By Matthew J. GagnonChristopher J. DeGroff, and Gerald L. Maatman, Jr.

Seyfarth Synopsis: With uncertain times and profound changes anticipated for the EEOC, employers anxiously await what enforcement litigation the EEOC has in store. Although 2016 showed a marked decline in filings, fiscal year 2017 shows a return to vigorous enforcement filings, with a substantial number of filings in the waning days of the fiscal year.

Employers are living in uncertain times. The impact of a Trump Administration and the EEOC’s new Strategic Enforcement Plan (SEP) for fiscal years 2017-2021 are still working themselves out in the FY 2017 filing trends. Nonetheless, one trend has reemerged: a vigorous number of EEOC case filings. It looks like the anemic numbers of FY 2016 were just a bump in the road, as FY 2017 has revealed an increase in total filings, even eclipsing the numbers from FY 2015 and 2014. (Compare here to here and here.) This year, the EEOC filed 202 actions, 184 merits lawsuits and 18 subpoena enforcement actions.

The September filing frenzy is still an EEOC way-of-life, as this past month yet again holds the title for most filings compared to any other month. At the time of publication, 88 lawsuits were filed in September, including 21 in the last two days alone. In fact, the EEOC filed more cases in the last three months of FY 2017 than it did during all of FY 2016. The total number of filings for the remaining months remains consistent with prior years, including a noticeable ramp up period boasting double digit numbers through the summer.

Filings out of the Chicago district office were back up in FY 2017 after an uncharacteristic decline to just 7 total filings in 2016. This year, Chicago hit 21 filings, an enormous increase from last year. This is closer to the total number of Chicago filings in FY 2015 and 2014 (26 in each year). The Los Angeles district office also increased its filings, hitting a high of 22, a substantial jump compared to previous years and the most of any district office in FY 2017. On the other end of the spectrum, the Phoenix district office has seen a notable drop, with only 7 filings compared to 17 in FY 2016.

New SEP, Same Focus

Every year we analyze what the EEOC says about its substantive focus as a way to understand what conduct it is targeting. This year, Title VII takes center stage. Although Title VII has consistently been the largest category of filings, last year showed a dip in the percentage of filings alleging Title VII violations, at only 41%. Nonetheless, this year Title VII has regained its previous proportion, accounting for 53% of all filings. This is on par with FY 2015 and 2014, showing once again that FY 2016 seems to have been an outlier.

Although the 2017-2021 SEP outlined the same general enforcement priorities as the previous version of the SEP (covering FY 2012 to 2016), the new SEP added “backlash discrimination” towards individuals of Muslin/Sikh/Arab/Middle Eastern/South Asian communities as an additional focus. One would expect this focus might increase the number of Title VII claims alleging either religious, racial, or national origin discrimination. However, those filings stayed relatively even, and were even a bit down from previous years. Religious, national origin, and race discrimination claims made up 42% of all Title VII claims, compared to 50% in 2016 and 46% in 2015.

Uncertainty For Equal Pay Claims

With a new administration came a new Acting Chair for the EEOC. President Trump appointed Victoria Lipnic as Acting Chair on January 25, 2017. Employers expected the EEOC’s new leader to steer the EEOC’s agenda in a different direction. Some believed Lipnic was foreshadowing future trends when she made it clear at her first public appearance – hosted by none other than Seyfarth Shaw – that she is “very interested in equal pay issues.” (See here.) And indeed, we have seen a slight uptick in the number of EPA claims filed in FY 2017. In FY 2017, The EEOC filed 11 EPA claims, compared to 6 in 2016, 5 in 2015, and 2 in 2014.

However, on June 28, 2017, President Trump tapped Janet Dhillon as Chair of the EEOC. Dhillon would come to the EEOC with extensive experience in a big law firm and as the lead lawyer at three large corporations, US Airways, J.C. Penney, and Burlington Stores Inc. Although it is too early to know how she could change the direction of the agency if confirmed, it is entirely possible that she could back away from previous goals to pursue equal pay claims more aggressively.

The Trump Administration has also made other moves that may indicate a change in direction with respect to equal pay initiatives. On February 1, 2016, the EEOC proposed changes to the EEO-1 report that would require all employers with more than 100 employees to submit more detailed compensation data to the EEOC, including information regarding total compensation and total hours worked by race, ethnicity, and gender. This was a change from the previous EEO-1 report, which only required employers to report on employee gender and ethnicity in relation to job titles. However, on August 29, 2017, the new EEO-1 reporting requirements were indefinitely suspended. We will have to wait and see whether the slight uptick in EPA claims in FY 2017 was a one-year anomaly.

Implications For Employers

The changes brought by the Trump Administration are still in the process of working themselves down into the rank and file of many federal agencies. The EEOC is no exception. Despite all of the unrest and uncertainty about where the EEOC may be headed, the FY 2017 filing trends largely show a return to previous years, albeit with a slight uptick in EPA claims. Certainly, changes in top personnel will have an impact on how the EEOC pursues its enforcement agenda. Exactly what that impact will be remains to be seen.

