EEOC FCRA Actual Case Stats

Presented By: Joseph M. Gagliardo, Managing Partner
Jill P. O’Brien, Partner
Laner Muchin
515 North State Street, Suite 2800
Chicago, IL 60654
(312) 467-9800
jgagliardo@lanermuchin.com
jobrien@lanermuchin.com
www.lanermuchin.com

Legal Background and Experience
Mr. Gagliardo is the Managing Partner of Laner Muchin, Ltd., and is the Chair of its Litigation Department. Mr.
Gagliardo has counseled and represented employers in a broad range of employment matters for over 35 years.
His experience includes litigating individual and class action claims in the state and federal courts. Mr. Gagliardo
also serves as an arbitrator in employment and commercial disputes.
Since joining the Firm as a partner in 1988, Mr. Gagliardo has been counsel to publicly and privately held
corporations, including The Trump Organization, and has represented a number of public sector employers,
including the State of Illinois, Attorney General, Secretary of State, State Treasurer, County of Cook, State’s
Attorney for Cook County, Cook County Public Defender, City of Chicago, Chicago Transit Authority, Chicago
Housing Authority, Chicago Board of Education, and the City Colleges of Chicago.
Mr. Gagliardo previously served as First Deputy Corporation Counsel for the City of Chicago. During his ten years
in the Office of the Corporation Counsel, he counseled the City’s forty departments in all aspects of municipal
law, including labor and employment relations, and represented the City and its officers and employees in
litigation matters pending in the state and federal courts, and before various administrative agencies.
Mr. Gagliardo has written articles and conducted seminars on labor and employment relations matters for
various legal and business organizations. He also has drafted legislation and testified before the Illinois
Legislature and the City Council of the City of Chicago. While an attorney for the City, he was a member of the
National Institute of Municipal Law Officers (served as Editor, Section Publications, Section on Personnel and
Labor Relations), Illinois Public Employer Labor Relations Association, and Illinois Municipal League.
In 2013, Intercontinental Finance Magazine recognized Mr. Gagliardo as one of the Top 500 lawyers in the
world, and in 2012, Mr. Gagliardo was named as Best Lawyers’ 2012 Chicago-Litigation-Labor & Employment
Lawyer of the Year. Mr. Gagliardo has also been voted one of the Top 10 Attorneys in Illinois in 2012, and one
of the Top 100 Attorneys in 2007-2011 and 2013, according to Super Lawyer polls appearing in Chicago
Magazine. The selection is the result of lawyer nominations of the best attorneys observed in action. Mr.
Gagliardo has also been named one of the Leading Lawyers in Illinois in the area of labor and employment law
based on a statewide survey of lawyers. Leading Lawyers comprise less than 5% of all lawyers in Illinois. He was
also selected as one of America’s Leading Lawyers for Business by the Chambers USA in its Guide to America’s
Leading Business Lawyers, which described him as “bright,” “thorough” and “hard-driving.” Mr. Gagliardo is also
an elected Fellow/Member of The College of Labor and Employment Lawyers. Additionally, Mr. Gagliardo has
been included in Who’s Who Legal USA -- Management, Labor and Employment, and International Who’s Who
of Business Lawyers. Mr. Gagliardo has also received the highest Martindale-Hubbell Peer Review Rating for
ethical standards and legal ability.
Mr. Gagliardo has received numerous awards, including a Distinguished Service Award from The John Marshall
Law School; an Award of Excellence from the Justinian Society of Lawyers; A Guiding Star Award from Windows
of Opportunity; leadership awards from the Illinois Legislature, Clerk of the Circuit Court of Cook County, Cook
County Board of Commissioners and City of Chicago; and he has received Peacemaker and Humanitarian Awards
from the Joint Civic Committee of Italian Americans. The Peacemaker Award was based on Mr. Gagliardo’s skills
in resolving disputes, and the Humanitarian Award was based on his commitment to, and efforts to promote,
diversity and human relations initiatives.
Joseph M. Gagliardo, Managing Partner

