Workplace Class Action Blog

Briefing For The Big Bucks: CRST Asks U.S. Supreme Court For Attorneys’ Fees From The EEOC

Posted in EEOC Litigation

Bsupremecourty Gerald L. Maatman, Jr., Christina M. Janice, and Alex W. Karasik

EEOC v. CRST Van Expedited, Inc. is a key case for all employers.

We have been tracking the developments (here, here, here, here, here, here, here, and here) in this case since its inception. Now it has reached the U.S. Supreme Court on the issue of whether attorneys’ fees are appropriate in instances where the EEOC failed to satisfy its pre-suit investigation duties under Title VII, but the employer was not victorious “on the merits.”  In EEOC v. CRST Van Expedited, Inc., 774 F.3d 1169 (8th Cir. 2014), the U.S. Court of Appeals for the Eighth Circuit reversed and remanded a nearly $4.7 million award of attorneys’ fees – the largest fee sanction ever levied against the Commission – to the employer, CRST, finding that the District Court’s dismissal of 67 claims based on the EEOC’s failure to satisfy Title VII’s pre-suit obligations did not constitute a ruling on the merits, and therefore the employer was not a “prevailing party” entitled to a fee award as to those claims.  On remand, the District Court was instructed to individually assess each claim for which it granted summary judgment for CRST on the merits and explain why it deemed that particular claim to be frivolous, groundless, or unreasonable.

Following the decision, CRST petitioned for a rehearing en banc, which was denied on February 20, 2015.  Thereafter, CRST petitioned the U.S. Supreme Court for certiorari, which was granted on December 4, 2015.  On January 19, 2016, CRST submitted its merits brief, which presented the following question to the Supreme Court: whether a dismissal of a Title VII case, based on the EEOC’s total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations, can form the basis of an attorneys’ fee award to the defendant under 42 U.S.C. § 2000e-5(k).

On January 26, 2016, the Equal Employment Advisory Council, National Federation of Independent Business, and Small Business Legal Center filed an amici brief in support of CRST.  Others filing amicus briefs in support of CRST included Americans for Forfeiture Reform (here); Bass Pro Shops Outdoor World, LLC and Tracker Marine Retail, LLC (here); and the U.S. Chamber of Commerce, American Trucking Associations, Inc., and Business Roundtable (here).

Hence, the stage is set for what may well be one of the most important rulings on EEOC litigation in memory.

The Context And The Stakes

On September 27, 2007, the EEOC filed a single count complaint against CRST under Section 706(f) of Title VII on behalf of a female driver and a class of “similarly situated” but unidentified female employees of CRST.  Id. at 10.  The U.S. District Court for the Northern District of Iowa noted that in the course of discovery, “it became clear that the EEOC did not know how many allegedly aggrieved persons on whose behalf it was seeking relief,” and that “the EEOC was using discovery to find them.”  Id. at 11.  CRST successfully moved the District Court for the dismissal of Title VII claims for sexual harassment brought by the EEOC on behalf of several hundred female truckers, after demonstrating that EEOC did not conduct any investigation of the specific allegations of the allegedly aggrieved persons for whom it sought relief at trial before filing the Complaint — let alone issue a reasonable cause determination as to those allegations or conciliate them.

After securing the dismissals and settling the claims of the original charging party, CRST moved for the award of attorneys’ fees and costs.  The District Court granted the motion and directed the EEOC to pay CRST nearly $4.7 million in attorneys’ fees and costs, finding that the EEOC’s actions in pursuing this lawsuit were unreasonable, contrary to the procedure outlined by Title VII and imposed an unnecessary burden upon CRST and the District Court.  Id. at 18.  However, on appeal the Eighth Circuit held that the District Court “did not make particularized findings of frivolousness, unreasonableness, or groundlessness as to each individual claim” and remanded these claims to the District Court to make such individualized determinations.  Id. at 20.  Further, the Eighth Circuit found that that District Court’s dismissal of 67 claims based on the EEOC’s failure to satisfy Title VII’s pre-suit obligations “[did] not constitute a ruling on the merits,” and that “[t]herefore, CRST is not a prevailing party as to these claims.”  Id. at 21.  The Eighth Circuit also held that CRST could not satisfy the standard of Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978), for the same reason: “[P]roof that a plaintiff’s case is frivolous, unreasonable, or groundless is not possible without a judicial determination of the plaintiff’s case on the merits.”  Id. (internal quotation omitted).

Following the Supreme Court’s eventual ruling, this case will provide guidance on how employers can pursue attorneys’ fees and costs in the increasingly common instances where the EEOC has abandoned its pre-suit duties required by Title VII.

CRST’s Brief

In its brief, CRST makes two arguments as to why the Eighth Circuit’s decision was improper.  First, CRST argues that the Eighth Circuit’s rule that a prevailing defendant may recover fees only when a case is decided “on the merits” has no basis in the statute, conflicts with Christiansburg, and severely undermines the policy of Section 706(k).  Id. at 23.  In relevant part, Section 706(k) authorizes district courts to award attorneys’ fees to the “prevailing party” in a Title VII case.  Id. at 22.  Christianburg held that fee awards to a prevailing defendant are permissible only if the plaintiff’s lawsuit was “frivolous, unreasonable, or without foundation.”  Id. (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).  CRST contends that “categorically denying fees in such cases [not decided on the merits] would frustrate the congressional policy choice embodied in Section 706(k): to ensure that plaintiffs who impose unnecessary and unreasonable litigation costs on defendants will bear the costs of their own choices.”  Id. at 24.  Further, CRST notes that “[a]s lower courts applying Christiansburg have repeatedly recognized, that decision to litigate can be unreasonable for many reasons that do not bear on the ultimate merits of the claims — including, for example, when the suit is obviously time-barred or moot.”  Id. at 24.  Accordingly, CRST asserts that the precedent created by the Eighth Circuit’s decision would allow the EEOC to entirely abandon its pre-suit responsibilities with impunity, which would lead to one-sided and inefficient conciliations.  Id. at 25.

