OFFICE OF GENERAL COUNSEL FISCAL YEAR 2009 ANNUAL REPORT

Structure and Function of the Office of General Counsel
II. Fiscal Year 2009 Accomplishments
Litigation Statistics

I. Structure and Function of the Office of General Counsel

A. Mission of the Office of General Counsel

The Equal Employment Opportunity Act of 1972 amended Title VII of the Civil Rights Act of 1964 (Title VII) to give litigation authority to the Equal Employment Opportunity Commission (EEOC or Commission) and provide for a General Counsel, appointed by the President and confirmed by the Senate for 4-year term, with responsibility for conducting the Commission's litigation program. Following transfer of enforcement functions from the U.S. Department of Labor to the Commission under a 1978 Presidential Reorganization Plan, the General Counsel became responsible for conducting Commission litigation under the Equal Pay Act of 1963 (EPA) and the Age Discrimination in Employment Act of 1967 (ADEA). With the enactment of the Americans with Disabilities Act of 1990 ( ADA), the General Counsel became responsible for conducting Commission litigation under the employment provisions of that statute (Title I; effective July 1992).

The mission of EEOC's Office of General Counsel (OGC) is to conduct litigation on behalf of the Commission to obtain relief for victims of employment discrimination and ensure compliance with the statutes that EEOC is charged with enforcing. Under Title VII and the ADA, the Commission can sue nongovernmental employers with 15 or more employees. The Commission's suit authority under the ADEA (20 or more employees) and the EPA (no employee minimum) includes state and local governmental employers as well as private employers. Title VII, the ADA, and the ADEA also cover labor organizations and employment agencies, and the EPA prohibits labor organizations from attempting to cause an employer to violate that statute. OGC also represents the Commission on administrative claims and litigation brought by agency applicants and employees, and provides legal advice to the agency on employment-related matters.

B. Headquarters Programs and Functions

1. General Counsel

The General Counsel is responsible for managing, coordinating, and directing the Commission's enforcement litigation program. He or she also provides overall guidance and management to all the components of OGC, including district office legal units. The General Counsel recommends cases for litigation to the Commission and approves other cases for filing under authority delegated to the General Counsel under the Commission's 1996 National Enforcement Plan. The General Counsel also reports regularly to the Commission on litigation activities, including issues raised in litigation which may affect Commission policy, and advises the Chair and Commissioners on agency policies and other matters affecting the enforcement of the statutes within the Commission's authority.

2. Deputy General Counsel

The Deputy General Counsel serves as the alter ego of the General Counsel and as such is charged with the daily operations of OGC. The Deputy is responsible for overseeing all programmatic and administrative functions of OGC, including the litigation program. OGC functions are carried out through the operational program and service areas described below, which report to or through the Deputy.

3. Litigation Management Services

Litigation Management Services (LMS) oversees and supports the Commission's court enforcement program in the agency's district offices. Also, in conjunction with the Office of Field Programs (OFP), LMS oversees the integration of district office legal units into the investigative enforcement structure of the district offices. LMS staff provide direct litigation assistance to district offices as needed, draft guidance (including maintaining the Regional Attorneys' Manual), develop training programs and materials, and collect and create litigation practice materials. LMS also reviews proposed suit filings by regional attorneys under their redelegated litigation authority from the General Counsel. LMS has an assistant general counsel for technology responsible for providing technical guidance and oversight to OGC headquarters and district offices on the use of technology in litigation and the development of OGC's computer systems. LMS and OFP staff make joint visits to district offices to provide technical assistance regarding the integration of the district legal and investigative units.

4. Internal Litigation Services

Internal Litigation Services represents the Commission and its officials on administrative claims and litigation brought by Commission applicants and employees, and provides legal advice to the Commission and agency management on employment-related matters.

5. Litigation Advisory Services

Litigation Advisory Services (LAS) evaluates district office suit recommendations in cases that require General Counsel or Commission authorization, and drafts litigation recommendations to the General Counsel for approval or submission to the Commission. LAS responds to Commissioner inquiries on cases under consideration for litigation, acting as OGC's liaison and contact point between the Commissioners and the district office legal units. LAS also performs special assignments as requested by the General Counsel.

6. Appellate Services

Appellate Services (AS) is responsible for conducting all appellate litigation where the Commission is a party. AS also participates as amicus curiae, as approved by the Commission, in United States courts of appeals, as well as federal district courts and state courts, in cases involving novel issues or developing areas of the law. AS represents the Commission in the United States Supreme Court through the Department of Justice's Office of the Solicitor General. AS also makes recommendations to the Department of Justice in cases where the Department is defending other federal agencies on claims arising under the statutes the Commission enforces. AS reviews EEOC policy materials, such as proposed regulations and enforcement guidance drafted by the Commission's Office of Legal Counsel, prior to their issuance by the agency.

7. Research and Analytic Services

Research and Analytic Services (RAS) provides expert and analytical services for cases in litigation, assists EEOC attorneys in obtaining expert services from outside the agency, and provides technical support to field staff investigating charges of discrimination. RAS has a professional staff with backgrounds and advanced degrees in the social sciences, economics, statistics, and psychology who serve as testifying and consulting experts on cases in litigation. RAS also provides services to other agency offices, such as conducting social science research on issues related to civil rights enforcement, advising the agency on the collection of workforce data, and developing and maintaining special census files by geography, race/ethnicity and sex, and occupation.

8. Administrative and Technical Services Staff

OGC's Administrative and Technical Services Staff (ATSS) provides administrative and technical services to all headquarters components of OGC. ATSS also is responsible for preparing the OGC budget request to the EEOC Chair for submission to the Office of Management and Budget and Congress as well as for handling various budget execution duties such as transferring funds to district offices and monitoring expenditures. ATSS maintains nationwide data on the Commission's litigation activities.

C. District Office Legal Units

District office legal units conduct Commission litigation in the geographic areas covered by the respective offices and provide legal advice and other support to district staff responsible for investigating charges of discrimination. In addition to the district office itself, OGC trial attorneys are stationed in most of the other offices – field, area, and local – within districts. Legal units are under the direction of regional attorneys, who manage staffs consisting of supervisory trial attorneys, trial attorneys, paralegals, and support personnel.

II. Fiscal Year 2009 Accomplishments

In fiscal year 2009, OGC filed 281 merits lawsuits and resolved 324, obtaining over $81 million in monetary relief. Section A. below contains summary statistical information on the fiscal year's trial court litigation results (more detailed statistics appear in section III. of the Annual Report). Sections B. and C. contain descriptions of selected trial and appellate cases. Section D. describes some of the outreach conducted by OGC staff during the year.

A. Summary of District Court Litigation Activity

OGC filed 281 merits suits in FY 2009. Merits suits consist of (1) direct suits and interventions alleging violations of the substantive provisions of the Commission's statutes, and (2) suits to enforce settlements reached during EEOC's administrative process. No interventions were filed during the fiscal year; two suits were filed to enforce administrative settlements. In addition to merits suits, OGC filed 35 actions to enforce subpoenas issued during EEOC investigations.

OGC's FY 2009 merits suit filings had the following characteristics:

188 contained claims under Title VII (66.9%)
2 contained claims under the EPA (.7%)
24 contained claims under the ADEA (8.5%)
76 contained claims under the ADA (27%)
114 cases sought relief for multiple aggrieved individuals (40.6%)

The above claims exceed the number of suits filed because cases sometimes contain claims under more than one statute. There were 9 (3.2%) of these "concurrent" suits among the FY 2009 filings.

OGC resolved 324 merits suits in fiscal year 2009, resulting in monetary relief of $81,668,814. These resolutions had the following characteristics:

254 contained claims under Title VII (78.4%)
5 contained claims under the EPA (1.5%)
38 contained claims under the ADEA (11.7%)
40 contained claims under the ADA (12.3%)
129 cases resulted in relief for multiple aggrieved individuals (39.8%)
13 were concurrent suits (4.4%)

ection III of the Annual Report contains detailed statistical information on OGC's FY 2009 litigation activities, as well as summary information for past years.

B. Litigation in Federal District Courts

In this section of the Annual Report, we provide descriptions of representative cases resolved in trial courts during the fiscal year. The cases are organized by statute, with a separate subsection at the end on retaliation, a claim that arises under all the laws EEOC enforces. Retaliation claims also appear in many of the cases discussed in the preceding subsections.

1. Title VII

a. Race Discrimination

(1) Hiring and Promotion

In EEOC v. Sara Lee Corp., d/b/a Sara Lee Bakery Group. (D.S.D. Dec. 1, 2008), EEOC alleged that a commercial bakery failed to promote three African American employees at its Sioux Falls, South Dakota facility into foremen positions due to their race. Defendant filled at least two foreman positions during 2003-04 with white employees without posting the positions, soliciting applications, or conducting interviews. Defendant declined to promote a black employee to a backup foreman position despite the recommendation of a foreman. One witness said that he heard a top manager say that "as long as [the plant manager] was running the plant, there will never be a black foreman." Under a 2-year consent decree, defendant will pay $245,000 to the three black employees. The decree enjoins defendant from race discrimination and prohibits retaliation.

In EEOC v. Benedict Coll. (D.S.C. April 28, 2009), EEOC alleged that a private historically-black college in Columbia, South Carolina failed to renew the teaching contracts of three white teachers for the 2004-05 academic year, and failed to hire one of them, because of their race. The white teachers worked in various departments within the School of Humanities, Arts, and Social Sciences (SHASS). One was the only applicant for an Assistant Professor of Art History position. Both the Search Committee and Department Chair recommended her for the position, but the black Dean of SHASS refused to accept the Committee's recommendation, and insisted that the Search Committee consider a black candidate, whom the Committee found unqualified. A second white teacher applied for promotion to Associate Professor and for tenure; the Committee for Promotion and Tenure approved his application and forwarded his name to a SHASS Committee, but the application was denied. The third white teacher was hired as an Associate Professor of English in August 2002, with her appointment subject to annual renewal. In early 2005, the Dean of SHASS proposed a reorganization plan for the school in which he recommended that the faculty possess "bilingual" skills necessary to communicate their disciplines to the "hip-hop generation." A 2½-year consent decree provided a total of $165,000 to the three teachers and prohibits defendant from Title VII discrimination and retaliation. Semiannually, defendant will provide EEOC information by race and department on the status of individuals' teaching contracts; on individuals hired or promoted into Assistant Professor or Associate Professor positions; and on individuals denied tenure.

(2) Discharge

In EEOC v. Roster Fin. LLC, a wholly owned subsidiary of Allianz Life Ins. Co. of North Am. (D.N.J. Dec. 22, 2008), EEOC alleged that a firm that recruits and trains insurance sales agents subjected a black vice president of annuity sales at its Voorhees, New Jersey facility to disparate treatment and disciplined and discharged him in retaliation for complaining about race discrimination. The black vice president had worked for defendant for 4 years, and was the only black person of 17 vice presidents of annuity sales, when he began reporting to a white vice president who had recently transferred to the facility. The white vice president immediately transferred at least five of the black vice president's lucrative accounts to nonblack employees; she also questioned female employees about whether he -- but not other male employees -- had sexually harassed them. A firm official told the black vice president that the white vice president said that as a black man, he should not be earning such a high salary. In late March 2007, the black vice president complained to his former boss that there was a "plantation" attitude within the office. Shortly thereafter, the white vice president issued the black vice president a disciplinary memo (which he contested), denied him permission to attend a client meeting, refused to approve a meal expense voucher for client entertainment, and refused to sign his daily activity report. Following a dispute over the meal voucher and activity report, she accused the black vice president of threatening her, and in an April 12, 2007, letter defendant discharged him for alleged insubordination and unacceptable behavior. A 5-year consent decree provided the discharged black vice president $320,000 in monetary relief and enjoins defendant from race discrimination and retaliation.

In EEOC v. Area Erectors, Inc. (N.D. Ill. May 27, 2009), EEOC alleged that a construction contractor headquartered in Rockford, Illinois terminated an African American apprentice ironworker because of his race and because he filed charges of race discrimination with EEOC, and laid off African American construction workers after much shorter periods of work than white workers. The apprentice ironworker, a member of Ironworkers Local 498, filed EEOC charges in March 2004 against two other employers to whom he was referred by his union. Those charges resulted in EEOC lawsuits that were resolved by consent decrees in 2005. When referred by the union to defendant in June and July 2004, the ironworker was terminated after just a few days of work; on one occasion, a foreman mentioned his EEOC charges and told him that filing of a discrimination charge is a "no-no." A 3-year consent decree prohibits race discrimination and retaliation, and provides a total of $630,000 to 24 individuals in amounts set forth in the decree ($80,000 to the apprentice ironworker and approximately $24,000 to each of the other individuals, portions of which will be paid over a 24-month period). Eighteen individuals named in the decree will be placed on a priority hiring list, and as positions are filled within their unions' jurisdictions, will be offered reinstatement before anyone else is hired. Four other individuals will be reinstated immediately. Within 2 weeks of terminating any reinstated individual, defendant will report to EEOC on the reasons. Semiannually, defendant will report on employees who worked during the preceding 6 months, and on complaints of race discrimination or retaliation it receives.

In EEOC v. Estes Express Lines, Inc. (S.D. Miss. Oct. 2, 2008), EEOC alleged that a freight transporter with facilities throughout the United States terminated a black driver at its Jackson, Mississippi location because of his race. The driver was hired in October 1998 and had a good work record. In January 2005, defendant discovered that several cases of smokeless tobacco were missing from a freight shipment and found some of the tobacco in a newly hired white employee's car. The white employee told defendant he had obtained the tobacco from the black driver. Defendant allowed the white employee to resign, but had the black driver arrested without asking him about the missing tobacco. Defendant told the black driver he could return to work if he was cleared and held his job for several months, but then fired him on May 10, 2005, even though it learned in mid-April that the charges against him had been dismissed. A 2-year consent decree provides the discharged black driver $175,000; defendant must expunge his personnel file of documents concerning the arrest and prosecution.

b. Racial Harassment

In EEOC v. Marjam Supply Co., Inc. (S.D.N.Y. April 14, 2009), EEOC alleged that a building materials supplier with facilities throughout the Northeast and mid-Atlantic States subjected black janitors and laborers at its Newburgh, New York warehouse to a racially hostile work environment and disparate terms and conditions of employment, and retaliated against employees who complained about the discrimination. A white manager regularly used racial slurs and other racially offensive language, including joking about cross-burning. The manager also subjected black employees to harsher treatment than white employees, including disciplining them for conduct for which white employees were not disciplined. The manager discharged two black employees in 2001 after they complained about racial harassment. Under a 3-year consent decree, five individuals shared $495,000 in monetary relief. The decree enjoins defendant from race discrimination and retaliation and prohibits it from rehiring or otherwise reemploying the discriminating white manager.

In EEOC v. N-M Ventures, LLC d/b/a N9NE Group (D. Nev. March 11, 2009), EEOC alleged that an operator of bars and restaurants in Las Vegas, Chicago, and Dallas subjected black security officers, barbacks/porters, and hosts at two lounges at the Palms Casino Resort in Las Vegas to a hostile work environment and disparate terms and conditions of employment based on their race, and discharged them for complaining about the discrimination. Starting in late 2001, the general manager, assistant bar manager, and director of security subjected the black employees to racially derogatory comments, and referred to them as "buckwheat," "black liar," "boy," and "niggers." In addition, the black employees were assigned less desirable posts (e.g., outdoors in the cold) and schedules. Beginning in late 2002, the black employees complained to managers and human resources about the harassment and discrimination, but the conduct continued. In 2003, seven of the black employees were discharged for conduct for which other employees were not disciplined as harshly. A 3-year consent decree provided a total of $457,500 in compensatory damages to eight individuals, and enjoins defendant from discrimination and harassment based on race and from retaliation.

In EEOC v. Sears Holding Corp. and Kmart Corp. (S.D. Fla. Sept. 29, 2009), EEOC alleged that defendants subjected black employees to racial harassment; discharged or constructively discharged black employees because of their race; and discharged employees for opposing the racial harassment. On February 5, 2006, a white assistant manager at Kmart's Oakwood/Hollywood store, who regularly made racist remarks in the workplace, struck a black sales associate in the arm with a flower pot during an argument and called him a "nigger." Two lost prevention employees, both black, investigated the incident, and although the evidence showed that the assistant manager was at fault, the store manager sent the black sales associate home without disciplining the assistant manager. Sometime during the next 2 weeks, an employee from defendants' human resources department called the black sales associate and asked him to return to work, but he refused because he did not know what, if any, action had been taken against the assistant manager. Less than a month after the February 5 incident, defendant forced one of the two black loss prevention employees to retire and fired the other one for conduct towards a suspected shoplifter which defendants had tolerated from white employees. Other black employees at the store were subjected to racist comments from the white assistant manager and other managers, but despite complaints to the store manager no corrective action was taken. A 3-year consent decree provided $250,000 to the discharged black sales associate, $70,000 and $55,000 to the two discharged loss prevention employees, and $50,000 to a fourth black employee, and enjoins defendants from race discrimination and retaliation.

c. Sex Discrimination

(1) Hiring

In EEOC v. Mars Super Markets, Inc. (D. Md. Sept. 1, 2009), EEOC alleged that a retail grocery chain with 17 locations in the Baltimore metropolitan area refused to hire female applicants for meatcutter positions because of their sex. From January 2006 through July 2008, defendant hired 28 meatcutters at its Baltimore-area stores, half for entry-level apprentice positions; all 28 hires were men. A woman employed as a deli clerk who tried in late 2006 to transfer to an apprentice meatcutter position (representing a 50% increase in her hourly rate) was discouraged by her manager, who told her the job involved heavy lifting, long periods of standing, and cold environments. She filed a number of transfer requests, and finally resigned when she received no response. A 3-year consent decree provided a total of $275,000 to six individuals. Defendant will extend written offers of employment for meatcutter positions to three named woman (two for apprentice positions and one as a journeyman), and make good faith efforts to place them in their preferred geographic areas within 6 months. EEOC will develop a job offer list from individuals who applied for or expressed an interest in transferring to the meatcutter position from January 1, 2006, through December 31, 2008, and defendant will offer individuals on the list every other apprentice or meatcutter vacancy. Defendant is enjoined from refusing to hire or transfer female applicants because of their sex. Every 6 months, defendant will report to EEOC on hires, transfers, and discharges for the apprentice and journeyman meatcutter positions.

