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Seyfarth Synopsis: Employees are only human — misconduct, theft, harassment, discrimination, and even criminal conduct are a fact of life, even in the workplace.  Companies confronted with allegations of workplace misconduct must consider the manner of responding to the allegations and the means by which they will be investigated.

Businesses suffer millions of dollars in losses each year due to diminished productivity associated with employee misconduct and theft of confidential information, money, and merchandise.  It is for this reason that at one time or another in their careers, management personnel will have to deal with serious employee problems or problem employees.

In a broader sense, the problem employees may have a tendency to “push out” other employees. By and large, poor employee morale is intertwined with poor management techniques. Simply put, bad behavior begets bad supervision and bad supervision creates bad morale – it’s a cycle.

Holding on to the best workers is a process over which front-line managers have a key role.  Aside from a steady paycheck, employees want a boss who offers them a future filled with challenging work, the potential for advancement, and appropriate recognition.  Thus, workers do not quit companies as much as they quit their managers.  The boss of choice is one who inspires an employee to be as successful as possible, and to strive to grow professionally on a continuous basis.  This process starts with a supervisor-subordinate relationship marked by trust and respect. 

Better management of employee performance can eliminate perceptions of unfair treatment and discrimination.  Effective feedback and two-way communication between managers and workers also pays dividends in improved employee relations.  Furthermore, proper decision-making in firing an employee is grounded in sound evaluation and disciplinary practices.  It is for this reason that proper evaluation of employees and use of performance appraisals are especially critical to effective loss control and risk management of employment-related exposures.

Setting out a clear and consistent policy for evaluating and disciplining employees is very important – not only will all employees be equally accountable for their misconduct, and therefore gaining the trust of employees, but it will ensure that if an employee is terminated for their behavior, it will not come as a surprise.

Sound termination decisions, in turn, are dependent on effective evaluations and discipline.  The entire process is premised upon personnel decisions which are fair and non-discriminatory.

Our video provides insight for employers on how to best prevent employee grievances from occurring, and, because grievances are always bound to turn up, how to best manage them. 

 

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On February 9, 2017, Seyfarth Shaw hosted a signal event regarding workplace class action litigation in 2016 and the implications for employers looking to anticipate and prepare for workplace trends in 2017.

Vickie Lipnic, the newly appointed Acting Chair of the Equal Employment Opportunity Commission, joined Jerry Maatman in launching Seyfarth’s 2017 Workplace Class Action Litigation Report. Vickie has been a Commissioner with the EEOC since 2010 and her knowledge of the focal points of the government agency tasked with enforcing employee civil rights offered guests a great deal of insight. The EEOC has been increasingly committed to systemic litigation and, while these types of cases are intended to have a broad impact, Vickie stressed the importance of single plaintiff litigation and the impact that single plaintiff lawsuits can have on an industry, company, or geographic area. Vickie also opined on the importance of bi-partisanship as a Commissioner. She is the one remaining Republican-appointee on the Commission with Democratic-appointee Jenny Yang, her successor as Chair of the EEOC, whose term is ending July 1, 2017. Vickie noted that there are currently 2 seats open on the Commission, and President Trump will be tasked with appointing two new Commissioners as well as filling the currently vacant General Counsel position. With regard to these shifting positions and the new Presidential administration, Vickie confirmed that the EEOC is steadfast in its mission to protect and enforce the civil rights of all employees and to ensure that employers are readily prepared to adhere to the laws protecting their employees from discriminatory practices.

