Workplace Class Action Blog

Stock-Not So-Well: Officers Denied Class Certification Of Age Discrimination Claims (Again)

Posted in Class Certification

gavel on white backgroundBy William David and Laura J. Maechtlen

As we reported here to our loyal blog readers, in April 2014, the Ninth Circuit overturned an order denying class certification of age discrimination claims filed by a group of police officers in Stockwell v. City & Cnty. of San Francisco , 749 F.3d 1107 (9th Cir. 2014). On remand, the officers filed a third motion for class certification, and Judge Phyllis Hamilton of the U.S. District Court for the Northern District of California recently issued an order, denying (again) the officers bid for certification.


To recap, traditionally, the City filled its investigative positions by promoting police officers over the age of 40 who took and passed a “Q-35” exam. In 2005, the SFPD abandoned use of the Q-35 exam in favor of a new “Q-50” Sergeant’s exam. Following the change, the City began assigning investigative duties to newly promoted Sergeants who had taken the Q-50 exam, rather than to Assistant Inspectors promoted from the Q-35 list. Plaintiffs alleged that the practice of filling investigative positions from the Q-50 list had a substantial adverse impact on officers over the age of 40.

Throughout this case, plaintiffs asserted two causes of action for age discrimination — one under California’s Fair Employment and Housing Act (FEHA), the other under the federal Age Discrimination in Employment Act (ADEA). The FEHA claim was asserted by five named representative plaintiffs on behalf of a putative class, and the ADEA claim was asserted by the same five plaintiffs in their individual capacities, as well as by 25 additional individual plaintiffs. Plaintiffs sought class certification under Rule 23(b)(3) on their FEHA claim only.

On two occasions, the Court denied the plaintiffs’ bid for class certification. On the second occasion, the Court denied certification because it found that the plaintiffs did not satisfy the commonality requirement under Rule 23(a). As mentioned earlier, the Ninth Circuit overturned this decision, suggesting that the district court judge overreached by going too far in its analysis of the merits. Instead, the Ninth Circuit found that the commonality prong was met simply because “the officers are challenging a single policy they contend has adversely affected them”, and remanded the case to consider whether the putative class satisfied the requirements of Rule 23(b)(3) for class certification.

The Recent District Court Decision

On remand, the Court evaluated whether plaintiffs met the requirements under Rule 23(b)(3).  The Court also reviewed plaintiffs’ claim for class certification under Rule 23(a) with the Ninth’s Circuit’s guidance in mind. Plaintiffs also presented the Court with additional points for consideration.  In their third motion seeking class certification, the plaintiffs acknowledged that even if the City had never undertaken the allegedly discriminatory hiring practice (i.e., making promotions to investigative positions from the Q-50 list), only 55 individuals from the Q-35 list could have been promoted. In light of this information, plaintiffs made two alternative arguments.  First, they argued that the damages from the 55 “but-for” promotions should be aggregated and divided pro rata among the 133 putative members.  Second, plaintiffs argued that the Court could certify a class of only 55 individuals by using the 55 highest-ranked officers on the Q-35 list. The Court then reviewed plaintiffs’ third motion for class certification for the two proposed classes of 133 and 55 under Rules 23(a) and 23(b)(3).

The Court found that plaintiffs satisfied all certification requirements under Rule 23(a). However, plaintiffs also needed to satisfy the Rule 23(b)(3) requirements for class certification. Rule 23(b)(3) requires plaintiffs to establish that questions of law or fact common to the class predominate, and that a class action is superior to other methods available for adjudicating the controversy at issue. Upon review, the Court denied plaintiffs’ third motion for class certification because it found that the plaintiffs did not satisfy either the “predominance” or “superiority” requirements under Rule 23(b)(3) for either of the proposed classes.


To support their argument for certification of a liability-only class of 133, plaintiffs primarily relied on Houser v. Pritzker, 28 F.Supp. 3d 222 (S.D.N.Y. 2014), which certified a class for liability purposes, but not for damages purposes. Houser expressly found that a damages class cannot be certified under Rule 23(b)(3) and certified a liability-only class only because the plaintiffs moved for such a class under Rule 23(b)(2). In denying certification in Stockwell, the Court differentiated Houser by indicating that the plaintiffs sought certification under Rule 23(b)(3) and did not invoke Rule 23(b)(2) as a basis for their motion. Further, the Court reasoned that because plaintiffs admitted that only 55 of the 133 proposed class members would have been promoted in the “but-for” scenario, the majority of the class would be made up of individuals with no claim for relief.

Next, the Court analyzed the class of 55 under the predominance test which requires that plaintiffs show that the proposed class of 55 actually suffered a common injury and that damages from the injury are measurable on a class-wide basis through the use of a common methodology. Under the first prong of the test, the Court inquired whether the proposed class of 55 actually suffered a common injury– that is, whether each of them would have been promoted but-for the City’s allegedly discriminatory policy. The Court found that the entire proposed class of 55 did not suffer a common injury for two reasons. First, based on plaintiffs’ admission, not every one of the 55 highest-ranked Q-35 officers would have been promoted to the 55 investigative positions that were filled during the last class period. Instead, at best, the Q-35 evidence suggested only that most of the 55 highest-ranked individuals would have eventually received a promotion. Second, the Court held that plaintiffs provided no basis for determining the size of the “band” from which the 55 promotions would have been made.

Under the second prong of the test, the Court expressed concern that plaintiffs’ claims would require individualized proof at trial rather than proof common to the class because the class members may have differing amounts of damages. As the defendant pointed out, some class members have taken the Q-50 exam and some even received Q-50 promotions, which would limit their recovery in this case.


The Court held that plaintiffs did not satisfy the superiority analysis, either. Unlike the predominance prong, the Court did not separate its analysis of both proposed classes here because it found no material difference in the outcome of its analyses of the two classes. In making its ruling, the Court noted that the current complaint includes 5 representative plaintiffs and 25 additional individual named plaintiffs, all of whom assert an ADEA claim. It further noted that plaintiffs sought certification of a FEHA-only class, which even if granted, would leave 30 ADEA claims to be individually litigated, all based on the same facts that underlie the FEHA claim. The Court also found that the plaintiffs failed to provide any explanation as to how the individual claims would be litigated alongside the class claim.  Id. at 38.

