By Karla Grossenbacher, Thomas E. Ahlering & Andrew R. Cockroft

Seyfarth Synopsis: Both Portland and New York City have followed the example set by Illinois’ Biometric Information Privacy Act (“BIPA”), a statute that has spawned thousands of cookie-cutter class action suits regarding the alleged collection of biometric information. Like BIPA, these new ordinances create a private right of action for individuals that could subject local businesses to potentially millions of dollars in liability. Businesses in these cities should carefully review these new ordinances as well as any technology they be using that has the potential to collect biometric information.

For several years now, businesses operating in Illinois have become well accustomed to the myriad lawsuits being filed, and harsh and unwavering penalties being imposed, under Illinois’ Biometric Information Privacy Act (“BIPA”). Despite the toll on businesses imposed by the ever-increasing class action and appellate litigation brought on by the statute, other jurisdictions have enacted similar legislation.

As of January 1, 2021, Portland, OR and New York City have become the newest jurisdictions to pass laws placing restrictions on the collection and/or use of biometric technology by businesses. Although the Portland and New York City ordinances differ from each other (as well as BIPA) in significant ways, they each share a common feature: a private right of action. Accordingly, these new laws have the potential to bring on a rash of high-stakes class action litigation in each of these cities.

The specifics of each ordinance are detailed below:

Portland, OR

Portland’s ordinance bans private entities from using any “facial recognition technology” in any “places of public accommodation,” with limited exceptions, such as when it is necessary to comply with federal, state, or local laws, for individuals to access their smart devices (like facial recognition on iPhones) and for use in social media applications.

The ordinance creates a private right of action “against the Private Entity in any court of competent jurisdiction for damages sustained as a result of the violation or $1,000 per day for each day of violation, whichever is greater and such other remedies as may be appropriate,” as well as attorneys’ fees to a prevailing party.

While at first reading it may appear that the law only covers the use of facial recognition in public places, the ordinance is not so narrowly drafted. Private entities are subject to the ordinance if they constitute a “place[] of public accommodation,” which is defined in the ordinance to include “any place or service offering to the public accommodations, advantages, facilities, or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise” but excludes “an institution, bona fide club, private residence, or place of accommodation that is in its nature distinctly private.”

Accordingly, if a facility constitutes a “place of public accommodation,” then it could be liable for facial recognition technology employed anywhere in the facility regardless of whether it is public facing. Although a narrower reading of the statute may be more reasonable, courts in Illinois have routinely broadened the scope of BIPA and it is possible Portland courts would do the same.

New York City

New York City’s newly passed biometric privacy legislation has been pending before the city council for several years. Indeed, Seyfarth previously detailed this ordinance while it was still pending legislation.

The ordinance orders that “[a]ny commercial establishment” that collects biometric information from “customers” must disclose such collection “by placing a clear and conspicuous sign near all of the commercial establishment’s customer entrances notifying customers in plain, simple language” that customers’ biometric information is being collected. The ordinance further makes it “unlawful to sell, lease, trade, share in exchange for anything of value or otherwise profit from the transaction of biometric identifier information.”

The law provides that individuals “aggrieved by” a violation of the ordinance may file a private right of action, but places some conditions on this right.

  • If the individual alleges the business collected their biometric information without making the required disclosures, the individual can only initiate a private action if they first provide written notice to the business of their intent to sue and provide the business 30 days to cure the violation by placing clear and conspicuous notice at their establishment. If the business does not cure within 30 days, the individual may sue and recover $500 for “each” violation.
  • If the individual alleges the business shared their biometric information in exchange for something of value or otherwise profited from the “transaction,” then the individual may sue without any prior notice to the business. The individual may recover $500 for “each” negligent violation of this section and may recover $5,000 for “each” intentional or reckless violation of this section.

Only the biometric information of “customers” is protected under the law and the law also makes clear that “‘customer’ means a purchaser or lessee, or a prospective purchaser or lessee, of goods or services from a commercial establishment.”

*****

Businesses in Portland, OR, and New York City should be mindful of these new laws and act accordingly. Such businesses with compliance questions should contact a member of Seyfarth’s Biometric Privacy Compliance & Litigation Practice Group.

 

By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis: The EEOC recently released its enforcement and litigation statistics for Fiscal Year 2020. Notably, the statistics indicate that 2020 saw a dramatic drop in filed charges, with the lowest number of charges filed in over 20 years. For example, despite the #MeToo movement remaining an enforcement priority for the Commission in 2020, the number of gender discrimination charges fell even lower than last year, which was the lowest number since 1997. However, monetary benefits recovered by the Commission in FY 2020 surged. Given the flip of the White House from red to blue and the commitment of the Biden Administration to enhanced enforcement of workplace bias laws, the EEOC’s enforcement data is a “must-read” for all employers.  

On February 26, 2021, the EEOC released its comprehensive enforcement and litigation statistics for Fiscal Year 2020 (available here). In addition to enforcement and litigation activity, the data breaks down charge statistics by allegation and state – showing which charges are being filed and where. The dip in the number of charges that employers saw in 2018 and 2019 continued through 2020, with the number of charges reaching its lowest point since 1997. The prominence of gender discrimination charges seen in 2018 due to the #MeToo movement has all but disappeared, with sex discrimination charges remaining in the fourth-place position and dropping to their lowest number in over 20 years.

