ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2015 An Annual Report on EEOC Charges, Litigation, Regulatory Developments and Noteworthy Case Developments | JANUARY 2016 | 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 Julie K. Adams Brendan Fitzgerald Suzanne Potter-Padilla Jessica Agarwal Matthew G. Gallagher Adam Primm Christina Andronache Jaclyn Giffen Larry Robertson Julia S. Arnold Sarah J. Gorajski Jennifer Savion Julia Baxter Jennifer Harpole Meredith C. Shoop R. Keith Chapman Sami Hasan Kellie A. Tabor Sebastian Chilco Nicolette J. Lee William Trachman Kalisha Salome Chorba Melissa McDonagh Denise Visconti Jamie Chu Brandon R. Mita Thomas Whiteside Barbara Cusumano Elisa Nadeau Lavanga Wijekoon Ryan L. Eddings Emily T. Patajo Rachel Enoch Kristy L. Peters Katie Fearn Benson E. Pope 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 ©2016 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. Table of Contents SECTION/TOPIC PAGE INTRODUCTION 1 I. LOOKING BACK AT FY 2015: A REVIEW OF EEOC SUCCESSES AND FAILURES, AND SIGNIFICANT CASES AND DEVELOPMENTS TO WATCH FOR IN FY 2016 2 A. Agency Developments 2 B. Key Statistics for FY 2015 3 C. Key Procedural Developments 4 1. Impact of Mach Mining 4 2. Challenging Scope of EEOC Investigations 5 3. Continued Debate over Permissible Scope of EEOC Investigations 7 D. Key Litigation Developments — Impact of EEOC’s Strategic Enforcement Plan 8 1. Eliminating Barriers in Recruitment and Hiring 8 a. Claims of Alleged Intentional Discrimination 8 b. Challenges to Neutral Employment Policies 10 2. Protecting Immigrant, Migrant and Other Vulnerable Workers 12 3. Addressing Emerging and Developing Issues 13 a. Pregnancy Discrimination 14 b. Religious Discrimination 15 c. Discrimination Based on Sexual Orientation or Gender Identity or Expression 16 d. Disability Discrimination Claims 17 4. Enforcing Equal Pay Laws 21 5. Preserving Access to the Legal System 22 6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach 24 E. Anticipated Trends for FY 2016 25 II. OVERVIEW OF EEOC CHARGE ACTIVITY, LITIGATION AND SETTLEMENTS 28 A. Review of Charge Activity, Backlog and Benefits Provided 28 B. Continued Focus on Systemic Investigations and Litigation 29 C. Systemic Investigations—A Comparison of the Last Four Fiscal Years 30 D. EEOC Litigation and Systemic Initiative 30 E. Highlights from EEOC Litigation Statistics 33 F. Mediation Efforts 34 COPYRIGHT ©2016 LITTLER MENDELSON, P.C. i Table of Contents (continued) SECTION/TOPIC PAGE G. Significant EEOC Settlements and Monetary Recovery 34 H. Appellate Cases 35 1. Significant Wins for the EEOC 35 2. Significant Wins for the Employer 37 3. Key Cases for Systemic Litigation 38 III. EEOC REGULATORY AGENCY AND RELATED DEVELOPMENTS 40 A. Update on the Commission and Congressional Oversight 40 B. EEOC Strategic Enforcement Plan and Updates on Strategic Plan 40 C. Noteworthy Regulatory Activities: Initial Planned Agenda and Significant Anticipated Guidance 42 1. Wellness Programs and the ADA 42 a. Definition of Employee Health Program 43 b. Definition of “Voluntary” 43 c. Notice 43 d. Financial Incentives 43 e. Privacy 44 2. Wellness Programs and GINA 44 3. Pregnancy Discrimination 45 4. Federal Sector 46 5. EEOC’s Digital Charge System 47 D. Current and Anticipated Trends 47 1. Recruiting and Hiring Issues 47 2. Religious Accommodation 49 3. Retaliation 49 4. Workplace Harassment 50 5. Sexual Orientation and Gender Identity Discrimination 51 6. ADA 52 7. Race and National Origin Discrimination 52 IV. SCOPE OF EEOC INVESTIGATIONS AND SUBPOENA ENFORCEMENT ACTIONS 53 A. EEOC Authority to Conduct Class-Type Investigations 53 1. Scope of EEOC’s Investigative Authority 53 2. Potential Waiver of Right to Challenge EEOC Subpoenas 54 ii LITTLER MENDELSON, P.C. | EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ Table of Contents (continued) SECTION/TOPIC PAGE 3. Review of Recent Cases Involving Broad-Based Investigations by EEOC 55 a. Court of Appeals Decisions 55 b. District Court Cases 56 4. Confidentiality 58 B. Conciliation 58 1. Pre-Mach Mining: Challenge by EEOC to Any Conciliation Obligation 58 2. Post-Mach Mining: Impact of Supreme Court Decision 59 3. General Investigation and Conciliation Obligations 61 V. REVIEW OF NOTEWORTHY EEOC LITIGATION AND COURT OPINIONS 63 A. Pleadings 63 1. Attacking Complaint Based on Lack of Specificity 63 2. Key Issues in Class-Related Allegations 63 3. Who is the Employer? 