Second, CRST posits that even if Congress intended Section 706(k) to limit defendants’ fee awards to cases decided “on the merits,” which it claims Congress did not do, this case would still qualify under that standard.   Id.  CRST notes that “Title VII’s pre-suit requirements are substantive, mandatory conditions that determine whether a court may hold an employer liable in a case brought by the EEOC” and that the “EEOC’s claims were dismissed in this case because the EEOC failed…to first determine whether the allegations that it intended to litigate had sufficient merit to warrant requiring CRST to defend itself in court.”  Id. at 25-26.  Accordingly, given that these pre-suit requirements were elements of the EEOC’s cause of action, CRST argues that it prevailed on the merits when it defeated certain claims by demonstrating that the EEOC did not investigate, find reasonable cause for, or attempt to conciliate any of these claims as required by the statute.  Id. at 42.

Amici Briefs Filed In Support Of CRST

The amici submission filed by the Equal Employment Advisory Council argues that the Eighth Circuit’s decision was contrary to Title VII’s text, policy aims, and purposes and was inconsistent with the Supreme Court’s decision in Christiansburg.  Amici Brief, at 9.  The amici brief notes that while “Title VII expressly authorizes courts to award a prevailing party, ‘other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs ….’ 42 U.S.C. § 2000e5(k)…[i]t places no conditions on the court’s discretion to award such fees, except to specify attorney’s fees are not available if the prevailing party is either the EEOC or another federal government agency.”  Id. at 10.  Accordingly, the amici brief posits that Title VII does not limit the award of attorneys’ fees and costs to parties who have prevailed on the merits, contrary to the Eighth Circuit’s holding.  Id. at 12.

Further, the amici brief asserts the Eighth Circuit misapplied Christianburg, which involved a claim for attorney’s fees based on the dismissal of an EEOC suit on procedural grounds.  Id. at 10-11.  The amici brief argues that the Eighth Circuit “purports to absolve the EEOC of any liability for a prevailing defendant’s attorneys’ fees in cases dismissed based on anything other than a final adjudication of the discrimination claim on the merits, [and] is irreconcilable with Title VII’s plain text and [the Supreme Court’s] interpretation of it in Christiansburg.”  Id. at 11.  Finally, the amici brief describes policy reasons for awarding attorneys’ fees in cases such as this one, noting “in its zeal to litigate large, high profile class-based suits, the EEOC’s enforcement priorities seemingly have focused less on informal resolution of discrimination charges, as contemplated by Title VII, and more on developing and maintaining a broad, class-based litigation docket.”  Id.  As such, contrary to the Eighth Circuit’s holding, amici assert that courts should not tolerate such improper conduct by the EEOC, which would be deterred by entitling prevailing defendants to reasonable attorneys’ fees and costs.

What’s Next

The Supreme Court is set to hear oral arguments on March 28, 2016 before ultimately issuing a final ruling.  Employers should pay close attention to the Supreme Court’s eventual ruling in this case.  While a favorable ruling for CRST would undoubtedly serve as a wake-up call to the EEOC in regards to fulfilling its pre-suit duties, an unfavorable ruling could have an adverse effect on employers as the EEOC could seemingly neglect its pre-suit responsibilities without having to fear any subsequent sanction.  We will keep our loyal blog readers updated as developments occur in this litigation.

Readers can also find this post on our EEOC Countdown blog here.

Court Certifies Title VII Discrimination Case Based On Discretionary Decision-Making

Posted in Class Certification

Washington-westernBy Laura Maechtlen and Julie G. Yap

In Rollins v. Traylor Brothers, Case No. 14-CV-1414 (W.D. Wash. Jan. 21, 2016),  Judge John Coughenour of the U.S. District Court for the Western District of Washington certified the claims of a class of workers alleging claims of discrimination under both disparate impact and disparate treatment liability theories. Id. at 6-12, 18. The Court also approved plaintiffs’ request to proceed through a two-stage trial process, whereby if plaintiffs established a discriminatory policy or disparate impact during stage one, “each class member would be awarded a rebuttable inference that all class members were victims of defendants’ allegedly discriminatory practices and/or suffered a disparate impact” in stage two. Id. at 16.

The Court’s order serves as another reminder that, even after Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), judges may still certify a discrimination class action based on subjective decision-making, at least when presented with the types of facts before the Court in this case.

Case Background

In Rollins, defendants were contractors for the Sound Transit “University Link” light-rail projects, which included making hiring and firing decisions for laborers the Union dispatched to the Project. In response to “allegations of discrimination and harassment” by black laborers, Sound Transit hired an investigator and statistician, who made findings and prepared a report concluding that the defendants’ “subjective decision-making had a disparate impact on black laborers.” Id. at 2. Specifically, the statistician concluded that black laborers dispatched to defendants’ site had a “threefold higher risk” of not being hired or of being terminated and that, on average, white and Hispanic laborers worked twice as many hours a week as black laborers. Id. Notably, while it expressly disavowed relying on the report’s ultimate conclusion, the Court referenced the report and its factual findings throughout the decision.

The District Court’s Certification Decision

To certify the class, the Court first undertook its own modifications to the class definition. The Court rejected plaintiffs’ proposed “class of laborers of African-American decent with dark skin and/or appearing African American” — a description the Court noted that one of the named plaintiffs may not fit. Instead, the Court defined the class as “laborers who identify as black or believe that Defendants perceived them as black.” Id. at 4. Similarly, the Court also rejected as potentially ambiguous plaintiffs’ inclusion of laborers “who were dismissed shortly after being hired, dismissed after working only a few shifts, and/or otherwise treated unfairly.” Id. Rather, the Court, on its own initiative, reformulated the description to include laborers who “were not hired after being dispatched, were hired but later terminated, and or believe they were otherwise treated unfairly.” Id.

The Court’s certification decision focused a substantial amount of its analysis on findings supporting commonality. Specifically, the Court concluded that substantial anecdotal and statistical evidence supported both disparate treatment and disparate impact theories of liability.  For example, the Court detailed a number of racially insensitive and derogatory comments made by supervisors tasked with hiring and firing decisions. The Court also noted instances that could be interpreted as retaliation for complaining about unfair treatment. The Court also highlighted the statistical disparity between terminations and hours worked by black laborers and white laborers. The Court rejected defendants’ contention that black laborers were simply less qualified, comparing the statistics at defendants’ site to that of related project site run by a different contractor utilizing the same Union dispatch process where the racial disparities were substantially less. Accordingly, based on what the Court described as “substantial anecdotal and statistical evidence that site-wide discrimination affected employment decisions,” the Court concluded that plaintiffs established common questions of liability relating to the specific project site. Id. at 9, 11.