Charges Were Down Overall

In total, 67,448 charges were filed in FY 2020, down from 72,675 charges filed in FY 2019 and 76,418 charges that filed in FY 2018. FY 2019 previously saw the fewest charges filed for all fiscal years going back to FY 1997 (the second lowest, 75,428 charges, occurred in FY 2005). Putting these numbers in perspective, the number of charges filed exceeded 80,000 per year in every year from FY 2007 until FY 2018, sometimes by wide margins.

Consistent with this overall decline, there was a decrease in almost every category of charges in FY 2020 as compared to FY 2019, with the exception of a modest increase in charges alleging claims under the Americans with Disabilities Act (“ADA”), charges alleging claims of color discrimination under Title VII,  and, most notably, charges alleging claims under the Genetic Information Non-Discrimination Act (“GINA”), which doubled since FY 2019 and reached the highest number of charges filed since the Act was passed in 2008. The categories that decreased the most were race and sex discrimination. That this does not necessarily mean that fewer individuals are reaching out to the EEOC. This dip could be attributed, at least in part, to the agency’s implementation of new charge intake procedures in an effort to increase efficiencies or as a result of the COVID-19 pandemic. The dramatic change in workplace environments could have also contributed to the charge drop.

Texas And Florida Are Still Hot Spots, And Illinois Falls From The Top Five

Looking at the states where the most charges were filed, the hot spots largely remained the same in FY 2020 as in FY 2019 and 2018. Like FY 2019, Texas (with 10.2 % of all charges filed) and Florida (with 8.7%) were the top two states for charges in FY 2020.

Texas and Florida are no surprise, given their relative populations.

But population is still not everything when it comes to charges. For example, Pennsylvania (at number 3) and Georgia (at number 5, behind California) have more charges filed than New York. Notably, Illinois remained out of the top five states this year, at sixth place with 5.5% of all charges filed.

Retaliation Charges Remain Predominate, With Disability Discrimination Charges Remaining At Second

In total, 37,632 retaliation charges were filed with the EEOC in FY 2020. As has been the case for over six years, this made retaliation the most frequently filed charge in FY 2020. Behind retaliation were disability, race, and sex discrimination charges, each alleged in approximately 32%-36% of the charges filed with the EEOC. As the EEOC’s report noted, the percentages total more than 100 because some charges allege multiple bases of discrimination.

Disability discrimination was again the second-most-often alleged theory of discrimination, seeing the highest percentage of charges filed since 1997 at 36.1%. Race discrimination came in a close third. Interestingly, sex discrimination charges (which would include pregnancy discrimination, gender discrimination, and sexual harassment) remained as the fourth most frequently filed charge, which was where it was in FY 2017, despite continued media attention on such issues.

EEOC Saw A Surge in Overall Recoveries

As we reported here, during FY 2020, the EEOC recovered a record amount of $535.4 million on behalf of alleged discrimination victims. By comparison, the EEOC recovered approximately $486 million in FY 2019; approximately $505 million in FY 2018; and approximately $484 million in FY 2017. However, despite the EEOC’s efforts to enhance and improve its mediation and conciliation programs during FY 2020, the amount recovered through mediation, conciliation, and settlement dropped again from $354 million in FY 2019 to $333.2 million in FY 2020. Conversely, litigation recoveries increased from $39.1 million in FY 2019 to $106 million, the highest in 16 years. The EEOC credits this surge in litigation recovery to its resolution of 165 lawsuits in FY 2020 and states that it achieved “favorable results” in approximately 96% of district court resolutions.

Implications For Employers

Despite the dips in the overall number of charges, the EEOC’s enforcement efforts should not be considered as waning. Employers should treat these statistics as an early warning system that shows where the Commission’s enforcement efforts may be heading next – to that end, it is notable that retaliation and disability discrimination issues are firmly in the forefront, particularly in light of the issues caused by the COVID-19 pandemic. By continuing to set the culture in their workplaces with sound human resources practices, employers can guard against these issues and avoid hefty settlements and litigation with the EEOC.

 By Gerald L. Maatman, Jr. and Thomas E. Ahlering

Seyfarth Synopsis: Following in the footsteps of New York, Maryland recently introduced a standalone biometric information privacy bill, House Bill 218, that mirrors Illinois’ highly litigious Biometric Information Privacy Act (740 ILCS § 14/1 et seq., “BIPA”) in many respects.  Most notably, as presently drafted, Maryland’s proposed bill, like Illinois’ BIPA, provides for a private right of action, statutory penalties, and plaintiffs’ attorneys’ fees – which has spawned thousands of class actions in the Land of Lincoln.  If enacted, the Maryland bill would become only the second biometric privacy act in the United States to provide a private right of action and plaintiffs’ attorneys’ fees for successful litigants.  This represents a significant development for companies and employers operating in Maryland in light of the explosion of class action litigation that has arisen from Illinois’ BIPA in recent years.  Moreover, the recent introduction of such bills in Maryland and New York signal that states are increasingly modeling proposed biometric privacy litigation on Illinois’ BIPA.  Employers must take notice and monitor such developments to avoid being subject to a class action lawsuit – particularly as the purposes for utilizing such technology continue to expand.