Implications for Employers

Though the Court denied class certification on remand, the Ninth Circuit’s decision still stands. Employers can expect plaintiffs to continue to challenge the Wal-Mart decision by arguing that courts have abused their discretion by delving too far into the merits of Rule 23 requirements. The extent to which courts can consider the merits is likely to continue to take shape as district courts evaluate more cases involving Rule 23 class certifications following the Ninth Circuit’s ruling in Stockwell.

Chambers Selects Seyfarth As The Employment Law Practice Group Of The Year In 2015

Posted in Uncategorized

gold standardBy Gerald L. Maatman, Jr. and Lorie Almon

We wanted to share a new, significant development with our loyal blog readers — Seyfarth’s Labor & Employment Practice Group has just been recognized for excellence by one of the most prestigious awards in the legal profession.

The Seyfarth L&E practice group was named Labor & Employment Team of the Year at the 10th Annual Chambers USA Awards for Excellence ceremony in New York City on Tuesday evening. Our practice group was selected as the top-ranked firm in the United States in labor & employment law from a Winners Logo 2shortlist of highly respected firms that also included Jones Day, Littler, Morgan Lewis, and Proskauer.

The Chambers Awards honor the achievements of leading law firms and lawyers across the country for pre-eminence in key practice areas and notable achievements during the past 12 months, including outstanding work, impressive strategic growth, and excellence in client service. Chambers described Seyfarth as “the market-leading labor & employment practice in the country with an expertise and track-record of successful, cutting-edge defenses to employment discrimination class actions, bet-the-company EEOC lawsuits, and complex, high-stakes  wage & hour litigation.”

The Chambers report included client quotes about Seyfarth’s work that included: “Aside from being legal experts in their fields, the firm’s attorneys are incredibly responsive and provide pragmatic, value-add legal advice,” and “I’ve had several occasions when they’ve given advice contrary to that of other firms – in every instance the lawyers at Seyfarth have been correct.”

Chambers’ 150-member research team conducted and analyzed hundreds of interviews with corporate general counsel of companies, court rulings in cases defended, and submissions provided by the firms. The Chambers selection is a gold standard award for the firm, one that holds great credibility with client companies.

To all of our clients, loyal blog readers, and colleagues, thank you so much for your support and the honor bestowed on Seyfarth’s labor & employment practice group by Chambers.

chambers picture

The EEOC Secures Favorable Ruling Over Discovery Of The Government’s Employment Practices

Posted in EEOC Litigation

gavel on white backgroundBy Christopher M. Cascino and Gerald L. Maatman, Jr.

In EEOC v. DolGenCorp, LLC d/b/a Dollar General, No. 13-CV-4307 (N.D. Ill. May 5, 2015), Judge Andrea R. Wood of the U.S. District Court for the Northern District of Illinois decided several discovery issues that have become increasingly common in EEOC-initiated disparate impact litigation.  In contrast with other recent decisions by other district courts, Judge Wood decided most of these issues in the EEOC’s favor.

That the EEOC’s internal personnel procedures can be discoverable and relevant in disparate impact cases was first established in 2011 in EEOC v. Kaplan Higher Educ. Corp., No. 10-CV-2882, 2011 WL 2115878, at *4 (N.D. Ohio May 27, 2011), in a ruling we discussed here. This was the first time a federal court had ever so held, and as a result, many employers have tried a similar tactic in EEOC lawsuits over the past few years.

However, in EEOC v. DolGenCorp., the Court ordered Dollar General to turn over the contact information of Dollar General’s job applicants, even though that information did not contain any information about the race or criminal background of the job applicants.  Also in contrast with a recent decision out of the U.S. District Court for the District of South Carolina we discussed here, the Court refused to compel the EEOC to turn over its internal background check policies, despite the fact that the EEOC is alleging that Dollar General’s background check policy creates disparate impact discrimination against African-Americans.  In a better ruling for employers, the Court agreed to examine the EEOC’s internal statistical analyses of Dollar General’s hiring decisions in camera to determine whether the analyses are protected by the deliberative process privilege or work product doctrine.

This case is important for employers because the EEOC will likely use this discovery ruling against employers when similar discovery disputes arise in the future.

Case Background

The EEOC filed suit against Dollar General, alleging that Dollar General’s use of criminal background checks for applicants is discriminatory because it has a disparate impact on African-American job applicants.  EEOC v. DolGenCorp, 13-CV-4307, at 1.  During the course of discovery, the EEOC asked Dollar General to turn over the “names, complete social security numbers, addresses, phone numbers, and complete dates of birth” of job applicants, arguing that such information would allow the EEOC to “link separate databases maintained by Dollar General and two of its vendors.”  Id. at 2.  Dollar General refused, arguing that the requested information was not relevant and was not needed for the EEOC to link the databases.  Id.

Also during discovery, Dollar General also sought discovery from the EEOC relative to its internal policies and procedures regarding its own use of criminal background checks in making employment decisions.  Id. at 8.  The EEOC refused to turn over the information, arguing that it was not relevant.  Id.  Dollar General also sought any statistical analyses the EEOC had regarding the purported disparate impact of Dollar General’s background check policy.  Id. at 6.  The EEOC refused to turn its analyses over, claiming that they were protected by the deliberative process privilege and work product doctrine.  Id.

Both parties moved to compel production of the requested documents.

The Court’s Decision

The Court first decided the EEOC’s motion to compel production of the personal information of Dollar General’s conditional hires.  The Court found that the requested information was discoverable because it was “calculated to lead to the discovery of admissible evidence” insofar as it would allow “the EEOC and its experts more effectively to analyze the statistical impact of Dollar General’s use of criminal background checks” by giving the EEOC the ability to link Dollar General’s databases.  Id. at 3.  While Dollar General argued that this linking could be done by other means, the Court found that the EEOC was not required to use those means when it could use the personal information to accomplish its goal.  Id. at 3 n.1.  The Court further found that Dollar General’s suggested linking method might not be “verifiably accurate,” further supporting the Court’s conclusion that the personal information requested by the EEOC was discoverable.  Id.

