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ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 An Annual Report on EEOC Charges, Litigation, Regulatory Developments and Noteworthy Case Developments | FEBRUARY 2017 | EXECUTIVE EDITOR Barry A. Hartstein EDITORIAL BOARD Greg Coulter Terrence H. Murphy Tessa Gelbman Peter J. Petesch Kevin Kraham Paul Prather Grady B. Murdock Ilyse Wolens Schuman CONTRIBUTING AUTHORS Jessica Agarwal Sarah J. Gorajski Emily T. Patajo Julia Baxter Greg Greubel Kristy L. Peters Betsy Cammarata Jennifer Harpole Benson E. Pope R. Keith Chapman Sami Hasan Adam Primm Jamie Chu Katherine Hinde Jennifer Savion Anton Dirnberger Samson Huang Meredith C. Shoop Ryan L. Eddings Joseph Lazazzero Cooper Spinelli Rachel Enoch Melissa McDonagh Kellie A. Tabor Brendan Fitzgerald Brandon R. Mita William Trachman Matthew G. Gallagher Elisa Nadeau Amy Ryder Wentz Michelle Gomez Victoria Nsikak Thomas Whiteside ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 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 ©2017 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. B LITTLER MENDELSON, P.C. | EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 Table of Contents SECTION/TOPIC PAGE INTRODUCTION 1 I. A REVIEW OF THE EEOC’S SYSTEMIC INITIATIVE: TRACKING ITS PROGRESS, THE EEOC’S CURRENT PRIORITIES, AND KEY DEVELOPMENTS IN FY 2016 2 A. Setting the Stage 2 B. Review of Systemic Claims Discussed in 2016 Systemic Report 4 C. Genesis of Systemic Investigations 7 D. Resolution of Systemic Claims 8 E. Key Statistics for FY 2016 8 F. Progress Report on Systemic Initiative 11 1. Key Procedural Developments 11 2. Key Litigation Developments-Impact of EEOC’s Strategic Enforcement Plan 12 a. Eliminating Barriers in Recruitment and Hiring 12 b. Systemic Harassment 15 c. Pay and Promotion 16 d. Policies Failing to Accommodate Individuals with Disabilities 18 e. Access to the Legal System 19 f. Protecting Immigrant, Migrant and Other Vulnerable Workers 22 g. Mandatory Retirement and Benefits/Age Discrimination 23 G. Concluding Remarks and Anticipated Trends for FY 2017 24 1. The EEOC Will Continue to Focus on Systemic Investigations and Related Litigation 24 2. The EEOC Will Continue to Focus on Attacking Hiring Barriers 25 3. The EEOC Will Continue to More Closely Review Alternative Work Arrangements 25 4. The EEOC Most Likely Will Pay Increased Attention to Particular Industries 26 5. Challenges to Unlawful Harassment, Including Systemic Harassment, Will Remain a Key Priority 26 6. Disability Discrimination and Related Litigation Will Remain Front and Center 27 7. The EEOC Will Carefully Scrutinize Pay Equity 27 8 Increased Attention Will Be Placed on Age Discrimination Claims 28 9. LGBT Coverage Under Title VII Will Continue to be Vigorously Debated 28 10. Claims Involving Access to the Legal System May Be More Limited 29 COPYRIGHT ©2017 LITTLER MENDELSON, P.C. i ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 Table of Contents (continued) SECTION/TOPIC PAGE II. OVERVIEW OF EEOC CHARGE ACTIVITY, LITIGATION AND SETTLEMENTS 30 A. Review of Charge Activity, Backlog and Benefits Provided 30 B. Continued Focus on Systemic Investigations and Litigation 31 C. Systemic Investigations - A Comparison of the Last Five Fiscal Years 32 D. EEOC Litigation and Systemic Initiative 32 E. Highlights From EEOC Litigation Statistics 34 F. Mediation Efforts 36 G. Significant EEOC Settlements and Monetary Recovery 36 H. Appellate Cases 37 1. Significant Wins for the EEOC 37 2. Significant Employer Wins 39 III. EEOC REGULATORY AGENDA AND RELATED DEVELOPMENTS 42 A. Update on the Commission 42 B. EEOC Strategic Enforcement Plan and Updates on Strategic Plan 43 C. Noteworthy Regulatory Activities 43 1. Equal Pay Initiatives - Pay Data/Revised EEO-1 Report 43 2 Retaliation 44 3. Disability 45 4. Wellness Programs (ADA/GINA) 45 a. Final Rules on Wellness Programs and the ADA 46 b. Final Rules on Wellness Programs and GINA 46 5. National Origin Discrimination 47 6. Federal Sector 48 7. EEOC’s Digital Charge System 49 D. Current and Anticipated Trends 49 1. Religious Accommodations 49 2. Workplace Harassment 50 3. Equal Pay And Pregnancy Discrimination 51 4. Race and National Origin 51 ii LITTLER MENDELSON, P.C. | EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 Table of Contents (continued) SECTION/TOPIC PAGE 5. Human Trafficking 51 6. Tech Industry 52 7. Small Businesses 52 8. EEOC Transparency 52 IV. SCOPE OF EEOC INVESTIGATIONS AND SUBPOENA ENFORCEMENT ACTIONS 53 A. EEOC Investigations 53 1. Scope of EEOC’s Investigative Authority 53 2. Applicable Timelines for Challenging Subpoenas (i.e., Waiver Issue) 53 3. Who Must Appear to Challenge Subpoenas, and Who Must be Represented by an Attorney 54 4. Review of Recent Cases Involving Broad-Based Investigations by the EEOC 55 a. Court of Appeals Decisions 55 b. District Court Cases 56 5. Confidentiality 59 B. Conciliation Obligations Prior to Bringing Suit 60 1. The Mach Mining Decision 60 2. Post-Mach Mining Decisions 61 3. EEOC’s Challenge That Any Conciliation Obligation Exists in Pattern-or-Practice Claims Under Section 707 63 V. REVIEW OF NOTEWORTHY EEOC LITIGATION AND COURT OPINIONS 64 A. Pleadings 64 1. Amending Complaint 64 2. Attacking Complaint Based on Lack of Specificity 64 3 Key Issues in Class-Related Allegations 64 4. Who is the Employer? 