Additionally, Jerry discussed the six key trends in workplace class action litigation for 2016 and how those trends will impact employers in 2017. First is the impact of the U.S. Supreme Court decisions in Tyson Foods, Inc. v. Bouaphakeo, et al., and Spokeo, Inc. v. Robins, et al., and how they will influence complex employment-related litigation in the coming years.  Equally important for the coming year, the Supreme Court has accepted five cases that are likely to be decided in 2017 that also will impact and shape class action litigation and government enforcement lawsuits faced by employers; chief among them is the issue of the legality of class action waivers in arbitration agreements. In terms of settlements in 2016, after reaching all-time highs in 2014 and 2015, the monetary value of aggregate top-ten employment class action settlement declined significantly overall, but wage & hour class action settlements sky-rocketed.  Another trend for 2016 was that federal and state courts issued more favorable class certification rulings for the plaintiffs’ bar than in past years. Plaintiffs, for instance, secured certification in 76% of the time in wage & hour class and collective actions. However, for the first time in over a decade, case filing statistics for 2016 reflected that wage & hour litigation decreased over the past year. Additional factors set to coalesce in 2017 – including litigation over the new FLSA regulations and the direction of wage & hour enforcement under the Trump Administration – are apt to drive these exposures for Corporate America. To the extent that government enforcement of wage & hour laws is ratcheted down, the private plaintiffs’ bar likely will “fill the void” and again increase the number of wage & hour lawsuit filings. Also in 2016, Plaintiffs’ attorneys were extremely successful in certifying first stage conditional certification motions, which can mean filings are likely to go up in 2017.  Finally, the government enforcement lawsuits brought by the DOL and EEOC continued the aggressive litigation programs of both agencies, but by sheer number, lawsuit filings and recoveries were lower when compared to previous years.

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Thank you to Victoria for visiting us in Chicago for this hugely successful event. We hosted over 150 guests at our Seyfarth Shaw Chicago office and over 1,800 guests via our live Webcast.

Thank you to everyone who joined us either here in Chicago or via our live webcast. For those interested in viewing a video of the presentation, stay tuned. We will be posting a complete video of the event next week.

Readers can find more information about the event on Seyfarth’s Pay Equity Issues & Insights Blog here.

Additionally, if you have not yet registered for the upcoming WCAR webinar, you can do so by clicking here.

SCOTUSBy Gerald L. Maatman, Jr., Christina M. Janice, Michael W. Stevens, and Kylie R. Byron

Make no mistake, the role of Justice of the U.S. Supreme Court profoundly impacts the balance of power among the branches of our government. Now, with the untimely passing of Justice Antonin Scalia on February 13, the void created in the balance within the Supreme Court itself cannot be overstated. President Obama’s promptly convened news conference about nominating a replacement, and the Republican presidential debate’s focus on confirming – or not confirming – a nominee, demonstrate that in the space of 24 hours the future composition of the Supreme Court has become one of the most important issues facing the country and its governance.

So what does this mean for employers?

First, many cases pending on the Supreme Court’s docket now almost certainly will reach a different outcome than they would have had Justice Scalia remained on the Supreme Court through the end of the June 2016 Term. Several key cases, including some with important ramifications for employers, have not yet been decided.

Second, the previous ideological makeup of the Supreme Court — generally thought of as five conservatives and four liberals — now has shifted to an even split between conservative and liberal Justices as the work of the Supreme Court continues. This tenuous balance likely will change again, but the complexion of the Supreme Court largely will depend on whether President Obama is able to secure the confirmation of a replacement, or if the vacancy remains open through the upcoming presidential election. Whether President Obama or his successor nominates the next Justice may influence the direction of the Supreme Court for years or decades to come.

Some Context Regarding The Supreme Court

The death of Justice Scalia means that the normally nine-member Supreme Court will probably be down to eight Justices when it rules this Term on such divisive issues as abortion rights, immigration, affirmative action, and the power of public-sector unions.

President Obama already has stated that he intends to nominate a replacement, and the White House has signaled that it has been preparing a slate of potential nominees. However, it is unclear whether the Republican-controlled Senate will allow a nomination to proceed, or if the Senate will confirm an Obama nominee. Even if a nominee is confirmed, he or she is unlikely to join the Supreme Court prior to the end of its 2016 Term in June.

