Lessons From the EEOC's General Counsel's Retrospective: Top Ten Litigation Developments and the Effective Employer's Response

Lesson: Title VII does not explicitly prohibit discrimination in employment based on sexual orientation or nonconformity with "gender norms" (such as gender-specific modes of dress or appearance).  Nonetheless, if your company is covered by Title VII, you should implement and enforce personnel policies to prohibit discrimination based on sexual orientation and nonconformity with gender based norms or you will risk an EEOC investigation and potential liability for unlawful employment discrimination.

3.    Discrimination Against Immigrants, Migrants, and Other "Vulnerable" Workers:  The EEOC has begun to take such discrimination very seriously.  In EEOC v. Moreno Farms, Inc., filed in 2014, a federal jury awarded more than $17 million to five former female employees who suffered sexual harassment and unlawful retaliation while working at a produce-growing and packing operation in Florida.  The U.S. Court of Appeals for the Fourth Circuit, moreover, has recently enforced an EEOC subpoena seeking information pertaining to its investigation of a charge of discrimination alleging "national origin" discrimination and retaliation.  The Fourth Circuit noted that the employer, in seeking to avoid producing the records requested by the EEOC, was "asking the court for carte blanche to both hire illegal immigrants and then unlawfully discriminate against those it unlawfully hired."

Lesson:  You should be sensitive to the rights (and potential claims) of especially "vulnerable workers" or your company faces possible substantial liability for claims of "national origin" discrimination.

2.    Courts and Their Consideration of the EEOC's Pre-Suit Obligations:  Under federal law, the EEOC, after it has determined that there is "reasonable cause" to support a charge of unlawful employment discrimination, must "endeavor to eliminate … such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion" before filing a lawsuit against the employer.

The U.S. Courts of Appeal have not spoken with a unanimous voice as to what the duty of "conciliation" requires, but the Fourth Circuit (among others) has declared that the duty is subject to a standard of "good faith."  The U.S. Supreme Court, further, held just last year that "the EEOC, to meet the statutory condition, must tell the employer about the claim - essentially, what practice has harmed which person or class - and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.  If the Commission does not take those specified actions, [then] it has not satisfied Title VII's requirement to attempt conciliation."

Lesson:  If you are confronted with an EEOC charge of discrimination, "reasonable cause" has been found, and you are interested in compromise, then you should require the EEOC to disclose the practice that has allegedly harmed the employee(s) in question and provide you with a meaningful opportunity to discuss the matter with an EEOC agent in an effort to achieve a compromise acceptable to the EEOC.

1.        TIE: EEOC vs. Hill Country Farms and EEOC vs. Abercrombie & Fitch: In Hill Country Farms, the EEOC sued on behalf of disabled victims of discrimination, which resulted in a summary judgment in favor of the EEOC on wage discrimination claims in the amount of $1.3 million, and in the highest jury verdict in EEOC history of $240 million in favor of the EEOC for 32 disabled victims.  

In Abercrombie & Fitch, a now-famous case involving religious discrimination in which the employer had refused to hire a young Muslim applicant solely because she wore a hijab that violated the company's "Look Policy," the EEOC filed suit and eventually took the case to the U.S. Supreme Court.  The Court, in an 8-1 decision written by the late (and conservative) Justice Scalia, ruled in favor of the EEOC and held that "the rule for disparate treatment claims based on a failure to accommodate a religious practice is straightforward:  An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions."  

Lesson: Be careful to avoid even the appearance that you have taken advantage of disabled employees; and be sensitive to applicants' and employees' religious requirements and accommodate them when you can do so without genuine hardship.