In certifying the class, the Court also rejected defendants’ administrative exhaustion argument.  Defendants argued that plaintiffs could not bring claims under a disparate impact theory because this theory was not alleged in any of the prerequisite EEOC charges. The Court concluded, however, that plaintiffs’ disparate impact theory was not procedurally barred because it “could reasonably be expected to grow out of the charge of discrimination.” Id. at 13. The Court emphasized that in this case, both the disparate treatment and disparate impact theories were “connected to Defendants’ alleged failure to institute policies to guide their managers’ discretionary decision-making,” and thus, “it would be reasonable to expect that EEOC investigators would look into Defendants’ job assignment, discipline, and termination policies” that the plaintiffs contended support the disparate impact theory. Id.

The District Court’s Trial Plan

Finally, the Court approved plaintiff’s bifurcated trial plan. In stage one, plaintiffs would bear the burden of establishing liability, by a preponderance of the evidence, on their disparate treatment and disparate impact claims, as well as the availability of punitive damages. The Court noted that “if successful on these claims, Plaintiffs would be awarded a rebuttable inference that all class members were victims of Defendants’ allegedly discriminatory practices and/or suffered a disparate impact from its neutral employment policies.” Id. at 16. In stage two, the Court noted that it would hold individual hearings before a separate jury, in which each individual class member would need to show that “he suffered an adverse employment decision or was adversely affected by a challenged policy or practice.”  The burden would then shift to defendants to show that any such adverse action was taken for legitimate reasons or to raise any other applicable affirmative defenses.

Implications For Employers

The Court’s decision highlights that, despite the hurdles to certifying class actions alleging discrimination under Title VII after Wal-Mart, courts may be willing to certify class actions where the action is defined to a specific job location and where the plaintiffs can bring forth “substantial” statistical and anecdotal evidence.

However, the Court’s decision still leaves ambiguity regarding how a trial of such claims can proceed. While the Court laid out the general procedures for the bifurcated trial, the Court emphasized that it had not determined “the exact details of how trial will proceed.” Id. at 17-18.  Accordingly, the Court ordered further briefing on the issue. Id. at 18. As such, despite the Court’s extensive order, there are still open questions regarding how this matter will be tried in a manner that comports with due process. We will continue to follow developments as the parties file their briefs and keep our readers informed.

Our 2016 Workplace Class Action Report Made TV!

Posted in Class Action Litigation

With the publication of our Annual Workplace Class Action Report, the reaction from clients and loyal blog readers has been great. The Report has been reported widely by the media too. Our upcoming February 1 webinar on the Report already has over 1,200 participants signed up. It manifests the notion that workplace class action litigation is one of those workplace issues that keep executives, corporate counsel, and HR professionals up at night.

LXBN TV recently televised our Report, and we thought our readers would enjoy the show.

 

 

 

12th Annual Workplace Class Action Report Webinar: Looking Back At Key Developments Of 2015 And What Lies Ahead In 2016

Posted in Class Action Litigation

#16-3130 2016 WCAR Tickit Icon R!By Lorie Almon, Gerald L. Maatman, Jr., and Amanda Sonneborn

Back by popular demand, our Annual Workplace Class Action Litigation Report Webinar is on Monday, February 1, 2016. Click here to register and attend. It’s free!

Across all varieties of workplace litigation, class action dynamics increasingly have been shaped and influenced by recent rulings in the U.S. Supreme Court. This past year the Supreme Court issued several key decisions on complex employment litigation issues and accepted more cases for review that are posed for rulings this coming year. Some decisions may be viewed as hostile to the expansive use of Rule 23, while others are hospitable and strengthen the availability of class actions against employers.

For an interactive analysis of 2015 decisions and emerging trends, please join us for our annual webinar offered in conjunction with the publication of our 12th Annual Workplace Class Action Litigation Report.  The Report’s author, Gerald L. Maatman, Jr., along with Lorie Almon, chair of our wage & hour group, and Amanda Sonneborn of our ERISA class action group, will cover a changed national landscape in workplace class action litigation.

In our accompanying webinar, highlights from the Report will outline a number of key trends for employers in 2016, including:

  • The Supreme Court’s pro-worker and pro-business rulings through which employers must carefully thread the needle
  • The top 10 employment-related class action settlements that reached an all-time high in 2015 and the federal and state court rulings that were more favorable for the plaintiffs’ bar in employment-related cases in 2015
  • What employers can expect as wage & hour litigation, specifically FLSA filings, rose for the sixth straight year to a new record high and new scrutiny of independent contractor and joint employment relationships are expected to drive this number even higher in 2016
  • The Department of Labor and Equal Employment Opportunity Commission’s continued aggressive litigation approaches in 2015 and rebound from the record low aggregate settlement recoveries of 2014, showing employers the agencies focus on “big impact” lawsuits

The date and time of the webinar is February 1, 2016:

1:00 p.m. to 2:00 p.m. Eastern Time

12:00 p.m. to 1:00 p.m. Central Time

11:00 a.m. to 12:00 p.m. Mountain Time

10:00 a.m. to 11:00 a.m. Pacific Time

Speakers: Lorie Almon, Gerald L. Maatman, Jr., and Amanda Sonneborn

What Employers Should Know – Listen To The EEOC

Posted in EEOC Litigation

calmBy Gerald L. Maatman, Jr.

Today I had the privilege of attending the 24th Annual Employment Practices Liability Insurance Program hosted by the American Conference Institute in New York City (I moderated a session on EEOC litigation).

Constance Barker, one of the five Commissioners at the U.S. Equal Employment Opportunity Commission, gave the keynote address at the Program. Her presentation was fascinating, and focused largely on the future enforcement litigation activities of the EEOC for 2016. As the tag line of the old E.F. Hutton TV commercial suggested, “when the EEOC talks, employers should listen….” Commissioner Barker’s views and pronouncements are important for employers in crafting their workplace compliance strategies.