Loyal readers know that this post is merely a prelude to our full analysis of trends and developments affecting EEOC litigation, which will be published at the end of the calendar year. Stay tuned for our continued analysis of FY 2017 EEOC filings, and our thoughts about what employers should keep an eye on as we enter FY 2018. We look forward to keeping you in the loop all year long!

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

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

Seyfarth Synopsis: Reviewing the EEOC’s case filings during the first half of the Commission’s fiscal year may already reveal some surprising trends, most notably a sharp uptick in the total number of case filings – up 75% from the same point last year – and a corresponding increase in systemic cases.

March 31 was the mid-point of the EEOC’s fiscal year. Given the significant changes brought to the federal government by the Trump Administration, we sharpened our pencils and examined the EEOC’s case filings during the first half of FY 2017 and compared those filings to the first half of FY 2016 to see what changes, if any, the new administration has wrought.

As the chart below reveals, the number of filings is up significantly from the same point in time in FY 2016. From October 1, 2016 through March 31, 2017, there were 35 new cases filed. During the same time period in the prior year, there were only 20. That means that filings are up a whopping 75% for the first half of the year.

Total EEOC Case Filings - 2017 Midyear Review

In addition to a larger number of total filings, we have also seen a rise in systemic cases. These cases – defined as having a significant impact on the development of the law or promoting compliance across a large organization, community, or industry – have long been a strategic priority for the agency. As we blogged about here, Acting Chair of the EEOC, Victoria Lipnic, reaffirmed the agency’s commitment to systemic cases when she spoke to Seyfarth Shaw and our invited guests in February of this year. However, systemic cases have garnered negative attention from Republican members of Congress, so it was not clear whether the EEOC would shift direction under the new Republican leadership.

Although we cannot know for certain which cases the EEOC considers “systemic,” based on our review of EEOC press releases and the substance of the EEOC filings, we have identified a significant uptick in systemic case filings in the first half of FY 2017 compared to the same period in FY 2016. Last year there were only four filings during this time period, compared with nine this year. If this trend holds through to the end of the year, then this could turn out to be a banner year for systemic case filings.

Systemic EEOC Case Filings - 2017 Midyear Review

Finally, we analyzed the particular discrimination theories and statutes that the EEOC is pursuing. That analysis can be seen in the chart below. Not surprisingly, Title VII and Americans with Disabilities Act cases lead the way, with 17 and 14 cases filed respectively. Year after year, those types of cases lead the pack. The number of ADEA cases is slightly higher than this time last year, but is still generally consistent with prior years and does not yet reflect a significant change in direction for the EEOC.

As Seyfarth’s Pay Equity Issues & Insights Blog noted here, Chairperson Lipnic has stated that she is very interested in pay equity issues. However, that level of interest is not yet translating into any increase in Equal Pay Act (“EPA”) cases on a year over year basis. The first half of FY 2017 saw only one EPA case filed, the same as during the same period last year.

EEOC Case Filings By Statute - 2017 Midyear Review

We will continue to monitor trends and developments in EEOC litigation throughout the year so that we can once again bring you our annual comprehensive end-of-year examination of trends affecting EEOC litigation (see here for last year’s version). As always, we look forward to bringing that analysis to you, our loyal readers!

200px-Ballroom_svgBy Gerald L. Maatman Jr. and Howard M. Wexler

In a case we previously blogged about here where the Court refused to grant Plaintiffs’ request for equitable tolling on their claims under the Equal Pay Act (“EPA”), Magistrate Judge Michael Dolinger recently issued a decision granting Plaintiffs’ motion for conditional certification of a collective action under the EPA to cover past/current female Sales Representatives who were employed between 2009 and 2014. The decision serves a primer as to the standard that courts in the Second Circuit utilize in deciding conditional certification motions brought under the Fair Labor Standards Act (and the EPA, which was enacted as an amendment to the FLSA).

Background To The Case

Eleven current/former female employees brought individual and class claims under the EPA and Title VII alleging disparate pay based on their gender in July of 2012. Id. at 1.  Ten of the Plaintiffs’ subsequently filed a motion for conditional certification of their EPA claims, as well as a proposed form of notice to be sent to potential opt-in plaintiffs. Id. 2

The Court’s Decision

The Court began by explaining the “two step method” adopted by the Second Circuit in deciding conditional certification motions under the FLSA (and EPA).  Id.  First, per that standard, Plaintiffs must make a “modest factual showing” that they and the potential opt-in plaintiffs, “together were victims of a common policy or plan that violated the law.”  Id. at 3.  If conditional certification is granted at the “first step,” then, following discovery, the Court – at the second step – will make a decision based “on a fuller record” as to whether the collective action may go forward by determining whether the plaintiffs who have opted-in are in fact “similarly situated” to the named plaintiffs.  Id.  The action may be decertified if the record reveals that the opt-in plaintiffs are not similarly situated to the named plaintiffs. Id.

In discussing the quantum of proof that must be established at “first step,” the Court noted that while the standard is a modest one, “unsupported assertions” of similarly situated employees are not enough. Id. at 4.

