By: Matthew J. Gagnon

Seyfarth Synopsis: On June 15, 2023, the EEOC issued a message from its Chair, Charlotte A. Burrows, for Pride Month that, among other things, highlighted the continuing impact of the Supreme Court’s seminal decision in Bostock v. Clayton County. Bostock held that discrimination on the bases of sexual preference or gender identity are prohibited by Title VII as forms of sex discrimination. This decision promises to have a significant and lasting impact on American workplaces. Chair Burrows’s message leaves little doubt that the EEOC intends to play a significant role in shaping that impact.

On Thursday, June 15, 2023, the EEOC put out a message from its Chair, Charlotte A. Burrows, for Pride Month. The message hailed the importance of the Supreme Court’s recent landmark decision in Bostock v. Clayton County, which held that discrimination on the bases of gender identity or sexual orientation are forms of gender discrimination. The EEOC also highlighted its own role in bringing about that result, linking to a graphic that shows, among other things, the history of its fight for LGBTQ+ rights in the courts. But perhaps the most interesting aspect of the announcement is what it portends about the impact of Bostock into the future.

Bostock is certain to cast a long shadow on the American workplace. Although the basic fact of Title VII’s prohibition of discrimination on the basis of sexual preference and gender identity has been settled, many other questions are left open and unresolved. In a slightly different context, a federal court in Texas described the issue this way: “is the non-discrimination holding in Bostock cabined to ‘homosexuality and transgender status’ or does it extend to correlated conduct—specifically, the sex-specific: (1) dress; (2) bathroom; (3) pronoun; and (4) healthcare practices typical of the LGBTQ community”? Texas v. EEOC, No. 2:21-cv-194-Z, 2022 WL 4835346, at *2 (N.D. Tex. Oct. 1, 2022). That court held that Bostock had not reached those issues.

EEOC Chair Burrows’s Pride Month message leaves little doubt that the EEOC wants—and will have—a seat at the table in determining the outcome of those issues as well. The message notes that the EEOC recently filed four lawsuits “seeking relief for individuals who were discriminated against because of their sexual orientation or gender identity.” One of those lawsuits, for example, seeks relief on behalf of a transgender man who allegedly suffered severe harassment, including “repeated and intentional use of female pronouns when addressing him.” In fact, each of the four lawsuits highlighted by Burrows are premised on a theory of harassment. In many ways, that theory of discrimination cuts straight to the heart of the matter: In the post-Bostock world, what types of speech and conduct are now out of bounds in the American workplace? These and other similar issues are set to be resolved in the coming years through the long process of litigation as these types of cases wind their way through the courts.

In the meantime, the EEOC has other means at its disposal to shape these issues. Burrows’s message also notes that, in addition to using its enforcement authority, the EEOC also “remain[s] committed to robust education and outreach about the Bostock decision.” The message mentions that the EEOC hosted nearly 350 outreach events during the last fiscal year to “educate workers and employers about Bostock and promising practices to promote safe, inclusive, and respectful work environments.” Those educational events do not carry the force of law, but they may point in the direction the EEOC wants these issues to go, and where it will strive to take the country using the power of its enforcement authority.

Implications For Employers The full scope of the impact of Bostock is just beginning to be felt. Many of the issues raised by that decision will be decided by the courts only after years of protracted litigation, meaning it will take time for the full scope of their impact to reveal itself. To make matters worse, the federal judiciary is likely as divided on these issues as the American workforce is. This is amply demonstrated by the decision in Texas v. EEOC. The judge who decided that case is a recent Trump appointee, who has already garnered quite a reputation for issuing conservative and occasionally controversial rulings. One can already see the seeds of circuit splits being planted. Employers will have no choice but to monitor these trends closely and be prepared to adapt quickly. As the prevailing view unfolds over time, employers will likely be called upon often to change their policies and practices in response to frequent changes in the law.

By: Michael D. Jacobsen

Seyfarth Synopsis:  On June 25, 2021, the U.S. Supreme Court issued its pivotal ruling in TransUnion LLC v. Ramirez (“TransUnion”).  As reported here (https://www.workplaceclassaction.com/2021/06/u-s-supreme-court-holds-that-class-members-who-suffer-no-concrete-harm-from-statutory-violations-do-not-have-article-iii-standing-and-cannot-recover/), in TransUnion, the Supreme Court reinforced prior precedent that Article III standing requires a “concrete harm” and that plaintiffs must demonstrate standing with respect to each claim asserted.  “No concrete harm, no standing” famously sums up the Supreme Court’s ruling.  As expected, the impact of TransUnion has been significant, and it is important for companies to be aware of the reverberating implications of this ruling for purposes of defending complex litigation. 

Accordingly, to mark the upcoming two-year anniversary of TransUnion, the Workplace Class Action blog will be providing an assessment of the most recent and relevant applications of TransUnion by the federal Circuit Courts.  For starters, however, here is a look at a pair of recent district court rulings applying TransUnion in putative class actions arising from alleged employee data breaches at the motion to dismiss stage:  Hall v. Centerspace, LP and McCombs v. Delta Group Electronics, Inc.  Both cases exemplify the importance for companies facing class-action litigation to assess the plaintiffs’ standing as to each claim to help secure victories early on in the litigation.

Hall v. Centerspace, LP

Case Background

In Hall, the plaintiff worked for a subsidiary of Centerspace, which owns and operates apartment complexes in several states.  Hall and other employees were required to give Centerspace their personally-identifying information (“PII”) as a condition of employment, including names, bank account information, and Social Security numbers.  Following a data breach of computer files potentially containing PII, Hall brought a putative class action in the U.S. District Court for the District of Minnesota, seeking to represent a class of all individuals in the United States whose PII was compromised in the breach.  In addition to damages, Hall sought a declaration that Centerspace was in breach of its duty to employ reasonable data security to secure the PII with which it was entrusted, as well as injunctive relief requiring Centerspace to employ “adequate security protocols consistent with industry standards” to protect the plaintiff’s and putative class members’ data.  Centerspace filed a motion to dismiss, challenging Hall’s standing to pursue future injunctive relief under Article III.    

The Court’s Decision

The court ruled in favor of Centerspace.  The court noted that courts in data-breach cases consider whether plaintiffs have standing to seek injunctive and declaratory relief in light of TransUnion’s holding that a plaintiff must demonstrate standing separately for each form of relief sought.  The court also noted another decision in Minnesota federal court that applied TransUnion to find that the plaintiffs lacked standing to pursue relief similar to that which Hall requested because they failed to allege a sufficiently imminent and substantial risk of harm that would be avoided if the relief was granted.  Turning to the case at bar, the court found that Hall did not show that he faced such a risk of future harm that a declaration and injunction would address.  The court clarified that it was not suggesting that “forward-looking” injunctive relief is never appropriate in a data-breach case.  However, there were no facts in the complaint indicating that a second data breach was certainly impending, or even that there was a substantial risk that one would occur.  The court noted that there was no suggestion, for example, that Centerspace currently was being targeted by hackers, or that something about its operations made it uniquely vulnerable to incursions.  The court concluded that nothing in Hall’s pleading transformed the possibility that Centerspace might suffer another data breach into an imminent or substantial risk.  Accordingly, the court ruled that Hall’s forward-looking claims for a declaratory judgment and injunctive relief must be dismissed for want of standing. 