Details of Maryland’s Proposed Legislation

Like New York’s proposed legislation that mirrors Illinois’ BIPA in many respects which we previously blogged about here, Maryland has proposed a similar bill entitled “Commercial Law – Consumer Protection – Biometric Identifiers and Biometric Information Privacy.”  The proposed law, like Illinois’ BIPA, prohibits private entities from capturing, collecting, or storing a person’s biometrics without first implementing a policy and obtaining written consent, implements standards of care for the handling of biometrics, and prohibits disclosure of biometrics without consent.  Most notably, the proposed bill provides for identical remedies to BIPA, whereas an aggrieved person under the proposed bill will be afforded a private right of action with the ability to recover $1,000 for each negligent violation, $5,000 for each intentional or reckless violation, and reasonable attorneys’ fees and costs. 

However, Maryland’s proposed legislation does differ from Illinois’ BIPA in a couple of respects.  For example, the definition of “biometric identifiers” is arguably even broader, extending to “data of an individual generated by automatic measurements of that individual’s biological characteristics such as fingerprint, voiceprint, genetic print, retina or iris image, or any other unique biological characteristic that can be used to uniquely authenticate the individual’s identity.”  Moreover, the proposed legislation also clarifies that the broader definition of “biometric information,” which includes “any information regardless of how it is captured, converted, stored, or shared based on an individual’s biometric identifier used to identify an individual,” does not include “information derived from an item or a procedure excluded under the definition of a biometric identifier,” such as photographs or information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under HIPAA.  Unlike Illinois’ BIPA, the proposed Maryland legislation also clarifies that a policy regarding retention/destruction of biometrics need not be made “publicly available” if the policy “applies only to the employees of the private entity,” and “is used solely for internal company operations.” 

Implications For Companies

Companies that are already familiar with the Illinois BIPA are undoubtedly aware of the threats that the proposed Maryland biometric privacy bill poses.  While the Illinois BIPA was enacted in 2010, it has seen an explosion in class action litigation over the past few years brought by employees and consumers alleging that their biometric data was improperly collected for timekeeping, security, and consumer transactions.  In fact, between 2015 and 2020 alone, there were over 1,000 Illinois BIPA class action complaints filed across the United States, with additional new filings continuing to be initiated every day. 

It remains to be seen if Maryland’s biometric privacy bill will pass as drafted.  However, if enacted as it is currently drafted, companies in Maryland can also expect to experience an onslaught of biometric privacy litigation.  Compliance is key, and there no better time to think about your company’s biometric privacy compliance than right now.  Companies with Maryland operations that are utilizing anything that could be considered biometrics, for any reason, should consider audit their practices, policies, and procedures to avoid potentially costly exposure in the event that the bill ultimately passed.   Businesses with compliance questions should contact a member of Seyfarth Shaw’s Biometric Privacy Compliance & Litigation Practice Group.

While this proposed bill was only recently introduced, Seyfarth Shaw will provide immediate updates on its progress when available.

By: Gerald L. Maatman, Jr., Ian Morrison, Brett Bartlett, and Kerry Friedrichs

Seyfarth Synopsis: Please join us on Tuesday, February 23rd for the 17th Annual Workplace Class Action Litigation Report webinar! Register now to secure your spot and review the workplace class action developments of 2020 and what employers should expect for 2021.

In Seyfarth’s 17th Annual Workplace Class Action Litigation Report Webinar, speakers will provide an interactive analysis of 2020 class action decisions and emerging trends in 2021. The developing trends in workplace class action litigation continue to evolve, morph, and adjust to the modern realities of the American workplace. These trends require corporate counsel to plan and re-order their compliance strategies to stay ahead of and mitigate these risks and exposures throughout the year.

Click here to register and attend!

The Report’s author, Gerald L. Maatman, Jr., along with Kerry Friedrichs, Ian Morrison, co-chair of our ERISA class action group, and Brett Bartlett, co-chair of the Wage & Hour group, will cover this changed national landscape in workplace class action litigation.

Date/Time:

Tuesday, February 23, 2021
1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

Speakers:

Gerald L. Maatman, Jr., Partner, Seyfarth Shaw LLP
Brett C. Bartlett, Partner, Seyfarth Shaw LLP
Kerry M. Friedrichs, Partner, Seyfarth Shaw LLP
Ian H. Morrison, Partner, Seyfarth Shaw LLP

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

Seyfarth Synopsis:  In EEOC v. JBS USA, LLC, No. 10-CV-2103, 2021 U.S. Dist. LEXIS 13012 (D. Colo. Jan. 25, 2021), an EEOC-initiated lawsuit alleging a meatpacking engaged in a pattern or practice of discrimination on the basis of race, national origin, and religion, the U.S. District Court in Colorado denied the EEOC’s motion to reconsider the previous dismissal of the EEOC’s pattern or practice claims, thereby rejecting the Commission’s argument that a recent Tenth Circuit decision changed Title VII religious-accommodation law. 

