By Jennifer A. Riley and Alex W. Karasik

Seyfarth SynopsisThis week the U.S. Court of Appeals for the Seventh Circuit issued its long-awaited decision in Cothron v. White Castle Sys., No. 20-3202, 2021 U.S. App. LEXIS 37593 (7th Cir. Dec. 20, 2021), on whether claims asserted under Sections 15(b) and 15(d) of the Illinois Biometric Information Protection Act (“BIPA”) accrue only once upon the initial collection or disclosure of biometric information, or each time a private entity collects or discloses biometric information.  In lieu of answering the question, upon Plaintiff’s request, the Seventh Circuit certified the issue to the Illinois Supreme Court.

This ruling is a major development in the BIPA class action landscape, as the Illinois Supreme Court’s forthcoming ruling will likely have a major impact on statute of limitations defenses and damages calculations.

Case Background

Plaintiff alleged that shortly after she began working for White Castle in 2004, White Castle introduced a system that required employees to scan their fingerprints to access pay stubs and work computers.  Based on White Castle’s use of that system, Plaintiff alleged that White Castle violated Sections 15(b) and 15(d) of the BIPA.  Section 15(b) provides that a private entity may not “collect, capture, purchase, receive through trade, or otherwise obtain” a person’s biometric data without first providing notice to and receiving consent from the person.  Section 15(d) provides that a private entity may not “disclose, redisclose, or otherwise disseminate” biometric data without consent. Plaintiff brought a class action asserting these claims.

White Castle moved for judgment on the pleadings, arguing that the suit was untimely since the claim accrued in 2008 when the plaintiff’s first fingerprint scan occurred after the BIPA went into effect  Id. at 2.  Plaintiff countered that every unauthorized finger-print scan amounted to a separate violation of the statute, so a new claim accrued with each scan.  As such, Plaintiff argued that the lawsuit was timely for the scans within the limitations period.

The District Court rejected White Castle’s “one time only” theory of claim accrual and denied the motion.  Id.  However, the District Court found the question close enough to warrant an interlocutory appeal under 28 U.S.C. § 1292(b).  During the appeal, Plaintiff thereafter asked the Seventh Circuit to certify the question to the Illinois Supreme Court.

The Seventh Circuit’s Ruling

The Seventh Circuit agreed to Plaintiff’s request to certify the question to the Illinois Supreme Court, and directed it to answer the following question:  “Do section 15(b) and 15(d) claims accrue each time a private entity scans a person’s biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?”  Id. at *18-19.

White Castle argued that the District Court erred in denying its motion for judgment on the pleadings for two reasons.  First, White Castle invoked a special accrual principle applicable in cases involving defamation and other privacy torts known as the single-publication rule.  Second, White Castle argued that the Illinois Supreme Court’s reasoning in Rosenbach v. Six Flags 129 N.E.3d 1197, 1200 (Ill. 2019), actually pointed to the opposite conclusion, i.e., that Plaintiff was “aggrieved” only by the initial violations of sections 15(b) and 15(d).  Id. at 10.  The Seventh Circuit held that while White Castle offered “a plausible reading of the statute,” the relevant statutory language “does not clearly say that a claim accrues only once.”  Id. at 14.

Further, the Seventh Circuit opined that White Castle’s “one-and-done theory makes sense if we accept that subsequent collections or disclosures of biometric data do not work a harm that the Act seeks to prevent. And more importantly, focusing on what it means to be ‘aggrieved’ by a violation of the statute gives this theory a plausible hook in the statutory text.”  Id. at 14-15. However, the Seventh Circuit also observed that White Castle’s “theory also has some notable weak spots. The premise — two violations aren’t worse than one — may simply be wrong.”  Id.

Accordingly, the Seventh Circuit held that “the practical implications of either side’s interpretation, to the extent that Illinois courts would weigh them, do not decisively tilt one way or the other.”  Id. at 16.  The Seventh Circuit thus certified this issue to the Illinois Supreme Court.

Implications For Employers

Given that the BIPA statute does not have an explicit statute of limitations, the issue of claim-accrual may be dispositive for many pending and future BIPA class actions.  Further, the viability of recovering for each individual scan (as opposed to only the first scan) could have major implications for damages calculations.  Accordingly, employers should closely monitor this Illinois Supreme Court’s review of this case.

By Gerald L. Maatman, Jr.