Given the political showdown that is all but sure to consume the White House and Congress, it is substantially likely that several important decisions will be split on a 4 – 4 vote. When the Supreme Court is equally divided, the lower court ruling remains in place but no national precedent is set. Thus, several rulings this Term that were expected to change American law instead may only extend the status quo.

Moreover, Justice Scalia’s death affects more cases on the Supreme Court’s docket than those that have yet to be argued, or voted upon by the Supreme Court. His death also affects cases where oral argument has taken place, but rulings have not yet been issued. His previous votes in any such cases no longer count. Thus, if a preliminary vote on a case was 5 – 4 with Scalia in the majority, that opinion would have provided national precedent. Now, with his vote eliminated, a 4 – 4 decision emerges that does not affect the state of the law.

Cases On The Docket

Over the past decade, the U.S. Supreme Court – with its conservative faction led by Justice Scalia – increasingly has shaped the contours of complex litigation through its rulings on class actions, employment-related litigation, and governmental enforcement issues. Justice Scalia was at the center of these rulings. Two significant examples include his authorship of the 2011 decision in Wal-Mart Stores, Inc. v. Dukes (here) and the 2013 decision in Comcast Corp. v. Behrend (here), both of which dramatically changed the rules for when and how class actions may proceed.

This Term also includes several cases that have the potential to affect employers in the realm of consumer or employment class actions, labor relations, and affirmative action. Supreme Court prognosticators were expecting several of these decisions to be decided 5 – 4 and set national precedent. Although we cannot predict with certainty how the Supreme Court will rule, it now appears substantially likelier that many of the decisions will turn out 4 – 4, leaving the lower court decision intact and, in some cases, failing to resolve circuit splits that led to the grant of certiorari in the first place.

Key cases affecting employers include:

·           Spokeo, Inc. v. Robins, No. 13-1339 – Widely considered the most important class action case of the current Supreme Court term, Spokeo concerns whether individuals who lack allegations of actual injury, but claim a technical violation of a statutory right, can still file class actions. The case involves the Fair Credit Reporting Act and liability for hiring procedures. Oral argument took place in November of 2015.

·           Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146 – The case presents an opportunity for the Supreme Court to allow or forbid class actions that rely on a composite or “average plaintiff” or “average class member” for damages purposes, sometimes dubbed as “trial by formula.” Brought under the Fair Labor Standards Act, this case presents an opportunity for the Supreme Court to determine whether differences between class members essentially prohibit class treatment or that averaging and aggregation are permissible. Oral argument also took place in November of 2015.

·           Friedrichs v. Calif. Teachers Association, No. 14-915 – At issue in this case is whether public-sector employees may be compelled to contribute dues to a union. Oral argument took place in January of 2016, and the five conservative Justices seemed ready to invalidate the law. A 4 – 4 split would leave intact the lower court ruling that permitted the law to stand.

·           CRST Van Expedited, Inc. v. EEOC, No. 14-1375 – This closely watched case concerns the largest fee sanction award – approximately $4.7 million – ever issued against the Commission. The fee was issued in favor of an employer after a district court ruled that the EEOC failed to meet its pre-suit investigation obligations in a case involving dozens of claimants. The Supreme Court is expected to clarify the obligations of the EEOC in prosecuting systemic lawsuits, and the grounds on which it may be sanctioned for initiating litigation without satisfying its duties under Title VII. Oral argument is set for March.

·           Fisher v. University of Texas, No. 14-981 – This case involves the use of affirmative action programs in public university admissions processes. Fisher had previously been up to the Supreme Court in 2013, at which point the it was remanded to the lower court for reconsideration. At oral argument in December of 2015, the conservative Justices seemed ready to strike down the law. Because Justice Kagan has recused herself, it is possible that this case may still be decided on a 4 – 3 vote.

·           Heffernan v. Patterson, No. 14-1280 – This case concerns First Amendment freedoms of speech and association. The Supreme Court is likely to determine what standards apply to public employers taking action on the basis of the assumed speech or assumed political affiliation of employees. Oral argument took place in January of 2016.

