By Danielle Kays and Danny Riley, Law Clerk

Seyfarth Synopsis: BNSF Railway seeks a new trial following the verdict against it in the first ever jury verdict in an Illinois Biometric Information Privacy Act (“BIPA”) class action.  BNSF contends that the verdict, which resulted in a court award of $228 million in damages, is unconstitutional and unreasonable given the class members suffered no actual harm.

As a refresher, under BIPA, biometric information is any information “regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual.” 740 ILCS §14/10. The Act provides a private entity may not “collect, capture, purchase, receive through trade, or otherwise obtain” this information without informed consent. 740 ILCS §14/15(b).  To comply with this state law, companies must provide informed, written consent before the capture, use and storage of biometric information, as well as notices specifying the company’s data collection practices. Damages for each negligent violation can rise to $1,000, with reckless or intentional violations being capped at $5,000.

Last month, a Chicago jury heard the first ever jury trial of a BIPA class action in the case Rogers v. BNSF Railway Company.  At issue was whether–and to what degree–BNSF could be held vicariously liable under the BIPA for conduct by a third-party vendor that operated finger scanning technology.  Despite BNSF’s argument that the railway’s vendor was the entity that collected the employees’ biometric data (and not the railway), the jury found that the railway was liable for approximately 45,600 reckless or intentional violations.  Now, in its motion for a new trial, BNSF argues that the “unprecedented judgment awarding plaintiff and the class a nine-figure windfall despite their admission that they suffered no actual harm was not supported by the evidence at trial.”

While BNSF claims that the ruling is unconstitutional, it also argues that the evidence proposed to the jury was not enough to support a finding of liability.  The railway argues that even in the case that there is a finding of liability, any violations would constitute negligence, rather than reckless or intentional violations.  Should BNSF successfully argue that its violations were negligent, damages may still be upwards of $45 million.

BNSF also noted the Illinois Supreme Court’s pending decision in Cothron v. White Castle, which will decide whether BIPA claims accrue “each time a private entity scans a person’s biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission.” 20 F.4th 1156, 1167 (7th Cir. 2021).  If the Illinois Supreme Court sides with the defendant in White Castle, BNSF argues that the plaintiff’s claim will be dismissed and the class decertified.

Should the Court deny BNSF’s motion for a new trial, the railway previously said it plans to appeal the verdict.

The time is now for employers to conduct internal audits to make sure they are BIPA compliant.

BIPA Compliance

•  Obtain a written consent form from individuals if you intend to collect, use, store, or disclose any personal biometric information.

•  Notify individuals in writing that the information is being collected or stored and the purpose and length of time for which the biometric identifier will be collected, stored, and used.

•  Create and maintain a retention schedule for biometric data retention and guidelines for permanently destroying biometric information.

For more information about the Illinois Biometric Information Privacy Act, and how this development may affect your business, contact the authors, your Seyfarth attorney, or Seyfarth’s Workplace Privacy & Biometrics Practice Group.

By Christopher DeGroff, Andy Scroggins, and Sarah Bauman

Seyfarth Synopsis: On Friday, November 4, the EEOC released its draft 2022-2026 Strategic Plan (available here)—a blueprint of its proposed enforcement plan for the upcoming years. The Plan focuses on strategic objectives accompanied by targeted goals and performance measures. Though each four-year plan differs to some extent, the EEOC’s vision of “justice and quality in the workplace” and mission to “stop and remedy unlawful employment discrimination” remains unchanged. This Strategic Plan is a must-read for employers and their attorneys, as it sheds light on the EEOC’s focus over the next four years for achieving its overall mission. 

Strategic Plan: FY 2022-2026

Every four years, the EEOC is required to publish these plans which serve as a framework for the EEOC in achieving its mission to combat employment discrimination. Through the Strategic Plan, the EEOC identifies three Strategic Goals, which build on those set out in the prior plan.

The Strategic Plan is not to be confused with the Strategic Enforcement Plan, or the “SEP.” The SEP is the “what”—i.e., what priorities the EEOC will focus on—while the Strategic Plan is the “how.” The term of the last SEP expired at the end of Fiscal Year 2021, but it remains in effect until modified or withdrawn. The EEOC has announced its intention to update and release a new SEP sometime in Fiscal Year 2023.

Strategic Goal 1: Enforcement Authority For Preventing And Remedying Discrimination

The EEOC’s first Strategic Goal is to combat employment discrimination through the strategic application of EEOC’s law enforcement authorities. This goal is comprised of two key objectives: (1) having a broad impact on preventing and remedying employment discrimination while providing meaningful relief for victims of discrimination; and (2) exercising enforcement authority fairly, efficiently, and based on the circumstances of each charge or complaint. The EEOC will focus on strengthening the capacity of the Agency in the private, public, and federal sectors. 

Indeed, in the last three years, the EEOC reported an average of 67,000 private sector charges of discrimination, 8,300 requests for federal sector hearings, and 4,300 requests for federal sector appeals—an uptick from the last four-year period for the federal sector hearing and federal sector appeal requests. Given the large number of charges and federal sector requests for hearings and appeals, the EEOC notes it must “think strategically about how to target its resources to ensure the strongest impact possible.” The EEOC highlights a number of strategies for carrying out that goal, such as rigorously and consistently implementing the SEP to focus resources on EEOC priorities, and using administrative and litigation mechanisms to identify and eradicate discriminatory policies and practices. Additional information on these strategies appear on page 15 of the proposed plan.

Some insight into the Agency’s thinking, and potential impact for employers, can be obtained by looking at the performance measures that EEOC has set. (A summary table appears on the last page of the proposed plan.) For example, the EEOC aims to obtain targeted equitable relief in 90% of all conciliation and litigation resolutions by the final year of the plan. It also aims to resolve at least 90% of its enforcement lawsuits annually. The combination of these two measures suggests that employers must expect to provide some monetary relief to end disputes with the EEOC, but the EEOC also may feel some pressure to be reasonable in its demands in order to close enough of its files each year. That pressure may be particularly acute as each fiscal year draws to a close.

The EEOC also intends to measure its performance as a function of its capacity to conduct systemic discrimination investigations.  This includes training more field staff to identify and investigate such claims, and to have staff members in each District who are dedicated to conducting systemic discrimination investigations. This suggests that employers can anticipate more systemic investigations to be opened, and for those investigations to be conducted more rigorously.

The EEOC intends to step up its efforts to monitor compliance with the conciliation agreements it has entered with employers. Employers who thought that conciliation agreements might bring some peace after an investigation may now face greater burdens in demonstrating their adherence to the terms of those documents.