McCombs v. Delta Group Electronics, Inc.

The Hall ruling was issued on Friday, May 12, 2023.  Almost a month later, on Friday, June 9, 2023, the U.S. District Court for the District of New Mexico also weighed in on standing in the data-breach context in McCombs.

Case Background

In McCombs, the plaintiff brought a putative class action against her former employer.  Like Hall, McCombs had provided Delta with PII and financial information.  McCombs alleged that her and other employees’ names, Social Security numbers, driver’s license numbers, and financial account numbers were accessed when an “unknown cybercriminal” hacked Delta’s computer systems in 2022.  According to McCombs, the data compromise will be an “omnipresent threat” for her and the proposed class “for the rest of their lives.”  While McCombs conceded that the alleged fraudulent activity “may not come to light for years,” she maintained that she was subject to a general threat of future harm, such as “targeted marketing” or having her PII end up for sale on the “dark web.”  While admittedly “left to speculate” about the possible future impacts of the breach, McCombs nonetheless sought monetary damages and injunctive relief on behalf of herself and the proposed class.  Delta moved to dismiss on multiple grounds, including for lack of standing. 

The Court’s Decision

The court ruled in Delta’s favor, finding that McCombs had not sufficiently alleged injuries that were fairly traceable to the breach and, thus, lacked standing to pursue her claims.  The court addressed multiple aspects of McCombs’ allegations and provided a breakdown of the different ways in which the federal Circuit Courts have addressed standing in data breach litigation over the past decade.  The court honed in on TransUnion, however, when considering McCombs’ allegations of unrealized, potential risks of harm associated with identity theft.  As the court recounted, the argument that won the day in TransUnion was that the mere risk of future harm, standing alone, cannot qualify as a concrete harm, unless the exposure to the risk of future harm itself causes a separate concrete harm.  The court recognized that following TransUnion, the mere possibility of a potential unrealized injury, without more, does not confer standing. 

Against this backdrop, the court found McCombs’ allegation that her PII potentially would be used by an unknown cybercriminal to commit fraud or identity theft fell “well short” of what is required for standing, as McCombs had not demonstrated that the risk of future harm had manifested by way of an injury from the theft of her PII.  For instance, the court pointed out that McCombs failed to allege that any compromised PII—whether hers or that of the proposed class—had been misused yet, even though more than a year had passed since the data breach.  Since McCombs’ alleged injuries lived “almost entirely in the future” and were “premised on potential illegal activity yet to be committed (and which may never be committed) by an unknown third party,” they were too speculative to invoke the court’s jurisdiction.  Accordingly, the court granted Delta’s motion to dismiss.

Implications For Employers

Although TransUnion may not be a silver bullet for employers, these cases demonstrate its lasting significance.  Hall in particular underscores the importance of the U.S. Supreme Court’s teaching that “standing is not dispensed in gross; rather, plaintiffs must demonstrate standing for each claim that they press and for each form of relief that they seek (for example, injunctive relief and damages).”  The cases also serve as examples of courts rejecting claims based on risks of future harm, following TransUnion.  In crafting their defense strategy, employers and other corporate defendants of class actions should analyze plaintiffs’ theories of injury accordingly, including as to each claim and request for relief asserted. 

By: Christopher DeGroff, Andrew Scroggins, and Christopher Kelleher

Seyfarth Synopsis: Over the past several years, the EEOC has maintained a litigation focus on protecting young workers in low wage jobs from sexual harassment. This has translated to intense scrutiny of teenagers working in the restaurant industry. According to the EEOC, these workers are particularly vulnerable to harassment and other forms of discrimination. Employers in any industry with young employees should pay particular attention to harassment issues, as the EEOC has demonstrated it is keeping a watchful eye on this particular demographic.  Restaurant employers should be particularly on alert.

On September 12, 2022, during a Strategic Enforcement Plan session, the EEOC’s Vice Chair, Jocelyn Samuels, expressed the agency’s determination to reach young workers in the restaurant industry, including teenagers, who “aren’t aware of their rights, and are particularly subject to harassment and other forms of discrimination at work.” According to a national survey conducted by Social Science Research Solutions in January 2021, 71% of female restaurant workers have been harassed at least once during their time in the industry. And, in fact, more harassment charges are filed in the restaurant industry than in any other industry.[1]  

The EEOC’s recent litigation efforts show that the agency has put its money where its mouth is to combat harassment against young employees in the restaurant industry. Just in the last five years, the EEOC has pursued cases in virtually every restaurant concept, and has brought suit against both big and small employers, from nationally-known chains to modest mom-and-pop locations.  For instance:

  • In May 2023, the EEOC filed suit against Culver’s Restaurants in Minnesota, alleging that the restaurant subjected employees to a hostile work environment based on race, sex, sexual orientation, and disability. As part of the lawsuit, the EEOC claimed that the company exposed female employees, some as young as 14 years old, to sexual harassment, including unwanted sexual touching, jokes, and propositions. EEOC v. R & G Endeavors, Inc., Case Nos. 0:23-cv-01501-PJS-LIB and 0:23-cv-01506-ECT-JFD. 
  • In May 2023, the EEOC filed suit against Swami’s Café and Honey’s Bistro, a chain of restaurants in San Diego, California. The suit alleged that, beginning in 2019, nine restaurant locations allowed a class of young female employees, including some teenagers, to be subjected to sexual harassment by male supervisors and co-workers. The harassment allegedly included frequent and offensive sex-based remarks and advances, among other behavior, which the restaurant did not properly monitor. EEOC v. Swami’s 101 LLC, et al., Case No. 3:23-cv-00902-LAB-NLS.
  • In September 2022, the EEOC filed suit against two Chili’s Grill & Bar restaurants, one in Benton, Arkansas, and one in Dallas, Texas. The suits alleged that the restaurants subjected female employees, including teens, to a sexually hostile work environment, which included several physical assaults, vulgar comments, and sexual remarks. EEOC v. Brinker Int’l Payroll Co. LP, et al., Case Nos. 4:22-cv-00820-KGB and 3:22-cv-02017-E.
  • In March 2022, the EEOC filed suit against Chipotle Mexican Grill, alleging that the company subjected young female employees to ongoing sexual harassment. The complaint alleged that the restaurant failed to investigate and/or remediate internal complaints of harassment, and allowed an alleged male harasser to return to the workplace, where he angrily confronted those who had complained about the harassment. EEOC v. Chipotle Services, LLC and Chipotle Mexican Grill, Inc., Case No. 2:22-cv-00279.
  • In June 2021, the EEOC sued Sonic Drive-In, alleging that three teen female carhops were subjected to a hostile work environment, when a manager made daily crude sexual comments and sexual propositions to them, and subjected them to unwelcome physical touching. The lawsuit alleged that even after the harassment was reported to management, no responsive or remedial actions were taken. EEOC v. SDI of Minola, Texas, LLC, et al., Case No. 6:21-cv-00226-JCB-KNM.
  • In February 2020, the EEOC sued a Medford, Oregon restaurant, New China, alleging that the restaurant allowed its former manager to repeatedly sexually harass young female employees. The complaint further alleged that the restaurant terminated one worker after she reported the conduct, and created intolerable workplace conditions, forcing other workers to quit involuntarily. According to the lawsuit, even after the manager was arrested at work and booked for sexual abuse of the restaurant’s minor employee, he was permitted to return to work. EEOC v. New China, Inc., Case No. 1:20-cv-00277-CL.
  • In October 2019, the EEOC filed suit against Pei Wei Asian Diner, LLC, in Little Rock, Arkansas, alleging that the restaurant subjected a class of female teens and young adults to sexual harassment and a sexually hostile work environment. According to the EEOC, despite receiving notice that the general manager had allegedly harassed young female employees since 2016, the company allowed the manager’s behavior to continue unchecked. EEOC v. Pei Wei Asian Diner LLC, Case No. 4:19-cv-00718-KGB.
  • In March 2018, the EEOC filed suit against an owner and operator of 51 Arby’s locations across Alabama, Georgia, Louisiana, Mississippi, and Florida. The lawsuit alleged that the company permitted a sexually hostile work environment based on ongoing sexually explicit comments and other alleged harassment by an older male team leader against three teenage female crew members. EEOC v. Beavers’ Inc., d/b/a Arby’s, Case No. 1:18-cv-00150-TFM-MU.   