·           Zubik v. Burwell, No. 14-1418 – This case addresses whether or not the government places an undue burden on religiously-affiliated employers by requiring them to opt out of the Affordable Care Act’s contraception coverage mandate. Oral argument is set for March of 2016. A 4 – 4 split would affirm the Third Circuit’s holding that the Act places no substantial burden on employers and religiously-affiliated employers will be required to comply with the Act or face statutory penalties.

Seyfarth is monitoring each of these cases carefully, and likewise will be paying close attention as the process unfolds for the nomination of the next Supreme Court Justice. The stakes for the future of employment law are high, and Seyfarth will keep you updated in real-time as developments occur.

trophy-clip-art-154708Seyfarth’s Workplace Class Action Blog is a one-of-a-kind reference site and thought leadership forum that analyzes the latest trends in complex employment litigation. The Workplace Class Action blog is also one of the primary vehicles for disseminating Seyfarth’s Annual Workplace Class Action Litigation Report. We were honored this year with a review of our Report by Employment Practices Liability Consultant Magazine (“EPLiC”).

Here is what EPLiC said: “The Report is the singular, definitive source of information, research, and in-depth analysis on employment-related class action litigation. Practitioners and corporate counsel should not be without it on their desk, since the Report is the sole compendium of its kind in the United States.” Further, EPLiC recognized our Report as the “state-of-the-art word” on workplace class action litigation.  You can read more here.

Help us gain some extra recognition by casting your vote in The Expert Institute 2015 Best Legal Blog competition!

When: Nominations are now open.

Where: https://www.theexpertinstitute.com/blog-contest/.  You will need to provide your full name, e-mail address, blog address (www.workplaceclassaction.com), blog category (Labor and Employment), and a brief description on why the Workplace Class Action Blog deserves to be nominated.

Why:

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Thank you for your support and consideration!

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.

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By Gerald L. Maatman, Jr. and Jennifer A. Riley

On December 22, 2014, the U.S. Court of Appeals for the Eighth Circuit issued yet another decision in EEOC v. CRST Van Expedited, Inc., No. 13-3159, 2014 U.S. App. LEXIS 24130 (8th Cir. Dec. 22, 2014). This time, the Eighth Circuit reversed and remanded the district court’s previous order directing the EEOC to pay more nearly $4.7 million in attorneys’ fees. (We have blogged on the prior rulings in this litigation; read about the district court’s order here.)

In doing so, the Eighth Circuit narrowed the potential fees available to CRST for the EEOC’s litigation abuses. Most notably, it held that, because the district court’s dismissal of 67 claims for failure to investigate or conciliate “does not constitute a ruling on the merits,” CRST is not entitled to an award of attorneys’ fees on those claims. Id. at *26-27. The Eighth Circuit remanded the case to the district court and directed it to make findings as to why any of the remaining individual claims were frivolous, unreasonable, or groundless.

The Eighth Circuit effectively raised the bar for employers seeking to recover attorneys’ fees expended as a result of groundless claims brought by the EEOC. Whereas it found that employers can seek fees for partial victories, it held that they must demonstrate why each particular claim is frivolous, unreasonable, or groundless, and that the work for which they seek fees related exclusively to the meritless claims.

Factual Background

The EEOC brought suit against CRST alleging that the company subjected Monika Starke and a class of similarly-situated female employees to a hostile work environment in violation of Title VII of the Civil Rights Act. Id. at *2.

After more than a year of discovery, in October 2008, the EEOC identified 270 allegedly aggrieved female employees. The district court ordered the EEOC to make all women on whose behalf it sought relief available for deposition. Id. at *3. The EEOC failed to so do, and the district court barred the EEOC from pursing relief for 99 individuals. Id.

