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

Seyfarth Synopsis: Over the past few weeks, two federal appellate courts have issued major decisions on the scope of workplace discrimination protections covered under Title VII of the Civil Rights Act of 1964 (“Title VII”).  In addition to creating a conflict between various past appellate court precedents, these decisions highlight an ideological divide between two major federal government agencies.  In this video blog, Associate Alex Karasik and Partner Jerry Maatman of Seyfarth Shaw discuss the importance of these decisions, and what employers can expect to see in the evolving debate over Title VII protections.

On February 26, 2018, the U.S. Court of Appeal for the Second Circuit issued an impactful decision in Zarda, et al. v. Altitude Express, d/b/a Skydive Long Island, et al., No. 15-3775 (2d Cir. Feb. 26, 2018), which fueled the debate over protections for sexual orientation under Title VII. The Second Circuit ruled in favor of a (now-deceased) skydiving instructor who claimed to be fired because he was gay, therefore ruling that sexual orientation is a protected category under Title VII.

Then, just last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) notched a major win when the Sixth Circuit sided with the Commission’s position in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., Nos. 16-2424 & 2018 (6th Cir. Mar. 7, 2018).  We previously blogged about this decision here.  This case considered a transgender worker.

These recent appellate court decisions have agreed with the EEOC’s position on the definition of sex discrimination under Title VII.  However, there is also significant opposition to this position – namely by the U.S. Department of Justice (“DOJ”).  In the Zarda case mentioned above, the EEOC and DOJ both submitted amicus briefs, taking completely opposite sides on this issue.  Additionally, the 11th Circuit issued a decision in March of 2017 entitled Evans v. Georgia Reg’l Hosp., No. 15-15234 (11th Cir. Mar. 10, 2017), which sided with the DOJ and a more strict interpretation of the workplace discrimination laws at hand.

In today’s video, Jerry and Alex discuss this controversial topic in detail, and provide their own insights on the matter.  As Jerry states in the video, what this issue looks to be driving towards is, “a showdown in the U.S. Supreme Court, or the halls of Congress, over the scope and parameters over the protections of Title VII.”

By Scott Rabe, Gerald L. Maatman, Jr., and Marlin Duro

Seyfarth Synopsis: In its recent decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 16-2424, 2018 U.S. App. LEXIS 5720 (6th Cir. Mar. 7, 2018), the U.S. Court of Appeal for the Sixth Circuit has sent the strong message that the Religious Freedom Restoration Act (“RFRA”) has minimal impact on the Equal Employment Opportunity Commission’s (“EEOC”) authority to enforce the anti-discrimination laws under Title VII of the Civil Rights Act of 1964 (“Title VII”).  The ruling is a big win for the EEOC.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., a Sixth Circuit panel held in a unanimous decision that: (i) Title VII’s proscription of discrimination on the basis of sex encompasses a prohibition on discrimination based on transgender status, and that (ii) in this case the RFRA would not limit the EEOC’s authority to enforce anti-discrimination laws under Title VII.  With this decision, the Sixth Circuit became the first federal Court of Appeals to address the extent to which the RFRA may limit the EEOC’s power to enforce Title VII.[1]

Case Background

By way of background, the EEOC brought suit against a funeral home on behalf of a transgender employee, Aimee Stephens, who was terminated from her employment shortly after informing her employer that she intended to transition from male to female.  The EEOC alleged the funeral home violated Title VII by terminating Stephens’ employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes.  The funeral home argued that Title VII did not prohibit discrimination on the basis of transgender status and that the funeral home was protected from enforcement of Title VII by the  RFRA as the government action would constitute an unjustified substantial burden upon the funeral home owner’s exercise of his sincerely held religious beliefs.

Both parties moved for summary judgment and the district court found in favor of the funeral home on both motions  The district court found that Title VII did not protect against discrimination based on transgender status and that, while Stephens had suffered discrimination based on sex stereotyping, the RFRA prevented the EEOC from suing on her behalf.

The Sixth Circuit Appeal

On the EEOC’s appeal, the Sixth Circuit reversed the district court with respect to both motions and  granted summary judgment in favor of the EEOC. First, the Sixth Circuit held that the funeral home’s conduct violated Title VII, reinforcing its prior holdings that discrimination against employees because of their gender identity and transgender status are illegal under Title VII’s prohibition of sex discrimination based on sex stereotyping.  The Sixth Circuit explained that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” and found that firing a person because he or she will no longer represent him or herself as the gender that he or she was born with “falls squarely within the ambit of sex-based discrimination” forbidden under Title VII.  Id. at *18.

Second, the Sixth Circuit held that the EEOC’s enforcement of Title VII against the funeral home did not violate the funeral home’s rights under the RFRA.  A viable defense based on the RFRA requires a demonstration that the government action at issue would substantially burden a sincerely held religious exercise.  Although the Sixth Circuit treated the running of the funeral home as a sincere religious exercise by the owner, it held that the alleged burden caused by the enforcement of Title VII was not “substantial” within the meaning of RFRA.  The Sixth Circuit reasoned that tolerating an employee’s understanding of his or her sex and gender identity was not “tantamount to supporting it” and that mere compliance with Title VII, “without actually assisting or facilitating transition efforts,” did not amount to an endorsement by the employer of the employee’s views.  Id. at *59, *61.  Nor, the Sixth Circuit explained, could the funeral home rely on customers’ “presumed biases” against transgender individuals to meet the substantial burden test. Accordingly, the Sixth Circuit held that the funeral home had not demonstrated a substantial burden on the its religious exercise.

