Seyfarth Synopsis: On October 17, 2016, the EEOC unveiled its updated Strategic Enforcement Plan (“SEP”) for Fiscal Years 2017-2021. It ought to be required reading for every employer and their executive teams.

The New SEP

The 2017 SEP can be viewed here. This plan replaces the first SEP, issued in 2012, which provided strategic direction for the agency through 2016. (See our analysis of that plan here.) According to the EEOC, the new SEP “builds on the EEOC’s progress in addressing persistent and developing issues by sharpening the agency’s areas of focus and updating the plan to recognize additional areas of emerging concern.”

If some employers were hoping that the EEOC would rethink its enforcement priorities and craft a new strategic direction for the future, the updated SEP may be a bit of a disappointment. The new SEP reveals that the EEOC is not backing away from its focus on systemic, strategic litigation, nor has it significantly rethought the substance of its enforcement priorities.

The EEOC experienced harsh criticism on Capitol Hill (especially amongst some Republican legislators) for how it pursued its enforcement priorities under the 2012 SEP – particularly with respect to its pursuit of high profile systemic cases at the expense of what some might regard as smaller, but more “meritorious” individual cases. The new SEP shows no sign that the agency will back away from this approach.

Continued Focus On Achieving “Strategic Impact” Through Litigation

The hallmark of the first SEP was the EEOC’s focus on “systemic litigation.” The new SEP appears to double down on that approach, stating that “[t]he Commission reaffirms its commitment to a nationwide, strategic, and coordinated systemic program as one of EEOC’s top priorities.” The SEP emphasizes a continued pursuit of systemic litigation and other types of cases that will have a “strategic impact.” Those are cases or activities that have a significant effect on the development of the law or on promoting compliance across a large organization, community, or industry.

The new SEP does recognize that not all “strategic impact” cases must be systemic cases. An individual charge of discrimination can have a strategic impact as well. A lawsuit’s strategic impact is not necessarily determined by the number of affected individuals, but rather is identified by the significance of a particular issue and the potential outcome. The new SEP asserts that the EEOC’s goal will be to balance individual cases and systemic cases to best pursue the agency’s enforcement priorities. Meritorious cases that raise one or more of the substantive priorities will be given precedence in case selection, as will cases that fall outside of those substantive areas if they are likely to have a strategic impact.

Substantive Changes To The Enforcement Priorities

The EEOC’s first SEP set out six priorities that the Commission identified to define its enforcement mission for Fiscal Years 2013-2016. Those priorities were chosen to put the enforcement focus on issues that would affect a broad number of individuals, employers, or employment practices, with a special emphasis on issues affecting the most vulnerable workers, meaning those unaware, reluctant, or unable to exercise their rights. It also sought to impact developing areas of the law where the EEOC has particular expertise and issues where the government has access to information, data, and research that would render the Commission a particularly effective advocate. The updated SEP keeps the same six priorities as the first SEP, including:

  • Eliminating barriers in recruitment and hiring;
  • Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;
  • Addressing selected emerging and developing issues;
  • Ensuring equal pay protections for all workers;
  • Preserving access to the legal system; and
  • Preventing systemic harassment. (We blogged about the EEOC’s recent anti-harassment efforts here.)

The biggest substantive changes are described by the EEOC as additional “areas of focus” within those same six enforcement priorities.

Within the “developing and emerging issues” priority, the EEOC identified several areas of focus, many of which have already been the subject of extensive EEOC litigation under the 2012 SEP. For example, the new SEP identifies pregnancy-related limitations under the ADA and LGBT protections as substantive areas of focus under this topic, both of which have been litigated over the past few years. However, employers should note the two new emerging and developing issues that were identified in the 2017 SEP also cover:

Complex Employment Relationships: The EEOC identified issues related to “complex” employment relationships as a new area of focus. In particular, the agency is interested in “[c]larifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.” Hence, new gig economy companies and those prone of joint employer relationships are new targets.

Backlash Discrimination: The EEOC also has made it a priority to address “backlash discrimination” against those who are Muslim or Sikh, or persons of Arab, Middle Eastern, or South Asian descent, as well as persons perceived to be members of these groups, that might arise against them as a result of current events affecting the Muslim world.

The EEOC also identified two new areas of focus within the “barriers in recruitment and hiring” priority: (1) the lack of diversity in certain industries (technology and policing were singled out in the 2017 SEP); and (2) the increasing use of data driven screening tools.

Implications For Employers

The new SEP shows that the EEOC is not contemplating any wholesale changes to its strategic direction. Rather, it shows an agency refocused on the enforcement priorities and successes that were set forth in the 2012 SEP, including its devotion to systemic litigation and other cases that may have a “strategic impact.”

The EEOC has proved itself to be an agency that makes good on its word. The 2012 SEP had a noticeably significant impact on the EEOC’s litigation focus over the past four years. Employers should expect that the Commission will continue to make good on its promise to litigate large-scale, high-impact, and high-profile investigations and cases that address the issues identified as its enforcement priorities and areas of focus.

Companies in the staffing industry and the on-demand economy should be particularly concerned, as well as those companies that make heavy use of temporary workers or independent contractors.

We will continue to track and report back on litigation trends and developments affecting those industries, as well as the other industries and issues identified in the 2017 SEP.


medical-1006787_960_720Seyfarth Synopsis: In an ADA action regarding disability discrimination, the Fifth Circuit reversed a District Court’s grant of summary judgment in favor of the employer and against the EEOC, noting that even though the charging party indicated she had a temporary total disability on a disability insurance claim form that she submitted the day after her termination, factual issues remained regarding the availability of a reasonable accommodation. The ruling underscores the nature and challenge of EEOC litigation of ADA claims.
In an ADA disability discrimination action brought by the EEOC on behalf of a nurse against her employer healthcare facility, the U.S. District Court for the Southern District of Mississippi entered summary judgment in favor of the employer after finding that the charging party was not able to perform her job duties in light of the fact that she described herself as “totally disabled” when making a disability insurance claim. Following the Commission’s appeal in EEOC v. Vicksburg Healthcare, L.L.C., No. 15-60764 (5th Cir. Oct. 12, 2016), the Fifth Circuit reversed and remanded the District Court’s grant of summary judgment, holding that the employee’s claim to temporary total disability, made the day after she was terminated from her job because of a disability, did not prevent the EEOC from contending that she was able to work if granted a reasonable accommodation.

For employers engaged in EEOC disability discrimination litigation under the ADA, in particular with employees alleging “total disability” on subsequent disability insurance claims, this ruling illustrates that such claims of “total disability” do not foreclose the possibility that a reasonable accommodation could have been provided.

Case Background

As we discussed in previous blog posts about this case here, here, and here, the charging party was a nurse for Vicksburg Healthcare, LLC d/b/a River Region Medical Center (“River Region”). Id. at 1-2. After the nurse tore her rotator cuff and took twelve weeks of FMLA medical leave for shoulder surgery, her physician sent a note to River Region stating that she could return to duty as long as she was limited to “light work” requiring “limited use” of her left arm. Her physician further clarified that she should not lift, pull, or push anything weighing more than ten pounds. After review of these limitations, River Region terminated the nurse because of her injury and concomitant inability to perform at work. Id. at 2.

The nurse applied for temporary disability benefits the next day, indicating on her claims forms that she was temporarily totally disabled. Thereafter, the EEOC filed suit in 2012, alleging that River Region violated the ADA by failing to provide the nurse a reasonable accommodation and by terminating her. After discovery, River Region moved for summary judgment. The District Court granted River Region’s motion for summary judgment, noting that the claims were barred under Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), since the EEOC failed to provide a “sufficient explanation for the contradicting statements” between the nurse’s claim of temporary total disability and the EEOC’s contention that she was “qualified” for purposes of the ADA because she could perform the job with a reasonable accommodation. The EEOC appealed the grant of summary judgment in favor of the employer. Id. at 3.

