EEOC

LEGAL UPDATE

Mary Jo O’Neill, Regional Attorney

Phoenix District Office

September 27, 2018

Agenda

• EEOC’s Strategic Enforcement Plan - FY 2018 Report Card

– Enforcing Equal Pay Laws

– Ongoing Challenges Involving Harassment

– Recruitment and Hiring Barriers

– Protecting Vulnerable Workers

– Emerging Issues (ADA-related concerns, LGBT issues, and pregnancy

discrimination)

– Preserving Access to the System (e.g., challenges to severance and

arbitration agreements)

• Recent 9th Case

• Lessons/ Advice/Questions

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EEOC PRIORITIES

Equal Pay Issues

Enforcing Equal Pay Laws

• In Arizona, women make make $.83 per dollar of men; a $7,337 difference.

• In Arizona, black women make $.68 and Latinas make $.55 compared to

white men.

• Impact of “Directed” Investigations: EEOC can self-initiate even without

charging party.

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Enforcing Equal Pay Laws

Enforcing Equal Pay Laws

• Facts: The Full Tenured Law Professors at

Denver University who were women made on

the average @ $20,000 less than the male law

professors.

• Problem?

• What should DU have done when they

discovered this?

• Professor Lucy Marsh alone filed a Charge of

discrimination with the EEOC. What happened?

Enforcing Equal Pay Laws

• The EEOC filed this case, looked for other

women who were not paid fairly.

• This case was litigated.

• Then, it settled for pay raises, $2,660,000,

injunction, independent consultants, a labor

economist who will do an annual pay study,

policy changes, notices, training……

• EEOC v Denver University, CIV-1:16-cv-

02471-WYD-MJW.

Enforcing Equal Pay Laws

Ongoing Challenges

Involving Harassment

Harassment

• Complaints of harassment … are included in 30% of the charges that we receive.

• See the EEOC Select Task Force Report on Harassment in the Workplace.

EEOC v GEO GROUP (D. AZ.) -2:10-cv-01995-

SRB—settled severe sexual harassment and

retaliation cases for over $750,000 and a very strong

Consent Decree, apologies, no rehire provisions…

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Harassment

EEOC v. Patterson-UTI Drilling Company LLC, Case No. 15-cv-00600-WYD (D. Colo. 2015):

• EEOC Phoenix District Office entered into a $14.5 million settlement and consent decree with Patterson-UTI a Texas-based, multi-state oil drilling company.

• EEOC alleged that Patterson-UTI unlawfully maintained a nationwide practice of race-based discrimination, harassment, and retaliation.

• Unlawful practices allegedly included assigning minorities to the lowest level jobs, failing to train and promote minorities, and disciplining and demoting minority employees disproportionately. Those employees who opposed the harassing conduct allegedly were subject to retaliation such as discipline or discharge.

Harassment

• EEOC v Pitre 11-cv-00875-RB/CG (D.N.M.)-egregious sexual harassment of men and retaliation. Settled for $2,091,666.

• EEOC v IHOP 1:11-cv-00863-KBM/WDS (D.N.M.)-egregious sexual harassment of women and retaliation. Settled for $1 million.

• EEOC v Sonic cv-09-953-WPS/ACT(D.N.M.)-egregious sexual harassment of women and retaliation. Settled for $2 million.

Dealing with Vulnerable Workers

Against Immigrant, Migrant, and Other Vulnerable Workers

Rape in the Fields: Maricruz Ladino tells her story.Photo Credit: Andres Cediel, nytimes.com (6/24/2013).

EEOC & Discrimination

Vulnerable Workers

Protecting Immigrant, Migrant and Other Vulnerable Workers –Focus on those frequently unaware of rights – Cases frequently deal with alleged “human trafficking”- In relevant part- exploitation for purposes of compelled labor through use of force, fraud or coercion.

Noteworthy Litigation:

• EEOC v. Signal Int’l, Case No. 2:12-cv-00557 (E.D. La.). 500 Indian nationals allegedly required to live in “man camps” and sign employment and housing agreements. $5 Million settlement announced on Dec. 18, 2015.

• EEOC v. Global Horizons, Inc. d/b/a Global Horizons Manpower, Inc., Captain Cook Coffee Co., Ltd., Del Monte Fresh Produce (Hawaii), Inc., Kauai Coffee Company, Inc., Kelena Farms, Inc., Mac Farms of Hawaii, LLC, Maui Pineapple Co., et al, Case No. CV-11-00257-LEK- RLP). Received $12.3 million judgment, which was offset by $3.6 million recovered in settlement via consent decree.

Vulnerable Workers

EEOC v Vail Run Resort Community Association, Case No.15-cv-01592 (D. Colo. 2015): Employer agreed to pay over $1.2 million as part of settlement of a sexual harassment, national origin and retaliation lawsuit brought by the EEOC. Allegations included claim that housekeeping manager sexually harassed female employees, including attempted rape. Focus of allegations was manager targeting Mexican immigrants, who were particularly vulnerable, threatening them with job loss and deportation if they refused his advances.