Focus Of Possible EEOC Activities

Commissioner Barker noted that 2016 is apt to see the EEOC issuing various regulations and guidance as the final year of the Obama Administration winds down. As she said at today’s Program, “expect a lot of activity…” In addition to regulations on GINA, the ADA, and wellness plans, Commissioner Barker asserted that other guidance is likely in the areas of retaliation, joint employer liability, leave policies, and national origin discrimination relative to Muslim workers. Commission Barker advised employers to take a close look at the proposed retaliation guidance, which she termed was “huge, huge, huge…” In particular, she cited the guidance’s expansive view of what constitutes protected activity, and how even discipline over “do not discuss compensation” policies would constitute retaliation (on the premise that discussing pay is protected activity).

Systemic Litigation Targets

Commissioner Barker opined that the healthcare, restaurant, and manufacturing industries would see significant litigation activity in 2016. Moreover, race, gender, pregnancy, and leave issues will be “litigation hot spots” for those industries. With nearly 25% of the EEOC’s docket now focus on systemic litigation involving assertion of claims on behalf of groups of employees, Commissioner Barker said that “leave and accommodation policies” also will be prime targets for systemic litigation.

Commissioner Barker shared the view that certain leave policies are on the EEOC’s litigation radar screen, such as policies that cap leave at a certain number of days; policies that have no accommodation safeguards; “100% healed” policies; and policies prohibiting leave if a worker is not FMLA-eligible.

New Developing Areas

Commissioner Barker also predicted a continuing commitment by the EEOC to “develop the law” on joint employer concepts, LGBT rights, workplace arbitration, and protections for workers in the gig economy. She noted that various agencies – such as the NLRB – have been quite aggressive in expanding traditional notions of employer liability, and that employers should be mindful that the EEOC is sometimes aligned to those views too.

In broader terms, this squarely raises the issue of the proper role and responsibility of the EEOC. Should it enforce the law as written or expand the law to maximize the reach and public policies within employment discrimination prohibitions? Many critics of the EEOC have cited its litigation focus as further evidence that the Commission is an activist agency that is result-oriented and willing to do whatever it takes to pursue litigation enforcement strategies it deems appropriate.

This issue is sure to heat up further in 2016.

Readers can also find this post on our EEOC Countdown blog here.

Mach Mining Part 3: Supreme Court Gem Resurfaces In Southern District Of Illinois

Posted in EEOC Litigation

sealBy Gerald L. Maatman, Jr., Christina M. Janice, and Alex W. Karasik

Following the U.S. Supreme Court’s landmark decision in Mach Mining v. EEOC, 135 S.Ct. 1645 (2015), which held that a judge may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit, and that the scope of that review is narrow, the litigation was remanded to the U.S. District Court for the Southern District of Illinois for further proceedings consistent with that ruling. Subsequently, the EEOC renewed its motion for partial summary judgment that originally had been denied by the District Court, and filed motions to strike Mach Mining’s evidence regarding the conciliation process. Applying the Supreme Court’s ruling that we previously blogged about here, Judge J. Phil Gilbert of the U.S. District Court for the Southern District of Illinois granted in part the EEOC’s  motions to strike with respect to evidence of communications during conciliation, and granted the EEOC’s renewed motion for partial summary judgment as to Mach Mining’s defense of failure to conciliate. EEOC v. Mach Mining, LLC, No. 11-cv-00879-JPG-PMF (S.D. Ill. Jan. 19, 2016).

This decision is required reading for employers engaged in EEOC investigations, conciliations and enforcement litigation.

Case Background

In 2011, the EEOC filed suit on behalf of a class of female applicants who had applied for non-office jobs at Mach Mining’s Johnston City, Illinois facility. According to the EEOC, Mach Mining “has never hired a single female for a mining-related position,” and “did not even have a women’s bathroom on its mining premises.” Id. at 1. The complaint alleged that since January 1, 2006 Mach Mining engaged in a pattern or practice of unlawful discrimination on the basis of sex, in violation of Title VII. In its answer, Mach Mining asserted the EEOC’s failure to conciliate in good faith under 42 U.S.C. § 2000e-(5)(b) as an affirmative defense to the litigation.

The EEOC moved for partial summary judgment on Mach Mining’s affirmative defense of failure to conciliate. The District Court denied the motion, finding that the EEOC was not entitled to judgment as a matter of law as the EEOC’s pre-suit duty to conciliate was subject to at least some level of judicial review. Id. at 2. The EEOC then filed a motion for reconsideration or, in the alternative, for certification for appeal under 28 U.S.C. §1292(b). The District Court held oral arguments and denied reconsideration of its order, but granted the motion to certify. The Seventh Circuit ultimately reversed and remanded the case back to the District Court for proceedings on the merits. Mach Mining then petitioned for certiorari to the Supreme Court, which was granted.

The Supreme Court heard arguments on January 13, 2015 and decided on April 29, 2015 that, a judge “may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit…[but] the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.” Mach Mining, LLC v. EEOC, 135 S.Ct. at 1649 (2015). The Supreme Court reasoned that narrow judicial review of the EEOC’s pre-suit duty to attempt conciliation prior to litigation was appropriate, given the confidential nature of conciliation and the discretion afforded the EEOC under Title VII to determine how to attempt conciliation.  Accordingly, the judgment of the Court of Appeals was vacated and the matter was remanded back to the Seventh Circuit for further proceedings. The Seventh Circuit then remanded the case back to the District Court for proceedings consistent with the opinion of the Supreme Court.

The EEOC subsequently renewed its motion for partial summary judgment on Mach Mining’s affirmative defense of failure to conciliate, arguing that it had sufficiently demonstrated attempting conciliation with Mach Mining, and compliance with 42 U.S.C. § 2000e-5(b). The EEOC also filed two motions to strike, arguing in the first motion that a portion of Mach Mining’s opposition to summary judgment revealed confidential information about the conciliation process in derogation of 42 U.S.C. § 2000e-5. The District Court previously had denied the EEOC’s attempts to strike this information, agreeing with Mach Mining that the information provided in Mach Mining’s papers was focused on what was missing from the conciliation process, as opposed to what was actually said or done during the process. The EEOC argued in the second motion that portions of Mach Mining’s exhibits and statement of additional undisputed facts in support of its opposition to the EEOC’s motion for partial summary judgment similarly should be stricken.