The Court next considered whether the EEOC’s policies and procedures on using background checks in its own hiring decisions were discoverable.  The Court pointed out that such information would only be discoverable if Dollar General could potentially use it to show that its use of criminal background checks was “job related for the position in question.”  Id. at 9 (emphasis in original).  While agreeing with Dollar General that a government agency’s employment policies can be discoverable in employment discrimination litigation, it found that such policies would not be relevant to Dollar General’s defenses in this case because Dollar General had not shown that “the functions performed by its employees are in any way comparable to those undertaken by the EEOC’s employees.”  Id.  The Court thus denied Dollar General’s motion to compel production of the EEOC’s background check policies and procedures.  Id.

The Court finally considered whether the EEOC’s statistical analyses of Dollar General’s background check policies were protected by either the deliberative process privilege or work product doctrine.  The Court pointed out that the EEOC argued that its statistical analyses were prepared “during the EEOC’s investigation to determine whether to issue a reasonable cause determination of discrimination,” and that they were thus protected by the deliberative process privilege.  Id. at 7.  The Court further pointed out that EEOC argued that its analyses were also protected by the work product doctrine because they were used by the EEOC’s attorneys in making the decision to sue Dollar General and because one of the analyses was provided to an EEOC investigator by an EEOC attorney.  Id. at 7-8.  The Court concluded that it could not determine whether the EEOC’s privilege and work product assertions were correct based on these arguments, and thus ordered the EEOC to produce the analyses to the Court for in camera review.  Id. at 8.

Implications For Employers

This case is significant for employers because it will undoubtedly be used by the EEOC when it seeks personal information that, while not relevant in itself, could arguably be used to find or create relevant evidence, and when the EEOC seeks to block production of its own hiring practices in disparate impact litigation.  Employers who are engaged in such litigation should anticipate this and try to preempt the EEOC’s use of this case by addressing the Court’s reasoning when responding to or bringing a similar motion to compel.  For example, employers seeking the EEOC’s background check policies should present arguments for why their employees perform similar functions as the EEOC’s employees.  In the meantime, we expect other courts to confront similar discovery disputes in EEOC-initiated disparate impact litigation and to provide further guidance to employers as they work through discovery in such cases.  Stay tuned.

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

SCOTUS Benchslaps The EEOC – An Analysis Of The Mach Mining v. EEOC Decision

Posted in EEOC Litigation

imagesThe U.S. Supreme Court recently ruled on Mach Mining v. EEOC, No. 13-1019. We have blogged extensively about this case previously –  here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here. To recap, this case was initially brought by the EEOC, in which it claimed that Mach Mining had a pattern or practice of not hiring women for mining-related positions, or, in the alternative, maintaining a neutral hiring policy that has a disparate impact on women. The company asserted a number of affirmative defenses, including that the EEOC failed to conciliate in good faith before initiating litigation. The EEOC argued that its conciliation activities not subject to judicial review.

The Supreme Court deliberated on whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit, and whether its conciliation efforts are judicially reviewable by courts. On April 29, 2015, the Supreme Court issued its long-awaited decision and concluded – in an unanimous opinion authored by Justice Kagan – that federal courts have the authority to review the EEOC’s conciliation efforts.

Our blog editor, Gerald L. Maatman, Jr. (tweet him @g_maatman) discusses the SCOTUS decision and his take on what to expect from the EEOC and implications for employers going forward with Colin O’Keefe from LXBN TV (@LXBN) and Rick Bell from Workforce (@Workforcenews) in the videos below.

5 Minutes of Management: Assessing Mach Mining v. EEOC With Rick Bell At Workforce

LXBN TV: Supreme Court Benchslaps EEOC with Mach Mining Decision With Colin O’Keefe At LXBN TV

For more information on Mach Mining v. EEOC, our readers should check out the following posts:

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Don’t forget to reserve your copy of the 2015 Annual Workplace Class Action Litigation Report and the EEOC-Initiated Litigation: Case Law Development In 2014 And Trends To Watch For In 2015 today!

Tweet and follow us on Twitter! @sswcab

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

EEOC Denied Inspection Of Employer’s Premises

Posted in EEOC Litigation

door knockBy Christopher M. Cascino and Gerald L. Maatman, Jr.

In EEOC v. Vicksburg Healthcare, LLC, No. 13-CV-895 (S.D. Miss. Apr. 22, 2015), Magistrate Judge Michael T. Parker of the U.S. District Court for the Southern District of Mississippi denied the EEOC’s request to be allowed to inspect and observe the defendant’s facility in an Americans With Disabilities Act (“ADA”) action. As we have reported previously here, the EEOC has recently attempted to obtain discovery by invasive inspections of employers’ premises. Magistrate Judge Parker’s decision to deny the EEOC this access represents another setback for the EEOC as it ratchets up the intensity of its discovery efforts in workplace litigation. It also gives employers a case they can use when the EEOC or other workplace plaintiffs seek intrusive inspections.

Factual Background

The EEOC filed suit against Vicksburg Healthcare, LLC d/b/a River Region Medical Center (“River Region”), claiming that River Region terminated Beatrice Chambers because of a disability in violation of the ADA. Vicksburg Healthcare, 13-CV-895, at 3. Specifically, the EEOC claimed that Chambers could perform the essential functions of a Licensed Practical Nurse (“LPN”) despite the fact that, because of shoulder surgery, Chambers was unable to lift ten or more pounds.