The list goes on, but the message is clear: if the EEOC learns of harassment of young employees at any hospitality employer, it will aggressively investigate and – when appropriate – litigate, claims of workplace harassment. 

Implications for Employers

For restaurant employers who want to stay out of the EEOC’s crosshairs, and maintain a healthy and functioning workforce, the best defense is a good offense. Proactive measures can not only assist with legal claims – they can often prevent claims from happening in the first place. It is important to establish and enforce a strong, state-of-the-art anti-harassment policy. Not all policies are created equal, and a review of work rules through the lens of recent legal changes and challenges is strongly advisable. Another best practice is to conduct regular workplace trainings to educate employees, including managers, on harassment prevention and what is off-limits. In addition, employers should take seriously, and promptly investigate, any internal complaints of harassment, and take swift and effective remedial measures when appropriate, to avoid repeated instances of harassment. Each of these steps were recently championed by the EEOC as effective ways to avoid harassment claims (read more here).

Another best practice involves keeping an eye on what administrative charges can tell an employer. Hospitality employers often have decentralized human resources and operations functions. EEOC charges can be received and processed by locations in the field without that information being escalated and evaluated at a bird’s-eye view. Keeping track of charge trends and identifying potential vulnerabilities could allow an employer an opportunity to nip potential problem areas in the bud. These concerns, while serious, are not insurmountable. Knowing the issues and taking preventative steps can keep employers one step in front of a potentially perilous tangle with the EEOC.

[1] See, e.g., Harvard Business Review, Sexual Harassment Is Pervasive in the Restaurant Industry. Here’s What Needs to Change, January 18, 2019, available at https://hbr.org/2018/01/sexual-harassment-is-pervasive-in-the-restaurant-industry-heres-what-needs-to-change

By: Annette Tyman and Andrew Scroggins

EEOC equal employment opportunity commission report and gavel.

Seyfarth Synopsis: On May 18, 2023, the Equal Employment Opportunity Commission (EEOC) released Technical Assistance on the use of advanced technologies in the workplace titled Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964 (“TA”). The EEOC did not unveil new policies in the TA but reiterated that its long existing policies and practices continue to apply to the technologies (such as artificial intelligence and machine learning tools) that are grabbing the public’s attention today.  The TA broadly defines the types of automated systems that may be subject to employment laws and poses seven questions and answers designed to help employers avoid discriminatory employment decisions regardless of whether those decisions are made by humans or machines. The publication is an important read for employers.

EEOC Emphasizes That Long-Standing Title VII Principles Apply Even To New Technologies

In its new publication, the EEOC acknowledges that it is not announcing new policies. Rather, the publication “applies principles already established in the Title VII statutory provisions as well as previously issued guidance” to advanced technologies used in the workplace.

In line with that approach, the EEOC makes clear that it takes a broad view of the types of technology it has the authority to cover. Specifically any software, algorithm, AI, or other automated tool that is used to make “selection decisions” such as hiring, promotion and terminations, must be used in a manner consistent with EEO statutes. Expanding existing legal theories to emerging issues like AI and other technology tools fits squarely within the EEOC’s strategic enforcement priorities. A detailed examination of the EEOC’s strategic goals can be found here.

Focus On Disparate Impact Discrimination

The publication focuses on theories of “disparate impact” discrimination under Title VII of the Civil Rights Act of 1964. Disparate impact (sometimes called “adverse impact”) refers to the use of a facially neutral test or selection procedure that has the effect of disproportionately excluding members of a protected group, if the tests or selection procedures are not “job related for the position in question and consistent with business necessity.” Disparate impact theories are powerful tools for the EEOC, as they necessarily implicate broad swaths of potential “victims” in a single enforcement action, maximizing EEOC’s “bang for the buck.”

EEOC Expects Employers To Assess Algorithmic Decision-Making Tools For Adverse Impact In Accordance With The Uniform Guidelines on Employee Selection Procedures

Since 1978, the EEOC has directed employers to follow its Uniform Guidelines on Employee Section Procedures (Guidelines) to determine whether tests and selection procedures are lawful under Title VII. In its TA, the EEOC reiterated that the Guidelines continue to apply to new technologies “when they are used to make or inform decisions about whether to hire, promote, terminate, or take similar actions toward applicants or current employees.”

As a result, the EEOC’s expectation is that employers will assess whether a selection procedure has an adverse impact on a particular protected group. The assessment requires a comparison between the selection rates for individuals in a protected group to those not in the protected group. Significant differences between the two groups must be remedied, unless the employer can show that the selection procedure is job related and consistent with business necessity.

Employers Can Be Responsible For Tools Designed And Administered By Others, Including Vendors

In the TA, the EEOC made it clear that employers may be held liable for the tools created by third parties, including software vendors, and cannot simply wash their hands of responsibility for the outcomes that flow from using tools developed by others.

The EEOC suggests that employers must, at a minimum, ask vendors whether steps have been taken to evaluate whether use of the tool causes a substantially lower selection rate for those in protected groups. However, the EEOC also makes clear that an employer cannot rely on the representations of its vendors. If the vendor says its assessment does not result in different selection rates, but disparate impact nonetheless results, the employer may still be on the hook for any adverse results. As a best practice, employers should vet any tools provided by third parties before putting the tools into use, and also implement audit procedures designed to monitor the results of using those tools to guard against any adverse impact.