In addition, the EEOC continues to look at streamlining and improving its charge intake, including providing more availability for intake interviews and taking advantage of technological tools. Removing barriers to filing charges could lead to an increase in charge activity.

Strategic Goal 2:  Education And Outreach

The EEOC’s second Strategic Goal is to prevent employment discrimination and advance equal employment opportunities through education and outreach, comprised of two main objectives: (1) public awareness of employment discrimination laws and rights and responsibilities under such laws; and (2) availability of information and guidance to employers, federal agencies, unions, and staffing agencies necessary for advancing EEO, preventing discrimination, and effectively resolving EEO issues. 

Traditionally, the EEOC’s outreach programs were implemented through free education activities and training and, to a lesser extent, fee-based training through the EEOC’s Training Institute. The EEOC now commits to increasing its use of technology and expanding the EEOC’s social media presence to reach the agency’s varied and wide-ranging audiences. The EEOC will continue to enhance its use of social media to promote its education and outreach activities and to encourage greater use of its website. The EEOC’s website provides critical education materials, including information on the laws the agency enforces, the private sector charge and federal sector processes, data, and research.  

Strategic Goal 3: Organizational Excellence

The EEOC’s third Strategic Goal is to strive for organizational excellence through the agency’s people, practices, and technology. This Strategic Goal is operational in nature with an objective of improving management functions with a focus on people and service to the public, among others. There are two primary objectives, including: (1) achieving a culture of accountability, inclusivity, and accessibility; and (2) aligning resources with priorities to strengthen intake, outreach, education, enforcement, and service to the public to protect and advance civil rights in the workplace. This Strategic Goal functions to ensure that the other two Strategic Goals can be carried out effectively, as the EEOC must ensure excellence in its staff and the services it provides.

For example, recruiting and retention is a main highlight of this Strategic Goal as well as advance performance management and diversity and inclusion within its own workplace. After all, how can the EEOC monitor the quality and justice of America’s workplaces if it does not keep its own offices in check? To that end, the Strategic Plan identifies how large-scale industry layoffs or other changes such as the COVID-19 pandemic could trigger a straining of staff capacity to timely resolve an inevitable influx of anticipated charges for the coming years. Further, the EEOC reports that population shifts may result in increased charge receipts at some field offices, but budget constraints may not allow for the hiring of additional staff. 

Here, too, the performance measures offer some clues about how employers may be impacted. Not surprisingly, the EEOC aims to be fully-staffed—to increase the number of employees involved in enforcement and to train those who are in “mission-critical” roles, including EEO Investigators, EEO Specialists, and Trial Attorneys. Employers can expect that larger numbers of investigators and attorneys, with better training, will lead to an increased number of investigations and lawsuits to be conducted in more depth.

Implications For Employers

The EEOC’s Strategic Plan demonstrates yet again that the Commission is keenly focused on identifying and pursuing systemic discrimination claims with more robust tools and strategies. The EEOC’s four-year plan also makes clear that the Commission will expand its efforts to reach currently underserved populations through a more technological approach. At the same time, the EEOC also intends to harness its collective resources to identify, investigate, and litigate large discrimination claims, which it sees as the best use of its litigation budget. The Plan is still a draft, and the EEOC is accepting comments through December 5, 2022. We will report on the final version once it is available. Also stay tuned for our analysis of the EEOC’s SEP, which promises to identify the key substantive focus areas for the coming years.

By: David Rowland and Sarah Bauman

Seyfarth Synopsis: In a wide-ranging opinion on pivotal ADA and EEOC jurisdictional issues, the U.S. District Court for the Eastern District of Pennsylvania in EEOC v. Geisinger Health, et al. called mostly strikes against the EEOC at the motion to dismiss stage, with two exceptions.  Most notably, the EEOC was permitted to pursue a claim under Title V of the Americans with Disabilities Act (“ADA”), a rarely utilized section of the ADA that prohibits “interference” with the exercise or enjoyment of any right granted or protected by the ADA.  This decision is a notable win for employers.  But the court’s willingness to entertain this rare claim past the pleadings stage renders this ruling an especially important read for companies faced with ADA litigation.   

Case Background

In Geisinger Health, the EEOC brought an enforcement action against various Geisinger entities on behalf of a former nurse of Geisinger Wyoming Valley Medical Center, Rosemary Casterline, and other aggrieved former and current employees.  The EEOC alleges the Geisinger Defendants violated Title I of the ADA by discriminating against and failing to accommodate Casterline and others who took medical leave by requiring them to re-apply and compete for employment opportunities to return to work and requiring them to be the “most qualified” applicant.  For similar reasons, the EEOC additionally claims that Defendants retaliated against Casterline and other employees and interfered with their ADA rights, in violation of Title V.  The Defendants moved to dismiss on all counts.

The Court’s Decision

The court ruled in favor of Defendants on all but two issues.  As to those decided in favor of Geisinger, the court held that the EEOC: 1) failed to plead facts sufficient to allege that the various Geisinger entities were a single employer, thus requiring dismissal of four of the seven named Defendants; 2) failed to plausibly allege that Casterline was a qualified individual with a disability, thus eviscerating her individual claim and negating the EEOC’s effort to identify a “class;” 3) failed to sufficiently allege that otherwise untimely claims could move forward under a continuing violation theory, thus limiting claims to those occurring within the 300-day statutory window; and (4) failed to plead a causal connection between Casterline’s alleged protected activity and her termination or Geisinger’s failure to accommodate her, thus requiring dismissal of the EEOC’s ADA retaliation claim.

Though undoubtedly a homerun for employers (for the most part), perhaps most interesting are the issues that are now ripe for summary judgment. Specifically, the court permitted the EEOC to further pursue its claim under the anomalous ADA Title V, as well as its claim that Geisinger’s policy of hiring the most qualified applicants rather than simply reassigning disabled employees into positions for which they are qualified.  Regarding the latter, this legal issue is a hotly contested one across Circuit Courts.  The court deemed it premature to reject it on the pleadings, criticizing Geisinger’s reliance on only summary judgment cases as grounds for dismissal. 