In EEOC v. Pitt Ohio Express, LLC (N.D. Ohio Jan. 22, 2009) , EEOC alleged that a regional transportation carrier denied women employment as truckdrivers and dockworkers at its four Ohio terminals. The case arose from a charge filed by an experienced female truckdriver who had applied unsuccessfully at defendant a number of times since 1992. There was a statistically significant difference between the availability of women for truckdriver and dockworker positions in the geographic areas around defendant's terminals and defendant's selection of women for those positions. A 5-year consent decree provided $2,430,000 in compensatory damages to women who applied and were not hired for driver or dockworker positions at defendant's Ohio terminals between September 1, 1997, and October 19, 2008. (The woman who filed the EEOC charge intervened in EEOC's suit and settled separately for $265,000 plus attorney's fees; she is also eligible for payments from the $2.43 million class settlement fund.) Defendant will extend 40 offers of employment to rejected female applicants: 26 for driver positions and 14 for dockworker positions. Each woman hired will receive seniority rights and accompanying benefits based on her initial application date, but seniority rights will not extend to displacement of drivers from routes and shift assignments. The decree enjoins defendant from sex discrimination in hiring for driver and dockworker positions at any Ohio terminal. Defendant will report to EEOC every 6 months for the first 3 years of the decree and annually for the next 2 years on the identity and sex of driver and dockworker applicants and hires at its Ohio terminals.

In EEOC v. LA Weight Loss (D. Md. Dec. 1, 2008) , EEOC alleged that a chain of weight loss counseling centers with facilities in 21 states had a companywide policy of refusing to hire men into the positions of counselor/sales, medical assistant, trainer, and various management positions. Both applicant flow and census data showed that men were not hired consistent with their availability, and employees were told by managers that defendant was not interested in hiring men because management believed that female clients responded better to female counselors. In January 2008, defendant discontinued its business operations and filed a voluntary petition under Chapter 7 of the Bankruptcy Code. Pursuant to a 10-year consent decree, approved by the bankruptcy trustee, EEOC will have a claim in bankruptcy court of $20 million -- $16,842,656 in backpay and $3,157,344 in punitive damages -- payable to men whom EEOC determines were subjected to hiring discrimination during the period January 1, 1997, through the entry of the decree. The decree enjoins defendant from discriminating because of sex and from retaliation. In the event defendant or any successor resumes business operations, the decree provides substantial affirmative relief, including hiring of rejected and deterred male applicants and numerical benchmarks for hiring and promoting men to the positions from which they had been previously excluded.

In EEOC v. Kovacevich "5" Farms, A Partnership (E.D. Cal. Dec. 1, 2008), EEOC alleged that a family-owned farm in Delano, California that grows table grapes failed to hire women into seasonal farmworker positions because of their sex. From 1998 to 2003, defendant hired about 300 farmworkers each year, all of whom were men. Numerous women with grapepicking and harvesting experience sought work with defendant during that period. Some were told that defendant did not hire women; others were falsely told that no work was available. Under a 5-year consent decree, defendant will pay $1,680,000 to a class of rejected and deterred female farmworker applicants. Defendant will set goals for hiring women into all available positions during the harvest season (July through November) and will make reasonable efforts to ensure that women comprise at least one-third of the workforce over the course of the season. Defendant also must make reasonable efforts to hire women into nonharvest activities during other seasons consistent with their application rates. The decree enjoins defendant from sex discrimination in hiring and terms and conditions of employment and from practices having the effect of deterring applicants based on sex. It also enjoins retaliation under Title VII.

In EEOC v. Robertson Sanitation, A Div. of Republic Services of Georgia, Ltd. P'ship (N.D. Ga. Feb. 11, 2009), EEOC alleged that a provider of waste collection and disposal services with three facilities in Georgia denied female applicants employment as truckdrivers at its Winder and Austell, Georgia facilities because of their sex. Between January 2005 and September 2006, 1254 individuals, 109 of whom (8.7%) were women, applied for driver positions at the two facilities. Defendant hired 163 men and 3 women (1.8%). Many rejected female applicants had qualifications equal or superior to men who were hired. A 4-year consent decree created a $475,000 settlement fund to be distributed to women rejected for truckdriver positions at the two facilities between January 1, 2005, and October 31, 2006, who meet criteria set out in the decree, and prohibits defendant from sex discrimination in hiring and from retaliation. Defendant is required to make a good faith effort to offer employment to female applicants for externally advertised driver openings at its Austell and Winder facilities at a level that reflects their representation in the qualified applicant pool each year. Defendant will report to EEOC annually on the number of qualified men and women in the driver applicant pool; the identity, sex, and qualifications of individuals offered driver positions or hired; the identity and qualifications of women who met the minimum qualifications for a driver position and were not hired, and a detailed explanation of the reasons; and the identity and sex of drivers laid off or involuntarily terminated.

In EEOC v. Preferred Labor, LLC, d/b/a Preferred People Staffing (D. Mass. July 6, 2009), EEOC alleged that a nationwide staffing firm providing temporary day labor in areas such as light industrial, construction, freight handling, and hospitality denied female applicants job referrals based on their sex and complied with sex-based discriminatory requests from clients. A woman applying at defendant's Worcester, Massachusetts' facility in May 2005 was told that only waitressing, dishwashing, and maid service jobs were available for women. A 5-year consent decree provides a claims fund of $250,000. Defendant will pay all costs associated with administering and distributing the fund, running English- and Spanish-language newsprint and radio advertisements, and making reasonable efforts to locate female applicants for whom defendant's contact information is out of date. Defendant has ceased conducting business as a temporary day labor agency, but if it resumes operations it will be enjoined from sex discrimination and retaliation.

(2) Discharge

In EEOC v. Schott North America, Inc. (M.D. Pa. June 12, 2009), EEOC alleged that a glass and optical products manufacturer laid off female employees in the Quality Assurance (QA) Department at its Duryea, Pennsylvania plant because of their sex. In the fall of 2004, defendant decided to reduce the number of QA jobs and create a new melting line operator position. Pursuant to an agreement with the union that represents the affected employees, defendant posted an announcement for 40 melting line operator jobs and made selections based on a "skill evaluation" rather than the seniority provisions in the collective bargaining agreement. Prior to the reorganization and reduction-in-force, QA jobs were either "hot end" (95.3% male) or "cold end" (76.6% female). Defendant developed a skills matrix that assessed hot-end jobs as requiring more skill than cold-end jobs. In scoring applicants on the matrix, defendant adjusted the scores of some men upward to give them credit for performing cold-end functions they had never performed, and gave woman with years of cold-end experience low cold end scores. Out of 95 applicants, a substantial number of them women, defendant selected only 4 women (2 for part-time positions) for melting line operator jobs. Under a 3-year consent decree, defendant paid $1,450,000 to 11 women who lost their jobs. The decree prohibits defendant from engaging in employment practices at its Duryea facility that discriminate or retaliate in violation of Title VII.

In EEOC v. Britthaven, Inc. (M.D.N.C. March 31, 2009), EEOC alleged that an operator of nursing and assisted living facilities in North Carolina, Virginia, and Kentucky implemented an unwritten policy requiring pregnant employees to provide a doctor's note certifying that they could work without restrictions, and discharged pregnant employees or forced them to take leave because of restrictions unrelated to their ability to do their jobs. During EEOC's investigation of a charge filed by an employee who was discharged from a certified nursing assistant job in March 2004 due to a 20-pound pregnancy-related lifting restriction, defendant's vice president of human resources said that it was defendant's policy at all facilities to require pregnant employees to obtain a doctor's note giving the employee a full release without restrictions. A 3-year consent decree provided $300,000 to 21 individuals and prohibits defendant from discrimination or retaliation under Title VII. Defendant will provide 12 former employees required to leave because of pregnancies with positive letters of reference stating that they are eligible for rehire. Defendant had revised its "Modified Duty Policy" in September 2005 to provide that pregnant employees are required to obtain medical clearances only if they request some form of light duty. Under the decree, defendant will further revise the policy to provide expressly that defendant is not permitted to ask employees who have suffered a nonwork-related temporary medical condition, including pregnancy, to provide a release to full duty from a health care provider unless they have notified defendant they are unable to perform their full job duties or the facility has documented evidence of an inability to perform their full job duties.

d. Sexual Harassment

In EEOC v. Taco Bell Corp. (W.D. Tenn. Aug. 27, 2009), EEOC alleged that a nationwide restaurant chain serving Mexican-style fast food subjected two 16-year-old female crewmembers at a Memphis-area restaurant to sexual harassment and constructively discharged them. On one crewmember's first day of work, April 22, 2006, the restaurant's 35-year-old general manager physically attacked her in a cooler, grabbing her breasts and genital area. He let her go and told her to meet him in the restroom in 5 minutes. The employee immediately left the restaurant and went home, and she and her mother reported the incident to the police the same day. The police arrested the manager at the restaurant on April 22, and he was later indicted on rape and sexual battery charges. EEOC initially filed suit only on the April 22 incident, but later learned that in September or October of 2005 the same manager had raped a different 16-year-old crewmember after forcing his way into her home on the pretence of delivering her paycheck. After giving defendant the opportunity to conciliate regarding this second individual (whom defendant had not disclosed during EEOC's investigation of the other crewmember's charge), EEOC added her to the suit. EEOC's suit resulted in a 2-year consent decree and total monetary relief of $350,000 to the two individuals.

In EEOC v. Fred Meyer Stores, Inc. (D. Ore. Dec. 8, 2008) , EEOC alleged that a national retail chain subjected female employees at its Oregon City, Oregon store to a sexually hostile work environment, and retaliated against an employee for complaining about the harassment. An operations manager who started at the store in October2004 frequently talked about sex, and engaged in unwelcome sexual advances toward a female customer service manager whom he supervised. The customer service manager complained to the human resources manager, but the harassment continued until the operations manager was transferred in April 2005. The store manager also made sexual comments to and in front of the customer service manager, mocked her for having complained about the operations manager, denied her request to transfer to another store, and said he would make her life "hell." The customer service manager was hospitalized for psychiatric treatment for anxiety in February 2006 due to defendant's conduct and was unable to return to work. Defendant paid $485,000 to three women ($285,000 to the customer service manager) under a 2-year consent decree, which enjoins defendant from engaging in sexual harassment and retaliation.

In EEOC v Wyndham Worldwide Corp. d/b/a WorldMark by Wyndham, formerly Trendwest Resorts (W.D. Wash. Oct. 20, 2008), EEOC alleged that a developer and marketer of a large vacation ownership program subjected male employees, a number of them teenagers, to a sexually hostile work environment at its Blaine, Washington resort. From at least the spring of 2005, the male resort manager made lewd and vulgar sexual comments to male employees, touched and groped their chests and buttocks, and required them to wear tight-fitting uniforms. Although a number of other managers were aware of the resort manager's conduct, and one male employee complained to his supervisor, defendant failed to take corrective action. The resort manager resigned in early January 2006 following defendant's receipt of a hotline complaint about him in late December. A 3-year consent decree provided $370,000 in monetary relief to affected male employees, and enjoins defendant from engaging in sex discrimination and retaliation.

In EEOC v. First Street Surgical Center, L.P., and First Surgical Partners, LLC (S.D. Tex. March 16, 2009), EEOC alleged that an outpatient surgery center in Bellaire, Texas and its general partner (which operates two other surgical centers) subjected female employees to a sexually hostile work environment and retaliated against employees for complaining about the harassment. Three female employees – two surgical technicians and a circulating nurse -- filed charges with EEOC regarding the conduct of a male supervisory nurse that included sexual advances, offensive sexual comments and jokes, and showing photographs of male genitalia. Defendants received complaints about the male nurse as early as July 2004 (before he was promoted to a supervisory position), but failed to take effective corrective action. The circulating nurse was discharged in May 2008, and defendants' director of nursing falsely reported to the Texas Board of Nursing that she had abandoned a patient during a surgical procedure. A 3-year consent decree provided $290,000 ($210,000 to the two surgical technicians and the circulating nurse) and enjoins defendants from sex discrimination and harassment. The male supervisory nurse is not eligible for rehire, and defendants will provide this information when responding to requests for employment references. The director of nursing will receive a disciplinary notice documenting that she failed to comply with defendant's policies on investigating complaints of harassment, gender bias, and retaliation. Defendants will send the Texas Board of Nursing a letter explaining that the director of nursing's letter to the Board about the circulating nurse was inaccurate and possibly retaliatory, and requesting that the complaint against the circulating nurse be withdrawn. Defendants will provide the two surgical technicians and circulating nurse with positive job references and letters expressing regret that they had any unpleasant experiences during their employment.

In EEOC v. Rome Research Corp. (D. N. Mar. I. Oct. 9, 2008), EEOC alleged that a provider of management and engineering services to the Department of Defense subjected a female electrical equipment operator at a broadcast transmitting station on Tinian in the Northern Mariana Islands to a sexually hostile work environment. Starting in about September 2004, the employee's male supervisor assigned her to work with him on the evening shift, a time when there were fewer employees around. The supervisor then began forcing the employee to have sexual intercourse with him at various locations throughout the worksite, and threatened to suspend or terminate her if she refused. Finally, a coworker to whom the employee had confided told the site manager that there was something sexual going on between the employee and the supervisor. When the site manager confronted the employee, she told him the supervisor had raped her several times and threatened to terminate her if she told anyone. Defendant told the employee to report the rapes to the police, conducted several investigations, and fired the supervisor in November 2005. A 3-year consent decree provided $205,000 to the female employee and enjoins defendant from engaging in or tolerating harassment on the basis of sex at its Tinian operations.

e. National Origin Discrimination

In EEOC v. B & H Foto & Electronics Corp. (S.D.N.Y. March 18, 2009), EEOC alleged that a New York City retailer of electronic and photographic equipment discriminated against Hispanic warehouse workers in pay, promotions, and the provision of health benefits. Defendant has two warehouses, one in Brooklyn and one in Manhattan, where it employs about 170 people. Hispanic warehouse workers were paid substantially less than non-Hispanic workers, starting when they were hired and continuing with lower and less frequent raises. In addition, in 2005 only 1 of 53 warehouse employees receiving health benefits was Hispanic, with Hispanics having to choose between such benefits and receiving a wage increase, while non-Hispanics workers received both benefits. Further, defendant had never promoted a Hispanic warehouse employee to a supervisory position. A 5-year consent decree, approved following a fairness hearing, provided $4.3 million (plus accrued interest from March 2008) in backpay and compensatory damages to 149 current and former Hispanic warehouse employees, and enjoins defendant from national origin discrimination and retaliation. Quarterly, defendant will provide EEOC with a spreadsheet on nonsupervisory warehouse workers containing individual information on national origin, position, pay, earnings, and promotions. Defendant was required to adjust its wage structure as of November 1, 2007, so that the average hourly rate for Hispanic nonsupervisory warehouse workers is equivalent to the average hourly rate of pay for non-Hispanic employees based on year of hire.

In EEOC v. Royalwood Care Center, LLC (C.D. Cal. April 13, 2009), EEOC alleged that related entities providing nursing home services at facilities in California and Texas prohibited Hispanic employees at their Fountain, California facility from speaking Spanish at work, and disciplined employees for speaking Spanish. In November 2001, defendants adopted an English-only policy, which was applied rigidly, regardless of whether patient care was involved. This prevented Hispanic employees with limited English proficiency from understanding their supervisors' instructions. Defendants fired a Hispanic employee in April 2002 for using Spanish to warn a coworker about a slippery floor. Hispanic employees were warned or disciplined for using English, even when no patients were present. Defendants changed the language policy in June 2004, and under a 3-year consent decree paid $180,000 to 53 individuals identified in the decree. Defendants also will make English language proficiency classes available to the 53 individuals (paying the costs of the classes directly to the provider), and will pay $2,500 to each person who successfully completes the class. Defendants will pay $1,000 to each of the 53 who expressly declines to take English language proficiency classes. The decree enjoins defendants from national origin discrimination and retaliation.

f. Religious Discrimination

(1) Terms and Conditions of Employment

In EEOC v. University of Phoenix, Inc., and Apollo Group, Inc. (D. Ariz. Nov. 7, 2008), EEOC alleged that a private university with locations in 29 states and its parent corporation engaged in religious discrimination against enrollment counselors in the university's Online Division who were not members of the Church of Jesus Christ of Latter Day Saints (LDS), including providing LDS employment counselors better leads on potential students than non-LDS counselors, promoting LDS counselors over more qualified non-LDS counselors, granting LDS counselors tuition waivers in circumstances in which such waivers were denied to non-LDS counselors, and disciplining non-LDS counselors for conduct that LDS counselors were permitted to engage in (making telephone calls related to outside work, returning late from lunch). EEOC also alleged that non-LDS counselors were transferred and discharged because of their religion or their complaints about religious discrimination. A 4-year consent decree provided $1,875,000 paid to 52 non-LDS individuals employed by defendants' Online Enrollment Department between January 1, 2001, and the effective date of the decree. Six non-LDS former counselors will receive letters of reference indicating, where applicable, satisfactory performance, and letters of apology. The decree permanently enjoins defendants from religious discrimination and retaliation.