During the course of the litigation, the EEOC served a request for entry onto River Region’s premises for three hours so that it could observe the work of LPNs, inspect the type of equipment in use at River Region, and collect measurements about the amount of force required to push and pull certain equipment. Id. at 3-4. In addition, the EEOC sought to interview River Region’s employees during the inspection. Id. at 6. River Region objected that the request was overly broad and intrusive, would reveal information protected by the physician-patient privilege and HIPPA, and would allow the EEOC to obtain statements from River Region’s employees without the protections in the Federal Rules for deposing witnesses. Id. at 4. Subsequently, the EEOC moved to compel River Region to allow the inspection. Id. at 4-5.

The Court’s Ruling

The Court began by noting that the EEOC did not identify any specific equipment that it wished to observe or measure. Id. at 6. The Court pointed out that this was problematic because a three-hour inspection would not reliably establish which tasks LPNs regularly performed or which equipment they regularly used given that the tasks LPNs performed were “not necessarily performed on any given day.” Id. at 6-7.

The Court reasoned that “the amount of force required to push, pull, and/or lift equipment such as gurneys, beds, and wheelchairs [would] depend on the weight of the patient in the gurney, bed, or wheelchair,” and that it was therefore not clear whether a three-hour inspection “would allow [the EEOC] to observe a representative sample of patients or duties.” Id. at 7. It thus found that the requested inspection “would likely be of limited use.” Id.

The Court further determined that the “possible disruption of patient care and the risk of compromising patients’ rights to confidentiality [were] significant concerns” that weighed against allowing the inspection. Id. at 8. With respect to disruption of patient care, the Court found that, because the EEOC would be testing equipment while the equipment was being used to treat patients, and because “River Region personnel would be subject to roving depositions while they attempt to perform their duties,” the proposed EEOC inspection would likely “significantly disrupt” River Region’s operations. Id.

With respect to confidentiality, the Court opined that the EEOC could receive confidential patient information as the result of the inspection. While the EEOC stated that it would not communicate with any patient or review medical records, the Court found that the “normal” operations of River Region “would likely include the communication or observation of patients’ confidential information.” Id.

Based on the foregoing, the Court concluded that it would not permit the requested inspection. Id. at 9. It further found that the EEOC could try to obtain the information it desired through other means, such as interviews of Chambers and depositions.

Implications For Employers

Employers who are the subject of discrimination litigation or an EEOC investigation can use this case for authority if the plaintiff or the EEOC seeks to investigate their premises. While the case will be especially useful for employers in the healthcare industry (given the Court’s concerns over patient confidentiality), other portions of the decision will be of use to employers in other industries. The Court’s concern that a time limited inspection might not allow an inspecting party to observe a “representative sample” of a position’s job duties would apply in many other industries, and the Court’s conclusion that an inspecting party could obtain information about essential job duties through other, less invasive means of discovery would apply in most, if not all, other industries. Employers should also take heart that the courts are becoming increasingly wary of the EEOC’s attempts to conduct invasive premises inspections.

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

Supreme Court Victory For Employers Today In Mach Mining v. EEOC

Posted in EEOC Litigation

as1859[1]By Gerald L. Maatman, Jr., Christopher Cascino, and Matthew Gagnon

On April 29, 2015, the U.S. Supreme Court issued its long-awaited decision in Mach Mining, LLC v. EEOC, No. 13-1019 (U.S. 2015), and concluded, in a unanimous opinion authored by Justice Kagan, that federal courts have the authority to review the EEOC’s conciliation efforts. In language that is sure to be repeated back to the EEOC for years to come, the Supreme Court held that “[a]bsent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone.” This, the Supreme Court said, would be contrary to “the Court’s strong presumption in favor of judicial review of administrative action.”

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

Case Background

This ruling is a big case for employers and for government enforcement litigation. In a game-changing decision in December 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit brought by the EEOC.  That decision had far-reaching, real world significance to the employment community because it meant that the EEOC was virtually immune from review in terms of the settlement positions it takes – often: “pay millions or we will sue and announce it in a media release.”

We have kept our blog readers up to date on this litigation as it wound through the lower courts and progressed at the Supreme Court. Readers can find the previous posts here, here, here, here, here, here, and here. In addition, Seyfarth filed an amicus brief supporting Mach Mining’s position, a copy of which can be found here. In essence, the Seventh Circuit determined that the EEOC’s pre-lawsuit conduct in the context of conciliation activities was immune from judicial review, and the Supreme Court granted certiorari to determine whether that was correct and, if not, what standard federal courts should use to review the EEOC’s conciliation efforts.

The Supreme Court’s Ruling

The Supreme Court unanimously rejected the Commission’s position that its conciliation activities are beyond judicial review. It began by discussing the fact that Title VII of the Civil Rights Act requires the EEOC to “‘endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.’” Mach Mining, No. 13-1019, at 2 (quoting 42 U.S.C. § 2000e-5(b)). The Supreme Court observed that “Congress rarely intends to prevent courts from enforcing its directives to federal agencies,” and that, for that reason, the Supreme Court would “appl[y] a strong presumption favoring judicial review of administrative action.” Id. at 4.

The Supreme Court reasoned that “[c]ourts routinely enforce . . . . compulsory prerequisites to suit in Title VII litigation.” Id. at 5. As an example, the Supreme Court pointed to the fact that courts routinely dismiss discrimination complaints of parties that failed to file a timely charge of discrimination with the EEOC.  Id.  The Supreme Court found that this supported judicial review of the EEOC’s compliance with the conciliation requirement. Id. at 6.

The Supreme Court also rejected the EEOC’s argument that “Title VII provides no standards by which to judge the EEOC’s performance of its statutory duty,” thus showing that “Congress demonstrated its intent to preclude judicial review.” Id. at 6. The Supreme Court concluded that the EEOC’s position was incorrect because, while the lack of a standard might indicate Congress’s intent to give the EEOC wide latitude in conducting the conciliation process, it did not give the EEOC the authority to ignore the conciliation process. Id. at 6-7. Specifically, the Supreme Court opined that, if the Commission’s position were correct, the EEOC could file suit without any attempt at conciliation, and federal courts could do nothing to remedy the failure to engage in conciliation. Id.