With respect to the pending motion, the Court reviewed certain pre-motion document production as well as an expert report offered by Plaintiffs, which allegedly demonstrated “a statistically significant difference between the pay of male and female Sales Representatives.” Id. at 4.  Plaintiffs also presented a list of comparators for each named Plaintiff, which they argues as proof of the pay disparity between male/female Sales Representatives.  Id.

Based on this evidence, the Court held that Plaintiffs met their modest burden.  The Court, however, was sure to note that it was neither resolving any factual disputes nor deciding any substantive issues.  To this end, the Court noted that “Plaintiffs’ own assertions of discrimination are conclusory…” Id. at 11.  However, the Court held that what Plaintiffs presented to the Court was enough to satisfy their stage one burden, even though Defendant came forward with evidence rebuking many of Plaintiffs’ assertions as such merit-based determinations are not appropriate at this juncture of the case.  Id. at 14-15.

Implication For Employers

Although the Court granted Plaintiffs’ motion for conditional certification, it is clear that even at this early juncture of the case, the record was developed through some limited discovery concerning the basis of Plaintiffs’ claims, as well as expert reports from both sides.  Given the increasing number of EPA lawsuits, Plaintiffs are increasingly “jumping the gun” and trying to obtain conditional certification before any discovery has even taken place.  This decision should be used as employers facing such “shot gun” motions to demonstrate why it is appropriate for courts to allow discovery, even limited discovery, to take place prior to an employer having to fend off a conditional certification motion as it will help crystalize the issues for the Court given that the requisite showing, while “modest” cannot be met by mere unsupported assertions.

pugg-wall-clock__13080_PE040801_S4By Gerald L. Maatman Jr. and Howard M. Wexler

In a decision worth reading for all class action practitioners, especially those who face Equal Pay Act (“EPA”) issues, Judge Ronnie Abrams of the U.S. District Court for the Southern District of New York denied equitable tolling of the statute of limitations period in a high profile gender discrimination case.  Judge Abrams’ decision in Barrett, et al. v. Forest Laboratories, Inc., et al., 12-CV-5224 (S.D.N.Y.  July 8, 2015), serves a great primer as to the differences between calculating the limitation periods in Title VII class actions as compared to EPA collective actions and the significant impact of these differences.

Background To The Case

Eleven current/former female employees brought individual and class claims under the EPA and Title VII alleging disparate pay based on their gender in July of 2012. Id. at 2.  Plaintiffs’ subsequently filed a First and Second Amended Complaint, which Defendants moved to dismiss and the Court decided in August 2014. Id.

In connection with a joint report in anticipation of the parties’ Initial Conference, Plaintiffs, for the first time, raised the issue of equitable tolling for their EPA claims.  Id.  Notably, at no point during the entirety of the action – dating back to the filing of the Complaint in July 2012 – had the Court ordered or any party sought a stay of discovery.  Id.  Eventually, Plaintiffs filed a formal motion in January 2015 seeking to toll the statute of limitations from April 2013 (the date Defendants filed their motion to dismiss) through the date conditional certification for the collective action is granted. Id.  at 3.

The Court’s Decision

The Court began with a primer concerning the difference between collective actions and class actions with respect to the accrual of claims.  Id.  Relevant here, under the EPA (which incorporates various provisions of the FLSA), the statute of limitations for each plaintiff runs until the individual opts into the lawsuit by filing written consent. Id.  at 4.  Accordingly, such signed consent forms from class members do not relate back to the filing date of the Complaint as compared to Rule 23 class action claims, whereby “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.”  Id. Equitable tolling creates an exception to the “potential harshness” of the FLSA’s limitation period by allowing courts to extend the limitations period to avoid “inequitable circumstances,” however, must be “cautious” in doing so…lest they transform it into the Rule 23 scheme.” Id.  A litigant seeking equitable tolling bears a “high burden” of establishing both: “(1) that [s]she has been pursuing [her] rights diligently; and (2) that some extraordinary circumstance stood in [her] way.” Id.  at 5.

Applying this “high burden” to the facts before it, the Court refused to equitably toll the statute of limitations as “Plaintiffs cannot reasonably argue that they have been diligent in pursuing their rights or that some extraordinary circumstance stood in their way to be diligent.” Id. In so holding, the Court noted that Plaintiffs’ argument that discovery was “effectively stayed” based on the Defendants’ motion to dismiss did not hold water since the case was never stayed, nor did either party ask the Court to do so.  Id. at 5-6.  Accordingly, while there were delays in the briefing process and in the Court deciding Defendants’ motion, Plaintiffs “failed to explain how these delays erected any barrier to their seeking the discovery necessary to pursue conditional certification” Id. at 7.

With respect to the second requirement for the Court to apply equitable tolling – that some extraordinary circumstance stood in their way – the Court distinguished the cases relied upon by Plaintiffs since in those cases (unlike in this case) where equitable tolling was ordered, there was “something – whether discovery disputes, a discovery stay, or the court’s election to stay a certification motion pending a motion to dismiss” which prevented plaintiffs from notifying potential collective action members. Id. at 8-9.

