United States: Looking Backward And Forward: A Review Of Key EEOC Developments, Successes And Failures In FY 2015 And What To Watch For In FY 2016

On November 19, 2015, the Equal Employment Opportunity Commission (EEOC) issued its annual Performance and Accountability Report (PAR), which highlights key EEOC developments over the past fiscal year, ending September 30, 2015. This Insight provides a preliminary review of selected statistics highlighted in the PAR and discusses the EEOC's successes and failures during the past fiscal year, particularly focusing on the EEOC's "national priorities" discussed in its Strategic Enforcement Plan.

A comprehensive review of key EEOC statistics, regulatory developments and litigation initiated by the EEOC will be discussed in Littler's upcoming Annual Report on EEOC Developments: Fiscal Year 2015, which will be published in early 2016.

The EEOC reached major milestones in FY 2015. The agency celebrated its 50th anniversary and the 25th anniversary of the Americans with Disabilities Act. As significantly, the EEOC was a party to two cases before the U.S. Supreme Court, EEOC v. Mach Mining, LLC1 and EEOC v. Abercrombie & Fitch Stores,2 and had a prominent role in Young v. UPS,3 as the impact of the agency's 2014 guidance on pregnancy discrimination4 was discussed in the Court's decision.

This Insight provides a summary of key agency and case developments over the past fiscal year, concentrating on the EEOC's focus on systemic5 investigations and related litigation and the EEOC's current priorities based on its Strategic Enforcement Plan (SEP).6

AGENCY DEVELOPMENTS

The past fiscal year started out with some difficult challenges for the EEOC based on a report issued on November 24, 2014, by Lamar Alexander (R-TN), Chairman of the Senate Committee on Health, Education, Labor and Pensions (HELP). The report found:

[T]oday's EEOC is pursuing many questionable cases through sometimes overly aggressive means—and, as a result, has suffered significant court losses that are embarrassing to the agency and costly to taxpayers. Courts have found EEOC's litigation tactics to be so egregious they have ordered EEOC to pay defendants' attorney's fees in ten cases since 2011. The courts have criticized EEOC for misuse of its authority, poor expert analysis, and pursuit of novel cases unsupported by law.7

The November 2014 report by Sen. Alexander immediately preceded the confirmation hearing for David Lopez, who was nominated for a second term as General Counsel for the EEOC. While Lopez faced significant challenges, he was approved for a new term as General Counsel on December 3, 2014 by a Senate vote of 54-43. On that same day, Charlotte Burrows was approved as a new EEOC Commissioner by a Senate vote of 93-2. The Commission ended the year with a 3-2 Democratic majority, with Jenny Yang appointed by President Obama as the Chair of the Commission, and David Lopez continuing in his role as General Counsel. These developments cleared the way for the EEOC's continued focus on its systemic initiative and its current list of priorities.

Even so, the agency faced additional criticism by the Republican members of the HELP Committee in an oversight hearing held on May 19, 2015.8 During this hearing, Sen. Tim Scott (R-SC) was critical of the agency spending resources on EEOC-initiated litigation where a discrimination charge had not even been filed.9 General Counsel Lopez responded by stating such lawsuits involved only a "small fraction" of the EEOC's litigation docket. He responded to criticism regarding one pending large-scale age discrimination lawsuit, which was initiated based on a Commissioner's charge, explaining, "There is a lot of information in that case with evidence of age discrimination." Lopez otherwise highlighted what he viewed as some major achievements during his role as General Counsel, but also stated that litigation should be the "enforcement tool of last resort."10

Chair Yang also testified at the Senate HELP Committee hearing and highlighted what she viewed as significant achievements by the agency, including "ensuring efficient and effective enforcement by using integrated strategies that encourage prompt and voluntary resolution of charges," explaining:

  • Voluntary compliance remains the preferred means of preventing and remedying employment discrimination.
  • In FY 2014, EEOC's mediation program successfully helped employers and employees voluntarily resolve 7,846 (77%) of the 10,221 mediations it conducted.
  • Over the past three years, EEOC has worked with employers to conciliate and voluntarily resolve a greater percentage of cases than in recent history—and with successful conciliations rising from 27% in FY 2010 to 38% in FY 2014. The success rate for the conciliation of systemic charges is even higher (47%), particularly significant as these charges are more complex and have the potential to improve practices for many workers.
  • In 2012, the Commission reaffirmed the importance of systemic enforcement in its Strategic Plan and Strategic Enforcement Plan. Because of these efforts, at the end of FY 2014, 57 out of 228, or 25% of the cases on the EEOC's litigation docket, were systemic. This is the largest proportion of systemic lawsuits on the EEOC's docket since tracking began in FY 2006.
  • In 2014, EEOC's success rate for conciliation of systemic charges of discrimination was 47%.11

KEY STATISTICS FOR FY 2015

On November 19, 2015, the EEOC issued its annual Performance and Accountability Report (referred to as the EEOC's "PAR") for Fiscal Year 2015.12 The PAR reviews the agency's achievements over the past fiscal year, and includes statistics relating to EEOC charge activity and litigation.

According to the FY 2015 PAR, there was a minor increase in the number of discrimination charges compared to those filed in FY 2014 (89,895 in FY 2015 compared to 88,878 in FY 2014). Even so, the level of charge activity has decreased over the past few years. There were 4,000 fewer charges filed in FY 2015 compared to FY 2013 (93,727 charges) and an approximate 10,000-charge decrease from FY 2011 (99,947 charges).13

Despite the general decrease in the number of charges filed with the agency over the past couple of years, the EEOC's backlog of private-sector charges (referred to by the agency as the "Private Sector Charge Inventory") has continued to increase. During FY 2015, the backlog increased to 76,408, increasing slightly from 75,935 charges in FY 2014.14 While this inventory increase was modest, the EEOC had already raised concerns at the end of FY 2014 based on the "major challenge" of its charge inventory, which had increased 7.28% from 70,781 charges to 75,935 between FY 2013 and FY 2014.15 The backlog increased despite hiring 90 investigators. Even with turnover, the net increase in investigators was approximately 60. The EEOC attempted to explain the backlog challenge by referring to the impact of "losing experienced investigators" and the need "to ensure high quality standards for charge processing," but acknowledged, "As it does each year, the EEOC faces a fundamental challenge in efficiently processing the pending inventory of private-sector discrimination charges while improving the quality of charge processing."16

Even so, the most significant trend to closely monitor from an employer's perspective is the EEOC's focus on systemic investigations. During FY 2015, there was a slight increase in the number of systemic investigations completed by the EEOC, and more importantly, in the total monetary recovery based on the resolution of systemic investigations. The EEOC completed 268 systemic investigations in FY 2015, compared to 260 in FY 2014, but the amount obtained in resolving systemic charges increased dramatically from $13 million to $33.5 million.17 While this increase at first blush may be alarming, it is more in line with the amounts recovered in FY 2012 and FY 2013 when the EEOC obtained $36.2 million and $40 million, respectively, through the resolution of systemic investigations.18 More troublesome, however, is the continued increased likelihood of a reasonable cause finding based on a systemic investigation. The EEOC made a reasonable cause finding in 99 out of the 268 systemic investigations completed in FY 2015 (36.0%),19 which is in a range similar to the number of reasonable cause findings in FY 2014 and FY 2013 (45% and 35%, respectively).20 This number is in stark contrast to the EEOC's published statistics showing that historically, the EEOC has issued reasonable cause findings in less than five percent (5%) of the charges filed with the agency.21