The Supreme Court then addressed the proper scope of judicial review to determine whether the EEOC had met its conciliation obligation. The Supreme Court declined to adopt the standard offered by Mach Mining as well as the Commission. The Supreme Court started with the plain language of the statute, noting that Title VII describes the statutory obligation as requiring “conference, conciliation, and persuasion.” Id. at 7. Those specified methods must therefore involve communication between the parties, including an exchange of information and views about the alleged unlawful employment practice. In sum, the EEOC must “tell the employer about the claim – essentially, what practice has harmed which person or class – and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” Id.

In defining the scope of judicial review, the Supreme Court threaded a line between the EEOC’s position and the position of the defense. The EEOC argued for the most minimal review possible – facial examination of documents prepared and submitted by the agency itself.  In this case, the EEOC argued that the Supreme Court should be satisfied with two letters sent from the Commission to Mach Mining: (1) the reasonable cause letter, which informed the company that the EEOC would contact the party to initiate the conciliation process; and (2) a second, later letter, which simply stated that the conciliation process had occurred and failed.  Id. at 8. The Supreme Court rejected the EEOC’s proposed level of review, holding that it simply fails to prove what the government claims, namely, whether the agency actually did what it said it did.

Mach Mining argued for a more searching review. In its briefs, the company had argued that a federal court should satisfy itself that the EEOC had negotiated conciliation in good faith. Working off of a standard set forth in the National Labor Relations Act (“NLRA”), the company argued for some minimum prerequisites as to what “good faith” negotiation would look like, including setting forth the factual and legal basis for its positions and refraining from making “take-it-or-leave-it” offers. Id. at 9-10. The Supreme Court rejected that approach, holding that the NLRA is directed toward the process of negotiation itself. The law’s purpose is to create a sphere of bargaining to address labor disputes. Id. at *10. Title VII, on the other hand, is about compliance with the law. While the law favors cooperation and voluntary compliance, it gives the EEOC wide latitude to pursue that goal, holding that “Congress left to the EEOC such strategic decisions as whether to make a bare minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers, however far afield.”  Id. at 11. Critically, the Supreme Court also held that the company’s proposed standard of review would fall afoul of Title VII’s protection of the confidentiality of the conciliation process. A detailed review of that process would necessitate public disclosure of information in violation of the statute’s non-disclosure obligations. Id. at 11-12.

The Supreme Court concluded by adumbrating the future of litigation over this issue. The Supreme Court held that a sworn affidavit from the EEOC stating that it has performed its obligations often should be enough to show that it met its conciliation efforts. Id. at 13-14. But if employers counter with a credible affidavit of their own or other evidence that demonstrates that the EEOC “did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim,” then a federal court must conduct the fact-finding necessary to decide that dispute. Id. at 14. If the EEOC’s efforts were inadequate, the federal court must then order the agency to undertake the necessary efforts to ensure that it has satisfied its conciliation obligations. Id.

Implications For Employers

The implications for employers as a result of this decision cannot be overstated. The EEOC has been arguing for years in courts across the country that its conciliation efforts — and other pre-suit obligations — are entrusted solely to its discretion and therefore are immune to any form of judicial review. That position has been squarely defeated.  While the scope of review articulated in the Supreme Court’s decision is a narrow one, the Supreme Court vigorously upheld the fundamental principle that judicial review of administrative action is the norm in our legal system. Given the often breathtaking scope of authority that the Commission seeks to carve out for itself, any reaffirmation of that principle comes as a welcome check on the EEOC’s activities. Further, the EEOC now has to present its position in a federal court, and its litigation strategies are apt to be very different when it must justify and show the basis for its conciliation positions before a neutral fact-finder. We will have to wait and see exactly how this issue is litigated in the lower federal courts. Suffice it to say, employers’ defense of “failure-to-conciliate” is still alive and well, and the EEOC’s litigation strategies are now likely to be in need of rebooting.

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

The Supreme Court Grants Certiorari In Spokeo – No Harm, No Standing?

Posted in Class Action Litigation

By Pamela Q. Devata, Gerald L. Maatman, Jr., and Robert T. Szyba

thCADQZ9HPToday the U.S. Supreme Court granted the petition for writ of certiorari filed in Spokeo, Inc. v. Robins, No. 13-1339 (U.S. Apr. 27, 2015).

As we previously reported, the Spokeo petition poses a question with a significant impact on the future scope of consumer and workplace-related class actions: whether Congress can confer standing on a plaintiff who suffers no concrete harm, but who instead alleges only a statutory violation?


Supreme Court Grants Review Despite Government’s Opposition

The Supreme Court rejected the Solicitor General’s recommendation to deny certiorari or simply avoid the broader question of Congressional power and instead focus on the specifically alleged injury in Spokeo (the public dissemination of inaccurate personal information) and the specific statute at issue (the Fair Credit Reporting Act or “FCRA”), and granted certiorari regarding the broader question of congressional power.

Implications For Employers

The Supreme Court’s ultimate decision in this case is likely to have a significant impact on congressional power as well as the future of consumer, workplace, and other class actions.  Although rooted in the complex arena of separation of powers between the Congress and the federal judiciary under Article III of the Constitution, the Supreme Court’s future decision is likely to have a practical impact on the viability of claims under a variety of federal statutes, including the FCRA.  Ultimately, the Supreme Court’s determination is likely to answer a simpler question than the one presented:  Can plaintiffs sue for the violation of a statute when they can show no actual injury or harm that they have suffered?

The Supreme Court may limit Congress’ power to create private causes of action based solely on statutory violations, and require plaintiffs to plead and establish actual injury — not just a violation of the underlying statute.  Congressional power and the number of viable class actions under the FCRA and other federal statutes may be limited.  This decision would likely discourage the current wave of consumer, workplace, and other class actions seeking millions in statutory damages.  On the other hand, a decision allowing individual and class claims to go forward alleging only statutory damages without injury in fact would likely have the opposite outcome, resulting in claims based on alleged violations of statutory requirements, brought by individuals who suffered no adverse consequence of the identified possible violation.