(2) Reasonable Accommodation

In EEOC v. United Parcel Service, Inc. (D.N.J. Jan. 29, 2009), EEOC alleged that the worldwide package carrier failed to reasonably accommodate the religious beliefs of an applicant for a driver position, and refused to hire him because of his religion, Rastafarian. Following a 5-day trial, the jury returned a verdict for EEOC, awarding the applicant $10,000 in compensatory damages (the court dismissed EEOC's claim for punitive damages). The court determined backpay and awarded the applicant $2,000. Defendant's appearance guidelines prohibit beards in public contact positions, which include driver jobs. Members of the Rastafarian religion believe there are Biblical prohibitions to men cutting or combing their hair or shaving their beards. EEOC presented evidence that in November 2004, a member of the Rastafarian religion applied for a seasonal driver-helper position at defendant's Secaucus, New Jersey facility. The applicant was told about the no-beard policy, and explained that he could not shave due to his religion, but that he would trim his beard to try to comply with the policy. Defendant's hiring official told the applicant that he was not qualified for the driver-helper position because of his beard, but that he could apply for a position "in the back" in the warehouse. The warehouse position paid less than the driver helper job and did not involve customer contact. Defendant presented evidence that the applicant did not tell the hiring official that his refusal to shave his beard was for religious reasons, and that it offered him an inside position in the warehouse as a package handler.

In EEOC v. Gold'n Plump Poultry, Inc. (D. Minn. March 31, 2009), EEOC alleged that Gold'n Plump, a poultry processor, refused to reasonably accommodate the religious practices and observances of Muslim employees at its Cold Spring, Minnesota and Arcadia, Wisconsin facilities. Muslims are required to pray five times a day. Prayer times are determined by the position of the sun, and thus vary throughout the year. Each prayer takes 2-7 minutes. EEOC alleged that Gold'n Plump failed to accommodate its Muslim employees' prayer requirements and disciplined and discharged Muslim employees for praying at nonbreak times. EEOC also alleged that Gold'n Plump discharged employees for refusing to handle pork products (used by Gold'n Plump for one of its chicken products), conduct that would violate Muslim religious prohibitions. The Gold'n Plump suit was resolved through a 3-year consent decree that provided $215,000 to 128 individuals (Muslims employed at any time since September 1, 2005), and prohibits religious discrimination and retaliation. Gold'n Plump will add a 10-minute break, the time of which will vary throughout the year, to accommodate the daily Muslim prayer schedule. In a related suit, EEOC v. The Work Connection (D. Minn. March 31, 2009), EEOC alleged that a staffing agency that refers employees to Gold'n Plump required Muslim applicants to sign a form agreeing to handle pork products. The 2-year Work Connection decree provided $150,000 to 28 Muslim applicants denied positions at Gold'n Plump because of their refusal to handle pork products, and requires The Work Connection to offer the 28 applicants placement at Gold'n Plump's Cold Spring or Arcadia facilities as positions become available. The Work Connection is prohibited from religious discrimination and retaliation and from adopting or enforcing a client employer's policy requiring applicants or employees to disclaim their right to reasonable accommodation.

In EEOC v. Sierra Pacific Indus. (E.D. Cal. Dec. 24, 2008), EEOC alleged that a processor of forest products failed to reasonably accommodate the religious practices of an employee at its wood fencing manufacturing facility in Oroville, California and terminated him because of his religion. The employee began working for defendant in 2001 as a stacker operator. He later joined the Seventh Day Adventist Church, which prohibits secular work on the Sabbath (sunset Friday to sunset Saturday). Defendant required employees to rotate shifts every 4 months, and discharged the Seventh Day Adventist employee in June 2005 for refusing to work the evening shift, even though another employee was willing to switch with him and work the evening shift on a permanent basis. A 3-year consent decree required defendant to pay the employee $110,000 and reinstate him into a "Clean-Up/Relief 2" position at $16.98 an hour (about $3 an hour more than his previous rate) on the day shift, Monday through Friday, with no loss of seniority or benefits. Defendant is enjoined from religious discrimination and from failing to reasonably accommodate employees' religious beliefs and practices, and must accommodate the employee's religious practice of not working during his Sabbath,

In EEOC v. Southern Hills Medical Center (M.D. Tenn. April 27, 2009), EEOC alleged that a community hospital in Nashville, Tennessee failed to accommodate the religious beliefs of a Muslim employee and discharged and failed to rehire him due to his religion. In early November 2005, the employee, a medical technician who had worked for defendant since March 2003, submitted a written request to use accrued paid leave for a 3-week leave of absence beginning December 27 to make a pilgrimage (hajj) to Mecca with his family. Defendant denied the request, and told the employee he would have to resign and then reapply after he returned. The employee resigned, and when he reapplied on January 17, 2006, defendant refused to rehire him. The 2-year consent decree provided the employee $70,000 and enjoins defendant from refusing to reasonably accommodate the sincerely held religious beliefs of any employee. Defendant must amend its policy manual to include specific instructions for accommodating a sincerely held religious belief.

g. Mixed Title VII Bases

(1) Religion and National Origin

In EEOC v. Grand Central P'ship, Inc. (S.D.N.Y. Aug. 7, 2009), EEOC alleged that a not-for-profit corporation formed by businesses and property owners surrounding Grand Central Station in New York City to provide safety, sanitation, and maintenance services failed to reasonably accommodate the religious practices of four security officers; harassed, disciplined, and suspended the officers because of their religion and national origins; and retaliated against them for opposing religious discrimination and filing charges with EEOC. The four employees are members of the Rastafarian religion, and in adherence to its practices, wear their hair in dreadlocks and do not cut it. Two of them are Haitian, one is Jamaican, and one is Trinidadian. Defendant's personal appearance code requires security officers to have their hair "properly cut" and be "clean shaven," and its dress code includes uniform hats. The four employees asked to wear their dreadlocks free flowing down their backs, or tied behind their hats, because the dreadlocks did not fit comfortably under the uniform hats, causing the employees headaches and other physical symptoms, particularly in hot weather. Three of the employees submitted notes from their doctors about the medical problems. Defendant's public safety director denied the employees' accommodation requests. Defendant verbally reprimanded all of them for failing to fully tuck their dreadlocks into their uniform hats, and suspended one of them for a day in spring 2006 and the same employee and two others for a day in spring 2007. In retaliation for the employees' opposition to the religious discrimination, defendant assigned them to so-called "punishment posts" -- isolated posts where it is difficult to obtain immediate backup in an emergency -- with greater frequency than other security officers, and the frequency increased significantly after they filed EEOC charges and even more so after EEOC's suit was filed. A 2½-year consent decree provided $10,000 each in compensatory damages to the four employees, prohibits defendant from religious discrimination, including failing to provide a reasonable accommodation, and prohibits retaliation. Defendant will accommodate the four employees' religious beliefs and practices by allowing them to: (1) wear dreadlocks in a neat and tight ponytail centered behind the head tied with two defendant-issued hair bands, so that the uniform hat lies flat on the head, and (2) maintain neatly groomed beards.

In EEOC v. Merrill Lynch & Co., Inc. (S.D.N.Y. Jan. 6, 2009), EEOC alleged that an international financial services firm failed to promote and discharged an Iranian/Muslim employee because of his national origin and religion. The employee has a Ph.D. in theoretical physics and a master's degree in mathematical finance. In January 2002, defendant offered him a quantitative analyst position, which he accepted; however, when he began working a few months later, he was told his job title was not quantitative analyst but "senior programmer," and he was placed in a section ("models") that supported the quantitative analyst group. The employee's coworkers and managers made disparaging remarks about his religion and national origin, such as "Majid, how can we trust you? Maybe you read the Koran and get ideas," and "the reason you are not allowed on the trading floor is because you are from a country which has a high risk factor." Between November 2003 and June 2005, two employees from the models section were promoted to the quantitative analyst group, leaving the Iranian/Muslim employee and a consultant as the only employees in the models section. The consultant was hired into the quantitative analyst group in June 2005; the models section was eliminated the same month and the Iranian/Muslim employee was terminated. The 2-year consent decree provided the employee, who intervened in EEOC's lawsuit, with $1,550,000 ($713,333 as backpay, $356,667 in compensatory damages, and $480,000 in attorney's fees), and enjoins defendant from national origin (Iranian) and religious (Muslim) discrimination and from retaliation.

(2) Sexual Harassment and Religion

In EEOC v. James L. Orrington, D.M.D., LTD (N.D. Ill. Jan. 13, 2009) , EEOC alleged that a dental practice subjected female employees to a sexually hostile work environment and discharged female employees because of their sex; subjected employees to a religious hostile work environment; and retaliated against employees who opposed the discriminatory conduct. Defendant's male owner, a dentist in the practice, subjected female employees (mostly receptionists and dental assistants) to sexual advances and sexually offensive comments, gestures, and touching. One woman was discharged in October 2004 after rejecting the owner's advances and another resigned in February 2005 as a result of the owner's sexual conduct. The practice owner also required employees to engage in conduct related to the Scientology religion, such as daily prayers, reciting Scientology formulas, attending Scientology seminars, and watching Scientology videos. Defendant retaliated against employees who complained about sexual or religious harassment, or filed charges with EEOC, by discharging them; disciplining them, reducing their work hours, or otherwise adversely changing their terms and conditions of employment; and giving them negative employment references. A 3-year consent decree provided $462,500 to 18 individuals in amounts set forth in the decree. The decree enjoins defendant from sex and religious discrimination and retaliation. Defendant will engage an outside representative (identified in the decree) to independently investigate all complaints of sexual harassment, religious discrimination, and retaliation.

2. Title VII and the Equal Pay Act

In EEOC v. Adelphi University (E.D.N.Y. March 16, 2009), EEOC alleged that a private university with four locations in New York State paid its female full-time professors less than male full-time professors performing substantially equal work. Statistical evidence from the 2004-2005 school year showed that female professors were paid significantly less than male professors within all professorial ranks (assistant, associate, and full) and within disciplines. The same pattern of sex-based disparities was evident in 2005-2006 data. Defendant claimed that the disparities were due to market factors. A 3-year consent decree provided $305,889 to 37 individuals. In addition, 30 teachers will receive salary increases retroactive to September 1, 2008. The decree enjoins defendant from discriminating against female full-time professors because of their sex and, subject to the EPA affirmative defenses, from paying female full-time professors less than male full-time professors for performing substantially equal work. Annually, defendant will provide EEOC with information regarding salary and other information for full-time faculty members in a format that will enable EEOC to conduct analyses.

3. Title VII and the Age Discrimination in Employment Act

In EEOC v. Lone Star Steakhouse & Saloon, Inc. (D. N. Mex. Nov. 4, 2008), EEOC alleged a national restaurant chain refused to promote a 59-year-old female employee at an Albuquerque, New Mexico restaurant to management positions because of her sex and age, resulting in her constructive discharge. The employee worked for defendant from March 2004 until February 2006, first as a server and bartender and then as a shift leader. Throughout her employment, she attempted to participate in defendant's manager training program and to obtain a management position. Her district manager recommended her for the program, but she was never selected. Instead, younger men (ages 24, 32, 35, and 48), some much less qualified than she was, were accepted into the program in 2005. The employee's former general manager told her she did not get a manager position because of her age. The employee resigned because of her frustration at being denied selection for the manager training program while men younger than she was were continually being selected. A 16-month consent decree provided $100,000 in compensatory damages to the employee and enjoins defendant from age or sex discrimination and retaliation at any New Mexico facility.

4. Age Discrimination in Employment Act

a. Hiring

In EEOC v. Alpine Sch. Dist . (D. Utah Jan. 26, 2009), EEOC alleged that a school district denied two teachers, ages 50 and 59, positions at Geneva Elementary School in Orem, Utah because of their ages. During 2002 and 2003, the 50-year-old teacher overheard the Geneva principal expressing a preference for hiring younger teachers. The principal also provided younger teachers with more resources and better career opportunities. In March 2003, after the principal inquired about and learned the 50-year-old teacher's age from a member of the office staff, the teacher was told her provisional contract was not being renewed; she was replaced by a 23-year-old. During the 2002-2003 school year, a 59-year-old special education teacher asked the principal for reassignment to a regular teaching position because of the physical demands of her position. The school had four regular teaching positions open, but passed over the 59-year-old teacher and selected individuals in their 20s. The teacher ultimately transferred to another school and lost about $7,000 a year in "extended day" pay she had earned due to Geneva's longer schedule. She also had a 15-mile longer commute. Under a 2-year consent decree, the 50-year-old teacher received $85,000 and was placed in a teaching position with full seniority rights and benefits; the 59-year-old teacher received $50,000; and both teachers received written apologies from defendant's superintendent and positive employment references. The decree enjoins defendant from age discrimination and retaliation. The Geneva principal was demoted and counseled, and can no longer make decisions regarding discharge or hire.

In EEOC v. Allstate Ins. Co. (E.D. Mo. Sept. 14, 2009), EEOC alleged that a nationwide insurance company imposed a hiring moratorium that had a disparate impact on former sales agents age 40 and over. In November 1999, defendant announced a "Planning for the Future" reorganization program pursuant to which, effective June 30, 2000, it would terminate all of its remaining 6,200 sales agents and thereafter sell its products entirely through independent contractors (positions for which the former employee-agents were eligible). Defendant also implemented a policy prohibiting the rehire of any former employee-agent during the longer of 1 year after termination or the period during which the individual received severance benefits (a maximum of 2 years). Almost 95% of the former sales agents affected by the hiring moratorium were age 40 or older. A 3-year stipulated order provided $4.5 million (75% backpay and 25% interest) to 92 individuals in amounts determined by EEOC and set out in an exhibit to the order. The stipulated order requires that before adopting any policy limiting the reemployment rights of individuals affected by a reorganization or reduction-in-force, defendant will determine whether the policy has a disparate impact on individuals age 40 and older, using the standards in EEOC's Uniform Guidelines on Employee Selection Procedures, and will not implement a policy having a disparate impact without notifying EEOC and providing it with written reasons and an opportunity to meet and discuss the policy. Any new policy limiting individuals' reemployment rights must comply with the ADEA.

b. Discharge

In EEOC v. Nassau County Police Dep't and Nassau County (E.D.N.Y. April 29, 2009), EEOC alleged that Nassau County, New York and the county's police department (collectively "defendant") transferred four police officers out of defendant's marine bureau to patrol jobs in July 2006 because of their ages (60, 58, 55, and 53), constructively discharging two of them. The four officers had between 21 and 33 years working for the county; three had about 20 years in the marine bureau and the fourth had about 5 years. Defendant claimed that the moves were lateral transfers; however, marine bureau positions were considered more prestigious, and had more opportunities for overtime and night differential pay than other patrol officers. Defendant also claimed that each officer was transferred because of performance deficiencies, but the four officers had received numerous commendations, awards, and letters of appreciation during their careers and none previously had been disciplined or told of any performance deficiencies. Two of the officers felt compelled to retire rather than accept the transfers (pension calculations were based on an officer's final year's earnings), and two accepted the transfers. Within 3 months of transferring the four officers, defendant assigned 12 permanent and 3 seasonal employees to the marine bureau, all younger than the four officers. A 4-year consent decree provided $450,000 to the four officers and enjoins defendant from age discrimination in transfers and terminations. Within 30 days of preliminary approval of the consent decree (October 22, 2008), defendant was required to reinstate to the marine bureau the two officers who had remained employed.

In EEOC v. Nucletron Corp. (D. Md. Nov. 5, 2007), EEOC alleged that a Netherlands-based manufacturer of medical equipment discharged a 61-year-old employee and refused to consider him for other positions because of his age. EEOC also alleged that defendant violated the retaliation provisions of the ADEA, EPA, and Title VII by using a severance agreement that conditioned benefits on a promise not to file an employment discrimination charge. The employee's director of sales position was eliminated in December 2005, and around the same time defendant filled two similar positions with individuals aged 52 and 46. Defendant's president had commented about defendant's "older" sales force, and its executive board chairman had told a former president that he wanted "young and aggressive" applicants and directed the president not to use the term "seasoned" in a job announcement because it would elicit older applicants. A 3-year consent decree provided $295,000 to the discharged employee and enjoins defendant from ADEA violations. The decree also permanently prohibits defendant from offering or enforcing any severance agreement or other contract that prohibits the filing of administrative charges, complaints, or reports of discrimination under the statutes enforced by EEOC, or prohibits participation in related proceedings.

