Category Archives: EEOC

EEOC Sues UPS Over Religious Discrimination

The U.S. Equal Opportunity Commission recently sued United Parcel Service, Inc., claiming the country’s largest package delivery company violated federal law by discriminating against employees’ religious rights.

The EEOC complaint, which was filed in the U.S. District Court for the Eastern District of New York, alleges that the company has failed to hire applicants and promote employees who wore either long beards or long hair due to their religion. The company’s policy requires supervisors and employees who come in contact with customers to shave their beards and also prohibits male employees in such positions from growing their hair below collar-length.

As an industry giant, UPS supports a sophisticated HR department that oversees roughly 300,000 employees nationwide. What went so wrong?

According to an EEOC statement, there were many examples of religious discrimination over the years. It mentions a Muslim who applied for a driver position in Rochester, NY. The man, who wore a beard as part of his religious observance, was told “he had to shave to get the position,” that “God would understand,” and that “he could apply for a lower-paying job if he wanted to keep his beard.” EEOC also pointed to Muslim and Christian employees at other UPS facilities who were “forced to shave their beards while they waited months or years for UPS to act on their requests for religious accommodation.”

Likewise, a part time load supervisor in Ft. Lauderdale, Fla., who was a Rastafarian, also did not cut his hair because of his religious beliefs. His manager told him that he did not “want any employees looking like women on (his) management team.” Apparently, the 1960s memo about gender equality has not reached everyone yet.

Rastafarians at other UPS facilities around the country were also denied positions. Some waited years for their requests for religious accommodations to be granted before getting positions they wanted.

Seems like we’ve been down this path before – companies blamed for violating Title VII of the Civil Rights Act of 1964. Just last June, for instance, the US Supreme Court accused Abercrombie & Fitch violated a Muslim woman’s religious rights when it refused to hire her for a store sales job because she wore a headscarf.

In this matter, “UPS has persistently enforced its appearance policy even when that policy conflicts with the religious beliefs of it applicants and employees,” states Robert D. Rose, the regional attorney for EEOC’s NY District Office. “No person should be forced to choose between their religion and a paycheck, and EEOC will seek to put an end to that longstanding practice at UPS.”

Not to fast. UPS is defending its employment practices, claiming they are legal and respect and accommodate religious differences. Automated forms for requesting religious accommodations are even posted on it website,, adds Susan Rosenberg, a UPS spokesperson.

“UPS has for many years had protocols for employees to request religious accommodations including variations for appearance and grooming guidelines (i.e., hair length, beard) or work schedule adjustment for prayers,” she explains. “The company will review this case, and defend its practices that demonstrate a proven track record for accommodation.”

Stay tuned. This battle has just begun.

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EEOC’s ‘Historic’ Workplace Discrimination Ruling

In case you missed it late last week, the United States Equal Employment Opportunity Commission ruled workplace discrimination on the basis of sexual orientation is illegal under federal law.

“This historic ruling by the EEOC makes clear they agree workplace discrimination on the basis of sexual orientation, much like gender identity, is illegal,” Chad Griffin, president of the Human Rights Campaign in Washington, told Bloomberg BNA.

“While an important step, it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life.”

The EEOC’s decision “is going to put an end to the vapid superficial treatment that this legal question has been getting for so long,” Greg Nevins, counsel for Lambda Legal’s southern regional office in Atlanta.

Many employers over the past few years have settled EEOC charges filed by workers alleging sexual orientation discrimination, Nevins said.

“I think there will be some employers that want to fight this, but there are already a lot who have said ‘we’re not going to be the ones arguing that employers can discriminate against gay and lesbian men and women,’ ” he said.

It will be very interesting in the coming weeks and months to see which organizations — if any — decide to challenge the EEOC’s ruling.

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EEOC Revises Pregnancy Bias Guidance

In case you missed it, the U.S. Equal Employment Opportunity Commission recently issued an update of its Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document, which are available on the EEOC’s website.

The updates to the Guidance are limited to several pages about the U.S. Supreme Court’s recent decision in Young v. UPS, issued in March 2015:

The updated Guidance reflects the Supreme Court’s conclusion that women may be able to prove unlawful pregnancy discrimination if the employer accommodated some workers but refused to accommodate pregnant women. The Court explained that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.