While the Sixth Circuit could have ended its analysis there, it went on to hold that even if tolerating Stephens’ gender identity and transitioning status were a “substantial burden” on the funeral home’s religious exercise, the EEOC did not violate the RFRA because the agency had a compelling interest in eradicating all forms of invidious employment discrimination, and enforcement of Title VII through its enforcement function was the least restrictive means for eradicating discrimination in the workforce.  This analysis, if found not to apply only to the facts of this case, could ostensibly doom any defense to a Title VII action within the Sixth Circuit where an employer raises a defense based on the RFRA.

Implications For Employers

The Sixth Circuit’s opinion is an important one, as it addresses two of the more hot button topics in employment jurisprudence:  the scope of the definition of “sex discrimination” under Title VII and the impact of laws protecting the free exercise of religion in the workplace.  On the former, this opinion joins the recent trend in decisions finding that gender identity is inextricably linked with sex and therefore is protected under Title VII.  And on the latter, the Sixth Circuit has laid down a gauntlet as the first federal circuit addressing the RFRA’s impact on the EEOC’s Title VII enforcement power.  The decision is clearly intended to send a strong message that the RFRA has limited application, if any, in defense of a Title VII action brought by the Commission.  While time will tell whether other federal circuits will adopt a similar interpretation, if the Sixth Circuit’s legal rationale is followed, employers will be hard-pressed to defend Title VII claims brought by the EEOC based on the alleged exercise of religious freedom.

In light of the current uncertainty regarding the ultimate interpretation of Title VII as it applies to gender identity, employers should regularly review their policies to ensure that adequate protections are provided to employees on the basis of their gender identity, and transgender and transitioning status.  As always, we also invite employers to reach out to their Seyfarth contact for solutions and recommendations regarding anti-harassment and EEO policies and addressing compliance with LGBTQ+ issues in the law.

[1]              The RFRA, enacted in 1993, prohibits the government from enforcing a law that is religiously neutral against an individual, if the natural law “substantially burdens” the individual’s religious exercise and is not the least restrictive way to further a compelling government interest.  Importantly, the RFRA applies only in the context of government action, and therefore would not provide a defense for an employer in a civil suit brought by a private plaintiff.

By Gerald L. Maatman, Jr., Christopher J. DeGroff, Matthew J. Gagnon, & Kyla Miller

Seyfarth Synopsis: This month the EEOC released its 2018-2022 strategic plan, which focuses on preventing and combating discrimination and improving the EEOC’s organizational functionality. It also released the agency’s 2019 budget request, which mirrors its $363 million dollar request from last year.

Strategic Plan: FY 2018-2022

On February 12, 2018, the EEOC approved its Strategic Plan for fiscal years 2018-2022 (available here). The EEOC is required to publish a strategic plan, which serves as a framework for the EEOC in implementing its mission to combat employment discrimination. The Strategic Plan is not to be confused with the Strategic Enforcement Plan. We like to think of the Strategic Enforcement Plan as the “what,” and the Strategic Plan as the “how.” The Strategic Enforcement plan, discussed more fully here, explains what priorities the EEOC will focus on. More generally, the Strategic Plan lays out the high level overview of how the agency is going to achieve those objectives. The 2018-2022 strategic plan includes three general objectives:

  1. Combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities.

The EEOC has outlined two outcome goals of this strategic objective. First, the EEOC aims to stop and remedy discriminatory employment practices and provide meaningful relief to victims. Second, the EEOC would like to exercise its enforcement authority fairly, efficiently, and based on the circumstances of each charge or complaint.

  1. Prevent employment discrimination through education and outreach.

This objective reflects the EEOC’s interest in deterring employment discrimination before it occurs. The primary means to this goal includes investigations, conciliations, and litigation. The EEOC’s two goals for this strategic objective include helping members of the public understand the law and their rights, and for employers, unions, and employment agencies to prevent discrimination and address EEO issues when they occur.

  1. Management objective.

This objective is focused on the EEOC “achieving organizational excellence,” which includes improving management functions with a focus on information technology, infrastructure enhancement, and accountable financial stewardship. The EEOC pledged accountability for improving its operations where needed. The two outcome goals for this objective include having staff that exemplify a culture of excellence, respect and accountability, and allocating resources effectively to ensure they line up with their stated priorities.

FY 2019 Budget Request

With its new strategic plan also comes a new budget request (available here). The EEOC is requesting $363,807,086 for fiscal year 2019, which includes $29,443,921 for state and local fair employment practice agencies (FEPAs) and tribal employment rights organizations (TEROs).

The EEOC urges congressional support, citing its commitment to building a digital workplace to increase their efficiency and provide timely service to the public. The agency also states a need for more staff and resources to deliver high quality service. The EEOC says that it intends to maintain its staffing levels in order to further reduce the charge backlog. The funding is also anticipated to cover “rents and mandatory office relocations.”