In EEOC v. Qualex, Inc. (D. Conn. March 19, 2009), EEOC alleged that a photo processor terminated employees age 40 and older from the film processing/photo finishing laboratory at its East Hartford, Connecticut facility during a January 2004 reduction-in-force (RIF) because of their ages. Thirteen of the 16 employees laid off in the RIF were over 40 years of age; the average age of the 16 employees terminated was 52, and the average age of the 23 employees retained was 38. Layoff decisions were based in part on ratings conducted by supervisors in preparation for the RIF. A number of employees over age 50, all under the same supervisor, received ratings for the RIF that were much lower than their most recent performance ratings. Some employees age 40 and older who were laid off had higher RIF scores than much younger employees who were retained. A 3-year consent decree provided $272,000 to four individuals and enjoins defendant from engaging in age discrimination and from violating the Older Workers Benefit Protection Act in seeking waivers under the ADEA. Defendant will provide EEOC with advance copies of waivers which seek releases of rights under the ADEA in connection with exit termination programs.

5. Americans with Disabilities Act

a. Terms and Conditions of Employment

In EEOC v. United Airlines, Inc. (N.D. Cal. March 13, 2009), EEOC alleged that an airline's policy at San Francisco International Airport prohibiting employees on light or limited duty from working overtime violated the ADA. From at least 1997 to December 2003, defendant had a policy applicable to various job classifications that prohibited employees on light duty from working overtime. In December 2002, defendant filed for Chapter 11 reorganization under the Bankruptcy Code. Pursuant to a 2-year consent decree, EEOC will be allowed a general noncontingent unsecured prepetition claim against the bankruptcy estate in the amount of $850,000. Individuals eligible for monetary relief are current and former employees who can demonstrate that during the period January 2, 1998, to December 31, 2003, they were disabled within the meaning of the ADA, had work restrictions that did not preclude overtime work, and were available to work overtime but were denied the opportunity. Job classifications covered are mechanic, storekeeper, food service, ramp service, airfreight, airframe, and cargo. The decree prohibits defendant from discrimination on the basis of disability regarding eligibility for overtime work.

b. Medical Inquiries

In EEOC v. Delphi Corp. (W.D.N.Y. May 18, 2009), EEOC alleged that a worldwide manufacturer and supplier of mobile electronics and transportation systems made medical inquiries of employees that were not job related and consistent with business necessity, and discharged an employee in retaliation for his objections to an unlawful medical inquiry. A temporary laborer at defendant's Rochester, New York manufacturing plant called in sick on 2 days in August 2006, and returned the third day with a doctor's note verifying that he had been unable to work due to illness on the 2 days he was out. Defendant's labor relations department asked him to complete a medical release and authorization form so it could obtain information from his doctor about his medical condition. The employee refused to sign the form, stating that he believed inquiry into his medical condition was unlawful. Defendant told him it was its policy to check all doctors' notes to verify that the reasons for absences were acceptable. Defendant fired the employee the next day for being an "unsatisfactory temporary employee." A 2-year consent decree applicable to all of defendant's manufacturing facilities in the United States provided $80,000 to the discharged employee and enjoins defendant from making disability-related inquiries of employees for purposes inconsistent with the ADA. Defendant will remove from all records relating to six employees named in an attachment to the decree any discipline taken due to the employee's failure to comply with a request to release medical information to substantiate an absence due to a nonjob-related illness or injury.

c. Reasonable Accommodation

In EEOC v. Sears, Roebuck and Co. (N.D. Ill. Sept. 29, 2009), EEOC alleged that a national general merchandise retailer violated the ADA by maintaining an inflexible worker's compensation leave policy pursuant to which it automatically terminated employees at the end of one year of leave without considering reasonable accommodations for disabled employees such as an extension of the leave or return to work in an available position for which the employee was qualified with or without an accommodation. A 3-year consent decree established a $6.2 million settlement fund to be distributed by EEOC in accordance with criteria set out in the decree; enjoins defendant from discriminating on the basis of disability by not providing reasonable accommodations to individuals desiring to return to work from worker's compensation leaves of absence; and prohibits retaliation. During the decree, defendant will maintain a record of its attempts to accommodate employees who have been on a leave of absence due to a worker's compensation injury for the period beginning 45 days prior to the expiration of defendant's maximum leave period, and will report to EEOC every 6 months on the accommodation efforts it has made.

In EEOC v. Elan Nutrition, Inc. (W.D. Mich. Feb. 18, 2009), EEOC alleged that a manufacturer of nutritional bars failed to accommodate an employee's disability and discharged her because of her disability. The employee was hired in 1994 and from 1998 worked as a quality control technician. She had arthritis which was complicated by an old fracture in her left ankle. Beginning in about 2004, her arthritis became more severe and progressed to the point where she could not stand or walk for more than 15 minutes. She took FMLA leave in February 2006, and when attempting to return to work in April 2006, gave defendant's human resources manager a doctor's note stating that she "may not walk or stand at her job. A sit down job is required." The human resources manager discharged the employee on April 24, 2006, telling her there were no sitdown jobs available and denying her request to use a motorized wheelchair or scooter, which she believed would have permitted her to perform the quality control technician job. A 3-year consent decree provided $165,000 to the discharged employee and enjoins defendant from disability discrimination and retaliation.

d. Discharge

In EEOC v. Burlington Northern & Santa Fe Ry. Co. (W.D. Tenn. July 21, 2009), EEOC alleged that a railroad discharged a employee because of his record of a disability and because it regarded him as substantially limited in walking. The employee had worked as a conductor at defendant's Memphis, Tennessee facility for about 2 years when in March 2003 he had a motorcycle accident that resulted in the amputation of his right leg below the knee. His doctor released him in January 2004 to work full duty with no restrictions, but defendant said he could not do the walking required by the job, both because of the distances involved (up to 10 miles a day) and the uneven grading around the tracks. Defendant said the employee would not be able to sense where his prosthesis was and thus could fall, posing a direct threat to the safety of himself and others. The case was resolved through an agreement that the employee would accept the position of hub gate supervisor in Memphis in lieu of reinstatement as a conductor. Defendant will pay the employee $130,000 in compensatory damages.

In EEOC v. The St. Louis Rams P'ship (E.D. Mo. Aug. 20, 2009), EEOC alleged that the St. Louis Rams professional football team and related defendants terminated an assistant athletic trainer for the Rams because of his epilepsy (caused by a head injury in 1983). Throughout his 11 years with the team, the trainer suffered occasional petite mal seizures at work, characterized by brief staring episodes with no speech or activity, after which he rested his head on his desk and then was able to resume work. The trainer had brain surgery in 2003 which mostly controlled his seizures, but he still required medication for his epilepsy, and medication to control the side effects of the epilepsy medication. In June 2006, the Rams' president told the trainer he believed the trainer's epilepsy created the possibility of a direct threat to the trainer's and his coworkers' safety, that the trainer was a "medical liability," and that the Rams would not be renewing his contract. The trainer's primary care physician, who also was the Rams' team physician, had found the trainer in good health in his most recent physical examination (July 2005), and had not told anyone in Rams' management that the trainer posed a threat to himself or others. Under a 3-year consent decree, the Rams paid the trainer $100,000 in compensatory damages and will engage him as a consultant on a nonexclusive 2-year agreement at a salary of $17,000 per year as a rehabilitation specialist. The decree prohibits the Rams from discriminating against its employees on the basis of disability.

In EEOC v. Swissôtel Employment Services L.L.C. and Swissôtel Chicago, Inc. (N.D. Ill. June 30, 2009), EEOC alleged that defendants subjected an employee at Swissôtel in downtown Chicago to a hostile work environment and terminated him due to his mental impairment. The employee has an I.Q. of 62 and is substantially limited in learning. Defendants hired him as a steward in April 2003 and he performed his duties (floor cleaning and dishwashing) well. However, the assistant to the executive steward regularly called the employee a "retard," swore at him, and threatened to have him fired. The employee complained to human resources in December 2004 and March 2005, but no corrective action was taken. When Swissôtel promoted the assistant to executive steward in April 2005, his hostile conduct toward the employee escalated. The executive steward twice scheduled the employee for back-to-back shifts; on the second occasion, the employee was found asleep in the washroom and discharged for sleeping on the job. The executive steward did not require other employees to work similar schedules. Under a 2-year consent decree, Swissôtel Employment Services will pay the discharged employee $90,000 ($30,000 in lost wages and benefits and $60,000 in compensatory damages). The decree enjoins Swissôtel Employment Services from engaging in disability discrimination, including harassment, and from retaliation.

In EEOC v. Chesapeake Academy, Inc. (D. Md. Sept. 23, 2009), EEOC alleged that a private elementary school in suburban Maryland with about 320 students terminated a second grade teacher because he was HIV-positive. In December 2005, during his third year with defendant, the teacher was diagnosed with the Human Immunodeficiency Virus. He told the school's headmaster about the diagnosis and said he could not resume teaching for about a month. In January 2006, defendant was notified that the teacher would be out for at least 4 more weeks. Defendant hired a teacher to replace him for the rest of the school year, but told the teacher that although the replacement was a permanent hire, defendant would find something for the teacher to do. In May 2006, the teacher was informed by letter that his contract would not be renewed because "[t]he school has determined that you are not fully committed to the school and to teaching here." The teacher had told defendant he would be released by his doctor on March 30, 2006, to resume teaching, and he obtained the release on that date. A 1-year consent decree provided $79,500 in compensatory damages to the discharged teacher and enjoins defendant from discriminating against any individual with HIV/AIDS.

In EEOC v. Extra Space Management, Inc. (D. Md. May 27, 2009), EEOC alleged that a nationwide operator of storage facilities discharged a maintenance worker at its Gaithersburg, Maryland location because it regarded him as substantially limited in working due to face and hand disfigurements caused by burns suffered in a house fire. The employee began working for defendant in June 2006. When defendant's acting district manager met him in late September 2006, he told the facility manager that the employee "was handicapped, deformed or something and it's clear he can't get the job done. I will need to contact [human resources]." The employee was discharged a month later for alleged unsatisfactory performance and absenteeism. A 2-year consent decree applicable to all 15 stores in the district provided $95,000 to the discharged employee and enjoins defendant from disability discrimination.

6. Retaliation (all statutes)

In EEOC v. DP Mainstream, L.P. fna Duke Energy Field Services, L.L.P. (D. Me. Feb. 2, 2009) , EEOC alleged that a distributor of natural gas, subjected an African American employee to a racially hostile work environment and discharged him because of his race and his complaints about racial harassment. Following a 7-day trial, the jury returned a verdict for defendant on the race discrimination claims, but for EEOC on the retaliation claim. The discharged employee was awarded $35,000 in compensatory damages and $52,250 in backpay. The African American employee began working at defendant's Auburn , Maine propane distribution facility in a temporary position in October 2003. He was made a permanent employee in August 2004, with the title of propane operator II. EEOC presented evidence that the African American employee was subjected to racial slurs by a white coworker throughout his employment, and that he complained to management about the coworker and about a customer's truckdriver's use of a racial slur. Defendant discharged the African American employee in December 2005, claiming that he violated a safety rule by leaving a truck unattended while it was being loaded with propane. EEOC presented evidence that other employees, including the harassing coworker, had engaged in the same or similar conduct and were not disciplined or terminated.

In EEOC v. Lake Ridge Acad. (N.D. Ohio Nov. 7, 2008), EEOC alleged that a private school for grades K-12 located in North Ridgeville, Ohio violated the retaliation provisions of the Equal Pay Act and Title VII by discharging the head of the school's lower division (grades K-5) because he opposed sex discrimination in teachers' salaries. The discharged employee intervened with state law claims. Following a week-long trial, the jury returned a verdict for plaintiffs, awarding the discharged employee $50,000 in backpay, $50,000 in frontpay, and $500,000 in compensatory damages. While the jury was deliberating on punitive damages, the parties settled the entire case for $950,000, which included $40,000 in costs to EEOC. At trial, plaintiffs presented evidence that in 2005, the employee was appointed by the head of the school to chair a self-study committee established to help the school prepare for an upcoming accreditation review. The employee was the most senior of the school's three division heads, and his performance evaluations from the head of the school and her predecessor had always been positive. The school's self-study included an examination of pay equity, and on three occasions in the fall of 2005, the employee told the head of the school that committee members had concerns about gender and pay equity. The head of the school was unresponsive, and on December 7, 2005, the employee sent her an email asking if males were being paid more than females and requesting information on salaries. On January 5, 2006, the head of the school told the employee defendant was not going to renew his contract because the school was restructuring and his job was being eliminated. Defendant argued at trial that the employee's conduct did not constitute protected activity because he did not oppose gender discrimination in pay, but merely asked whether it existed, and because his statements were made as part of an internal investigation. Defendant also argued that members of school's board of directors agreed with the decision not to renew the employee's contract without knowing that he had inquired into alleged gender pay disparity.

In EEOC v. Tri-State Plumbing, Heating & Air Conditioning Contractors, Inc., and United Ass'n of Plumbers, Pipefitters, and Sprinklerfitters, Plumbers Local Union No. 17 (W.D. Tenn. Nov. 19, 2008), EEOC alleged that a construction contractor subjected African American employees (plumbers, apprentice plumbers, and laborers) working at the FedEx Forum construction site in Memphis during 2003 and 2004 to a racially hostile work environment and discriminatory terms and conditions of employment, and laid off several employees for complaining of race discrimination. The suit also alleged that a local plumber's union failed to represent African American members because of their race, and denied them referrals because of their race and their complaints of racial discrimination by the contractor. Portable toilets at the worksite displayed racist graffiti, and supervisors who used the toilets did nothing to remove the offensive material or identify the individuals responsible for it. In addition, African American employees were assigned more difficult and dangerous job tasks than white employees, were denied the same opportunity to work overtime, and had their breaks more strictly enforced. Shortly after the union's business manager wrote to the contractor's owner in May 2004 about complaints of race discrimination by African American members, a supervisor told African American employees that the owner wanted to "run their assess off the job for complaining." All of the contractor's African American employees at the worksite were laid off in June and August 2004, while less qualified individuals who had not complained of race discrimination were retained or hired. The union's business manager told the African American employees there was no work, while union members who had not been out of work as long as the African Americans but who had not complained of race discrimination were being referred to jobs. A 3-year consent decree provided for a payment by the contractor and union of $360,000 to 13 individuals. The decree enjoins the contractor and union from race discrimination against employees or members. The contractor will report to EEOC every 6 months on the identity, race, and location of hires, and the union will report on referrals.

In EEOC v. Verizon Pennsylvania, Inc. (E.D. Pa. Sept. 29, 2009), EEOC alleged that a provider of telephone, computer, and wireless services retaliated against a female employee for complaining of sexual harassment by harassing and terminating her. The employee had worked as a service technician at defendant's Bryn Mawr, Pennsylvania facility since 1994, repairing and maintaining telephones and equipment; she was the only female service technician at the location. The female employee was exposed to displays of sexually explicit graffiti and pornographic magazines at the facility and in company vehicles. She complained frequently about the sexually offensive materials, but they continued to appear. In September 2006, the employee reported that her supervisor had placed his hand on her buttocks, and she filed a formal sexual harassment complaint. She subsequently was subjected to hostile and sometimes threatening conduct by the supervisor she had reported and other male employees. This included the hanging of a large plastic rat in the area where service technicians were stationed. Graffiti was directed at the employee warning her to "stop telling on everybody" and referring to her as a "rat," and coworkers stopped talking to her. The employee complained to two supervisors about retaliatory comments by the supervisor she had reported, but nothing was done. On February 28, 2007, the employee was discharged after being wrongfully accused of stealing two cups of rock salt. She received $300,000 through EEOC's settlement of the case.

In EEOC v. Maverick Tube Corp. (S.D. Tex. May 14, 2009), EEOC alleged that a manufacturer of tubular products for the energy industry terminated a black employee at its Conroe, Texas facility in retaliation for reporting a manager's racially offensive comments. In April 2005, the employee, an inspector, complained to defendant's president about a safety manager's comments to a group of African American employees regarding their lack of education and their resulting personal responsibility for the high rates of HIV/AIDS infection experienced by African Americans. The safety manager was discharged as a result of the employee's complaints. About 2 weeks after the safety manager's discharge, the employee's supervisor denied his request for a day off. The employee allegedly alluded to his involvement in the termination of the safety manager and mentioned getting defendant's president involved. After a cursory investigation, defendant's regional human resources manager accused the employee of threatening to get his supervisor fired if his request for a day off was not granted, and discharged him for threatening a supervisor and insubordination. A 4-year consent decree provided the discharged employee $175,000 and enjoins defendant from retaliation. Defendant's regional human resources manager will be given training on conducting appropriate investigations under Title VII and will be issued a disciplinary notice stating that he failed to comply with defendant's policies on investigating complaints of inappropriate conduct.

In EEOC v. Basic Energy Services, L.P. (W.D. La. March 6, 2009), EEOC alleged that a provider of services to oil field operations in several Southwest and Rocky Mountain States denied a female employee promotions because of her sex, subjected her to sexual harassment, and terminated her in retaliation for her complaints about sexual harassment. The employee was hired as a field worker at defendant's Sibley, Louisiana facility in March 2006, and when her supervisor resigned in August 2006, she was assigned his duties. Local management recommended her for promotion, but when she inquired about the promotion in September, a field manager told her that a headquarters manager had said, "there is no such thing as a female supervisor." Starting in October 2006, the male yard manager began subjecting the female employee to comments about her body, and to sexual advances and propositions. The employee filed an EEOC charge in October 2006 about the promotion denial, and in January 2007 complained to a manager about the yard manager's sexually offensive conduct. Defendant investigated her sexual harassment complaint and concluded that her allegations could not be confirmed. A few weeks later, the female employee was investigated after a male employee alleged that she was "gunning for him" by making false accusations about his performance. He also accused her of having romantic relationships with supervisors and of sexual harassment. Defendant discharged the female employee on March 26, 2007, ostensibly for violating its sexual harassment policy. A 3-year consent decree provided $250,000 to the discharged employee and enjoins defendant from sex discrimination. Defendant will provide the discharged employee with a favorable letter of reference.