Next, turning to litigation, the EEOC has continued its "new normal" by decreasing the number of lawsuits it files. In FY 2015, the agency filed only 142 merits lawsuits.22 While this was a slight increase from the 133 lawsuits filed in FY 2014,23 this trend is similar to the number filed in FY 2013 (131 merits lawsuits) and FY 2012 (122 merits lawsuits), and in sharp contrast to the number of suits filed in prior years (250 or more).24

Among the 142 lawsuits filed in FY 2015, a total of 42 involved "multiple victims," which included 16 systemic lawsuits (i.e., impacting 20 or more individuals).25 While this number may not appear to be significant, a review of the EEOC's cases on its active docket at the end of FY 2015 shows that approximately 40% of the EEOC's active docket (88 out of 218 cases) involves multiple-victim lawsuits, which includes 48 pending lawsuits involving challenges to alleged systemic discrimination (22%).26 Also worth noting is that among the 142 lawsuits filed by the agency during FY 2015, the largest number of lawsuits involved claims under the ADA—37% (53 lawsuits).

KEY PROCEDURAL DEVELOPMENTS

Over the past fiscal year, the EEOC's multi-step procedure for investigating and conciliating discrimination claims prior to suing was closely reviewed by the courts. The impact of the Supreme Court's decision in EEOC v. Mach Mining on the conciliation process was one of the most hotly debated issues among EEO attorneys over the past year, and recent decisions since Mach Mining have addressed the impact of that decision. The potential reach of Mach Mining in limiting a court's review of the EEOC's investigation process was also discussed in the Second Circuit's decision in EEOC v. Sterling Jewelers.27

Impact of Mach Mining

Mach Mining involved litigation initiated by the EEOC and what actions had to be taken by the agency before suing an employer. The focus of the lawsuit was Title VII of the Civil Rights Act of 1964, which expressly states that if the Commission finds "reasonable cause" to believe there is a violation of the Act, the EEOC must first "endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation and persuasion."28 However, the pivotal language relied on by the EEOC to argue that any review of its conciliation obligation is limited stems from the additional statutory provision stating the EEOC may sue an employer if "the Commission has been unable to secure from respondent a conciliation agreement acceptable to the Commission."29

From the EEOC's perspective, the above language was relied on to argue that the "statutory directive to attempt conciliation" is "not subject to judicial review," relying on the ruling by the Seventh Circuit in favor of the EEOC.30 The employer relied on case authority that had imposed a "good faith" obligation on the EEOC concerning its conduct during the conciliation process.

The Supreme Court struck a balance between the two polar positions, holding there is a "strong presumption" favoring judicial review of administrative actions. The Court further held, however, that judicial review would be limited. Based on a reasonable cause finding, the Court contemplates notice to the employer of the EEOC's finding of the alleged violation, and explained what was expected:

Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the alleged discriminatory practice.31

The Court described this obligation as a "barebones review" that gives the EEOC "expansive discretion . . . to decide how to conduct conciliation efforts and when to end them." Any failure by the EEOC would require merely staying the action and requiring the EEOC to meet its conciliation obligation. In fulfilling this statutory requirement, the EEOC is required only to "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." In the Court's view, a "sworn affidavit from the EEOC stating that it has performed its obligations but that its efforts have failed will usually suffice to show that it has met the conciliation requirement."

While the impact of Mach Mining on the conciliation process remains unsettled, two courts recently reached opposite conclusions when reviewing the EEOC's conduct during the conciliation process.

In one decision, EEOC v. Ohio Health,32 as part of a summary judgment motion, the employer took strong exception to the EEOC's approach to the conciliation process. In staying the action and remanding the case for 60 days to require mediation between the parties, the court reviewed the mandate of the Supreme Court's ruling in Mach Mining and concluded "the EEOC has failed to engage in good faith conciliation efforts." In Ohio Health, the district court was presented with an employer declaration asserting that the EEOC had presented its demands during conciliation as a "take-it-or-it proposition, failed to provide information requested by [the employer], demanded a counter offer, and then declared that conciliation efforts have failed despite [the employer] having made it clear that it was ready and willing to negotiate." The court rejected the EEOC's argument that because it had already filed a complaint, "only a public resolution was possible." The court found this position "ridiculous" and cautioned the EEOC that if it "continues down this dangerous path and fails to engage in good faith efforts at conciliation," it potentially would be subject to "contempt and dismissal of this action for failure to prosecute."