This latest ruling in an 11-year legal battle brings the employer/defendant one step closer to defeating one of the largest pending EEOC pattern or practice of discrimination lawsuits. The latest ruling is instructive for corporate counsel dealing with EEOC litigation issues.

*  *  *

As we have previously blogged about (here, here, here, here, here, here, here, here, and here), the EEOC filed its lawsuit August 30, 2010, alleging a pattern or practice of discrimination on the basis of race, national origin, and religion, as well as raising claims of retaliation.  On August 8, 2011, the Court issued an order bifurcating the case.  Id. at *5.  Phase I of the trial was to address three issues, including: (1) whether defendant engaged in a pattern or practice of unlawfully denying Muslim employees reasonable religious accommodations to pray and break their Ramadan fast from December 2007 through July 2011; (2) whether defendant engaged in a pattern or practice of disciplining employees on the basis of their race, national origin, or religion during Ramadan 2008; and (3) whether defendant engaged in a pattern or practice of retaliating against a group of black, Muslim, Somali employees for engaging in protected activity in opposition to discrimination during Ramadan 2008. The Court presided over a 16-day trial for Phase I from August 7 to August 31, 2017.  Id. at *6.

On September 24, 2018, the Court issued its Phase I Findings.  Id.  It found that: (1) while defendant had denied Muslim employees a reasonable religious accommodation to pray during Ramadan (other than in 2009 and 2010), the EEOC had not made a requisite showing that any employees suffered a materially adverse employment action as a result of defendant’s policy denying unscheduled prayer breaks; (2) the EEOC had failed to prove that defendant’s disciplinary actions during Ramadan 2008 were motivated by a discriminatory animus; and (3) the EEOC had failed to demonstrate that defendant’s discipline of employees during Ramadan 2008 was for a retaliatory purpose rather for engaging in a work stoppage.  As a result, the Court dismissed the EEOC’s Phase I pattern or practice claims.  Id. at *7.  The EEOC moved the Court to reconsider.

The Court’s Decision

The Court denied the EEOC’s Second Motion for Partial Reconsideration of the Phase I Findings of Fact and Conclusions of Law.  The EEOC had asked the Court to reconsider its findings pursuant to the Tenth Circuit’s recent en banc decision in Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784 (10th Cir. 2020), a disability-accommodation case brought under the ADA.  The EEOC argued that Exby-Stolley was an intervening change in Title VII religious-accommodation law.

First, the Court opined that Exby-Stolley was an ADA case where the jury was instructed that, in order for the plaintiff to make out an ADA accommodation claim, the plaintiff had to show that she had suffered an adverse employment action.  Id. at *8-9.  In holding that the ADA did not require that plaintiff prove that she suffered an adverse employment action, the Tenth Circuit compared the elements of an ADA accommodation claim with a religious accommodation claim brought under Title VII.  Exby-Stolley explained that, while ADA claims do not require that a plaintiff show an adverse employment action, in Title VII religious-accommodation cases, the prima facie case requires the employee to show among other things that “he or she was fired or not hired for failure to comply with the conflicting employment requirement.”  Id. at *9 (quoting Exby-Stolley 979 F.3d at 739).

Applying Exby-Stolley here, the Court explained that in its Phase I Findings, and as the Tenth Circuit stated in Exby-Stolley, the adverse employment action requirement for Title VII religious-accommodation claims, “is not new.”  Id. at *10.  The Court supported its position by quoting Exby-Stolley, and noted that, “In fact, the Tenth Circuit explained that the fact ‘[t]hat a disparate treatment claim — under Title VII or the ADA — would require an adverse employment action is wholly unremarkable.’” Id. at * (quoting Exby-Stolley, 9 F.3d at 793 n.3).

Accordingly, the Court held that the law concerning religious accommodation claims under Title VII remained the same as it was before the Exby-Stolley decision, and therefore denied the EEOC’s second motion for reconsideration.

Implications For Employers

This ruling represents the latest chapter in the seemingly never-ending EEOC v. JBS saga, where the employer once again received a favorable ruling from the Court.  In essence, the Court rejected the EEOC’s attempt to apply post-dismissal case law to change the Court’s mind about its previous ruling.

For employers who are mired in year-long litigation battles with the EEOC, this ruling illustrates that one of the Commission’s strategies will be to closely monitor dockets and seek to overturn prior adverse rulings when new case law precedent provides a window for that opportunity.  Employers would be prudent to similarly monitor court rulings – even after a court dismisses part of a case – to stay ahead of the EEOC’s anticipated tactics.

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

By Jennifer A. Riley and Michael L. DeMarino

Seyfarth Synopsis: The ABA’s “anti-contact” rule prohibits attorneys from communicating with represented parties concerning the subject matter of the case. In Moore, et al., v. Club Exploria, LLC, No. 19-CV-2504, 2021 WL 260227 (N.D. Ill. Jan. 26, 2021), the court sanctioned defense counsel for calling plaintiff’ s cell number as part of investigating whether the number was associated with another individual in defense of plaintiff’s claim that the Defendant caused telemarketing calls to be made to his phone without consent in alleged violation of the Telephone Consumer Protection Act. (“TCPA”).  While defense counsel dodged most of the sanctions that plaintiff sought, the Court ordered defense counsel to pay the attorneys’ fees of plaintiff’s counsel associated with bringing the motion for sanctions.

