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Annual Report on Eeoc Developments: Fiscal Year 2020 ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2020 An Annual Report on EEOC Charges, Litigation, Regulatory Developments and Noteworthy Case Developments | MARCH 2021 | EXECUTIVE EDITOR Barry A. Hartstein EDITORIAL BOARD Ryan L. Eddings Terrence H. Murphy Peter J. Petesch Tessa Gelbman Elisa Nadeau Benson E. Pope Kevin Kraham James A. Paretti, Jr. Kellie A. Tabor Melissa McDonagh Kristy L. Peters CONTRIBUTING AUTHORS Neil Baker Joe Greener Pierre-Joseph Noebes Shabri Baliga William Jie Woo Kim Jennifer Schorgl Katy Branson Joseph Lazazzero Chelsea Smialek Ramanpreet Dheri Erin McNamara Michael Yellin Anton Dirnberger Brandon R. Mita Rosa Goodman Hovannes Nalbandyan IMPORTANT NOTICE This publication is not a do-it-yourself guide to resolving employment disputes or handling employment litigation. Nonetheless, employers involved in ongoing disputes and litigation will find the information useful in understanding the issues raised and their legal context. The Littler Report is not a substitute for experienced legal counsel and does not provide legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Copyright ©2021 Littler Mendelson, P.C. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of Littler Mendelson. ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2020 ABOUT OUR FIRM Littler Mendelson is the world’s largest labor and employment law firm devoted exclusively to representing management. With over 1,600 attorneys 90 offices around the globe, Littler has extensive knowledge and resources to address the workplace law needs of both U.S.-based and multi-national clients. Littler lawyers practice and have experience in at least 40 areas of employment and labor law. The firm is constantly evolving and growing to meet and respond to the changes that impact the workplace. ABOUT OUR EEO & DIVERSITY PRACTICE GROUP With the steady rise in the number of discrimination, harassment and retaliation claims filed each year, employers must be more vigilant and proactive than ever when it comes to their employment decisions. Since laws prohibiting discrimination statutes have existed, Littler’s Equal Employment Opportunity & Diversity Practice Group has been handling discrimination matters for its clients. Members of our practice group have significant experience working with all types of discrimination cases, including age, race, gender, sexual orientation, religion and national origin, along with issues involving disability accommodation, equal pay, harassment and retaliation. Whether at the administrative stage or in litigation, our representation includes clients across a broad spectrum of industries and organizations, and Littler attorneys are at the forefront of new and innovative defenses in each of the key protected categories. Our attorneys’ proficiency in handling civil cases brought by the EEOC and other state agencies enables us to develop effective approaches to defending against any EEOC litigation, whether it involves claims brought on behalf of individual claimants or class-wide allegations involving alleged “pattern and practice” claims and other alleged class-based discriminatory conduct. In addition, our firm recognizes the value of a diverse and inclusive workforce. Littler’s commitment to diversity and inclusion starts at the top and is emphasized at every level of our firm. We recognize that diversity encompasses an infinite range of individual characteristics and experiences, including gender, age, race, sexual orientation, national origin, religion, political affiliation, marital status, disability, geographic background, and family relationships. Our goal for our firm and for clients is to create a work environment where the unique attributes, perspectives, backgrounds, skills and abilities of each individual are valued. To this end, our EEO & Diversity Practice Group includes attorneys with extensive experience assisting clients with their own diversity initiatives, providing diversity training, and ensuring employers remain compliant with the latest discrimination laws and regulations. For more information on Littler’s EEO & Diversity Practice Group, please contact any of the following Practice Group Co-Chairs: • Barry Hartstein, Telephone: 312.795.3260, E-Mail: [email protected] • Cindy-Ann Thomas, Telephone: 704.972.7026, E-Mail: [email protected] Littler Mendelson, P.C. | Labor & Employment Law Solutions ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2020 Table of Contents INTRODUCTION 1 I. EEO ISSUES IN A COVID-19 WORLD: ONGOING EMPLOYER CHALLENGES AND PLANNING FOR WHAT’S ON THE HORIZON – COVID-19 VACCINATIONS 2 A. General Compliance Issues 2 1. Setting the Stage 2 2. The EEOC’s 2020 Rules to Slow the Spread of the Virus 3 a. General ADA Compliance 3 b. Unique Rules Dealing with Reasonable Accommodation 4 3. Infection Control Strategies and Increased Discrimination Risks 6 B. The New Evolving Challenge – An Employer’s Approach in Dealing with the COVID-19 Vaccine 6 1. Establishing Employer Policies and Planning for a COVID-19 Vaccine 6 2. Employment Opportunity Compliance 8 a. Title VII – Religious Discrimination 9 i. Is The Belief Religious? 