The decision in Young does not affect most of the July 2014 EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues and therefore the following topics remain the same:

  • the PDA’s application to current, past, and potential pregnancy;
  • termination or refusal to hire someone because she is pregnant and other prohibited employment actions based on pregnancy;
  • application of the PDA to lactation and breastfeeding;
  • prohibition of forced leave policies;
  • the obligation to treat women and men the same with respect to parental leave policies; and
  • access to health insurance.

The Court’s opinion did not address the effect of the ADA Amendments Act of 2008 on workers with pregnancy-related impairments. Therefore that discussion in the Guidance also remains the same. The Guidance notes that, “Changes to the definition of the term ‘disability’ resulting from enactment of the ADA Amendments Act of 2008 make it much easier for pregnant workers with pregnancy-related impairments to demonstrate that they have disabilities for which they may be entitled to a reasonable accommodation under the ADA.”

Alexis Knapp, a Houston-based shareholder at Littler, says the guidance gives numerous examples of the EEOC’s view that employers who provide flexibility, leave, modified duty, and more to non-pregnant employees will be expected to extend those same opportunities to pregnant employees, in order to avoid an unlawful difference in treatment “because of” pregnancy.

She says the EEOC also encourages employers to look beyond the requirements of the Pregnancy Discrimination Act and into the Americans with Disabilities Act and other laws that may provide additional protections to employees who suffer from pregnancy related conditions.

“I think the message to employers,” she says, “is that, while we still have defensive strategies to draw from when challenged, the starting point is that we need to be having the conversation with the employee and engaging her in an interactive process about what her limitations are, how long she anticipates those limitations will last, and whether we can find a way to enable her to work safely in light of those limitations.  The answer may not always be ‘yes,’ but the conversation has to happen and must be in good faith. ”

But, she adds, there are additional things that HR needs to consider as well as a result of the new guidance.

“First, although this starts to sound repetitive after a while, we must be training our managers and supervisors about these obligations,” she says. “These conversations about pregnancy and potential accommodations begin (and often stay) at the line supervisor level—between an employee and to whom she reports.  We have to be wary of the manager or supervisor who responds ‘We don’t do that here’ or ‘This job doesn’t allow that.’  It is true that there will be times when a reasonable accommodation will not be available, or that it poses an undue hardship, but that is not a decision to be made in a vacuum without the benefit of someone who understands the organization’s obligations under the PDA and ADA and other applicable laws. ”

At an even more basic level, she adds, managers and supervisors need to know that the most casual conversation with an employee can give rise to these obligations, without the employee needing to use any magic words or, without them even knowing those protections exist.

“We also need to be revisiting our policies, she says, “and not just policies on light duty — as we learned from Young and the EEOC’s Guidance — but our attendance, accommodation, FMLA, leave, paid time off and other related policies that might contain unintentional — but nevertheless — impermissible differences in how we treat employees.

“In fact, it is not just about pregnant female employees, but it also includes policies that contain unlawful distinctions between men and women in the provision of parental leave, or caregiver policies that are narrowly defined to only apply to women,” she says.  “The EEOC has made it clear that these too will be a focus of their enforcement from here forward. “

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Top 10 Reasons to Test Adverse Impact Correctly

This one caught my eye. Not that I’ve been a big David Letterman watcher (past my bedtime), but — as Merrily Archer put it in this 101390464 -- gavel and law booksLinkedIn post — “resuscitating the Top Ten list one last time” before it’s long forgotten was intriguing.

Even more intriguing was the content of her post, Top 10 Reasons to Acquire Adverse Impact Testing Skills — starting with 10. “The [Equal Employment Opportunity Commission]’s ‘Systemic Initiative’ to eliminate ‘discriminatory barriers in hiring’ — i.e., qualification standards — [was] launched nearly 10 years ago on April 4, 2006 — it’s not too late to catch up!” …

And ending with “the No. 1 reason HR practitioners and in-house employment counsel must understand the theory behind adverse impact analyses and how to conduct them: Turning over applicant flow data — or a hiring database — to the EEOC or in discovery that you have not analyzed for adverse impact is like disclosing a packet of documents that you’ve not read — i.e., legal malpractice!!”

