We are pleased to present our latest vlog featuring Jennifer Riley and Alex Karasik, members of Seyfarth’s Biometric Privacy Class Action Team, with their thoughts, analysis, and practical guidance on workplace privacy laws and regulations affecting employers in Illinois, New York City, California, and elsewhere in the United States. Join our panel of experts for a discussion on BIPA and similar privacy legislation, as well details on the recent spike in BIPA-related class action litigation, the biggest settlements seen so far, and information for employers on biometric compliance. Be on the lookout for our forthcoming Class Action Privacy Primer and webinar for in-depth coverage of biometric privacy laws and issues, including trends, filing numbers, proposed legislation, and upcoming decisions to watch, due out early next year.

By Matthew J. Gagnon and Sarah K. Bauman

Seyfarth Synopsis: On November 17, 2021, the EEOC updated its COVID-19 technical assistance resources to add guidance on pandemic-based employer retaliation and interference.  The updated guidelines clarify the rights of employees who engage in EEO protected activity.  Key for employers are the numerous examples of what the EEOC deems retaliation in this specific context.  Notably, this update is also consistent with the Commission’s recent stated objective (previously discussed here) of broadening its outreach and improving its technology for purposes of promoting effective communication and understanding of the U.S. workforce. Employers would be well served to review the new guidance.

COVID-19 Technical Assistance Generally

The EEOC’s COVID-19 technical assistance has explained and synthesized on a rolling basis the applicability of the federal anti-discrimination laws to the COVID-19 pandemic.  The technical assistance seeks to inform employees of their rights with respect to such laws while addressing employer concerns stemming from the pandemic.  Presently consisting of 13 sections (available here), this assistance program addresses issues such as confidentiality of medical information (Section B), hiring and onboarding (Section C), return to work (Section G), and vaccinations (Section L).  For example, the Commission clarifies that employers may not direct at-risk applicants, such as those who are 65 or older or pregnant, to postpone their start date or revoke an offer of acceptance.  Employers may, however, choose to allow telework or discuss the option of a postponed start date.  In sum, the technical assistance provides valuable guidance to employers on how to balance necessary COVID-19 precautions with employees’ rights to be free from workplace discrimination.

Recent Update On Retaliation

The EEO laws, such as Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act (“ADA”), prohibit employers from retaliating against employees for engaging in “protective activity” — i.e., asserting their rights under such laws.  Protected activity generally takes many forms, the most typical being an employee’s complaint to a supervisor about workplace harassment, being a witness to such harassment and reporting it on the victim’s behalf, or filing a charge or lawsuit against the employer.  Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity, such as termination, denial of a promotion or benefits, or involuntary transfers.  To be actionable, the employer’s response must be a result of the protected activity.

Additionally, the ADA specifically prohibits not only retaliation, but also “interference” with an individual’s exercise of ADA rights.  For example, employers may not coerce, intimidate, or threaten an employee who seeks to exercise his or her rights under the ADA.

In addition, available here), the EEOC sets forth several scenarios, specific to the COVID-19 context, which constitute retaliation in violation of federal anti-discrimination laws.  For example, a supervisor may not give a false negative job reference to punish a former employee for making an EEOC complaint or refuse to hire an applicant because of the applicant’s EEOC complaint against a prior employer.  The EEO laws also prohibit retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated.  Further, employers may not, for example, transfer an employee to a less-desirable role for requesting continued telework as a disability accommodation after a workplace reopens.

The Commission also explains that requests for accommodation are protected activity even if the individual is not legally entitled to an accommodation.  In other words, employers may not retaliate against an employee if that employee requests an accommodation but the employee’s medical condition, for instance, is not ultimately deemed a disability.  Such protected activities could come in the form of requesting to modify one’s protective gear (like a mask) so that it can be worn with religious garb, or requesting to be exempt from an employer’s vaccination requirement for religious reasons.

Implications For Employers

The Commission has stated that retaliation is the most frequently alleged form of discrimination in EEOC charges and has been for many years.  That said, employers should be aware of the specific circumstances that could give rise to such claims during these unprecedented times.  Increased efforts should be geared not only towards minimizing the health-risks of COVID-19, but also towards protecting their employees from discrimination derived from pandemic-related issues.  Doing so could significantly reduce an employer’s potential for liability under the EEO laws.

By Gerald L. Maatman, Jr., Christopher J. DeGroff, and Alex W. Karasik

Seyfarth Synopsis:  On November 16, 2021, the EEOC released its Agency Financial Report (“AFR”) for Fiscal Year 2021. The AFR is a data compilation regarding the EEOC’s financial health, initiatives, and guiding principles. This year’s edition marks the third version of the publication, following the release of the inaugural AFR in FY 2019.

The AFR is a “must read” for employers. It is an important guide to how the EEOC spent its budget in FY 2021, thereby providing a useful roadmap for the Commission’s strategic direction and litigation enforcement priorities in FY 2022. 

A Decline In Monetary Recoveries

As we previously reported here, FY 2021 represented a return to form for the EEOC following a year of transition, stemming from leadership changes and the COVID-19 pandemic.  While lawsuit filings surged, especially at the end of the fiscal year in September, the EEOC’s monetary recoveries dropped by $51 million, from a record setting $534.4 million in FY 2020 to approximately $484 million in FY 2021.  This more closely resembled the $486 million recovered in FY 2019.