C. Appellate Court Litigation

The Office of General Counsel's appellate litigation program is the agency's primary vehicle of law development. Practicing before the federal courts of appeals, in the Supreme Court in conjunction with the Solicitor General's Office of the Department of Justice, and on occasion in federal district courts and state courts, OGC appellate attorneys handle Commission cases on appeal and, as approved by the Commission, appear as amicus curiae in private actions. Handling Commission cases involves review of the record of proceedings below and, in cases where the Commission lost below, advancing an independent analysis of the likelihood of success on appeal in a recommendation to the General Counsel. This year appellate lawyers prepared 27 briefs on appeal in Commission cases. Appellate also reviewed more than 2,000 district court decisions in private lawsuits filed under EEOC's statutes and prepared recommendations approved by the Commission for participation as amicus curiae in 22 cases raising novel or important issues under the statutes. In this section of the Annual Report, OGC highlights significant appellate cases decided or briefed during fiscal year 2009.

1. Requirements for Private Actions

Duron v. Albertson's LLC , 560 F.3d 288 (5th Cir. Feb. 17, 2009)

This case involved the type of evidence required to rebut a presumption—known as the "mailbox rule"—that a charging party received a notice of right to sue within a reasonable time after it was mailed. The plaintiff filed suit within 90 days of obtaining (through her attorney's efforts) a notice of right to sue letter from EEOC, but almost 2 years after the "date mailed" indication on the letter. In response to the defendant's argument that her suit was untimely, the plaintiff submitted a sworn affidavit stating that she had never received the notice of right to sue. The district court rejected the declaration as "self-serving," held that the plaintiff failed to rebut the presumption that she received the notice of right to sue in the mail in due course, and dismissed her suit as untimely. EEOC argued as amicus curiae that a plaintiff's sworn testimony that she did not receive an EEOC notice of right to sue is sufficient to defeat a presumption to the contrary. The Fifth Circuit agreed that the evidence precluded application of the mailbox rule in this case, and reversed the award of summary judgment.

2. Coverage and Immunity

Sandoval v. American Building Maintenance, Inc. , 578 F.3d 787 (8th Cir. Aug. 26, 2009)

This case involved the proper test for holding a parent company liable as an employer for sexual harassment of its wholly-owned subsidiary corporation's employees. Plaintiffs—a group of female janitors—sued the parent company (ABMI) of their immediate employer for sexual harassment under Title VII, alleging that the parent and subsidiary were an integrated enterprise and could both be held liable for the harassment. The district court decided that the parent could not be held liable, applying a strong presumption that a parent may is not liable for its subsidiary's actions except in extraordinary circumstances.

EEOC argued as amicus curiae that the district court erred in failing to apply the well established four-factor integrated enterprise test adopted by the Eighth Circuit more than 30 years ago in Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977). EEOC explained that the test originated in cases under the National Labor Relations Act and that since Title VII's definition of employer was modeled on the NLRA, it makes sense that most courts have applied the same test under Title VII. EEOC emphasized that the Agency has endorsed this test in administrative guidance, and that Congress expressly codified it as the test for extending coverage of the ADEA, Title VII, and the ADA to foreign subsidiaries of U.S. corporations. EEOC then argued that the evidence shows that ABMI exerted centralized corporate control of labor and human resources and thus should be viewed as plaintiffs' employer under a proper application of the integrated enterprise test. EEOC suggested that the Eighth Circuit's recent decision in Brown v. Fred's, Inc., 494 F.3d 736 (8th Cir. 2007), which held that a parent can be considered the employer of its subsidiary's employees only if the parent dominates the subsidiary's operations, can be reconciled with its earlier (correct) decision in Baker by viewing the traditional four-factor integrated enterprise standard as the means by which corporate dominance over a subsidiary's operations can be demonstrated.

The Eighth Circuit agreed with the Commission, and held that the Baker four-factor analysis applied and that under that analysis, a jury could find that ABMI and its subsidiary are an integrated enterprise and should be treated as a single employer for purposes of Title VII liability. The court thus reversed the dismissal of ABMI.

State of Alaska v. EEOC , 564 F.3d 1062 (9th Cir. May 1, 2009) (en banc)

Two employees in the Alaska Governor's office filed charges alleging race and sex discrimination and retaliation that EEOC classified as complaints under the Government Employee Rights Act of 1991 (GERA) and assigned to an administrative law judge for a hearing. Before the hearing, Alaska asked the ALJ to dismiss the complaints on the ground that GERA did not validly abrogate the states' Eleventh Amendment immunity from court suits and adjudicatory administrative hearings. The ALJ and EEOC denied Alaska's motion and Alaska petitioned the Ninth Circuit for review. In November 2007, a divided panel ruled that Congress did not validly abrogate state sovereign immunity in GERA, but on en banc review the Ninth Circuit denied Alaska's petition and remanded the case to EEOC for further proceedings. The majority ruled that Congress had abrogated state sovereign immunity in GERA, and that it had the authority to do so because the employees' claims stated potential violations of the Fourteenth Amendment, which (under section 5 of the Amendment) Congress can enforce by appropriate legislation.

EEOC v. Board of Supervisors for University of Louisiana System , 539 F.3d 270 (5th Cir. Feb. 9, 2009)

In this ADEA action, the defendant, a state university, appealed from a district court order rejecting its Eleventh Amendment sovereign immunity defense. On appeal, the Commission argued that although the Eleventh Amendment protects a state from private suits for damages without its consent, the Federal Government can bring suit against a state to enforce compliance with Federal law. EEOC is the Federal Agency charged by Congress to enforce the ADEA, and it has long been settled that the prohibitions of the ADEA extend to state employers. Accordingly, the Eleventh Amendment poses no obstacle to the Commission's suit against a state university seeking instatement and monetary relief for a former teacher who the Commission alleged was denied positions in retaliation for prior ADEA suits or because of his age. The Supreme Court has consistently recognized that Eleventh Amendment immunity does not extend to the Federal Government (University of Alabama v. Garrett, 531 U.S. 356 (1987); Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)), and nothing in Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000), barring private ADEA claims against states, alters that rule.

The Fifth Circuit affirmed the district court's decision that the University of Louisiana is not entitled to Eleventh Amendment immunity from an ADEA suit brought by EEOC. The opinion closely tracked the arguments made in EEOC's brief as appellee, and states that "it is well-established that sovereign immunity under the Eleventh Amendment operates only to protect States from private lawsuits—not from lawsuits by the federal government."

In rejecting the university's contention that EEOC was circumventing the Eleventh Amendment in seeking make-whole relief on behalf of the former teacher -- who would be barred from suing the university personally for such relief -- the court noted that the Supreme Court, in EEOC v. Waffle House, Inc., 534 U.S. 279, 291-92 (2002), "recognized that the EEOC plays an independent public interest role that allows it to seek victim-specific relief—even when such relief could not be pursued by the employee because the claims were subject to a mandatory arbitration agreement." Quoting Waffle House, the Fifth Circuit stated: "'It is the public agency's province—not that of the court—to determine whether public resources should be committed to the recovery of victim-specific relief. And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum.'"

3. EEOC's Investigative Authority

EEOC v. Watkins Motor Lines, Inc. , 553 F.3d 593 (7th Cir. Jan. 23, 2009)

This subpoena enforcement action involved EEOC's authority to deny a charging party's request to withdraw a charge and continue its investigation of an allegation that the employer had a discriminatory policy of denying employment to individuals with a record of a criminal conviction. The district court had treated the discrimination charge as withdrawn even though EEOC, exercising its discretion under the Agency's regulations, had not consented to the withdrawal. Accordingly, the district court held that it lacked subject matter jurisdiction to enforce EEOC's subpoena. On appeal, EEOC argued that the district court had no authority to review EEOC's decision refusing to allow the charging party to withdraw his charge. EEOC also argued that even if its decision were reviewable, the decision reflected an appropriate exercise of the Agency's discretion.

The Seventh Circuit reversed and remanded with instructions to the district court to enforce the subpoena. The court of appeals said: "A district court's belief that the EEOC should not have investigated or sued does not detract from the fact that it did ask the court to enforce its subpoena. A statute authorizes the court to adjudicate this request. That's all subject-matter jurisdiction entails." The Seventh Circuit added that EEOC had not acted arbitrarily in refusing to consent to the withdrawal request. "The agency does not commit a legal error, or act arbitrarily," the court said, "by concluding that it will 'defeat the purposes of Title VII' for the settlement of a single applicant's claim to wipe out a pattern-or-practice investigation. The agency is entitled to vindicate the interests of all employees and applicants."

4. Arbitration

14 Penn Plaza LLC v. Pyett , 129 S. Ct. 1456 (April 1, 2009)

This Supreme Court decision addressed the long-open question of the enforceability of union-negotiated agreements requiring members to arbitrate employment discrimination claims, and held that agreements to arbitrate ADEA claims are enforceable. Plaintiffs worked at 14 Penn Plaza as night lobby watchmen and in similar capacities. In August 2003, 14 Penn Plaza contracted with a firm to provide security services and the plaintiffs were reassigned to work in less desirable jobs as night porters and light duty cleaners. The collective bargaining agreement (CBA) between the plaintiffs' union and 14 Penn Plaza provides that all discrimination claims are subject to grievance and arbitration procedures in the CBA as an exclusive remedy. The plaintiffs filed a grievance with their union, but the union refused to arbitrate their age discrimination complaints on the ground that it had acquiesced in the decision to contract out the plaintiffs' night security jobs and could not now claim that plaintiffs' reassignments were discriminatory. The plaintiffs sued in federal court, alleging that their transfers violated the ADEA. 14 Penn Plaza filed a motion to dismiss or, in the alternative, to compel arbitration. The district court denied the motion, and the Second Circuit affirmed, holding that arbitration agreements contained in a CBA which waive employees' rights to a judicial forum with respect to statutory claims are unenforceable.

EEOC joined an amicus curiae brief filed by the Solicitor General urging the Court to affirm the Second Circuit's decision and hold that such union-negotiated waivers are unenforceable under Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), and its progeny. In a 5-4 decision, the Supreme Court ruled that a clause in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate statutory antidiscrimination claims is enforceable. The majority rejected the Government's position, saying that it had already squarely held in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), that there is no evidence from either the ADEA's text or legislative history that Congress intended to preclude arbitration of ADEA claims. The Court also reasoned that nothing in the Gardner-Denver lines of cases precluded enforcement of the union-negotiated waiver, because in Gardner-Denver the Court held merely that "'the federal policy favoring arbitration does not establish that an arbitrator's resolution of a contractual claim is dispositive of a statutory claim under Title VII.'" That reasoning does not control the outcome where, as in the present case, the CBA's arbitration provision expressly covers "both statutory and contractual discrimination claims." Consequently, there was no legal basis to strike down an arbitration clause that "was freely negotiated by the Union and [management], and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this appeal." The Court remanded the case for further proceedings on the issue of whether the particular waiver here prevented union members from effectively vindicating their statutory antidiscrimination rights in an arbitral forum, as they had contended (because their union refused to arbitrate on their behalf).

Kravar v. Triangle Services, Inc. , No. 09-2332 (2d Cir.), brief as amicus curiae filed Sept. 17, 2009

Plaintiff Eva Kravar worked for Triangle Services and was subject to a collective bargaining agreement (CBA) between the Realty Advisory Board—representing Triangle and other employers—and a local of the Service Employees International Union. The CBA is the same agreement at issue in 14 Penn Plaza (see immediately preceding case) and it prohibits discrimination against employees because of disability, among other bases, and provides that any claim of discrimination shall be subject to the CBA's arbitration procedures "as the sole and exclusive remedy for violations." Kravar filed a formal complaint with the union challenging, on the ground of disability discrimination, her removal from daytime work, and she told a union official she wished to arbitrate her disability complaint. Kravar said that the union official "laughed" at her request and told her she could not go to arbitration because the union would most likely dismiss her complaint. The union apparently told Triangle that Kravar's complaint had been dismissed, but neither the union nor Triangle ever informed Kravar of the status of her grievance. Kravar filed a charge with EEOC and then filed this lawsuit under the ADA.

The district court denied Triangle's motion to dismiss or to compel arbitration. The court addressed the issue the Supreme Court had left unresolved in 14 Penn Plaza as to whether this CBA prevents union members from effectively vindicating their statutory rights. The court found that the Union controlled employee access to arbitration, and that therefore Kravar and other union members could not effectively vindicate their federally-protected rights under the CBA.

On appeal, EEOC argued as amicus curiae that the district court properly refused to compel Kravar to arbitrate her ADA claims because the arbitration provisions of this CBA constitute a substantive waiver of federally-protected rights. The CBA provides that arbitration is the sole and exclusive remedy for discrimination claims of individual employees, but provides no means for an employee to invoke arbitration except through the union, while giving the union discretion whether to refer a particular member complaint for arbitration. EEOC also argued that the arbitration provision of the CBA would be unenforceable in any event because a number of specific CBA provisions deprive discrimination claimants of important rights and remedies to which they are otherwise entitled under the ADA, including a neutral arbitrator, attorney's fees for a prevailing employee, and reasonable time limits to file a discrimination claim under the CBA.

5. Relief Issues

EEOC v. Siouxland Oral Maxillofacial Surgery Associates, L.L.P. , 578 F.3d 921 (8th Cir. Aug. 27, 2009)

EEOC won a jury trial in a pregnancy discrimination suit, but appealed the district court's dismissal of its punitive damages claim and the court's denial of injunctive relief. Defendant appealed the award of attorney's fees to intervenors. The Eighth Circuit reversed the district court's decision on punitive damages, affirmed the district court's denial of injunctive relief, and remanded for further proceedings on the district court's award of attorney's fees to the intervenors. The court first observed that under the Supreme Court's decision in Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999), punitive damages are available in a Title VII case where a plaintiff shows that the employer engaged in intentional discrimination with malice or with reckless indifference to the federally protected rights of the victim of discrimination, and that "'malice' or 'reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." The court found that the evidence EEOC presented at trial was sufficient for a jury to find that defendant acted in the face of a perceived risk that it was violating the Title VII rights of the women for whom EEOC sought relief, because there was evidence that the decisionmakers in each instance knew that pregnancy discrimination was illegal. The court found that the district court did not abuse its discretion in denying injunctive relief, where the discrimination had occurred more than 5 years before the request for such relief and consisted of two isolated incidents that did not show a continuing practice of discrimination suggesting that further discrimination was likely.

Dukes v. Wal-Mart Stores, Inc. , Nos. 04-16688 & 04-16720 (9th Cir.) (en banc), brief as amicus curiae filed March 19, 2009

Six female past or present Wal-Mart employees brought a Title VII suit alleging that Wal-Mart engaged in a pattern or practice of pay and promotion discrimination on the basis of gender, and sought to litigate their claims in a bifurcated proceeding as approved in Teamsters v. United States, 431 U.S. 324 (1977). Over defendant's objections, the district court certified a nationwide class of female Wal-Mart employees for liability and relief on the pay and promotion claims under Federal Rule of Civil Procedure 23(b)(2), which requires that the alleged discrimination apply generally to the class such that injunctive relief to the class as a whole is appropriate. A divided panel of the Ninth Circuit affirmed, finding that the class met all the requirements of Rules 23(a) & (b)(2), and that, contrary to defendant's arguments, punitive damages could be tried in stage 1 of a bifurcated proceeding along with liability, and backpay could be decided in stage 2 without individualized hearings. The Ninth Circuit granted rehearing en banc and the Commission filed a brief as amicus curiae on the punitive damages and backpay issues.

EEOC argued that the district court reasonably held that a claim for punitive damages can be determined on a classwide basis in stage 1 of a Title VII pattern or practice action. Such a claim focuses on the employer's mental state and conduct toward the class as a whole, rather than specific individuals. A properly instructed jury can therefore determine whether the employer's conduct warrants a classwide punitive damages award.

EEOC also argued that the district court reasonably concluded that in appropriate pattern or practice cases, backpay may be determined on a classwide basis without individualized hearings. To achieve Title VII's key goal of providing make-whole relief to victims of discrimination, the Ninth Circuit and other courts have held that classwide backpay relief may be appropriate where, because of factors such as the passage of time and the employer's own subjective employment practices, any attempt to reconstruct individual employment histories would draw the court into a quagmire of hypothetical judgments. Notwithstanding Wal-Mart's arguments to the contrary, such a procedure for awarding classwide relief without individual hearings does not conflict with either the Seventh Amendment or Title VII.

6. Racial Harassment

Ricci v. DeStefano , 129 S. Ct. 2658 (June 29, 2009)

In this case, a class of white firefighters sued the City of New Haven, Connecticut discrimination under Title VII and the Equal Protection Clause after the city decided not to certify a list of firefighters eligible for promotion to lieutenant or captain because of concerns that the promotion examinations had a disparate impact on minorities and that if the city used the test rankings to make selections it would be vulnerable to a disparate impact suit by the minority firefighters. The district court held that the white firefighters' disparate treatment claims failed because the refusal to rely on a test with a racially disparate impact did not constitute intentional discrimination, and that since all applicants took the same test, all test results were discarded, and no one was promoted, the city's actions were not based on race. The Second Circuit affirmed in a per curiam opinion. On the white firefighters appeal to the Supreme Court, the Solicitor General, in an amicus curiae brief joined by EEOC, argued that the city's attempt to comply with Title VII's disparate impact provision did not constitute prohibited intentional race discrimination.