As to the ADA Title V claim, the court first noted the “scant case law” on ADA interference claims pursued under Title V.  Indeed, the Third Circuit has not yet ruled on what a plaintiff must plead to state such a claim.  The court first recognized that courts in other Circuits utilize the test for anti-interference claims under the Fair Housing Act, and in turn, the Third Circuit has held that courts should give the word interference its dictionary definition, or the “act of meddling in or hampering an activity or process.”  Without explicitly holding that such a test should apply, the court found that the EEOC sufficiently pled that Geisinger interfered with Casterline’s rights under the ADA; “in particular,” the EEOC pleaded inter alia that Geisinger “create[d] and maintain[ed] records that associate negative tags or references, such as ‘litigation hold,’ with persons who have engaged in protected activity and/or those seeking a reasonable accommodation or putting [Geisinger] on notice that they need a reasonable accommodation.”  According to the court, the EEOC’s allegations raised an inference that Geisinger “meddles” when employees attempt to exercise their rights under the ADA. 

Implications For Employers

Overall, the decision is an important win for employers, and worthy of instant replay.  However, companies should take particular note of the court’s decision to uphold the ADA Title V claim.  Given its success in Geisinger Health—perhaps in part due to the underdeveloped nature of such claims—employers should celebrate this decision with caution.  Indeed, employers should be especially careful that their policies and practices cannot be construed as “meddling” when employees attempt to assert ADA-protected rights.

By: Christopher J. DeGroff, Sarah K. Bauman, and James P. Nasiri

Seyfarth Synopsis: Last year was one of change and recovery for the EEOC as a result of the pandemic and new leadership.  With the new leadership regime and structural changes at the EEOC came an uptick in filings from FY 2021, with nearly half of those occurring in the month of September alone.  Despite an anticipated busy year for 2022, this fiscal year closed with a strikingly low number of filings,and leaves questions as to whether this filing drought will continue.  However, with a Democratic majority inevitably to come, a generous budget increase (reported here), and several new strategic objectives planned for this FY 2023, a busy year may very well lie ahead.

As we previously reported here, FY 2020 experienced a significant downturn in filings as a result of leadership changes and the COVID-19 pandemic.  This left us questioning as to the gravity of the impact this might have on subsequent years.  Nevertheless, the EEOC quickly rebounded in FY 2021 with 114 total filings at year end (see here).  Though this number was still significantly less than previous years (see here), almost half of FY 2021 filings were in the month of September alone, signaling a busy year for FY 2022.  However, with a mere 94 filings at the time of publication of this blog post, FY 2022 did not live up to that case-filing trajectory.  The EEOC has seen budget boosts in the last two years, and has signaled the hiring of numerous field staff, including lawyers.  The pieces seemed to be in place for a more robust year-end filing spike once again in FY 2022, but the numbers do not show that.

This could be, in part, because the Commission is still led by a Republican majority, and the EEOC attorneys in the field are waiting for the composition to flip to the Democrats to increase the likelihood cases will receive a green light, or that the authority to file actions will once again be delegated to the field entirely.  The EEOC has been mum on the topic, however.  Recent political sparring may lend some insight.  Notably, representatives have recently cried foul that EEOC attorneys are administratively withdrawing matters that have been voted down by the Commissioners so they may live another day (see here).  Ultimately, there is no statistical or anecdotal suggestion that the EEOC has throttled down on enforcement or is more likely to settle cases.  That suggests there is a queue of potential cases waiting to be filed.

Cases Filed By EEOC Districts

The most noticeable trend of this fiscal year is a return of the usual leaders of the pack: the Chicago, Miami, and Los Angeles District Offices, with 12, 8 and 8 filings, respectively.  Chicago experienced a surprising dip in FY 2020 at only 3 filings, shot back up in 2021, but still lagged behind several other districts until this year.  Similarly, the Los Angeles District, which historically has been a leading district for the EEOC, ended the year on top as well.  The Miami District has also been very consistent, lodging at least 8 filings for five years in a row.  Finally, the biggest surprise District in FY 2022 was Charlotte, which filed 10 merit cases this year after accounting for only 4 filings last year and only 1 filing in FY 2020.

Analysis Of The Types Of Lawsuits Filed In FY 2022

Each fiscal year we also analyze the types of lawsuits the EEOC files (i.e., the statutes and theories of discrimination implicated) to hone in on the focus of the EEOC’s current strategic priorities.  Those numbers – when considered on a percentage basis – are in line with the numbers we have seen the last few years.  The graphs below show the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, and Age Discrimination in Employment Act) and, for Title VII cases, the theory of discrimination alleged.

When considered on a percentage basis, the distribution of cases filed by statute remained roughly consistent compared to FY 2021 and 2020. Title VII cases once again made up the majority of cases filed, accounting for 65% of all filings (on par with the 62% in 2021 and 60% in FY 2020).  ADA cases also made up a significant percentage of the EEOC’s filings, totaling 29% this year, a moderate decline from 36% in 2021 and 30% in FY 2020.  Notably, there were 7 age discrimination cases filed this year, a significant increase from last year’s single case.

March 2022 Budget Justification And FY 2021 Performance Report

On March 28, 2022, the EEOC released its third-annual Annual Performance Report (“APR”) for FY 2021, as well as its budget justification for FY 2023.  The APR is an analysis of the EEOC’s litigation goals and performance results, and contains important data points regarding the EEOC’s changing strategic objectives and potential focus for future enforcement activity.  The FY 2023 budget, on the other hand, outlines how the Commission intends to allocate funds in order to effectuate its goals via its proposed FY 2023 budget of $464,650,000.

In the APR, the EEOC declared that FY 2021 was a successful year for the Commission in terms of advancing its strategic objectives.  Indeed, the EEOC secured more than $485 million in monetary relief for over 15,000 alleged victims of employment discrimination.  By comparison, the EEOC recovered $535.5 million in FY 2020, $486 million in FY 2019, and $505 million in FY 2018.

Moving into 2023, the EEOC justifies its $464,650,000 budget request — a whopping $60 million increase from last year — based on advancing the strategic priorities for the fiscal year.  Commissioner Burrows indicated that those priorities correlate with the Biden Administration’s call for a “whole-of-government approach to addressing systemic discrimination and advancing equal opportunity.”  Perhaps this budget is exactly what the EEOC needs for a comeback from last year’s downturn.

Implications For Employers

Despite the EEOC’s relatively quiet FY 2022, employers should continue to keep a close eye on the Commission’s litigation trends. Specifically, given the EEOC’s notable budget increase and looming change in leadership, we still expect filing numbers to ramp up in the near future.  Moreover, with the EEOC set to adopt a new strategic plan for FY 2023, the timing appears right for a new Democratic-led Commission to implement a new set of priorities and emphasize these priorities through litigation.

We will continue to monitor these changes closely and keep readers apprised of developments.  And, as always, we will keep up-to-date on EEOC data amid the ever-changing political climate, and share lessons learned from FY 2022 to carry employers through the new year.