With regard to third-party developers of tools, EEOC Commissioners have separately suggested that vendors themselves could be targeted by the Commission if their input into employment decisions are enough to bring them into the orbit of EEO laws. While not specifically addressed in the TA, this is an important issue that we will continue to track.

The Four-Fifths (80%) Rule Alone Does Not Provide A Safe Harbor For Measuring Allowable Differences In Selection Rates

One clarification likely to grab the attention of employers (and vendors) is the EEOC’s position that the well-known “four-fifths rule” may not be used as a sole measure to assess bias in a selection tool.  As described in the Guidelines, the four-fifths rule is one measure used to assess whether selection rates of two groups are “substantially” different. More specifically, if one group’s selection rate is less than 80% of that of the comparison group, the rates are considered substantially different.

In the TA, the EEOC emphasized that the four-fifths rule is only a “general rule of thumb” that is “practical and easy-to-administer,” and courts have found that it is not a reasonable substitute for statistical tests. Curiously, the EEOC has historically championed the use of the four-fifths rule to assess significance in other contexts. (See prior EEOC Guidance here for an example.)

The EEOC’s position is important as many vendors and employers have used the four-fifths rule articulated in the EEOC’s 1978 Guidance as a threshold analysis in bias audits.  The general thinking was that since the four-fifths rule was a well-established benchmark articulated by EEOC and long applied to other testing and assessment tools, it was a good threshold indicator of potential bias in the absence of other guidance. Indeed, the FAQs in the Guidelines provide that to assess adverse impact, “federal enforcement agencies normally will use only the 80% (4/5ths) rule of thumb, except where large numbers of selections are made.” (See FAQ Guidelines Q18).

In keeping with the clarifying comments in the EEOC’s TA, as well as issues related to the appropriate audit method depending on the sizes of the pools being analyzed, employers and vendors that are studying the effects of selection tools (or asking vendors about the tools they provide) may need to reassess their audit strategies. This may include implementing audit standards that evaluate both statistical significance and practical significance, using the four fifths test or other “practical significance” methodologies.

Employers Should Act Upon Discovering That An Algorithmic Decision-Making Tool Results In A Disparate Impact

The EEOC encourages employers to conduct self-analyses before implementing any new tool, and periodically thereafter to ensure that the tool is operating free of bias. If an employer discovers that a tool would have an adverse impact, the EEOC’s expectation is that the employer will either take steps to remedy the impact or select a different tool to use going forward.

EEOC’s Initiatives And Guidance Related To Automated Systems and AI

The TA is part of the EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative, first announced in October 2021, which was designed to ensure that AI and other emerging tools used in hiring and employment decisions comply with the federal civil rights laws that the agency enforces. Since that time, the EEOC has continued to beat its drum on the topic:

  • The EEOC has published guidance that discusses how existing requirements under the Americans with Disabilities Act (ADA) may apply to the use of AI, software applications, and algorithms in employment-related decision-making processes and practices and offered useful information and tips to employers in an effort to assist them with ADA compliance when using such tools.
  • The EEOC published a proposed Strategic Enforcement Plan (SEP) that announced its intention to focus on recruitment and hiring practices and policies that might give rise to discrimination against members of protected groups, including where employers use AI to aid decision-making.
  • The EEOC has held roundtable events and hearings to gather information and discuss the civil rights implications of the use of automated technology systems, including artificial intelligence, when hiring workers.
  • The EEOC has joined other federal agencies to release a joint statement to emphasize that the use of advanced technologies, including artificial intelligence, must be consistent with federal laws.

Employers should expect the EEOC to continue to focus on this topic.

Implications For Employers

The EEOC’s Technical Assistance document does not impose any new rules on employers. Rather, it is yet another reminder to employers that existing law applies to new and advanced technologies, and employers are responsible for employment decisions that impact applicants and employees, whether made by people or with the assistance of machines.  Employers should dust off the 1978 Guidelines and supporting materials and take a fresh look at them as they consider the various technologies that may be used to support employment decisions. 

The publication also represents more foreshadowing of the EEOC’s enforcement priorities, showing once again that the EEOC will scrutinize the technological tools that employers increasingly rely on to make hiring and employment decisions. Employers are well-served to track EEOC charges filed against them that include allegations concerning technological developments as well as those which may prompt the EEOC to issue requests for information seeking information about these tools.

By: Christopher Kelleher, Adam Rongo, and Christopher DeGroff

Seyfarth Synopsis: The EEOC has released technical assistance on preventing workplace harassment in the federal sector. While the guidance does not specifically apply to private employers, it provides important lessons for employers when dealing with workplace harassment and avoiding liability in employment litigation, and insight into how the EEOC views these concepts.

On April 20, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document, Promising Practices for Preventing Harassment in the Federal Sector, which provides practical tips for preventing and addressing workplace harassment. While the guidance is geared toward federal government employers, it provides helpful recommendations applicable to the private sector as well, and also provides an important perspective on how EEOC enforcement efforts may be evolving. Some of the highlights are discussed below.

Leadership and Accountability

According to the EEOC, all employers should establish and maintain an anti-harassment program, with neutral staff-members who are responsible for promptly, thoroughly, and impartially investigating allegations of harassment, and taking immediate and appropriate corrective action. Federal agencies must begin investigations within 10 calendar days of receipt of the harassment allegation. While there is no specific time period within which private sector employers must investigate internal allegations of harassment, liability can often hinge on the promptness of the investigation and remedial measures. As such, all employers should begin workplace harassment investigations as soon as practicable.  As a practice tip, however, employers may consider this 10-day interval as one at least facially supported by the EEOC,

The guidance also recommends that employers take other actions to demonstrate commitment to preventing and addressing harassment, such as conducting climate and exit surveys, reviewing harassment allegations to guide future policy changes, and ensuring that consistent penalties are implemented and enforced in the event that workplace harassment occurs.

Comprehensive and Effective Anti-Harassment Policy

The EEOC states that government employers should establish and maintain a comprehensive anti-harassment policy that is regularly disseminated to all employees. Such a policy is often an important element of an effective harassment prevention strategy, and also helps private employers limit liability. In its guidance, the EEOC requires federal agency policies to provide a clear explanation of prohibited conduct, and prohibit harassment on all protected bases, including race, color, sex (including sexual orientation, gender identity, and pregnancy), national origin, religion, disability, age (40 years or older), genetic information (including family medical history), and retaliation. Employers should note, however, that protected categories may vary by jurisdiction, and workplace harassment policies generally provide broader coverage than the law requires.

According to the EEOC, the policy should provide multiple avenues for employees to report harassment, including individuals or departments outside the employee’s reporting chain of command. The guidance provides that the policy should also include assurances that employees making complaints of harassment will be protected from retaliation, that the employer will take prompt corrective action to prevent or address harassing conduct, and keep identity of individuals involved (i.e., the complainant, witnesses, alleged victim, and alleged harasser) confidential, to the extent possible, consistent with legal obligations and the need to conduct a thorough investigation. 