This case is a valuable reminder of the ethical boundaries surrounding contacting represented parties in general and in class actions in particular – even in the absence of intentional bad faith conduct. When in doubt whether conduct amounts to an ethical violation, the rules require a conservative, rather than aggressive approach.

Background

In Moore, et al., v. Club Exploria, LLC, No. 19-CV-2504, 2021 WL 260227 (N.D. Ill. Jan. 26, 2021), plaintiff George Moore alleged in the putative class action that the Defendant caused telemarketing calls to be made to his phone without consent, in violation of the TCPA. After its initial investigation, the Defendant believed that a vendor had consent from someone named Donald Jorgensen to make calls to the phone number at issue, and its investigation later revealed Jorgensen was recently associated with the number.

As a result, defense counsel called Moore’s alleged phone number to test the research indicating that Donald Jorgensen, and not Moore, would answer the call. Moore answered the call and defense counsel asked to speak to “Don” at which point Moore indicated there was no one named “Don,” and asked who was calling and if “Don” had recently provided him with his number. Defense counsel identified himself and responded affirmatively. Moore, then identified himself as George Moore and asked which company defense counsel was with, and he responded that he was not with any company and was just “an individual.” The call concluded shortly thereafter.

Moore then informed his counsel of the phone call and later filed a motion for sanctions asserting that the phone call violated ABA Model Rule 4.2, the so-called “anti-contact” rule, and requested that the Court: (1) disqualify defense counsel; and (2) order defense counsel to produce “all of its work product concerning Don Jorgensen’s alleged use or ownership of the phone number at issue.” Id. at 3.

The Decision

The Court concluded that defense counsel violated the ABA’s “anti-contact” rule. “While his phone call with Moore was brief,” the Court observed, defense counsel “purposefully called a number that was repeatedly disclosed in this litigation as Moore’s phone number, without the consent of Moore’s counsel.” Id.  While defense counsel may not have had actual knowledge prior to the call that he calling Moore, the Court opined that he nevertheless “knew, prior to initiating the call, that there was a significant risk that Moore would answer a call placed to the subject phone number.”  Id. at 8. The Court thus concluded that defense counsel should have proceeded with “caution” rather than the “aggressive approach that results in an ethical violation.” Id. at 16. Ultimately, the Court concluded that the conduct of defense counsel violated ABA Model Rule. 4.2.

Although the Court found that the call violated the ethics rule, it concluded that disqualification and production of work product were “too severe of remedies, given the lack of prejudice, the quickness of the phone call, and the absence of any intentional bad faith conduct.” Id. at 23. Instead, the Court held that the attorneys fees’ and costs award “strikes the appropriate balance and is proportional” to defense counsel’s conduct. Id.

Implication For Employers

This decision in Moore is a reminder to proceed with caution when conducting an investigation that might implicate contact with represented parties. This particularly true in employment cases where represented parties may be presently employed by a defendant and inadvertently contacted. Employers should exhaust all other avenues of discovery before considering to initiate contact with a potentially represented party and even then should proceed conservatively.

By Gerald L. Maatman, Jr.

Seyfarth Synopsis: In its recent review of Seyfarth’s 2021 Annual Workplace Class Action Litigation Report, EPLiC Magazine called the Report a “must-have resource,” the “only publication of its kind,” and that no corporate counsel “should be without it.”

We are humbled and honored by the recent review of our 2021 Annual Workplace Class Action Litigation Report by Employment Practices Liability Consultant Magazine (“EPLiC”) – the review is here.

EPLiC said: “The Report is a must-have resource for legal research and in-depth analysis of employment-related class action litigation.” Further, the article noted that “No practitioner who deals with employment claims, whether as an underwriter, broker, risk manager, consultant, or attorney should be without it.”

EPLic stated: “The encyclopedic 850-plus-page 2021 Seyfarth Shaw Annual Workplace Class Action Litigation Report insightfully examines and analyzes an array of class action decisions. In addition, the federal cases examined in the Report are indexed by federal circuit – an invaluable feature that further enhances the Report’s utility. The Report is also available in e-Book format and is fully searchable.”

 We are often asked – “How does it happen – how do you produce your Annual Workplace Class Action Litigation Report”?

The answer is pretty simple – we live, eat, and breathe workplace class action law 24/7.

Each and every morning we check the previous day’s filings of EEOC lawsuits and workplace class actions relative to employment discrimination, ERISA, and wage & hour claims. We do so on a national basis, both in federal courts and all 50 states. Then we check, log, and analyze every ruling on Rule 23 certification motions and subsidiary issues throughout federal and state trial and appellate courts. This is also done on a national basis.  We put this information in our customized database; we analyze and compare the rulings on class action issues and Rule 23 topics, and then we prepare an analysis of each and every decision.

Our class action practitioners contribute to the process of building the database and analyzing decisional law on a daily basis.

