EEOC-Initiated Litigation: Case Law Developments In 2012 And

EEOC-Initiated Litigation:

Case Law Developments In

2012 And Trends To Watch

For In 2013

14250109v2

March 12, 2013

Seyfarth Shaw LLP©2012 Seyfarth Shaw LLP 2 |

Today’s Discussion Leaders

Gerald L. Maatman, Jr. Christopher DeGroff

Seyfarth Shaw LLP Seyfarth Shaw LLP

Christopher DeGroff of Seyfarth Shaw LLP


Today’s Discussion Points

What Is Hot In The EEOC Enforcement Litigation World?

Key Trends And Developments In 2012 & And What To

Look For In 2013

The EEOC’s New Strategic Enforcement Plan

Noteworthy Settlements And Verdicts In 2012 & 2013

And What They Signal For Employers

Significant Court Rulings In 2012 & Early 2013 And What

They Mean For Employers

What Should Be In Your Tool Kit?


Short Review Of The EEOC’s Systemic

Initiative And Impact On Employers

What Is The Systemic Initiative And What Does It Mean?

• Developed in 2005-2006, But Gaining Momentum In Last 3 Years

• Concerted Move Toward Initiating More Systemic Cases

• Based On The Notion That “Where There Is Smoke (One EEOC

Charge), There Is Likely To Be Fire” (Discrimination Against A

Group Of Employees)

• Employers Will Face More “Class-Like” Cases, Which Are Not

Governed By Rule 23 But Present Similar Exposures

Setting The Stage:

A Leaner, Stronger, Faster EEOC

• Emerging Face Of The EEOC

• Initiatives:

• “National Law Firm Model”

• EEOC Trial Team Program

• EEOC Appellate Program

• Pay Equity Audit Program

• Better Deployment Of Resources

• Augmented Technical Abilities

• Stronger Bench Of Experts

• Emphasis On Quality Over Quantity In

FY2013


Setting The Stage:

EEOC Federal Court Filings

FY 2012 Legal Theories

• 122 Merits Lawsuits

• 86 Individual Suits

• 26 Multiple-Victim Suits

• 10 Systemic Suits

• New Filings Breakdown

• 66 Contained Title VII

Claims

• 45 Contained ADA

Claims

• 12 Contained ADEA

Claims

• 2 Contained Equal Pay

Act Claims

• 33 Subpoena Enforcement

And Other Actions


Setting The Stage: Systemic Cases On

EEOC’s Active Docket


Setting The Stage:

EEOC’s Shifted Focus


Types Of Cases Filed By EEOC FY2012


Significant Settlements In 2012

$11 Million - EEOC v. Yellow Transportation, Inc. and

YRC, Inc., No. 09-CV-7693 (N.D. Ill. June 28, 2012)

$4.5 Million - EEOC v. Interstate Distributor Co., No. 12-

CV-02591 (D. Col. Nov. 8, 2012)

$3.13 Million – EEOC v. Pepsi Beverages, No. 09-CV-

4594 (N.D. Ca. Jan 11, 2012)


Setting The Stage:

EEOC National Strategic Priorities

The SEP lists six national enforcement priorities,

including:

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 Big 6”:

Hiring Cases

Hiring Cases – EEOC Views Itself As Uniquely

Positioned To Litigate These Cases

• EEOC v. Kaplan Higher Education Corp. et al., No.

10-CV-2882, 2013 U.S. Dist. LEXIS 11722 (N.D. Ohio

Jan. 28, 2013)

• EEOC v. Pepsi Beverages, No. 09-CV-4594 (N.D. Ca.

Jan 11, 2012)

• EEOC v. Freeman Companies, No. 09-CV-2573 (D.

Md. 2009)

• EEOC v. PeopleMark, Case No. 08-CV-907 (W.D.

Mich. 2008)


“The Big 6”:

Significant Harassment Cases

Significant Harassment Rulings:

• EEOC and Sherry L. Brown v. Merrill Pine Ridge

LLC, et al., No. 11-CV-589 (W.D. Wi. Jan. 17, 2013)

• EEOC v. South Loop Club, No. 12-CV-7677 (N.D. Ill.

Feb. 6, 2013)

• EEOC v. McPherson Companies, Inc., No. 10-CV-

2627 (N.D. Ala. Nov. 14, 2012)

• EEOC v. Holmes & Holmes Industrial Inc., 2012 U.S.

Dist. LEXIS 146707 (D. Utah Oct. 10, 2012)

• EEOC v. Prospect Airport Services, Inc., U.S. Dist.