However, the amount recovered through mediations, conciliations, and settlements increased from $333.2 million in FY 2020 to approximately $350.7 million in FY 2021, nearly mirroring the $354 million total recovered in FY 2019.  The $350.7 million total was recovered on behalf of 11,067 victims of employment discrimination in the private sector and state and local governments.  The EEOC also announced that more than $100 million was recovered on behalf of 2,169 federal employees and applicants.  The AFR also noted that the EEOC recovered $34 million for 1,920 individuals as a direct result of litigation resolutions, a sharp decline from the $106 million total in FY 2020 and $39.1 million in FY 2019.

Prioritizing Alternative Dispute Resolution

With the pandemic lingering into FY 2021, the EEOC continued its steadfast commitment to Alternative Dispute Resolution (“ADR”) programs, including virtual mediation and conciliation proceedings.  In FY 2021, the EEOC successfully resolved 41.1% of its conciliations, and 51.7% of those that were resolved included claims relative to involved one or more Strategic Enforcement Plan priority areas.  The EEOC conducted 6,644 private sector mediations, resulting in $176.6 million in benefits to charging parties.  This represented a significant increase from the $156.6 million that was recovered in mediations during FY 2020.  In addition, 639 federal sector mediation resulted in $8.4 million in recoveries for federal employees and applicants.

Other Key Developments And Initiatives

After the EEOC’s backlog of pending charges was reduced in FY 2019 and FY 2020, the backlog endured a slight 2.0% increase in FY 2021, going from 41,951 charges to 42,811 charges. Nonetheless, the Commission frequently communicated with the workforce in FY 2021, handling more than 383,500 calls from the public and more than 52,000 e-mails, a 40% increase in volume over FY 2020.  The EEOC reduced federal sector hearings inventory for the fourth consecutive year, as well as reducing the number of federal sector appeals that were more than 500 days old.

In line with the workforce’s rapid technological evolution, the EEOC made substantial technological improvements in FY 2021.  The Commission upgraded its data collection and analytics tools, which the EEOC indicated will facilitate data-driven decision making.  Two new web-enabled tools were launched, including “EEOC Explore” and “Annual Report Dashboard,” which are designed to provide user transparency into EEOC enforcement data and statistics.

Finally, despite pandemic-related restrictions for live events, the EEOC was highly active in the employment community.  The Commission conducted more than 2,325 outreach events for more than 254,830 individuals nationwide.  Those included 313 outreach events related to COVID-19, which reached 38,827 individuals.  In addition, the EEOC hosted 186 outreach event related to LGBTQ+ matters, which had 19,208 attendees.  Partnering with organizations that work with vulnerable workers, the EEOC conducted 649 outreach events that reached 105,943 attendees.  The EEOC also held its first-evert, all virtual public hearing to explore workplace civil rights implications of the COVID-19 pandemic, which was attended by 2,000 people.

Implications For Employers

As the workforce has adapted to the pandemic, the EEOC reciprocated this transition by continuing to enhance its virtual ADR program and use of data-driven analytics to guide its processes.  The AFR’s data illustrates that while overall monetary recoveries declined in FY 2021, the EEOC is getting back on track, and gearing up for an active 2022 and beyond.

We will continue to monitor trends and developments in the EEOC’s mission, including the types of cases that are filed and how the agency chooses to fight those lawsuits in court. As we do every year, we look forward to providing you an in-depth look at those trends and developments in the months to come.

By Andrew L. Scroggins and Alex W. Karasik

Seyfarth Synopsis:  While businesses have shifted their operations to digital platforms over the last few decades, the COVID-19 pandemic has greatly accelerated the transformation of the workplace. One area where employers have looked to increase the efficiency of their hiring processes is through the use of artificial intelligence. The EEOC has been paying attention to this trend as well, and on October 28, 2021, the Commission announced an initiative to ensure that artificial intelligence (AI) and other emerging tools used in hiring and employment decisions comply with the federal civil rights laws that the agency enforces. It behooves employers to understand and heed the Commission’s new initiative.

Artificial Intelligence In The Employment Setting

Businesses are routinely looking for new and improved ways to source, screen, and on-board talented employees. The era of written applications dropped off in person by candidates has given way to electronic tools that can include online job postings, web-based applications and questionnaires, computer-aided screening tools, and video conference interviews and presentations. Innovative employers may use keyword searches and predictive algorithms – sometimes created in-house and other times licensed through vendors – to help target and rank candidates best suited to their needs. Employers facing the challenges of the tight labor market may see artificial intelligence as a way to bring unique efficiencies to the hiring process.

Of course, while the tools for hiring may be evolving, the guardrails set by employment laws remain in place. And that means oversight by the EEOC can be expected.

The EEOC’s Announcement

At an external event on October 28, 2021, EEOC Chair Charlotte A. Burrows announced the EEOC’s intent to more closely scrutinize this potential area for discrimination. Burrows acknowledged both the potential benefits and challenges at hand: “Artificial intelligence and algorithmic decision-making tools have great potential to improve our lives, including in the area of employment. At the same time, the EEOC is keenly aware that these tools may mask and perpetuate bias or create new discriminatory barriers to jobs. We must work to ensure that these new technologies do not become a high-tech pathway to discrimination.” Burrows’ comments follow recent comments by fellow EEOC Commissioner Keith Sonderling. On October 20, 2021, Sonderling gave a speech in New York (and tweeted more broadly later) that “highlighted the potential #cybersecurity and #privacy concerns employers must be aware of when using #AI to make employment decisions.” As a thought-leader in this space, Sonderling also has written articles and given statements to other publications on the topic. Those public remarks from EEOC Commissioners appointed by different administrations confirm the Commission’s intent to focus on this area.