Thereafter, CRST filed various motions for summary judgment. First, although the EEOC did not explicitly assert a pattern or practice claim in its complaint, it repeatedly referred to such a theory in its papers and the district court found insufficient evidence to support such a claim.  Id. at *4.  Second, the district court found that the applicable statute of limitations barred relief for 9 individuals and that 3 were judicially estopped from prosecuting their claims.  Id. at *5.  Third, the district court granted summary judgment on the claims of 75 individuals, finding that they otherwise failed on the merits.  Id. at *5-7.

Further, the district court barred the EEOC from seeking relief for the remaining 67 women because it failed to meet statutory conditions precedent to instituting suit, namely, the EEOC failed to conduct a reasonable investigation and bona fide conciliation of the claims. Id. at *7-8. CRST filed a bill of costs and moved for an award of attorneys’ fees pursuant to 42 U.S.C. § 2000e-5(k). The district court awarded a total of $4,560,285. Id. at *8.

CRST appealed the dismissal of its claims as to 107 women, as well as the district court’s award of attorneys’ fees. The Eighth Circuit reversed the district court’s order with respect to the claims of 2 individuals and vacated without prejudice the award of attorneys’ fees because, in light of the court’s rulings, CRST was no longer necessarily a “prevailing” defendant. Id. at *9.

On remand, the EEOC withdrew its claims as to one of the 2 remaining claimants (Jones) and settled the other (Starke) for $50,000. Id. at *10. CRST subsequently renewed its motion for attorneys’ fees. The district court found that CRST was the prevailing party as to the EEOC’s pattern or practice claims and 153 of the EEOC’s individual claims, and awarded nearly $4.7 million in attorneys’ fees, expenses, and costs. Id. at *13-14.

The Eighth Circuit’s Opinion

On further appeal, the EEOC argued that the district court erred in awarding attorneys’ fees, expenses, and costs to CRST.

First, the EEOC argued that the district court erred in finding CRST the prevailing party. It contended the EEOC brought only one “claim” against CRST – that CRST violated Title VII by failing to prevent and remedy sexual harassment of its female trainees and drivers – and the EEOC prevailed on this claim when it obtained a settlement for one claimant.

The Eighth Circuit agreed with the district court and CRST that the EEOC had alleged more than one claim. Although the EEOC did not initially specify the number of individuals on whose behalf it sought relief, “the face of the Complaint” did not allege that CRST was engaged in a pattern or practice and shows that the EEOC sought relief on behalf of at least two women. Id. at *19.

Second, the EEOC argued that the district court’s dismissal of 67 claims for failure to satisfy Title VII’s pre-suit obligations did not constitute a ruling on the merits, and therefore, CRST could not be a “prevailing party” with respect to those claims. Id. at *20.

The Eighth Circuit agreed that the EEOC’s pre-suit obligations constitute “nonjurisdictional preconditions that are not elements of the claim.” Id. at *25. The Eighth Circuit held that, therefore, the district court’s dismissal of 67 claims for failure to investigate or conciliate “does not constitute a ruling on the merits,” and CRST is not entitled to an award of attorneys’ fees on those claims. Id. at *26-27.

Third, having determined that CRST may not recover fees for any purported pattern or practice claim, or for claims that the district court dismissed for failure to satisfy its pre-suit obligations, the Eighth Circuit considered whether CRST was entitled to an award of fees based on the district court’s dispositive rulings.

The Eighth Circuit noted that the district court did not discuss specific claimants, choosing instead to make a universal finding that all of the EEOC’s claims were without foundation. Id. at *32. While the Eighth Circuit recognized that it is “an arduous task,” it found that the district court must make findings as to why each particular claim was “frivolous, unreasonable, or groundless.” Id. at *33.

The Eighth Circuit remanded the case back to the district court again. Because CRST did not prevail on at least one claim (Stark), the Court directed that, on remand, if the district court finds that a frivolous claim exists, it must determine what fees, if any, CRST “expended solely because of the frivolous allegations.” Id.