Admissions Information
Mr. Gagliardo has been admitted to practice before the United States Supreme Court, the United States Court of Appeals for the
Seventh Circuit, United States District Court for the Northern, Central and Southern Districts of Illinois, Trial Bar of the United
States District Court for the Northern District of Illinois, and the Illinois Supreme Court.
Professional Organizations, Community Activities and Other Memberships
Mr. Gagliardo is a member of the American, Illinois, Federal, Chicago and National Italian-American Bar Associations, as well as
the Justinian Society of Lawyers, Women’s Bar Association of Illinois, Defense Research Institute, Illinois Institute for Local
Government Law and Chicago Council of Lawyers. Mr. Gagliardo is a past President of the Chicago Chapter of the Federal Bar
Association and the Justinian Society of Lawyers. He has also served as a member of the Illinois State Bar Association’s (“ISBA”)
Assembly, and as Chair of its Rule and Bylaws Committee. Mr. Gagliardo has also served as Associate Editor of the ISBA Federal
Civil Practice Newsletter, Secretary of the ISBA Standing Committee on Judicial Evaluations, Chairperson of the ISBA Labor Law
Section Council, a member of the ISBA Section Council on Civil Practice and Procedure, and as a member of the ISBA Standing
Committee on Alternative Dispute Resolution. Mr. Gagliardo also previously served as a member of the Magistrate Judge Advisory
Panel, United States District Court, Northern District of Illinois; the Deposition Guidelines Committee of the United States District
Court, Northern District of Illinois; and the Recommendations Task Force of the Illinois Supreme Court Special Commission on the
Administration of Justice. He is currently a Trustee of The John Marshall Law School, and previously served as a Director of the
John Marshall Law School Alumni Association. He has been listed in “Who’s Who in American Law,” “Emerging Leaders in
America” and “Who’s Who Among Rising Young Americans.” In addition to his membership in legal organizations, Mr. Gagliardo
has also been active in many community organizations. He is a past President of the Joint Civic Committee of Italian Americans,
and served for over ten (10) years as a Director of Windows of Opportunity. Windows is a non-profit organization that creates
partnerships to link all of Chicago’s public and assisted housing residents to resources that will improve their quality of life. He
currently serves as a Director of Age Options, an organization dedicated to connecting senior citizens with resources and options
for care so that they can live their lives to the fullest, and is on the Board of Directors of the Better Business Bureau, Chicago,
Illinois. Mr. Gagliardo is also active with Chicago United, and the Leadership Council on Legal Diversity. Both organizations
support and promote sustainable diversity in law and business.
Education Summary and Related Activities
Mr. Gagliardo received his J.D. from The John Marshall Law School, Chicago, Illinois in 1977, and was awarded the Edward T. Lee
Scholarship and Bobbs-Merrill Company Prize. He was also elected to the Order of John Marshall, the law honor society limited to
those whose scholastic records are within the highest 10% of the graduating class. He received a B.S. in Commerce from DePaul
University in 1974, graduated with High Honors, and was a member of Delta Mu Delta and Delta Epsilon Sigma Honor Societies.
Joseph M. Gagliardo, Managing Partner
(cont’d)

Legal Experience
Upon graduation from law school, Ms. O’Brien joined Laner, Muchin, Dombrow, Becker,
Levin and Tominberg, Ltd. in 1989. She is a member of the Firm’s Executive Committee
and its Attorney Hiring Chairperson.
Ms. O’Brien was selected as one of the “Top 50 Women Attorneys in Illinois” for 2010 and
2011. Additionally, she is included in the list of Illinois’ Super Lawyers (2005-14); Top
Lawyers in Illinois - Labor and Employment Law Related; and the Leading Lawyers Network
of Top Lawyers. Ms. O’Brien is an elected Fellow/Member of the College of Labor and
Employment Lawyers. She also has received the highest Martindale-Hubbell Peer Review
Rating for ethical standards and legal ability.
For 25 years, Ms. O’Brien has represented public and private sector employers in
numerous areas of labor and employment law, including: collective bargaining
negotiations, grievance and interest arbitrations; anti-harassment, anti-discrimination and
diversity in the workplace educational programs; drafting and enforcement of
confidentiality, non-competition and other restrictive covenant agreements; prevention
assistance and compliance obligations under the Americans with Disabilities Act, the
Family and Medical Leave Act, the Workers’ Adjustment and Retraining Notification Act,
the Fair Labor Standards Act and all other state, federal and local employment and labor
laws. Ms. O’Brien has served on the Adjunct Faculty of the Loyola School of Law where she
taught Employment Discrimination law.
Admissions Information
Ms. O’Brien is admitted to practice before the United States Supreme Court, the United
States District Court for the Northern District of Illinois and the Illinois Supreme Court.
Jill P. O’Brien, Partner

Bar Association and Other Memberships
Ms. O’Brien has held numerous leadership positions with the Illinois State Bar
Association, including serving as Chairperson of the Labor and Employment Law Section
Council (2003-04) and Chairperson of the Committee on Mentoring (2007-08). Ms.
O’Brien is a past Co-Chair and Executive Committee member of the Chicago Bar
Association’s Alliance for Women. She is a founding Board member of the Cynthia L.
Bischof Memorial Foundation and has served as a volunteer “Courtwatcher” to the
Chicago Metropolitan Battered Women’s Network. She also serves on the Board of
Governors of the Catholic Lawyers Guild of Chicago, the Board of Directors and
Executive Committee of the John Marshall Law School Alumni Association, and she has
served on the Advisory Board of the Children’s Oncology Services, Inc. (COSI). Ms.
O’Brien was previously honored by the Chicago Daily Law Bulletin as one of “40 Illinois
Attorneys Under Age 40 to Watch”, and she received a Distinguished Service Award
from the John Marshall Law School Alumni Association.
Education Summary
Ms. O’Brien graduated from Western Illinois University with a Bachelor of Science
Degree in Law Enforcement Administration. She obtained her Juris Doctor Degree from
The John Marshall Law School in 1989. While attending law school, Ms. O’Brien served
on the Editorial Board of the John Marshall Law Review.
Personal Data
Ms. O’Brien resides in Chicago, Illinois.
Jill P. O’Brien, Partner (cont’d)

EEOC Statistics
FY 2013 was a very busy year
93,727 charges of discrimination – down
from the 99,412 filed in FY 2012
EEOC filed 131 lawsuits
EEOC recovered more than $372.1 million
– the most ever recovered
OVERVIEW
6
1