The 5th Circuit’s Decision

The Fifth Circuit reversed and remanded the District Court’s grant of summary judgment. The Fifth Circuit initially discussed how according to the District Court, “this case has one key fact: the day after her termination, [the nurse] filed for disability benefits and, in doing so, represented that she was temporarily totally disabled.” Id. Citing Cleveland, the Fifth Circuit explained that an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with a disability benefits claim that the plaintiff could not perform her own job (or other jobs) without it. Id. at 4. The Fifth Circuit held that the District Court erred by failing to recognize that the EEOC’s argument that, “nothing in the [disability claim forms] indicate[d] that [the nurse] represented that she was unable to perform the essential functions of her job with or without an accommodation,” was sufficient under Cleveland. Id. at 4-5.

The Fifth Circuit also rejected River Ridge’s contention that it twice offered the nurse a reasonable accommodation in the form of clerical work, but that she ignored or rejected the offers. Id. at 5-6. After the nurse declined the offer on the advice of her doctor, River Ridge argued that the offer had remained open. The Fifth Circuit rejected this assertion, noting that the EEOC had shown that the conduct of the parties around the time of the nurse’s termination was circumstantial evidence that there was no actionable offer for the nurse to accept in regards to a light-duty clerical position. The Fifth Circuit also accepted the EEOC’s argument that the second offer was never made. Id. at 6.

River Region contended that the nurse never requested “light duty” as a reasonable accommodation. Id. The Fifth Circuit held this argument was meritless, noting that the nurse presented doctor’s certifications clearing her to work with a “light work” restriction and instructions indicating “[n]o lifting, no pulling, no pushing anything greater than 10 pounds.” Id. The Fifth Circuit found that a jury could reasonably view the certifications as a request for a “light duty” accommodation. Id.

Finally, River Region contended that “light duty” was inconsistent with the essential functions of the nurse’s duties since lifting or pushing more than ten pounds were essential functions of her job. Id. The Fifth Circuit rejected this argument, noting it was “hard to square with River Region’s claims that it could have and would have accommodated [the nurse] by giving her clerical work during her recovery.” Id. Citing the parties’ contradictory proffered testimony about the essential functions of nursing duties and further noting that written job descriptions do not warrant absolute deference, the Fifth Circuit held that fact issues precluded summary judgment. Id. at 7. Accordingly, the Fifth Circuit reversed and remanded the District Court’s grant of summary judgment, holding that the employee’s claim to temporary total disability, made the day after she was terminated from her job because of a disability, did not prevent her from contending that she was able to work if granted a reasonable accommodation. Id. at 8.

Implications For Employers

It is not uncommon for a terminated employee to indicate on a disability insurance claim that they are “totally disabled.” Regarding EEOC litigation brought under the ADA, this ruling illustrates that employee claims of “total disability” for insurance purposes do not necessarily mean that employers are automatically unable to provide a reasonable accommodation. As such, employers cannot definitively rely on statements made in disability insurance claims when seeking summary judgment in ADA litigation brought by the EEOC. Employers must continue to exercise caution when approaching any and all requests for reasonable accommodations.

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

dice2By David J. Rowland

Seyfarth Synopsis: A seemingly innocuous case filed by the EEOC on behalf of a single charging party against a casino operator highlights some of the risks of betting at the conciliation table.  Employers take note!

As its FY 2016 wound down, the EEOC filed suit against a casino operator – in the case of EEOC v. Greektown Casino, L.L.C., Case No. 2:16-CV-13540 (E.D. Mich.) – alleging that it failed to accommodate and then terminated a pit manager because of his alleged disability – stress anxiety disorder. Obviously, the casino not yet responded to the complaint, and it may well have excellent legal defenses. Yet, the Complaint shows the EEOC’s hand (or at least part of it) and provides an example of some of the important stakes in EEOC litigation.

Is The Commission Bluffing?

Employers sometimes assume that the EEOC is only in the business of suing large companies based upon allegations of class-wide mistreatment of large groups of employees.  It is true that the EEOC makes headlines filing pattern or practice cases against big companies, but the EEOC routinely files complaints on behalf of individual charging parties against lesser known businesses and often smaller companies. In fact, the EEOC often does so strategically – because it has determined that the underlying legal issue is more important than whether there is a big-name company, thousands of employees, or big dollars involved. As noted here and here, the EEOC’s recent challenge to a wellness program, and its recent attempt to pursue a claim for transgender discrimination, for example, were pursued on behalf of individual charging parties. Obviously, though, the legal issues were deemed important and, frankly, the press coverage was just as wide as that of any of the EEOC’s behemoth cases.

Also, more than a few cases are filed by the EEOC because it simply determines justice must be done and that the charging party might not have the resources to pursue it.  So, don’t assume during the conciliation process that the EEOC is just bluffing when it threatens to bring a case on behalf of one charging party.  It happens.

Know When To Fold Them?

With each reasonable case determination, comes an invitation to the conciliation (gaming) table. The conciliation process can be long, episodic, and frustrating.  Along the way, an employer must balance the various pros and cons associated with settling a case with the EEOC.  Certainty of outcome is almost always a factor, as is money, but, for some employers, the question is whether the game is lost the instant a suit is filed by the EEOC.  Consumer product and service companies, for example, are heavily invested in brand development and the relentless pursuit of brand loyalty.  So, each employer must ask itself what it will wager on whether the failure to reach compromise will result in damage to its brand or company name if the government publicly accuses it of discriminatory treatment of employees (i.e., fellow consumers). The frustrating part is that the allegations may be wildly misleading and eventually proven wrong, but no matter how frivolous the assertions may be, the reputational damage can be done on filing day.

Know When (Not) To Run?

None of this is to suggest that employers should bend to the will of the EEOC in a meritless individual or class case just because the EEOC says it might file suit.  The fact is that the EEOC is quite choosy and has limited resources.  As we reported here, the EEOC filed only 136 cases in its fiscal year ending September 30, 2016.  By contrast, as noted here and here, the EEOC routinely receives more than 80,000 charges of discrimination per year. In other words, the odds of the EEOC filing suit are actually quite low in any given case.

Plus, not all negative publicity hits are created equal.  What is the issue?  Is there an advantage to taking a stand? Do you have strong PR advisors?  Can you turn it on the government – David v. Goliath style?

And, perhaps most importantly, settling is not always a good bet.  EEOC conciliation agreements are confidential as a matter of law and EEOC policy – except where the employer agrees to some measure of publicity.  Employers should bet that the EEOC will request an “agreed” press release if there is any level of significance to the case, and should demand to see details of that card before deciding to take it.

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

thKCD34Y33By Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth Synopsis: In an EEOC religious discrimination case, a federal court found that “Onionhead” was a religion for purposes of Title VII.   The court also found that the EEOC did not fail to meet its Title VII pre-suit duties when it added to its lawsuit seven additional claimants that it discovered during its investigation of charges brought by three former employees of the company that was accused of religious discrimination.


While most religious discrimination claims brought by the EEOC involve mainstream religions, uncommon spiritual belief programs may still be afforded protection under Title VII so long as they meet certain legal requirements. In EEOC v. United Health Programs of America, Inc. and Cost Containment Group Inc., No. 14-CV-03673 (E.D.N.Y. Sept. 30, 2016), the EEOC brought an action alleging an employer (“CCG”) discriminated against a group of former employees on the basis of religion by based on concepts known as “Onionhead” and “Harnessing Happiness.”  Judge Kiyo A. Matsumoto of the U.S. District Court for the Eastern District of New York granted the EEOC’s motion for partial summary judgment as to the discrete issue of whether these beliefs constituted a religion, while granting in part and denying in part CCG’s motion for summary judgment as to several other claims.  Most relevant, the Court denied CCG’s motion for summary judgment regarding the EEOC’s late addition of seven claimants that it discovered during its investigation of the three original charges of discrimination.

This ruling puts employers on notice that they must exercise extreme caution regarding spiritual beliefs in the workplace, even if the beliefs are not derived from a mainstream religion.  Further, it illustrates that employers have an uphill battle when challenging the EEOC’s pre-suit investigations as courts will not closely scrutinize such efforts.