The EEOC’s announcement explains that the, “initiative will examine more closely how technology is fundamentally changing the way employment decisions are made. It aims to guide applicants, employees, employers, and technology vendors.” Burrows added that, “While the technology may be evolving, anti-discrimination laws still apply,” and perhaps most importantly for employers, “Bias in employment arising from the use of algorithms and AI falls squarely within the Commission’s priority to address systemic discrimination.”  Id.

The EEOC laid out five prongs to its initiative: (1) establish an internal working group to coordinate the agency’s work on the initiative; (2) launch a series of listening sessions with key stakeholders about algorithmic tools and their employment ramifications; (3) gather information about the adoption, design, and impact of hiring and other employment-related technologies; (4) identify promising practices; and (5) issue technical assistance to provide guidance on algorithmic fairness and the use of AI in employment decisions.  Id.  The EEOC indicates these plans build off work it has been doing in this area since 2016.  Id.

Implications For Employers

When the Commission declares an area to be a systemic discrimination priority, employers should take heed. Employers who utilize artificial intelligence, algorithmic decision-making tools, and other automated processes should evaluate their use to ensure no resulting bias. Likewise, when considering third party vendors, employers should ask what steps have been taken to ensure that the tools are compliant with employment. And during EEOC investigations, employers should be on the alert for requests that suggest the EEOC is interested in taking a closer look at the use of these tools. In sum, as business practices evolve with the technology, so too does the EEOC in its enforcement priorities.

By: Matthew J. Gagnon and Tyler Z. Zmick

Seyfarth Synopsis: Following the March 8, 2021 Executive Order establishing the White House Gender Policy Council, on October 22, 2021 the White House released the first-ever U.S. Government National Strategy on Gender Equity and Equality. The EEOC contributed to the Strategy and supports its full implementation, suggesting that gender-related issues – including the gender wage gap – may be among the Commission’s top priorities in its FY 2022 enforcement agenda.

As part of President Biden’s March 8, 2021 Executive Order 14020 establishing the White House Gender Policy Council (see here), on October 22, 2021 the White House released the first-ever U.S. Government National Strategy on Gender Equity and Equality (available here).

The Strategy has three main sections. Section One establishes guiding principles undergirding the strategy to advance gender equity and equality. Section Two outlines the following ten interconnected priorities: (1) economic security; (2) gender-based violence; (3) health; (4) education; (5) justice and immigration; (6) human rights and equality under the law; (7) security and humanitarian relief; (8) climate change; (9) science and technology; and (10) democracy, participation, and leadership. Section Three elaborates on the whole-of-government effort that is required for implementation, ensuring that a focus on gender is mainstreamed across the work of the federal government.

Strategy On Improving Economic Security And Accelerating Economic Growth

The Strategy Paper’s “economic security” priority includes subsections on “Promoting Economic Competitiveness by Advancing Women’s Employment in Well-Paying Jobs” and “Addressing Persistent Gender Discrimination and Systemic Barriers to Full Workforce Participation.” Under the Strategy Paper, the White House will “ensure that women have the support they need to enter, stay, and advance in the labor force, and encourage their access to well-paying, good quality jobs,” “ensure that women have a free and fair choice to join a union and that domestic workers receive the legal benefits and protections they deserve,” and “seek increased pay for jobs that are disproportionately held by women by pursuing an increase in the minimum wage and the elimination of the tipped minimum wage and the subminimum wage for all workers, including those with disabilities.”

Furthermore, to close the gender wage gap in the U.S., the White House will “work to strengthen laws prohibiting wage discrimination on the basis of gender, race, and other characteristics, and . . . increase resources for enforcement,” “promote pay transparency, taking steps to increase analysis of pay gaps on the basis of gender, race, and other factors, and outline plans to eliminate these disparities,” “pursue policies to eliminate reliance on prior salary history in compensation decisions, which can perpetuate and compound the effects of prior discrimination,” and “support policies to prohibit discrimination against pregnant and parenting workers.” To eliminate harassment and other forms of workplace discrimination, the White House will support “increasing transparency and accountability by ending forced arbitration and mandatory nondisclosure agreements that prevent workers from pursuing their day in court and by strengthening prevention efforts to create a work environment where all workers can thrive.”

Section III (“Implementation”) requires each federal agency to establish at least three goals to advance the Strategy’s objectives, and detail the plans and resources needed to achieve their goals. Specifically, “agencies should identify, under the auspices of their three priority goals: (i) the gender gaps they aim to close; (ii) outcome measures; and (iii) budgetary, staff, and other needs to achieve targeted objectives.” To ensure effective implementation of the Strategy Paper, the White House will also “embark on a government-wide effort to strengthen data collection and analysis and close gender data gaps.”

EEOC “Supports Full Implementation” Of White House Strategy

The EEOC issued a press release (see here) the same day the Strategy Paper was released, noting the Commission’s contribution to the White House’s Strategy Paper and supporting its full implementation. EEOC Chair Charlotte A. Burrows stated:

The COVID-19 pandemic’s disparate impact on women generally and women of color in particular makes it more urgent than ever to ensure that gender is not a barrier to economic security and opportunities in the workplace. This strategy’s goals to promote pay equity, eliminate harassment and other forms of employment discrimination, and support the nation’s caregivers are all important EEOC priorities.