This request is  $1.783 million over the fiscal year 2018 Continuing Resolution level, but is the exact same budget request it made for fiscal year 2018. This year’s budget goals include: (1) investing in the “agency of the future”; (2) managing the inventory and reducing backlog; (3) improving and leveraging technology; and (4) outreach, education, and strategic law enforcement. Time will tell if the EEOC’s budget request will be approved, and whether it will use that money wisely.

Implications For Employers

As anyone who is paying attention to the news knows, the future direction of the budget for many federal agencies is a bit uncertain. For example, President Trump’s recently released budget proposes huge cuts for a different federal agency — the Consumer Financial Protection Bureau. This makes the relative stability of the EEOC’s budget request somewhat remarkable. Whether it can continue to fly under the radar of federal budget cutting remains to be seen. In the meantime, employers should keep in mind that the EEOC managed to file an impressive number of lawsuits last year while operating under pretty much the same budgetary constraints that are proposed for fiscal year 2019.

Seyfarth Synopsis: On October 5, 2017, U.S. Attorney General Jeff Sessions issued an agency memorandum stating that the language contained in Title VII of the Civil Rights Act of 1964, “does not prohibit discrimination based on gender identity per se, including transgender status.” It represented a head-snapping pivot of the position of the U.S. Department of Justice. In this video, Jerry Maatman of Seyfarth Shaw, LLP gives blog readers an overview of the recent history regarding legal interpretation of Title VII. Jerry discusses potentially conflicting statutes and court rulings, as well as the ways in which this Department of Justice memorandum could affect businesses and those who litigate under Title VII.


Title VII of the Civil Rights Act of 1964 has been a prevalent federal statute since its passage over 50 years ago. Therefore, it is an especially important statute to understand for nearly every employer. During the Obama Administration, Attorney General Eric Holder stated in a 2014 memorandum that the Department of Justice does, in fact, apply the concept of sex discrimination in the workplace to transgender workers. However, Congress has rejected all attempts thus far to amend Title VII. To that end, the language of the law leaves legal interpretation open for debate.

The EEOC’s current view of Title VII is that it includes protections for transgender workers. In addition, 20 states and the District of Columbia include both sexual orientation and gender identity as protected categories under their discrimination statutes. The recent statement by the Department of Justice has renewed the widespread debate over the definition of sex discrimination, a dispute which we suspect will not end any time soon. Make sure to stay tuned to our blog and Twitter account for updates and insights on this important legal issue!

By Matthew J. GagnonChristopher J. DeGroff, and Gerald L. Maatman, Jr.

Seyfarth Synopsis: With uncertain times and profound changes anticipated for the EEOC, employers anxiously await what enforcement litigation the EEOC has in store. Although 2016 showed a marked decline in filings, fiscal year 2017 shows a return to vigorous enforcement filings, with a substantial number of filings in the waning days of the fiscal year.

Employers are living in uncertain times. The impact of a Trump Administration and the EEOC’s new Strategic Enforcement Plan (SEP) for fiscal years 2017-2021 are still working themselves out in the FY 2017 filing trends. Nonetheless, one trend has reemerged: a vigorous number of EEOC case filings. It looks like the anemic numbers of FY 2016 were just a bump in the road, as FY 2017 has revealed an increase in total filings, even eclipsing the numbers from FY 2015 and 2014. (Compare here to here and here.) This year, the EEOC filed 202 actions, 184 merits lawsuits and 18 subpoena enforcement actions.

The September filing frenzy is still an EEOC way-of-life, as this past month yet again holds the title for most filings compared to any other month. At the time of publication, 88 lawsuits were filed in September, including 21 in the last two days alone. In fact, the EEOC filed more cases in the last three months of FY 2017 than it did during all of FY 2016. The total number of filings for the remaining months remains consistent with prior years, including a noticeable ramp up period boasting double digit numbers through the summer.

Filings out of the Chicago district office were back up in FY 2017 after an uncharacteristic decline to just 7 total filings in 2016. This year, Chicago hit 21 filings, an enormous increase from last year. This is closer to the total number of Chicago filings in FY 2015 and 2014 (26 in each year). The Los Angeles district office also increased its filings, hitting a high of 22, a substantial jump compared to previous years and the most of any district office in FY 2017. On the other end of the spectrum, the Phoenix district office has seen a notable drop, with only 7 filings compared to 17 in FY 2016.

New SEP, Same Focus

Every year we analyze what the EEOC says about its substantive focus as a way to understand what conduct it is targeting. This year, Title VII takes center stage. Although Title VII has consistently been the largest category of filings, last year showed a dip in the percentage of filings alleging Title VII violations, at only 41%. Nonetheless, this year Title VII has regained its previous proportion, accounting for 53% of all filings. This is on par with FY 2015 and 2014, showing once again that FY 2016 seems to have been an outlier.

Although the 2017-2021 SEP outlined the same general enforcement priorities as the previous version of the SEP (covering FY 2012 to 2016), the new SEP added “backlash discrimination” towards individuals of Muslin/Sikh/Arab/Middle Eastern/South Asian communities as an additional focus. One would expect this focus might increase the number of Title VII claims alleging either religious, racial, or national origin discrimination. However, those filings stayed relatively even, and were even a bit down from previous years. Religious, national origin, and race discrimination claims made up 42% of all Title VII claims, compared to 50% in 2016 and 46% in 2015.