Implications For Employers

With its latest decision in the EEOC v. CRST saga, the Eighth Circuit may have, in effect, made it more difficult for employers to recover fees as a result of EEOC litigation abuses. Whereas the Eighth Circuit reaffirmed the view that an employer can recover fees short of a complete victory, it found that a district court must make specific findings as to why each particular claim is frivolous, unreasonable, or groundless, and must determine what fees, if any, were expended solely because of the meritless allegations. We expect the defense to explore further appellate options (for a rehearing en banc, or possible Supreme Court review) and/or to attempt to make such showings in the district court and, depending on the magnitude of the resulting order, that the case once again might end up before the Eighth Circuit. We will keep you posted.

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

By Gerald L. Maatman, Jr.

Today I had the privilege of attending the 6th Annual Forum on Defending Employment Discrimination Litigation hosted by the American Conference Institute in New York, New York (I spoke on defense strategies for defending high stakes, multi-party age discrimination lawsuits).

Constance Barker, one of the five Commissioners at the Equal Employment Opportunity Commission, gave the keynote address at the program. Her presentation was fascinating, and focused largely on the swirling controversy relative to the EEOC’s recent issuance of new enforcement guidance on the Pregnancy Discrimination Act (which we blogged on previously here). Commissioner Barker made public statements about the PDA Guidance – immediately after the EEOC posted the Guidance on its website – questioning the wisdom of the EEOC’s action on procedural and substantive grounds. She asserted that in adopting the new Guidance, the Commission sought to legislate changes to, rather than interpret, Title VII (her written comments dated July 14, 2014, are here.

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

In response to questions from floor at today’s program in New York, Commission Barker agreed that there is some truth to the criticism that the EEOC has sought to use its enforcement power and enforcement litigation to, in a sense, “legislate” behavior in the employer community. She agreed that while societal goals and aspirations might counsel that a law like the PDA should be interpreted in the manner the new Guidance advocates, the role of the EEOC is not to engage in “social engineering.” Instead, the role of the EEOC is to enforce the law as written, and leave policy decisions about the expansion of the law to Congress. In this respect, she reiterated her position that the new PDA Guidance represented an effort by the Commission to “jump ahead” of Congress and the courts in fashioning the contours of employer obligations and employee rights under the law.

Commissioner Barker predicted that the EEOC’s action may become “an embarrassment” for the Commission depending on how the U.S. Supreme Court adjudicates certain issues in Young v. United Parcel Serv., 707 F.3d 437 (4th Cir. 2013), in its next term (and may well grant the new Guidance no deference or criticize how the EEOC went about issuing the Guidance).

This issue is sure to heat up further. Stay tuned.

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

 

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

It is a truism that complex litigation often becomes a battle of the experts, and this applies with full force to class action employment discrimination cases. Skilled counsel will anticipate this fact and early on identify and develop not only the right experts, but thoroughly assess what data and information is available for analysis.

In one high-profile discrimination suit, Pippen v. State of Iowa, et. al., Case No. 12-0913 (Iowa July 18, 2014), the Supreme Court of Iowa last week dismissed plaintiffs’ race discrimination class claims because they had failed to challenge any particular employment practice and failed to demonstrate that they were unable to isolate any particular employment practice as problematic using the available data. The end result is the dismissal of what is believed to be the largest and most high profile employment-related class action ever filed in Iowa.

Background

The plaintiffs in Pippen v. State of Iowa, who are African-American, filed suit in 2007 alleging that the State failed to enforce its own statutory and regulatory policies and thereby denied African-Americans equal opportunities for employment. The plaintiffs did not contend that the discrimination was intentional, but rather alleged that it was a “natural unintended consequence of the State’s failure to follow rules.” Id. at 5. A class was certified by stipulation in 2010 with respect to disparate impact in hiring and promotion, and ‒ unlike the great majority of class discrimination cases ‒ the case went to trial in 2011. After a 17-day trial, the lower court found in favor of the State and dismissed the claims, and plaintiffs appealed. On July 18, 2014, the Supreme Court of Iowa affirmed the decision of the lower court.