LEXIS 103256 (D. Nev. July 25, 2012)


“The Big 6”:

Protecting Vulnerable Workers

• The EEOC identified approximately 90 significant partnerships

in the “vulnerable worker” area, with goals to increase such

partnerships by 10% in both FY 2012 and FY 2014.

• Example: the EEOC has aggressively pursued new and

existing cases in the agriculture industry, noting publically in

one such case:

“Unfortunately, we continue to see cases involving employees who

suffer sexual exploitation at the hands of their bosses. . . . All

workers are entitled to a workplace that is free of harassment and

discrimination, and employers should think twice before assuming

that vulnerable workers will not exercise their rights due to fear or

the lack of understanding”


“The Big 6”:

Pay Discrimination Now Has a Seat at

the EEOC’s Table


January 2012

EEOC Issues Draft SEP

NO PAY OBJECTIVE

June 2012 Public

Comment on SEP

NO PAY OBJECTIVE

July 2012 EEOC Hosts

Full Day Public

Meeting

NO PAY OBJECTIVE

September 2012

EEOC Issues “Revamped” Draft of SEP

NO PAY OBJECTIVE

December 2012

EEOC Approves Final SEP

PAY OBJECTIVE

FIRST TIME PAY EQUITY LISTED AS PRIORITY

“The Big 6”:

Preserving Access To The Legal System

1. Releases That Waive The Right To File Charge

2. Last Chance Agreements

3. Traditional Concepts Of Retaliation


“The Big 6”:

Preserving Access To The Legal System

• Retaliation is the #1 source of all EEOC charges

• In the last 3 months, EEOC has settled 6 large

retaliation cases

• $77,500 – EEOC v. Kintetsu Int’l Express, No. 10-CV-00560 (D.

Haw. Jan. 29, 2013)

• $85,000 – EEOC v. Cappo Mgt., No. 12-CV00239 (M.D. Tenn

Jan. 25, 2013)

• $100,000 – EEOC v. South Loop Club, No. 12-CV-7677 (N.D.

Ill. Feb. 6, 2013)

• $130,000 – EEOC v. D.O.E. Technologies , No. 11-CV-000861

(D. De. Jan 24, 2013)

• $500,000 – EEOC v. Cognis Corp. (Ill.), No. 10-CV-2182 (C.D.

Ill. Jan. 25, 2013)


“The Big 6”:

Emerging Issues

Novel Litigation Theories – Attempts To Push Non-

Traditional Claims

• Lesbian, gay, bisexual, and transgender (“LGBT”)

• Domestic / Dating Violence

• Human Trafficking

• Lactation

• Local / Regional Initiatives


Non-SEP Focus:

Continued Emphasis On ADA Cases

Key Settlements

• EEOC v. Interstate Distributor Co., Case No. 12-CV-

02591 (D. Col. Nov. 8, 2012)

• EEOC v. Hill Country Farms, Inc., 2012 U.S. Dist.

LEXIS 147403 (S.D. Iowa Sept. 18, 2012)


Non-SEP Focus:

Continued Emphasis On ADA Cases

Ground Zero For ADA: Accommodations

• EEOC v. United States Steel Corp. No. 10-CV-1283

(W.D. Pa. Feb. 20, 2013)

• EEOC v. The Picture People, Inc., 684 F.3d 981 (10th

Cir. 2012)

• EEOC v. Tricore Reference Laboratories, 2012 U.S.

App. LEXIS 17200 (10th Cir. Aug. 16, 2012)

• EEOC v. OSI Restaurant Partners, LLC, 2012 U.S.

Dist. LEXIS 31354 (D. Ariz. Mar. 5, 2012)

• EEOC v. Ford Motor Co., U.S. Dist. LEXIS 12800

(E.D. Mich. Sept. 10, 2012)


Non-SEP Focus:

Continued Emphasis On ADEA Cases

• EEOC v. Baltimore County, et al., No. 07-CV-2500 (D.

Md. Oct. 16, 2012)

• EEOC v. Exxon Mobil Corp., No. 06-CV-1732 (N.D.

Tex. Sept. 13, 2012)


Procedural Rulings:

The Application Of § 706’s Limitations

Period • EEOC v. Bass Pro Outdoor World, LLC, 2012 U.S.