The EEOC also recommends implementing additional measures, such as:

  • Providing explicit assurances that the policy applies to all employees;
  • Widely disseminating the policy, and making the policy available both onsite, and online;
  • Allowing for anonymous reporting of harassment through platforms, such as hotlines and websites;
  • Ensuring that reports of harassment and harassing conduct are well-documented;
  • Ensuring that investigations are not conducted by individuals who have a conflict of interest or bias; and
  • Providing guidance on the processes and procedures for addressing harassment allegations involving non-employees, such as contractors, guests, volunteers, or customers.

Effective Anti-Harassment Training

The EEOC stresses that to help prevent and properly address harassment, employees and management must be aware of what conduct is prohibited and how to prevent and correct it. As such, federal agencies are required to conduct periodic anti-harassment training to both supervisory and non-supervisory employees at all levels. The EEOC does not identify what it considers “compliance.”

Private employers should try to establish such training where possible as it can prevent harassment, boost employee morale and a sense of workplace safety, and help employers limit liability. The EEOC recommends that the training be tailored to the specific workplace, and regularly updated to ensure compliance. When considering such a policy, it is important to note that some states, such as California, Illinois, and New York require anti-harassment training, and some cities, such as Chicago and New York City, have additional requirements. Many other states and municipalities are considering implementing workplace harassment measures.

Implications for Employers

Though the EEOC’s technical assistance is geared towards federal agencies, the document provides useful insights for private employers attempting to determine what the EEOC considers to be an adequate anti-harassment program. This includes establishing and widely disseminating anti-harassment policies, promptly investigating internal complaints, taking prompt and effective remedial measures where appropriate, and conducting regular anti-harassment trainings. In establishing an anti-harassment program, employers should look beyond the technical assistance document and also take into account any relevant state and local laws. If you have questions about your anti-harassment practices, or any threatened or pending harassment litigation, contact your Seyfarth attorney or the authors of this post.

By: Christopher DeGroff, Andrew Scroggins, Sarah Bauman, and James Nasiri

Seyfarth Synopsis: On March 13, 2022, the EEOC released its fiscal year (“FY”) 2022 performance report (“APR”). The APR is the EEOC’s own “report card.” It analyzes the Commission’s performance results based on its Strategic Plan for FYs 2018-2022. A close read of the APR reveals valuable insights into the EEOC’s strategic priorities and offers a unique lens into what employers can expect from the Commission moving forward.

EEOC Enforcement Highlights: Filings Down While Amounts Recovered Increase

The EEOC’s APR touted another successful year on the enforcement front, with a focus on sheer volume of cash recovered from employers during FY 2022. During the last FY, the Commission secured over $513.7 million for victims of discrimination. This represents a whopping $30 million increase compared to FY 2021, in which the EEOC recovered approximately $485 million for workers. Digging deeper, however, reveals that the private sector and state and local municipalities fared better in FY 2022, as the Commission actually secured less monetary relief in total and per capita as compared to the prior year: $342 million for 33,298 employees in FY 2022 v. $350.7 million for 11,067 employees in FY 2021. The EEOC made up for this delta, however, by recovering $132 million for federal employees and applicants in FY 2022, which is a notable increase over the $100 million it secured for the same sector in FY 2021.

As we previously forecast months ago, however, the EEOC was less active during FY 2022 as compared to the prior FY on three important metrics: new litigation cases opened, existing litigation cases closed, and mediation resolutions. In FY 2022, the EEOC filed 91 lawsuits, including 53 cases on behalf of individuals and 13 systemic lawsuits. That’s down from FY 2021, when the Commission filed 116 lawsuits, 74 of which were on behalf of individuals and 13 of which were systemic matters. The EEOC’s case closure activity was also relatively sluggish in FY 2022. The EEOC resolved 96 lawsuits in FY 2022, which is down from resolving 138 lawsuits in FY 2021. Moreover, the Commission was slightly less successful in its mediation efforts in FY 2022, as it conducted 6,578 successful mediations resulting in $170.4 million in FY 2022 (compared to 6,644 mediations for $176.6 million in FY 2021).

Aside from its litigation statistics, the EEOC’s APR also chronicles recent charge data.  The EEOC saw a dramatic increase in the amount of discrimination charges filed in FY 2022, as the EEOC clocked 73,485 charges during its most recent fiscal year, compared to receiving just 61,331 charges in FY 2021. A 12,000-charge increase is certainly eye-catching.  Some commentary has speculated that this charge rise was tied to the ebb of Covid-19.  However, sources have also indicated that in the weeks before FY 2022, EEOC leadership pulled investigatory resources away from processing pending charges, and redirected them to “mining” digital inquiries by potential charging parties to further assess interest in formally filing a new charge.  This additional attention to developing new charges (rather than investigating pending claims) appears to have made a meaningful impact on the FY 2022 figures.  This same reallocation of resources also would explain why the EEOC collected less monetary relief at the charge stage, which the APR discloses fell to $342 million in FY 2022, versus almost $351 million in FY 2021.

Notable Priorities Emphasized In The FY 2022 APR

While the APR generally follows the format of the Commission’s Strategic Plan, a detailed analysis of the Report can still shed light on what employers can expect from the EEOC in 2023-24. One emerging issue on the EEOC’s radar is the use of artificial intelligence (“AI”) in the workplace. The APR trumpets that it has trained all of its systemic enforcement teams on AI, issued a guide on the intersection between AI and the Americans with Disabilities Act (“ADA”), and hosted 24 “AI and algorithmic fairness outreach events” in FY 2022. The EEOC also highlighted a lawsuit that it filed related to an employer’s use of AI in its hiring process, captioned EEOC v. iTutorGroup, Inc., No. 1:22-cv-2565 (E.D.N.Y). All signs point toward increased scrutiny of employers’ use of AI in the years to come.

The FY 2022 APR also underscored how the EEOC – along with nearly every employer throughout the country – is still dealing with the effects of the COVID-19 pandemic. To that end, the Report noted that, during FY 2022, the EEOC updated its guide for employees on COVID-19 and workplace discrimination laws a total of seven times, in addition to holding 369 outreach events concerning the pandemic. The EEOC also received over 10,000 charges of discrimination related to COVID-19 and filed two ADA lawsuits on behalf of immunocompromised employees in FY 2022. While COVID’s spread seems to have slowed, the past challenges it presented to employers will continue to work their way through the system.

The APR also highlighted several areas of enforcement that are consistently high on the EEOC’s priority list. Specifically, the report emphasized the EEOC’s goal of advancing racial justice in multiple contexts, including by highlighting the 20 lawsuits and 18 settlements involving race or national origin discrimination allegations in FY 2022. Retaliation is also a routine focus of the Commission and this past FY was no different. During FY 2022, the EEOC filed 32 retaliation lawsuits, resolved 26 retaliation cases, and conducted 384 retaliation outreach events (which was over 240 more events that the Commission held for any other outreach area). Furthermore, while pursuing systemic litigation is always a priority for the EEOC, its systemic-related performance measure was the only performance metric it failed to meet in FY 2022. We can reasonably expect the EEOC will aggressively seek to rectify that miss in FY 2023.