The Court’s Decision

At issue in Pippen were the hiring practices of 37 different departments within the executive branch of the State of Iowa, each with its own hiring authority. In discovery, the State produced electronic data from a central database containing information on every applicant for hire and promotion, as well as paper files maintained by each department. The case turned on whether plaintiffs had analyzed a specific employment practice as opposed to an overall hiring system, and, if not, whether the plaintiffs were incapable of doing so with the data produced by the State.

After a lengthy description of the history of civil rights employment legislation, the Court explained that the Civil Rights Act of 1991 requires a plaintiff to challenge a particular employment practice or, in the alternative, to “demonstrate why an employer’s decision-making process is ‘not capable of separation for analysis.’” Id. at 39. Plaintiffs conceded that they had not challenged a specific employment practice, but Plaintiffs argued that defendants had failed to maintain records on each separate employment practice such that “statistical analysis of any separate element was impossible.” Id. at 32. According to Plaintiffs, the data did not reflect whether a particular candidate was screened or scored, for example, so it was impossible to analyze a particular employment practice. The State, on the other hand, argued that plaintiffs had performed a system-wide analysis by their own choice and not because the data was incapable of being broken down.

In analyzing the question, the Court acknowledged that “the fact that the plaintiffs were provided with lots of [electronic] data that can mechanically be sliced and diced in numerous ways proves nothing; massive data can always be divided into countless different piles.” Id. at 44. The pertinent question was whether plaintiffs had demonstrated that the data “could not be divided into smaller, better defined subsets of specific employment practices with sufficient decision points to be capable of statistical analysis.” Id. at 45. Applying this standard, the Court found that plaintiffs failed to satisfy this burden because they had not shown that the departmental paper files were incapable of analysis with respect to particular employment practices. In fact, plaintiffs’ own social science expert, Anthony Greenwald, testified that the paper files were “a gold mine that hasn’t been analyzed.” Id. at 48. The Court therefore affirmed the judgment and dismissed the case.

Implications For Employers

The Pippen decision is helpful and persuasive authority for employers seeking to remind courts that plaintiffs have the burden of challenging a particular employment practice or demonstrating that it would be impossible to do so. And in an area of law where cases often rise or fall on expert analysis, Pippin is stark reminder for parties to carefully assess and strategically consider the available data.

By Paul Kehoe 

Today, without the fanfare of a public meeting, the U.S. Equal Employment Opportunity Commission published Guidance on its website addressing the treatment of pregnancy under Title VII. Once again, it appears as if the EEOC adopted a position exceeding the statutory mandate that Congress bestowed upon it. Requiring employers to provide a reasonable accommodation under Title VII of the Civil Rights Act of 1964 for all pregnant employees finds no statutory basis in the text of Title VII, the Americans With Disabilities Act, as amended, or the Pregnancy Discrimination Act (the “PDA”). Indeed, the overwhelming majority of the Circuit Courts of Appeals that have reviewed the issue have held that the PDA does not include a reasonable accommodation requirement.  Despite that, a majority of the EEOC’s Commissioners determined otherwise. Commissioners Barker and Lipnic both issued statements – immediately after the EEOC posted the Guidance on its website – questioning the wisdom of the majority’s actions on procedural and substantive grounds, each recognizing that in adopting the new Guidance, the Commission sought to legislate changes to, rather than interpret, Title VII.

Controversy

This is a controversial issue for employers. One might reasonably argue that when the U.S. Supreme Court reviews Young v. United Parcel Serv., 707 F.3d 437 (4th Cir. 2013), in its next term, it should grant this Guidance the deference it deserves – none.