EEOC Statistics
 FY 2013:
 38,539 retaliation claims, up 1.9% over fiscal year 2012;
 33,068 race discrimination claims, a decrease of 1.3% from fiscal year
2012;
 27,687 sex-based discrimination claims, a decrease of 8.8% from fiscal year
2012;
 25,957 disability discrimination claims, down 1.6% from fiscal year 2012;
 21,396 age discrimination claims, a decrease of 6.4% from fiscal year 2012;
 10,642 national origin discrimination claims, a decrease of 2.2% from fiscal
year 2012;
 3,721 religious discrimination claims, down 2.4% from fiscal year 2012;
 3,146 color discrimination claims, up 18.2% over fiscal year 2012;
 1,019 claims for equal pay, a 5.8% decrease from fiscal year 2012; and
 333 Genetic Information Nondiscrimination Act (“GINA”) claims, a more
than 18.9% increase from fiscal year 2012.
OVERVIEW
2

Purpose of the Strategic Enforcement Plan: To
focus and coordinate the EEOC’s programs to have
a sustainable impact in reducing and deterring
discriminatory practices in the workplace.
EEOC STRATEGIC ENFORCEMENT PLAN
FY 2013-2016
3

The Plan has three objectives:
1. To combat employment
discrimination through strategic law enforcement;
2. Prevent employment discrimination
through education and outreach; and
3. Deliver excellent and consistent
service through a skilled and diverse workforce
and effective systems.
EEOC STRATEGIC ENFORCEMENT PLAN
FY 2013-2016
4

Approved in December 2012, The Strategic
Enforcement Plan lists six national priorities:
1. Eliminating Barriers in Recruitment and
Hiring: The EEOC will target class-based
recruitment and hiring practices that discriminate
against racial, ethnic and religious groups, older
workers, women and people with disabilities.
EEOC STRATEGIC ENFORCEMENT
PLAN FY 2013-2016
5

2. Protecting Immigrant, Migrant and Other
Vulnerable Workers: The EEOC will target
disparate pay, job segregation, harassment,
trafficking and discriminatory policies affecting
vulnerable workers who may be unaware of their
rights under the equal employment laws, or
reluctant or unable to exercise them.
PLAN FY 2013-2016
6

3. Addressing Emerging and Developing
Issues: The EEOC will target emerging issues in
equal employment law, including issues
associated with significant events, demographic
changes, developing theories, new legislation,
judicial decisions and administrative
interpretations.
PLAN FY 2013-2016
7

4. Enforcing Equal Pay Laws: The EEOC will
target compensation systems and practices that
discriminate based on gender.
5. Preserving Access to the Legal System:
The EEOC will target policies and practices that
discourage or prohibit individuals from exercising
their rights under employment discrimination
statutes, or that impede the EEOC’s investigative
or enforcement efforts.
PLAN FY 2013-2016
8

6. Preventing Harassment Through
Systemic Enforcement and Targeted Outreach:
The EEOC will pursue systemic investigations and
litigation and conduct a targeted outreach
campaign to deter harassment in the workplace.
PLAN FY 2013-2016
9

The EEOC’S stated goal and expectation is that a concentrated
and coordinated approach will result in reduced discrimination
in these areas.
Some of the priority categories, such as hiring discrimination,
raise challenging and complicated issues affecting all of the
protected classes, which the EEOC is better situated than the
private bar to address given its investigatory authority and
access to data. Other priorities, such as emerging issues, are
more discrete, but a concerted effort by the agency may result
in early resolution of an unsettled area that promotes increased
and lasting compliance with equal employment laws.
PLAN FY 2013-2016
10

Age Discrimination:
EEOC v. Hutchinson Sealing Systems, Inc.:
$210,000 to three former engineers to
settle an age discrimination lawsuit.
(June 2013)
EEOC SETTLEMENTS
1i

Disability Discrimination:
 EEOC v. Dillard’s: $2 million to resolve a class action
disability discrimination lawsuit. At issue was Dillard’s
longstanding national policy and practice of requiring
all employees to disclose personal and confidential
medical information in order to be approved for sick
leave. (December 2012)
 EEOC v. Rite Aid: $250,000 to settle a disability and
retaliation discrimination lawsuit. Rite Aid, under
threat of termination, required an employee to
undergo a fitness-for-duty exam after the employee
received an administrative finding in his favor from
the EEOC. (November 2012)
EEOC SETTLEMENTS
12

National Origin Discrimination:
EEOC v. PBM Graphics: $334,000 to settle a
national origin discrimination lawsuit. PBM
refused to place and/or assign non-Hispanic
workers to its “core group” of regular
temporary workers. (December 2012)
EEOC SETTLEMENTS
13

Race Discrimination:
EEOC v. Meadowbrook Meat Company, Inc.:
$15,000 to three former employees who saw
racist graffiti at the employer’s warehouse.
(June 2013)
Race Harassment
EEOC v. RockTenn Services Company, Inc.:
$500,000 to 14 employees to settle a racially
hostile environment lawsuit. (December 2012)
EEOC SETTLEMENTS
14

Race and National Origin Discrimination :
EEOC v. Hamilton Growers, Inc. d/b/a
Southern Valley Fruit and Vegetables:
$500,000 to settle a race and national
origin discrimination lawsuit. This case
was based on alleged conduct by
managers. (December 2012)
EEOC SETTLEMENTS
15