The Supreme Court, in a 5-4 decision, held that refusing to certify the results of promotion examinations because of a disparate impact on minority candidates is impermissible intentional discrimination under Title VII unless the employer is able to demonstrate a strong basis in evidence for believing that if it had certified the results it would have been liable under the disparate impact provision. The Court held that the city could not meet the strong basis in evidence standard, and therefore had violated Title VII. The Court rejected the holdings of the Second Circuit and the district court, and the Government's argument as amicus curiae, that an employer's attempted compliance with the disparate impact provision of Title VII does not give rise to liability under the disparate treatment provision. The Court did not reach the issue of whether the city violated the Equal Protection Clause.

7. Sexual Harassment

EEOC v. Boeing Co. , 577 F.3d 1044 (9th Cir. April 8, 2009)

In this Title VII action, the district court granted summary judgment to Boeing Co. on the EEOC's claims of sex discrimination and retaliation arising from a reduction-in-force that led to the transfer and layoff of Antonia Castron and the layoff of Rene Wrede. The Commission appealed, arguing that it had offered sufficient direct and circumstantial evidence to allow a reasonable jury to conclude that Boeing had discriminated against both women based on their sex and had retaliated against Castron because she complained of sexual harassment. The Ninth Circuit agreed with the Commission and reversed and remanded the case for trial, making three important rulings on the evidence in the case. Most important, the court held that Castron's supervisor's derogatory comments about women, considered along with his interactions with Castron, were "sufficient to create an inference of discriminatory motive even though the comments were not directed specifically at Castron or made in regard to decisions about her employment." The court said that the supervisor's "sexist comments" alone would allow a jury to infer that Castron's transfer and termination were discriminatory and/or retaliatory. Second, the court ruled that coworkers' positive testimony about the quality of Castron's work could be probative of pretext. Finally, as to Wrede, the court agreed with the Commission that the "same actor inference" in the case -- the supervisor who gave Wrede a low evaluation causing her layoff had previously given her higher ones -- was somewhat weaker than in hiring cases because the logic differs when applied to "less overtly 'positive' employment decisions, such as refraining from firing an employee at the earliest opportunity or giving an employee a lukewarm evaluation, rather than a poor one."

8. Race- and Sex-Based Hostile Work Environments

Barrett v. Whirlpool Corp. , 556 F.3d 502 (6th Cir. Feb. 23, 2009)

In this Title VII racial harassment case brought by white employees harassed based on their association with black coworkers, the district court ruled that the white plaintiffs could not proceed with their claim because their "association" with their black coworkers was not close enough. The Commission argued as amicus curiae that an employee targeted for harassment because of her association with coworkers of a different race may establish a claim for a race-based hostile work environment under Title VII without establishing any particular degree of closeness to the coworkers. The evidence in the record in this case was sufficient to support a finding that the plaintiffs were subjected to a hostile work environment because of their association with their black coworkers. The evidence was also adequate to support a finding that the plaintiffs were targeted for harassment based on their advocacy on behalf of their black coworkers, which could, in turn, support either a hostile work environment claim or a retaliation claim under Title VII's opposition clause. The Commission also argued that racial harassment is actionable under Title VII if it is sufficiently severe or pervasive, not, as the district court seemed to require, severe and pervasive, to alter the conditions of the victim's employment. In addition to applying the wrong standard, the district court appeared to have minimized the significance of the highly offensive racial epithets, graffiti, and other actions targeted at the plaintiffs in this case in evaluating whether summary judgment was appropriate.

The Sixth Circuit affirmed in part, reversed in part, and remanded the case to the district court. Agreeing with the position taken by the Commission, the court of appeals held that a claim for associational discrimination or harassment does not require any specific degree or type of association between two individuals of different races, so long as the plaintiff can show that she was discriminated against because of her association with a person of a different race. The court also held that no particular degree or type of advocacy on behalf of individuals of a different race is required to state an associational discrimination claim based on this theory, again, so long as a plaintiff can show that she was discriminated against based on her advocacy on behalf of such individuals.

EEOC v. Central Wholesalers, Inc. , 573 F.3d 167 (4th Cir. July 21, 2009)

EEOC alleged that Central Wholesalers subjected charging party La Tonya Medley to a sex- and race-based hostile work environment. Medley was the only female and the only African American in defendant's Inside Sales department. The evidence showed that Medley's coworkers routinely used the "N" word and the "B" word in her presence, displayed mop-head dolls with nooses around the dolls' necks, had Playboy magazines, a Playboy calendar, and a Playboy poster in the workplace, had a computer screensaver that featured various nude or partially nude women, and played pornography on computers. Medley complained to the harassing coworkers, her supervisor, and even the company president, but the harassment continued. Finally, when a coworker exploded at her inexplicably after she asked him for help with a work matter, using numerous racist and sexist slurs and threatening her, Medley resigned the same day. The district court granted summary judgment to defendant, concluding that the alleged harassing conduct was not based on gender or race and was not sufficiently severe or pervasive, and that in any event there was no basis for holding defendant liable for the conduct.

The Fourth Circuit reversed. The court first found that a reasonable jury could find both the gender- and race-based conduct to be unwelcome because Medley had complained about both types of harassment to her coworkers, supervisors, and defendant's president. The court next found that a reasonable jury could find that the harassment was based on Medley's gender due to evidence that her coworkers used the "B" word on a daily basis and displayed sexually themed materials in the office, and could find harassment based on race due to the fact that her coworkers used the "N" word in front of her on a regular basis, the word was specifically directed at her during one incident, and several coworkers had mop-head dolls with nooses in their offices. The court held that a reasonable jury could find that the harassment was severe or pervasive enough to create a hostile working environment, and that evidence of Medley's complaints and the company's failure to take effective corrective action established a basis for imposing liability on defendant for the harassment.

Gallagher v. C.H. Robinson Worldwide, Inc. , 567 F.3d 263 (6th Cir. May 22, 2009)

The plaintiff, Julie Gallagher, lost her sexual harassment case against C.H. Robinson Worldwide in the district court on summary judgment. The court concluded that Gallagher failed to provide sufficient evidence that the offensive conduct was based on her sex because it was not directed at her and occurred in a mixed gender setting; that she presented no evidence that the conduct had any effect on her work performance; and that she failed to establish employer responsibility for the conduct because she did not complain to upper management, but only to her immediate supervisor, who ignored her complaints. The Sixth Circuit, agreeing with the Commission's arguments as amicus curiae, reversed and remanded the case for further proceedings. The court rejected the district court's reasoning that the offensive conduct was not "based on sex" merely because it was common and indiscriminate, not targeted at Gallagher, and would have taken place regardless of whether Gallagher was present or not. The court explained that unlike situations where the "based on sex" element is established by showing that the conduct evinces antifemale animus, what mattered in the present case was that "most of the complained of harassment . . . -- both conduct directed at Gallagher and indiscriminate conduct -- is explicitly sexual and patently degrading of women." In evaluating the "based on sex" element of a sexual harassment claim, the court said, the focus is on the effects of the harassing conduct on the victim. Considering all the conduct from this perspective, the court agreed with the Commission that Gallagher had made a sufficient showing of severe or pervasive harassment to present her claim to a jury. The court also concluded that the district court erred in requiring Gallagher to show anything more than that the harassment made her job more difficult, and in requiring that she complain of her coworkers' harassing conduct through multiple channels when there was evidence that management knew of it through her complaints and through observation.

Reeves v. C.H. Robinson Worldwide, Inc. , No. 07-10270 (11th Cir.), brief as amicus curiae on en banc rehearing filed June 30, 2009

The district court granted summary judgment to defendant on plaintiff Ingrid Reeves's claim that the sex-based slurs, raunchy jokes, and sexually explicit discussions and radio broadcasts that permeated her workplace subjected her to a hostile work environment because of her sex. The court held that because none of the offensive conduct specifically targeted or referenced Reeves, and her male colleagues were equally exposed to the same crude language and radio broadcasts, Reeves had not suffered harassment on the "basis of her sex," as required to establish a violation of Title VII. A unanimous panel of the Eleventh Circuit reversed, holding that the sex-specific profanity, conversations, and jokes were more degrading to women than to men and that the evidence was sufficient to survive summary judgment as to whether the hostile environment Reeves encountered was "based on" her sex. The full court of appeals granted en banc review, vacated the panel opinion, and asked for briefing on whether Reeves was harassed "because of" her sex and whether her complaint of a hostile work environment should be evaluated as a claim of disparate treatment or a claim of disparate impact.

In response to the first question, EEOC argued as amicus curiae that an employer that maintains a workplace permeated with language or conduct that a reasonable person would find particularly offensive to women engages in disparate treatment by subjecting female employees to disadvantageous working conditions to which male employees are not subjected. The district court erred by focusing exclusively on whether Reeves was the target of sex-specific epithets, crude discussions, and salacious radio programs to which men were also exposed. Evidence of harassment aimed specifically at women, or proof that only women were exposed to the offensive conduct, are not the exclusive means of demonstrating sex discrimination in a hostile environment case; the nature of the objectionable conduct and its foreseeable effects are additional methods of raising an inference of workplace discrimination because of sex. In response to the second question, EEOC argued that a sex-based hostile work environment, as alleged by Reeves, subjects women to disadvantageous terms or conditions of employment and thus states a claim for disparate treatment. Because a policy of subjecting employees to a workplace permeated with conduct or material that is objectively more offensive to women – or to members of a particular racial, ethnic, or religious group – is plainly not a facially neutral employment practice that can be evaluated under a business necessity standard, Reeves's complaint cannot be analyzed as a claim of disparate impact.

9. Religious Accommodation

EEOC v. Thompson Contracting, Grading, Paving and Utilities, Inc., 333 Fed. Appx. 768 (4th Cir. June 25, 2009) (unpublished)

Thompson Contracting hired Banayah Yisrael, a member of the Hebrew Israelite faith, as a dumptruck driver, but then failed to accommodate his religious belief that he could not work on Saturday, and fired him after he failed to work 3 Saturdays over the course of 9 or 10 weeks. EEOC filed suit alleging that Thompson failed to accommodate Yisrael's religious belief that he could not work on Saturdays and failed to show that providing an accommodation would have imposed an undue hardship on the conduct of its business. Without addressing the questions of reasonable accommodation and undue hardship, the district court granted Thompson's motion for summary judgment on the ground that the decision to fire Yisrael was not based on his religion or religious practice, but rather on his performance, including an accident with a company truck and "random and unauthorized absences from work." The Fourth Circuit vacated the district court's decision, holding that the Commission presented sufficient evidence of a prima facie case of religious discrimination. The court found that because one of the reasons defendant gave for discharging Yisrael was unsatisfactory attendance, and 3 of the 4 days he missed were Saturdays, EEOC had shown that he was terminated for failing to work on Saturdays. The court remanded the case to the district court for proceedings on the issue of whether Thompson could show it would pose an undue hardship to accommodate Yisrael.

EEOC v. GEO Group, Inc. , No. 09-3093 (3d Cir.), brief as appellant filed Sept. 14, 2009

This EEOC suit involves an employer's failure to accommodate the religious practices of Muslim female employees, who are required by their religion to cover their hair in public and therefore wear khimars, or headscarves. The three affected employees worked in various capacities at the George W. Hill Correctional Facility (GWHCF) in Thornton, Pennsylvania, which was run by GEO Group. In October 2005, the defendant instituted a "zero-tolerance" policy for all headgear, including religious garb, within the secured areas of the prison. Although the three women had been wearing khimars during their employment at GWHCF, in some cases for years, they were presented with the choice of removing their khimars while at work or being terminated. One woman refused to abandon wearing her khimar and was terminated; the other two acceded to the new policy and continued to work at GWHCF. The defendant argued that allowing any religious accommodation to its policy would constitute an undue hardship because of security and safety concerns.

After this suit was filed, the Third Circuit decided in Webb v. City of Philadelphia, 562 F.3d 256 (3d Cir. 2009), that allowing a Philadelphia police officer to wear a khimar while on duty would constitute an undue hardship to the city because of the police department's critical interest in maintaining a uniform and neutral appearance before the general public. The district court then granted summary judgment for defendant, stating that Webb controlled. EEOC appealed, arguing that Webb did not purport to establish a rule of law that applied categorically to all "paramilitary organizations" or police departments with "safety" concerns. Rather, the Webb court emphasized that undue hardship is to be established on a case-by-case basis with respect to the individual circumstances before it, and in fact took that approach with respect to the interests advanced by the Philadelphia Police Department, which were different than the interests advanced here. In Webb, the city consistently relied on the need for total uniformity and the appearance of complete neutrality in light of police officers' historic duties vis-à-vis the general public. In the present case, GEO identified safety and security as the primary rationales for its policy, and those concerns were thoroughly refuted as sufficient justifications for prohibiting khimars at a prison by the EEOC's expert report, which GEO never challenged. On this basis alone, summary judgment for the defendant was unwarranted.

10. Disability Discrimination

EEOC v. Chevron Phillips Chemical Co., LP , 570 F.3d 606 (5th Cir. June 5, 2009)

EEOC alleged that the defendant violated the ADA by failing to reasonably accommodate Lorin Netterville's disability, chronic fatigue syndrome, and by firing her because she requested an accommodation. The district court granted summary judgment to defendant. The court rejected the reasonable accommodation claim on the ground that Netterville was not disabled, and the retaliation claim on the ground that there was insufficient evidence that defendant's explanation that it fired her because she falsified answers on a postoffer medical questionnaire was pretextual. The Fifth Circuit reversed. The court held that a reasonable jury could find that: (1) Netterville's chronic fatigue syndrome substantially limited her in the major life activities of sleeping, thinking, and caring for herself, and she was a qualified individual with a disability; (2) defendant failed to engage in the interactive process required by the ADA with respect to Netterville's two requests for reasonable accommodations; and (3) defendant discharged Netterville because of her disability, her accommodation requests, or both.

EEOC v. Bobrich Enterprises d/b/a/ Subway , No. 08-10162, 2009 WL 577728 (5th Cir. March 2009) (unpublished)

EEOC brought this ADA harassment and constructive discharge case to obtain relief for Tammy Gitsham, who has a severe hearing impairment and was subjected to persistent public ridicule by her senior managers throughout the 2 years of her employment. EEOC prevailed on both claims before a jury, which awarded Gitsham $50,000 in compensatory damages, $100,000 in punitive damages, and $16,500 in backpay. The district court granted defendant's motion for judgment as a matter of law on the constructive discharge claim, vacating the backpay award; the Commission did not challenge this ruling on appeal.

Defendant appealed from the harassment verdict, arguing that the evidence was insufficient to support a finding that Gitsham has a covered disability and that the harassment did not meet the Fifth Circuit's "elevated standard" for "severe and pervasive" conduct. In response, the Commission argued that the evidence showed that Gitsham's hearing is substantially limited even with her hearing aids, and also supported a finding that defendant's managers regarded Gitsham as substantially limited in hearing. Further, the evidence was sufficient under controlling Supreme Court and circuit standards for establishing a hostile work environment. The Fifth Circuit affirmed the judgment. The court held that a reasonable jury could find that Gitsham was disabled because of the extent of her hearing limitations even with the use of hearing aids, and that a jury could also find a hostile work environment, based on the testimony of Gitsham, one of her subordinates, and her immediate supervisor, which was "probative of a repeated pattern of harassing statements" that persisted even after Gitsham objected to those statements.

Colwell v. Rite Aid Corp. , No. 08-4675 (3d Cir.), brief as amicus curiae filed May 21, 2009

This case involves the question whether a shift change to avoid a nighttime commute can constitute a reasonable accommodation under the ADA. Jeannette Colwell was hired by Rite Aid to work as a cashier on a part-time schedule, which included nights and weekends. Shortly after she was hired, Colwell lost the sight in her left eye. This affected her ability to see at night and she could no longer drive to work her night shifts. Colwell asked the store manager to assign her to day shifts. The manager refused, and until Colwell quit assigned her to night shifts, while assigning other cashiers with less seniority and no disabilities to day shifts.

Colwell filed a lawsuit alleging disability discrimination and retaliation, and the district court granted Rite Aid's summary judgment motion. The court held that although Colwell had a disability, she was not constructively discharged since she quit shortly after requesting an accommodation and had not exhausted all remedial avenues. It further ruled that Rite Aid had no obligation to adjust Colwell's work schedule, characterizing her inability to drive at night as a commuting problem outside the employer's control. The court viewed the ADA's accommodation requirement as "designed to cover barriers to an employee's ability to work that exist inside the workplace, not difficulties over which the employer had no control."

EEOC argued as amicus curiae on Colwell's appeal that the court erred in granting summary judgment on the accommodation and constructive discharge claims. The ADA, its legislative history, EEOC regulations, and case law explicitly provide that modifications to work schedules can be a reasonable accommodation. Nothing in the ADA restricts the accommodation obligation to barriers in the workplace or the way job duties are performed, and Congress specifically contemplated the need for schedule changes because of transportation issues. Colwell was not asking for assistance in making her commute to the job; she was seeking a schedule change—a matter entirely within the employer's control. Additionally, Colwell made it clear that working at night was an intolerable situation; thus, Rite Aid's disregard of her repeated requests for accommodation is sufficient to create a triable issue as to whether a reasonable person would have quit.