The District Court’s Decision

The District Court granted the EEOC’s motions to strike, in part, and granted the EEOC partial summary judgment on Mach Mining’s affirmative defense of failure to conciliate.  In doing so, the District Court observed that the Supreme Court provided guidance for limited judicial review of the informal “conference, conciliation, and persuasion” requirement of Title VII, and for what information a court may consider in its review.  The District Court relied on the Supreme Court’s reasoning that a judge “looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.”  Mach Mining, No. 11-CV-00879, at 4. The District Court determined that while substantive details had not been disclosed by Mach Mining in its court filings, nevertheless specifics as to that was “said or done” during the conciliation process were disclosed, and went beyond “whether EEOC attempted to confer about a charge.” Id. at 5. Accordingly, the District Court granted the EEOC’s motions to strike portions of Mach Mining’ opposition papers and supporting exhibit.

The District Court declined to strike, however, portions of Mach Mining’s filings attesting to a letter sent by the EEOC stating that conciliation efforts had failed, as well as the date of the lawsuit. The District Court noted that the EEOC previously had stated that such letters were available for review, that the date of filing was a public record, and that information regarding the EEOC’s fiscal year was also publicly available. Id. at 5-6. Accordingly, the District Court found that the information in these paragraphs did not concern statements made or positions taken during conciliation.

Turning to the EEOC’s renewed motion for partial summary judgment, the District Court referred to a two part test outlined in the Supreme Court’s decision to determine whether the EEOC has complied with the statutory requirement of 42 U.S.C. § 2000e-5(b): (1) the EEOC must inform the employer about the specific allegation, as it typically does in a letter announcing its determination of reasonable cause; and (2) the EEOC must try to engage the employer in an informal method of conference, conciliation, and persuasion. The District Court also emphasized that the scope of the review was narrow, looking only to whether the EEOC attempted to confer about a charge, and not to the statements made or positions taken during those discussions. Id. at 7. The District Court found that the EEOC’s letter of determination that it sent to Mach Mining on September 17, 2010 satisfied the first prong since it described Mach Mining’s alleged improper conduct and identified the aggrieved individuals.

As to the second prong, the District Court described how the EEOC provided Mach Mining with the proper notice, and as evidenced by the declaration of its own employee, the EEOC engaged in oral and written communications with Mach Mining to provide the company with the opportunity to remedy the discriminatory practices. To refute the EEOC’s affidavit, Mach Mining was required to provide an affidavit or other evidence indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim. The District Court determined that the affidavit provided by Mach Mining only indicated that the EEOC did not provide all of the information that Mach Mining requested, and not that it failed to provide the requisite information. Therefore, the District Court held that the EEOC met the second prong of the test set out by the Supreme Court, and granted partial summary judgment to the EEOC. Id. at 10.

It is noteworthy that at the end of its decision, the District Court commented that “[a]lthough § 2000e-5(b) of 42 U.S.C. prohibits the disclosure of ‘anything said or done’ during the informal conciliation process, it does not prohibit disclosure of information obtained during the EEOC’s investigation and such information becomes available through discovery.” Id. This observation signals a significant difference between the EEOC’s pre-suit duties to investigate and to attempt conciliation.

Implications For Employers

Following this decision, employers can expect that in EEOC-initiated litigation, the EEOC will seek the narrowest review possible of its conciliation processes, asserting that this pre-suit condition is satisfied merely by producing a letter of determination, a notice of failure of conciliation, and an affidavit by EEOC personnel. With regard to EEOC pre-suit investigations, employers should be prepared to document the EEOC’s pre-suit investigatory conduct and enforce Title VII’s requirement of an investigation prior to the EEOC’s initiation of litigation. Armed with this decision, the EEOC will likely aim for the minimum threshold of satisfying its conciliation requirements for the foreseeable future.

Readers can also find this post on our EEOC Countdown blog here.

U.S. Supreme Court Ruling Removes An Important Wrench From The Defendants’ Toolbox For Defeating Employment Discrimination Class Actions

Posted in Class Action Litigation

supreme courtBy Gerald L. Maatman, Jr., Pamela Q. Devata, and Rebecca S. Bjork

This morning the Supreme Court of the United States issued an important ruling that will affect employers’ ability to defend against a variety of lawsuits brought as class actions, including employment discrimination, Equal Pay Act, Worker Adjustment & Retraining Notification Act, and Fair Credit Reporting Act cases.  In a 6-3 decision in Campbell-Ewald Co. v. Gomez, No. 14-857 (U.S. Jan. 20, 2016), which our readers can review here, the Supreme Court ruled that when a party defending against a claim in a federal lawsuit makes an offer to a named plaintiff under Rule 68 to pay money to completely cover the alleged damages he is seeking and his accumulated costs to that point, and the plaintiff does not accept it, the lawsuit nonetheless may proceed. As explained below, this decision is a game-changer because it denies defendants the opportunity to use Rule 68 to moot the claims of named plaintiffs, and therefore end the class action, by removing the basis for subject-matter jurisdiction under the “cases and controversies” clause of Article III of the U.S. Constitution.

What Is Federal Rule of Civil Procedure 68?

Rule 68 is a relatively obscure provision. Known as the “offer of judgment” rule, it shifts costs to a plaintiff who rejects an offer which is more favorable than the ultimate judgment. Sub-section (a) of Rule 68 states that at least 14 days before a trial date, “a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.  If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service.  The clerk must then enter judgment.”  That portion of Rule 68 is straightforward, and operates as a form of settlement to spare the courts of the obligation to carry through with the trial.

Defendants’ increasing use of Rule 68 offers in employment-related class actions arose from the language of sub-section (d), which states:  “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.”  This provision serves to put pressure on the plaintiff to weigh the risks of proceeding to trial, given that he or she will be ultimately liable to pay the offeror the costs it incurred after the date the offer of judgment was rejected. Thus, the purpose of Rule 68 is plainly to encourage settlement and avoid unnecessary trials.  It essentially permits a defendant to make a settlement offer that raises the stakes for the plaintiff who continues to litigate.  It accomplishes this goal by providing that if the plaintiff does not accept the offer within 14 days and the ultimate judgment obtained by the plaintiff is not greater than the offer, the plaintiff must pay the statutory costs incurred by the defendant after the date the offer is made.  Simply put, Rule 68 shifts to the plaintiff the cost of litigating a lawsuit that the defendant should not have been forced to defend.