Race Discrimination and Retaliation:
EEOC v. Torqued-Up Energy Services, Inc.:
$150,000 to settle lawsuit that alleged two
supervisors subjected an employee to racial
slurs and epithets. (May 2013)
EEOC SETTLEMENTS
16

Religious Discrimination :
EEOC v. Nags Head Landmark Hotel Group, LLC,
et al.: $45,000 to settle religious discrimination
lawsuit that alleged the employer refused to
allow religious accommodation for Seventh Day
Adventist who requested not to work on her
Sabbath. (July 2013)
EEOC SETTLEMENTS
17

Retaliation:
EEOC v. BASF Corp.: $500,000 to settle
retaliation lawsuit. The suit arose because the
employee was required to sign a last chance
agreement that prohibited filing of
discrimination charges with the EEOC, even for
events that had yet to occur. (January 2013)
EEOC SETTLEMENTS
18

Sex Discrimination:
EEOC V. It’s Just Lunch USA, LLC: $900,000 to
settle sex discrimination lawsuit where the
employer was accused of refusing to hire men.
(July 2013)
EEOC v. Exel, Inc.: Jury awards $500,000 in a
lawsuit where the EEOC alleged the employer
failed to promote a female to a supervisory
position. (June 2013)
EEOC SETTLEMENTS
19

Sexual Harassment:
EEOC v. HoneyBaked Ham Company of
Georgia: $370,000 to settle a sexual
harassment and retaliation lawsuit based on
the conduct of a male supervisor. (June 2013)
EEOC SETTLEMENTS
20

 EEOC v. Presrite Corp.: In February 2011, the EEOC filed a Title VII
complaint alleging Presrite discriminated against females throughout
the entire hiring process for metal forging jobs (failing or refusing to
hire, interview, refer them for interviews, or even refer them to
agencies from whom Presrite hired applicants). Additionally, the EEOC
alleged Presrite failed to make and preserve pertinent employment
records ensuring Title VII compliance. Subsequently, the case settled in
April 2013 for $700,000 and non-monetary relief including 40 priority
female hires and revised hiring policies.
 EEOC v. Wal-Mart: Kentucky-based case evaluated whether Wal-Mart
discriminated against females in hiring for a rigorous (50-100 pound lift
requirement) entry-level “order filler” position at a distribution center.
The EEOC argued Wal-Mart impermissibly used gender stereotypes in
hiring from 1998-2005 by alleging the hiring officials told applicants
the position was not suitable for women and meant mainly for
younger men. A settlement was reached in 2010 via a 5-year consent
decree whereby Wal-Mart paid $11.7 million in damages and broad-
ranging non-monetary relief including hiring more than 50 of the
claimants as “order fillers.”
EEOC’s TOP TEN LITIGATION DEVELOPMENT:
#10—Sex Hiring Challenges
21

PENDING CASES
 EEOC v. Mavis Discount Tire: Failure to hire for tire installing positions sex
discrimination case where a tire and muffler retailer, Mavis, had at one point,
only one female field employee (out of 800), and between 2008-2011 Mavis
hired 1,300 male field employees, but not one female. The EEOC alleges Mavis
discriminated against females by failing to hire or interview equally qualified
female applicants and even hiring male applicants who submitted a blank
application. Furthermore, the EEOC alleges Mavis failed to keep and maintain
pertinent Title VII employment and interview records. Case is still pending in
the Southern District of New York. (No. 12 Civ. 0741 (KPF))
 EEOC v. Performance Food Grp., 2014 WL 1760936 (D. Md. Mar. 11, 2014):
Defendant-food supplier facing a Title VII pattern or practice sex-discrimination
suit for failure to hire females for “operative positions” (intermediate-skilled
warehouse positions such as a forklift operator). In bringing the suit, the EEOC
is relying on allegedly direct evidence of hostile remarks made by upper-level
management on their displeasure with women working in the warehouse.
Furthermore, the EEOC is pointing to statistical workforce data allegedly
showing PFG has fewer female operative employees as compared to PFG’s
competitors. PFG was recently denied its motion to dismiss and the case is still
pending.
#10—Sex Hiring Challenges (Cont.)
22

 EEOC v. Unit Drilling Co.: National oil and gas drilling company is
accused of discriminating against females with regard to the
company’s hiring practices for drilling rig positions. The EEOC yet
again relies on allegedly direct evidence of management making
hostile remarks about hiring women, as well as the company’s
alleged refusal to provide optional housing for women (or even
make the current all-male accommodations co-ed). The case is still
pending in the Northern Federal District Court of Oklahoma.
 Theme: The EEOC seems to be focusing on stereotypically male
occupations and pursuing action against companies with virtually
or actually no female employees in those positions.
#10—Sex Hiring Challenges (Cont.)
23