We have being doing this on a 24/7 basis for over 17 years, and publishing the Annual Workplace Class Action Litigation Report in the first week of January of each calendar year.

The result is a compendium of workplace class action law that is unique in its analysis, scope, and comprehensiveness.

Thanks for the kudos EPLiC – we sincerely appreciate it!

We look forward to making the 2022 Report more comprehensive than ever, and including important information regarding the impact of COVID-19 on workplace class action litigation.

By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On January 19, 2020, the EEOC released its second-ever Annual Performance Report (“APR”) for Fiscal Year 2020 (see here). In essence, it is a report card on the Commission’s activities, including its record relative to enforcement litigation. That said, 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 future targets of heightened enforcement activity. It is a “must read” for all employers.

This is only the second year that the EEOC has published an Annual Performance Report. The EEOC previously published one annual Performance Accountability Report (“PAR”) shortly after the end of its fiscal year. Starting last year, the PAR was bifurcated into two separate reports. The first report was published in November 2020, entitled “Fiscal Year 2020 Agency Financial Report” (“AFR”). It was focused on the Commission’s financial health, overall initiatives, and objectives (see more here). The second report is this month’s publication, the APR, which discusses the agency’s Strategic Plan and performance results. The APR is an important tool for employers to gauge the Commission’s enforcement priorities and trends.

The APR is organized around the three Strategic Objectives outlined in the EEOC’s Strategic Plan for Fiscal Years 2018-2022 (“Strategic Plan”). The Strategic Plan should not to be confused with the EEOC’s Strategic Enforcement Plan – which specifically deals with litigation and other enforcement mechanisms. Those enforcement issues encompass just one of the three strategic objectives outlined in the Strategic Plan. The other two objectives are: (1) preventing employment discrimination and promoting inclusive workplaces through education and outreach; and (2) achieving organizational excellence increased its focus on robust outreach to vulnerable workers.

Significant Drop In Total Filings And Systemic Case Filings

The APR reports that the EEOC filed 93 merits lawsuits, including 69 suits on behalf of individuals, 12 non-systemic suits with multiple victims, and 13 systemic suits in FY 2020. This is down from 144 merits lawsuits filed in FY 2019, and 199 merits lawsuits filed in FY 2018.

“Systemic” suits are defined as lawsuits having “a broad impact on an industry, company or geographic area.” In FY 2019, the Commission filed 17 systemic suits; in FY 2018, it filed 37 systemic suits; in FY 2017 it filed 30; and in FY 2016 it filed 18. The 13 that were filed in FY 2020 is therefore another drop as compared to previous years. Systemic lawsuits accounted for 13.9% of all merits suits filed in FY 2020, and 20.3% of all merits suits on the EEOC’s active docket (a total of 41 systemic lawsuits). The EEOC obtained relief for 25,000 victims of systemic discrimination, amounting to $69.9 million.

Sex Discrimination And Harassment Continue To Dominate The EEOC’s Filings

Despite another drop in total number of filings, the Commission continued its multi-year focus on sex-based discrimination, especially harassment claims. The APR reports that merits filings broke down along the following lines: sex (37), disability (29), retaliation (26), race (13), religion (5), age (7), and national origin (4).  Further, the EEOC filed 33 lawsuits related to workplace harassment in FY 2020, including 24 cases involving claims of hostile work environment based on sex, eight involving claims of hostile work environment based on race, and one involving claims of hostile work environment based on national origin.  Twenty harassment suits were individual cases, 12 were class cases, and one was a systemic case.  Overall, over one-third of all lawsuits filed by the Commission in FY 2020 included allegations of harassment.

The Commission also resolved 62 harassment suits in FY 2020, recovering around $84.4 million for 902 victims of harassment through the EEOC’s litigation program.

The Commission’s increased efforts in both enforcement and prevention demonstrate its lasting commitment to addressing sexual harassment and sex discrimination in the workplace.

A Pivot To Use Of Litigation As A “Last Resort” And ADR Is Now A Heightened Priority

On February 4, 2020, EEOC Chair Janet Dhillon released the Commission’s 2020 priorities indicating that “litigation is truly a last resort,” signaling a shift towards heightened mediation efforts in place of litigation (read more here). The EEOC has also taken steps to significantly limit the litigation authority of its General Counsel (we reported on the EEOC’s recent approval of this change here). The APR echoed the Commission’s 2020 priorities by continuing to focus on its Alternative Dispute Resolution (“ADR”) efforts. During FY 2020, the Commission conducted 6,272 mediations, resulting in $156.6 million in relief to charging parties. Further, 766 federal sector mediations were conducted, reducing the inventory of federal sector disputes. Overall, approximately $333.2 million in relief was recovered through mediation, conciliation, and settlements.

Implications For Employers

The APR and the EEOC’s related publications provide practical insights into the Commission’s priorities amid an changing political climate. Those publications consistently show that combatting workplace harassment and discrimination against vulnerable workers remain top priorities for the agency. Moreover, the Commission’s APR report card reflects the results of the EEOC’s commitment to using litigation as a last resort and its renewed focus on its ADR programs.

The ongoing changes at the Commission are a must-watch for employers as the EEOC continues in its 2021 fiscal year, and we will be tracking the latest developments here.