Uncertainty For Equal Pay Claims

With a new administration came a new Acting Chair for the EEOC. President Trump appointed Victoria Lipnic as Acting Chair on January 25, 2017. Employers expected the EEOC’s new leader to steer the EEOC’s agenda in a different direction. Some believed Lipnic was foreshadowing future trends when she made it clear at her first public appearance – hosted by none other than Seyfarth Shaw – that she is “very interested in equal pay issues.” (See here.) And indeed, we have seen a slight uptick in the number of EPA claims filed in FY 2017. In FY 2017, The EEOC filed 11 EPA claims, compared to 6 in 2016, 5 in 2015, and 2 in 2014.

However, on June 28, 2017, President Trump tapped Janet Dhillon as Chair of the EEOC. Dhillon would come to the EEOC with extensive experience in a big law firm and as the lead lawyer at three large corporations, US Airways, J.C. Penney, and Burlington Stores Inc. Although it is too early to know how she could change the direction of the agency if confirmed, it is entirely possible that she could back away from previous goals to pursue equal pay claims more aggressively.

The Trump Administration has also made other moves that may indicate a change in direction with respect to equal pay initiatives. On February 1, 2016, the EEOC proposed changes to the EEO-1 report that would require all employers with more than 100 employees to submit more detailed compensation data to the EEOC, including information regarding total compensation and total hours worked by race, ethnicity, and gender. This was a change from the previous EEO-1 report, which only required employers to report on employee gender and ethnicity in relation to job titles. However, on August 29, 2017, the new EEO-1 reporting requirements were indefinitely suspended. We will have to wait and see whether the slight uptick in EPA claims in FY 2017 was a one-year anomaly.

Implications For Employers

The changes brought by the Trump Administration are still in the process of working themselves down into the rank and file of many federal agencies. The EEOC is no exception. Despite all of the unrest and uncertainty about where the EEOC may be headed, the FY 2017 filing trends largely show a return to previous years, albeit with a slight uptick in EPA claims. Certainly, changes in top personnel will have an impact on how the EEOC pursues its enforcement agenda. Exactly what that impact will be remains to be seen.

Loyal readers know that this post is merely a prelude to our full analysis of trends and developments affecting EEOC litigation, which will be published at the end of the calendar year. Stay tuned for our continued analysis of FY 2017 EEOC filings, and our thoughts about what employers should keep an eye on as we enter FY 2018. We look forward to keeping you in the loop all year long!

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

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

Seyfarth SynopsisAfter a federal district court dismissed the EEOC’s unlawful-interference claim against a private college that had sued a former employee for allegedly breaching a settlement agreement by filing an EEOC charge, the Tenth Circuit reversed the dismissal of the EEOC’s unlawful-interference claim, citing the employer’s introduction of a new case theory relative to the EEOC’s still-pending retaliation claim.

This ruling serves a cautionary tale for employers regarding the timing of their assertion of new case theories in EEOC litigation involving multiple claims.


After CollegeAmerica resolved a dispute with a former employee by entering into a settlement agreement, upon belief that the employee breached the settlement agreement, CollegeAmerica sued the employee in state court.  Id. at *1-2.  Thereafter, the EEOC sued CollegeAmerica in federal court alleging that CollegeAmerica’s interpretation and enforcement of the settlement agreement was unlawfully interfering with statutory rights of the former employee and the EEOC.  Following the U.S. District Court for the District of Colorado’s dismissal of the EEOC’s claim for unlawful-interference with statutory rights, on appeal in EEOC v. CollegeAmerica Denver Inc., No. 16-1340, 2017 U.S. App. LEXIS 17094 (10th Cir. Sept. 5, 2017), the Tenth Circuit reversed the dismissal, holding that the EEOC’s unlawful-interference claim should not have been dismissed as moot in light of a new theory asserted by CollegeAmerica prior to its trial regarding the EEOC’s pending retaliation claim.

Employers should keep this ruling in mind when preparing trial theories that may have implications on claims that had previously been dismissed as moot.

Case Background

The EEOC brought a claim for unlawful-interference with statutory rights, which the District Court ultimately dismissed as moot.  Regarding the EEOC’s retaliation claim, which remained for trial, CollegeAmerica presented a new theory against the employee: that she had breached the settlement agreement by reporting adverse information to the EEOC without notifying CollegeAmerica.  In response, the EEOC argued that by presenting this new theory, CollegeAmerica was continuing to interfere with the statutory rights of the former employee and the EEOC.  As such, the EEOC appealed the dismissal of its unlawful-interference claim, arguing that the claim was no longer moot in light of CollegeAmerica’s new theory.

The Tenth Circuit’s Decision

The Tenth Circuit reversed the dismissal of the of the EEOC’s unlawful-interference claim.  First, the Court instructed that in determining whether a claim is moot, a special rule applies when the defendant voluntarily stops the challenged conduct.  Id. at *4-5.  When the conduct stops, the claim will be deemed moot only if two conditions exist: (1) it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.  In arguing that the case was moot, CollegeAmerica submitted two declarations from its general counsel assuring that CollegeAmerica would not take the “positions known to trouble the EEOC.”  Id. at *6.  In response, the EEOC argued that the declarations should not be relied upon since CollegeAmerica presented a new theory after the filing of the declarations–that the employee had breached the settlement agreement by reporting adverse information to the EEOC without notifying CollegeAmerica–an argument that continued CollegeAmerica’s unlawful interference with statutory rights.  The Tenth Circuit held that because CollegeAmerica planned to present its new theory in its state court suit, the potential for CollegeAmerica to repeat its allegedly wrongful behavior remained, and CollegeAmerica thus did not satisfy its burden of demonstrating the absence of a potential for reoccurrence.  Id.