By: Matthew J. Gagnon

Seyfarth Synopsis: This is the third in a series of posts covering recent trends in equal pay litigation. This post discusses how plaintiffs have sought to expand the possibilities of an equal pay claim by whittling away the defenses allowed to employers. In particular, plaintiffs’ counsel have argued that an employer cannot rely on a policy or practice as a defense if that policy or practice is itself discriminatory in nature or effect. One highly visible example of this trend is plaintiffs’ sometimes-successful efforts to delegitimize the use of salary history to set starting salaries. Some courts and state legislatures have decided that this practice only perpetuates historical pay inequities. More recently, plaintiffs’ counsel have attempted to expand this concept to other seemingly gender-neutral practices that employers often use to justify pay disparities.

This is the third in a series of posts examining the new and developing trends in equal pay litigation identified in Seyfarth’s yearly publication, Developments in Equal Pay Litigation, 2022 Update. Our first and second posts examined the nature of the burden-shifting framework used to decide cases under the federal and state equal pay statutes and, in particular, courts’ efforts to clarify the parties’ respective burdens under that framework. This post examines employers’ available defenses to an equal pay lawsuit, but not as they relate specifically to the burden-shifting paradigm. Rather, this post examines plaintiffs’ recent efforts to expand the logic of a line of cases (and legislative action) that undercuts employers’ use of prior salary to set a new employee’s starting salary. The gist of the argument being pushed by the plaintiffs’ bar is this: employers may not rely on a policy or practice as a defense to an equal pay lawsuit if that policy or practice is itself tainted by bias.

Recent victories for plaintiffs on the salary history issue in some courts and statehouses arguably jump-started this trend. Different federal circuit courts have come to different conclusions about that practice. The Ninth Circuit has arguably taken the strongest stance against it, holding in a recent landmark decision, Rizo v. Yovino, that salary history, by itself, can never justify a wage disparity because that salary history may be reflective of historical wage disparities prevalent in the marketplace. Setting a new employee’s pay based on inequitable past compensation only perpetuates the inequity into the future.

Some equal pay plaintiffs have sought to capitalize on that reasoning to further narrow the scope of an employer’s defenses, arguing that an employer must show that any factor it uses to justify a pay disparity must be free of bias. For example, employers sometimes argue that disparities in starting pay are the result of the fact that some employees negotiate harder for a higher starting salary. Plaintiffs have increasingly challenged that defense, arguing that the negotiation process is inherently biased against women. Although this tactic has found some success in the courts, that is still the exception. Negotiation is still considered a viable defense in most cases where it plausibly explains a pay disparity.

But equal pay plaintiffs are continuing to push this line of argument. In one recent case, Douglas v. Alfasigma USA, Inc., No. 19-cv-2272, 2021 WL 2473790 (N.D. Ill. June 17, 2021), a pair of sales representatives alleged, among other things, that they were underpaid compared to their male colleagues. The employer argued that the complaint was self-defeating in that it acknowledged that the male comparators were given more favorable sales territories, which would explain the pay disparity: “[Employer] argues that Plaintiffs have pled themselves out of court by alleging that [supervisor] gave them unfavorable territory compared to their male counterparts. . . . [Employer] basically reads the complaint as an admission that Plaintiffs were less productive than their male counterparts.” Id. at *10. The court rejected this argument, holding that an employer cannot justify a wage disparity by pointing to actions that are themselves alleged to be discriminatory in nature, explaining that “[t]aking away sales opportunities cannot defeat a sex discrimination claim when taking away sales opportunities was an act of sex discrimination.” Id. at *11.

The reasoning of this decision presents a rather worrisome prospect for employers. In its most extreme form, such an argument would allow plaintiffs an angle to attack any factor justifying a wage disparity, however reasonable, simply by claiming that the factor itself is infected with bias. Thankfully, the state of the law is not yet so dire. Such arguments have been met with a critical eye in some courts. For example, in Spellers v. United States, No. 157 Fed. Cl. 171 (Ct. Fed. Cl. 2021), a female computer scientist brought an equal pay claim against the Department of the Navy. Even though she was paid according to a sophisticated and highly structured merit-based system (“STRL”), she argued that the system could not function properly without good data about her actual duties and her performance, both of which she alleged were infected with gender bias. The court dismissed those arguments, finding them to be nothing more than speculation: “Because plaintiff acknowledges that the STRL pay system is facially gender-neutral when functioning as intended and with good data, . . . she has conceded the viability of defendant’s affirmative defense.” Id. at 177.

***

This trend has been developing for several years in the wake of the critical salary history line of decisions. It appeared first with respect to salary negotiation, which seems only slightly removed from the prior salary history issue. But recently, plaintiffs’ counsel are attempting to stretch the boundaries of this line of argument, thereby stretching the limits of a cognizable equal pay claim even further. The advantages for plaintiffs in doing so are clear. If they can sow doubt about an employer’s proffered justification for a wage disparity, they may more easily get their lawsuit over the hurdle of summary judgment. And as most employers know, once an employment case is inexorably headed for trial, the incentives to settle, even at a premium, increase dramatically.

These and other trends impacting equal pay litigation are discussed in much greater detail in Seyfarth Shaw’s yearly report, Developments in Equal Pay Litigation, 2022 Update. We highly recommend that report to any employer facing equal pay litigation, or who may simply wish to learn more about these trends so they can avoid such lawsuits in the future or keep abreast of changes in federal and state equal pay legislation. We look forward to continuing to share our analysis of these issues.

By Gerald L. Maatman, Jr., Jennifer Riley, and Sarah Bauman

Seyfarth Synopsis: On August 8, 2022, the U.S. District Court for the Northern District of Illinois granted Plaintiffs’ motion for class certification for a class of applicants who sought employment with the Cook County Department of Corrections.  The Plaintiffs argued that certain hiring examinations disparately impacted African-Americans, and were therefore discriminatory under Title VII of the Civil Rights Act. 

As we previously predicted here, disparate impact class actions premised on a theory of liability derived from entrance exams, such as physical abilities tests, are no longer flying under the radar.  It is important for employers to be informed on the implications of entrance exams if they require applicants to pass such tests during the hiring process.

Case Background

In Simpson v. Dart, the Plaintiffs initiated a putative class action claiming that the hiring practices of Correctional Officers at the Cook County Department of Corrections were racially discriminatory against African-Americans.  The hiring process at issue consists of various steps conducted by the Merit Board and Sheriff’s Office, including: (1) screening for minimum qualifications; (2) an initial written examination; (3) a second written examination; (4) a physical abilities test; (5) finger printing and drug testing; (6) a personal history questionnaire and follow-up interview; and (7) final review by the Merit Board members.  Applicants must successfully complete this process and obtain certification before they are eligible for hire.