This bald attempt to jump over a pending Supreme Court case and federal legislation, however, may backfire against the EEOC as the Supreme Court has rather routinely rejected EEOC guidance in recent years. See, e.g., Vance v. Ball State University, 133 S. Ct. 2434 (2013) (rejecting the EEOC’s definition of “supervisor” and held that an employee is a supervisor only where the employer has empowered the employee to take tangible employment actions against the employee rather than the EEOC’s more expansive definition); Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) (rejecting the EEOC’s position that retaliation claims under Title VII were subject to the “motivating factor” causation standard); Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S. Ct. 694, 707 (2012) (rejecting the EEOC’s position that the ministerial exception did not apply to ADA retaliation cases). The Supreme Court’s decisions were often based on the lack of statutory support for the EEOC’s positions.  Like all regulatory agencies, the EEOC does not operate in a vacuum or in pursuit of policies which it may desire to implement but rather may act only pursuant to the authority given to it.

Without a doubt, given the broad expansion of covered disabilities under the ADAAA, many more pregnancy-related impairments now likely rise to the level of an ADA-covered disability (e.g., anemia, pregnancy-related sciatica, pre-eclampsia, gestational diabetes).  In these instances, a pregnant employee would be afforded the same right to reasonable accommodation under the ADA as any other individual with a disability, regardless of whether the impairment was related to pregnancy.  In addition, twelve jurisdictions have adopted pregnancy accommodation statutes or ordinances. However, the Guidance asserts that the reasonable accommodation requirement applies even for those pregnant employees whose impairments do not rise to the level of a disability under the ADA (e.g., those with a “normal” pregnancy) notwithstanding that under the ADA, pregnancy is not an impairment.

The standards adopted in the Guidance are currently proposed in the Pregnant Worker’s Fairness Act (the “PWFA”), S. 942 and H.R. 1975.  The PWFA, if enacted, would make it an unlawful employment practice to not provide a reasonable accommodation to the known limitations related to pregnancy or force a pregnant employee to take leave, among other things. Rather than waiting until the legislative process is complete, the Guidance preemptively reaches the same conclusion under the theory that the reasonable accommodation requirements of the Americans with Disabilities Act of 1990 were incorporated into the PDA, which was enacted in 1978.

Implications For Employers

As a practical matter, employers will feel the greatest impact of the Guidance in the area of light duty and leave as applicable to female employees with “normal” pregnancies. Currently, under federal law, where an employer’s policy provides leave or light duty for employees injured or otherwise medically limited in their ability to work for any reason, a pregnant employee is entitled to such leave – the fact that her limitation arises from a normal pregnancy, rather than an injury or medical condition – is irrelevant. Conversely, as was permissible in Young, where an employer’s light duty or leave policy limits eligibility to those with a disability or those with on the job injuries, an employee with a normal pregnancy would not be eligible for light duty. Under the Guidance, employers would be required to provide light duty and/or leave for all pregnant employees, regardless of whether they were “disabled” under the ADA.

Notably, the EEOC’s process in adopting the anticipated Guidance ignored the standards articulated by the Office of Management and Budget (“OMB”) in its “Final Bulletin for Agency Good Guidance Practices” (No. M-07-07, January 18, 2007). That document — which “establishes policies and procedures for the development, issuance, and use of significant guidance documents by Executive Branch departments and agencies” — sets forth a number of recommendations for significant guidance documents.  While it stops short of requiring agencies to provide pre-adoption notice and comment on all significant guidance documents, it recognizes that “it is often beneficial for an agency to do so when they determine that it is practical.  Pre-adoption notice and comment can be most helpful for significant guidance documents that are particularly complex, novel, consequential, or controversial.”

As this Guidance adopted a standard that is currently pending before Congress and the Supreme Court, a standard overwhelmingly (though not unanimously) rejected by the Circuit Courts of Appeals, and one which essentially eviscerates the EEOC’s prior position that pregnancy is not a disability (which was issued during a notice and comment rulemaking), all without public comment or an opportunity for dissenting Commissioners to publicly object to the Guidance, its adoption casts a pall over its legitimacy. Unfortunately, the EEOC has decided that the legislative and judicial processes are not necessary when rewriting the statutes that it enforces.

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