Next, the Tenth Circuit rejected CollegeAmerica’s argument that the case was moot because the outcome “would not affect anything in the real world.”   Id. at *7.  The Tenth Circuit noted that in its state court suit, CollegeAmerica planned to argue that the employee breached the settlement agreement by reporting adverse information to the EEOC without notifying CollegeAmerica. The EEOC alleged that this argument would constitute unlawful-interference with the employee’s rights, and thus sought a permanent injunction prohibiting CollegeAmerica from unlawfully interfering with the statutory rights of the employee and the EEOC.  The Tenth Circuit accepted the EEOC’s argument, holding that if the EEOC prevailed on the merits and obtained an injunction, CollegeAmerica could not present its new theory in the state court suit against the employee, which “would constitute an effect in the real world.”  Id.

Finally, the Tenth Circuit declined to consider CollegeAmerica’s argument that the EEOC’s unlawful-interference claim brought under 29 U.S.C § 626(f)(4) failed as a matter of law since it could not be used as an affirmative cause of action, noting the District Court had not yet ruled on the issue and therefore it was to consider that issue on remand.  Id. at *7-8.  The Tenth Circuit also refused to consider CollegeAmerica’s argument that the EEOC sought overly broad, unauthorized injunctive and declaratory relief, explaining it would not consider this issue since it was raised on appeal for the first time.  Accordingly, the Tenth Circuit reversed and remanded the District Court’s dismissal of the EEOC’s unlawful-interference claim.

Implications For Employers

For employers facing litigation, this ruling provides an important lesson: when considering the defense of one claim, it is imperative to be cognizant of how that argument can impact the defense of another claim, even if the other claim has been dismissed.  Further, this decision illustrates the EEOC’s willingness to combat employers who bring causes of action against former employees who may have breached settlement agreements by asserting discrimination claims.  As such, employers should be cautious when suing former employees who later file EEOC charges, and must exercise further caution when considering how their strategies to defend one claim may affect another.

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

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

Seyfarth Synopsis: Four African-American teachers alleged that their school district employer discriminated against them on the basis of race by failing to hire them as assistant principals, and filed a motion for class certification. A federal district court in Florida denied the teachers’ motion for class certification, finding the employees failed to satisfy the commonality requirement of Rule 23 based on the exercise of discretion by different hiring principals at different schools. The ruling has important lessons for employers facing Rule 23 motions in workplace class actions.


In Gittens v. The School Board of Lee County, Florida, No. 2:16-CV-412, 2017 U.S. Dist. LEXIS 115987 (M.D. Fla. July 7, 2017), Plaintiffs brought suit against their employer, the School Board of Lee County, Florida (“School District”), alleging that the School District discriminated against them on the basis of their race, i.e., African-American.  After Plaintiffs moved for class certification, Judge Mac R. McCoy of the U.S. District Court for the Middle District of Florida denied their motion, finding that Plaintiffs “fail[ed] to provide the necessary glue to hold the putative class claims together under [the] commonality analysis,” that was set forth in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).  Id. at *34.  The Court also found that Plaintiffs failed to demonstrate the sufficiency of the proposed class definition, the ascertainability of the putative class, adequacy, typicality, and the Rule 23(b) requirements.

For employers facing workplace class actions where putative class members are subjected to employment decisions by different supervisors at different facilities, this ruling is another post-Wal-Mart employer victory that can be used to oppose class certification.

Case Background

Plaintiffs, four African-Americans, held various teaching and administrative positions at various schools within the School District.  Id. at *6-12.  All four Plaintiffs had advanced degrees, and sought administrative positions at various schools, including the position of assistant principal.  All four had at least one interview for the assistant principal position, and two were interviewed by panels of all-White school administrators.  All four Plaintiffs were rejected for assistant principal positions.

To be considered for an assistant principal position, an applicant must first apply and be accepted into the AP Pool.  Id. at *13.  Once accepted, an individual may then apply and be hired for a specific assistant principal position at a certain school.  Each individual school advertises its open assistant principal positions, screens the applicants, conducts its own interviews and, when selected by the Principal of that specific school, the candidate’s name is submitted to the Superintendent, who then sends it to the School Board for final approval.

Plaintiffs alleged that the School District had a pattern or practice of refusing to hire well-qualified, African-American employees to administrative positions.  After bringing class-wide allegations under Title VII for race discrimination, Plaintiffs moved to certify a class of current and former employees who had applied for various positions with the School Board, including assistant principal positions.

The Decision

The Court denied Plaintiffs’ motion for class certification.  First, the Court rejected Plaintiffs’ class definition, “[a]ny and all black/African-American employees who applied for an AP Pool position in the four years preceding this action but who were denied such a position by Defendant,” as being improperly vague and ambiguous.  Id. at *18-20.  The Court noted that that the class definition was unclear as to whether “denied”  referred to the AP Pool or the actual assistant principal position.