Based on Plaintiffs’ failure to satisfy either required test for the application of equitable tolling, the Court denied Plaintiffs’ request since “to grant the exceptional remedy of equitable tolling for the pendency of a motion to dismiss when there was nothing standing in the way of a plaintiff’s pursuing collective certification would be tantamount to tolling the statute of limitations for FLSA claims as a matter of course for all potential plaintiffs whenever the first plaintiff files her complaint – a result plainly contrary to the procedural rules that govern FLSA collective actions.”  Id. at 10-11.

Implication For Employers

This decision serves as a great reminder of the differences between class action certification and collective action certification and the real world impact of these differences as it pertains to the statute of limitations period. Given such differences, employers should always be mindful of the limitations period and that short of a court order otherwise, the limitations period continues to run in collective actions under the EPA and FLSA. While equitable tolling is a powerful tool for Plaintiffs’ counsel in collective actions, this decision highlights the high burden that plaintiffs’ counsel must satisfy to warrant its application in a particular case.

By Gerald L. Maatman, Jr. and Gina R. Merrill

On September 29, 2014, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a high-profile lawsuit brought by the EEOC – entitled EEOC v. Port Auth. of N.Y. & N.J., No. 13-2705 (2d Cir. Sept. 29, 2014) – alleging that female attorneys were underpaid as compared to their male counterparts at the Port Authority of New York and New Jersey (“Port Authority”). In dismissing the case, the Second Circuit affirmed the District Court’s determination that the EEOC had failed to adequately plead its Equal Pay Act claims against the Port Authority because it had failed to plead any specific facts regarding what the job duties of the employees were.

The Second Circuit’s ruling is a distinct defeat for the Commission, as equal pay issues are a key agenda item on the EEOC’s enforcement program.

Background

In 2007, the EEOC initiated a three-year investigation into pay practices at the Port Authority which led to the filing of EEOC v. Port Auth. of N.Y. & N.J., No. 10 Civ. 7462 (S.D.N.Y.) in the U.S. District Court for the Southern District of New York; the case was assigned to Judge Buchwald. The crux of the suit was that female attorneys in non-supervisory positions were paid less than similarly situated male attorneys performing the same work in violation of the Equal Pay Act (“EPA”). In support of the EPA claim, the EEOC broadly pled that female attorneys were paid less than male attorneys with the same “job code” and that the disparity could not be explained by factors other than sex. (The suit also initially included an age discrimination claim which was later abandoned.)

The complaint was devoid of substantive allegations regarding the actual job duties of the attorneys, and at an initial conference Judge Buchwald expressed skepticism that the EEOC had sufficiently stated a claim. The EEOC then responded to interrogatories and provided information for 14 claimants and numerous comparators. The EEOC responses stated in conclusory terms that all of the attorney positions required the same skill, effort, and responsibility, but it still failed to provide any information about the specific content of the jobs. When the District Court asked during a pre-motion conference whether the EEOC was proceeding on the theory that “an attorney is an attorney is an attorney,” the EEOC agreed that this was true at the Port Authority. The District Court later granted the Port Authority’s Rule 12(c) motion for judgment on the pleadings, and the EEOC appealed.

The Second Circuit’s Decision

In EEOC v. Port Auth. of N.Y. & N.J., the Second Circuit held that the EEOC had utterly failed to meet the demanding EPA standard that the jobs compared be “substantially equal.” Id. at 18. The Second Circuit explained that the case law requires a plaintiff to establish “that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications,” and it further noted that the EEOC’s own regulations and compliance manual emphasize that the content of the jobs determines whether they are substantially equal for purposes of the Equal Pay Act. Id. at 18-20. The Second Circuit found that the EEOC complaint and interrogatory responses, which were treated as a “functional amendment” to the complaint (id. at 10), failed to plead that the content of the jobs was similar. The Second Circuit commented that the EEOC set forth only “bland abstractions [which were] untethered from allegations regarding Port Authority attorneys’ actual job duties.” Id. at 23 (emphasis in original). The Second Circuit further characterized the EEOC’s contention that “an attorney is an attorney is an attorney” as a “broad generalization” that is not recognized by the EPA. Id.

Implications For Employers

The Second Circuit ruling is powerful precedent for employers defending EPA suits that a generalized comparison of jobs will not carry the day. Plaintiffs – and the EEOC – must plead and prove that the specific content of the jobs is substantially equal through discussion and analysis of particular job duties. The decision should also embolden employers to carefully review complaints, including those filed by the EEOC, and scrutinize whether they meet the Rule 8 pleading standard mandated by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

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

By Gerald L. Maatman, Jr. and Gina R. Merrill

Deciding yet another discovery battle in Wellens v. Daiichi Sankyo Inc., Case No. 3:13-CV-00581 (N.D. Cal. April 11, 2014), the U.S. District Court in the Northern District of California has shut down defendant’s request to secure discovery regarding the 17 opt-in putative class members. (We first blogged on the last discovery battle here.) The decision emphasizes the lenient standard for conditional certification of classes under the Equal Pay Act (“EPA”) and is a stark reminder that courts routinely certify a proposed class without affording defendants a meaningful opportunity to explore facts that might weigh against class treatment.