11. Age Discrimination

Gross v. FBL Fin. Group, Inc. , 129 S. Ct. 2343 (June 18, 2009)

This case involved the proper standards for proving age discrimination under the ADEA. Jack Gross sued his employer for age discrimination after he was demoted in 2003. The case was tried to a jury and the district court instructed the jury that its verdict must be for Gross if it has "been proved by the preponderance of the evidence . . . [that] plaintiff's age was a motivating factor" in FBL Financial's decision to demote him. Conversely, the district court instructed, the jury's verdict must be for FBL Financial if it has "been proved by the preponderance of the evidence that defendant would have demoted plaintiff regardless of his age." In a separate instruction, the court explained that Gross's age constituted "a 'motivating factor,' if plaintiff's age played a part or a role in the defendant's decision to demote plaintiff. However, plaintiff's age need not have been the only reason for defendant's decision to demote plaintiff." The jury found in favor of Gross and awarded him $46,945 in lost compensation. FBL Financial challenged the jury instructions on appeal, and the Eighth Circuit reversed and remanded the case for a new trial, holding that in the absence of "direct" evidence of age discrimination, it was error for the district court to shift the burden to the defendant to prove that it would have made the same decision even if it had not considered Gross's age. Gross petitioned for Supreme Court review of the question whether direct evidence is necessary to shift the burden in a mixed motives case, and EEOC joined an amicus brief filed by the Solicitor General arguing that such evidence is not necessary.

In a 5-4 decision, the Supreme Court held that a plaintiff bringing a disparate treatment claim pursuant to the ADEA must always prove that age was a "but for" cause of the challenged decision. The Court declined to address the question presented for review – whether direct evidence was necessary to shift the burden to the employer in a mixed motives case. The Court said it had to determine "whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA[]," and held that it does not. The Court discussed textual differences between Title VII and the ADEA, and concluded that the "ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." The Court also said it could not ignore the fact that Congress did not amend the ADEA when it codified a mixed motive scheme under Title VII. The Court concluded that the words "because of age" in the ADEA mean that age was the reason the employer decided to act. Thus to establish an ADEA violation a plaintiff "must prove that age was the 'but-for' cause of the employer's adverse decision." Although the Court held that plaintiffs retain the burden of persuasion under the ADEA, it said that no "heightened evidentiary requirement" applied in meeting that burden.

EEOC v. Exxon Mobil Corp., 344 Fed. Appx. 868 (5th Cir. Aug. 27, 2009) (unpublished)

EEOC brought this ADEA action to obtain relief for former corporate pilots terminated by Exxon when they reached age 60. The district court granted summary judgment for Exxon, deciding that its age-based mandatory retirement rule was justified because being under age 60 was a bona fide occupational qualification (BFOQ) reasonably necessary to ensure the safe operations of Exxon's corporate flights. The court reasoned that there was sufficient congruity between Exxon's pilots' duties and those of commercial pilots covered by the Federal Aviation Administration's (FAA) age-60 mandatory retirement rule to validate Exxon's rule. The court also decided that Exxon's extension of the FAA's age-60 rule to Exxon's pilots was appropriate because Exxon and the FAA had the same safety concerns.

On appeal, EEOC argued that the district court improperly restricted discovery and summary judgment briefing to the issue of congruence of operations rather than applying the correct legal standard to evaluate Exxon's BFOQ defense, which required a determination whether individualized testing regarding pilot vulnerability to incapacitation was available. Additionally, the court erred in deciding that the FAA's age-60 rule was probative of Exxon's BFOQ defense because the FAA expressly exempted corporate pilots from the rule and the court should have deferred to this exemption. Finally, summary judgment was improper because there are triable issues as to whether the safety concerns of the FAA and Exxon are the same and whether there is congruity between the operations of Exxon and commercial airlines and between the duties of their pilots.

The Fifth Circuit vacated the summary judgment order and remanded the case for further proceedings because the district court had resolved a disputed issue that was not properly before it. The court of appeals said that the district court had prejudiced EEOC by resolving the issue of whether the FAA regulation's rationale was still valid without giving EEOC fair notice. The court of appeals said that to prevail on its BFOQ defense, Exxon had to show that there was both (1) evidence supporting the rationale justifying the FAA's age-discriminatory regulation, and (2) congruity between the operations at issue; however, the district court had restricted discovery and the summary judgment proceedings to the issue of congruity only. Finding that the district court's "assumption concerning the rationale justifying the FAA's regulation was beyond the scope of its scheduling order," and that the continuing validity of the FAA regulation "was, and is, a crucial and determinative issue in th[e] case," the court of appeals ruled that the district court's error in relying on this assumption to grant summary judgment was not harmless.

Aldridge v. City of Memphis , No. 08-6046 (6th Cir), brief as amicus curiae filed March 30, 2009

For 78 years, pursuant to a city charter, police officers with the Memphis Police Department who served with the department for 30 years were automatically promoted to the rank of Captain. In 2005, the Director of Police Services announced he was abolishing the Captain rank. Captains were informed they could retire immediately at the rank of Captain or continue to serve at the rank they held before they became Captains. According to the Director, the Captain rank, which did not have defined duties or responsibilities, was not "operationally necessary." Ninety-three Captains were affected by the decision, all of whom were over 40 years of age; the average age of the Captains was 56.52, while the average age of the other officers in the police department was 37.81. Former Captains brought suit alleging that the abolishment of the Captain position violated the ADEA because it had a disparate impact based on age and was not based on a reasonable factor other than age. The district court granted the city's motion for summary judgment and plaintiffs appealed.

EEOC argued as amicus curiae that the plaintiffs' challenge to the police department's decision to abolish the Captain rank was properly brought as a disparate impact claim under section 4(a)(2) of the ADEA, which makes it unlawful for an employer "to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." In abolishing the rank of Captain, the city classified its police officers into two categories—those who would lose their rank (the Captains) and those who would retain their rank (all other officers). Because the Captains were significantly older than the other officers, this classification adversely affected the plaintiffs' employment opportunities because of their age. In relying on the Eighth Circuit's (later vacated) decision in EEOC v. Allstate Ins. Co., 528 F.3d 1042 (8th Cir. 2008), the district court erroneously concluded that the Allstate court rejected a disparate impact challenge to Allstate's elimination of the sales agent position. On the contrary, the Eighth Circuit in Allstate affirmed the district court's holding that a practice that applied only to a portion of the defendant's workforce could be challenged under a disparate impact theory.

12. Retaliation

Crawford v. Metro. Gov't of Nashville & Davidson County, TN , 129 S. Ct. 846 (Jan. 26, 2009)

This case involved the scope of Title VII's retaliation provisions. The plaintiff, Vicky Crawford, answered her employer's questions about a coworker the employer was investigating in connection with another employee's complaint of sexual harassment. Although Crawford had not made a complaint herself, she provided considerable evidence of the coworker's alleged sexually offensive conduct. Crawford was subsequently terminated, as were two other women who similarly provided information during the investigation. Crawford sued, claiming her termination was in retaliation for her statements during the investigation. The district court granted summary judgment for defendant, holding that Crawford's statements were not protected conduct under Title VII.

The Sixth Circuit affirmed, holding that Crawford did not state a claim for retaliation because her statements during her employer's internal investigation were merely passive responses to questions, rather than active opposition, and thus did not constitute either protected participation or opposition under Title VII's retaliation provisions. The Supreme Court granted Crawford's petition for review, and the Commission joined an amicus brief filed by the Solicitor General. The Government argued that participation in an internal investigation constitutes protected opposition conduct, and that there was no basis for the lower courts' conclusions that opposition must be more active than answering questions during an investigation or that an individual's opposition must be overtly expressed, where specific disclosure of inappropriate behavior conveys her reasonable belief that the conduct she described was "unwelcomed" and unlawful. The Government argued that the lower courts should not have required any affirmative action beyond complaining to come within the protection of the opposition clause.

The Government also argued that participation in an internal investigation constitutes protected participation under Title VII because the participation clause should be given great breadth, and there is no basis for limiting it to EEOC investigations, or to employer-initiated investigations undertaken in response to the filing of an EEOC charge. Employers that investigate potential violations of Title VII not only ensure that they qualify for the affirmative defense the Court created in harassment cases, but also act in conformity with Title VII's central objective to prevent and deter harm. These investigations occur "under" Title VII's framework because they fulfill Title VII's objectives and because they are themselves subject to scrutiny in litigation challenging the efficacy of the employer's efforts.

The Supreme Court reversed, in a unanimous decision. Citing EEOC Guidance, the Court held that where an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee's opposition to such activity. The Court emphasized that the context of Crawford's statements – in response to her employer's questions rather than initiated by Crawford herself – should not change the character of her conduct: "a person can 'oppose' by responding to someone else's question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not the one who reports the same discrimination in the same words when her boss asks the question." The Court did not reach the question whether Crawford's conduct was also protected by Title VII's participation clause.

EEOC v. Allstate Ins. Co. , 344 Fed. Appx. 785 (3d Cir. July 29, 2009) (unpublished)

In November 1999, Allstate announced a "Planning for the Future" reorganization program, under which its remaining 6,200 sales agents would be fired on June 30, 2000, and replaced with independent contractors. To continue selling Allstate insurance, the employee-agents had to sign a release of all claims and convert to independent contractor status. By signing a release, employee-agents could also either (a) convert to independent contractor status briefly in order to sell their book of business, or (b) receive enhanced severance benefits (a year of pay). Employee-agents who did not sign the release would receive the standard severance benefits (13 weeks of pay).

EEOC challenged the program's requirement of a release of claims to continue selling Allstate insurance as a violation of the antiretaliation provisions of Title VII, the ADA, and the ADEA. The Commission's suit was consolidated with a private class action (Romero v. Allstate) alleging retaliation but also age discrimination and other claims. The district court first granted partial summary judgment on liability to the plaintiffs on the retaliation claim, but then reversed course and granted summary judgment to Allstate on all claims, relying on a Seventh Circuit decision involving similar issues, Isbell v. Allstate Ins. Co., 418 F.3d 788 (7th Cir. 2005). On appeal, the Commission argued that the "holdouts" -- the 19 employee-agents who refused to sign the release -- engaged in protected (participation) activity because their refusals to sign the release could be viewed as threats to sue the company. Therefore, Allstate's refusal to allow them to continue selling insurance constituted retaliation. The Commission also argued that it is a per se violation of the statutes' antiretaliation provisions for an employer to require its employees to release all their claims in order to continue working for the company.

The Third Circuit vacated the district court's summary judgment order and remanded the case, directing that it be assigned to a different judge. The court of appeals instructed the lower court to focus on the validity of the release, and to allow more discovery on that issue. In so focusing the case, the court ignored the fact that EEOC sought relief for some agents who refused to sign the release.

Thompson v. North American Stainless, LP , 567 F.3d 804 (6th Cir. June 5, 2009) (en banc)

This retaliation case arose when North American Stainless fired the plaintiff after his fiancée, also an employee, complained of sexual harassment. The district court granted summary judgment to defendant on the ground that Title VII does not prohibit third-party retaliation. A panel of the Sixth Circuit reversed, holding that Title VII prohibits "employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action." The full court of appeals vacated this decision and took the case for en banc review. The Commission again argued as amicus curiae that Title VII's retaliation provision should be given an expansive reading to protect someone in plaintiff's position.

The en banc court ruled 10-6 that Title VII does not authorize third-party retaliation claims. The Sixth Circuit disagreed with EEOC's position that Title VII's antiretaliation provision must be interpreted broadly to fulfill its purpose of "maintaining unfettered access to statutory remedial mechanisms." Nine judges joined the opinion of the court, and one justice concurred in the result. Three judges wrote dissenting opinions, two of which were joined by five additional judges.

The majority opinion held that the text of Title VII unambiguously precludes a cause of action "for persons who have not personally engaged in protected activity." The court observed that, with its holding, it was joining the Third, Fifth, and Eighth Circuits in limiting the authorized class of claimants to people who have personally exercised protected rights. The court rejected EEOC's arguments that the statutory language is ambiguous because it does not directly address third-party retaliation, and that examined in context it demands an expansive reading to cover such conduct. The court said that section 704(a) "explicitly identifies those individuals who are protected – employees who 'opposed any practice made an unlawful employment practice' or who 'made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing' under Title VII." Thus, the statute "clearly limits the class of claimants to those who actually engaged in the protected activity."

D. Outreach: Educating the Public

Office of General Counsel attorneys engage in a variety of informational activities, sometimes in conjunction with investigative staff, regarding the laws enforced by the agency. In fiscal year 2009, legal staff made presentations at 487 "outreach" events addressing over 30,000 people. Some examples are provided below.

Groups Responsible for Enforcing EEO Mandates

The Phoenix regional attorney gave several speeches on the ADA at the National Association of ADA Coordinators conference in Baltimore. A trial attorney from Chicago appeared on a panel with the Minnesota Department of Human Rights discussing coordination of the two agencies. Trial attorneys from Indianapolis provided legal updates to the East Chicago Human Rights Commission, and at the 36 th Annual Indiana Consortium of State and Local Human Rights Agencies Training Conference and the Kentucky Administrative Offices of the Courts. The New York regional attorney met with a representative of the French Commission for Equal Opportunities and Anti-Discrimination. A supervisory trial attorney from Charlotte discussed developing and litigating discrimination cases against private employers as part of a round table discussion with French officials responsible for enforcing their country's antidiscrimination laws. The San Francisco regional attorney presented, "Assessing Credibility in Egregious Harassment Cases, Effects of Immigration Status on Employment Litigation, and Investigating the Employer's Harassment Investigation" during training for the Seattle Office of Civil Rights and Washington Human Rights Commission.

Covered Populations and Associated Advocacy Groups

The Birmingham regional attorney made a presentation at the NAACP Conference in Alabama. A trial attorney with Charlotte discussed age discrimination with members of the South Carolina Lieutenant Governor's Office on Aging. A trial attorney with San Francisco discussed sexual harassment law with employees of a Native American medical clinic. An attorney from Phoenix is teaching an employment law course for the layperson as part of a program with the Colorado Trial Lawyers Association. A trial attorney from Charlotte discussed race and disability discrimination with attendees at a local Minority Means' Health Fair sponsored by the American Cancer Society, and spoke about national origin discrimination at a festival celebrating the Chinese New Year sponsored by the local Richmond Chapter of the Chinese Americans' Society. The San Francisco regional attorney spoke about sexual harassment of farm workers to the national conference of Midwest Association of Farmworker Organizations, and to the Northwest Farm Worker and Employment Task Force (in an event sponsored by the ACLU of Washington, Northwest Justice Project, and Columbia Legal Services). He also presented "The EEOC's Cases on Behalf of Hispanics" at the Hispanic Heritage Month Celebration sponsored by the U.S. Army Corps of Engineers, and participated in a web-based panel discussion sponsored by Southern Poverty Law Center and Alabama State Department of Public Health on sexual harassment and abuse.

Employer and Employee Groups

A trial attorney from Philadelphia discussed, "What Maryland Corporate Counsel Should Know about Defending Employment Discrimination Charges" with the Baltimore Chapter of the Association for Corporate Counsel at an event sponsored by the law firm of Ober Kaler. A supervisory trial attorney with Charlotte discussed EEOC with a delegation of 13 international African and Middle Eastern business leaders. A supervisory trial attorney from New York spoke at the Restaurant Opportunities Center New York City Summit on Race and Gender in the Restaurant Industry. She also spoke to the Beijing Municipal Federation of Trade Unions about the EEOC's litigation program. A trial attorney with Charlotte spoke about the federal EEO laws and EEOC charge processing with the Human Resources Committee of the Charlotte Area Hotel Association. A trial attorney from Houston discussed retaliation with a group of federal employees at the Annual Federal Employees' Training Conference sponsored by the New Orleans Federal Executive Board and the Equal Opportunity Advisory Council. A trial attorney with Dallas discussed sexual harassment, the ADA, EEOC's investigative processes, and permissible hiring techniques at an outreach event with Baylor University MBA students. The Phoenix regional attorney discussed the differences between the ADA and the FMLA with the Arizona Labor Employee Relations Association

Law and Bar Groups

General Counsel Ronald S. Cooper provided an EEOC update at an advanced employment law and litigation program sponsored by ALI-ABA. The St. Louis regional attorney presented, "The EEOC under the Obama Administration" to clients of the Thompson & Coburn law firm. The Houston regional attorney discussed creative remedies in harassment cases as part of a diversity forum sponsored by Kean Miller, a large Louisiana law firm. The Miami regional attorney discussed EEOC's initiatives and the Miami District Office's enforcement efforts at Jackson Lewis' 3 rd Annual Southern Women's Employment Law Conference. The San Francisco regional attorney appeared on two panels at the National Asian Pacific American Bar Association Convention, and discussed enforcing civil rights for immigrant workers as part of a panel during the Bay Area's Asian Pacific American Law Students' Conference. Trial attorneys from New York served as judges at the Wagner Moot Court Competition at New York Law School. A supervisory trial attorney from Atlanta spoke about the federal laws against employment discrimination at Congressman David Scott's Congressional District Economic Recovery Exposition. A trial attorney with Indianapolis was a moderator for presentations on bankruptcies in EEO cases, EEO legal updates, and ethical concerns when providing representation to multiple parties, at the Warns Labor and Employment Law Institute. A trial attorney with Chicago addressed defendant attorneys on current EEOC developments at a conference for corporate counsel. A trial attorney with Philadelphia spoke at a seminar sponsored by the Montgomery County Bar Association on national origin discrimination.