Archer — an employment-discrimination litigator, legal coach and creator of the EEO Legal Solutions website — is very passionate about imparting what she knows about navigating your way through the ever-more-aggressive EEOC. She began her career as a trial attorney there and knows how it works. Or make that knows how it’s supposed to work and not supposed to work.

“I feel strongly that everyone needs to know how to test for AI and how to analyze their own hiring data, especially before turning anything over to the EEOC,” she says. “I’ve seen attorneys at big law firms hand over entire databases in response to an EEOC request for information, without having a clue about what the data actually reveals.”

For anyone who may not know, adverse impact, according to this post on, “refers to employment practices that appear neutral but have a discriminatory effect on a protected group. ”

More specifically, it says:

“Under the EEOC guidelines, adverse impact is defined as a substantially different rate of selection in hiring, promotion or other employment decision which works to the disadvantage of members of a race, sex or ethnic group. The EEOC agencies have adopted a rule of thumb under which they will generally consider a selection rate for any race, sex or ethnic group which is less than four-fifths or 80 percent of the selection rate for the group with the highest selection rate as a substantially different rate of selection. The selection rates for males and females are compared, and the selection rates for the race and ethnic groups are compared with the selection rate of the race or ethnic group with the highest selection rate.”

Sounds pretty convoluted, doesn’t it? In reality, it’s all about the calculations, so EEO and legal consultants would be advised. That said, though, Archer’s No. 7 reason to acquire these skills is worth noting: “Using FREE online adverse-impact calculators … is EASY, even for the math-phobics — i.e., lawyers.”

The Center for Corporate Equality, in its Technical Advisory Committee Report on Best Practices in Adverse Impact Analyses, says determining whether selection, promotion and termination decisions result in adverse impact — i.e., whether “substantial differences in employment outcomes across groups exist” — is an extremely important topic for organizations, yet “there is limited guidance about the specific and proper ways in which these analyses should be conducted.”

In the EEOC’s “Uniform Guidelines on Employee Selection Procedures,” adverse impact falls under Section 4, item D.  It doesn’t offer much in the way of calculation help, but if you’re not perfectly clear on everything it says, you’d best read up, says Archer. Better yet, consider yourself warned, by her:

“[Many] defense attorneys put employers at the mercy of the EEOC’s AI analysis, which is likely statistically flawed, based on inaccurate assumptions about the hiring process and actual applicant flow, and calculated to maximize ‘shortfalls’ — i.e., the difference between the expected and actual number of hires in that minority, gender or age group — for settlement negotiations.

“Attorneys can be so myopic: ‘If they didn’t teach it in law school, it must not be relevant.’ Unfortunately, the exact opposite is true. … This area of law is still pretty nascent, but one day soon, I’m convinced that failing to audit for AI will become malpractice — it’s just part of the standard of care and protection that employers need in the systemic era.”

A few other compelling reasons to perfect your AI skills, from Archer’s Top 10:

“9. Since the EEOC shifted its enforcement focus nearly 10 years ago, ‘systemic discrimination’ has become the new phrase that PAYS at the EEOC and among employee-side lawyers.

8. The EEOC uses specific statistical tests to measure whether a challenged practice — e.g., criminal-background check, educational standard — has an ‘adverse impact’ and to calculate damages in conciliation negotiations: HR practitioners and attorneys MUST know how the database will be analyzed and what the numbers say.

2. EEOC systemic cases that have reached litigation demonstrate a high likelihood that the EEOC will [do the AI analysis of your database incorrectly] in a way that hurts [you,] the employer.”



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Mixed Interpretations of Mach Mining Decision

Reactions to last week’s U.S. Supreme Court ruling in Mach Mining v. EEOC are plentiful, and mixed. The decision essentially came down 78805354 -- Supreme Court for left sidein favor of employers and against the U.S. Equal Employment Opportunity Commission, but just who the real winner is — and by how much — is subject to interpretation.