The Supreme Court recently interpreted Rule 68 in a 2013 case involving a collective action (a case entitled Genesis HealthCare Corp. v. Symczk, 133 S. Ct. 1523 (2013) – the procedures that require individuals to opt-in to obtain relief in a lawsuit brought by a representative plaintiff, such as under the Equal Pay Act.  But due to a concession made by the plaintiff in that case, the Supreme Court did not reach the key question it decided today in Campbell-Ewald.  As Justice Ginsburg, who wrote the majority opinion today put it, “Is an unaccepted offer to satisfy the named plaintiff’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated?”  Campbell-Ewald, slip op. at 1.

What Did The Supreme Court Rule Today About Unaccepted Offers Of Judgment?

Today, Justices Ginsburg, Kagan, Sotomayor, Kennedy, and Breyer, with Justice Thomas concurring, denied defendants the option of arguing that because the named plaintiff did not accept a full settlement offer under Rule 68 before filing the motion for class certification, he or she does not have a sufficient interest in the controversy to create jurisdiction under Article III of the U.S. Constitution, and both the individual and class claims must be dismissed for lack of subject-matter jurisdiction.  The U.S. Courts of Appeal for the Third, Fourth, and Sixth Circuits had previously ruled that an unaccepted offer under Rule 68 can moot a named plaintiff’s claim in this way, while the First, Second Fifth, Seventh, and Eleventh Circuits had held it could not.  The Supreme Court entered the fray to resolve this split amongst the circuits.  Id. at 5-6.

Under Article III, only “cases” or “controversies” can create federal court jurisdiction, and if the named plaintiff no longer has a personal stake in the outcome of the lawsuit – as opposed to an interest in simply the class action aspects of it – the case must be dismissed as moot.  This was the Supreme Court’s holding in 2013 when it last interpreted Rule 68 in the context of representative lawsuits.  Id. at 6.  In Genesis HealthCare Corp. v. Symczyk, the plaintiff had conceded that the unaccepted offer of judgment made by the defendant in that case served to moot her individual claim, and the Supreme Court considered only whether the lawsuit was justiciable based solely on her interest in pursuing collective action allegations against the defendant.  The answer in that case was “no,” but Justice Kagan in dissent argued that the Supreme Court should have reached the issue that plaintiff conceded – and should have ruled that an unaccepted offer does not moot the plaintiff’s individual claim in the first place.  Campbell-Ewald, slip op. at 7-8.

The Supreme Court now has adopted Justice Kagan’s view in that dissent, and reached the issue explicitly, because Mr. Gomez did not make the same concession Ms. Symczyk made – namely, that his failure to respond to Campbell-Ewald’s offer made his individual claim moot.  Gomez had alleged that Campbell-Ewald, a marketing communications company hired by the U.S. Navy to assist in recruiting volunteers, had violated the Telephone Consumer Protection Act (“TCPA”) by retaining a subcontractor who sent text messages to his telephone encouraging him to serve in the Navy, messages he did not consent to receive.  Id. at 1-3.  He filed a class action lawsuit under the TCPA seeking to represent a nationwide class and obtain treble statutory damages plus costs and attorneys’ fees. Id. at 3.  Before his motion for class certification was due, Campbell-Ewald proposed to settle his individual claim by paying him the amount of money he could receive in statutory damages under the TCPA, plus costs, by serving on him a Rule 68 offer of judgment.  Id. at 3-4.  The 14-day time period for Gomez to respond elapsed, and Campbell-Ewald then moved to dismiss the case under Rule12(b)(1) for lack of subject-matter jurisdiction, arguing his claim had become moot because the offer provided him with complete relief, and therefore the class claims were moot as well.  Id. at 4.

Both the District Court and the U.S. Court of Appeals for the Ninth Circuit denied the motion to dismiss (but made differing rulings regarding the doctrine of “derivative sovereign immunity” that are not relevant here). Today’s majority at the Supreme Court affirmed the Ninth Circuit, and held that “Gomez’s complaint was not effaced by Campbell’s unaccepted offer to satisfy his individual claim.”  Id. at 8.  The Supreme Court did so by applying “basic principles of contract law” that an offer made but not accepted has no force, and is “only a proposal, binding neither Campbell nor Gomez.” Id. at 8-9.  It also noted that by not responding to the offer, Gomez was left “emptyhanded,” so his individual claim was not made moot by the unaccepted offer, so that claim “retains its vitality during the time involved in determining whether the case could proceed on behalf of a class.”  Id. at 11.

The dissenting Justices argued that this case presents a classic case of mootness because Campbell-Ewald offered to give Gomez the maximum amount that he could recover, “but it turns out he wants more.  He wants a federal court to say he is right.  The problem for Gomez is that the federal courts exist to resolve real disputes, not to rule on a plaintiff’s entitlement to relief already there for the taking.”  Id. slip op. at 1 (dissenting opinion, Roberts, J.). Because the plaintiff filed suit “seeking redress for an alleged injury, and the defendant agrees to fully redress that injury, there is no longer a case or controversy for purposes of Article III.”  Id. at 4 (emphasis in original).  Essentially, according to the dissenters, once an offer to completely redress the plaintiff’s injury has been made, there is no need for a court to redress that injury, and the adversity necessary to confer subject matter jurisdiction no longer exists.  Id. at 4.

What Should Employers Do Now, If They Wish To Use Rule 68 To Try And End Class Actions?

Although employers and other defendants facing class action lawsuit lost an important strategy today in the Supreme Court, due to the expense of defending against class certification motions, they still may use Rule 68 to attempt to create settlement leverage, and may even be able to re-invent the Rule 68 procedure to try to moot plaintiff’s claims.  Importantly, the majority limited the holding to situations where there is merely an “offer” to settle the claims.  They expressly reserved and did not decide the question of whether the outcome would be different if a defendant invokes Rule 68 and “deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”   Id. at 11.  Further, the majority did not eviscerate the requirement of Rule 68(d), which shifts costs of an unaccepted offer of judgment to the plaintiff going forward.  The majority noted that the “built-in sanction” for a plaintiff who rejects an offer remains: “the offeree must pay the costs incurred after the offer was made.”  Id. at 9.