Seyfarth Synopsis: Happy Holidays to all of our loyal readers of the Workplace Class Action Blog! Our elves are busy at work this holiday season in wrapping up our start-of-the-year kick-off publication – Seyfarth Shaw’s Annual Workplace Class Action Litigation Report. We anticipate going to press in early January, and launching the 2022 Report to our readers from our Blog.

This will be our 18th Annual Report, and the biggest yet with analysis of over 1,560 class certification rulings from federal and state courts in 2021. The Report will be available for download as an E-Book too.

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 . . . 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.”

The 2022 Report will analyze rulings from all state and federal courts – including private plaintiff class actions and collective actions, and government enforcement actions –  in the substantive areas of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act, and the Class Action Fairness Act of 2005. It also features chapters on EEOC pattern or practice rulings, state law class certification decisions, and non-workplace class action rulings that impact employers. The Report also analyzes the leading class action settlements for 2020 for employment discrimination, wage & hour, and ERISA class actions, as well as settlements of government enforcement actions, both with respect to monetary values and injunctive relief provisions.

With the country continuing to battle COVID-19 this year, workplace class action litigation took some interesting and unexpected turns.

Information on downloading your copy of the 2022 Report will be available on our blog in early January. Happy Holidays to everyone!

Explosion, Fire, Forest, NatureBy Gerald L. Maatman, Jr.

 Seyfarth Synopsis: On an annual basis the American Tort Reform Association (“ATRA”) publishes its “Judicial Hellholes Report.” The Report focuses on litigation issues in state court systems and challenges for corporate defendants in the fair and unbiased administration of justice. The ATRA recently published its 2021-2022 Report and California is identified as the most disadvantageous jurisdiction in the country for corporate defendants – a copy is here and the executive summary is here.

The Judicial Hellholes Report is an important read for corporate counsel facing class action litigation because it identifies jurisdictions that are generally unfavorable to defendants. The Report defines a “judicial hellhole” as a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants. The Report is a “must read” for anyone litigating class actions and making decisions about venue strategy.

The 2021 Hellholes

In its recently released annual report, the ATRA identified 8 jurisdictions on its 2021 hellholes list – which, in order, include: (1) California (with the plaintiffs’ bar taking advantage of unique California laws like the Private Attorney General Act); (2) New York City (particularly regarding Americans With Disabilities Act accessibility claims and an activist attorney general battling climate change with energy companies), (3) Georgia; (4) Philadelphia, which fell from the number 1 spot last year (especially in the Philadelphia Court of Common Pleas and the Supreme Court of Pennsylvania), (5) Illinois (especially Cook, St. Clair, and Madison counties and regarding asbestos litigation and Illinois Biometric Information Privacy Act class actions), (6) Louisiana (including deceptive lawsuit advertising practices and coastal litigation), (7) St. Louis, Missouri, and (8) South Carolina (particularly in asbestos litigation).

According to the ATRA’s analysis, these venues are less than optimal for corporate defendants and often attract plaintiffs’ attorneys, particularly for the filing of class action lawsuits. Therefore, corporate counsel should take particular care if they encounter a class action lawsuit filed in one of these venues.

The 2022 “Watch List”

The ATRA also included 5 jurisdictions on its “watch list,” including Florida (the ATRA noted that Florida has been making strides to improve its liability climate, however, the trial bar is still able to capitalize on liberal judges and rulings in this jurisdiction), Colorado, Texas (a newcomer to the list, added because of its prohibition on introducing evidence about different products and dissimilar accidents), Maryland (due to unstable medical malpractice climate and backlog of asbestos lawsuits), and Minnesota (dropping from the Hellholes list for the first time in three years, mostly due to COVID-19 inactivity rather than any reforms).

In addition, the ATRA recognized that several Courts made significant positive improvements this year, and 20 states created laws protecting against meritless claims brought in connection with the COVID-19 pandemic.

Implications For Employers

The Judicial Hellholes Report dovetails with the experience of employers in high-stakes workplace class actions, as California, New York, Georgia, Pennsylvania, Illinois, Louisiana, Missouri, and South Carolina are among the leading states where Plaintiffs’ lawyers file employment discrimination and wage & hour class actions. Many of these jurisdictions are also becoming a hotbed for privacy and accessibility-related lawsuits. These jurisdictions are linked by class certification standards that are more plaintiff-friendly and by generous damages recovery possibilities under state laws.

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.