In the case, Mach Mining was accused by the EEOC of discriminating against women who applied for jobs at its Johnson City, Ill., coal mine. The EEOC filed suit in 2008 after an unsuccessful job applicant complained to the agency that the company never hired a female miner.

In response, Mach argued for an intensive federal-court review of conciliation efforts the EEOC should have engaged in, but Mach argued were not carried out — as required under Title VII of the Civil Rights Act — prior to the company being sued.

“In language that is sure to be repeated back to the EEOC for years to come, the Supreme Court held that ‘[a]bsent such review, the commission’s compliance with the law would rest in the commission’s hands alone,’ ” say Seyfarth Shaw attorneys Gerald L. Maatman Jr., Christopher Cascino and Matthew Gagnon in this blog post. “This, the Supreme Court said, would be contrary to ‘the court’s strong presumption in favor of judicial review of administrative action.’ ” They go on:

“While the Supreme Court did not rule that the intensive review that Mach Mining argued for was required, the case nevertheless represents a significant win for employers and resounding defeat for the EEOC. The EEOC will no longer be able to file suit against employers after paying mere lip-service to its conciliation efforts, and to give them the back of the hand in response to requests for fulsome information about liability and exposure in a threatened lawsuit. And employers will, as a result, be in a better position to settle meritorious claims  on reasonable terms before the EEOC files suit, thus saving employers from unnecessary litigation expense.”

But not so fast. According to points raised by Jon Nadler, a Philadelphia-based employment attorney with Eckert Seamans Cherin & Mellott, the ruling is actually a win for the EEOC, despite the prevailing commentary and headlines. Though the court ruled the EEOC’s conciliation efforts are subject to some judicial review, “that review is extremely limited (‘relatively barebones,’ in the court’s words,” his notification says.

On the contrary, it goes on, the “EEOC will merely need to show it provided the employer with notice of the allegations — the specific alleged unlawful practices, and identification of those allegedly harmed — and to engage in some bilateral communication with the employer in an attempt to resolve the matter.”

Nevertheless, Nadler points out, though employers have complained in some instances that the EEOC “failed even to provide this basic information, now [it’s] clearly required.”

Further, in points raised by Don Lewis, shareholder with Nilan Johnson Lewis, the Supreme Court also chose not to adopt a “good faith” standard of review previously adopted by the Fourth, Sixth and Tenth Circuits. “Employers,” his notice reads, “will be pleased that the high court has recognized that the EEOC’s obligation to conciliate is enforceable in court, and that its obligation includes a requirement to disclose and discuss the essential elements of its claims and identify the parties for which it seeks relief.”

Meanwhile, in this posting, the EEOC calls the decision a “step forward for victims of discrimination” in its rejection of the “intrusive review proposed by the company and its supporters.”

The agency goes on to say that the “court recognized … the scope of review is narrow and a sworn affidavit is generally sufficient to meet the statutory requirements. If the employer has concrete evidence that such efforts were not made and the court finds in favor of the employer,” it says, “the remedy is [simply] further conciliation.”

This story on the Inside Counsel site, written in January after oral arguments were presented in the case, offers great background on the history, arguments and questions surrounding all this.

So what does it mean? Obviously, it depends on who you talk to … on whose glass is half full or otherwise. Yes, the scope of judicial review articulated in the decision “is a narrow one,” Maatman and company write, but bottom line, the court “vigorously upheld the fundamental principle that judicial review of administrative action [however slight] is [still] the norm in our legal system.”

Further, they state, “the EEOC now has to present its position in a federal court, and its litigation strategies are apt to be very different when it must justify and show the basis for its conciliation positions before a neutral fact-finder.” In their words,

“Suffice it to say, employers’ defense of ‘failure-to-conciliate’ is still alive and well, and the EEOC’s litigation strategies are now likely to be in need of rebooting.”

Or not …

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More in the Coffer to Help Prisoners Find Jobs

It wasn’t that long ago (little more than a month) that I was blogging about an announcement by the U.S. Department of Labor that it was 126268666 -- prisoner workingcreating a $5 million funding opportunity to link inmates to jobs before they’re even released.

The idea there was to place American Job Centers inside local jails where soon-to-be-released prisoners would be able to access job-placement services and counseling to increase their chances of getting work without going through that uneasy “limbo” between living behind bars and earning a living.