Background

The putative class in Wellens v. Daiichi Sankyo Inc. consists of female pharmaceutical sales employees. The complaint accuses the company of undercompensating women sales employees as compared to men and imposing a glass ceiling on female advancement. The complaint brings claims under Title VII and the EPA as well as California state law claims.

The company sought discovery regarding the 17 putative class members who have opted-in to the class, specifically seeking written discovery responses regarding all of the women and the depositions of ten of them. Plaintiffs opposed the discovery requests and, last month, filed a motion for conditional collective action certification of the EPA class. That motion is pending.

The Court’s Decision

Emphasizing the “lenient” standard for conditional certification under the FLSA, the Court refused to allow Daiichi the requested discovery. The Court recited the familiar two-step process for maintaining a collective action under the FLSA consisting of: (i) a first stage during which the Court applies a “fairly lenient standard” to determine whether putative class members are similarly situated, and (ii) after discovery is complete, the defendant moves to decertify, thus inviting the court to make a factual determination as to whether the putative class members are similarly situated. The Court quoted approvingly decisions holding that at the first stage the plaintiff has only a “very light burden.”

Since plaintiffs have only a “very light burden,” the Court held that Daiichi’s attempt to discover facts showing that the individuals are not similarly situated was unnecessary at this stage of the litigation. The Court explained that the requested evidence would be relevant to the second stage of the class certification analysis, when Daiichi inevitably moves to decertify the class, but would be “premature” at this stage. While the decision acknowledged that some other courts have allowed discovery regarding opt-in plaintiffs prior to conditional certification, the Court did not engage in any meaningful analysis of those decisions, instead simply stating that, “[i]n this case, the requested discovery … is premature.”   

The Court also seemed moved by plaintiffs’ argument that allowing the depositions of opt-in class members prior to conditional certification might cause some individuals to be deposed on multiple occasions — at this stage regarding the EPA claims, and at a later date regarding the Title VII claims — and the Court was disinclined to require plaintiffs to defend out-of-state depositions more than once.

Implications For Employers

No matter how strong an employer’s arguments opposing class certification may be, courts routinely apply the “lenient standard” to conditionally certify classes that have little chance of surviving a decertification motion. (See here for our prior reporting on one such case.) The effect of this “lenience” is to force defendants to undergo costly discovery or pay a premium to settle a case that ultimately does not deserve to be tried on a class basis. The decision of the Northern District of California, while not a class certification decision, follows suit and reflects an unwillingness by many courts to allow defendants to effectively present their case against class treatment at the initial stages of litigation.

By Christopher DeGroff, Gerald L. Maatman, Jr., and Lily M. Strumwasser

Here we go again.” It is the collective groan heard from employers across the country as they braced for the annual EEOC’s fiscal-year-end filing campaign. With 48 EEOC-initiated lawsuits filed in just the last 30 days, employers were understandably concerned. But when the EEOC’s 2013 fiscal year closed yesterday with a total of 134 lawsuits filed, and the dust settled, we saw a picture emerge about how the EEOC targeted employers in its enforcement efforts this year, and gain insight into what’s to come.

A Last Minute Rush – Again

The EEOC traditionally launches large salvos of federal court complaints across the country in the waning weeks of its fiscal year (ending September 30th). In FY 2011, the EEOC filed an astonishing 175 lawsuits in the last eight weeks of its 2011 fiscal year alone. As we reported here last year, the EEOC again revved its engine in August and September of 2012 and filed 67 of its 122 lawsuits. FY 2013 was no different, with 48 of its 134 filed in the last two months of the year – 11 today alone. Consider the graph below, capturing the month-to-month filing statistics for FY 2013.

EEOC Cases Filed By Month – FY 2013

Earlier this year, the EEOC suggested that employers would probably not see a year-end rush to the finish line as in past years, and members of the Commission itself reportedly bristle at the phenomenon. But the statistics show that the year-end rush is alive and well for yet another year.

It is possible that the year-end rush could have been even more pronounced, but the looming government shutdown may have pushed certain Districts to take a “wait and see” approach to litigation ready to go but not yet filed. Indeed, the EEOC announced a shut-down plan on September 27, 2013 that called for all non-essential activity to stop in the event of a shutdown.  It is possible that we will see a “mini-spike” of cases filed early in the EEOC’s FY 2014 if, in fact, there are a stockpile of cases awaiting more certain economic footing.

That said, the overall number of lawsuits stayed roughly stable this year, compared to the high-water mark of filings of 261 in FY 2011. Recent, and very public, litigation setbacks (discussed here, here, and here) almost certainly play a part in the EEOC’s wariness of using a “shotgun” approach to litigation.