Finally, the APR concluded by discussing three “major management challenges” facing the EEOC, as identified in the Office of Inspector General’s FY 2022 Management Challenges Report. This past year, the Commission’s major management challenges were reentry, mission-critical data system modernization, and digital records management. The reentry challenge is one experienced by employers through the U.S., as the EEOC worked to bring its staff back into its physical offices in FY 2022. As to the EEOC’s data system modernization, these efforts focused on internal technological systems as well as external systems used by employers, such as the Respondent Portal. According to the EEOC, it is now more well-positioned than ever to achieve a complete overhaul of its digital systems. Lastly, the Commission’s efforts in terms of digital records management are largely focused on improving its efficiency in processing FOIA requests. The APR noted that – thanks to its efforts to transition to digital records – the EEOC had a historically low number of only 86 overdue FOIA requests in FY 2022.

Implications for Employers

Employers can discern several practical takeaways from the EEOC’s FY 2022 APR. Specifically, given the Report’s emphasis on the use of AI and other automated technology in the workplace, employers can expect the EEOC to pay close attention to any use of such technology in the hiring process or otherwise. Addressing race discrimination and acts of retaliation also continue to be top litigation priorities at the Commission. Employers should ensure that their employees are receiving adequate training on both of these timely issues.

Finally, while the EEOC’s FY 2022 enforcement activity remained relatively low, employers should not expect this to be the “new norm” at the Commission. Indeed, despite a Democratic President who appointed a Democratic Chair of the EEOC, the Commission still does not have a Democratic majority until the Senate confirms the appointment of Kalpana Kotagal. Once that final piece in the political puzzle falls into place, we can expect to see an accelerating, aggressive pursuit of enforcement efforts across the EEOC’s platform, particularly in the areas of systemic cases. As always, if our reader wishes to take a deeper dive into any of these topics, we invite you to download our eBook, EEOC-Initiated Litigation, 2023 Edition.

By Danielle Kays, Sarah Bauman, and James Nasiri

The Illinois Supreme Court issued its highly-anticipated decision in Tims v. Black Horse Carriers today, ruling that a five-year statute of limitations applies to all claims under the Illinois Biometric Privacy Act (“BIPA”).  The Court’s decision (available here) answers a years-old question regarding the timeliness of BIPA claims, and offers insight into future litigation.

Background On Tims v. Black Horse Carriers

As a refresher, in March 2019, the Plaintiff filed a class action complaint alleging that Black Horse Carriers violated BIPA by using timeclocks that allegedly scanned and stored employees’ fingerprints.  The complaint asserted that the Defendant violated subsection 15(a) of BIPA in failing to institute, maintain, and adhere to a retention schedule for biometric data; and subsections 15(b) and (d), respectively, by obtaining their employees’ biometric data and disclosing it to third-parties without first obtaining their written, informed consent.  The Plaintiff did not allege claims under the remaining subsections 15(c) or (e) of BIPA which prohibit the sale of a person’s biometric data for a profit, and impose a duty of reasonable care in storing and protecting biometric data from disclosure, respectively.

The Defendant moved to dismiss the Plaintiff’s claims as untimely.  The Defendant argued that because BIPA does not contain a specific statute of limitations, the trial court should apply the one-year limitations period set forth in section 5/13-201 for privacy actions.  Under that limitations period, the Plaintiff’s claims would be time-barred.  The Plaintiff countered that the five-year “catch-all” limitations period contained in section 5/13-205 was more appropriate for actions under BIPA.  And under that limitations period, the Plaintiff’s claims would be viable. 

In September 2019, the trial court denied the motion to dismiss, holding that section 13-201 does not apply because the Plaintiff alleged a violation of the Act itself, rather than a general violation of privacy.  As such, the trial court opined that a five-year limitations period applies to the Plaintiff’s claims.  The Defendant appealed the decision to the Illinois First District Appellate Court. 

Illinois Appellate Decision Highlights

In an anomalous ruling on interlocutory appeal, the Illinois Appellate Court held that three subsubsections of BIPA had a five-year time limitation, while the remaining two subsections were subject to a one-year time limitation.  Specifically, the Illinois Appellate Court held that the one-year limitations period in section 201 applies to BIPA subsections 15(c) and 15(d) because these subsections involve “publication” of biometric data, which is a term explicitly used in section 201.  Conversely, the Illinois Appellate Court found that subsections 15(a), (b), and (e) of BIPA were subject to a five-year limitations period to the extent such subsections do not contain the word “publication.”  The Defendant subsequently appealed the Illinois Appellate Court’s decision to the Illinois Supreme Court.

Illinois Supreme Court Oral Argument Highlights

At oral argument, the Defendant—utilizing cannons of statutory interpretation and Illinois Supreme Court precedent—argued that BIPA is a privacy statute and therefore should be governed by the one-year statute of limitations period codified in section 13-201.  The Plaintiff countered that while BIPA is a privacy statute, “publication” is not an element of a claim under BIPA, and thus the five-year catchall limitations period codified in section 13-205 of the Code should apply to all claims under the Act.

The Illinois Supreme Court Justices asked few questions and made few remarks during oral argument.  Notably, Justice Michael Burke (who is no longer on the bench, and did not take part in this opinion) opined that the Illinois Appellate Court’s holding seemed “unworkable.”  For further comment on the oral argument, visit our blog post here.

Illinois Supreme Court’s Landmark Decision

First, the Court observed that both parties: (1) agreed that the Illinois Appellate Court erred in applying two different limitations periods to BIPA; and (2) requested the Court to apply either a one-year or a five-year limitations period to the entire Act.  The Court agreed, holding that the Illinois Appellate Court erred in this respect.  The Court observed that one of the purposes of a statute of limitations is “to reduce uncertainty and create finality and predictability in the administration of justice.”  Echoing Justice Michael Burke’s articulated concern at oral argument, the Court held that two different limitations periods applied to a single Act “does not align with this purpose,” reasoning this would “create an unclear, inconvenient, inconsistent, and potentially unworkable regime.”

The Court next analyzed whether a one-year or five-year statute of limitations period should apply to all BIPA claims by “employing established principles of statutory construction.”  The Court first utilized the “cardinal rule”—i.e., the plain and ordinary meaning of BIPA’s statutory language.  The Court observed that, consistent with the Illinois Appellate Court’s analysis, neither subsection 15(a) (requiring a BIPA-compliant biometric data policy), 15(b) (requiring BIPA-compliant informed consent procedures), nor 15(e) (prohibiting negligence in storing, transmitting, or disclosing biometric information), “contain words that could be defined as involving publication.”  Thus, the Court held that subsections (a), (b), and (e) are subject to the five-year catch-all limitations period contained in section 13-205 of the Code. 