Now, again from the DOL, comes significantly more, as this release announces: a whopping $27 million to fund its Training to Work-Adult Re-entry grant program to help, as its release says, “thousands of soon-to-be-released inmates become productive citizens.”

I wish I could tell you specifically how the two programs differ. Numerous calls and emails to the DOL went unanswered. But that doesn’t really matter. What does is the added help — significant help — ex-cons will be getting to rejoin the workforce and the world.

According to the announcement, the department expects to award about 20 grants with a maximum value of $1,360,000 each to provide training and employment services for men and women, ages 18 and older (including veterans), who participate in state or local work-release programs.

The approach is designed to link and coordinate education and training services for these people to get industry-recognized credentials. Those credentials will, in turn, help them find meaningful work (translated: not just assembly line and blue-collar) and give employers what they need to fill their gaps in growing sectors and industries.

Having personal experience with this — a relative who is now trying to re-enter society after paying his dues for some very bad life choices — I confess, what U.S. Secretary of Labor Thomas E. Perez has to say about this latest move resonates with me:

“A good job gives a person a sense of dignity and purpose. It enables [him or her] to find a decent place to live and enjoy a hot meal at home. Good jobs are a pathway to the middle class. Those who have paid their debt to society deserve the opportunity to find and hold useful employment. It puts money in their pocket, most of which is pumped back into the economy. In the best America, everyone shares our prosperity. That’s what these grants can make possible.”

Of course, all the money in the world can’t buy a guarantee that all hiring managers will leave all bias at the door when they enter the interview room. Or follow all the steps of the interview process laid out by the Equal Employment Opportunity Commission in its background-check guidelines, including when it’s appropriate to discuss an applicant’s past incarceration.

But it’s safe to say most employers would have to look favorably on an ex-prisoner’s initiative to get the education and credentialing he or she needs to succeed in that particular job in that particular organization in that particular industry.

If there are closed minds out there, this can only help to open them.

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Men Need Not Apply?

76161057That’s the message Ruby Tuesday Inc. is sending some of its workers, according to a lawsuit recently filed by the EEOC, which accuses the restaurant chain of excluding male employees from consideration for coveted temporary assignments at a Utah resort.

Brought on behalf of male Ruby Tuesday employees Andrew Herrera and Joshua Bell, the suit claims an internal Ruby Tuesday job posting violated equal opportunity employment laws from the Civil Rights Acts of 1964 and 1991.

More specifically, the EEOC claim alleges that, in the spring of 2013, Ruby Tuesday posted an internal announcement within a 10-state region advertising temporary bartender and server positions in the chain’s Park City, Utah location, with company-provided housing for those selected. Herrera—a Ruby Tuesday employee since 2005 in Corvallis, Ore.—was one of at least two male workers who wanted to apply for one of the positions, “because of the chance to earn more money in the busy summer resort town,” according to an EEOC statement.

The announcement, however, stated that “only females would be considered, and Ruby Tuesday in fact selected only women for those summer jobs, supposedly from fears about housing employees of both genders together,” according to the EEOC.

What may be most surprising about this particular case is “that Ruby Tuesday was pretty upfront about wanting only women to apply for the positions,” according to a recent Washington Post article.

Ruby Tuesday did not immediately respond to the Post’s requests for comment. But if the Maryville, Tenn.-based chain did in fact make clear it would only seriously consider women for these roles, such a move would be a “rare” and “explicit example” of gender discrimination, says William R. Tamayo, a San Francisco-based regional attorney for the EEOC.

“This suit is a cautionary tale to employers,” says Tamayo, “that sex-based employment decisions are rarely justified, and are not consistent with good business judgment.”

This certainly does seem like a unique case, and we’ll have to wait and see if more suits like this one begin to emerge.

But making positions such as those sought by Andrew Herrera and his male colleagues available to men could not only boost overall labor conditions, but may actually help level the playing field for women in some industries, according to UCLA Law Professor Noah Zatz.

“Jobs constructed as being for women pay less [and] have fewer promotional opportunities,” Zatz told TakePart.