Location, Location, Location…Is Still Critical

The 134 EEOC lawsuits this year were not distributed around the country equally – not by a long shot. Where you do business and which of the agency’s 15 Districts had picked up the cause had a big impact on an employer’s likelihood of being sued by the EEOC in FY 2013, as this graphic below shows:

EEOC Cases Filed By District – FY 2013

 

There are some remarkable swings in the number of filings from District to District that are not driven simply by population metrics. Indeed, the Charlotte, Philadelphia, and Chicago Districts alone drove a stunning 45% of the national litigation in 2013. Although Chicago has traditionally shown aggressive filings, Philadelphia and Charlotte have not, and emerge on the stage as Districts to watch in the coming fiscal year.

One important metric that must be considered whenever one analyzes EEOC activity: the agency’s budget. The resources the EEOC can draw upon play an integral part in how many cases the agency can file and, bluntly, just how well it can litigate those cases. In FY 2013 the EEOC was forced to retreat from its “all in” systemic litigation focus – the majority of the EEOC cases filed this year involved just a single “aggrieved individual.” Class litigation is expensive, and the FY 2011 high water mark of cases is unlikely to repeat anytime soon, even under an arguably EEOC-friendly administration.

Of course, the question is not just the number and location of EEOC lawsuits – what kinds of cases the EEOC is brining is critically important.

Review Of The EEOC’s National Priorities

The driving force to the EEOC’s 2013 litigation strategy was expected to be its Strategic Enforcement Plan. As we previously reported, the EEOC’s Strategic Enforcement Plan was to function as the blueprint for the Commission’s enforcement activity, and was described in detail in previous posts. The EEOC identified six national enforcement priorities in the SEP:

1. Eliminating barriers in recruitment and hiring;

2. Protecting immigrant, migrant, and other vulnerable workers;

3. Addressing emerging and developing issues;

4. Enforcing equal pay laws;

5. Preserving access to the legal system; and

6. Preventing harassment through systemic enforcement and targeted outreach.

But how did those priorities play out in practice, in an agency with highly decentralized – and even competing – District leadership?

Substance Of The EEOC’s FY 2013 Filings

We kept close tabs not only on the number of cases filed, but also what theories were pursued. Here is a snapshot of the 2013 filings:

 EEOC Cases Filed By All Discrimination Types – FY 2013

Interestingly, disability cases were the most often filed EEOC lawsuit in FY 2013.  The ADA has been a traditional favorite for the EEOC (see our blog posts here, here, and here), but not mentioned among the “big 6” national priorities. The Americans With Disabilities Act Amendment of 2008 (“ADAAA”) broadened the scope of who is “disabled” under the law, and effectively eviscerated one of the primary employer defenses to disability claims, i.e., that an employee does not have a legally protected disability. The EEOC has made clear that enforcing ADA claims is a key goal, and the number of ADA cases in FY 2013 demonstrates that goal is becoming a reality. Religion also saw a strong showing in FY 2013, but again was not one of the national priorities. Another area of interest for the EEOC was its focus on alleged discrimination against pregnant women. Click here for our blog posting on the recent string of pregnancy discrimination lawsuits the EEOC filed.

Employers are still wise to focus on the national priorities, but the 2013 filings are a chilling reminder that the EEOC has unpublicized agenda items that still can translate to costly litigation.

But what of some of those “national priorities” – drove the litigation? As for eliminating barriers in recruitment and hiring – this was a transformative year for the EEOC. The Commission’s pursuit of background checking suits was relentless. In June alone, the EEOC filed back-to-back suits against employers for use of criminal background checks.  Despite the Attorney’ General’s criticism of what they called the EEOC’s “misguided” position on criminal background screens, the EEOC stood its ground and kept swinging. Most recently, the EEOC received a scathing opinion in EEOC v. Freeman, No 09-CV-2573 (D. Md. Aug. 9, 2013), where the court dismissed the EEOC’s nationwide pattern or practice lawsuit that alleged that Freeman unlawfully relied on credit and criminal background checks that caused a disparate impact against African American, Hispanic, and male job applicants.

Employers now have some insight about what the EEOC meant in its Strategic Plan by indicating it intended to focus on “emerging issues.” In FY 2013, the EEOC pursued a number of Genetic Information Nondiscrimination Act (GINA) claims (the first of their kind), along with a discrimination lawsuit on the basis of an employee’s inability to provide a urine sample, allegations that firing a woman for breast pumping is a form of sex discrimination, and pursuit of an employer for allegedly not hiring an applicant due to positive HIV status. The EEOC’s pursuit of these novel areas helped the Commission attract and maintain media attention, an element the EEOC admits is important to pursuing its agenda.

Equal pay was also an important topic for the EEOC in FY 2013. Notably, on June 10, 2013, the White House Equal Pay Task Force announced the administration’s commitment to “closing the gap – once and for all.” In its “Fifty Years After The Equal Pay Act” publication, the White House announced that 2013 and beyond would include a focus on a “broader framework of practice that may limit the full economic participation of women workers.” President Obama’s focus on pay equity has echoed throughout the EEOC. In FY 2013, the EEOC filed 4 EPA claims. Click here for our advice on how to ensure early detection and intervention of equal pay issues to reduce and/or eliminate employer’s risk.