EEOC v. Abercrombie & Fitch Cases:
 d/b/a Hollister Co., 966 F. Supp. 2d 949 (N.D. Cal. 2013); d/b/a Abercrombie Kids,
2013 WL 1435290 (N.D. Cal. Apr. 9, 2013): Two cases asking when an employer must
accommodate its employees’ religious beliefs by granting them an exception to a
dress code. In the Abercrombie Kids case, a female Muslim wore her hijab (Islamic
head scarf) when she interviewed for a part-time position. She was not hired
allegedly because the hijab was inconsistent with the Abercrombie “Look Policy.”
Similarly, the Hollister case centered on a Muslim employee getting fired for
wearing her hijab to work. The EEOC successfully argued in both cases that an
employer cannot rely on facial claims the accommodation will harm its brand image
without evidence showing an actual degree of harm. Both cases were settled by a
joint consent decree awarding over $100,000 and non-monetary relief in providing
Abercrombie employees an appeals process for religious garb accommodations.
 d/b/a Abercrombie Kids, 731 F.3d 1106 (10th Cir. 2013): Similar to the cases above,
a female Muslim was not hired because of her hijab. Issue resolved here was
whether the “notice” requirement for a failure-to-accommodate claim requires an
applicant to inform the employer she wears the dress-code-violating garb for
religious reasons. EEOC argued constructive notice is enough, such as here where
an applicant wears the garb to the interview. However, the Tenth Circuit held the
source of the notice of the need for an accommodation generally must explicitly be
from the applicant or employee, unless one of the employer’s hiring agents has
particularized, actual knowledge of the need for an accommodation. The court’s
holding relied in large part on EEOC guidelines, such as employers should not rely
upon stereotypes or ask about religion when interviewing. Suit was dismissed.
#9—Religious Discrimination Cases
24

 EEOC v. Burger King: A member of the Christian Pentecostal Church
was hired with the understanding from the hiring shift manager that
her religious belief (women only wear dresses or skirts) could be
accommodated. However, she was subsequently terminated after she
was denied an accommodation to the strict pants-only dress code
policy. The EEOC argued the Burger King franchisee’s higher
management did not even try to see if any accommodation was
possible. The case out of Texas settled in January 2013 for $25,000 and
other injunctive relief.
 EEOC v. AutoZone Inc.: Hostile work environment case where a
recently converted Sikh employee was allegedly subjected to among
other things, severe ridicule by co-workers for wearing a turban to
work and by managers when he sought an accommodation from
AutoZone’s dress code. The EEOC argued the store’s management did
not take the employee’s accommodation requests seriously.
Furthermore, the agency argued after he complained to AutoZone’s
human resources manager he was suspended with the stipulation he
comply fully with the dress code or submit written proof of the
legitimacy of his religious practice. Case out of Massachusetts settled
in March 2012 for $75,000 and other injunctive relief.
#9—Religious Discrimination Cases (Cont.)
25

 EEOC v. Cognis Corp., 2012 WL 1893725 (N.D. Ill. May 23, 2012):
Case asked whether employees can bring a Title VII retaliation
claim when an employer uses a “Last Chance Agreement” that
stipulates any exercise of their civil rights is grounds for instant
termination. The EEOC argued two different theories for retaliation
based on the case’s facts. First, if after signing the LCA, an
employee later opposes or revokes the LCA because it restrained
his civil rights, then the employer subsequently firing him is a
retaliation against an employee engaging in protected activity.
Secondly, an employer retaliates against an employee by offering
the LCA in lieu of being terminated. The Court granted the EEOC
summary judgment on the first theory, but denied it on the second
as a fact question for the jury to resolve (“did the company
anticipate protected activity in offering the LCA?”).
#8—Preservation of Access to the Legal System
26

 EEOC v. Evans Fruit Co., 2010 WL 2594960 (W.D. Wash. June 24, 2010):
Temporary restraining order granted in a case where Evans allegedly
committed numerous improprieties during an EEOC Investigation.
EEOC alleged, among other things, Evans had employees photograph
the people who gave testimony at an EEOC meeting, supervisors
bribed witnesses to give favorable testimony, and other threats of
intimidation toward plaintiffs. As a result, Evans was essentially
ordered by a federal judge to post notice of its violations.
 EEOC v. CVS Pharmacy, Inc., Civil Action No. 1:14-CV-863 (N.D. Ill.):
Recently the EEOC filed a Title VII complaint alleging CVS utilized a
Severance Agreement that constitutes an unlawful pattern or practice
of interfering with rights protected by Title VII. The EEOC is arguing the
more than 650 former employees who entered into these agreements
are barred from filing charges with the EEOC or even participating or
cooperating with an investigation conducted by the EEOC. The case is
still pending.
#8—Preservation of Access to the Legal System
(Cont.)
27

 EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc):
Appeal by Boh Brothers of a jury verdict against it in a same-sex
harassment case brought by the EEOC on behalf of a male iron worker.
At trial the EEOC used gender-stereotyping evidence to support the
iron worker’s claim he was harassed because he was not
stereotypically male. For example, the EEOC offered evidence that a
supervisor repeatedly mocked the iron worker with sexualized acts,
including simulated anal sex. The Fifth Circuit held the EEOC could rely
on the gender-stereotyping evidence to prove a viable claim that
same-sex discrimination occurred “because of sex” under Title VII.
 EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013): EEOC
appealed the summary judgment granted to the employer in a case
where a female employee alleged she was unlawfully terminated for
lactating and wanting to express milk at work. The EEOC argued such a
firing is a viable Title VII sex discrimination claim because allowing
such a firing imposes upon women a burden male employees need not
suffer. Further, that lactation is a related medical condition of
pregnancy, thus affording her protection under the Pregnancy
Discrimination Act. Fifth Circuit agreed with the EEOC, vacated the
summary judgment order and remanded the case.
#7—EEOC Success in the Fifth Circuit (Covers:
Texas, Louisiana, Mississippi)
28

