reasonable Accommodation

29

54.7%

Hiring

11

20.8%

Harassment

2

3.8%

Recordkeeping

2

3.8%

Assignment

2

3.8%

Prohibited Med. Inq./Exam

1

1.9%

Discipline

1

1.9%

Demotion

1

1.9%

Terms and Conditions

1

1.9%

7. Retaliation

Discharge was an issue in 83% of the suits containing retaliation claims.

Retaliation Issues

 

Count

Percent

Discharge

39

83.0%

Hiring

6

12.8%

Terms/Conditions

3

6.4%

Suspension

3

6.4%

Harassment

2

4.3%

Discipline

1

2.1%

Assignment

1

2.1%

Wages

1

border: 1px solid #000001; padding: 0in;"

2.1%

C. Bases Alleged in Suits Filed from FY 2015 through FY 2019

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

Bases Alleged in Suits Filed FY 2015 - FY 2019 Percent Distribution

FY

Sex -
Female

Sex -
Preg.

Sex -
Male

Sex -
LGBT

Race

Nat'l
Orig.

Relig

Disab

Gen
Info.

Age

Retal

2015

18.3

13.4%

2.1%

1.4%

11.3%

7.7%

3.5%

35.2%

0.7%

9.2%

28.2%

2016

14.0%

7.9%

5.8%

4.6%

11.6%

5.8%

7.0%

40.7%

2.3%

2.3%

27.9%

2017

22.8%

7.6%

7.1%

3.3%

11.4%

4.3%

6.5%

40.8%

1.6%

6.5%

29.3%

2018

26.1%

9.5%

3.5%

1.0%

8.0%

4.0%

4.5%

42.2%

0.0%

4.5%

25.6%

2019

29.2%

8.3%

4.9%

0.0%

11.1%

2.8%

4.9%

36.8%

0.0%

4.2%

32.6%

 

D. Suits Resolved

In FY 2019, the Office of General Counsel resolved 173 merits lawsuits, obtaining $39,148,038 in monetary relief.

1. Types of Resolution

As the next chart indicates, 90.8% of EEOC's suit resolutions were settlements, 8.0% were determinations on the merits by courts or juries, and 1.2% were voluntary dismissals. (The figures on favorable and unfavorable court orders do not take appeals into account.)

 

FY 2019 Types of Resolution

 

Count

Percent

Consent Decree

156

90.2%

Favorable Settlement Agreement

1

0.6%

Favorable Court Order

7

4.0%

Unfavorable Court Order

7

4.0%

Voluntary Dismissal

2

1.2%

Total

173

100%

2. Monetary Relief by Statute

Of the 173 merits suits resolved during the fiscal year, 55.5% contained Title VII claims and 45.1% contained ADA claims. (Statute numbers in the chart below exceed the number of suits resolved and the percentages total over 100 because suits resolved under multiple statutes ("concurrent" cases) are also included in the totals of suits resolved under each statute.)

FY 2019 Resolutions by Statute

 

Count

Percent Suits

Title VII

96

55.5%

ADA

78

45.1%

ADEA

6

3.5%

EPA

6

3.5%

Concurrent

13

7.5%

As show in the next chart, Title VII suits accounted for about two-thirds of the monetary relief obtained in FY 2019, while ADEA suits accounted for about a fifth of relief recovered. Recoveries in concurrent suits are not included in the totals for the particular statutes.

 

FY 2019 Monetary Relief by Statute (rounded)

 

Relief (millions)

Relief (percent)

Title VII

$25.8

65.8%

ADA

$8.5

21.8%

ADEA

$0.9

2.5%

EPA

$0.2

0.8%

Concurrent

$3.7

9.4%

Total

$39.1

100%

E. Appellate Activity

OGC filed 5 briefs on appeal in Commission cases in FY 2019, 3 as appellant and 2 as appellee, and filed 23 briefs as amicus curiae in private suits. Represented by the Solicitor General, EEOC filed one merits brief in the U.S. Supreme Court. At the end of FY 2019, EEOC had 17 cases pending in courts of appeals in EEOC suits and was amicus curiae in 28 pending cases. EEOC prevailed in two of four merits cases decided on appeal in FY 2019, and prevailed in the two subpoena enforcement cases decided.