As previously noted (here), the EEOC’s litigation enforcement activity showed signs of recovering in fiscal year 2021 following the Commission’s down year in FY 2020 – forecasting a busy year in FY 2021 for the EEOC and employers. The EEOC’s public support for full implementation of the White House’s National Strategy on Gender Equity and Equality indicates that issues relating to gender equity may be priorities for the Commission in FY 2022.

By: Gerald L. Maatman, Jr.Christopher J. DeGroff, Matthew J. Gagnon, and Alex W. Karasik

Seyfarth Synopsis: Following the EEOC’s down 2020 fiscal year, in which the Commission made significant changes to many of its programs in the midst of the global COVID-19 pandemic and leadership changes, in FY 2021 the EEOC’s litigation enforcement activity showed signs of recovering from the lingering pandemic. The number of cases filed by the EEOC increased in a respectable climb back to pre-pandemic levels, forecasting a busy year ahead for the Commission and employers in FY 2022.

For the most of the last 25 years, the EEOC’s Fiscal Year ended with a surge in last-minute lawsuits. August and September filings often eclipsed the entire rest of the year combined.  Following a “down year” in FY 2020 where only 33 lawsuits were filed in September, the finish in FY 2021 represented a return to form, with 59 lawsuits filed during September (similar to the 52 filed in September of FY 2019, and 84 in FY 2018). At the time of publication of this blog posting, the EEOC filed 114 total cases in FY 2021, which includes 111 merits lawsuits and 3 subpoena enforcement actions. This total number of filings is more than last year’s total of 101 lawsuits (see here), but still less than the last two years prior (see here and here).

Cases Filed By EEOC District Offices

In addition to tracking the total number of filings, we closely monitor which of the EEOC’s 15 district offices are most actively filing new cases. Some districts tend to be more aggressive than others, and some focus on different case filing priorities. The following chart shows the number of lawsuit filings by EEOC district office.

The most noticeable trend of FY 2021 is the filing dip in some key regions compared to past years. The New York district office fell from 12 filings in FY 2020 to 6 filings in FY 2021. The California district offices in San Francisco and Los Angeles, which combined for 16 new filings last year, declined in FY 2021, coming at a combined total of 13 new filings, including San Francisco’s fall from 10 to 6. The Indianapolis district office, which had a huge year in FY 2020 with a nation-leading 13 filings, returned to the middle of the pack with only 4 filings this year.

On the other hand, leading the pack in new filings was the Philadelphia district office with 14 filings. Chicago’s filings shot up from 3 filings last year to 9 filings this year, and the Dallas district office made a similarly large jump from 5 filings from FY 2020 to 11 filings in FY 2021. The Birmingham district office also made a noticeable move from 5 filings in FY 2020 to 9 filings in FY 2021. Overall, following a substantial decline in litigation enforcement activity in FY 2020, the increase filings in FY 2021 suggests the EEOC is back on track at most of its regional offices across the country.

Analysis Of The Types Of Lawsuits Filed In FY 2021

Each fiscal year we also analyze the types of lawsuits the EEOC files, in terms of the statutes and theories of discrimination alleged, in order to determine how the EEOC is shifting its strategic priorities. Those numbers at least – 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 2020 and 2019. Title VII cases once again made up the majority of cases filed, making up 62% of all filings (on par with the 60% in FY 2020 and 60% in FY 2010). ADA cases also made up a significant percentage of the EEOC’s filings, totaling 36% this year, a moderate uptick from 30% in FY 2020. There was only one age discrimination case filed in FY 2021, down seven from FY 2020.

February 2021 Release Of Enforcement Statistics

On February 26, 2021, the EEOC released its comprehensive enforcement and litigation statistics for FY 2020 (available here). 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. When the FY 2021 figures are released in the coming months, we do not expect there to be much departure from this trend.

However, monetary benefits recovered by the Commission in FY 2020 surged. 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.  When the final figures are released for FY 2021, we anticipate there will be a similar eye-popping dollar amount of recoveries.

January 2021 Release Of Annual Performance Report

On January 19, 2021, the EEOC released its second-ever Annual Performance Report (“APR”) for FY 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.

In what can be considered a potential explanation for the decline in lawsuits, 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.

When this data is later released for FY2021, given the shutdowns in the courts coupled with the surge of virtual mediations, we anticipate the number of mediations and recoveries will remain significant.

Implications For Employers

FY 2020 was a year of whirlwind change at the EEOC as a result of the pandemic and leadership changes, and the FY 2021 aftermath resulted in strikingly similar results. Now that the new leadership regime and their structural changes are finally settling in to a world that remains hampered by a lingering global pandemic, employers find themselves once again looking out over an uncertain future of the employment landscape. It remains to be seen how new priorities and strategies will impact their businesses in FY 2022, especially when many businesses are shifting to remote work structures that may limit some of the common catalysts of workplace discrimination.

We will continue to monitor these changes closely and keep readers apprised of developments. Our annual comprehensive analysis of trends in EEOC litigation will be published at the end of the calendar year. As always, we will keep abreast of EEOC data amid the ever-changing political milieu, and share lessons learned from FY 2021 to carry employers through the new year.