Case Background

CCG is small wholesale company that provides discount medical plans.  Beginning around 2007, CCG executives determined that their corporate culture was deteriorating.  To fix this issue, CCG hired its CEO’s aunt, who had developed a program called Onionhead that CCG began to utilize in its workplace.  CCG described Onionhead as a multi-purpose conflict resolution tool, while plaintiffs characterized it as a system of religious beliefs and practices.  Although Onionhead was initially geared towards children, CCG expanded the program to apply it to adults, and it further became known as “Harnessing Happiness.”

The claimant employees alleged that Onionhead and Harnessing Happiness required to them do things like use candles instead of lights to prevent demons from entering the workplace; conduct chants and prayers in the workplace; and respond to emails relating to God, spirituality, demons, Satan, and divine destinies.  Id. at 7, 11-12.  The claimants alleged they were terminated either because they rejected Onionhead’s beliefs or because of their own non-Onionhead religious beliefs, while other employees who followed Onionhead were given less harsh discipline.  After three former employees filed charges of discrimination in 2011 and 2012, the EEOC issued a letter of determination on March 13, 2014.  After unsuccessful conciliation efforts, the EEOC filed suit on October 9, 2014 on behalf the three employees who filed charges of discrimination and an additional seven employees that it discovered during its investigation.  The EEOC subsequently moved for summary judgment as to the specific issue of whether Onionhead was a religion for purposes of Title VII.  CCG cross-moved for summary judgment as to several other claims involving religious discrimination.

The Decision

The Court granted the EEOC’s motion for partial summary as to the discrete issue of whether the Onionhead beliefs constituted a religion.  After discussing Title VII’s application to religious discrimination, the Court noted that the former employees asserted claims under a variety of theories, including disparate treatment, hostile work environment, failure to accommodate, and retaliation.  Id. at 15.  First, the Court sought to determine what constitutes a religious belief under Title VII.  Rejecting CCG’s argument that a narrow definition should apply, the Court opined that to determine whether a given set of beliefs constitutes a religion for purposes of Title VII, “courts frequently evaluate: (1) whether the beliefs are sincerely held and (2) whether they are, in [the believer’s] own scheme of things, religious.”  Id. at 23 (quoting Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)).

Applying the Patrick framework here, the Court found that Onionhead qualified as a religion for purposes of Title VII.  Id. at 31-32.  Addressing the first prong, whether the beliefs were sincerely held, the Court noted that, “a reasonable jury could find that by inviting [the CEO’s aunt] into the workplace, paying her to meet and conduct workshops, authorizing her to speak to employees about matters related to their personal lives, disseminating Onionhead/Harnessing Happiness material and directing employees to attend group and individual meetings with [his aunt], [the CEO] and his upper management held sincere beliefs in Onionhead and Harnessing Happiness.”  Id. at 35-36.  As to the second prong, which contemplates whether the nature of the beliefs qualifies as religious, the Court concluded that the beliefs were religious within the meaning of Title VII.  Id. at 36.  In reaching this conclusion, the Court discussed the emails about God, spirituality, Satan, divine destinies, etc.; noted how the CEO’s aunt referred to herself as a “spiritual advisor”; cited claimants’ testimony that they were told to pray in the workplace; and quoted numerous Onionhead publications.  Id. at 36-41.  Accordingly, the Court found that Onionhead was a religion for purposes of Title VII.  Id. at 43.

Next, the Court addressed CCG’s motion for summary judgment as to the individual claims asserted by claimants, which alleged that the EEOC failed to fulfill its Title VII pre-suit investigation, reasonable cause determination, and conciliation requirements for several claimants.  Id. at 43-45.  Noting that, “[c]ourts have permitted the EEOC to add new claimants identified during discovery even when the EEOC is asserting claims under Section 706 of Title VII,” the Court held that given “the circumstances present in the instant case, the EEOC was not precluded from identifying new claimants (whose claims were effectively identical to the claims of the pre-existing claimants) after filing this action.”  Id. at 46-47.  In doing so, the Court rejected CCG’s reliance on EEOC v. CRST Van Expedited Inc., 679 F.3d 657, 674 (8th Cir. 2012), and distinguished on the grounds that “[t]he EEOC’s attempt in CRST to add 67 claimants to an EEOC action filed two years earlier and naming a single individual is a far cry from the situation presented in this action, where the EEOC’s investigation undisputedly encompassed seven of the ten claimants and the additional three claimants’ allegations arise out of the same alleged course of conduct, in the same office, by the same individuals, and during a time period already covered by the charges in the initial complaint.”  Id. at 48-49.  Thus, citing the narrow scope of review courts are permitted when reviewing the sufficiency of EEOC investigations, the Court denied CCG’s request to dismiss the late-discovered claimants.

The Court also discussed at great length CCG’s motion for summary judgment as to multiple reverse discrimination claims.  The Court denied CCG’s motion for summary judgment as to eight claimants’ reverse discrimination claims and all claimants’ hostile work environment claims premised on reverse religious discrimination.  Id. at 101.  Further, the Court denied CCG’s motion for summary judgment with respect to one claimant’s disparate treatment and retaliation claims premised on her Catholicism, but granted CCG’s motion for summary judgment with respect to the same claimant’s hostile work environment and failure to accommodate claims.  Id. at 102.  Finally, the Court granted CCG’s motion for summary judgment against all other claimants on their claims that they suffered discrimination based on claimants’ religious beliefs or lack thereof.  Id. at 102.

Implications For Employers

Whether or not this blog post has caused you to consider a conversion to Onionhead, the implications from this ruling are crucial for employers in two regards.  First, the finding that Onionhead is a religion should put employers on notice that when considering beliefs claimed by an employee and programs implemented by an employer, courts can and will utilize an expansive definition of what constitutes a “religious belief” for purposes of Title VII discrimination litigation.  Second, employers can expect the EEOC to use this ruling to aggressively seek to expand its lawsuits beyond the original complaining employees and try to include any similarly aggrieved employees it uncovers during investigations.  Accordingly, the twofold impact of this ruling should alert employers to expect more aggressive religious discrimination litigation from the EEOC, who will also seek to expand the size of its lawsuits given that its investigations are subject to limited judicial scrutiny.

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

visaBy Gerald L. Maatman, Jr. and Michael L. DeMarino

Seyfarth Synopsis:  Hispanic employees of a poultry processing plant alleged harassment and abuse on the job. The company claimed that the employees’ allegations were fabricated in order to obtain U visas, which are available to immigrant abuse victims who assist in government investigations. Over the plaintiffs’ objections, the district court allowed the company discovery related to the employees’ U visa applications. On an interlocutory appeal, the U.S. Court of Appeals for the Fifth Circuit vacated the district court’s discovery order and remanded the case to the district court with instructions to devise an approach to the U-visa discovery that ensures that immigrant victims are not deterred from reporting their abuse.  The ruling is important to any employers involved in workplace litigation with immigrant workers.


In Cazorla v. Koch Foods of Missi., LLC, No. 15-60562 (5th Cir. Sept. 27, 2016), the EEOC filed a complaint in the U.S. District Court for the Southern District of Mississippi on behalf of Hispanic employees who alleged that they suffered sexual harassment and physical abuse while working at a poultry processing plant. The company claimed that the employees, many of whom are undocumented aliens, made up their accusations in hopes of obtaining immigration benefits under the U-visa program. The program offers temporary nonimmigrant status to victims of substantial physical or mental abuse. The district court allowed the company limited discovery related to the employees’ U-visa applications and the EEOC, consequently, sought interlocutory review of the district court’s discovery orders. On appeal, the Fifth Circuit vacated and remanded the district court’s discovery rulings, ordering the district court to craft a discovery order that allows U-visa discovery but avoids deterring immigrant victims of abuse from using the U-visa program.

This ruling demonstrates that courts recognize that impeachment evidence regarding an employee’s motivation for bringing a claim is a key defense for employers facing workplace harassment allegations. Where that defense intersects with, or potentially frustrates, a statutory program, courts will roll up their sleeves to fashion relief that balances the competing concerns. Employers, therefore, should not be deterred from utilizing a defense simply because doing so conflicts with the purpose behind a statutory regime. A middle ground can be achieved through protective orders and customized discovery orders.