By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On January 14, 2021, the EEOC approved and issued newly updated procedures regarding its delegation of litigation authority and procedures, as well as its revised procedures for participating in cases as amicus curiae. These changes, first reported by us here, have been long-awaited and are a stunning change to the framework of how EEOC lawsuits get filed against employers.

The purpose of these now-approved procedures appears to be an effort to rein in many of the powers previously held by the EEOC’s General Counsel, and in turn the Regional Attorneys, who previously held considerable discretion over the types of lawsuits that would be filed by the Commission and the legal positions the EEOC would advance. Stated otherwise, it shifts that power and discretion to the five Commissioners themselves.

The new litigation procedures make it clear that it is now the Commissioners, and not the General Counsel, that will make the decisions to commence or intervene in litigation. According to the new procedures, the Commission has the ability to vote on all recommendations to litigate. The new procedures were approved by the Commission in a 3-2 vote.

Additionally, the updated amicus curiae procedures provide, among other requirements, that before the Commission participates as amicus curiae in any case, the General Counsel must submit to the Commission a detailed written memorandum describing the positions they propose to take as amicus curiae and must obtain the Commission’s authorization for all amicus participation at each stage of any judicial proceeding. The new amicus procedures were passed by the Commission in a 5-0 vote.

Implications For Employers

For many years, the EEOC General Counsel and the Commission attorneys in the field appeared to exercise broad discretion over the types of cases the EEOC would file, the theories of law that it would pursue, and the litigation tactics that it would employ. Moreover, since the General Counsel was also encouraged to delegate that authority to Regional Attorneys across the country, the result was a sometimes fragmented, district-by-district approaches to EEOC enforcement litigation. These new procedures bring that authority back to the Commissioners and may indicate a desire for a more cohesive and consistent approach to the Commission’s litigation.

The ongoing changes at the Commission are a must-watch for employers as the EEOC continues in its 2021 fiscal year, and we will be tracking the latest developments here.

By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis: We are once again pleased to offer our loyal blog readers a breakdown of the five most intriguing developments in EEOC litigation in 2020, in addition to a pre-publication preview of our annual report on developments and trends in EEOC-initiated litigation. This year’s book, titled EEOC-Initiated Litigation: 2021 Edition, provides a comprehensive examination of the EEOC’s filings in FY 2020 (from October 2019 through September 2020), and the major decisions handed down this year in pending EEOC litigation.

Every employer should monitor EEOC litigation activity.  It is the surest way to avoid becoming the EEOC’s next target. Each year, Seyfarth Shaw conducts a thorough analysis of all EEOC activity to keep our readers up to date on current trends and, hopefully, provide a peek inside the EEOC’s decision-making process. Our annual report is targeted towards human resources professionals, corporate counsel, and other corporate decision-makers. We hope that it proves useful as they attempt to steer clear of EEOC-initiated litigation in 2021.

This year, we have once again categorized our analysis of substantive developments in line with the EEOC’s strategic priorities. This is the fourth year of the EEOC’s current Strategic Enforcement Plan (“SEP”), which covers Fiscal Year 2017 through 2021. It has been our experience that analyzing developments in EEOC litigation in light of the enforcement priorities set forth in the SEP provides a better understanding of the EEOC’s focus and agenda.

The full publication will be offered for download as an eBook. To order a copy, please click here.

As always, we like to take a moment at the end of one year, and the beginning of the next, to look back at the most intriguing decisions and developments of the year.

Here is our list of the “top five” most intriguing developments of 2020.

A Year Of Change

FY 2020 saw a flurry of activity at the EEOC. Notably, the EEOC made strides to update its conciliation and mediation procedures, voluntarily scaled back some of its own litigation authority, and sought opportunities to collaborate with its fellow federal agencies. On top of these developments, the EEOC also saw substantial change in its leadership, with three new Commissioners (two Republicans and one Democrat) being sworn in. This activity and change in leadership translated to a significant decline in the number of cases filed by the EEOC against employers in FY 2020, with only 101 total cases filed (as compared to 149 in FY 2019 and 217 in FY 2018).

These will be important developments to continue to watch in FY 2021 and beyond. Our analysis of these issues can be found here.

Development #1:  A Definitive Ruling by the U.S. Supreme Court On LGBTQ Employment Rights

Few issues have garnered as much of the EEOC’s attention over the past few years as its efforts to have LGBTQ discrimination recognized as a prohibited form of discrimination under Title VII.  That issue was finally resolved in 2020 by the Supreme Court in the landmark decision of R.G. and R.H. Funeral Home v. EEOC/Bostock v. Clayton County, which decided three cases that touch on these issues. On June 15, 2020, the Supreme Court held that Title VII prohibits discrimination against gay or transgender employees as a form of sex discrimination.  The 6-3 decision authored by Justice Gorsuch represents a significant victory for the EEOC.

In its opinion, the Supreme Court held that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 140 S.Ct. 1731, 1737 (June 15, 2020). The Supreme Court reasoned that because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.