10 ii. Is it Sincerely Held? 11 iii. Undue Hardship Standard 11 b. ADA and Reasonable Accommodations 12 i. General Requirements 12 ii. The ADA and COVID-19 13 iii. Applicable Standard for Requiring Vaccinations 13 iv. Reasonable Accommodation Under the ADA 14 c. Practical Takeaways Dealing with the EEOC Guidance 15 d. Other Relevant Statutory Schemes 17 i. Pregnancy Discrimination Act 17 ii. Workers’ Compensation Risks 17 iii. Occupational Safety and Health Act 18 iv. National Labor Relations Act, Bargaining Obligations, and Free Speech Considerations 18 v. Dealing with Challenges Based on the Anti-Vaccination Movement and Other “Protected Concerted Activity” 21 vi. Privacy and Public Policy Concerns 22 C. Conclusion 23 II. OVERVIEW OF EEOC CHARGE ACTIVITY, LITIGATION AND SETTLEMENTS 25 A. Review of Charge Activity, Backlog and Benefits Provided 25 B. Systemic Investigations and Litigation 27 C. EEOC Litigation Statistics and Increased Focus on Workplace Harassment 29 D. Mediation Efforts 32 ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2020 Table of Contents E. Significant EEOC Settlements and Monetary Recovery 32 F. Appellate Cases 33 1. U.S. Supreme Court Recognizes Sexual Orientation and Gender Identity as a Protected Classification Under Title VII 34 2. Notable Wins for the EEOC 34 3. Notable Wins for Employers 35 III. EEOC AGENCY AND REGULATORY-RELATED DEVELOPMENTS 36 A. EEOC Leadership 36 B. Regulations and Policy Guidance 36 1. Limited Delegation of Litigation Authority 36 2. Revised Procedures for Conciliation 37 3. Opinion Letters 37 4. Religious Discrimination 38 5. COVID-19 Guidance 38 C. New Agency Priorities 39 1. Compensation Data 39 2. Wellness Regulations 39 3. Artificial Intelligence, Big Data, and Non-Discrimination 39 IV. SCOPE OF EEOC INVESTIGATIONS AND SUBPOENA ENFORCEMENT ACTIONS 40 A. EEOC Investigations 40 1. EEOC Authority to Conduct Class-Type Investigations 40 2. Scope of EEOC’s Investigative Authority 40 a. Applicable Timelines for Challenging Subpoenas (Waiver Issue) 41 b. Procedural Issues 43 c. Confidentiality Order Regarding Information Produced to EEOC 45 3. Review of Recent Cases Involving Broad-Based Investigation by EEOC—Subpoena Enforcement 45 B. Conciliation Obligations Prior to Bringing Suit 47 1. Impact of Mach Mining 48 2. EEOC’s Challenge that any Conciliation Obligation Exists in Pattern-or-Practice Claims Under Section 707 49 3. Admissibility of Evidence of Substance of Conciliation 49 V. REVIEW OF NOTEWORTHY EEOC LITIGATION AND COURT OPINIONS 50 A. Pleadings 50 1. Motion to Dismiss/Scope of Complaint 50 2. Lack of Particularity 50 3. Key Issues in Class-Related Allegations 51 a. Disparate Impact Claims 51 ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2020 Table of Contents b. Special Issues Regarding ADEA Claims 51 c. Challenges to Pattern or Practice Claims 52 d. Special Issues Regarding ADA Claims 53 e. Special Issues Regarding Equal Pay Act Claims 53 f. Other Issues – Not Naming the Appropriate Entity 54 4. Who is the Employer? 54 5. EEOC Motions, Challenges to Affirmative Defenses 56 6. Venue 57 B. Statute of Limitations and Equitable Defenses for Pattern-or-Practice Lawsuits 57 C. Intervention and Consolidation 61 1. EEOC Permissive Intervention in Private Litigation 61 2. A Charging Party’s Right to Intervene in EEOC Litigation 62 3. Adding Pendent Claims 64 4. Individual Intervenor Claims Alongside EEOC Pattern-or-Practice Claims 65 5. Consolidation 65 D. Class Issues in EEOC Litigation—ADEA Litigation 66 E. Other Critical Issues in EEOC Litigation 66 1. Protective Orders 66 2. ESI: Electronic Discovery-Related Issues 66 3. Reliance on Experts, Including in Systemic Cases 67 4. Management of Class Discovery 67 F. General Discovery By Employer—Third-Party Subpoenas 67 G. General Discovery by EEOC/Intervenor 68 1. Scope of Permitted Discovery by EEOC/Intervenor 68 2. Miscellaneous Discovery Issues 70 H. Summary Judgment 71 1. Disability Discrimination 71 2. Joint Employer 73 3. Religious Discrimination (Hairstyle) 73 I. Default Judgment 73 J. Bankruptcy 75 K. Trial 76 1. Pre-Trial Motions 76 2. Trial Motions and Evidentiary Rulings 76 ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2020 Table of Contents 3. Post-Trial Motions 77 L. Remedies 79 1. Remedies
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