Case Background

Hispanic employees at a poultry processing plant in Mississippi (the “Company”) claimed that for roughly four years they suffered routine abuse at work. The Company’s supervisors allegedly groped female workers, and in some cases assaulted them more violently; offered female workers money or promotions for sex; made sexist and racist comments; and otherwise physically abused workers of both sexes. Id. at 1.

The EEOC filed suit on the employees’ behalf against the Company in the U.S. District Court for the Southern District of Mississippi. In its defense, the Company claimed that the employees, who are mostly undocumented aliens, invented their allegations in order to help secure U visas. The U-visa program offers temporary nonimmigrant status to victims of substantial physical or mental abuse and U-visa holders may apply for a “green card” after three years. Id.

To obtain concrete evidence of this malfeasance, the Company served discovery requests seeking the production of records relating to the employees’ efforts to obtain U visas. Id. The plaintiffs opposed the discovery requests because the discovery would necessarily reveal the immigration status of any employee who applied for a U visa, as well as that of their families. Id. at 2-3.

Over the plaintiffs’ objections, the district court allowed the discovery but with two limitations. First, the district court excused the EEOC from complying with the discovery requests because 8 U.S.C. § 1367 barred the EEOC from revealing any information related to the claimants’ U visa applications. Id. at 3. At the same time, the district court found § 1367 did not similarly excuse the claimants. Id. The district court then held that Rule 26 did not “preclude U-visa discovery from the individual claimants, reasoning that the discovery was relevant to the claimants’ credibility . . . and that the relevance of the information sought outweighed the in terrorem effect of producing it.” Id. The employees, unlike the EEOC, were therefore required to comply with the discovery requests subject to the district court’s second limitation: a protective order that prohibited the use of the discovered information for purposes unrelated to the lawsuit and barred the Company from sharing the information with law enforcement, unless the failure to do so was a criminal offense. Id.

After losing its discovery battle, the EEOC sought interlocutory review of the district court’s discovery orders under 28 U.S.C. § 1292(b). The district court certified the orders for interlocutory appeal and the Fifth Circuit granted review.

The Decision

On appeal, the U.S. Court of Appeals for the Fifth Circuit vacated and remanded the district court’s discovery orders. Id.

The Fifth Circuit first determined that the district court properly decided that the EEOC, but not the employees, was exempt from having to produce U-visa information. Id. at 7. Unlike the EEOC, the claimants were not bound to the confidentiality provisions in 8 U.S.C. § 1367 and its implementing regulations. Id at 7.

Having decided that § 1367 did not preclude U visa discovery from the individual claimants, the Fifth Circuit next examined the district court’s Rule 26(c) analysis. Rule 26(c) allows the court to issue an order restricting discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id. at 10.  In applying Rule 26(c), the Fifth Circuit explained that federal courts balance and compare the hardship to the party against whom discovery is sought against the probative value of the information to the other party. Id. Courts also weigh relevant public interests in this analysis. Id.

The Fifth Circuit, for the most part, agreed with the district court’s Rule 26(c) balancing analysis. The Fifth Circuit, for instance, explained that U-visa discovery was relevant and probative of potential fraud and had significant impeachment value; that the claimants had reasonable fears that disclosure of their U-visa information could lead to them being reported to authorities; and that, although allowing the discovery would create some delay and hardship, the plaintiffs could seek relief for any unduly burdensome demands. Id. at 14-16.

In sum, the Fifth Circuit noted that “the district court’s analysis of the harm that U visa discovery might cause the claimants was imperfect, but not critically so.” Id. at 17. “More pressing” to the Fifth Circuit, however, was “that the district court did not address how U-visa litigation might intimidate individuals outside this litigation, compromising the U visa program . . . .” Id.

On this issue, the Fifth Circuit noted that the district court considered only the immediate chilling effect of U-visa discovery on the individual claimants. Id. “Those individuals,” the Fifth Circuit explained, “are not the only ones who might be affected by the disclosure of the claimants’ U visa information.” Id. Indeed, the Fifth Circuit expressed concern that allowing U- visa discovery “may sow confusion over when and how U-visa information may be disclosed, deterring immigrant victims of abuse . . . from stepping forward and thereby frustrating Congress’s intent in enacting the U visa program.” Id.

Based on these concerns, the Fifth Circuit vacated the district court’s discovery orders and instructed the district court to “devise an approach to U-visa discovery that adequately protects the diverse and competing interests at stake.” Id at 18.  At a minimum, the Fifth Circuit held that U-visa discovery must not reveal to the Company the identities of any visa applicants and their families, at least in the liability phase—where the probative value of the U-visa evidence is not affected by the identity of the claimants. Id.

Implication For Employers

The take away for employers is that, although defense strategies sometimes include discovery topics that conflict with a statutory regime, a sensible middle ground can be achieved. A willingness to agree to discovery limitations and customized protective orders goes a long way to demonstrating that the discovery is sought for legitimate purposes—despite such discovery’s unintended impact on parties outside the lawsuit.

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

clockBy Matthew J. Gagnon, Christopher J. DeGroff, and Gerald L. Maatman, Jr.

Seyfarth Synopsis: With the end of another EEOC fiscal year employers look with anticipation to what the year-end trends can tell us about the sometimes elusive EEOC litigation agenda. In years past, the EEOC has engaged in a “filing frenzy,” with dozens of lawsuits filed in the waning days of the fiscal year. Although there was an uptick in filings this year, the EEOC’s FY 2016 went out with a whimper and not a roar.

We have prepared the following chart, which shows the total monthly filings for FY 2013-2016, which highlights the EEOC’s historical year-end filings compared to the somewhat tepid activity that we saw this year.

cases filed by month

As with prior years, we anticipate that the EEOC may continue to file cases well into the night in the courthouses of the Western states, so the final tally may not be known for another 48 hours. But at the time of publication, the raw numbers show that the EEOC filed 136 lawsuits in FY 2016 (99 merits lawsuits and 37 subpoena enforcement actions). This is significantly less than prior years. (See here, here, here, and here.) The reason for this significant drop in lawsuits most likely can be attributed to the EEOC’s limited budget coupled to an already bloated litigation inventory. The fact that this is an election year with all of the possible changes that may represent could also be impacting the EEOC’s willingness to commit to additional litigation so close to November.

FY 2016 was originally planned to be the final year of the EEOC’s 2013-2016 Strategic Enforcement Plan (“SEP”). The EEOC developed the SEP in 2012 in order to set its priorities and goals for enforcement activity through 2016. Last year, the EEOC received permission from the Office of Management and Budget to delay the release of a new SEP until 2018 so that the Commission could align its strategic planning with other agencies. Although the SEP has now been extended through 2018, this year still marks the final planned year, and provides a useful moment in time to look back and take stock of where the agency has driven its enforcement program over the past four years.

Cases Filed By EEOC District Offices

Location is always a key factor for defending against EEOC litigation. Year after year, certain EEOC district offices distinguish themselves by the number of cases that they file. The map below shows the number of filings by each district office in FY 2016.

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Filings by district office in FY 2016 were pretty much on par with prior years with one glaring exception. Year over year, Chicago has been the consistent leader in terms of total cases filed. Last year alone, the Chicago office filed 27 lawsuits. This year, the Chicago office filed only 7, a shockingly low number for that office. The other traditional filing leaders stayed consistent with prior years, and some even ticked up a bit in FY 2016. The Philadelphia office filed 22 lawsuits in FY 2016, up from 19 last year. The Charlotte office filed 16 lawsuits this year, compared with 13 last year. The Phoenix office filed 17 lawsuits in FY 2016, the same as last year. The bar chart below compares the number of filings from each office for FY 2013 – FY 2016.

By office

What Do The FY 2016 Filings Say About The EEOC’s Priorities?

Each fiscal year we analyze the EEOC’s filings to determine substantive trends. The following chart shows the number of claims categorized by statute, along with a further division of the largest category – Title VII – by discrimination theory.