After the Court found that Plaintiffs satisfied the numerosity requirement of Rule 23, it held that Plaintiffs failed to establish that there were common questions of law or fact sufficient to satisfy the commonality requirement.  The Court opined that “[s]imilar to [Wal-Mart v. Dukes], the Plaintiffs here wish to bring suit calling into question a relatively large number of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.”  Id. at *28 (internal quotation marks and citation omitted).  The Court held that the exercise of discretion by schools and principals over time at different schools precluded a finding of commonality.  Id. at *30.

Turning to the typicality requirement of Rule 23, the Court held that the named Plaintiffs failed to meet this requirement because each individual school advertised its opening for an assistant principal position and had its own decision-maker screening applicants and conducting interviews before the school principal selected the top applicant.  Id. at *37.  The Court determined that Plaintiffs did not meet their burden to show that their claims were based on the same event, pattern, or practice as the claims of other putative class members.  Regarding the adequacy of representation requirement, citing Plaintiffs’ counsel’s motion to withdraw as counsel of one of the named Plaintiffs due to “a breakdown in the attorney-client relationship,” the Court concluded that Plaintiffs failed to meet their burden.  Id. at *39-40.  Finally, Plaintiffs could not meet the Rule 23(b) requirements since not all of the Rule 23(a) requirements were met.  Id. at *40-41.  Accordingly, the Court denied Plaintiffs’ motion for class certification.

Implications For Employers

One of the most crucial events in employment law class actions is class certification briefing, which can potentially lead to several more commas and zeros in a settlement figure or jury verdict if an employer is not successful.  The Wal-Mart v. Dukes decision has given employers an avenue to attack large class actions where decisions made by different supervisors at different facilities can make it difficult for employees to prove common questions of law and fact.  Although the Court here identified several reasons not to certify this particular putative class, employers are now armed with another post-Wal-Mart ruling that they can use as a blueprint to fight class certification on the basis of commonality.

finger-150x112By Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth Synopsis: The Fourth Circuit recently affirmed a U.S. District Court’s denial of three post-verdict motions brought by an employer in an EEOC religious discrimination case alleging a failure to accommodate an employee’s Anti-Christ fears. The case is an interesting read for any employer involved in religious discrimination issues.


Most religious accommodation lawsuits brought by the EEOC against employers concern mainstream religions. But when the EEOC successfully sues an employer for failing to accommodate an employee’s Anti-Christ fears, employers need to pay attention, especially when that cases involves a jury verdict awarding over $586,000 in total damages (as we blogged about here).

In EEOC v. Consol Energy, Inc., No. 16-1230, 2017 U.S. App. LEXIS 10385 (4th Cir. June 12, 2017), the EEOC alleged that the defendants (“Consol”) refused to provide an employee with a religious accommodation by subjecting him to a biometric hand scanner for purposes of clocking in and out of work.  The employee believed the hand scanner was used to identify and collect personal information that would be used by the Christian Anti-Christ, as described in the New Testament Book of Revelation, to identify followers with the “mark of the beast.”  Following a jury verdict in favor of the EEOC, the U.S. District Court for the Northern District of West Virginia denied Consol’s renewed motion for judgment as a matter of law under Rule 50(b), motion for a new trial under Rule 59, and motion to amend the Court’s findings and conclusions under Rule 59.  Following the employer’s appeal, the Fourth Circuit affirmed.

With the Fourth Circuit affirming the District Court’s ruling after an eyebrow-raising EEOC jury trial victory, it behooves the interests of employers to consider any and all religious accommodation requests.

Case Background

In the summer of 2012, Consol implemented a biometric hand-scanner system at the mine where the employee worked, in order to better monitor attendance and work hours. Id. at *4.  The scanner system required each employee checking in or out of a shift to scan his or her right hand; the shape of the right hand was then linked to the worker’s unique personnel number.  While Consol implemented the scanner to produce more efficient and accurate time reporting, the employee alleged it presented a threat to his core religious commitments.

As the employee consistently and unsuccessfully sought an accommodation that would preclude him from having to clock in with the scanner, Consol meanwhile allowed employees with injured hands to scan in using a different keypad system.  Id. at *7.  Eventually, the employee decided to retire in lieu of using the hand-scanner, and later found a lower paying job.  The EEOC thereafter brought an enforcement action against Consol on behalf of the employee, alleging a failure to accommodate religious beliefs and constructive discharge.  Id. at *9.  After the case ultimately proceeded to trial, the jury found Consol liable for failing to accommodate the employee’s religious beliefs.  The jury awarded $150,000 in compensatory damages and $436,860.74 in front and back pay and lost benefits.  Id. at *10-11.  Consol then filed a renewed motion for judgment as a matter of law under Rule 50(b), a motion for a new trial under Rule 59, and a motion to amend the Court’s findings and conclusions under Rule 59.  The District Court denied all three post-verdict motions, and Consol appealed.  Id. at *11.

The Fourth Circuit’s Decision

The Fourth Circuit affirmed the District Court’s denial of Consol’s three post-verdict motions.  First, Consol challenged the denial of its renewed motion for a judgment as a matter of law, arguing that the District Court erred in concluding that there was sufficient evidence to support the jury’s verdict against it.  Consol argued that it did not fail to reasonably accommodate the employee’s religious beliefs because there was in fact no conflict between his beliefs and its requirement that he use the hand scanner system.  The Fourth Circuit rejected this argument, noting that in both the employee’s request for an accommodation and his trial testimony, the employee carefully and clearly laid out his religious objection to use of the scanner system.  Id. at *13.