Vulnerable Workers

• EEOC v Mariscos (D. AZ. 2:17-cv-00945-JZB)-

class age/sexual harassment and retaliation of

immigrant workers;$220,000, apologies,

Consent Decree.

• EEOC v New Mercer (D. Colo. 15-cv-01597)-

testing and terminations of African immigrant

workers. $335,000, Consent Decree.

• EEOC v JBS Swift (D. Colo. 10-cv-02103-PAB)-

race, national origin, religion, retaliation case.

EEOC AND THE IMPORTANCEOF JURIES

Photo Credit Kassie Bracken/The New York Times (3/9/2014). See New York Times, “Boys in the Bunkhouse” March 9, 2014, available at http://www.nytimes.com/interactive/2014/03/09/us/the-boys-in-the-bunkhouse.html?_r=0

EEOC v. Hill Country Farms (d/b/a Henry’s Turkey Service)

EEOC v. Hill Country Farms (d/b/a Henry’s Turkey Service) , 11-cv-00041(S.D. Iowa 2013) affirmed 564 Fed.Appx. 868 (8th Cir. 2014)

➢Highest verdict in EEOC history – second highest in U.S. history – under federal anti-discrimination laws.

➢Court granted summary judgment in favor of EEOC on wage discrimination claims in the amount of $1.3 million.

➢ $240 million jury verdict in favor of EEOC for 32 disabled victims of discrimination.

➢$7.5 million each to 32 disabled victims ($2 million in punitive damages and $5.5 million in compensatory damages).

➢ Final award by court resulted in award of $1.37 for 2 years of wages at market rate and $1.6 million after cap reduction for disparate terms and conditions/harassment compensatory/punitives($50,000 x 32). Total final judgment entered at conclusion of proceedings was $3.3 Million

Recruiting and

Hiring Barriers

HIRING CASES

➢ EEOC v. Unit Drilling, No. 4:13-cv-00147-TCK-PJC (D. OKLA.):

Systemic failure to hire women for oil rig positions. Resolved in for

$400,000 and broad non-monetary relief, including a monitor,

apologies and training.

➢ EEOC v All Star Priority Staffing, No. 2:17-cv-03127 (D. Az.)-

Staffing agency asked illegal medical questions as part of application

process. Settled for Consent Decree, including policy changes, job

offers, and $38,000.

➢ EEOC v RCH Colorado, Case No. 15-cv-02170 (D. Colo). Allegation

that casino violated ADEA and Title VII by not hiring older candidates

and females with equal or greater qualifications over males and

younger applicants. Settled for $300,000 and Consent Decree.

Barriers in Recruiting and Hiring

- Disparate Impact CasesDisparate Impact:

• EEOC v New Mercer (D. COLO.)-case

involving a written test which had a disparate

impact against African immigrants; settled for

$335,000.

• See EEOC April 2012 Criminal Arrest and

Conviction Records Guidance.

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Barriers in Recruitment and Hiring –

Disparate Treatment Cases

Large-Scale, Including Nationwide, Disparate Treatment Lawsuits:

• EEOC v. Bass Pro, 4:11-cv-03425 (S.D. Tex., Filed Sept. 21, 2011). Nationwide lawsuit involving alleged discrimination against African Americans and Hispanics, coupled with retaliation. Settled for over $12 million.

• EEOC v. Texas Roadhouse, 11-cv-11732 (D. Mass. 2011, Filed Sept. 30, 2011). Nationwide age discrimination lawsuit involving alleged exclusion from “front of the house” positions. Settled for over $12 million.

• EEOC v. Darden Restaurants, Inc., 15cv-20561 (S.D. Fla., Filed Feb. 12. 2015). Nationwide age discrimination lawsuit based on exclusions from “front” and “back” of the house positions. Settled for over $3 million.

• EEOC v. Performance Food Group, 1:13-cv-01712 (D. Md. June 17, 2013) – Nationwide sex discrimination lawsuit involving alleged failure to hire women for machinery and processing equipment jobs in its warehouses across the country.

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Addressing

Emerging Trends & Developing Issues

Emerging and

Developing Issues

• ADA-Related Issues

• Coverage Based on Discrimination Involving

Sexual Orientation and Gender

• Identify Expanding Scope of Pregnancy/ ADA

Discrimination Claim

• Backlash cases

• Employment relationships-EX: staffing agencies

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Emerging Issues:

ADA Concerns

Emerging and Developing Issues –

ADA Concerns

ADA Concerns : See Resource Document

Addressing Issues Related to Leave and Disability

Settlements:

• EEOC v Interstate Dis., Case No. 2:14-cv-00695 (D.

Colo): Systemic ADA case involving limited leave and

100% RTW policies settled for $4.85 million and Consent

Decree.