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

 

Surgery, Hospital, Medical Professionals, DoctorBy Gerald L. Maatman, Jr., Jennifer Riley, and Michael L. DeMarino

Seyfarth Synopsis: As the COVID-19 era continues to unfold, many employers have adopted back-to-work polices that include mandatory vaccinations for their employees.  In Beckerich, et al. v. St. Elizabeth Medical Center, et al., Case No. 21-105-DLB-EBA (E.D. Ky. Sept. 24, 2021), the Defendants, a hospital group, did just that.  In response, Plaintiffs, a group of healthcare workers, filed a lawsuit seeking a preliminary injunction prohibiting Defendants from enforcing the policy. The U.S. District Court for the Eastern District of Kentucky denied Plaintiffs’ bid for a preliminary injunction because Plaintiffs could not demonstrate that any of the factors that courts consider in favor of injunctive relief.  Notably, Plaintiffs could not demonstrate a likelihood of success on their underlying constitutional, ADA, and Title VII claims. 

This case is a must read for employers that have adopted, or are considering adopting, a mandatory COVID-19 vaccination policy.  This case highlights the theories of relief Plaintiffs are likely to seek and demonstrates the importance of maintaining a process for requesting and granting reasonable accommodations to avoid claims of discrimination.

The Decision

In this case, the employer maintained a vaccination policy that required its healthcare employees to either receive a COVID-19 vaccine or submit a request for a medical exemption or an exemption for a sincerely held religious belief. Employees who did not comply with this policy would be subject to termination. Id. at 2.

Plaintiffs sought a preliminary injunction on the ground that the employer’s vaccination policy infringed on their constitutional rights and failed to provide religious and medical accommodations required under the American With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act (“Title VII”).  Id. After considering the traditional preliminary injunction factors – the likelihood of success on the merits,  irreparable harm, substantial harm to others, and the public interest – the Court held that Plaintiffs were not entitled to injunctive relief.  Id.

The Court concluded that Plaintiffs could not demonstrate a strong likelihood of success on any of their claims, the first factor for consideration when determining whether to grant a preliminary injunction. With respect the constitutional claim, the Court concluded that the defendant employer was not a “state actor” and thus its actions were not subject to Fourteenth Amendment scrutiny.  As such, the likelihood of success for Plaintiffs’ constitutional claims was  “virtually nonexistent.” Id. at 6.

The Court reached a similar conclusion concerning Plaintiffs’ ADA claim. The Court noted that the ADA generally requires employers to provide a process by which a disabled employee can seek a medical exemption to a COVID-19 vaccination requirement. Id. at 7.  Plaintiffs’ strongest claim, according to the Court, was that the employer “corrupted this process.” Id. Nonetheless, the Court concluded that Plaintiffs had not shown that the employer failed to provide the necessary medical accommodations to the vaccination requirement, noting that the employer granted exemptions or deferments to 75 percent of the applicants. Id.

Plaintiffs’ Title VII claim was unavailing for similar reasons. Indeed, the Court noted that none of the Plaintiffs in the case had been denied a religious exemption, and in fact, 11 of the 40 Plaintiffs had been granted one. Id.  As such, the Court concluded that Plaintiffs were unable to establish the third element of their Title VII claim, which requires discharge or discipline from their employer.  And, similar to Plaintiffs’ ADA claim, the Court relied on the fact that the employer granted 57 percent of the requested religious exemptions. Id. at 11-12.

The Court also determined that the next preliminary injunction factor – irreparable harm – weighed against granting a preliminary injunction. The Court reasoned that there was no irreparable harm because no Plaintiff was forcibly vaccinated and, to the extent there is a violation of the ADA or Title VII,  loss of employment, or emotional distress, Plaintiffs would be entitled to monetary relief.

Finally, regarding the last two factors – substantial harm to others and public interest – the Court grappled with the competing views of the parties regarding the efficacy and safety of the vaccinations, as well as the tension between “private equities and public equities, which have both been prominently raised in this case.”  Id. at 17.  Relying on Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905), a Supreme Court decision that upheld a state-imposed vaccination and the penalty of imprisonment, the Court reasoned that “being substantially less restrictive than the Jacobson mandate, and being enacted by a private actor, Defendants’ policy is well within the confines of the law, and it appropriately balances the public interests with individual liberties.”  Id.

On the whole, the Court held that Plaintiffs failed to state a viable legal theory in support of injunctive relief because each of the required factors, individually and collectively, weighed against the denial of injunctive relief.

Implications For Employers

Although the Court did not reach a decision on the merits of Plaintiffs’ underlying claims, this case distills the legal and factual issues involved in challenging and defending an employer’s mandatory COVID-19 vaccination policy.  While constitutional claims are likely a non-starter against private employers, ADA and Title VII claims may have merit depending on how employers carry out their policies.

Employers should take steps to insulate themselves from such claims by ensuring that they adopt a consistent process by which employees can seek religious and medical exemptions.  Also, carefully documenting accommodation requests can go a long way – as it did in this case – in demonstrating that the employer has provided reasonable accommodations to avoid claims of discrimination.

By Gerald L. Maatman, Jr., Thomas Ahlering, Alex Karasik, and Sarah Bauman

Seyfarth Synopsis: On September 20, 2021, the Seventh Circuit ruled in Fernandez v. Kerry, Inc., No. 21-1067 (7th Cir. Sept. 20, 2021), that a cause of action filed under the Illinois Biometric Information Privacy Act (“BIPA”) by employees of Kerry, Inc., was preempted by Section 301 of the Labor Management and Relations Act because the claims were premised on an alleged failure by the employer to obtain consent before requiring their employees to scan their fingerprints, and the issue of consent was covered by a collective bargaining agreement. As a result, the Seventh Circuit held that the class action claims could not be pursued by the employees against Kerry, Inc. in federal court.