As with prior years, Title VII cases were the majority of cases filed, making up 41% of all filings (as compared with 55% in FY 2015 and 57% in FY 2014). This is not particularly surprising given the number of protected groups covered by the statute. ADA cases also made up a significant percentage of the EEOC’s filings, totaling 41% this year. Together, complaints alleging discrimination under those two statues made up 82% of all cases filed in FY 2016. Age cases represented a relatively small 5% of the overall cases.

By statuteIn late August, the EEOC issued its final revision to the Enforcement Guidance on Retaliation and Related Issues (which we discuss here), replacing the 18 year old Section 8, “Retaliation” portion of the Compliance Manual last updated in 1998. This revision touches upon all of the statutes which the Commission enforces, and covers the legal analysis used to define evidence that supports retaliation claims as well as retaliation remedies, legal access for persons with disabilities under the ADA, and even a play-by-play of employer/employee interactions that might prompt retaliation.


Considering the EEOC’s renewed focus on this area, we analyzed the FY 2016 retaliation cases to test which discrimination claims are most often paired with a retaliation claim. The following chart shows which types of discrimination were paired with retaliation allegations in FY 2016:

retaliationSex + retaliation cases make up the largest percentage of these claims at 46%, followed by race discrimination at 27%, pay discrimination at 13%, age discrimination at 7%, and disability discrimination at 7%. Pregnancy discrimination, national origin discrimination, religious discrimination, and genetic discrimination all had zero claims of retaliation.

In addition to the revised retaliation guidelines, the EEOC also revised its Employer Information Report (EEO-1) yesterday to require employers to submit information regarding employee pay range and hours worked. The Commission asserts that the purpose of collecting this pay data along with race, ethnicity, sex, and job category would be to “assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.” It is, by most accounts, an ominous development for the future of EEOC litigation.

The EEOC also issued its final rules on employer wellness programs as they relate to the ADA and GINA, which clarify the implications of those rules and their interactions with employer wellness programs. We reported on this development here. Harassment was also a hot button issue for the Commission in FY 2016, with a particular focus on Muslims and people of Middle Eastern origin. Among other things, the EEOC issued a call-to-action for employers to ‘reboot’ harassment prevention efforts (which we discuss here).

Insight & Implications For Employers: Conclusions

As with prior years, this year’s analysis reveals that the EEOC’s activities continue to be guided by the 2012 SEP. For the past four years, we have reported on the many ways that the SEP has guided and shaped the EEOC’s enforcement initiatives – and with that, the landscape of labor and employment law. FY 2016 was the last year that was planned to be covered by the 2012 SEP. As we enter FY 2017, it is unclear whether we will see more of the same, or if we will see the EEOC branching out to new priorities and initiatives that may line up with its vision for the 2018 SEP and the future of EEOC litigation.

We will continue to analyze the data and filings from FY 2016 to extract additional insight about the EEOC’s litigation priorities, and what employers should watch out for in FY 2017 and beyond. We look forward to distilling those observations into our annual analysis of trends and developments affecting EEOC litigation. We hope that you are looking forward to that publication as much as we are, and that you continue to find it a useful reference and guide to developments in EEOC litigation. Please stay tuned, loyal blog readers!

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

th2H4JI06DBy: Gerald L. Maatman, Jr. and John S. Marrese

Seyfarth Synopsis:  African American pipefitters filed a class action against their labor union based on its allegedly discriminatory system for referring jobs to union members.  Despite the fact that third-party employers retained sole discretion in deciding whether to hire a union referral, the U.S. District Court for the Northern District of Illinois found that such discretion, and the individual hiring determinations resulting therefrom, did not destroy commonality for the claims of the class members.  The Court based its conclusion on the notion that the union’s job referral system was “the first allegedly discriminatory step that tainted the entire job assignment and hiring process.”  The ruling is an important one for employers on discrimination liability for policies delegating decision-making authority to local managers or third parties.


In Porter et al. v. Pipefitters Ass’n Local Union 597, No. 12-CV-9844 (N.D. Ill. Sept. 20, 2016), a group of African American pipefitters filed a class action against their labor union, alleging racial discrimination in the union’s job referral system.  Under the system, while third-party employers retained sole discretion in the ultimate decision to hire a union referral, union members were supposed to obtain employment based on race-neutral factors like length of time spent waiting for a job and having the requisite skills.  However, Plaintiffs alleged that the union’s policies enabled employers to circumvent the system and hire union members directly, which resulted in white members disproportionately obtaining employment over African American members.

In granting Plaintiffs’ motion and certifying a class, Judge Sara Ellis of the U.S. District Court for the Northern District of Illinois rejected the union’s argument that individual issues relating to the hiring decisions of third-party employers precluded a finding of commonality.  The union’s referral system, which enabled employers to circumvent race-neutral criteria for hiring, was “the first allegedly discriminatory step that tainted the entire job assignment and hiring process” and “allowed and endorsed” discrimination.  Plaintiffs could prove the discriminatory nature of the policy across the class with statistical evidence.

The ruling is significant in that it limits the impact of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), wherein the U.S. Supreme Court found that an employer’s policy of giving discretion to local managers in employment decisions destroyed commonality among employees’ discrimination claims.

Case Background

In Porter, Plaintiffs filed a class action lawsuit against their union based on its allegedly discriminatory system for referring jobs with third-party employers to Union members.  Id. at 1.  Plaintiffs alleged that the Union’s policies enabled employers to bypass the race-neutral referral system negotiated and hire Union members directly.  According to Plaintiffs, this resulted in African American members receiving fewer work hours than their white counterparts.  Id.

The Union’s job referral system had a history of discriminating against African Americans.  In 1990, a jury found that rather than operate, as negotiated, a system by which members received jobs on a first-come, first-serve basis, the Union actually operated a word-of-mouth referral system disproportionately favoring whites.  Id. at 2-3.  Based on the jury’s finding, the Court issued a consent decree requiring the Union to assign jobs from an out-of-work list on a first-on, first-off basis.  Id. at 3-4.  However, employers retained sole discretion in deciding whether to hire referrals.  Id. at 4.  In addition, written exceptions to the system allowed employers to circumvent the out-of-work list and continue to hire Union members directly.  Id.  In 1996, the court terminated the consent decree.  Id. at 5.  Evidence showed that, by 2004, less than 20% of jobs were filled from the out-of-work list.  Id.

In 2004-2005, the Union negotiated a new job referral system whereby members could either find employment directly with an employer or find employment through the out-of-work list.  Id.  While the Union implemented quotas to ensure appropriate levels of hiring from the out-of-work list, evidence showed those quotas were not met.  Id. at 5-6.

Based on the above, Plaintiffs alleged discrimination in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 as well as breach of the union’s duty of fair representation under the Labor Management Relations Act of 1947.  Id. at 1. Plaintiffs moved to certify a class of current and former African American members of the Union who had faced and continued to face such violations.  Id.

The Decision

Judge Ellis certified a class of current and former African American members of the union pursuant to Rule 23(b)(3) to recover money damages.  The Court withheld ruling on certification of a class under Rule 23(b)(2) for injunctive relief.

The Court’s Analysis Under Rule 23(a)

The Court’s analysis under Rule 23(a) focused on Plaintiffs’ showing of “commonality,” which required Plaintiffs to identify an issue central to all class members’ claims that the Court could decide “in one stroke” for the entire class.  Id. at 12 (internal quotations and citations omitted).  The Court explained that challenging the existence of a discriminatory policy may provide commonality, depending on the degree of discretion involved in the policy’s application.  Id. at 12-13  Relying in particular on the U.S. Supreme Court opinion in Wal-Mart along with recent Seventh Circuit precedent, the Court opined that commonality is absent where the policy is “highly discretionary and plaintiffs do not identify a common way in which defendants exercise that discretion.”  Id. at 13.  However, if plaintiffs show that a defendant enforces the policy at the corporate level and the policy affects class members in a common manner, some discretion by employees or third parties in actually applying the policy will not necessarily defeat commonality.  Id. at 13.