• EEOC v CTI, Case No. 4:13-cv-01279 (D. AZ): Systemic

case involving limited leave and 100% RTW policies.

EEOC won SJ. Case settled for Consent Decree and

$300,000.

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Selected ADA Cases

• EEOC v ValleyLife, Case No. 2:15-cv-00340 (D.AZ):

Complaint alleged limited leave policies and no medical

restrictions policies violate the ADA. Settled for

$100,000.

• EEOC v American Airlines, 2:17-cv-04059-SPL

(D. AZ.): Complaint alleged 100% to return to work,

failure to accommodate and failure to provide

reassignment. Settled for strong Consent Decree and

$9.8 million in stock (worth @ $15 million today)

Emerging Issues:

Discrimination Based on Gender Identity

or Sexual Orientation

Gender Identify:

In the view of the EEOC, discrimination against a transgender individual is,

but definition, sex discrimination

1. Lusardi v. Johm M. McHugh, Secy, Dept. of the Army, EEOC Appeal

No. 0120133395 (April 1, 2015)(Commission held that agency violated

Title VII in restricted transgender employee from using common

restroom, relying on 2012 Commission decision, Macy v. DOJ, EEOC

Appeal No. 020120821 (April 20, 2012)

2. See also Settlement in EEOC v. Deluxe Financial Services Corp.,

(Jan. 15, 2016) http://www.eeoc.gov/eeoc/newsroom/release/1-21-

16.cfm for $115,000 and Consent Decree.

Gender Identify Discrimination

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Sexual Orientation Discrimination

• EEOC v ROYAL DINING CATERING (D. AZ.

2:16-cv-03313-DLR) - filed class sexual

orientation harassment / retaliation. Settled for

Decree and $62,500.

• EEOC v. A&E Tire (D. COLO.1:17-cv-02362-

STV) –transgender hiring case-won Motion to

Dismiss.

Coverage of Sexual Orientation:

The EEOC takes the view that discrimination based on

sexual orientation involves sex discrimination in violation of

Title VII

EEOC v 5th & Wine, CV-17-00182-PHX-JJT (D.

AZ.)- fired gay employee and his friend. Judgment for

$100,000.

NOTE: Two petitions for cert filed with USSC.

Sexual Orientation

Discrimination

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Emerging Issues:

Pregnancy Discrimination

➢ EEOC v. Houston Funding, 717 F.3d 425 (5th

Cir. 2013): Published decision holding that

discharge because employee was lactating or

expressing milk states a cognizable sex

discrimination claim under Title VII.

Pregnancy Discrimination

Pregnancy/ ADA Discrimination

• EEOC v Allup’s Convenience Store, 15-

cv-00863 (D. N.M.): PDA and ADA claims

on behalf of charging party and “similarly

aggrieved pregnant women with

disabilities” based on alleged forced

leaves and not making reasonable

accommodations. Settled for $1.9 million

Staffing Agencies

• EEOC v All Star Priority Staffing, No. 2:17-cv-

03127 (D. Az.)-Staffing agency asked illegal

medical questions as part of application process.

Settled for Consent Decree, including policy

changes, job offers, and $38,000.

• ………

Preserving Access to Legal System

- EEOC Challenges to Severance and

Arbitration Agreements

EEOC & Preservation of Access to the Legal System

Preserving Access to

Legal System

• EEOC v. CollegeAmerica Denver, Inc., n/k/a Center

For Excellence in Higher Education, Inc., d/b/a

CollegeAmerica, Civil Action No. 14-cv-01232-LTB-

MJW (D. Colo). ADEA action based on challenge to

separation agreements interfering with employee rights.

10th Circuit reversed and remanded, case No. 16-1340

on 9/6/17.

• EEOC v Montrose Memorial, Case 16-cv=2277 (D.

Colo.)-Court held that many portions of a waiver were

invalid in Order dated 9/4/17.

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RECENT 9th Circuit Case:

Rizo v. Yovino, 887 F.3d 453 (2018)

UPCOMING FROM THE EEOC

• Wellness regulations-ADA/ GINA-on hold.

• EEO-1 and wages-on hold.

• New Appointees-nominated but not confirmed

yet.

MY ADVICE

• Have REAL Zero Tolerance Harassment Policy.

• Discipline and Enforce EEO Policies.

• Think @ new ways to train. EX: bystander training.

• Prevent RETALIATION!

• Look at your Leave/ Attendance/ Return to Work/ Reassignment/ ADA Practices and Policies-REVISE THEM if needed.

• Think PDA and ADA whenever a pregnant woman asks for an accommodation.

• Use JAN always!!!!

• Do REASSIGNMENT RIGHT!

MORE OF MY ADVICE

• Include LGBT coverage in policies.

• Be very careful about testing/ selection criteria

for job applicants. Needed? Validated?

Disparate Impact?

• Remember-your record keeping obligations.

• Do self audits on wages.

• Do self audits on hiring, promotions,

assignments, …

• Have a mentoring program.

Questions & Answers