“Busting up that single-sex monopoly in waitressing, in-flight service and nursing, for example, could be a strategy for disrupting the ways jobs are disadvantageous to women.”

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Supremes Look at EEOC’s Role in Conciliation

Today the U.S. Supreme Court is hearing oral arguments in Mach Mining v. Equal Employment Opportunity Commission — a key employment case that addresses whether a court may enforce the EEOC’s duty to conciliate discrimination claims before filing suit, legal experts say.

In the Mach Mining case, the EEOC alleged that Mach Mining had discriminated against a class of female job applicants at its mine near Johnston City, Ill. The EEOC notified the company of its intention to begin informal conciliation, and while the parties discussed possible resolution, they did not reach an agreement.

In the federal case, Mach Mining argued that the suit should be dismissed because the EEOC failed to conciliate in good faith. Then, in 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment-discrimination suit brought by the EEOC.

Gerald Maatman Jr., co-chair of the class action defense group of Seyfarth Shaw, says the Mach Mining case has significant implications for employers that are dealing with the EEOC.

“If the Supreme Court sides with the Seventh Circuit, employers will lose a powerful defense against the EEOC’s aggressive litigation tactics,” he wrote recently in Seyfarth’s Workplace Class Action Blog.

Maatman also says the Seventh Circuit’s decision had “far-reaching, real world significance to the employment community, for it means the EEOC is virtually immune from review in terms of the settlement positions it takes… prior to suing employers.”

In the amicus brief in support of Mach Mining on behalf of the American Insurance Association, Mr. Maatman and Seyfarth Shaw argue that insurers and employers facing EEOC litigation require detailed information in order to accurately set reserves and ensure that any settlement not only promptly and fairly compensates meritorious claims, but also satisfies the interests of insurance regulators.

Their brief contends that the Seventh Circuit’s ruling is “wrong as a matter of policy, since it is fundamental to the litigation process for a party to have fulsome information relative to the claims at issue. The Congressionally-mandated conciliation process was intended to provide that core knowledge;

“This is particularly important in EEOC-initiated litigation, where one of the government’s fundamental mandates is to achieve voluntary and informal compliance with anti-discrimination laws.”

And some of the reasoning behind the Seventh Circuit’s decision, as well as similar reasoning in the briefing the EEOC recently submitted to the U.S. Supreme Court—i.e., that it is essentially “too difficult” to articulate a workable standard for determining whether the EEOC met its good-faith conciliation requirement—defies practical experience, adds Steven Pearlman, partner and member of Proskauer’s employment litigation & arbitration group.

Moreover,  says Pearlman, if no limiting principle is imposed in this context, “the EEOC will be empowered to employ an unreasonable ‘take-it-or-leave-it’ approach to pre-suit settlement negotiations. In fact, courts recently have chided and even sanctioned the EEOC for engaging in such tactics.”

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Looking Ahead at Litigation Trends

looking aheadIf December was the time for workplace experts to parse the year that just went by, then January is when those same experts shift into prediction mode and forecast what may happen in the 12 months ahead.

In its 11th annual Workplace Class Action Litigation Report, Chicago-based labor and employment law firm Seyfarth Shaw does a bit of both.

The 844-page report, an executive summary of which is available here, analyzed 1,219 class-action rulings on a circuit-by-circuit and state-by-state basis to “capture key themes from 2014 and emerging trends facing U.S. companies in 2015,” according to a Seyfarth Shaw press release.

For example, two cases—Wal-Mart Stores Inc. v. Dukes and Comcast Corp. v. Behrend—continued to serve as “the most influential ‘pivot points’ for Rule 23 decisions in 2014, having a wide-ranging impact on virtually all class actions pending in federal and state courts,” the report notes. According to Seyfarth Shaw, Wal-Mart was cited 571 times across lower federal and state courts in 2014, while Comcast was cited 261 times, “which in turn generated a bevy of new case law.”

These decisions have reshaped settlement strategies, according to the report, which found governmental enforcement litigation settlements dropping to their lowest levels in a decade last year, while ERISA settlements shot up nearly tenfold from 2013. (Employment discrimination and wage-and-hour class-action settlements remained flat, however.)