Based on those principles, the Court ruled that Plaintiffs had shown commonality based on the existence of the union’s job referral system, which “allowed,” “endorsed,” and “exacerbated” discrimination against African American pipefitters.  Id. at 14-15.  The Court rejected the union’s contention that the independent hiring decisions of third-party employers destroyed commonality.  Indeed, such discretion did “not matter because Plaintiffs challenge [the union]’s overarching policies, which influenced the entire job assignment and hiring process.” Id. at 15 (citation omitted).  Such policies were “the first allegedly discriminatory step that tainted the entire job assignment and hiring process.”  Id.

In addition, the Court found that Plaintiffs had easily satisfied the remaining requirements of numerosity, typicality, and adequacy of representation under Rule 23(a).  Id. at 11-12, 17-19.

The Court’s Analysis Under Rule 23(b)

Having found Plaintiffs satisfied Rule 23(a), the Court addressed whether Plaintiffs had satisfied Rule 23(b)(2) for certification of an injunctive relief class and Rule 23(b)(3) for monetary relief.

The Court explained that Rule 23(b)(2) allows certification of an injunctive relief class where the defendant “has acted or refused to act on grounds that apply generally to the class” such that the Court can appropriately  fashion relief for the class as a whole.  Id. at 20 (quoting Fed. R. Civ. P. 23(b)(2)).  Injunctive relief is not appropriate if a court must make individual determinations to fashion relief for individual class members.  Id.  Plaintiffs’ proposed injunctive relief — a ban on the current job referral system and implementation of a new system — “appear[ed] proper.”  Id.  However, because Plaintiffs did not appear to be current members of the Union and, thus, would not suffer the Union’s policies going forward, they had no basis to request injunctive relief.  Id. at 20-21.  Accordingly, the Court reserved ruling on certification under 23(b)(2) to allow Plaintiffs to show that they were current Union members or to substitute someone who is a current member.  Id. at 22.

The Court next addressed whether Plaintiffs satisfied the “predominance” and “superiority” requirements under Rule 23(b)(3). In particular, class certification is proper if “questions of law or fact common to class members predominate over any questions affecting only individual members, and . . . a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”  Id. (quoting Fed. R. Civ. P. 23(b)(3)).

The Court determined that Plaintiffs can satisfy Rule 23(b)(3)’s predominance requirement by showing that “common questions [among class members] represent a significant aspect of a case” and can be proved by common evidence.  Id. at 22-23. Plaintiffs argued that they could demonstrate the discriminatory impact of the job referral system on all class members by using statistical evidence adduced by its expert.  Id. at 23.  The union argued that predominance did not exist because: (a) Plaintiffs’ statistical evidence was “unrepresentative, inaccurate, [and would only] undermine” Plaintiffs’ claims; and (b) the union did not have a uniform policy because third-party employers made hiring decisions.  Id.  The Court agreed with Plaintiffs, finding that the Union’s arguments only underscored the predominance of common issues because, even if the Union was correct, the claims of the entire class would fail together.  Id. at 24.

The Court also found that Plaintiffs had shown the “superiority” of a class action under the circumstances because it “would be more efficient than proceeding with hundreds of individual suits” challenging the same job referral system.  Id. at 24.  As such, the Court certified a class of current and former African American Union members to seek monetary relief under Rule 23(b)(3).

Implication For Employers

Jude Ellis’ decision is decidedly friendly for Plaintiffs. Based on the ruling in Porter, even after Wal-Mart Stores, Inc. v. Dukes, an employer may be held liable for the discretionary decisions of local managers or third parties if those decisions are discriminatory and the product of an employer’s policy which “allowed” or “exacerbated” the discrimination.  Such a policy can provide the “glue” to hold together a class action where the independent decisions of local managers or third parties would otherwise destroy it.  While the facts in Porter — namely, that a predecessor of the challenged policy had been found discriminatory by a jury — may limit its impact, employers would be wise to monitor policies giving lower level employees decision-making authority to ensure such policies are not allowing or contributing to a pattern of discrimination.

imagesSeyfarth Synopsis: For a multitude of reasons, the stakes are exceedingly high for employers in the upcoming Presidential election. Legal compliance strategies and effective control of workplace litigation risks inevitably will be impacted by which party controls of the White House and the regulatory and enforcement machinery of agencies such the Department of Labor and the EEOC. This blog post discusses our “take-aways” for employers based on the first debate between Mr. Trump and Mrs. Clinton on September 26, 2016.

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So what did the 1st debate teach us about the views of the two major presidential candidates on issues of interest to employers? Aside from their verbal volleys, sparing (and interruptions), and counter-punches, the candidates’ statements during the first debate underscored the stark differences between Mrs. Clinton and Mr. Trump and how their respective policies and programs are apt to differ for employers from 2016 to 2020.

Donald Trump’s Positions

In his opening answer to the question on steps to achieve prosperity, Mr. Trump repeatedly criticized Mrs. Clinton as wanting to “increase regulations on businesses,” while Mr. Trump claimed he would decrease regulations to enable business to expand, create jobs, and invest in workers.

As a result, on employment discrimination issues, we expect Mr. Trump would “roll back” the aggressive agendas of the Department of Labor, OSHA, and the EEOC under the rubric that their regulatory schemes and/or enforcement litigation programs are “anti-business.” But peeling back the onion skin on that overarching philosophy reveals a mixed set of issues. Most will recall that at the Republican Convention in August, Mr. Trump became the first Republican Presidential nominee to openly support LGBT rights. As a result, his Administration may well push for expansion of employment rights where no Republican White House has gone before.

The first debate did not shed light on whether Mr. Trump favors raising the minimum wage or overhauling the exemptions in the Fair Labor Standards Act due to take effect on December 1, 2016. Presumably, he opposes these measures.

Insofar as commentators and voters can tell, Mr. Trump opposes the North American Free Trade Agreement, which was brokered during the first Clinton Administration. In his opening remarks in the debate, he called it the “worse trade deal in the history of the world.” Mr. Trump’s views on immigration are well known (“the Wall”…). He favors making E-Verify a national requirement, raising the prevailing wage for workers under the H-1B visa program (to make American workers more competitive with their H-1B counterparts), and requiring that employers hire (or, at least, try to hire) Americans before seeking to hire foreign nationals. At a basic level, his positions on immigration do not appear to be directly related to employment/labor relations per se, but aimed at preventing foreign workers from competing with Americans for jobs.

Hillary Clinton’s Positions

Mrs. Clinton used the first question of the debate – on steps to achieve prosperity – to outline her vision on some key labor and employment issues. In her first answer of the evening, she advocated “raising the minimum wage,” “securing equal pay for woman,” “instituting paid family leave,” and “expanding child care benefits.”

Hence, on most labor and employment issues, Mrs. Clinton would essentially continue the priorities of the Obama Administration. While her policies would be akin to a “third term of the Obama Administration,” Mrs. Clinton might push them even further.

On equal employment opportunity issues, we expect Mrs. Clinton to continue the current Administration’s expansive interpretation of Title VII to include LGBT individuals, regardless of whether Congress actually amends Title VII.

Achieving equal pay for women has been a central issue in Mrs. Clinton’s  campaign all along. She echoed that several times during the first hour of the debate. For this reason, she is expected to champion pay transparency and enactment of a measure like the Paycheck Fairness Act (a bill she co-sponsored as a senator), which would make it easier for plaintiffs to bring equal pay actions, either individually or as class actions, to “close the pay gap” between men and women. One by-product of such a scheme would be increased incentives for bringing class action litigation on pay issues, or agency-initiated enforcement litigation by the EEOC, DOL, and OFCCP.

Further, Mrs. Clinton supports amending the Family & Medical Leave Act to provide paid leave – and not just the present law affording unpaid leave – for workers to care for a new child or a sick family member or to recover from illness or injury. Mrs. Clinton also is expected to lead the fight against “wage theft,” and raising the minimum wage to $12 an hour (and supports state and local governments establishing even higher minimums). And on the labor front, Mrs. Clinton undoubtedly would align herself with keeping unions strong and viable. As her campaign website proclaims, “When unions are strong, America is strong,” and promises to restore collective bargaining rights for unions and “defend against partisan attacks on workers’ rights.”

In sum, both the DOL and the EEOC are expected to be emboldened by an Administration headed by Mrs. Clinton.