Stay tuned as we monitor the developments in this case.

EEOC’s “Sex” Discrimination Lawsuit Filed On Behalf Of Transgendered Worker Survives Motion To Dismiss

Posted in EEOC Litigation

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

As we have previously reported, the EEOC is pursuing test cases to establish legal protections for transgender workers under Title VII’s prohibition against “sex” discrimination and harassment as part of its strategic mission even though no federal statute, including Title VII, explicitly prohibits employment discrimination based on gender identity or expression. To this end, the EEOC filed two lawsuits on September 25, 2014 on behalf of transgender workers – EEOC v. Lakeland Eye Clinic, P.A. (Middle District of Florida) and EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (Eastern District of Michigan) — seeking to expand the interpretation of federal civil rights laws..

On April 9, 2015, U.S. District Court Judge Mary S. Scriven approved a consent decree entered into between the EEOC and Lakeland Eye Clinic, P.A. settling one of these two lawsuits.

Less than two weeks later, on April 21, 2015, U.S. District Court Judge Sean F. Cox denied R.G. & G.R. Harris Funeral Homes Inc.’s (“Funeral Homes”) motion to dismiss the complaint in EEOC v. R.G. & G.R. Harris Funeral Homes Inc. for failure to state a claim, thereby allowing the case to proceed to discovery. Judge Cox’s decision is an important read for employers.

Case Background

In EEOC v. R.G. & G.R. Harris Funeral Homes, the EEOC alleges that a Detroit-based funeral home illegally fired a funeral director and embalmer named Aimee Stephens (“Stephens”), weeks after Stephens gave the funeral home a letter saying she was undergoing a gender transition from male to female. She was allegedly terminated, and told by the owner of the employer that what she was “proposing to do” was “unacceptable.” Id. at 1.

Recognizing that transgendered, or transsexual status is currently not a protected class under Title VII, the EEOC alleges that “the Funeral Home’s decision to fire Stephens was motivated by sex-based considerations, in that the Funeral Home fired Stephens because Stephens is transgendered, because of Stephen’s transition from male to female, and/or because Stephens did not conform to the defendant employer’s sex – or gender-based preferences, expectations, or stereotypes.” (emphasis added). Id. The Funeral Home filed a motion to dismiss on the basis that Title VII does not protect transgendered individuals.

Court’s Decision

Acknowledging that Title VII does not protect transgendered individuals, the Court noted that “had the EEOC alleged that the Funeral Home fired Stephens based solely on Stephens’ status as a transgendered person” it would be inclined to grant the Funeral Home’s motion to dismiss. Id. at 10. However, as the EEOC did not allege that the Funeral Home fired Stephens solely because of transgendered status, rather, Judge Cox also found it significant that the EEOC also asserts that the Funeral Home fired Stephens because she did not conform to the Funeral Home’s sex or gender-based preferences, expectations, or stereotypes. Id. at 11.

In reaching its decision to deny the motion to dismiss, the Court acknowledged that “even though transgendered/transsexual status is currently not a protected class under Title VII, Title VII nevertheless ‘protects transsexuals from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.’” Id. at 11-12. Since the EEOC, in part, based its theory of liability on the Funeral Home’s alleged sex-based considerations – that Stephens did not conform to the Funeral Homes sex-based or gender-based preferences, expectations or stereotypes – the Court reasoned that the EEOC had sufficiently plead a sex-stereotyping gender-discrimination claim under Title VII. Id. as 22-23.

In sum, Judge Cox’s decision gives the EEOC a “work around” solution to assert viable claims to achieve relief for a transgendered worker, albeit not explicitly based on the theory that transgendered status is itself a protected category.

Implications for Employers

The theories of liability articulated by the EEOC in this case closely follow the EEOC’s prior landmark administrative ruling titled Macy v. Bureau of Alcohol, Tobacco, Firearms and Explosives, EEOC Appeal No. 0120120821 (April 23, 2012) (previously discussed here), in which it asserted that transgender individuals may state a claim for sex discrimination under Title VII.

Notably, Judge Cox observed in his decision denying the Funeral Home’s motion to dismiss that the Commission “appears to seek a more expansive interpretation of sex under Title VII that would include transgendered persons as a protected class.” Given that the EEOC also alleged discrimination based on sex or gender-based preferences, the Court did not have to reach this issue. However, the Court did note that “there is no Sixth Circuit or Supreme Court authority to support the EEOC’s position that transgendered status is a protected class under Title VII.” Id. at 11.

We expect that EEOC-initiated ligation on behalf of transgendered individuals will continue to increase given the Commission’s enforcement strategy and desire to “push the envelope” in this area. As we previously advised employers must be mindful of issues related to gender identity and/or expression that might arise during interviewing, hiring, discipline, promotion and termination decisions. Employers should be particularly vigilant when an employee identifies as transgender, or announces a plan to undergo a gender transition. Stay tuned!

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

En Banc Sixth Circuit Reverses Itself And Finds That Nearly Unlimited Telecommuting Is Not A Reasonable Accommodation Under The ADA

Posted in EEOC Litigation

US-CourtOfAppeals-6thCircuit-SealBy Christopher M. Cascino and Gerald L. Maatman, Jr.

In EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 10, 2015), a case we blogged about previously here and here, the U.S. Court of Appeals for the Sixth Circuit upheld summary judgment in favor of Ford and against the EEOC in an Americans With Disabilities Act (“ADA”) failure to accommodate lawsuit. The Sixth Circuit held that the person on whose behalf the EEOC brought suit was not qualified within the meaning of the ADA because the accommodation proposed by the EEOC of allowing her to telecommute up to four days per week was unreasonable. The Sixth Circuit also held that the EEOC did not provide evidence sufficient to allow a trier of fact to find that Ford retaliated against the charging party for bringing an EEOC charge.

The Sixth Circuit’s ruling represents an important win for employers and a significant defeat for the EEOC as the Commission attempts to make telecommuting a reasonable accommodation option for more and more jobs.