Insight For Employers

One thing is clear: the year-end rush is a phenomenon that is here to stay, regardless of what the agency may say about the trend. We have also learned that the EEOC’s articulated national priorities, although important, are not going to provide employers with all of the focus areas where the EEOC may sue. Comprehensive practices and policy audits are always advisable to detect and cure any EEO issues that may attract the government’s attention. The EEOC’s tendency to focus on specific geographic areas is also notable, but leaves us asking if (like those employers in the Charlotte District) what will be the next hot District? We will be watching – and reporting.

With the 2013 fiscal year wrapping up just minutes from now, there is still much data to analyze and trends to tease from those numbers. The EEOC’s official published statistics typically are released in November, and we will have even more information then. Readers should stay tuned, as we will continue to deliver insights and guidance as the foggy picture becomes clearer.

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

One-dollar-bill-001.jpgBy Christine Hendrickson and Annette Tyman

On today’s 50th anniversary of the signing of the Equal Pay Act, President Obama reiterated that pursuing equal pay for all remains at the forefront of the administration’s agenda. During his second inaugural address, President Obama said: “We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still … It is now our generation’s task to carry on what those pioneers began. For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts.” Today, President Obama’s message remains the same, “[U]ntil equal pay truly is a reality, we’re also here to recommit ourselves to the work that remains to be done.”

President Obama’s focus on pay equity has echoed throughout the agencies charged with enforcing the nation’s equal pay laws. Today, the White House Equal Pay Task Force announced the administration commitment to “closing the gap – once and for all.” In its “Fifty Years After The Equal Pay Act” publication, the White House announced that 2013 and beyond would include a focus on a “broader framework of practices that may limit the full economic participation of women workers.” The Task Force identified three specific practices to target: (1) occupational segregation and barriers that exclude women from traditionally male dominated occupations; (2) the overlay of discrimination based on race, ethnicity and gender in compensation; and (3) addressing the wage gap for mothers and caregivers. The White House also launched a website with information about “Your right to equal pay and how to exercise it and what the administration is doing to close the gender wage gap.” 

Employers are wise to pay attention to the direction given by the administration. Although there were no substantive changes in the announcements today, they represent a continued commitment to pay equity issues – a commitment that is felt throughout the agencies. For instance, the EEOC has woven its promise to combat pay discrimination into its Strategic Enforcement Plan (“SEP”), which set “enforcing equal pay laws” as one if its six national priorities through 2016. The SEP expressly “encourages the use of directed investigations and Commissioner Charges to facilitate enforcement.” There is already anecdotal evidence that the EEOC is putting the SEP into action by proactively pursuing compensation audits without a charging party or a victim of alleged pay discrimination coming forward. Likewise, the OFCCP recently rescinded guidelines that it believed were “restricted” in favor of a new “fact specific case-by-case approach” to investigating fair pay for all.  

The good news for employers is that fairness in pay is one area in which early detection and intervention can reduce and/or eliminate an employer’s risk.    

  • Get Proactive About Pay Equity: Conducting a proactive pay equity analysis is the first and best step employers can take to ensure fair pay and diminish legal risk. Even when employers are acting proactively, it is still critical for them to take steps to avoid putting the company at unnecessary risk. Any analysis should be conducted with the advice of counsel and under the attorney-client privilege. During this process, it is important to understand the factors that truly impact pay. 
  • Have A Plan To Fix Unexplained Disparities: If you find unexplained differences after a thorough privileged investigation, have a plan for making any necessary adjustments to compensation. Due diligence is required to ensure that changes are fairly administered. 
  • Review Your Compensation Policies And Practices: Ensure that your practices comply with your written policies. If you say that you are a pay-for-performance organization, ensure that your compensation practices support your compensation strategy.    
  • Consider Beefing Up Sponsorship Programs: Sponsorship and mentorship programs may be a critical piece to ensuring pay fairness in the workplace. Employers who fail to correct perceived or actual disparities in the availability of sponsorship opportunities for women become targets for employment discrimination litigation. Differences in rates of sponsorship can also have an impact in pay so employers are wise to take a harder look at their sponsorship and mentorship programs. While creating new sponsorship and mentorship programs targeted at HiPo women can be highly effective, employers should be careful before jumping to implement these programs. Sponsorship programs aimed only at HiPo female talent should be undertaken only when the employer is correcting a “manifest imbalance” of women at the company, or at certain levels or certain departments within the company, and then only when the program is intended to be a time-limited and targeted fix. Determining whether there is a “manifest imbalance” is tricky and legally risky, and is best undertaken with the advice of counsel.

cutcaster-photo-100507250-Scales-with-gender-symbols.jpgBy Gerald L. Maatman, Jr. and David Ross

On May 17, 2012, Judge Naomi Buchwald of the U.S. District Court for the Southern District of New York issued a decision in EEOC v. Port Authority of New York & New Jersey, No. 10-CV-7462 (S.D.N.Y. May 17, 2012), granting judgment on the pleadings because the Equal Employment Opportunity Commission (EEOC) failed to raise a plausible claim that the Port Authority of New York and New Jersey violated the Equal Pay Act (EPA) by paying female lawyers less than male attorneys. Against the backdrop of the EEOC’s systemic litigation program, the decision is another big defeat for the Commission.