At issue in the Plaintiffs’ motion for class certification were the Merit Board’s hiring examinations, such as the initial written examination, the second written examination, and the physical abilities test.  The Plaintiffs claimed that the hiring examinations disparately impact African-Americans in violation of Title VII.

The Court’s Decision

The Court considered the Defendant’s challenge to the Plaintiffs’ attempted extension of their Title VII class period relative to three of the four sub-classes at issue, by using a start date of July 2014.  Such a start date fell far earlier than 300 days from the filing of the underlying charge of discrimination (i.e., the applicable statute of limitations period).  In support of such a class period, the Plaintiffs relied on Lewis v. City of Chicago, Ill., 560 U.S. 205, 210-11 (2010), claiming that the unlawful hiring practice at issue involves the written and physical examinations, which took place in July 2014.

The Court disagreed. It found that Lewis stands for the proposition that later implementation of a policy that causes a disparate impact can qualify as a new, actionable employment practice.  Critically, the U.S. Supreme Court did not hold that a plaintiff can “reach back” to a testing date that falls outside of the 300-day statute of limitations window.  Accordingly, the Court limited the class period to 300 days from the date the charge was filed — March 2015.

The Court then analyzed whether Plaintiffs met the requirements of Rule 23 for certifying the classes at issue.  First, the Court held that the Plaintiffs established the commonality requirement because the hiring examinations constitute an employment policy that causes racial discrimination not justified by any business necessity.  Critical to the Court’s holding in this respect was that Plaintiffs pointed to employment actions that did not involve the exercise of discretion.  Second, the Court dismissed the Defendants’ argument that the claims of the named plaintiffs were not typical of the putative class.  The Court opined there was “no question the named plaintiffs’ claims arise from the standardized tests and are based on the same legal theory, disparate impact,” and Defendants’ contention that such a requirement could not be satisfied because they “prepared for the standardized tests in different ways” was unavailing.  Such “minor variances” made “no difference to the Court’s certification analysis.”

The Court similarly dismissed the Defendants’ arguments relative to the adequacy requirement.  Specifically, the Defendants claimed that the scope of certain merits issues relative to the charge of discrimination would be addressed at the summary judgment stage, but such issues had clear implications for class certification.  The Court held that since such an argument was — as Defendants admitted — suited for the summary judgment stage, the Court refused to consider the argument and held the Plaintiffs are adequate class representatives.

Finally, the Court considered whether there were common questions of law or fact that predominated over individual questions.  Defendants argued that an individualized analysis of each applicant would be necessary because there are more steps involved in the hiring process than just the standardized tests.  However, the Court held that, in the context of disparate impact cases, Title VII guarantees protected individuals the opportunity to compete equally based on hiring criteria, and losing an opportunity to compete equally (here, via the examinations) were actionable injuries.  Accordingly, the Court granted the Plaintiffs’ motion for class certification.

Implications For Employers

This case doubles down on the long-standing principle that a hiring or employment policy not carefully vetted for discriminatory effect can lead to class action problems.  Employers should be especially careful when subjecting applicants to certain tests or other criteria as a screening mechanism because, as demonstrated here, disparate impact lawsuits based on this theory appear to be making a comeback.

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

Seyfarth Synopsis:  In Savage, et al. v. The City of Springfield, Case No. 3:18-CV-30614, 2022 LEXIS 124587 (D. Mass. July 14, 2022), a federal court in Massachusetts recently denied Plaintiffs’ motion for class certification, holding that (1) Plaintiffs failed to establish that a putative class of Black and Hispanic firefighters met the numerosity requirement of Rule 23(a)(1); and (2) that the seminal ruling in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), barred certification of a Rule 23(b)(2) class as sought by Plaintiffs.

This ruling is well worth a read by employers, and will be useful to cite when plaintiffs attempt to certify small class actions that hover near the 40-person threshold, as well as when potential damages may require an individualized analysis.

Case Background

On March 17, 1995, the City of Springfield, Massachusetts (the “City”) implemented an ordinance requiring many municipal employees to reside in the City as a condition of employment.  Id. at *3-4.  In May of 2016, Plaintiffs sued the City, the Springfield Fire Department, the Springfield Fire Chiefs Association, and others, alleging a long-standing non-compliance with the residency ordinance prompted by promotions of non-resident employees of the Fire Department to higher ranking positions.  Id. at *5.

In relevant part, Plaintiffs sought to certify a class of, “all current and former Black and Hispanic firefighters employed by the Springfield Fire Department since March 17, 1995.”  Id. at *26-27.  At oral argument, counsel for Plaintiffs identified the primary class claim as emanating from the City’s alleged arbitrary and capricious enforcement of the residency ordinance.  Plaintiffs further alleged that the City had a practice of maintaining a racially hostile and retaliatory work environment, and sought to include hostile work environment as a claim asserted on behalf of the class.  Following Plaintiffs’ motion for class certification, Defendants sought to exclude various pieces of evidence, including Plaintiffs’ expert declaration and supporting testimony, non-expert declarations, social media posts, and agency decisions.

The Court’s Decision

The Court denied Plaintiffs’ motion for class certification.  First, analyzing the Rule 23(a)(1) class certification requirement, the Court held that Plaintiffs’ calculation of fifty putative class members was insufficiently supported.  Id. a *30.   Specifically, the Court observed that Plaintiffs cited to three paragraphs of their expert’s declaration that were not directed at the question of how many minority firefighters were denied promotional opportunities, but rather, the racial composition of the ranks of lieutenant, captain, and above.  The Court opined that one of Plaintiff’s declarations made no effort to explain how he arrived at the estimate of 50 potential class members, and at most, he established there would be 32 class members, which was below the 40 class member threshold required by Rule 23.  Accordingly, the Court held that the numerosity requirement was not met.  Id. at *35.