Other key trends the Seyfarth Shaw report sees as poised to continue in 2015 include:

  • Wage-and-hour litigation, which represents the prime litigation risk in the workplace, as case filings increased yet again in 2014.
  • FLSA collective actions and state law wage-and-hour class actions, which produced more decisions than any other area of complex employment litigation in 2014.
  • The Department of Labor and Equal Employment Opportunity Commission continued their aggressive litigation approaches with mixed results in 2014, marked by several losses in the federal courts and their lowest aggregate settlement recoveries since 2006.
  • The Class Action Fairness Act, which experienced a “transformative” year in 2014, solidifying defense strategies to secure removal of class actions to federal courts.

“In response to recent Supreme Court decisions on class-action issues, Rule 23 law is undergoing a major transformation, and as a result, employers litigated an increased number of novel defenses in 2014,” says Gerald L. Maatman Jr., co-chair of Seyfarth Shaw’s class-action defense group and author of this year’s report.

“At the same time, wage-and-hour class actions and collective actions also continued their meteoric rise to new record levels, while the U.S. Department of Labor and U.S. Equal Employment Opportunity Commission advanced their litigation agendas in an aggressive fashion,” continues Maatman. “All told, employers face a much more challenging landscape for defending workplace class-action litigation in 2015.”

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EEOC Adds Pregnancy Cases to Controversy

Just an update for those who are following the recent pregnancy-discrimination guidelines issued by the Equal Employment 490128943 -- pregnanct employeeOpportunity Commission — despite the controversy some think the agency created amidst the pending U.S. Supreme Court consideration of Young v. United Parcel Inc.:  The EEOC isn’t waiting on the high court before filing or settling pregnancy-discrimination lawsuits either.

According to the EEOC’s website, press releases were issued on nine lawsuits filed and two settlements since the agency issued its updated Enforcement Guidance on Pregnancy Discrimination and Related Issues on July 14.

Here, for your information — should you choose to venture into this much reading — are all the cases the EEOC has filed and listed on its website against employers accused of pregnancy discrimination since the guidance was issued, from most recent to oldest:

All the suits in question accuse the businesses of violating Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

“I am surprised that this issue continues to be a recurring theme in the workplace in this day and age,” says Robert Canino, regional attorney for the EEOC’s Dallas District Office, which filed the Pharmacy Solutions lawsuit. “We hope that by continuing to increase public awareness through our law-enforcement efforts, we will see more of an awakening by some companies about the right of a woman to hold on to her job and to earn a living when she is expecting and during her maternity leave.”

But critics of the EEOC’s assertiveness and timing in issuing its guidance — which was the focus of this HREOnline news analysis I wrote back in July — say adding cases to the pregnancy-discrimination docket only clutters an already-cluttered legal landscape.

“With its new pregnancy enforcement guidance still in its first trimester, the EEOC has set about vigorously pursuing companies that do not comply,” thereby filling the courts with more to work on as the Supreme Court hearing has yet to be scheduled,  says Philip Voluck, managing partner in the Blue Bell, Pa., office of Kaufman Dolowich & Voluck.

“Since the EEOC first gave birth [pun intended, no doubt] to the guidance in July, it has inserted itself as plaintiff in at least nine federal-court lawsuits against employers [allegedly] discriminating against pregnant employees,” he says. “Each decision is accompanied by rather strong remarks from the [agency], which state quite clearly its intent to induce an ‘awakening’ by employers and erase ‘archaic prejudices’ still held by companies toward pregnant women.”

The issue up for consideration in Young v. UPS is whether an employer — in this case, UPS —  is required under the PDA to offer light-duty work to pregnant employees with restrictions, even if light-duty work is available for certain categories of nonpregnant employees.

“This is precisely the issue the Supreme Court has yet to take up,” Voluck told me back in July, “and that decision won’t come out until next year some time. “I honestly have no idea why this was issued at this time,” he said then. “A power move? I have no idea.

“It’s like the Perfect Storm, these two entities colliding,” he said, referring to the 2000 movie, “though my crystal ball tells me there’s no doubt the Supreme Court will expand the rights of pregnant women.”

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