Last week I heard David Lopez, General Counsel of the Equal Employment Opportunity Commission, speak about EEOC litigation developments at the annual North Carolina/South Carolina Labor and Employment Law conference.

The EEOC has been litigating like a house afire, so I knew you would want to hear what he had to say. Mr. Lopez – who reads this blog and likes it! – gave me permission to blog about his presentation.

Mr. Lopez presented his top 10 issues in reverse order, from least to most significant, so I will do the same. (Not that any of these are insignificant.)

10. Racial harassment. Mr. Lopez noted that the EEOC had scored some big wins in this area, generally when the racially offensive behavior was blatant. “Juries don’t like this kind of behavior,” he said, even in parts of the country that you might expect to be more “red” than “blue.” On the other hand, he said, there was much less consensus about “subtler” forms of harassment and discrimination. He didn’t use the word “microagressions,” but I wondered whether that was another area in which we might someday see the EEOC trying to push the envelope.

9. Use of background screens in hiring. No doubt the EEOC is still smarting from its losses against Freeman and Kaplan. On the other hand, the agency won a big settlement in its criminal background check lawsuit against BMW. Mr. Lopez acknowledged that many of the cases hadn’t gone the EEOC’s way, but said the agency had “started a conversation” about the use of this information, noting the growing number of states that have adopted “ban-the-box” legislation.

8. Sex discrimination in hiring. My notes on this one could have been better. But I think Mr. Lopez said that the agency is aggressively going after claims of discrimination in the hiring process because most plaintiffs’ attorneys lack the time and resources to get proof of systemic discrimination and individual cases are not lucrative. I believe he also mentioned litigation in heavy manufacturing environments, where women were rejected for positions based on the belief that they could not handle the physical requirements of the job.

7. Preservation of access to the legal system, aka retaliation. As many of our readers know, this has always been a very high priority issue for the EEOC. In the agency’s view, it can’t do its job if people are deterred from making complaints about discrimination in the workplace or coming to the EEOC. Mr. Lopez had quite a few victories to brag about — in fact, he said that the EEOC was winning about 70 percent of its jury trials on retaliation claims. On the other hand, the Supreme Court decision in Mach Mining (saying that courts could review the EEOC’s conciliation efforts) was not a resounding EEOC victory, although not a total loss for them, either. The EEOC also lost in its challenge to the “confidentiality” and “cooperation” terms in CVS severance agreements (because it didn’t conciliate), but that case is on appeal to the Seventh Circuit, and my guess is that, in light of Mach Mining, the district court will have to decide the case on the merits.

6. Immigrant/migrant/”vulnerable” workers. Mr. Lopez spoke of the EEOC’s desire to protect workers “living in the shadows,” and noted that some employers believe they can evade the law because of linguistic and cultural barriers. He cited an EEOC victory from 2013 against Moreno Farms in Florida, in which a jury awarded five women who were allegedly sexually harassed and raped a total of $17 million. (The farm went under immediately afterward, so it’s not clear that the women got any relief.)

5. Americans with Disabilities Act/reasonable accommodation. Mr. Lopez spent most of this topic talking about the EEOC v. Ford Motor Company telecommuting case involving an employee with severe irritable bowel syndrome. I blogged about the case here and here (obviously, Mr. Lopez and I do not agree on this one). Summary judgment was granted to Ford by the district court, and a three-judge panel of the Sixth Circuit reversed. But Ford asked to have the case heard by all of the judges on the Sixth Circuit, and the majority agreed with the district court, as did I. Mr. Lopez expressed frustration that the full appeals court would not take judicial notice (in other words, they wouldn’t rule on the issue without evidence) of the fact that technology had changed to such a degree that telecommuting is a better reasonable accommodation than it used to be. He also disagreed with the court’s finding that a company shouldn’t be penalized because it allows telecommuting in some cases but not others. On a happier note (for Mr. Lopez), the EEOC won a reversal of summary judgment in EEOC v. LHC Group, with the Fifth Circuit finding that driving was not an “essential function” of the job of home health care nurse team leader.