The Fernandez ruling exemplifies that certain employee disputes implicating the BIPA will be dismissed if the parties intended such disputes to be resolved by the employer and the employees’ collective bargaining representative.

Case Background

Five former employees of Kerry, Inc. (“Plaintiffs”) filed a class action under the BIPA, alleging that Kerry, Inc. failed to obtain their consent before requiring Plaintiffs to scan their fingerprints for timekeeping purposes.  Id. at 1-2.  Defendant moved to dismiss on the grounds that the suit was preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. §185 (“LMRA”), because the resolution of the claims depended on interpretation of collective bargaining agreements between Defendant and the union that represented Plaintiffs while employed with Kerry.  Id. at 2.  Pursuant to preemption principles, federal law prevents states from interfering in relations between private employers and unions.  Id.  The district court agreed with Defendant and dismissed the lawsuit. Plaintiffs thereafter filed an appeal with the Seventh Circuit.

The Seventh Circuit’s Decision

In reviewing the district court’s ruling, the Seventh Circuit relied primarily on its decision in Miller v. Southwest Airlines Co., 926 F.3d 898, 903-05 (7th Cir. 2019).  There, it held that provisions in the Railway Labor Act that parallel Section 301 prohibit employees from “bypassing their employers about how to clock in and out.”  Id. at 2.  The Miller decision further “doubted that Illinois has attempted to give unionized workers a privilege to bargain directly with employers — after all, the [BIPA] permits an employee’s ‘legally authorized representative’ to consent to the collection and use of biometric information.”  Id. (citing 740 ILCS 14/15(b)).  Relying on Miller, the Seventh Circuit held that where an employer asserts that a union has consented, any dispute regarding the accuracy of such consent must be resolved between the employer and the union.  Id. at 2.  And if any employer “plausibly contends that the union[] has consented,” that “is enough to prevent suits by individual workers.”  Id. at 3.

The Seventh Circuit rejected Plaintiffs’ argument that the Railway Labor Act is “more preemptive” than the LMRA, recognizing that the U.S. Supreme Court “has equated the two” in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994).  Id. at 3.  The Seventh Circuit similarly rejected Plaintiffs’ suggestion that a permissive topic (i.e., with respect to the LMRA, clocking in and out) of bargaining need not be subject to the union’s representation.  Id.  Rather, it held that “a certified union is each worker’s exclusive representation on collective issues,” and thus covers disputes regarding timekeeping.  Id.

In conclusion, the Seventh Circuit held that as in Miller, Defendant “invoke[d] a management rights clause,” and whether “‘unions did consent to the collection and use of biometric data, or perhaps grant authority through a management-rights clause, is a question for [decision under the agreement].  Similarly, the retention and destruction schedules for biometric data, and whether [employers] may use third parties to implement timekeeping . . . are topics bargaining between unions and management.’”  Id. at 4 (quoting Miller, 926 F.3d at 903).  Accordingly, the Seventh Circuit explained it would be impossible to litigate a dispute about how an employer uses biometric information without asking whether the union has consented on the employees’ behalf — as such, states “cannot by-pass the mechanisms” of federal law and allow direct negotiation or litigation between workers and their employers.  Id. 

Finally, the Seventh Circuit rejected Plaintiffs’ request to send the dispute to arbitration to the extent that the collective bargaining agreements at issue did not allow workers to demand arbitration if the union forgoes the procedure, and the union had not requested arbitration.  Id.  For these reasons, the Seventh Circuit upheld the district court’s decision and dismissed the case.  Id.

Takeaways For Employers

The ruling in Fernandez v. Kerry doubles down on the Seventh Circuit’s refusal to litigate employee-initiated BIPA class actions where the issue of consent is covered by a collective bargaining agreement.  Accordingly, if sued under the BIPA, employers should consider this ruling to assess whether their employees’ claims are premised on a dispute that is covered by an applicable collective bargaining agreement.  Doing so could significantly limit an employer’s liability for damages, and provide another mechanism for seeking dismissal on the pleadings.

By Gerald L. Maatman, Jr., Thomas E. Ahlering, Alex W. Karasik, and Sarah Bauman

Seyfarth Synopsis: On September 17, 2021, the Illinois Appellate Court issued its highly-anticipated decision in Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563 (1st Dist. Sept. 17, 2021), on whether a one-year or five-year statute of limitations period applies to claims under the Biometric Information Privacy Act, 740 ILCS 14/15 (“the BIPA”) The Illinois Appellate Court’s holding was two-fold — a one-year limitations period governs actions brought under sections 15(c) and (d) of the BIPA, while claims under sections 15(a), (b), and (e) are subject to the catch-all five-year limitations period.

The ruling in Tims is sure to be appealed to the Illinois Supreme Court. That being said, it has the potential to be a game-changer for BIPA class action litigation, and likely the plaintiffs’ bar will aggressively push for the five-year statute of limitations when pursing class-wide relief.