Dist. LEXIS 75597 (S.D. Tex. May 31, 2012)

• EEOC v. United States Steel Corporation, et al., 2012

U.S. Dist. LEXIS 101872 (W.D. Pa. July 23, 2012)

• EEOC v. Global Horizons, Inc., et al., 2012 U.S. Dist.

LEXIS 105993 (E.D. Wash. July 27, 2012)

• EEOC v. Princeton Healthcare Systems, 2012 U.S.

Dist. LEXIS 150267 (D. N.J. Oct. 18, 2012)

• EEOC v. Global Horizons, Inc., 2012 U.S. Dist. LEXIS

160729 (D. Haw. Nov. 8, 2012)


Procedural Rulings:

Failure To Conciliate

• EEOC v. Ruby Tuesday, Inc., No. 09-CV-01330, 2013

U.S. Dist. LEXIS 8268 (W.D. Pa. Jan. 22, 2013)

• EEOC v. The Original Honeybaked Ham, No. 11-CV-

02560 (D. Col. Jan. 15, 2013)

• EEOC v. American Somoa Government, et al., No.

11-CV-00525 (D. Haw. Oct. 5, 2012)

• EEOC v. Evans Fruit Co., Inc., No. 10-CV-03033,

2012 U.S. Dist. LEXIS 72836 (E.D. Wash. May 24,

2012)

• EEOC v. United Road Towing, Inc., No. 10-CV-06259

(N.D. Ill. May 11, 2012)


A Word On EEOC Subpoenas

• Record Number Of Subpoena Enforcement Actions

• The EEOC Is Using Its Subpoena Power As An Early

Discovery Tool

• Pursuing More Aggressively Than Ever Before –

Likely Impact Of EEOC v. CRST Van Expedited, Inc.

• Fact Of Life: There Is A Very Short Time Frame To

Challenge An EEOC Subpoena (5 Days)

• Negotiation Methods To Fracture EEOC

Enforcement Actions Or Position The Employer’s

Defense


Scope Of Investigation And Subpoena

Enforcement

Key Subpoena Rulings In 2012

• EEOC v. Farmer’s Pride, Inc., No. 12-MC-148 (E.D.

Pa. Oct. 31, 2012)

• EEOC v. Kronos, Inc., No. 09-MC-00079 (3d Cir. Sept.

14, 2012)

• EEOC v. Nestle Prepared Foods, 2012 U.S. Dist.

LEXIS 71864 (E.D. Ky. May 23, 2012)

• EEOC v. McLane Company, Inc., 2012 U.S. Dist.

LEXIS 164920 (D. Ariz. No. 19, 2012)


Money And Power:

How EEOC’s Political Environment

MayAffect Your Bottom Line

• One critical metric must be considered when trying

to forecast how the EEOC will behave in 2013: the

Commission’s budget.

• Ultimately, the EEOC’s agenda will always be a

reflection of its monetary resources. In late 2011,

Congressional action reduced the Commission’s

annual budget by $6.6 million.

• Commissioner Constance Barker recently

expressed concerns regarding the EEOC’s

allocation of resources at the February 20, 2013

public meeting.



Successful Defense Approaches And

Strategies To Systemic Investigations

More Comprehensive Litigation Hold Notices

Phased Or Stages Responses (To Diminish “Curb Appeal”)

Creation Of Firewalls Around Geographic Areas / Time

Periods

Creating “Reasonableness” & Laying The Groundwork For

A Subpoena Opposition

Selective Strategies In “Calling The EEOC’s Bluff”


General Defense Pointers

Summary Judgment Is Exceptionally Difficult To Obtain,

Slicing And Confining The “Class” – By The Class Period,

Geographic Regions, Etc. – Is The Goal

Experts Are Crucial To Success In Systemic Cases


Negotiating And Settling Litigation With

The EEOC

• Remember Who You Are Dealing With

• Key Differences From Negotiating Settlements With The

Private Plaintiffs’ Bar

• Public Interest Factor

• Media Issues


Consent Decree Essentials

“Ice In Winter” Strategy

Common Features: Training; Revised Policies;

Monitoring (Internal Or External); Record-

Keeping; Posting Of Notice


What Should Be In Your Tool Kit?

Robust E-Discovery And Data Management Capabilities

Rigorous Monitoring Of Key Employee Data (Hiring, Pay,

And Promotions)

Ongoing Review And Assessment Of Workplace Due

Process Practices

Capability To Track Charge Activity

State-Of-The-Art Leave of Absence And Anti-Retaliation

Policies


Questions

EEOC-Initiated Litigation: Case Law Developments In 2012 And

Documents

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