“It’s The Supreme Court….”

An important take-away for employers is the difference in the candidates’ views as to who might be appropriate for nomination to the U.S. Supreme Court. The first debate did not touch on this specific issue; while it is expected that later debates will do so, the candidates’ answers in the first debate foreshadowed their differences on the composition of the Supreme Court. As employers know, the ultimate disposition of workplace laws and how employment-related litigation impacts employers is influenced in large part by how the Supreme Court decides employment law issues.

And change is coming to the Supreme Court and likely will pivot on the election results. Mr. Trump has released several lists of judges he has identified as worthy of nomination to the Supreme Court. While Mrs. Clinton has yet to issue any such list, one scenario gaining traction (at least in some quarters – perhaps far-fetched, but who knows …) is that she might be inclined to nominate Barack Obama to fill a seat on the Supreme Court (and he would become the first ex-President to take a seat on the Supreme Court since 1921, when President Harding appointed former President William Howard Taft to the Supreme Court).

In terms of the stakes, and to take one example, in the coming Supreme Court term employers can expect a key battle over the legality of class action waivers in workplace arbitration agreements and whether the NLRB’s attack on those aspects of arbitration agreements “has legs” under the National Labor Relations Act. Petitions for certiorari are currently pending in three different cases on this issue (Ernst & Young LLP v. Morris, No. 16-300, Epic Sys. Corp. v. Lewis, No. 16-285, and NLRB v. Murphy Oil USA, Inc., No. 16-307). The passing of Justice Scalia, Congress’ disinclination to start hearings on Judge Garland’s nomination in the election season, and the ultimate realignment of the Supreme Court after the election – based on which party has control of the White House and can nominate a new Justice – may well “tip the balance” in terms of this issue for employers.

Implications For Employers: Employers should put on their seat belts.  Two more Presidential debates are coming down the track, and the ebb and flow of the campaign is apt to twist and turn until election day on November 8, 2016.

thPBYES7VQBy Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth Synopsis: After the EEOC brought an action under the Americans With Disabilities Act against an employer who implemented a wellness program requiring employees to take a health assessment to participate, the Court granted the employer’s motion for summary judgment and denied the EEOC’s motion for summary judgment after finding that the program was voluntary. As such, the ruling is a bench-slap to the Commission in terms of its position on challenging wellness programs.


After an employer in Wisconsin implemented a wellness program that required employees to take a health risk assessment if they wanted to participate, the EEOC brought an action under the Americans With Disabilities Act (“ADA”), which generally prohibits employers from requiring employees to undergo medical examinations.  In EEOC v. Orion Energy Systems, Inc., No. 14-CV-1019 (E.D. Wis. Sept. 19, 2016), Judge William C. Griesbach of the U.S. District Court for the Eastern District of Wisconsin granted in part employer Orion Energy Systems, Inc.’s (“Orion”) motion for summary judgment and denied the EEOC’s motion for summary judgment.

This ruling illustrates that for employers who implement wellness programs that require employees to take a health assessment if they wish to participate, those medical examinations do not violate the ADA as long as the program is voluntary.

Case Background

In 2008, Orion switched from a fully insured health plan to a self-insured health plan.  In 2009, Orion implemented a multi-faceted wellness program.  Relevant here, employees would have to either complete a health risk assessment (“HRA”) at the beginning of the insurance year or pay the entire monthly premium equivalent amount.  Employees who completed the HRA paid no premium equivalent, but still had to pay their own deductibles, co-pays and out-of-pocket expenses.  The HRA consists of a health history questionnaire and biometric screen involving a blood pressure check, body measurements, and blood analysis. Orion did not receive any personally-identifiable information as a result of the HRA, as the information was compiled by outside entities who then transmitted it to Orion in an anonymous format.  The anonymous, aggregated data allowed Orion to see the percentage of participants in its plan who had particular health risks such as high cholesterol, identify common health issues, and offer employees educational tools to improve their health.

In the spring of 2009, only one Orion employee chose to opt-out of the program.  Orion management spoke with the employee regarding negative comments the employee made to co-workers about the amount of the premium being charged by Orion.  The employee claimed she was told during this meeting to keep her opinions about the new wellness program to herself, while Orion claimed that such negativity was not welcome in the workplace, and that if the employee had concerns, she needed to speak with someone in management.  The employee later sent an e-mail criticizing the tactics of Orion’s former CEO.  Shortly thereafter, the employee was terminated.

The EEOC brought suit against Orion alleging it violated the ADA by requiring employees who elect to enroll in Orion’s self-insured health insurance plan to either complete the HRA or pay 100 percent of their monthly premium amount.  The EEOC also alleged that Orion violated the ADA’s anti-retaliation provisions, 42 U.S.C. § 12203(a) and (b), by instructing the employee not to discuss her concerns about the legality of this requirement with co-workers and by terminating her employment shortly after she voiced opposition to Orion’s wellness program.  Orion contended that its requirement that employees who elect to receive health insurance from Orion either participate in the wellness program or pay the full premium amount was lawful under the ADA’s insurance “safe harbor” provision, which allows self-insured organizations to administer benefits plans, or alternatively, that its wellness program is voluntary under 42 U.S.C. § 12112(d)(4)(B).  Both parties moved for summary judgment.

The Decision

The Court granted in-part Orion’s motion for summary judgment and denied the EEOC’s motion for summary judgment.  Initially, the Court explained that Section 12112(d)(4)(A) of the ADA “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity,” but that Section 12112(d)(4)(B) permits employers to conduct “voluntary medical examinations . . . which are part of an employee health program available to employees at that work site.”  Id. at 6-7.  The EEOC argued that the HRA was not “voluntary” given that Orion shifted 100 percent of the health benefit premium to employees who opted out.  Orion argued its wellness initiative did not violate the ADA for three reasons: (1) the ADA’s safe harbor relating to insurance applied to the challenged aspects of the wellness program; (2) Orion did not “make inquiries” since it received only anonymous, aggregated results from the HRA; and (3) the wellness program was voluntary because Orion’s employees had a choice regarding whether to participate and sufficient time to make that choice.

Regarding the safe harbor provision, the Court rejected Orion’s argument and found that the safe harbor provision did not apply to Orion’s wellness program.  Citing Congressional intent, the Court noted that the safe harbor provision was a limited exception that was created to protect the basic business operations of insurance companies, and that generally, wellness programs are unrelated to basic underwriting and risk classification.  Id. at 15 (citations omitted).  Applied here, the Court found that the wellness program was not used to underwrite, classify, or administer risk.  Id.  The Court explained that “[i]f an employee refused to complete the HRA and participate in the wellness plan, she could still be a member of Orion’s insurance plan, provided she pay the full premium amount. In short, Orion’s wellness program was wholly independent from its insurance plan.”  Id. at 16.

Next, the Court addressed Orion’s argument that even if its wellness initiative was not immune under the safe harbor provision, Orion’s program was still voluntary.  Id. at 17.  The EEOC argued that the wellness program was involuntary because shifting 100 percent of the premium cost to an employee who opted out of a program was so substantial that Orion’s offer to pay the health benefit premium in exchange for the employee’s participation in the program is more than a mere incentive.  The Court rejected the EEOC’s argument, noting that, “even a strong incentive is still no more than an incentive; it is not compulsion,” and that, “Orion’s wellness initiative is voluntary in the sense that it is optional.”  Id. at 18.  Accordingly, the Court found that Orion was entitled to summary judgment and rejected the EEOC’s claim that the wellness program, including the HRA, violated § 12112(d)(4)(A).

Finally, in regards to the EEOC’s retaliation and interference claims, Orion argued that the employee was not engaged in any protected activity by complaining about aspects of the program that were lawful.  The Court rejected Orion’s argument, noting it was “undisputed that [the employee] expressed concern about the confidentiality of her medical information under the new wellness initiative. As that is a legitimate concern under the ADA, i.e., something the ADA actually does govern, her expression may have been protected.”  Id. at 20.  Accordingly, the Court denied Orion’s motion for summary judgment as to the retaliation and interference claims.