Case Background

In March 2019, Plaintiff (“Plaintiff”) filed a class action complaint claiming that Black Horse Carriers, Inc.’s (“Defendant”) timekeeping practices, which involved the scanning and storing of employees’ fingerprints, violated the BIPA.  Id. at ¶ 5.  The first count of the complaint asserted that Defendant violated section 15(a) of the BIPA in failing to institute, maintain, and adhere to a retention schedule for biometric data.  Id. at ¶ 7.  The second and third counts alleged that Defendant violated sections 15(b) and (d), respectively, by obtaining their employees’ biometric data and disclosing it to third-parties without first obtaining their written, informed consent.  Id.  Although Plaintiff did not allege claims under sections 15(c) or (e), those provisions prohibit the sale of a person’s biometric data for a profit (740 ILCS 14/15(c)), and impose a duty of reasonable care in storing and protecting biometric data from disclosure (id. at 14/15(e)).

In June 2019, Defendant filed a motion to dismiss on the ground that Plaintiff filed the complaint outside of the applicable statute of limitations period.  Id. at ¶ 8.  Defendant argued that the one-year limitations period prescribed by 735 ILCS 5/13-201 applied to Plaintiff’s claims because the BIPA’s main concern is privacy protection.  Plaintiff countered that the five-year catch-all limitations period prescribed by 735 ILCS 5/13-205 covered Plaintiff’s claims, in that a “publication element” was required for a claim to be covered by section 13-205 — an element which, according to Plaintiff, the BIPA clearly lacked.  Id. ¶ 9.

In September 2019, the trial court denied the motion to dismiss.  Id. at ¶ 11.  It held that section 13-201 did not apply because Plaintiff alleged a violation of the Act itself, rather than a general violation of privacy.  Id.  As such, the trial court opined that a five-year limitations period applied to Plaintiff’s claims.  Id.  The trial court did not address the issue of when Plaintiff’s claims accrued — upon Plaintiff’s first finger scan vs. Plaintiff’s last finger scan — because the complaint was timely filed under either scenario.  Id. at ¶ 10.

Defendant then sought an appeal to the Illinois Appellate Court for the First District.

The Appellate Court’s Decision

At issue in the appeal was the question of whether a one or five-year statute of limitations period applies to the BIPA.  First, the Appellate Court noted the “sole concern” in determining which limitations period applies was the intent of the legislature.  Id. at ¶ 19.  Given the BIPA’s silence on the issue, the Appellate Court turned to the language of section 13-201, which establishes a one-year limitation period for “[a]ctions for slander, libel, or for publication of matter violating the right of privacy.”  Id. at ¶  20.  Relying on its decision in Benitez v. KFC National Management Co., 305 Ill. App. 3d 1027, 1033 (1999), the Appellate Court explained that Illinois trial courts have recognized two types of privacy interests in the right to privacy — secrecy and seclusion — and held that section 13-201 applies only to those claims premised on the right to secrecy, such as false-light publicity and the appropriation of the name or likeness of another.  Id. at ¶  21.  The Appellate Court also noted the language of section 13-205, which “provides for a five-year limitation period for, in relevant part, ‘all civil actions not otherwise provided for.’”  Id. at ¶ 22.

In addition, the Appellate Court highlighted the various “duties” enforced by the BIPA, citing the Illinois Supreme Court’s landmark decision in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, ¶ 1 (2019), which held in pertinent part that a violation of the BIPA causes an individual’s  “biometric privacy [to] vanish[] into thin air.”  Id. at ¶ 25 (citations and quotations omitted).  The Appellate Court reasoned that at this point, “[t]he precise harm the Illinois legislature sought to prevent is then realized.”  Id.

Applying these principles to the question at issue, the Appellate Court concluded that the section 13-201 one-year limitations period covers only privacy actions in which publication is an element or an “inherent part of the action.”  Id. at ¶ 29.  The Appellate Court did not address the legislative history of the BIPA, because it could answer the certified question “based on the relevant statutory language, which is ambiguous.”  Id. at ¶ 35.  Indeed, the Appellate Court reasoned that the legislature did not intend for section 13-201 to include all privacy actions, in that it “would have written something like ‘actions for slander, libel or privacy,’” or used “broad language rather than the narrower ‘for publication.’”  Id.

Accordingly, the Appellate Court found that the section 13-201 one-year statute of limitations governs only those actions brought under sections 15(c) and (d) of the BIPA.  Id. at ¶¶  30, 32.  It explained that the BIPA imposes various duties that are separate and distinct from one another.  Id. at ¶ 30.  While each of the duties set forth under sections (a)-(e) “concern privacy,” the Appellate Court reasoned that a private entity could violate sections (a), (b), or (e) “without having to allege or prove that the defendant . . . published or disclosed any biometric data.”  Id. at ¶  31.  Thus, any such action would not be one “‘for publication of matter violating the right of privacy.’”  Id. (quoting 735 ILCS 5/13-201).

Conversely, the Appellate Court held that the “publication or disclosure of biometric data is clearly an element of an action under” sections 15(c) and (d).  Id. at ¶ 32.  It opined that, to the extent (c) and (d) prohibit the disclosure or sale of biometric data, these sections “entail[] publication, conveyance, or dissemination of such data.”  Id. at ¶ 32.

In sum, the Appellate Court held that a one-year limitations period pursuant to 13-201 governs actions under sections 15(c) and (d) of the BIPA, while a five-year statute of limitations pursuant to section 13-205 applies to sections 15(a), (b), and (e).  Id. at ¶ 35.