F. Attorney's Fees Awarded as Part of a Merits Determination

No final awards of attorney's fees were issued against the agency in FY 2019 based on a merits determination.

The agency has filed an appeal in EEOC v. Mathews Ford Marion, Inc., No. 3:16-cv-2406 (N.D. Ohio), in which a district court awarded $36,397 in attorney's fees against the agency.

As to a pending fee award from 2017, the agency has filed an appeal and a decision is pending in EEOC v. CRST Van Expedited, Inc., No. 18-1446 (8th Cir.), in which a district court awarded approximately $3.3 million in attorney's fees against the agency. In December 2019, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court's award of $3.3 million in attorneys' fees against the agency.

The statutes enforced by the EEOC do not permit the award of fees to the agency when it prevails on the merits of a matter.

G. Attorney's Fees Awarded as a Discovery Sanction

In EEOC v. Wencor, No. 3:17-cv-139 (N.D. Ga.), a district court awarded $5,392 in attorney's fees against the agency under discovery rule FRCP 37.

Courts awarded fees in favor of the agency under the discovery rules in four separate matters in 2019. Those fees totaled approximately $19,000.

G. Resources

1. Staffing

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

OGC Staffing (On Board)

Year

AppellateAttorney s

Field Attorneys*

2015

16

195

2016

17

173

2017

14

175

2018

13

195

2019

13

175

*includes Regional Attorneys

2. Litigation Budget

 

Litigation Support Funding (Millions)

FY

Funding

2015

$3.55

2016

$3.77

2017

$3.42

2018

$3.68

2019

$3.60

EEOC's litigation funding for FY 2019 was close to that of FY 2018, and has not varied substantially over the past 5 fiscal years.

H. EEOC 10-Year Litigation History: FY 2010 through FY 2019

 

FY10

FY11

FY12

FY13

FY14

FY15

FY16

FY17

FY18

FY19

All Suits Filed

272

301

155

149

168

174

114

201

217

157

Merits Suits

250

261

122

131

133

142

86

184

199

144

Suits with Title VII Claims

192

162

66

77

77

83

46

107

111

87

Suits with ADA Claims

41

80

45

49

49

52

36

76

84

55

Suits with ADEA Claims

29

26

12

7

11

13

2

12

10

7

Suits with EPA Claims

2

2

2

5

2

7

5

11

5

7

Suits with GINA Claims

0

0

0

3

2

1

2

3

0

0

Suits filed under multiple statutes1

14

9

3

9

7

14

5

24

10

12

Subpoena and Preliminary

Relief Actions

22

40

33

18

35

32

28

17

18

13

All Resolutions

318

318

280

228

144

193

171

125

156

180

Merits Suits

289

278

251

213

136

157

139

109

141

173

Suits with Title VII Claims

201

215

159

137

87

86

84

57

82

96

Suits with ADA Claims

59

43

72

60

47

64

48

48

55

78

Suits with ADEA Claims

39

26

29

17

11

12

12

3

10

6

Suits with EPA Claims

0

0

2

4

5

1

7

4

9

6

Suits with GINA Claims

0

0

0

1

1

1

4

1

1

0

Suits filed under multiple statutes

10

8

11

6

13

6

16

4

16

13

Subpoena and Preliminary Relief Actions

29

40

29

15

8

36

32

16

15

7

Monetary Benefits ($ in millions)2

85.6

89.7

43.2

39.0

22.5

65.3

52.2

42.3

53.6

39.1

Title VII

74.0

53

34.2

22.4

15.3

56.9

36.8

21.7

21.5

25.8

ADA

2.9

27.1

5.5

14.0

16.6

6.3

12.1

7.1

21.8

8.5

ADEA

5.8

8.4

2.6

2.1

8.4

.81

.94

12.1

3.9

0.9

EPA

0

0

0

.24

.56

0

.04

0.2

0.1

0.2

GINA

0

0

0

0

0

0

0

0.1

0

0

Suits filed under multiple statutes3

2.9

1.1

0.9

.24

6.5

1.3

2.3

1.1

6.3

3.7

 

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.