Second, the Court addressed the commonality requirement per Rule 23(a)(2).  Id.  Plaintiffs argued “that the common questions of law and facts are whether the City discriminated against Black and Hispanic firefighters in the Springfield Fire Department, in violation of the First and Fourteenth Amendments of the U.S. Constitution, Title VII of the Civil Rights Act of 1964 . . . and 42 U.S.C. §§ 1981, 1983, and 1988 by maintaining a racially hostile work environment and allowing white applicants to violate the City’s valid and enforceable residency law for well over 20 years, and retroactively excusing white firefighters from compliance with the residency law after Plaintiff filed lawsuits challenging the City’s enforcement practices.”  Id.  After addressing and dismissing the constitutional challenges, the Court held in relevant part that pursuant to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), it was “not sufficient for Plaintiffs to merely allege ‘that they have all suffered a violation of the same provision of law,’ id., 564 U.S. at 350, which is precisely what Plaintiffs have done in their proposed common question.”  Id. at *37.  After reviewing Plaintiffs’ evidence, the Court held that Plaintiffs allegedly suffered the same injury (deprivation of promotional opportunities), from the same source (non-enforcement of the residency ordinance), and thus established commonality.  Id. at *42.

Third, the Court held that Plaintiffs satisfied Rule 23(a)(4)’s adequacy factor, which dictates that the proposed class representatives must fairly and adequately protect the interests of the class.  Id. at *44-45.  Plaintiffs argued that they were adequate representatives because they had no conflicts of interest with the proposed members of the class; to the contrary, their interests in ensuring that Defendants are held accountable for their discriminatory promotion practices were perfectly aligned.  Id. at *45.  The Court held that Plaintiffs met the adequacy requirement since there appeared to be no conflicts between Plaintiffs and other current and former minority employees of the Fire Department, who would have the same interest in ensuring enforcement of the residency ordinance and recovering unpaid wages and benefits from Defendants.  Id. at *46.

Finally, the Court held that Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), barred certification of a Rule 23(b)(2) class, as sought by Plaintiffs.  The Court explained that incidental damages that are permissible under Rule 23(b)(2) are those that would flow to the class as a whole by virtue of its securing the sought after injunctive relief.  Id. at *47 (citations and quotations omitted).  Noting that Plaintiffs’ counsel acknowledged at oral argument that the award of damages would require individualized assessment for each minority firefighter denied a promotional opportunity, the Court held that monetary damages Plaintiff seek do not meet these requirements.  Accordingly, because Plaintiffs failed to meet the requirements Rule 23(a)(1) and Rule 23(b)(2), the Court denied Plaintiffs’ motion for class certification.

Implications For Employers

While Plaintiffs may have had potentially strong arguments for a handful of individuals, this ruling illustrates that courts will carefully examine motions for class certification in accordance with Rule 23, regardless of the strength of the claims of the lead Plaintiffs.  In situations where the putative class size is close to 40 members but short of that baseline, and hence numerosity may be in question, employers would be wise to consider citing the Court’s scrutiny here of Plaintiffs’ declaration testimony.  Finally, from a big picture standpoint in the class action litigation landscape, this ruling confirms that the U.S. Supreme Court’s Wal-Mart Stores, Inc. v. Dukes decision remains a cornerstone case for employers to use when attempting to fracture a putative class action.

By Gerald L. Maatman, Jr., Alex W. Karasik, and Aaron A. Bauer

Seyfarth Synopsis:  In Easom v. US Well Servs., No. 21-20202, 2022 U.S. App. LEXIS 16556 (5th Cir. June 15, 2022), the employer defendant invoked the WARN Act’s “natural disaster” exception when it conducted mass layoffs in its Texas workforce, due to the sudden economic downturn caused by the COVID-19 pandemic in March 2020.  The Fifth Circuit held that the COVID-19 pandemic could not be considered a “natural-disaster” under the WARN Act, and that an employer invoking the “natural-disaster” exception must prove that the event was the proximate cause of the layoffs.  

The Fifth Circuit’s decision demonstrates the importance of careful analysis when deciding whether to invoke an exception to the WARN Act notice requirements and planning such layoffs.

Background

In March 2020, oil producer US Well was forced to conduct mass layoffs in its Texas workforce due to the sudden steep decline in oil demand, precipitated by the COVID-19 pandemic.  Later that summer, the laid off employees filed a class action in a Houston federal district court against the company, alleging that it violated the Federal WARN Act, 29 U.S.C. § 2102(a), et seq, by failing to provide them with at least 60 days-notice before conducting the mass layoffs.  Id. at 5.

The WARN Act provides an exception to this 60-day notice requirement for mass layoffs that are “due to any form of natural-disaster, such as a flood, earthquake, or [] drought…”  29 U.S.C. § 2102(b)(2)(B).  Defendant US Well argued that this statutory exception applied to it because the COVID-19 pandemic was a “natural-disaster” which forced it to conduct mass layoffs.  Id.  The District Court agreed, and also held that US Well would only have to prove that COVID-19 was the ‘but-for’ cause of it having to conduct mass layoffs in order to successfully invoke the WARN Act ‘natural-disaster’ exemption.  The terminated workers appealed the District Court’s decision to the U.S. Court of Appeals for the Fifth Circuit.  Id.

The Fifth Circuit Holdings

A three judge panel on the Fifth Circuit unanimously held that: (1) COVID-19 is not a natural disaster under the WARN Act’s natural-disaster exception; and that (2) the WARN Act’s natural-disaster exception requires that the employer prove proximate, not only ‘but-for,’ causation.  Id. at 2.

To reach its first holding, the Fifth Circuit applied fundamental concepts of statutory interpretation to determine that when Congress passed the WARN Act in 1988, it did not intend to include pandemics and infectious diseases within the meaning of ‘natural-disaster.’  Id. at 12.  For its second holding, the Fifth Circuit determined that a regulation of the U.S. Department of Labor (“DOL”) – interpreting the WARN Act’s provisions regarding the natural-disaster exception – provides that a natural disaster must be the proximate cause of an employer’s mass layoffs, in order for the employer to invoke the exception.  Id. at 16.

The Fifth Circuit applied traditional concepts of statutory interpretation.

The Fifth Circuit first noted that at the time the WARN Act went into effect in 1988, leading dictionaries in publication had not defined the term “natural-disaster.”  Because of this, it could not deduce a ‘plain meaning’ of the term based on a dictionary definition.  Id. at 8-9.  So the Fifth Circuit then looked to the language in the Act surrounding ‘natural-disaster,’ in order to determine what types of ‘natural events’ Congress had intended to include within the term’s meaning.  Employing this contextual reading of the Act, the court found that Congress had chosen to limit the meaning of the term “natural-disaster” to “hydrological, geological, and meteorological events;” not pandemics and infectious diseases.  Id. at 9-10.