As to subsections (c) and (d), the Court agreed  that a one-year statute of limitations could be applied to those subsections, but ultimately ruled otherwise.  Again utilizing the “cardinal rule” of statutory interpretation, the Court observed that subsections 15(c) and (d) “contain the words ‘sell,’ ‘lease,’ ‘trade,’ disclose,’ ‘redisclose,’ and ‘disseminate,”’ and thus “could be defined as involving publication and would fall within the purview of the one-year limitations period in section 13-205 of the Code.”  However, the Court rejected the Illinois Appellate Court’s choice to apply such a limitations period to those subsections to the extent the Court “consider[s] not just the plain language of [BIPA,] but also the intent of the legislature, the purposes to be achieved by the statute, and the fact that there is no limitations period in the Act.” 

Accordingly, the Court held that a five-year statute of limitations applies to all BIPA claims.  The Court reasoned that a five-year time limitation is appropriate because Illinois courts have routinely applied the catch-all limitations period to other statutes that lack a specific statute of limitations, which BIPA similarly lacks.  The Court also observed the General Assembly’s “thorough list of goals intended to accomplish as well as the ills it intended to ameliorate”—namely, the uniqueness of biometric information and statement that (15 years ago) the “full ramifications of biometric information technology are not fully known.” 

Coming Up Next

Looking ahead, the Illinois Supreme Court will soon resolve the issue of when BIPA claims accrue—upon the first biometric collection (or here, fingerprint scan) versus the final biometric collection—in Cothron v. White Castle System.  Indeed, the decision has been fully briefed and argued as of May 2022—approximately four months before the Tims decision—so we can expect that ruling any day now. 

Additionally, companies continue to appeal to the Illinois Supreme Court to resolve largely untested defenses to BIPA claims, such as the various exceptions to BIPA, e.g., the HIPAA exemption and preemption under the Labor Management Relations Act.  See 740 ILCS 14/10.

Implications For Employers

Thousands of cases have been filed under BIPA over the past few years against companies, and this lengthy statute of limitations continues to make BIPA litigation lucrative for plaintiffs.  While BIPA litigation against Illinois employers largely targeted employee timekeeping systems (such as in the Tims case), the technology targeted under BIPA continues to grow—especially as technologies used by companies continue to evolve.  New technologies being targeted under BIPA include voice-activated headsets, and virtually any technology that may use finger or hand scans, face or eye scans, voice-recognition technology, and other artificial intelligence technology used to scan or recognize photos or videos.  Therefore, employers should continue to review their technology, policies, and procedures before implementing new technological advancements. For more information about the Illinois Biometric Information Privacy Act and how this decision may affect your business, contact the authors—Danielle Kays, Sarah Bauman, and James Nasiri—your Seyfarth attorney, or Seyfarth’s Workplace Privacy & Biometrics Practice Group.

It is with great excitement that we announce the publication of Seyfarth Shaw’s 2023 Edition of its EEOC-Initiated Litigation Report. 2022 was another year of great change at the U.S. Equal Employment Opportunity Commission – and 2023 promises to be a year of even greater change at the EEOC. Seyfarth’s EEOC-Initiated Litigation report features a look ahead – and a look back – at the shifts at the EEOC and what they mean for you.

Notably, the EEOC is poised to achieve a Democratic majority in the coming months, and this political shift will inevitably impact how the EEOC develops and enforces its agenda. Not coincidentally, this imminent political shift aligns with the announcement of the EEOC’s proposed statement of its enforcement priorities for the next five years. The EEOC’s proposal takes aggressive stances on a host of issues, including:

  • a potentially new and progressive stance to expand the scope of workplace equal protection laws;
  • close scrutiny of the ways employers might use – and potentially misuse – technology in the workplace.
  • a reinvigorated interest in large-scale, systemic investigations and litigation;
  • a focus on equal pay protections, including not waiting for charges of discrimination to be filed, but instead initiating investigations directly by the EEOC; and
  • an ongoing but accelerated emphasis on preventing systemic harassment in the workplace.

Upheavals in the global economy are translating to real-world employment issues from coast to coast. The EEOC’s mission to identify and address equal employment opportunity issues is being put to the test in profound and often unique ways.  With a beefed up budget, an emboldened Democratic majority, and fresh priorities, we expect EEOC enforcement efforts to significantly accelerate over the coming year. Our 2023 resource is meant to equip employers with critical information to navigate this ever-changing regulatory and litigation environment.

To access the entire Seyfarth 2023 EEOC-Initiated Litigation Report, please click here.

We will, of course, continue to keep our clients and friends updated on all of these cutting edge developments throughout the year here at https://workplaceclassaction.com

By: Andy Scroggins, Matt Gagnon, Sarah Bauman, James Nasiri, Christopher DeGroff

Seyfarth Synopsis: On Tuesday, January 10, the EEOC released for public comment its draft 2023-2027 Strategic Enforcement Plan, or “SEP” (available here)—a document that will guide the Commission’s enforcement priorities for the next five years. The EEOC’s previously announced Strategic Plan described “how” it would pursue its enforcement goals. (See our prior blog on the Strategic Plan here.) The Strategic Enforcement Plan, on the other hand, describes “what” the EEOC’s enforcement priorities will be, making it a must-read for employers and their attorneys who want to be prepared if their industry or employment practices have them poised for increased government scrutiny.

History of the SEP

The EEOC’s first SEP, which was in effect for its Fiscal Years 2013-2016, identified six broad subject matter priorities:

  1.          Eliminating Barriers in Recruitment and Hiring.
  2.          Protecting Immigrant, Migrant and Other Vulnerable Workers.
  3.          Addressing Emerging and Developing Issues.
  4.          Enforcing Equal Pay Laws.
  5.          Preserving Access to the Legal System.
  6.          Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

The EEOC’s second SEP, which covered Fiscal Years 2017-2022, kept the same six broad priorities but announced additional “areas of focus” within those areas. Consistent with the EEOC’s announcement, employers saw increased enforcement activities in these areas, which included a focus on protecting the rights of the LGBT community; addressing issues related to pregnancy; scrutinizing “complex” employment relationships, such as contingent work arrangements and gig economy roles; and “backlash discrimination,” particularly as it relates to those who are Muslim or Sikh.

The EEOC’s proposed third SEP continues with the same six priorities but with notable additional details that put the employer community on notice of the Commission’s intentions. In particular, the proposal includes robust interest in how employers use technology to recruit, hire, and manage workers; highlights protections for pregnancy-related issues, LGBTQI+ individuals, and those unaware of or unable to exercise their rights; and calls out the construction and technology industries for closer scrutiny.

Subject Matter Priority 1: Eliminating Barriers in Recruitment and Hiring

Prior versions of the SEP announced the EEOC’s focus on recruitment and hiring practices and policies that might give rise to discrimination against members of racial, ethnic, and religious groups, as well as women, older workers, and those with disabilities. The proposed SEP continues to include those groups while adding specific call outs for pregnant workers and those with pregnancy-related medical conditions, and LGBTQI+ individuals.

The EEOC also added far more detail about the types of hiring practices and policies that it intends to scrutinize. For example, prior SEPs described the EEOC’s intention to prevent steering members of protected groups into specific jobs. The proposed SEP goes further to explain that the EEOC also will be examining whether employers are segregating workers in jobs, or by job duties, based on membership in a protected group.