So in the end, it is likely that parties defending against claims will continue to use Rule 68, and will do so in these two specific ways that ironically were explicitly suggested by Justice Ginsburg’s majority opinion.  And one prediction we will make here is that, as a result, it is likely that litigation over Rule 68 will turn on disputes over whether creating an “account payable” to a plaintiff satisfies the Rule’s requirement that an “offer” be made to the plaintiff.  Stay tuned as we continue to follow developments in this important area of class action law.

Seyfarth’s Annual EEOC Litigation Study “Goes Viral”

Posted in EEOC Litigation

With the publication of our Annual Study on EEOC Litigation, the reaction from clients and loyal blog readers has been great. The Study was reported widely by the media too. Our upcoming January 19 webinar on the Study already has over 1,200 participants. It manifests the notion that EEOC litigation is one of those workplace issues that keep executives, corporate counsel, and HR professionals up at night.

LXBN TV recently televised our Study, and we thought our readers would enjoy the show

Readers can also find this post on our EEOC Countdown blog here.

 

It’s Here – Seyfarth’s 2016 Workplace Class Action Report

Posted in Class Action Litigation

#16-3130 2016 WCAR Tickit Icon R!By Gerald L. Maatman, Jr.

Our 2016 Workplace Class Action Report is now available. At 853 pages, it analyzes 1,314 rulings and is our biggest and best Report ever.

Click here to order your copy in eBook format. Click here to download Chapter 1 on the 2015 Executive Summary/Key Trends. Our annual webinar on the Report is now set for February 1, 2015, and a link to register for the webinar is here.

The Report is the sole compendium in the U.S. dedicated exclusively to workplace class action litigation, and has become the “go to” research and resource guide for businesses and their corporate counsel facing complex litigation. We were humbled and honored by the review of our Report by Employment Practices Liability Consultant Magazine (“EPLiC”) – the review is here. EPLi said: “The Report is the singular, definitive source of information, research, and in-depth analysis on employment-related class action litigation. Practitioners and corporate counsel should not be without it on their desk, since the Report is the sole compendium of its kind in the United States.”

The 2016 Report analyzes rulings from all state and federal courts – including private plaintiff class actions and collective actions, and government enforcement actions –  in the substantive areas of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act, and the Class Action Fairness Act of 2005. It also features chapters on EEOC pattern or practice rulings, state law class certification decisions, and non-workplace class action rulings that impact employers. The Report also analyzes the leading class action settlements for 2015 for employment discrimination, wage & hour, and ERISA class actions, as well as settlements of government enforcement actions, both with respect to monetary values and injunctive relief provisions.

We hope our loyal blog readers will enjoy it!

Executive Summary

Workplace class action litigation often poses unique “bet-the-company” risks for employers. An adverse judgment in a class action has the potential to bankrupt a business. Likewise, the on-going defense of a class action can drain corporate resources long before the case reaches a decision point. Companies that do business in multiple states are also susceptible to “copy-cat” class actions, whereby plaintiffs’ lawyers create a domino effect of litigation filings that challenge corporate policies and practices. Hence, workplace class actions can adversely impact a corporation’s market share, jeopardize or end the careers of senior management, and cost millions of dollars in defense fees. For these reasons, workplace class action litigation risks are at the top of the list of problems that keep business leaders up at night.

Skilled plaintiffs’ class action lawyers and governmental enforcement litigators are not making that challenge any easier. They are continuing to develop new theories and approaches to prosecuting complex employment litigation. In turn, the events of the past year in the workplace class action world demonstrate that the array of litigation issues facing businesses are continuing to accelerate while also undergoing significant change. Governmental enforcement litigation pursued by the U.S. Equal Employment Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) also manifests an aggressive “push-the-envelope” agenda of two activist agencies, with regulatory oversight of workplace issues continuing as a high priority. The combination of these factors are challenging businesses to integrate their litigation and risk mitigation strategies to navigate these exposures. These challenges are especially acute for businesses in the context of complex workplace litigation.

Key Trends Of 2015

An overview of workplace class action litigation developments in 2015 reveals five key trends.

First, class action dynamics increasingly have been shaped and influenced by recent rulings of the U.S. Supreme Court. Over the past several years, the Supreme Court has accepted supreme courtmore cases for review – and issued more rulings than ever before that have impacted the prosecution and defense of class actions and government enforcement litigation. The past year continued that trend, with several key decisions on complex employment litigation issues, and more cases accepted for review that are posed for rulings in 2016. While the Supreme Court led by Chief Justice John Roberts is often thought to be pro-business, the array of its key rulings impacting class action workplace issues is anything but one-dimensional. Some decisions may be viewed as hostile to the expansive use of Rule 23, while others are hospitable and strengthen the availability of class actions. Further, the Supreme Court has declined several opportunities to impose more restraints on class actions, and by often deciding cases on narrow grounds, it has left many gaps to be filled in by and thereby fueled disagreements arising amongst lower federal courts. Suffice it to say, the range of rulings form a complex tapestry that precludes an overarching generalization that the Supreme Court is pro-business or pro-worker on class actions.

Second, the monetary value of employment-related class action settlements reached an all-time high in 2015. The plaintiffs’ employment class action bar and governmental enforcement litigators successfully translated their case filings into larger class-wide settlements at unprecedented levels. The top ten settlements in various employment-related categories totaled $2.48 billion over the past year as compared to $1.87 billion in 2014. As success in the class action litigation context often serves to encourage pursuit of more class actions by “copy-cat” litigants, 2016 is apt to see the filing of more class actions than in previous years.

#15-3099 2015 WCAR Infographics - Aggregate Settlement Amounts R

Third, federal and state courts issued more favorable class certification rulings for the plaintiffs’ bar in 2015 than in past years. In addition to converting their class certification rulings into class action settlements with higher values and pay-outs, plaintiffs’ lawyers continued to craft refined and more successful class certification theories to counter the more stringent Rule 23 certification requirements established in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In the areas of employment discrimination, wage & hour, and ERISA class actions, the plaintiffs’ bar scored exceedingly well in securing class certification rulings in 2015. Statistically, the plaintiffs’ bar secured class certification at an astounding rate of 75% of cases in 2015. In sum, class actions continue to be certified in significant numbers and certain “magnet” jurisdictions continue to issue decisions that encourage or, in effect, force the resolution of large numbers of claims through class action mechanisms.