The Fifth Circuit further reasoned that Congresses decision to exclude pandemics and infectious diseases from the meaning of ‘natural-disaster’ was a deliberate choice, because “[b]y the late 1980’s, Congress was familiar with pandemics and infectious diseases.”  Id. at 11.  Moreover the court observed that given the broad remedial purpose of the WARN Act to address extensive worker dislocation that occurred in the 1970’s and 1980’s, it should narrowly construe any exceptions to Act’s application.  Therefore, the court held that “COVID-19 does not qualify as a natural disaster under the WARN Act’s natural-disaster exception.”  Id. at 12.

The WARN Act requires ‘proximate’ causation analysis

The Fifth Circuit also discussed how an employer must prove that a “natural-disaster” caused it to conduct mass layoffs.  The defendant employer argued, and the lower court held, that it should only have to prove it would not have conducted mass layoffs ‘but-for’ a natural-disaster; in other words, that the layoffs would not have occurred in the absence of a natural disaster.  Id. at 4.  The plaintiff appellants disagreed, arguing that the employer should have to prove that a natural-disaster was also the ‘proximate cause’ of its layoffs; in other words, that the natural-disaster was sufficiently related to the layoffs.  Id. at 12.

The Fifth Circuit sided with the plaintiff appellants.  It looked to the DOL regulation interpreting the WARN Act, which says that a natural-disaster must be the “direct-cause” of an employer’s layoffs.  It reasoned that, because previous court precedents have interpreted ‘direct’ and ‘proximate’ causation to be synonymous terms, an employer invoking the natural disaster exception must also prove that a natural disaster was the ‘proximate cause’ of its mass layoffs.  Id. at 13-14.  The Fifth Circuit disagreed with the employer’s argument that such a holding would preclude employers from invoking the notice exception for natural-disasters such as hurricanes, where the hurricane might cause man-made levies to break, causing flooding, which would force businesses to shut down.  According to the Fifth Circuit, mass layoffs caused by such a natural disaster would not necessarily “foreclose the natural-disaster exception” under proximate-cause analysis.  Id. at 14-16.

Implications for Employers

At first glance, the Fifth Circuit’s holdings in Easom may appear to have limited application, since pandemics have traditionally been viewed as multi-generational events.  Still, whether we are fully past COVID-19 shutdowns remains to be seen, and the Fifth Circuit’s decision serves as a warning to employers who might otherwise be tempted skirt the WARN Act’s 60-day notice requirement during a COVID-19 shutdown.

More importantly, the Easom decision shows the importance of carefully analyzing the WARN Act requirements before conducting reductions in force.  As the Fifth Circuit noted, exceptions to the WARN Act requirements are to be “narrowly construed.”  This means that employers should conduct careful analysis when considering whether WARN Act exceptions apply to their reductions in force.

 

By Jennifer A. Riley, Andrew Scroggins, and Tyler Zmick

Seyfarth Synopsis: As we previously reported, employers generally have found success when the U.S. Supreme Court takes up questions about the arbitrability of workplace disputes. The unanimous decision in Southwest Airlines Co. v. Saxon bucks that trend, denying employers a clear victory and holding that those who load cargo onto airplanes engaged in interstate travel are exempt from the Federal Arbitration Act (FAA). The Court’s fact-specific decision, however, rejects any bright-line test based on the employer’s industry and allows for a worker-based inquiry.  As such, it leaves room for employers looking to enforce their arbitration agreements under federal law and opens the door to future litigation regarding whether workers are actually “engaged in interstate commerce” when they do not cross borders to perform their work.

Background

Latrice Saxon worked at Midway International Airport in Chicago as a ramp supervisor for Southwest Airlines. She filed suit against the company in federal court, alleging that Southwest Airlines failed to pay overtime wages to Saxon and others. Saxon, however, previously had agreed to submit any disputes over wages to an arbitrator who would decide them in arbitration on an individual basis. Accordingly, the company moved to dismiss the lawsuit and to compel arbitration under the FAA.

Saxon resisted the motion to compel, arguing that her work placed her outside the scope of the FAA. More specifically, she cited Section 1 of the FAA, which provides that the statute does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

The district court sided with Southwest Airlines, reasoning that ramp agents and supervisors are responsible for the handling of goods but not responsible for the transportation of those goods across state lines. The Seventh Circuit reversed that decision, holding that “[t]he act of loading cargo onto a vehicle to be transported interstate is itself commerce” as the term was understood when the FAA was enacted. The Seventh Circuit’s decision put it in conflict with an earlier decision by the Fifth Circuit, and the Supreme Court took the case to resolve the split.

What Did The Supreme Court Hold?

In a unanimous 8-0 decision (Justice Barrett recused), the Supreme Court agreed with the Seventh Circuit’s holding that ramp agents and supervisors who physically loaded cargo onto airplanes traveling across state lines are subject to the FAA’s transportation worker exemption.  Southwest Airlines Co. v. Saxon, 596 U.S. ___ (2022).

The Court reached its conclusion through a two-step analysis.  (Slip. Op. at 3.)  First, the Court defined “the relevant ‘class of workers’ to which Saxon belongs.”  Id.  Next, the Court “determine[d] whether that class of workers is ‘engaged in foreign or interstate commerce.’”  Id.

Defining the Relevant Class of Workers As “Airplane Cargo Loaders”

Saxon urged the Court to take an expansive view of this issue and to decide it based on her employer’s industry – air transportation. The Court expressly rejected this sweeping approach, noting that the FAA refers to “workers,” not “employees” or “servants,” which suggests that the scope of the exemption turns on the performance of work.

The Court held that this inquiry is not directed at the nature of the employer’s business but directed at the actual work that the members of the class typically carry out.  (Id. at 4.)  In other words, “Saxon is … a member of a ‘class of workers’ based on what she does at Southwest, not what Southwest does generally.”

The Court concluded from the record before it that Saxon and other ramp supervisors physically loaded and unloaded cargo on and off airplanes on a frequent basis.

Defining Whether “Airplane Cargo Loaders” Are Engaged in Interstate Commerce

The Court next considered whether the class of airplane cargo loaders to which Saxon belonged was “engaged in foreign or interstate commerce” and found its answer in a decision issued nearly a century ago:

We have said that it is “too plain to require discussion that the loading or unloading of an interstate shipment by the employees of a carrier is so closely related to interstate transportation as to be practically a part of it.” Baltimore & Ohio Southwestern R. Co. v. Burtch, 263 U. S. 540, 544 (1924). We think it equally plain that airline employees who physically load and unload cargo on and off planes traveling in interstate commerce are, as a practical matter, part of the interstate transportation of goods. They form “a class of workers engaged in foreign or interstate commerce.”

(Id. at 5.)  Applying that decision here, the Court concluded that “one who loads cargo on a plane bound for interstate transit is intimately involved with the commerce (e.g., transportation) of that cargo.”  (Id. at 6.)