Next, regarding the District Court’s denial of its motion for a new trial under Rule 59, Consol raised a handful of objections that primarily related to the District Court’s exclusion of evidence and various issues related to jury instructions.  Id. at *20.  The Fourth Circuit noted that it would “ respect the [D]istrict [C]ourt’s decision absent an abuse of discretion, and will disturb that judgment only in the most exceptional circumstances.”  Id. (internal quotation marks and citation omitted).  Further, it opined that, “[w]hen, as here, a new trial is sought based on purported evidentiary errors by the district court, a verdict may be set aside only if an error is so grievous as to have rendered the entire trial unfair.”  Id.  Applying this standard, the Fourth Circuit found that the District Court did not abuse its discretion.  Regarding the jury instructions, the Fourth Circuit held that the District Court properly found that Consol failed to show any prejudice arising from any of the instructions at issue.  Id. at *26.

Finally, both parties cross-appealed the District Court’s rulings on lost wages and punitive damages.  The Fourth Circuit rejected Consol’s argument that the employee failed to adequately mitigate his damages by accepting a lower paying job, noting that whether a worker acted reasonably in accepting particular employment is preeminently a question of fact, and that it would not second-guess the District Court.  The Fourth Circuit also rejected the EEOC’s cross-appeal regarding punitive damages, holding that the district court did not err in concluding that the EEOC’s evidence fell short of allowing for a determination that Consol’s Title VII violation was the result of the kind of “reckless indifference” necessary to support an award of punitive damages.  Id. at *34.  Accordingly, the Fourth Circuit affirmed the District Court’s denial of Consol’s three post-verdict motions.

Implications For Employer

While it makes sense from a practical standpoint for employers to foster a work environment that is respectful of its employees’ religious beliefs, this ruling demonstrates that employers should also be tolerant of their employees’ religious accommodation requests for legal and financial reasons.  And although many employers will likely never encounter an employee requesting a religious accommodation to cope with his or her fear of the Anti-Christ, they nonetheless must seriously entertain any and all religious accommodation requests.  Equipped with an Appellate Court affirmation of its jury trial verdict, the EEOC may very well likely “smell blood” in the sea of religious discrimination charges in its backlog.  As such, the best practice for employers is to take a respectful and thoughtful approach to religious accommodation requests to avoid potential EEOC litigation and sometimes unforgiving juries.

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


EEOCBy Gerald L. Maatman, Jr.Christopher J. DeGroff, and Matthew J. Gagnon

Seyfarth Synopsis: Reviewing the EEOC’s case filings during the first half of the Commission’s fiscal year may already reveal some surprising trends, most notably a sharp uptick in the total number of case filings – up 75% from the same point last year – and a corresponding increase in systemic cases.

March 31 was the mid-point of the EEOC’s fiscal year. Given the significant changes brought to the federal government by the Trump Administration, we sharpened our pencils and examined the EEOC’s case filings during the first half of FY 2017 and compared those filings to the first half of FY 2016 to see what changes, if any, the new administration has wrought.

As the chart below reveals, the number of filings is up significantly from the same point in time in FY 2016. From October 1, 2016 through March 31, 2017, there were 35 new cases filed. During the same time period in the prior year, there were only 20. That means that filings are up a whopping 75% for the first half of the year.

Total EEOC Case Filings - 2017 Midyear Review

In addition to a larger number of total filings, we have also seen a rise in systemic cases. These cases – defined as having a significant impact on the development of the law or promoting compliance across a large organization, community, or industry – have long been a strategic priority for the agency. As we blogged about here, Acting Chair of the EEOC, Victoria Lipnic, reaffirmed the agency’s commitment to systemic cases when she spoke to Seyfarth Shaw and our invited guests in February of this year. However, systemic cases have garnered negative attention from Republican members of Congress, so it was not clear whether the EEOC would shift direction under the new Republican leadership.

Although we cannot know for certain which cases the EEOC considers “systemic,” based on our review of EEOC press releases and the substance of the EEOC filings, we have identified a significant uptick in systemic case filings in the first half of FY 2017 compared to the same period in FY 2016. Last year there were only four filings during this time period, compared with nine this year. If this trend holds through to the end of the year, then this could turn out to be a banner year for systemic case filings.

Systemic EEOC Case Filings - 2017 Midyear Review

Finally, we analyzed the particular discrimination theories and statutes that the EEOC is pursuing. That analysis can be seen in the chart below. Not surprisingly, Title VII and Americans with Disabilities Act cases lead the way, with 17 and 14 cases filed respectively. Year after year, those types of cases lead the pack. The number of ADEA cases is slightly higher than this time last year, but is still generally consistent with prior years and does not yet reflect a significant change in direction for the EEOC.

As Seyfarth’s Pay Equity Issues & Insights Blog noted here, Chairperson Lipnic has stated that she is very interested in pay equity issues. However, that level of interest is not yet translating into any increase in Equal Pay Act (“EPA”) cases on a year over year basis. The first half of FY 2017 saw only one EPA case filed, the same as during the same period last year.