In EEOC v. Port Authority, the EEOC brought claims on behalf of 14 female non-supervisory lawyers alleging that the claimants performed the same work as male comparators receiving higher pay. The Equal Pay Act prohibits workplace discrimination by paying employees of one sex less than employees of the other sex for equal work “which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” In a significant win for employers, Judge Buchwald concluded that the EEOC’s complaint and description of the skill, effort, and responsibility required from the female claimants and their male counterparts “do little more than recite broad generalities about attorneys in general, rather than anything specific about the Port Authority’s attorneys in particular.” Id. at 11.

Factual Background

Following a three-year investigation of a charge filed by a female attorney working in the Port Authority’s law department, the EEOC issued a determination letter to Port Authority in 2010, stating that its investigation substantiated EPA violations. The Port Authority refused to engage in conciliation efforts to resolve the alleged violation, and subsequently, the EEOC brought suit on September 29, 2010 on behalf of fourteen Port Authority female attorneys. 

The complaint, however, failed to identify any male comparators that perform similar work to the allegedly injured female victims. The Port Authority filed a motion for judgment on the pleadings as to the EEOC’s claims for the 14 claimants. The Court permitted the Port Authority to serve contention interrogatories to determine the EEOC’s basis for its assertion that the Authority’s non-supervisory lawyers, male and female, perform work requiring equal responsibility.

Judge Buchwald found three of the interrogatories were particularly important. First, interrogatory 16 addressed the responsibilities of Port Authority employees. The EEOC’s response stated that claimants and comparators’ jobs “are all non-supervisory and have the same reporting structure and the same level of supervision” and the Port Authority attorneys are all permitted to respond and “act on behalf of the General Counsel.” Id. at 5. Next, in response to interrogatories 13 and 15, the EEOC provided a list of potential comparators whose job duties require the “same level of skill” as the claimants. Id. at 3. The EEOC also stated that the law department positions are in the same job grade or code and all hold the job title “attorney.” Id. at 5. Furthermore, the EEOC’s response explained the attorneys do not practice in discrete, unconnected practice areas, but rather all move around to work in various subject areas within the law department. Finally, the EEOC stated the “attorney maturity curve,” which dictates the upper and lower ranges of salaries for Port Authority attorneys at various legal experience levels, “does not differentiate between divisions” in the law department. Id. 

Upon receipt of the EEOC’s responses to the contention interrogatories, the Port Authority filed a motion on the pleadings, arguing that the suit must be dismissed because the EEOC failed to raise a plausible claim.

The Court’s Analysis

The EEOC argued it need not describe in detail the requirements of female claimants’ and proposed male comparators’ jobs if the Port Authority does not itself treat the jobs as different. It urged the Court to find that if the Port Authority does not differentiate between its attorneys, then the employer has functionally conceded that all non-supervisory attorney jobs in its law department require the same skills, effort, and responsibility.

Judge Buchwald rejected the EEOC’s position.  At the outset, Judge Buchwald noted that, the EEOC’s claims lack substance and merely track the language of the statute.  Relying on the EEOC’s implementing regulations for the EPA, the Court found that neither the lawyers’ common job title, job grades, and codes nor the alleged “similar performance objectives” advance the EEOC’s claim. Id. at 13. Specifically, the Court reasoned that the performance criteria the EEOC cited are “as blandly generic as the ‘skills’ the EEOC contends the attorneys share.” Id.

The Court next considered whether the EEOC’s argument – that the lack of divisions for the work performed by the Port Authority lawyers – was sufficient to suggest the attorneys’ work required equal skill and effort. The EEOC contended that the Port Authority’s “attorney maturity curve,” which is used to set pay ranges, does not use an attorney’s division in setting a potential range. Id. Judge Buchwald explained that although the maturity curve is “the most persuasive” factor suggesting that all attorneys performed equal work, it is likewise insufficient to “prevent the jobs from being equal in all significant respects under the law.” Id. The maturity curve specifies ranges of possible salaries based on experience; determinations of specific salaries within those ranges must be based on other factors.” Id. at 15. Judge Buchwald explained that the EEOC “has alleged without substantiation that those determinations are based on sex but — without any analysis of job content — [the Court] cannot rely on that bald assertion.” Id. 

For these reasons, the Court granted judgment on the pleadings to the Port Authority and concluded that the “allegations as a whole simply do not rise to the requisite level of facial plausibility.” Id. at 16.  

Implications For Employers

The result in EEOC v. Port Authority is useful precedent for employers seeking summary judgment in EPA lawsuits. The Court rejected the EEOC’s attempt to state a generic claim that the lawyers all perform work requiring equal skill and effort. It shows that EPA defenses can be based on a requirement that the EEOC must “drill down” into the core essentials of a job as opposed to masking the deficiencies in a claim based on a generalized view of job duties.