Building further on this, the proposed SEP includes several new but related areas of focus. These include looking at practices that may limit access to work opportunities, such as advertising jobs in a manner that excludes or discourages some protected groups from applying, or denying training, internships, or apprenticeships. The EEOC also intends to scrutinize whether businesses are denying opportunities to move from temporary to permanent roles, including when permanent positions are available.

Likewise, the EEOC modified its earlier focus on screening tools that might disproportionately impact workers based on their protected status, noting explicitly that it is interested in employers’ use of artificial intelligence and automated systems in that regard.

This aligns with the EEOC’s increased interest in how employers use technology to recruit and hire workers. Here, the Commission has emphasized its intent to investigate whether protected groups might be harmed—whether intentionally or not—by automated systems used to target job advertisements to particular populations, recruit workers, or aid in hiring decisions. The proliferation in recent years of electronic tools available to assist employers to find talent in challenging labor markets may provide fertile ground for the EEOC on this issue.

The EEOC also in this section called out a “lack of diversity” in certain industries, naming construction and high tech in particular, and stated its intent to monitor those benefitting from substantial federal investment.

Subject Matter Priority 2: Protecting Vulnerable Workers and Persons from Underserved Communities from Employment Discrimination

For purposes of the SEP, “vulnerable workers” are those who may be unaware of their rights under equal employment opportunity laws, or reluctant or unable to exercise those rights. The EEOC’s proposal adds substantially to this priority as well. In a change from prior versions of the SEP, the EEOC has called out nine different categories of vulnerable workers that it aims to safeguard:

  • immigrant and migrant workers;
  • people with developmental or intellectual disabilities;
  • individuals with arrest or conviction records;
  • LGBTQI+ individuals;
  • temporary workers;
  • older workers;
  • individuals employed in low wage jobs, particularly teen-aged workers employed in such jobs;
  • Native Americans/Alaska Natives; and
  • persons with limited literacy or English proficiency.

Employers in sectors that engage many members of these communities, or who have operations in areas of the country with large populations of such workers, may face increased inquiry.

Subject Matter Priority 3: Addressing Selected Emerging and Developing Issues

Priority 3 has long been a catch-all for the EEOC to address topical issues or push for expansions of the laws that it enforces.

One priority remains largely unchanged from the prior SEP: qualification standards and inflexible policies or practices that discriminate against individuals with disabilities will remain an area of focus.

The EEOC has dropped two priorities that appeared in this section of the prior SEP. These include protecting LGBT people from discrimination, and clarifying the application of workplace civil rights protections in complex employment relationships and structures. However, those priorities have not fallen completely by the wayside and do appear in other areas of the proposed SEP.  This is likely just an acknowledgement that these issues are no longer “emerging” areas, but rather have been fully embraced in the EEO universe.

The proposed SEP elaborates on statements from the earlier document related to pregnancy discrimination to include protection for those affected by pregnancy, childbirth, and related medical conditions and disabilities, as well as requests for reasonable accommodations related to same.

Prior versions of the SEP have discussed “backlash” discrimination, but the new proposed SEP goes further. The EEOC has noted that discrimination against some groups can arise as a backlash in response to local, national, or global events. The EEOC identifies some groups facing such discrimination now, including African Americans; individuals of Arab, Middle Eastern, or Asian decent; Jews; Muslims; and Sikhs, but also notes that the groups at issue, and the practices they are subjected to, can be expected to change over time and in response to current events.

The proposed SEP also calls out discrimination and stereotyping related to COVID-19, noting in particular that persons of Asian descent, older workers, and persons with disabilities have been targeted. This enforcement priority also extends to requests for accommodation by those with disabilities or sincerely held religious beliefs; unlawful medical inquiries and direct threat determinations; and mistreatment based on actual or perceived disabilities, including those associated with long COVID.

The final topic under this priority is “technology-related employment discrimination.” Here, the EEOC is interested in particular in employment decisions based on algorithmic decision-making; as well as automated recruitment, selection, production, and performance management tools. (The EEOC’s recent interest in this area has been the subject of several prior blog posts, including here and here.)

Subject Matter Priority 4: Advancing Equal Pay for All Workers

The proposed SEP revises this priority to make more clear that it intends to focus on pay discrimination based on any protected category. (This prior version was more focused on sex-based differences in pay.)

The proposal departs from prior versions in two other notable ways. First, it includes a statement that the EEOC will not depend on charges from members of the public, but will use its authority to initiate directed investigations and Commissioner’s charges in order to investigate pay differences. Second, the EEOC states its intent to challenge practices that it perceives to contribute to pay disparities, including employer policies and practices that encourage secrecy around pay, reliance on past salary history to set pay, and requiring applicants to disclose expected pay rates during the application stage.

Subject Matter Priority 5: Preserving Access to the Legal System

The EEOC’s fifth priority aims to keep an eye on policies and practices that the Commission believes may limit or discourage individuals from exercising their rights under employment statutes, or hinder the EEOC’s ability to conduct investigations. The proposed SEP is largely unchanged from the prior version and focuses on overly broad agreements, including waivers, releases, non-disclosure agreements, non-disparagement agreements, and arbitration agreements; failure to maintain applicant and employee records; and practices seen as retaliatory against those who engage in protected activity.

Subject Matter Priority 6: Preventing and Remedying Systemic Harassment

Past SEPs have offered robust statements in support of the EEOC’s interest in combatting harassment, and that continues in the new proposal. Of note, the EEOC’s proposal now expressly calls out harassment based on pregnancy, gender identity, and sexual orientation. The EEOC has also articulated more detailed support for employer training, including providing education, technical assistance, and policy guidance.

Continued Focus on Systemic Investigations and Litigation

In the proposed SEP, the “Commission once again reaffirms its commitment to the agency’s systemic program.” The EEOC looks to its SEP priorities to decide what types of systemic investigations and cases to pursue. Indeed, the SEP priority areas are “given precedence over other cases to maximize the EEOC’s strategic impact.”

Implications For Employers

The SEP is still a draft, and the EEOC is accepting comments through February 9, 2023. We will report on the final version once it is available.

However, the proposed SEP is revealing of the EEOC’s intentions. Charges related to pregnancy or issues related to LGBTQI+ individuals are high on the agency’s enforcement radar. So too are employment practices that rely on automated systems, including using technology to find and screen candidates.

On an industry basis, companies in construction, technology, and staffing should be particularly alert to EEOC enforcement activities. The same is true of companies that use contingent workers, or that employ significant numbers of workers from vulnerable communities.

With the EEOC soon to be comprised of a majority of Commissioners appointed by the Biden administration, we anticipate a pronounced uptick in enforcement activity. Employers should expect that the Commission will continue to make good on its promise to litigate large-scale, high-impact, and high-profile investigations and cases that address the issues identified as its enforcement priorities and areas of focus.

By Danielle Kays and Danny Riley, Law Clerk

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

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

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

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

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

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

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

BIPA Compliance

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

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

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

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