Takeaways For Employers

While the ruling in Tims v. Black Horse Carrier has the potential to significantly limit Illinois employers’ liability under the BIPA in some respects, the plaintiffs’ bar will likely use this decision to continue to push for a five-year damages period relative to sections 15(a), (b), and (e).    At the same time, given the stakes at issue, a further appeal to the Illinois Supreme Court is virtually certain. Nonetheless, employers should be extra cautious in their compliance with those requirements that do concern “publicity” — i.e., sections 15(a), (b), and (e).  They should consider establishing policies that enable employees to  give their express, written consent before scanning their fingerprints or otherwise furnishing their biometric data to their employers.  Further, employers should ensure that such biometric data is destroyed upon an employee’s termination or resignation with the company; have a widely-accessible policy regarding the destruction and retention of biometric information; and exercise heightened caution when storing any biometric data within their possession.

 

 

 

By Gerald L. Maatman, Jr. and Sarah K. Bauman

Seyfarth Synopsis: On August 30, 2021, in Massone, et al. v. Washington, No. 20-CV-7906, 2021 WL 3863081(S.D.N.Y. Aug. 30, 2021), the U.S. District Court for the Southern District of New York dismissed a lawsuit brought by the U.S. Security Officers Union (the “Union”) on behalf of its members (“CSOs”) against the U.S. Marshals Service and contractor Centerra Group LLC (“Defendants”), alleging that Defendants failed to implement adequate COVID-19 precautions.  The Court held that the President of the Union lacked standing to sue because the complaint sought merely monetary damages — rather than equitable relief — on behalf of individual CSOs allegedly harmed by the protocol. The ruling exemplifies that monetary recovery for workplace COVID-19-related injuries is better suited for an individualized lawsuit, unless the relief is sought on behalf of the association itself and is equitable in nature.

Case Background

On September 25, 2020, on behalf of approximately 2,200 members, the President of the Union (“Plaintiff”) filed a lawsuit against Defendants, claiming that the COVID-19 precautions in place failed to protect Union members (“CSOs”) from infection. Id. at *1-2. Plaintiff alleged that Defendants failed to properly sterilize the working and common areas in federal courthouses and failed to provide adequate personal protective equipment, resulting in COVID-related deaths, sickness, and quarantines of certain CSOs. Id. at *1. Plaintiff also alleged that Defendants retaliated against various CSOs who complained, by making threats of disciplinary action, such as suspension and permanent termination. Id. The complaint sought monetary damages on behalf of the CSOs who suffered COVID-19-related injuries or were retaliated against by the Defendants. Id. at *4.  Defendants moved to dismiss for lack of standing and for failure to state a claim.  Id. at *1.

The Court’s Decision

The Court granted the Defendants’ motion to dismiss.  Id.  at *3.  The Court did not reach the merits of the case because it found that Plaintiff lacked both organizational and representative standing to sue.  Id.  The Court honed in on Plaintiff’s alleged injuries for alleged monetary damages suffered only by (1) those CSOs who were allegedly exposed to or contracted COVID-19, and (2) those CSOs who allegedly were retaliated against by Defendants.  Id. at *4.  According to the Court, “[n]either of these is an injury to the Union itself, and thus neither can support a finding that the Union” had standing.  Id.

In making this determination, the Court recognized that Plaintiff brought suit in his capacity as President of the Union.  Id. at *3.  Accordingly, the Court held that Plaintiff was required to demonstrate that the Union had either organizational (also referred to as associational) standing to sue in its own right or representative standing to sue on behalf of its members.  Id.  Recognizing that an association must meet the same standing test that applies to individuals, the Court concluded that Plaintiff failed to demonstrate associational standing.  Id. at *3-4.  The Court agreed with the Defendants’ argument that the injuries alleged were sustained by individual CSOs, not the union itself.  Id. at *3.  The Court reasoned that, contrary to the Plaintiff’s contention, it was “not enough that the defendant allegedly [] engage[] in a wrong that affects each union member individually and equally.”  Id. at *4.  Rather, Plaintiff was required to an allege an injury sustained by the Union as a whole, and it failed to do so.  Id. 

The Court also analyzed whether Plaintiff sufficiently asserted representative standing on behalf of the Union.  Id.  The Defendants argued that Plaintiff could not satisfy the test for organizational standing because the Complaint exclusively sought monetary damages for injuries allegedly suffered by “unidentified, individual CSOs.”  Id.  The Court agreed with Defendants’ position.  Id.  at *5.  Relying on U.S. Supreme Court authority and a number of decisions from within the Second Circuit, the Court recognized the widely-accepted jurisprudential routine of “declin[ing] to find representative standing when a plaintiff brings a claim on behalf of its members for monetary damages.”  Id.  Since Plaintiff merely sought damages for particular CSOs, rather than “a declaration, injunction, or some form of prospective relief,” the Court found the Plaintiff also lacked representative standing and granted the Defendants’ motion to dismiss.  Id. at *4-5.  The Court reasoned that any injures the CSOs suffered were “peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof.”  Id. at *5.

Finally, the Court also denied Plaintiff’s request to amend the lawsuit to address the standing issues, but held that Plaintiff could refile the request so long as it attached an amended complaint that cured the deficiencies of the original.  Id. 

Takeaways For Employers

The ruling in Massone v. Washington, demonstrates that unions (and other organizations) will have a difficult time suing employers in federal court for monetary damages allegedly suffered by their individual members/employees.  As the COVID-19 pandemic continues, it is important for employers to be aware of the standing limitations address in Massone, when faced with similar lawsuits.  This holds true not only for New York employers, but also all employers located within the United States, as emphasized by the Court’s reliance on several U.S. Supreme Court decisions in dismissing the case for lack of standing.