Having concluded that “Saxon frequently loads and unloads cargo on and off airplanes that travel in interstate commerce,” the Court held that she satisfied the transportation worker exemption in Section 1 of the FAA.

The ruling does not disturb mandatory arbitration of certain types of disputes arising under collective bargaining agreements pursuant to the Railway Labor Act.

What About Other Classes of Workers?

While the Court agreed that “airplane cargo loaders” are engaged in interstate commerce, it acknowledged that the distinction may not always be clear:

We recognize that the answer [whether the class of workers are engaged in foreign or interstate commerce] will not always be so plain when the class of workers carries out duties further removed from the channels of interstate commerce or the actual crossing of borders.

(Id. at 5 n.2.)  While the Court did not offer a bright-line test to help draw such distinctions in the future, it provided a few guideposts.

First, the Court noted that, although the FAA does not define “transportation worker,” any such worker must at least be “actively engaged” in the “free flow of goods across borders” via the “channels of foreign or interstate commerce.”  (Id. at 6.)

Applying these criteria, the Court noted that cargo loaders exhibit these central features of a transportation worker because they “load[] cargo on a plane bound for interstate transit” and, when they engage in such activity, “there [can] be no doubt that [interstate] transportation [is] still in progress.”  (Id.)

Second, the Court offered some examples of work that would not satisfy the exemption. Citing Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186 (1974), it noted that workers who make intrastate sales of asphalt are not engaged in interstate commerce merely because the product is later used to build interstate highways. Similarly, citing United States v. American Building Maintenance Industries, 422 U.S. 271 (1975), the Court explained that workers who supply localized janitorial services to a corporation engaged in interstate commerce do not satisfy the exemption because they do not perform activities “within the flow” of interstate commerce.

In a footnote, the Court acknowledged that two Circuits recently issued divergent decisions involving workers who carried out duties “further removed from the channels of interstate commerce or the actual crossing of borders.”  (Slip Op. at 5 n.2.)  It referred to the Ninth Circuit’s decision finding “last leg” delivery drivers within Section 1’s exemption and the Seventh Circuit’s decision finding food delivery drivers outside Section 1’s exemption. Although its opinion appeared to signal its take on these holdings, the Court stated only that it “need not address those questions to resolve this case.”  Id.

Implications For Employers

Employers avoided the worst case scenario that some had feared — a holding that the transportation worker exemption applies to all employees who work for employers engaged in the transportation industry. Instead, the Court issued a fact-specific decision that focused on application of the transportation worker exemption to a worker directly engaged in loading cargo for transport across borders.

Companies should anticipate that other workers who are less directly involved in the flow of interstate commerce will attempt to invoke the exemption claiming that they, too, are exempt from the FAA. The burden of demonstrating that the “transportation worker” exemption applies falls to the worker, and the decision in Saxon provides employers ammunition for curtailing these arguments based the work “actually performed” as well as the connection of that work to the flow of goods across borders.

Somewhat ironically, the Supreme Court’s decision heightens the importance of state law in enforcing arbitration agreements of workers most connected to interstate transportation.  For those workers, the choice of state law will take on renewed emphasis as many states already have adopted uniform arbitration acts that do not contain transportation worker exemptions and others have a clear runway to legislate the enforceability of these agreements.

By Andrew L. Scroggins and Sarah K. Bauman

 Seyfarth Synopsis: As we previously reported here, last October the EEOC put employers on notice of an initiative to ensure that artificial intelligence (“AI”) and other technology used in hiring and employment decisions comply with federal anti-discrimination laws. Consistent with this recent initiative, on May 12, 2022, the EEOC shared guidance to help employers using AI technology to remain compliant with the Americans With Disabilities Act (“ADA”). The DOJ followed suit by posting similar guidance regarding AI-related disability discrimination on the same day.

These guides are an important read for employers who presently use — or are considering using — AI and other technological tools to increase efficiency in hiring and employment decisions.

The EEOC’s Guidance

Entitled the “Americans With Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” available here, the EEOC’s guidance discusses how existing ADA requirements may apply to the use of AI, software applications, and algorithms in employment-related decision-making processes and practices. The guidance also offers useful information and tips to employers in an effort to assist them with ADA compliance when using such tools.

Specifically, the EEOC explains how an employer’s use of AI and other technological tools can discriminate against disabled individuals within the meaning of the ADA, group the potential types of discrimination into three broad categories: (1) failing to reasonably accommodate an employee’s disability; (2) screening out qualified individuals with disabilities; or (3) posing “disability-related inquiries” or seeking information that qualifies as “medical examination,” before giving the candidate a conditional offer of employment. The guidance concludes by providing employers with promising practices to be followed when assessing job applicants and employees with AI tools.

The EEOC provides several examples of how the above three ADA violations could be implicated. For example, if an employer administers a test through computer software, it risks violating the ADA if it fails to offer extended time or an alternative version of a test, such as one that is compatible with accessible technology (like a screen reader) as a reasonable accommodation to those who need it on account of their disability. Similarly, employers may run afoul of the law if AI and other tools result in lower scores or assessment results for individuals with disabilities.

The EEOC recommends several promising practices for employers when using AI tools, such as: training staff to recognize and process requests for reasonable accommodations as quickly as possible; informing job applicants and employees that reasonable accommodations are available for individuals with covered disabilities; ensuring that AI tools only measure abilities or qualifications that are truly necessary for the job; and confirming, before purchase, with AI vendors that the AI tool does not ask individuals questions likely to elicit information about a disability.

The DOJ’s Guidance

Entitled “Algorithms, Artificial, and Disability Discrimination in Hiring,” the DOJ’s guidance, available here, similarly explains how algorithms and AI intelligence can lead to disability discrimination in hiring, particularly with respect to reasonable accommodations and screen-outs.

The DOJ’s guidance provides various examples of the types of technological tools that employers are using and the ways in which such tools can discriminate in failing to reasonable accommodate or screening out disabled applicants. The guidance also provides recommendations to employers on ADA-compliant practices, such as providing and implementing clear procedures for requesting reasonable accommodations.

Implications For Employers

From FY 2020 to FY 2021, ADA cases increased fairly significantly, and they now represent 36% of all charges filed with the EEOC. As these types of claims continue to rise, businesses should be aware of the specific ways in which technological advancements like AI tools can lead to disability discrimination charges and lawsuits. This is especially important for businesses that continue to grow — thereby requiring increased efficiency in the hiring process — in the midst of a global pandemic where remote work (and use of digital platforms) have become the norm.