 Chellen v. John Pickle Co., 446 F. Supp. 2d 1247 (N.D. Okla. 2006): Class action
Title VII race and national origin discrimination case (under § 1981) brought by
the EEOC on behalf of workers recruited in India and brought to the USA by
JPC. The EEOC argued JPC discriminated against the class by feeding and
housing class members separately from and paying them less than non-Indian
employees. Additionally, the agency alleged JPC restricted class members in
their ability to move freely, communicate, access health care, and much more.
Court awarded $1.24 million in the form of compensatory damages, mental
and emotional distress, as well as prejudgment interest on all the combined
claims (FLSA and other tort claims were brought as well).
 EEOC v. Del Monte Fresh Produce (Hawaii), Inc.: Case is premised on joint
employer liability, where the EEOC is attempting to hold Del Monte (as well as
other companies) liable for its contractor’s alleged poor treatment and
discrimination of their own workers on the basis of national origin (Thai) and
race (Asian). Here the EEOC argued Del Monte had so much control over and
was economically depended on by its contractor to such a degree that Del
Monte should be held as a joint employer for any Title VII violations by its
contractor. Del Monte settled in 2013 for $1.2 millions and agreed to ensure its
“Farm Labor Contractors” complied with all US laws, such as immigration and
civil rights laws.
#6—Discrimination Against Immigrant Workers
& Other Vulnerable Workers
29

 EEOC v. Mesa Sys., Inc., No. 2:11-cv-01201 (D. Utah): National origin
discrimination case brought on behalf of Hispanic workers against a
moving and storage company. The EEOC argued Mesa implemented a
restrictive language (“English-Only”) policy subjecting Hispanics to
selective, more vigorous, and harsher enforcement of that policy. Case
settled in 2013 for $450,000.
 EEOC v. Signal Inter., No. 2:12-cv-0557 (E.D. La.): Similar to Chellen,
case involves a group of over 500 Indian nationals brought to the USA
to work for Signal as pipe fitters and welders in the aftermath of
Hurricane Katrina. The EEOC argued Signal discriminated on the basis
of national origin and race by allegedly subjecting Indian nationals to
poor working and living conditions. Furthermore, when the nationals
complained, Signal allegedly threatened deportation, among other
harassing conduct by Signal managers. The case is still pending, but in
all the EEOC sued under four Title VII theories: pattern or practice,
retaliation, hostile work environment, and disparate treatment.
& Other Vulnerable Workers (Cont.)
30

 EEOC v. Koch Foods, No. 3:10cv135–DPJ–FKB (S.D. Miss.): Dual class
action claims brought against Koch for sexual harassment of female
Hispanic workers and national origin discrimination of male
Hispanic workers. The EEOC is arguing male Hispanic workers were
subjected to physical mistreatment (ex: supervisors allowed to
punch the workers while they worked) because they were
Hispanic. As for the sexual harassment, the EEOC focuses its
argument on Koch’s failure to provide appropriate and effective
mechanisms to prevent and correct harassment. The case is still
pending.
& Other Vulnerable Workers (Cont.)
31

 EEOC v. A.C. Widenhouse, 2013 WL 664230 (M.D.N.C. Feb. 22, 2013):
EEOC successful in attaining a jury award on racial harassment claims
brought on behalf of two workers against a company with no
antidiscrimination or reporting policies. Punitive damages awarded
were two to three times as much as compensatory damages.
Additionally, the jury awarded one of the workers over $70,000 in back
pay. As a result the EEOC was able to attain $50,000 in damages for
one worker and over $190,000 for the other worker with only $30,000
constituting compensatory damages. An appeal is pending before the
4th Circuit.
 EEOC v. AA Foundries: Before Widenhouse, a 2012 Texas jury awarded
over $200,000 in punitive damages be paid by another company with
no antidiscrimination or reporting policies. The EEOC had brought
claims of racial harassment on behalf of three African-American
workers after first attempting to reach a pre-litigation settlement
through its conciliation process. In a press release after the jury award,
the EEOC emphasized how they hoped cases like this one would be a
wake-up call to employers to ensure proper policies are in place and
enforced.
#5—Importance of Juries
32

 EEOC v. New Breed Logistics: $177,094 (back pay), $486,000
(compensatory), and $850,000 in punitive damages were awarded
in May 2013 by a Tennessee jury to four African American temp
workers who were the victims of sexual harassment and
retaliation.
 EEOC v. Exel, Inc.: Atlanta, Georgia jury awarded $25,000
compensatory and $475,000 punitive damages to a sole plaintiff on
her “failure to promote” Title VII sex discrimination claim brought
on her behalf by the EEOC. The agency was able to attain such
significant damages by persuading the jury to believe the
company’s human resources department unfairly sided with the
alleged wrongdoer without any investigation at all.
#5—Importance of Juries (Cont.)
33

 EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. Apr. 22, 2014):
EEOC appealed Ford’s summary judgment awards on the EEOC’s ADA
failure-to-accommodate and retaliation claims. The appeal centered
on whether a telecommuting arrangement could be a reasonable
accommodation for a resale steel buyer with irritable bowel syndrome
when the employer had a physical presence requirement. The EEOC
successfully argued the law must respond to the advancements in
technology and not categorically deny telecommuting
accommodations to jobs requiring a great deal of teamwork. As a
result the Sixth Circuit reversed the district court’s grant of summary
judgment to Ford and remanded the case.
 EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012): ADA failure-
to-accommodate case centered around whether the ADA could
mandate employers to appoint employees who are losing their current
positions due to disability to a vacant position for which they are
qualified despite the presence of a best-qualified selection policy. In
other words can an ADA accommodation ever trump a best-qualified
selection policy? The court held that “best qualified” policies do not
trump the ADA’s reassignment as a reasonable accommodation
obligation.
#4—EEOC Reasonable Accommodation Cases
34

 EEOC v. Interstate Distrib. Co.: Nationwide ADA failure-to-
accommodate case out of Colorado that challenged both Interstate’s
policy of automatically terminating employees needing more than 12
weeks leave and its policy of refusing to allow workers to return to
work if they had “work restrictions.” The EEOC argued the trucking
company failed to engage in the interactive process by utilizing both
strict policies without considering any extenuating circumstances. Case
settled in 2012 for roughly $5 million plus injunctive relief aimed at
correcting Interstate’s ADA training and policy.
 EEOC v. UPS, 2014 WL 538577 (N.D. Ill. Feb. 11, 2014): Similar to
Interstate Distributor, the EEOC brought a class action ADA failure-to-
accommodate claim against UPS based on its leave policy which
terminated workers after 12 months of leave and required workers be
able to perform without any accommodation in order to return to
work. The EEOC is arguing the leave policy acts as a 100% healed
requirement and acts as an unlawful qualification standard under the
ADA. The EEOC recently survived a motion to dismiss on its claim as
the district court agreed a 100% healed policy would qualify as an
unlawful qualification standard.
(cont.)
35

 EEOC v. American Tool & Mold, Inc., 2014 WL 2185013 (M.D. Fla. Apr. 16,
2014): EEOC was granted summary judgment on an ADA claim American
unlawfully revoked an applicant’s conditional offer of employment because he
was “regarded as” being disabled. The crux of the EEOC’s case is how
American, upon the applicant revealing he had back surgery seven years prior,
decided he was not fit to work until he obtained a release from the surgeon.
Furthermore, the agency pointed to how American relied on the myths and
fears of future liability should American hire someone who had back surgery. In
granting summary judgment, the court held it is unlawful to require a healthy
prospective applicant to obtain a release for an old surgery from a surgeon
stating he had no restrictions instead of individually assessing whether he
could perform the essential functions of the job for which he was hired.
 EEOC v. Creative Networks, LLC, 912 F. Supp. 2d 828 (D. Ariz. 2012): ADA
failure-to-accommodate and failure-to-hire claim brought by the EEOC where
Creative refused to provide a hearing-impaired applicant a sign-language
interpreter for her pre-employment orientation and training (24 hours over 6
days), and instead gave her $200 towards interpretive services. Creative
Networks ceded the failure-to accommodate claim, but not the failure-to-hire
claim because the applicant did not complete the application process. The
EEOC successfully countered by pointing out how an applicant need not
complete the entire process to bring a claim. Subsequently the EEOC was
granted summary judgment on both claims.
(cont.)
36

 EEOC v. Pepsi Bottling Grp.: In early 2012 EEOC attained a $3.13
million racial discrimination settlement with Pepsi over the
company’s former policy of refusing to hire applicants who had
been arrested pending prosecution or convicted of some minor
offenses (even if solely arrested). The policy allegedly had a
disparate impact on African-American applicants.
 EEOC v. Kaplan Higher Educ. Corp., 2014 WL 1378197 (6th Cir. Apr.
9, 2014): EEOC appealed the lower court excluding its pivotal
expert testimony in a class action disparate impact race
discrimination claim based upon an alleged unlawful use of credit
checks. The EEOC had attempted to offer expert testimony without
presenting evidence of the reliability or peer review of its expert’s
methodology. The Sixth Circuit affirmed, holding the EEOC brought
the case on the basis of a homemade methodology, crafted by a
witness with no particular expertise.
#3—Background Screen Cases
37

 EEOC v. BMW: In June 2013, the EEOC filed a claim of race
discrimination against BMW for using a blanket criminal background
check policy that allegedly has no time limits, no individualized
assessment of the nature and gravity of crimes, the ages of
convictions, or the nature of the claimants’ respective positions.
Specifically, the EEOC brought the claim on behalf of former
employees of a former BMW contractor, UTi, who were denied
continued employment when a new contractor was brought in and
required to rerun background checks pursuant to BMW policy. UTi had
used its own policy which only looked back seven years for convictions.
The case is still pending in South Carolina.
 EEOC v. Dollar General: In Illinois, the EEOC filed a similar nationwide
claim as in BMW against Dollar General, however here one of the
claimants allegedly was denied employment based on a faulty
background check even after bringing the faulty report to
management’s attention. The other claimant in the case was denied
employment as a cashier-stocker because a drug conviction six years
prior, despite the fact she had worked as a cashier-stocker the past
four years for a similar store. The case is still pending.
#3—Background Screen Cases (Cont.)
38