#15-3099 2015 WCAR Infographics - U.S. Circuit Courts of Appeal R7

Fourth, complex employment-related litigation filings are up from past years, but by far and away, wage & hour class actions and collective actions are the leading type of “high stakes” lawsuits being pursued by the plaintiffs’ bar. Case filing statistics for 2015 reflected that wage & hour litigation outpaced all other categories of lawsuits, and increased yet again over the past year, with no end in sight of the crest of the tidal wave of case filings. Additional factors set to coalesce in 2016 – including new FLSA regulations, the impact of digital technology, and increased scrutiny of independent contractor and joint employer relationships – are apt to drive these exposures even higher for Corporate America.

Fifth, government enforcement lawsuits brought by the DOL and EEOC continued the aggressive litigation programs of both agencies. Settlement numbers for government enforcement litigation in 2015 increased substantially over 2014, as did the litigation dockets of the DOL and the EEOC. This trend is critical to employers, as both agencies have a focus on “big impact” lawsuits against companies and “lead by example” in terms of areas that the private plaintiffs’ bar aims to pursue.

Implications For Employers

The one constant in workplace class action litigation is change. More than any other year in recent memory, 2015 was a year of great change in the landscape of Rule 23. As these issues play out in 2016, additional chapters in the class action playbook will be written.

The lesson to draw from 2015 is that the private plaintiffs’ bar and government enforcement attorneys are apt to be equally, if not more, aggressive in 2016 in bringing class action and collective action litigation against employers.

These novel challenges demand a shift of thinking in the way companies formulate their strategies. As class actions and collective actions are a pervasive aspect of litigation in Corporate America, defending and defeating this type of litigation is a top priority for corporate counsel. Identifying, addressing, and remediating class action vulnerabilities, therefore, deserves a place at the top of corporate counsel’s priorities list for 2016.

Seventh Circuit Slams The “Brakes” On The EEOC’s Appeal Of AutoZone ADA Defeat

Posted in EEOC Litigation

thCATMS9YBBy Gerald L. Maatman Jr. and Howard M. Wexler

As we have previously noted, the EEOC continues to push the envelope on many fronts, including new theories/arguments in cases brought under Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), such as its recent attack on wellness plans, discussed here.

Most recently, in EEOC v. Autozone, Inc., No. 15-1753 (7th Cir. Jan. 4, 2016), the Seventh Circuit affirmed the denial of the EEOC’s request for a new trial in a case brought under the ADA where after a five day trial the jury returned a full verdict for the employer. The decision is an interesting read for corporate counsel focused on EEOC litigation and ADA compliance.

Background

In 2009 an employee who worked for AutoZone as a Parts Sales Manager was permanently restricted her from lifting anything with her right arm that weighed over 15 pounds. Id. at 2. One month later AutoZone discharged the employee because it was unable to accommodate her permanent restriction. Id. The employee filed a charge with the EEOC, which, after issuing a probable cause determination, filed suit against AutoZone alleging that it failed to accommodate her lifting restriction and illegally terminated her employment. Id.

A five-day jury trial was held in November 2014. Id. The jury returned a special verdict finding that the EEOC failed to prove by a preponderance of the evidence that the employee was a “qualified individual with a disability or a record of disability at the time that her employment was terminated.” Id. The EEOC subsequently moved for a new trial. In support of its motion, the EEOC argued: (1) the verdict was against the manifest weight of the evidence; (2) the medical evidence established that [the employee] was disabled as a matter of law; and (3) the jury instructions confused the jury. Id. at 3-4. The district court denied the motion.  Id. at 4. Thereafter, the EEOC appealed.

The Seventh Circuit’s Decision

The Seventh Circuit rejected all three grounds advanced by the EEOC in support of the request for a new trial. With respect to its argument that the jury’s award went against the manifest weight of evidence, the Seventh Circuit held that “based on the substantial evidence presented at trial, a rational jury could have concluded that heavy lifting was a fundamental duty of the PSM position, rather than merely a marginal function.” Id. at 7. Since the employee could not lift more than 15 pounds with her right arm, “there was sufficient evidence for a rational jury to find that she could not perform the essential functions of the PSM position. Thus, a rational jury could find that Zych was not a qualified individual with a disability.” Id. at 7-8.

The Seventh Circuit also rejected the EEOC’s request for a new trial based on the district court’s denial of its proposed team concept instruction. The proposed team concept instruction that the district court rejected stated:

In team working environments, where team members per-form tasks according to their capacities and abilities, job functions that are not required of all team members are not essential functions. Where there is no required manner in which employees are to divide the labor, the fact that one team member may not be able to do all the tasks assigned to the team does not mean that person is unable to per-form his or her essential functions.

Id. at 3.

The EEOC argued that this “team concept” jury instruction was permitted in prior cases, and, by denying it, the district court “provided the jury with an incomplete and misleading statement of the law.” Id. at 9. The Seventh Circuit disagreed.  First, it held that, “the EEOC’s proposed team concept instruction was an attempt to have the jury draw an inference that heavy lifting was not an essential function of the PSM position.” Id. at 12. The Seventh Circuit found that, “the district court was not obligated to promulgate such an inference within the jury instructions. Rather, it was proper for the district court to instead allow the EEOC to make its team concept argument to the jury in its closing arguments.” Id. at 13.

Furthermore, the Seventh Circuit found that the district court’s denial of the proposed instruction did not prejudice the EEOC. Id. at 13. Although the district court denied the instruction, the judge nonetheless allowed the EEOC to argue it to the jury during closing arguments. Id. at 13. However, the EEOC chose not to do so. Accordingly, as “the EEOC decided not to present the team concept argument, despite the district court expressly stating that it could, the EEOC cannot now claim that it was prejudiced by the district court’s refusal to admit its proposed jury instruction.”

Implications For Employers

This decision highlights not only the continued push back against the EEOC’s new “theories” of liability in ADA cases, but also the importance of jury instructions at trial and preserving the record if the district court rejects proposed jury instructions. Here, the Seventh Circuit took pains to point out that the district court, while denying its proposed instruction, nonetheless allowed the EEOC to argue the points to the jury during its closing. By the Commission failing to do so, the Seventh Circuit was quick to point out that the EEOC seemed to have voluntarily abandoned its argument, thus belying any claim of prejudice.

Readers can also find this post on our EEOC Countdown blog here.