E-Race, Systemic, and Youth@Work Initiatives

The New York regional attorney spoke to attorneys and clients with Morgan Lewis & Bockius about the EEOC's Systemic Program; and a supervisory trial attorney from New York spoke to ORC Worldwide about the Systemic Initiative. The regional attorney for Atlanta spoke about systemic discrimination to the Atlanta Bar Association's Labor & Employment Law Section. The Miami regional attorney spoke about discrimination against Muslim, Middle-Eastern, Arab, and South Asian employees at an E-Race forum cosponsored by the Miami District Office and the Miami-Dade County Equal Opportunity Board. A trial attorney from Philadelphia provided an overview of EEOC and E-Race at the Legal Aid Society Helping Hands Initiative, a public forum sponsored by the Legal Aid Society of Cleveland and the Cleveland NAACP for low-income persons. A trial attorney from San Francisco gave a Youth@Work presentation for NextUp! -- a leadership development program for Bay Area college bound African American high school and college students. A supervisory trial attorney with Miami discussed race and religious discrimination at Addison Mizner Elementary School as part of a Youth@Work program.

Lily Ledbetter Fair Pay Act, GINA, ADAAA, and the 30 th anniversary of the PDA

An Associate General Counsel for Appellate Services helped to organize and moderate a symposium commemorating the 30 th anniversary of the Pregnancy Discrimination Act of 1978 (PDA), which was sponsored by EEOC and the National Partnership for Women & Families. A trial attorney from Houston discussed the Lily Ledbetter Fair Pay Act of 2009, the ADA Amendments Act of 2008 (ADAAA), and the Genetic Information Nondiscrimination Act of 2008 (GINA) with a local SHRM group. A trial attorney with Charlotte spoke about the Lilly Ledbetter Fair Pay Act, GINA, and recent EEOC developments and litigation at the North Carolina Bar Association Labor & Employment Section Council's quarterly meeting. A supervisory attorney with Memphis discussed the ADAAA at the Tennessee Human Rights Commission Employment Discrimination Seminar. A trial attorney with Philadelphia discussed the ADA and the ADAAA with the Disabilities Outreach Office of Howard County, Maryland. A trial attorney with Dallas gave a presentation on the ADAAA to members of the North Texas Industrial Liaison Group.

Media Contacts

The regional attorney for New York spoke with a producer at "20/20," as well as reporters with Fox News and the New York Times about pregnancy discrimination. She also spoke with reporters at the New York Post and to Channel 2 News about charge processing procedures, and to reporters at Newsday about affirmative action plans. She and a trial attorney spoke with reporters at Kiplinger's Retirement General about age discrimination. A trial attorney from San Francisco spoke to a producer of the PBS documentary, "NOW" concerning teen sexual harassment and a pending EEOC lawsuit involving the sexual harassment of teenage girls. A trial attorney with Atlanta was a guest on a radio talk show discussing discrimination in the workplace.

III. Litigation Statistics

A. Overview of Suits Filed

In FY 2008, the field legal units filed 290 merits lawsuits: 287 direct suits and 3 actions to enforce administrative settlements. (Merits suits include direct suits and interventions alleging violations of the substantive provisions of the Commission's statutes, and suits to enforce settlements reached during EEOC's administrative process.) One hundred and twelve of the suits sought relief for multiple aggrieved individuals. The field legal units also filed 35 actions to enforce subpoenas issued during EEOC investigations.

Merits Filings in FY 2009
	Count
Direct	279
Intervention	0
Administrative Settlements	2
Total	281
167 Individual Suits
114 Class Suits

1. Litigation Workload

The FY 2009 litigation workload (merits cases active at the start of the fiscal year plus merits suits filed during the fiscal year) totaled 770.

FY 2009 Litigation Workload
Active	Filed	Workload
489	281	770

2. Filing Authority

In EEOC's Na tional Enforcement Plan, adopted in February 1996, the Commission delegated litigation filing authority to the General Counsel in all but a few areas. The General Counsel has redelegated much of this authority to the regional attorneys. Redelegated cases are reviewed by staff in the Office of General Counsel prior to filing. The chart below shows the filing authority for FY 2009 merits suits. (Subpoena enforcement actions (not indicated below) are nonmerits suits and are not reviewed by OGC prior to filing.)

FY 2009 Merits Suit Authority
	Count	Percent
Regional Attorney	199	83.8%
Commission	74	13.4%
General Counsel	8	2.8%

3. Statutes Invoked

Of the 281 merits suits filed, 66.9% contained Title VII claims, .7% contained EPA claims, 8.5% contained ADEA claims, 27% contained ADA claims, and 3.2% were filed under multiple statutes. (Statute numbers in the table below exceed the number of suits filed and percentages total over 100% because suits filed under multiple statutes ("concurrent" cases) are included in the tally of suits filed under each of the statutes.)

Merits Filings in FY 2009 By Statute
	Count	Percent of Suits
Title VII	188	66.9%
EPA	2	.7%
ADEA	24	8.5%
ADA	76	27.0%
Concurrent	9	3.2%

4. Bases Alleged

As shown in the next table, sex discrimination (36.3%) and retaliation (35.9%) were the most frequently alleged bases in EEOC suits. Disability discrimination was alleged in 25.6% of FY 2009 suit filings and race discrimination in 17.4%. Suit numbers in the table exceed the total filings (281) because suits often contain multiple bases.

Bases Alleged in Suits Filed
	Count	Percent of Suits
Sex	102	36.3%
Retaliation	101	35.9%
Disability	72	25.6%
Race	49	17.4%
Age	23	8.2%
National Origin	19	6.8%
Religion	11	3.9%
Equal Pay	1	.4%

5. Issues Alleged

Discharge was the most frequently alleged issue in EEOC suits filed (61.6%) and harassment the second (43.1%). Terms and conditions was an issue in 17.4 % of the suits, and hiring in 14.6%.

Frequently Alleged Issues in Suits Filed
	Count	Percent of Suits
Discharge	173	61.6%
Harassment	121	43.1%
Terms and Conditions	49	17.4%
Hiring	41	14.6%
Disability Accommodation	29	10.3%
Promotion	9	3.2%
Pay	8	2.8%
Religious Accommodation	7	2.5%

B. Suits Filed by Bases and Issues

1. Sex Discrimination

As shown below, 71.6% of cases with sex as a basis contained a harassment allegation. Discharge was the second most frequently alleged issue in sex claims (42.2%).

Frequently Alleged Sex Discrimination Issues
	Count	Percent
Harassment	73	71.6%
Discharge	43	42.2%
Terms/Conditions	7	6.9%
Hiring	5	4.9%

2. Race Discrimination

Harassment was also the most frequently alleged issue in race discrimination claims (63.3%). Discharge was an issue in 26.5% of race claims and terms and conditions of employment was an issue in 18.4% .

Frequent Alleged Race Discrimination Issues
	Count	Percent
Harassment	31	63.3%
Discharge	13	26.5%
Terms/Conditions	9	18.4%

3. National Origin Discrimination

As shown in the next table, harassment was the most frequently alleged issue where national origin was the basis (57.9%).

Frequently Alleged National Origin Discrimination Issues
	Count	Percent
Harassment	11	57.9%
Hiring	6	31.6%
Terms and Conditions	5	26.3%
Discharge	4	21.1%

4. Religious Discrimination

Discharge and failure to accommodate were issues in most of the religious discrimination cases.

Frequently Alleged Religious Discrimination Issues
	Count	Percent
Discharge	8	72.7%
Reasonable Accommodation	7	63.6%

5. Age Discrimination

Discharge and hiring were the most common issues in age discrimination cases.

Frequently Alleged Age Discrimination Issues
	Count	Percent
Discharge	9	39.1%
Hiring	8	34.8%

6. Disability Discrimination

Discharge was the most frequently alleged issue in disability suits (54.2%), followed by failure to accommodate (40.3%) and hiring (26.4%).

Frequently Alleged Disability Discrimination Issues
	Count	Percent
Discharge	39	54.2%
Reasonable Accommodation	29	40.3%
Hiring	19	26.4%

7. Retaliation

Discharge was an issue in over 80% of retaliation claims.

Frequently Alleged Retaliation Issues
	Count	Percent
Discharge	84	83.2%
Terms/Conditions	13	13.0%
Harassment	12	11.0%

C. Bases Alleged in Suits Filed from FY 2005 through FY 2009

The table below shows, by year, the bases on which EEOC suits were filed over the last 5 years.

Bases Alleged in Suits Filed FY 2005 – 2009 Percent Distribution
FY	Sex(F)	Sex(P)	Sex(M)	Race	Nat. Or.	Relig.	Dis.	Age	Retal.
2005	34.9%	8.1%	3.9%	21.1%	7.8%	3.9%	12.8%	11.2%	35.8%
2006	33.4%	8.6%	3.2%	21.3%	10%	6.5%	10.5%	12.4%	32.3%
2007	30.1%	8.6%	4.8%	19.3%	11.3%	7.7%	12.2%	9.5%	37.8%
2008	30%	8.6%	2.1%	23.4%	7.2%	6.2%	12.8%	13.1%	35.2%
2009	26.7%	5.7%	3.9%	17.4%	6.8%	3.9%	25.6%	8.2%	35.9%

D. Suits Resolved

In FY 2009, the Office of General Counsel resolved a total of 324 merits lawsuits, recovering $81,668,814 in monetary relief .

1. Types of Resolutions

As the table below indicates, 83.9% of EEOC's suit resolutions were settlements, 12.8% were determinations on the merits by courts or juries, and 3.4% were voluntarily dismissed (5 of the 11 voluntary dismissals were without prejudice). (The figures on favorable and unfavorable court orders do take reversals on appeal into account.)

Types of Resolutions FY 2009
	Count	Percent
Consent Decree	257	79.3%
Settlement Agreement	15	4.6%
Favorable Court Order	12	3.8%
Unfavorable Court Order	29	9.0%
Voluntary Dismissal	11	3.4%
Total	324	100%

2. Statutes Invoked

Of the 324 merits suits resolved during the fiscal year, 78.4% contained Title VII claims. ADA claims were present in 12.3% of the resolutions and ADEA claims in 11.7%. (Statute numbers in the table below exceed the number of suits resolved and the percentages total over 100% because suits resolved under multiple statutes ("concurrent" cases) are also included in the tally of suits resolved under each statute.)

FY 2009 Resolutions by Statute
	Count	Percent of Suits
Title VII	254	78.4%
EPA	5	1.5%
ADEA	38	11.7%
ADA	40	12.3%
Concurrent	13	4.0%

As shown below, Title VII suits accounted for almost 80% of monetary relief obtained in FY 2009. Recoveries in concurrent suits are not included in the totals for the particular statutes.

FY 2009 Monetary Relief by Statute (rounded)
Statute	Relief (millions)	Relief Percent
Title VII	$64.5	78.9%
EPA	$.02	.02%
ADEA	$6.7	8.3%
ADA	$9.5	11.7%
Concurrent	$.9	1.1%
Total	$81.6	100.0%

3. Bases Alleged

As shown in the following table, sex was a basis in 41% of the suits resolved, retaliation in 37.3%, and race in 20.1%. The total count exceeds suits resolved (324) because suits often contain multiple bases.

Bases Alleged in Suits Resolved
	Count	Percent of Suits
Sex	133	41.0%
Retaliation	121	37.3%
Race	65	20.1%
Disability	37	11.4%
Age	38	11.7%
National Origin	31	9.6%
Religion	28	8.6%
Equal Pay	3	.9%

4. Issues Alleged

Similar to the suits filed statistics, discharge and harassment were by far the most frequently alleged issues in resolved cases.

Frequently Alleged Issues in Suits Resolved
	Count	Percent of Suits
Discharge	205	63.3%
Harassment	127	39.2%
Terms and Conditions	51	15.7%
Hiring	43	13.3%
Promotion	25	7.7%
Disability Accommodation	16	4.9%
Religious Accommodation	15	4.6%
Pay	14	4.3%

E. Resources

1. Staffing

After many years of decreasing field staff, FY 2009 showed increases in both total field staff and attorneys. The following table shows field and headquarters staffing numbers for the last 5 years.

OGC Staffing (On Board)
Year	HQ	All Field	Field Attorneys*
2005	77	311	203
2006	56	308	200
2007	55	299	194
2008	51	296	193
2009	54	311	211
* Includes Regional Attorneys, Supervisory Trial Attorneys, and Trial Attorneys

2. Litigation Budget

As indicated in the table below, OGC's litigation support budget increased by over $1 million in FY 2009.

Litigation Budget Funding (Millions)
FY	FUNDING
2005	$3.65
2006	$3.48
2007	$3.35
2008	$3.58
2009	$4.60

F. Historical Summary: Tables and Charts

1. EEOC 10-Year Litigation History: FY 2000 through FY 2009

Litigation Statistics, FY 2000 through FY 2009

	FY00	FY01	FY02	FY03	FY04	FY05	FY06	FY07	FY08	FY09
All Suits Filed	329	428	370	400	421	416	403	362	325	316
Merits Suits	292	388	342	366	378	381	371	336	290	281
Suits with Title VII Claims	236	289	268	298	297	295	294	268	224	188
Suits with ADA Claims	29	66	44	49	46	49	42	46	37	76
Suits with ADEA Claims	33	42	39	27	46	44	50	32	38	24
Suits with EPA Claims	9	14	12	12	5	13	10	7	0	2
Suits filed under multiple statutes¹	14	19	19	19	14	17	22	16	9	9
Subpoena and Preliminary Relief Actions	37	40	28	34	43	35	32	26	35	35
All Resolutions	440	362	381	381	380	378	418	387	367	352
Merits Suits	407	321	351	351	346	338	383	364	336	324
Suits with Title VII Claims	315	232	266	275	277	259	295	297	265	254
Suits with ADA Claims	53	48	65	50	43	41	50	41	46	40
Suits with ADEA Claims	41	39	26	35	34	45	50	36	39	38
Suits with EPA Claims	6	15	9	13	9	12	8	14	3	5
Suits filed under multiple statutes	8	12	15	21	14	18	17	19	16	13
Subpoena and Preliminary Relief Actions	33	41	30	30	34	40	35	23	31	28
Monetary Benefits ($ in millions)²	52.2	49.8	56.2	146.6	168.6	104.8	44.3	54.8	101.1	81.6
Title VII	35	33.6	29.2	85.1	158.5	98	34.3	38.9	64.9	64.5
ADA	2.9	2.3	15.1	2.3	2.5	3.4	2.8	3.1	3.3	9.5
ADEA	13.8	3.1	1.4	57.8	5.4	2.4	5.1	2.4	29.9	6.7
EPA	0.2	0.2	0.2	0	0	0	0	0.2	1.0	0.02
Suits filed under multiple statutes³	0.4	10.7	10.3	1.5	2.3	1	2.1	10.2	1.7	0.9

2. Merits Suits Filed FY 2000 through FY 2009

The chart below shows the number of merits suits filed for FY 2000 through FY 2009.

3. Merits Suits Resolved FY 2000 through FY 2009

The chart below shows the number of merits suits resolved for FY 2000 through FY 2009.

4. Monetary Recovery FY 2000 through FY 2009

The chart below shows the monetary recovery for FY 2000 through FY 2009.

Footnotes

¹ Suits filed or resolved under multiple statutes are also included in the tally of suits filed under the particular statutes.

² The sum of the statute benefits in some years will be different from total benefits for the year due to rounding.

³ Monetary benefits recovered in suits filed under multiple statutes are counted separately and are not included in the tally of suits filed under the particular statutes.

OFFICE OF GENERAL COUNSEL FISCAL YEAR 2009 ANNUAL REPORT

TABLE OF CONTENTS

I. Structure and Function of the Office of General Counsel

A. Mission of the Office of General Counsel

B. Headquarters Programs and Functions

C. District Office Legal Units

II. Fiscal Year 2009 Accomplishments

A. Summary of District Court Litigation Activity

B. Litigation in Federal District Courts

C. Appellate Court Litigation

D. Outreach: Educating the Public

III. Litigation Statistics

A. Overview of Suits Filed

B. Suits Filed by Bases and Issues

C. Bases Alleged in Suits Filed from FY 2005 through FY 2009

D. Suits Resolved

E. Resources

F. Historical Summary: Tables and Charts

Comisión para la Igualdad de Oportunidades en el Empleo

Sede de la EEOC

Breadcrumb

OFFICE OF GENERAL COUNSEL FISCAL YEAR 2009 ANNUAL REPORT

TABLE OF CONTENTS

I. Structure and Function of the Office of General Counsel

A. Mission of the Office of General Counsel

B. Headquarters Programs and Functions

C. District Office Legal Units

II. Fiscal Year 2009 Accomplishments

A. Summary of District Court Litigation Activity

B. Litigation in Federal District Courts

C. Appellate Court Litigation

D. Outreach: Educating the Public

III. Litigation Statistics

A. Overview of Suits Filed

B. Suits Filed by Bases and Issues

C. Bases Alleged in Suits Filed from FY 2005 through FY 2009

D. Suits Resolved

E. Resources

F. Historical Summary: Tables and Charts