Implications For Employers

Employer’s implementing wellness programs absolutely need to pay attention to decisions such as this one.  So long as participation in the program and any accompanying health assessment are truly voluntary, employers can utilize such wellness programs without violating the ADA.  Nonetheless, employers must be cautious in making sure their programs are truly voluntary or else face this risk of EEOC litigation.

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

th7Y6M6GN7By Gerald L. Maatman, Jr., Christina M. Janice and Alex W. Karasik

Seyfarth Synopsis: Following the NLRB’s expansion of the definition of “joint employer” in the high-profile Browning-Ferris case and the employer’s subsequent appeal to the D.C. Circuit, the EEOC filed an amicus brief supporting the broadening of both agencies’ tests for determination of joint employer status. This is a signal to employers of future agency positions on the expansion of Title VII liability.


With government agencies and plaintiffs’ counsel alike seeking giant paydays from employers with the deepest pockets, governmental expansion of “joint employer” status is a critical development in employment law.  In the 2015 landmark decision in Browning-Ferris Industries of California (“Browning-Ferris”), 362 NLRB No. 186 (Aug. 27, 2015), which was the subject of Seyfarth Shaw’s Client Alert here, the NLRB significantly lowered the bar for establishing joint employer status.  Under Browning-Ferris, the NLRB may find an unrelated entity to be an “employer” for purposes of the National Labor Relations Act based on a number of possible factors, including the existence of unexercised authority over terms and conditions of employment, or by the “indirect” exercise of that authority through agents.  Following Browning-Ferris’s appeal to the U.S. Court of Appeals for the District of Columbia Circuit, the EEOC recently filed its amicus brief supporting the NLRB’s expanded view of joint employer status. . . and articulating an expanded view of its own.

The EEOC’s filing is an important roadmap for employers to understand and anticipate how the EEOC will expand its own investigations and claims involving complex relationships in such contexts as staffing agencies, franchises, contractors, and corporate enterprises comprised of affiliated entities.

Case Background

Upon the petition of the International Brotherhood of Teamsters, Local 350, to represent employees of Leadpoint, the Teamsters sought to have Browning-Ferris, which contracted for temporary labor from Leadpoint, to be found to be a joint employer for purposes of the petition.  At that time, the prevailing standard for determining whether a putative employer was whether the putative employer “meaningfully affect[ed]  matters relating to the employment relationship, such as hiring, firing, discipline, supervision and direction.”  Laerco Transportation, 269 NLRB 324, 325 (1984).  This standard required a putative employer to have immediate and direct control over terms and conditions of employment.  Under this standard, a regional director of the NLRB originally found that Browning-Ferris was not a joint employer with its contractor.  EEOC at 2-3.

Upon review of that decision and with the support of the EEOC as amicus, the NLRB abandoned its standard and reverted to an earlier, broader standard articulated in NLRB v. Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982).  Id.  This earlier standard provides that “two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.”  Id. at 2.  Further, the NLRB “will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority.”  Id. at 3.  In this respect, the NLRB stated it would apply an “inclusive approach” to defining “essential terms and conditions of employment,” including the setting wages and hours; dictating the number of workers to be supplied; controlling scheduling, seniority, and overtime; assigning work; and determining the manner and method of work performance.  Id.

Despite acknowledging the dissent’s argument that its new standard, which allows for unexercised or indirectly exercised authority or control, lacks certainty or predictability, the NLRB reasoned that joint employer issues are nonetheless best examined and resolved in the context of specific factual circumstances.  Id. at 3-4.  Accordingly, applying the new, broadened standard to the facts of this case, the NLRB reversed the regional director and found that Browning-Ferris was a joint employer with its contractor.  Id. at 4.  Following Browning-Ferris’s appeal, the EEOC filed its amicus brief in support of the NLRB.

The EEOC’s Amicus Brief

Predictably, the EEOC supports the broadened, more ambiguous standard now adopted by the NLRB.  This broadened standard more closely resembles the EEOC’s own expansive interpretation of “joint employer” status in its Compliance Manual here and Guidance here, neither of which have the force of law or are universally followed by federal courts taking up EEOC claims involving joint employer liability.

For instance, in the context of staffing companies, EEOC’s Guidance provides that a client of a staffing company may be a joint employer if the client “exercises significant supervisory control over the worker.” The Guidance further qualifies:

Clients of contract firms and other types of staffing firms also qualify as employers of the workers assigned to them if the clients have sufficient control over the workers….   For example, the client is an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work to be performed, to make or    change assignments, and to terminate the relationship. . . .

EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997), 1997 WL 3315961, at *5-6 (emphasis added).

The standard articulated by the NLRB and supported by the EEOC potentially inoculate the “joint employer” determinations by these agencies as fact-driven and interpretive – particularly on such vague and speculative notions as unexercised or indirect control.  Nevertheless, the EEOC supports the elusive new standard by asserting three arguments.  First, the EEOC argues that its own test, like that of the NLRB, appropriately looks at the totality of the circumstances.  EEOC at 8.  Noting that its approach is “intentionally flexible” and “consistent with common law,” the EEOC explains that it does not consider one factor to be decisive, but rather all of the circumstances in the worker’s relationship with each business involved should be considered to determine who is an employer.  Id. at 9-11 (citations omitted).

Second, the EEOC argues that its standard correctly allows courts to consider an entity’s right to control and indirect control of the terms and conditions of employment.  Specifically, the EEOC contends that an entity’s right to control the terms and conditions of employment, whether or not it exercises that right, is relevant to joint employer status.  Id. at 12.  Because the right to control terms and conditions of employment is one factor among many the EEOC considers relevant to joint employer status, the EEOC concludes that the NLRB’s newly articulated standard recognizing right to control as a relevant consideration, is correct.  Id. at 13.

With respect to indirect control, the EEOC similarly explains that it “has long considered indirect control to be relevant to joint employer status.”  Id.  After explaining that “[a] putative joint employer exercises indirect control of the terms and conditions of employment by acting through an intermediary,” the EEOC identifies several of its own determinations in which it has applied this logic.  Id. at 14.  The EEOC cites to no court decisions, however, in support of its expansive position.

Finally, the EEOC asserts that contrary to Browning-Ferris’s argument, a broad, fact-specific inquiry is neither vague nor unworkable.  Id. at 15.  The EEOC posits that “[g]iven the complexity and variety of the situations implicating joint employer status, the NLRB correctly declined to rank the elements of its test in order of importance.  Id. 

Although the EEOC concedes that “[t]he EEOC’s flexible joint-employer test, like the NLRB’s, carries more uncertainty than the NLRB’s now-discarded rule, which looked only at authority exercised directly and immediately,”  id. at 16, the EEOC boldly contends that “[u]ncertainty, however, is no basis for rejecting a rule that is consistent with statutory language, common law, and legislative purpose.”  Id.

Further, after acknowledging Browning-Ferris’s argument that the uncertain nature of the new standard will make it difficult for organizations to anticipate whether they will be deemed joint employers, and deprives employers of their right to due process, the EEOC asserts in conclusory fashion that the joint employer test itself does not violate due process.  Id. at 17.  Quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 327 (1992), the EEOC concludes that the Supreme Court effectively rejected Browning-Ferris’s argument when it stated the application of “the traditional agency law criteria . . . generally turns on factual variables within an employer’s knowledge.”  Id.

Implications For Employers

In its recent “Enforcement Guidance on Retaliation and Related Issues” publication, which we blogged about here, the EEOC made it well-known that it maintains a watchful eye on the NLRB’s interpretations of protected activity.  The EEOC’s amicus brief stands as another in a recent spate of advocacy pieces seeking to advance the EEOC’s own expansive view of joint employer status in the context of federal antidiscrimination laws.  Here, the EEOC is looking to secure a circuit court opinion legitimizing a broad definition of joint employer that it then can use to pursue multiple alleged employers in discrimination claims.  Accordingly, businesses contracting labor should scrutinize their workforce relationships carefully for indicia of potential for indirect as well as direct control over the terms and conditions of employment of the workforce.  We will continue to update our readers as events unfold in this critical litigation.

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