Case Background

Jane Harris was a resale buyer for Ford, serving as an intermediary between steel suppliers and the companies that use steel to produce parts for Ford. Id. at 2. Her job was “highly interactive.” Id. As part of her job duties, she was required to meet with suppliers at their sites and Ford employees at Ford’s site, and was further required to meet with Ford employees and suppliers “at a moment’s notice.” Id. at 2-3. In Ford’s judgment, this made “a resale buyer’s regular and predictable attendance in the workplace . . . . essential to being a fully functioning member of the resale team.” Id. at 3.

Throughout her six-year tenure as a retail buyer, Harris had irritable bowel syndrome, an illness that caused her to have severe fecal incontinence. Id. at 3-4. Because of this incontinence and the stress that it caused her, Harris frequently missed work and would otherwise often come in late and leave early. Id. at 3. Her performance suffered, and she ended up ranked in the bottom 10% of her peers for two consecutive years. Id.

Ford tried several accommodations to assist Harris, but none solved her performance problems. Id. at 4. Harris then proposed that she be allowed to work up to four days per week from home as an accommodation. Id. Ford concluded that, out of Harris’ ten job responsibilities, four could not be performed from home, four could not effectively be performed from home, and the two other responsibilities were “not significant enough to support telecommuting.” Id. at 5. Ford thus concluded that the only way a telecommuting accommodation could work would be if it were on a set schedule and if Harris could come to Ford’s worksite as needed on days scheduled for telecommuting. Id. Harris could not agree to that. Id.

Since Harris’ proposed accommodation would not work, Ford offered her other accommodations, including moving her closer to the restroom and jobs more suited for telecommuting. Id. Harris turned these accommodations down, sent an email claiming that the denial of her accommodation request violated the ADA, and filed a charge with the EEOC. Id.

After filing the charge, Harris’ performance continued to slide and, after Harris failed to complete a Performance Enhancement Plan intended to improve her subpar performance, Harris was terminated. Id. at 5-6.

The EEOC filed suit against Ford, claiming that Ford failed to accommodate Harris’ disability and that Ford terminated Harris in retaliation for her decision to file a charge with the EEOC. Id. at 6. The district court granted summary judgment in favor of Ford, finding that “working from home up to four days per week is not a reasonable accommodation under the ADA and that the evidence did not cast doubt on Ford’s stated reason for terminating Harris’ employment: poor performance.” Id. A divided Sixth Circuit panel reversed the district court, after which the Sixth Circuit agreed to hear the case en banc. Id.

The Sixth Circuit’s En Banc Ruling

The Sixth Circuit began its discussion by pointing out that any accommodation that involves removing an “essential function” from a job “is per se unreasonable.” Id. at 7. It then considered whether on-site attendance was essential to Harris’s job.

The Sixth Circuit concluded that “regularly attending work on-site is essential to most jobs.” Id. at 8-9. It concluded this based on numerous U.S. Court of Appeals decisions holding that this is the case, as well as EEOC regulations and informal guidance suggesting that on-site attendance is normally essential. Id. at 7-9. It further concluded that on-site attendance is even more essential in “interactive” jobs like Harris’ job. Id. at 7-8. It thus concluded that Harris’ proposed accommodation was unreasonable. Id. at *10.

The Sixth Circuit also rejected each of the EEOC’s arguments as to why summary judgment was not appropriate. The Sixth Circuit held that Harris’ testimony that she could perform her job functions from home could not create a “genuine dispute of fact” because courts should not “credit the employee’s opinion about what functions are essential” since, if they did, “every failure-to-accommodate claim involving essential functions would go to trial.” Id. at 11 (emphasis in original).

The Sixth Circuit found the fact that other resale buyers telecommuted did not make Harris’ proposed accommodation reasonable because she was requesting a much larger accommodation than Ford had given to any of its other resale buyers. Id. at 11-12. The other resale buyers who telecommuted did so on one set day per week and agreed to come in on their telecommuting day if needed, while the EEOC argued that Harris should have been allowed to telecommute up to four days per week on an unscheduled basis without an agreement to come in on telecommuting days on an as-needed basis. Id. at 12. The Sixth Circuit found the difference between the telecommuting Ford gave to other resale buyers and the telecommuting requested by Harris and the EEOC to be so different that it found the EEOC’s arguments in this regard to be “legally and factually unsupported.” Id.

The Sixth Circuit also criticized the EEOC’s position because it would create a perverse incentive for employers to deny limited telecommuting as an accommodation for their employees so that they would not have to grant other employees far more expansive telecommuting accommodations:

[I]f the EEOC’s position carries the day, once an employer allows one person the ability to telecommute on a limited basis, it must allow all people with a disability the right to telecommute on an unpredictable basis up to 80% of the week (or else face trial). That’s 180-degrees backward. It encourages — indeed, requires — employers to shut down predictable and limited telecommuting as an accommodation for any employee. A good deed would effectively ratchet up liability, which would undermine Congress’ stated purpose of eradicating discrimination against disabled persons.

Id. (emphasis in original).

Finally, the Sixth Circuit rejected the EEOC’s argument that advances in technology themselves are enough to create an issue of fact as to whether on-site attendance was an essential function of Harris’s job. It first pointed out that the fact of advancing technology “in the abstract” is not proof that technological advances “made [Harris’s] highly interactive job one that can be effectively performed at home.” Id. at 13. It then discussed the fact that “email, computers, telephone, and limited video conferencing . . . . were equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs,” thus finding that these technologies do not make on-site work attendance non-essential in interactive jobs. Id. Based on this analysis, the Sixth Circuit upheld the district court’s decision to grant summary judgment to Ford on the EEOC’s failure to accommodate claim.