 EEOC v. Mach Mining, 738 F.3d 171 (7th 2013): Failure to hire sex
discrimination case went up to the Seventh Circuit on interlocutory
appeal to resolve whether an alleged failure to conciliate was
subject to judicial review in form of implied affirmative defense to
the merits of an employment discrimination suit. Mach Mining
alleges it has such an affirmative defense because the EEOC did not
engage in good faith conciliatory efforts. Other circuit courts (2nd,
4th, 5th, 6th, 8th, 10th, and 11th) have held judicial review of
conciliation is appropriate in the form of an affirmative defense.
However, the Seventh Circuit went the other way and held failure
to conciliate was not an affirmative defense to merits of a Title VII
employment discrimination suit. The language of Title VII, the lack
of a meaningful standard for courts to apply, and the overall
statutory scheme convinced the court that finding such an implied
defense adds only an unwarranted mechanism by which employers
can avoid liability for unlawful discrimination. Petition for certiorari
is pending before the Supreme Court.
#1/2—EEOC Pre-Suit Obligations
39

 EEOC v. Hill Cnty. Farms, Inc., 2014 WL 1813434 (8th Cir. May 8, 2014):
EEOC brought a disability and wage discrimination suit against Hill
County Farms (d/b/a Henry’s Turkey Service) on behalf of 32 men with
intellectual disabilities who allegedly had been mistreated for over 20
years. The EEOC only pursued claims pertaining to time period of
2007-2009, arguing the men were taken advantage of (paid $65 a
month) and severely harassed (calling the men “retards” and kicking
them at times). The original jury verdict was for $240 million in EEOC’s
favor ($2 million in punitives and $5.5 in compensatory damages for
each victim), the highest verdict in the EEOC’s history, but this was
ultimately reduced to $1.6 million total ($50,000 each). However, the
EEOC was previously able to attain $1.3 million in wage discrimination
damages. Recently the district court’s disposition of this case was
affirmed by the Eighth Circuit in an unpublished opinion.
#1/2—EEOC v. Hill County Farms, Inc.
40

 University of Texas Southwestern Medical Center v. Nassar,
133 S. Ct. 2517 (2013)
 Question: Does the retaliation provision of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded
statutes require a plaintiff to prove but-for causation (i.e., that an
employer would not have taken an adverse employment action
but for an improper motive), or instead require only proof that the
employer had a mixed motive (i.e., that an improper motive was
one of multiple reasons for the employment action)?
 Held: Employee retaliation claims filed under Title VII of the Civil
Rights Act of 1964 must be proved according to traditional
principles of but-for causation, not the lessened causation test
stated in the 42 U.S.C. § 2000e–2(m).
 In other words, a plaintiff bringing a Title VII retaliation claim must
demonstrate that he or she would not have suffered an adverse
employment action but for his or her protected activity. The "but
for" standard of proof is considerably more difficult for plaintiffs to
achieve and will serve to aid employers in defending Title VII
retaliation claims.
2012-2013 U.S. SUPREME COURT
DECISIONS
41

 Vance v. Ball State University, et al., 133 S. Ct. 2434 (2013)
 Question: Who qualifies as a “supervisor” in a case in which an
employee asserts a Title VII claim for workplace harassment?
 Held: An employee is a “supervisor” for purposes of vicarious
liability under Title VII of the Civil Rights Act only if he is
empowered by the employer to take tangible employment actions
against the victim, i.e., a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits.
DECISIONS
42

American Express Co. v. Italian Colors Restaurant,
133 S. Ct. 2304 (2013)
 Question: Is a contractual waiver of class arbitration
enforceable under the Federal Arbitration Act when the
plaintiff ’s cost of individually arbitrating a federal statutory
claim exceeds the potential recovery?
 Held: Yes. The Federal Arbitration Act does not permit courts
to invalidate a contractual waiver of class arbitration on the
ground that the plaintiff’s cost of individually arbitrating a
federal statutory claim exceeds the potential recovery.
 This decision shows the Court’s heightened deference to
arbitration agreements and appears to indicate that employers
seeking to avoid class litigation need only include in its
contracts an arbitration agreement that contains an express
class action waiver.
DECISIONS
43

 Freeman v. Dal-Tile Corp., 2014 WL 1678422 (4th Cir. Apr. 29,
2014): Case involved a repeat customer who constantly racially and
sexually harassed a Dal-Tile employee for three years before Dal-
Tile finally barred the customer from communicating with the
employee. The appeal (and the entire case really) centered on
whether the customer’s third-party harassment was imputable to
Dal-Tile. The Fourth Circuit ultimately ruled an employer can be
held liable for the harassment of an employee by a third-party
where it knew or should have known that a third party was
harassing an employee, but failed to take prompt remedial action
reasonably calculated to end the harassment. As a result, the court
reversed the grant of summary judgment to Dal-Tile and remanded
the case.
BONUS LITIGATION DEVELOPMENT:
Third-Party Harassment Liability
44

EEOC FCRA Actual Case Stats

Recomendados

Recomendados

Más contenido relacionado

La actualidad más candente

La actualidad más candente (20)

Similar a EEOC FCRA Actual Case Stats

Similar a EEOC FCRA Actual Case Stats (20)

Último

Último (20)

EEOC FCRA Actual Case Stats