64 4. EEOC Motions—Challenges to Affirmative Defenses 65 5. Venue 65 6. Miscellaneous 65 B. Statute of Limitations for Pattern-or-Practice Lawsuits 66 C. Intervention 67 1. EEOC Permissive Intervention in Private Litigation 67 2. Charging Party’s Right to Intervene in EEOC Litigation 68 3. Adding Pendent Claims 69 4. Pattern-or-Practice Claims by Intervenors 70 5. Attorneys’ Fees 70 D. Class Discovery Issues in EEOC Litigation 70 1. Bifurcation in EEOC Litigation 70 2. Identification of Class Members 71 3. Communication with Class 72 4. Scope of Discovery Regarding the EEOC’s Communications with Potential “Class” Members 73 E. Other Critical Issues in EEOC Pattern-or-Practice and Class-Type Cases 73 1. ESI: Electronic Discovery-Related Issues 73 2. Reliance on Experts in Systemic Cases 74 3. The EEOC’s Effort to Establish Judicial Estoppel 75 F. General Discovery By Employer 75 1. Depositions of EEOC Personnel 75 COPYRIGHT ©2016 LITTLER MENDELSON, P.C. iii Table of Contents (continued) SECTION/TOPIC PAGE 2. General Conduct at Depositions 75 3. Discovery of EEOC-Related Documents 75 4. Discovery of the EEOC’s Own Practices and Policies 76 5. Medical Authorizations 77 6. Confidentiality Orders 77 G. General Discovery by EEOC/Intervenor 77 1. Section 30(b)(6) Depositions 77 2. Scope of Permitted Discovery 77 3. EEOC Communications Ex Parte with Former or Current Employees 78 4. Spoliation Issues 78 5. Financial Information 78 6. General Discovery Concerns 79 7. Miscellaneous 79 H. Summary Judgment 80 1. The Supreme Court Weighs in on Religious Accommodation 80 2. Trend of Deferring to Employers’ Judgment as to Essential Job Functions 81 3. Courts Have Been Critical of Employers’ Failures to Provide Reasonable Accommodations 82 4. Long-Running Lawsuit Resolved 83 I. Default Judgment 84 J. Bankruptcy 86 K. Trial 87 1. ADA Trials 87 2. Workplace Harassment and Retaliation 90 3. Trials on Religious Discrimination 92 4. Key Evidentiary Rulings and Motions in Limine 92 L. Remedies 93 1. Punitive Damages 93 2. Additional Remedies 94 a. Injunctive Actions During EEOC Investigation Process 94 b. Permanent Injunctions and Remediation Against Future Discrimination 95 c. Front Pay versus Reinstatement 96 d. Prejudgment Interest 96 3. Offsetting Taxes 97 4. Employer Recovery of Costs 97 iv LITTLER MENDELSON, P.C. | EMPLOYMENT & LABOR LAW SOLUTIONS WORLDWIDE™ Table of Contents (continued) SECTION/TOPIC PAGE M. Settlements 98 N. Appeal 98 O. Misconduct by the EEOC 99 P. Recovery of Attorneys’ Fees by Employers 99 APPENDIX A - EEOC CONSENT DECREES, CONCILIATION AGREEMENTS AND JUDGMENTS 103 APPENDIX B - FY 2015 EEOC AMICUS AND APPELLANT ACTIVITY 113 APPENDIX C - SUBPOENA ENFORCEMENT ACTIONS FILED BY EEOC IN FY 2015 157 APPENDIX D - FY 2015 SELECT EEOC-RELATED DISPOSITIVE DECISIONS BY CLAIM TYPES 166 COPYRIGHT ©2016 LITTLER MENDELSON, P.C. v ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2015 ANNUAL REPORT ON EEOC DEVELOPMENTS: FISCAL YEAR 2015 An Annual Report on EEOC Charges, Litigation, Regulatory Developments and Noteworthy Case Developments INTRODUCTION This Annual Report on EEOC Developments—Fiscal Year 2015 (hereafter “Report”), our fifth 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 what the EEOC has and has not accomplished, 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—Looking Back at FY 2015: A Review of EEOC Successes and Failures, and Significant Cases and Developments to Watch for in FY 2016—is a preview to the Report as a whole. This chapter encapsulates the EEOC’s litigation and policy achievements and setbacks for the fiscal year, topics that are fleshed out in the chapters that follow. Part Two discusses EEOC charge activity, litigation and settlements in FY 2015, focusing on the types and location of lawsuits filed by the Commission. More details on noteworthy consent decrees, conciliation agreements, judgments and jury verdicts are summarized in Appendix A to this Report. A discussion of cases in which the EEOC filed an amicus or appellate brief can be found in Appendix B. Part Three focuses on legislative and regulatory activity involving the EEOC. This chapter includes a discussion of agency initiatives beyond formal rule-making efforts, including the Commission’s issuance of both formal and informal guidance on a variety of contentious issues, and the holding of public meetings on several agency priorities. This chapter highlights recent and emerging trends at the agency level, as well as the Commission’s efforts to adhere to its Strategic Plan. References are made to more comprehensive Littler updates and/or reports for a more in-depth discussion of the topic, as applicable.