The Sixth Circuit then considered whether Ford retaliated against Harris for making a charge with the EEOC. While agreeing that the timing of Harris’ discharge “seem[ed] suspicious,” it found that “temporal proximity cannot be the sole basis for finding pretext.” Id. at 16. The Sixth Circuit concluded that the other evidence suggesting pretext was insufficient to create a genuine issue of fact. It found that Harris’ meetings with a non-decisionmaker could not prove pretext because “[a]ctions by non-decisionmakers cannot alone prove pretext. Id. at*17. It next found that Harris’ poor performance review after the charge could not establish pretext because it was as poor as her last pre-charge performance review. Id. at 18. Finally, the Sixth Circuit held that Harris’ testimony that the Performance Enhancement Plan she failed to complete was designed to “ensure her failure” did not create an issue of fact because it was “so utterly discredited by the record that no reasonable jury could believe it.” Id. at 19. Based on this analysis, the Sixth Circuit also upheld the district court’s decision to grant summary judgment to Ford on the EEOC’s retaliation claim.

Implications For Employers

This case is a significant win for employers and a significant loss for the EEOC as it attempts to expand telecommuting as a reasonable accommodation under the ADA. Employers can use this ruling to support their position in ADA actions brought by the EEOC as well as private plaintiffs who assert that telecommuting is a reasonable accommodation under the ADA. Of special interest is the Sixth Circuit’s observation that “email, computers, telephone, and limited video conferencing . . . . were equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs,” which can be used to undercut inevitable arguments by ADA plaintiffs that on-site attendance is outdated in light of technological advances. Moreover, employers can use this case when ADA plaintiffs claim they should have been given a more extensive version of an accommodation given to another employee.  Specifically, employers can argue that the degree of the accommodation matters and that allowing plaintiffs to use such an argument would create a perverse incentive for employers to deny accommodation requests.

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

The EEOC’s Proposed Wellness Plan Regulation: Some Progress, But Issues Persist

Posted in EEOC Litigation

thCAD0SFA4By Paul H. Kehoe and Lawrence Lorber  

Earlier today, the EEOC published its much anticipated Notice of Proposed Rulemaking (“NPRM”) regarding the interaction between wellness plans and the Americans With Disabilities Act (“ADA”). As we have discussed here and here, the issue of whether an incentive or surcharge permitted (indeed, encouraged) under the Patient Protection and Affordable Care Act (“ACA”) is nonetheless impermissible under the ADA and GINA has caused consternation for the regulated community. The EEOC’s proposed rule provides some clarity on that issue, but raises or ignores additional concerns for employers offering wellness plan incentives to employees. The comment period on this proposed rule will close on June 19, 2015. This is important for all employers.

The 30% Rule

Under the Affordable Care Act (“ACA”) and its implementing regulations issued by the Departments of Labor, Treasury and Health and Human Services, employers may offer financial incentives to employees up to 30% of their health care premiums for participating in and reaching certain health outcomes in a wellness plan and up to 50% for smoking cessation programs. The EEOC however, has added a nuance to the nicotine prevention component of the ACA and HIPAA. Under the NPRM, if an employer conducts a biometric exam to test for nicotine, any incentive would be capped at 30% instead of 50%. If no disability-related inquiry is made, a 50% incentive is permissible.

In addition, the NPRM does not specifically adopt the “HIPAA / ACA standard” but instead imposes hard percentage caps. If the percentages rise or fall in the future at the behest of those Secretaries, the EEOC’s adoption of hard numbers would then again leave the EEOC inconsistent with the Cabinet-level agencies.

The ADA Safe Harbor

Section 501(c) of the ADA provides that it cannot be construed to prohibit or restrict “a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.” In its discussion of Seff v. Broward Cty., 691 F.3d 1221 (11th Cir. 2012), the NPRM seems to definitively reject the notion that any wellness plan can be part of a bona fide benefit plan. In other words, the EEOC rejects the premise that a wellness plan can be structured to fall within the safe harbor established by the ADA. The fact is, some wellness plans fall within the safe harbor, and some do not. While the EEOC may disagree with the 11th Circuit’s decision in Seff, it seems to have gone beyond its disagreement with the Seff decision and has unilaterally written the safe harbor out of the statute. The EEOC lacks that authority.

A Question About Affordability

Under the ACA, employers are not required to provide health insurance.  Instead, an employer can choose to pay a fine. Even where an employer offers health insurance, it only must offer a single plan that is affordable, and even then, employees can choose whether to enroll in that plan or a more robust plan that may not meet affordability standards.

However, in the NPRM, the EEOC specifically requested comments on the following:

Whether to be considered “voluntary” under the ADA, the incentives provided in a wellness program that asks employees to respond to disability-related inquiries and/or undergo medical examinations may not be so large as to render health insurance coverage unaffordable under the Affordable Care Act and therefore in effect coercive for an employee…

Where such incentives would render a plan unaffordable for an individual, it would be deemed coercive and involuntary to require that individual to answer disability-related inquiries[.]

If an employer would have to test affordability under some  as yet to be determined test for each of its plans for each employee, then the same wellness plan incentives could conceivably be voluntary for some employees, and non-voluntary for other employees. Such an outcome was not contemplated by the ACA or the implementing regulations, and would likely chill employers from offering any wellness plan incentives — exactly the opposite of Congressional intent and contrary to White House statements. Nor does the EEOC provide statutory support for its question regarding affordability so that the basis of this discussion in the rulemaking process would seem to be unanchored to any statutory provision.

Spousal Incentives

The regulated community has, for years, raised concerns about EEOC investigations into incentives offered to employee spouses for completing health risk assessments where information related to manifested conditions is inquired about. Indeed, this was part of the Honeywell litigation late last year. Unfortunately, the EEOC failed to address the issue and continues to leave the regulated community and its career staff without guidance.

Implications For Employers

While the rule, if promulgated, would provide some clarity for employers, it would also raise some important questions related to the EEOC’s power to strip employers of a statutory defense, and potentially muddy the waters if an affordability standard is included.  In addition, the NPRM opens the door to uncertainty with reference to wellness program-related claims under Title VII and the ADEA as well. Given these potential issues and more that will inevitably arise in the coming weeks, it is important for the regulated community — employers, wellness program providers, and others — to consider submitting comments for the record regarding the pros and cons of the proposed rule.  As we have throughout this entire process, we will keep you posted on any developments.

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