4. LGBT rights. Mr. Lopez said that the EEOC’s position is that sexual orientation discrimination always violates Title VII. Interestingly, Mr. Lopez claimed support for the agency’s position from — Antonin Scalia! In the Supreme Court decision of Oncale v. Sundowner Offshore Services (1998), the Court decided that a plaintiff could sue for sex harassment under Title VII when he was harassed by his male co-workers for being too “effeminate.” (The plaintiff was not gay, so sexual orientation was not at issue. Gender stereotyping was.) Justice Scalia, who wrote the majority opinion, said this:

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

(Ellipses and brackets in Court’s opinion.)

Mr. Lopez also spoke on the issue of bathrooms and transgender individuals. The EEOC’s position, as I think most of our readers already know, is that transgender individuals have the right to use the restroom of their choice, no matter where they are in the transition process. (In other words, they don’t have to have had surgery yet to be entitled to use a different restroom.)

As I’ve posted here, the EEOC won a $150,000 settlement against an eye clinic in Florida that allegedly discriminated against a transgendered employee. Meanwhile, the EEOC’s lawsuit against the Detroit-area funeral home drags on and on . . .. Mr. Lopez said that the funeral home owner is expected to assert a “Hobby Lobby” defense (presumably, that the owner has a sincere religious objection to employing a transgendered individual). “That case is not going away,” Mr. Lopez said.

3. Pregnancy. This is obviously a very hot area after the Young v. UPS case. Mr. Lopez said that many employers (smaller ones) still don’t know that “Yes, pregnancy discrimination is against the law.” Young was a “game-changer,” Mr. Lopez said, because it gave new life to the second part of the Pregnancy Discrimination Act, which requires treatment of pregnant women that is the same as the employer’s treatment of non-pregnant employees who are “similar in their ability or inability to work.” Mr. Lopez said that he expects Young to result in more jury trials, which he says will ultimately mean fewer jury trials (because employers will learn the law and also be quicker to settle claims). We’ll see.

2. Conciliation requirement. Mr. Lopez said that after the EEOC won the Mach Mining case at the Seventh Circuit (which said that the courts had no authority to review the EEOC’s conciliation efforts), the EEOC consented to have the decision reviewed by the Supreme Court. He said that on the day of oral argument, the usually-packed Supreme Court was deserted. “Even the tourists didn’t care” about about such a technical issue, he said. (Well, ok, but the decision was a big deal for us law nerds.) The victory for employers was that the SCOTUS said the courts do have authority to review the EEOC’s conciliation efforts. The victory for the EEOC, though, was that if the EEOC doesn’t fulfill its obligations, the court just tells the EEOC to go back and conciliate rather than dismissing the lawsuit. Mr. Lopez said that was great for the EEOC’s case against CRST (class action alleging sexual harassment). A number of plaintiffs were dismissed from that case because the EEOC didn’t conciliate (or didn’t conciliate enough). So now the EEOC may be able to get them back into the lawsuit. After it conciliates, of course.

1. Religious accommodation. “This is number one in my heart,” Mr. Lopez said. He was talking about Samantha Elauf, in the EEOC’s case against Abercrombie & Fitch, which I have covered extensively on this blog here, here, here, here, and here (and agreed with the EEOC). When the Supreme Court agreed to hear the case after the EEOC lost at the Tenth Circuit, Mr. Lopez said that he got choked up. “Regardless of what happened in this case, there had already been a victory. . . . This woman because of conscience was able to take her case to the highest court in the land. It made me proud as an attorney, as an American. It was a reaffirmation, I think, in how wonderful our legal process is, even though we sometimes lose, even though we disagree . . ..”

Unlike the Mach Mining turnout at the Supreme Court, Mr. Lopez said everybody was interested in this case — he and Ms. Elauf had to sneak in through a side entrance. “Now I know what George Clooney feels like,” he said. Even though the EEOC’s path to victory was hardly smooth, Mr. Lopez said there was a lot of Monday-morning quarterbacking. “You [EEOC] are winning because you pick the easy cases,” he was told. Sigh.

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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