65 5. EEOC Motions - Challenges to Affirmative Defenses 66 6. Miscellaneous - Unique Issues 66 B. Statute of Limitations for Pattern-or-Practice Lawsuits 67 C. Intervention 69 1. EEOC Permissive Intervention in Private Litigation 69 COPYRIGHT ©2017 LITTLER MENDELSON, P.C. iii ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 Table of Contents (continued) SECTION/TOPIC PAGE 2. Charging Party’s Right to Intervene in EEOC Litigation 70 3. Adding Pendant Claims 71 4. Individual Intervenor Claims with EEOC Pattern-or-Practice Claims 72 D. Class Discovery Issues in EEOC Litigation 72 1. Bifurcation in EEOC Litigation 72 2. Identification of Class and/or Communication with Class 73 3 Other Class Discovery in Pattern-or-Practice Claims 73 E. Other Critical Issues in EEOC Litigation 75 1. Reliance on Experts in Systemic Cases 75 2. Background Check Litigation 77 F. General Discovery By Employer 78 1. Depositions of EEOC Personnel 78 2. Employer Request for Medical Records 79 3. Independent Medical Examinations 79 4. Third-Party Subpoenas 80 5. Confidentiality Orders 80 G. General Discovery by EEOC/Intervenor 80 1. 30(b)(6) Depositions 80 2. Spoliation Issues 80 3. General Limits on Discovery 81 4. Miscellaneous Discovery Issues 82 H. Summary Judgment 82 1. Courts Addressed EEOC’s Challenges to Employee Wellness Programs 83 2. Religious Accommodation Cases Remain a Contested Issue 84 3. EEOC Prevailed More Often than not in Race and National Origin Cases 85 I. Default Judgment 85 J. Bankruptcy and/or Garnishment 87 K. Trial 88 1. Spotlight on Trials 88 2. Pre-Trial Scheduling Orders 89 iv LITTLER MENDELSON, P.C. | EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 Table of Contents (continued) SECTION/TOPIC PAGE 3. Voir Dire 89 4. Witnesses 90 5. Evidence Issues and Post-Trial Motions 92 6. Jury Instruction 94 L. Remedies 95 1. Punitive Damages 95 2. Additional Remedies 96 a. Injunctive Relief 96 b. EEOC’s Unreasonable Delay in Prosecuting Prevents Damages 96 c. Prejudgment Interest 97 3. Offsetting Damages 97 4. Recovery of Costs 97 5. Individual Liability to EEOC 98 M. Settlements 98 N. Misconduct by Parties 99 O. Attorneys’ Fees 99 APPENDIX A - EEOC CONSENT DECREES, CONCILIATION AGREEMENTS AND JUDGMENTS 104 APPENDIX B - FY 2016 EEOC AMICUS AND APPELLANT ACTIVITY 115 APPENDIX C - SUBPOENA ENFORCEMENT ACTIONS FILED BY EEOC IN FY 2016 185 APPENDIX D - FY 2016 SELECT EEOC-RELATED DISPOSITIVE DECISIONS BY CLAIM TYPES 199 COPYRIGHT ©2017 LITTLER MENDELSON, P.C. v ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 vi LITTLER MENDELSON, P.C. | EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2016 An Annual Report on EEOC Charges, Litigation, Regulatory Developments and Noteworthy Case Developments INTRODUCTION This Annual Report on EEOC Developments—Fiscal Year 2016 (hereafter “Report”), our sixth annual Report, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year. The Report does not merely summarize case law and litigation statistics, but also offers an analysis of the EEOC’s achievements and setbacks, and the implications of those outcomes. By focusing on key developments and anticipated trends, the Report provides employers with a roadmap to where the EEOC is headed in the year to come. This year’s Report is organized into the following sections: Part One — A Review of the EEOC’s Systemic Initiative: Tracking its Progress, the EEOC’s Current Priorities, and Key Developments in FY 2016—serves as an in-depth summary of the entire Report. This opening chapter sets the stage with a particular focus on the EEOC’s systemic initiative. This chapter highlights key developments involving the systemic initiative in recent years and announced priorities moving forward. This portion of the Report also references major decisions, Commission programs, and settlements achieved over the past fiscal year. Areas touched upon in the opening chapter are discussed in greater detail in subsequent Report sections.

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