The EEOC has been diligently pursuing this theory of discrimination in the courts for years, resulting in quite a few victories in line with the Bostock decision.  Employers should expect that the EEOC will be even more vigilant in enforcing this new federal workplace protection for the foreseeable future. The full implications of this decision’s impact on the American workforce will have to wait for future developments as Bostock is interpreted and applied in courts across the country. Further analysis of this case can be found here and here.

Development #2:  In Religious Discrimination Law: Accommodations In The COVID-19 Era

In a notable decision involving the COVID-19 pandemic, in EEOC v. Baystate Medical Center, the EEOC alleged that an employer’s policy requiring employees to either receive a flu vaccine, or wear a mask if they have a religious or health-related objection to vaccination, violated Title VII. Case No. 16-CV-30086 (D. Mass. June 15, 2020).  The EEOC contended that the employee declined the vaccination because of her Christian faith. The employer had provided the employee with a mask to wear inside the hospital buildings, but after the employee repeatedly pulled down her mask to speak with people over the phone and in person, the employer suspended and eventually terminated her employment for failure to comply with the policy. In its ruling, the Court opined that the charging party had no religious objection to the mask requirement. Moreover, the Court held that the EEOC failed to present any evidence from which a jury could find that the mask requirement was merely a pretext for its actual intention of forcing individuals to get vaccinated. Developments in this area will be a must-watch for employers in 2021.

Development #3:  Reasonable Accommodations Under The ADA: Increased Scrutiny Of “Direct Threat” Defense

In EEOC v. T&T Subsea, LLC,  the U.S. District Court for the Eastern District of Louisiana considered whether a diver was qualified for his position even though he could not pass a dive physical when he was terminated. 457 F. Supp. 3d 565 (E.D. La. 2020). The employer asserted a “direct threat” defense, arguing that the charging party posed a significant risk to the health or safety of others that could not be eliminated by reasonable accommodation.  The Court denied summary judgment to the employer on that defense because of the existence of “genuine issues of material fact regarding whether [employer] meaningfully assessed [charging party’s] ability to perform his job safely based on the best available objective evidence and reasonably concluded that [charging party] posed a direct threat.”  Id. This case highlights the scrutiny under which the “direct threat” defense has been analyzed by some courts.

Development #4:  Continued Focus On Complex Employment Relationships And Structures

The EEOC has recently put more focus on complex employment relationships and structures in the 21st century workplace, specifically with respect to temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy. For example, in EEOC v. 1618 Concepts, Inc., the U.S. District Court for the Middle District of North Carolina refused to dismiss from a lawsuit two corporate affiliates of the entity that actually employed the charging party. No. 19-CV-672, 2020 WL 87994 (M.D.N.C. Jan. 7, 2020). In that case, a male dishwasher alleged that he had been sexually harassed by a male coworker, that his managers witnessed at least one of those instances of sexual harassment, and that the employer generally was aware of the harassment. The EEOC issued a letter of determination to the charging party’s employer entity and two affiliated entities.

The employer argued that the two entities that were not named in the charge should be dismissed because the failure to name a party in an EEOC charge constitutes a failure to exhaust administrative remedies against that party and a subject-matter jurisdiction defect as to any Title VII claim brought against the unnamed party. The District Court found that the three employer entities named in the lawsuit were closely interrelated; they shared employees, common ownership, common management, and corporate officers.  The District Court also found that each of the employer entities had effective notice of the EEOC’s investigation and therefore could not claim that they had been prejudiced by lack of notice.

Development #5:  Additional Insight Into Interaction Between Title VII And The Equal Pay Act

In EEOC v. First Metropolitan Financial Service, Inc., the U.S. District Court for the Northern District of Mississippi had an opportunity to apply Title VII and the Equal Pay Act (“EPA”) in a way that elucidated their different burdens of proof and burden-shifting schemes. 449 F. Supp. 3d 638 (N.D. Miss. 2020). In the case, the EEOC brought a class action complaint under the EPA and Title VII, alleging that a financial lending company paid female Branch Managers less than male Branch Managers. The employer argued that the two female Branch Managers did not have substantially similar responsibilities as their male Branch Manager comparators because they had been hired to manage a new branch, which had relatively few outstanding loans and therefore less responsibility compared to more established branches.

In its opinion, the Court noted that the two statutes apply different standards for establishing a prima facie case, but nevertheless concluded that “[h]aving found that the Plaintiff successfully established a prima facie case under the Equal Pay Act, the Court also finds that the evidence used under the EPA burden is sufficient to establish a prima facie case under Title VII.”  Id. However, the Court’s opinion reflected critical nuances between the burdens of proof after a prima facie case had been established under each law.

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It is possible that the incoming Biden administration will bring new and significant changes to the EEOC’s enforcement program. But with a Republican-led Commission in charge until 2022, it is difficult to say how quickly the new administration can implement such changes. Against this backdrop of political change, 2021 is also the last year of the current Strategic Enforcement Plan. That could make this year an interesting one in terms of changing perspectives and priorities as the agency decides on a new enforcement path for the next four years. We fully expect that those changes will reveal themselves in the theories the EEOC chooses to advance and the types of cases they file just as much as they will in the EEOC’s official pronouncements. We look forward to keeping our readers apprised of these changes as they occur!