EEOC Case Filings By Statute - 2017 Midyear Review

We will continue to monitor trends and developments in EEOC litigation throughout the year so that we can once again bring you our annual comprehensive end-of-year examination of trends affecting EEOC litigation (see here for last year’s version). As always, we look forward to bringing that analysis to you, our loyal readers!

EEOCBy David J. Rowland and Andrew L. Scroggins

Seyfarth Synopsis:  In a case filed May 8 in federal court in New Jersey, the EEOC sued an IT staffing firm for age discrimination on behalf of a candidate seeking placement into an position with one of the firm’s clients.  If the startling allegations are true, the case may be a lay-up for the EEOC, but even if the allegations are inaccurate, staffing firms and companies that utilize staffing resources should view this as a reminder about the process by which they evaluate candidates, and what NOT to do with potentially unlawful instructions from clients.

In EEOC v. Diverse Lynx, Inc., 3:17-CV-03220 (D.N.J), the EEOC alleges that Kadami Vijaisimh posted his resume on the website Diverse Lynx (DL) maintains for job applicants.  The EEOC alleges that at around the same time Vijaisimh posted his resume, DL was sourcing candidates for an IT project management opportunity available at one of its clients.

According to the complaint, Vijaisimh had substantial IT project management experience and was contacted by DL regarding the position. After several discussions with Vijaisimh regarding the details of the position at issue, DL allegedly wrote Vijaisimh this e-mail:

Thanks for your reply. I check the details of [sic] you. And you [sic] born in 1945. So I discussed with the client side. Age will matter. That why I can’t [sic] be able to submit your profile to client side.

Predictably, DL did not refer Vijaisimh to its client for the IT project management spot and the EEOC alleges it did not do so because of his age.

Taking these facts as true, it is hard to imagine a better case for the EEOC, and it is easy to see why the agency brought it.  But, putting that aside, the alleged actions of the staffing firm in this case serve as a stark reminder of the obligations of staffing firms to comply with employment laws as they work with their clients and candidates to fill open positions.

Here are the top takeaways from the case and some suggested strategies:

Takeaway 1:  In evaluating a candidate, a staffing firm’s recruiters cannot use candidates’ profiles for the purposes of excluding candidates based upon protected statuses.  It is not clear from the complaint what information led DL’s recruiter to conclude that Vijaisimh was born in 1945.  One reasonable presumption is that it was the result of a search of social media sources, such as Facebook, LinkedIn, or Twitter, all of which harbor dangers as a screening tool.  Another reasonable presumption is that it was the result of online searches of publicly available information, which can often be unreliable.

Takeaway 2:  Beware about making assumptions about a client’s wishes.  In this case, if the DL recruiter initiated a conversation with the client about whether age would “matter” for this IT project management job, the staffing firm has not only placed itself in potential trouble, it has also set its client up for a possible legal disaster. It is not clear in this case whether the client actually cared about age, or if that was simply the recruiter’s intuition, but either way, the candidate’s age (specifically or in general) should never have been raised or discussed with the client.

Takeaway 3: A client’s wish is not a staffing firm’s command.  Sometimes a client may make an up-front request for candidates who fit a particular paradigm without considering how the EEOC or plaintiff’s lawyers might construe the language.  Requests like “seeking recent college grads”, “need someone who fits in with our youthful culture”, “inexperienced candidates have been the most successful”, or “fresh blood is needed to replace our aging workforce” are not necessarily intended to be age-based – a recent college grad could be over 40, for example – but they are the sort of quotes that raise the eyebrow of enforcement agencies and may not play well with a jury.

Remedy 1: Publish a written policy.

Staffing firms should memorialize their policies prohibiting employment discrimination against those placed to work with clients, and make the policy available to applicants, employees, and clients.

Remedy 2: Train, train, and train.

Training employees on how and whether to use social media or other online searches is essential for every employer and staffing firm.  Too much can be learned (and put to bad use), and too much of what is learned may be inaccurate.

Staffing firm employees would benefit from training to recognize the types of job “requirements” and messages that could be perceived – rightly or wrongly – as potential problems.

In addition to training to identify potential pitfalls in requests, staffing firm employees would benefit from training on the tools to correct an issue before it becomes a problem.  At a minimum, staffing firm employees should be trained to eliminate questionable phrasing from any job posting or search materials and to fill the position with the most qualified candidate.  Even better, train and empower employees to appropriately counsel (and, where needed, correct) the client who presents a job requisition in less-than-ideal fashion.

Remedy 3: Management support.

Front line staffing employees will be better able to fulfill their duties with management support.  Staffing firm managers should remind their employees to take the extra time to look at how job requirements have been documented to ensure compliance with the letter and spirit of EEO laws.  Staffing firm managers also should lead by example,

Remedy 4:  Staffing agency / client partnership.

In addition to having and sharing a written policy, staffing firms should consider making an explicit statement about the important of equal employment opportunity in its contractual arrangements with clients, ensuring that jobs are filled by the best candidates, without regard to protected characteristics. Periodic reminders to clients will help reinforce this message.

Finally, staffing firms should approach equal employment opportunity matters as an area where their expertise can serve their own and their clients’ interests.  Avoiding potentially problematic requests, and addressing them with clients when questions arise, set up all concerned for future success when staffing.