In contrast, in EEOC v. Jet Stream Ground Services, Inc.,33 the district court rejected the employer's motion for partial summary judgment where there was an ongoing exchange of proposals during conciliation, but the employer took exception with the EEOC's approach to conciliation. The employer argued that the EEOC did not engage in a "sincere and reasonable conciliation" because it initially proposed that the employer create a settlement fund for "aggrieved individuals" who had not yet been identified, and because the EEOC "demanded that [the employer] reinstate all other aggrieved individuals that it could identify." The employer argued also that the EEOC negotiations on behalf of the interveners evidenced its "bad faith because the EEOC did not negotiate in an individualized manner," and instead made significant economic demands for a group of purported victims "while rejecting individualized offers."

In denying the employer's motion, the district court in Jet Stream acknowledged that the employer "would have preferred individualized settlement counter-offers to match its own," but Mach Mining does not mandate such conduct by the EEOC during the conciliation process. Rather, "the Commission is entitled to 'expansive discretion...over the conciliation process'" and "its efforts need not involve any specific steps or measures." The court concluded that the EEOC had engaged in "substantive conciliation efforts," and "applying the 'limited' scope of review mandated by Mach Mining," the EEOC's settlement efforts "were sufficient to fulfill Title VII's conciliation requirements."

Challenging Scope of EEOC Investigations

The broad reach of Mach Mining was also recently discussed in the context of limiting the scope of review of EEOC investigations. Two decisions addressed the issue: (1) a federal court of appeals (Second Circuit) in EEOC v. Sterling Jewelers34 and (2) a district court in Illinois in EEOC v. AutoZone, Inc.35 In both cases, the courts relied on Mach Mining and determined they would not delve into evaluating the merits of the investigation, and thus rejected efforts to limit the scope of "nationwide" lawsuits filed by the EEOC.

In Sterling Jewelers, the EEOC filed a nationwide lawsuit alleging a pattern or practice of sex discrimination regarding promotion and compensation. Following discovery, the magistrate granted summary judgment in favor of the employer, taking the view that the EEOC's lawsuit was fatally defective because the EEOC did not conduct a nationwide investigation prior to suing. The magistrate further held that the EEOC could not rely on the findings of a statistical expert retained by the charging parties' attorneys, and the subsequent nationwide lawsuit was therefore improper and was justifiably dismissed with prejudice.36 A district court judge affirmed the magistrate's findings.37

In reversing the district court's ruling, the Second Circuit underscored that the courts "may not review the sufficiency of an [EEOC] investigation – only whether an investigation occurred." The court explained that similar to the conciliation process, "an affidavit from the EEOC, stating that it performed its investigative obligations and outlining the steps taken to investigate the charges, will usually suffice." From the court's perspective, "Allowing courts to review the sufficiency of an EEOC investigation would effectively make every Title VII suit a two-step action: First, the parties would litigate the question of whether EEOC had a reasonable basis for its initial finding, and only then would the parties proceed to litigate the merits of the action." Similar to Mach Mining, the Second Circuit concluded there should be only a limited review of the EEOC investigation process, and such efforts should not be permitted to derail litigation by the EEOC. On October 23, 2015 the employer requested a rehearing and full court review of the three-judge panel decision and submitted that the appellate panel was incorrect in relying on the Mach Mining decision.38

The AutoZone case stemmed from three individual charges of disability discrimination at three Illinois stores. Reasonable cause determinations were issued in September 2012 based on the alleged failure to accommodate and the termination of the charging parties. Eight months later, the EEOC amended each determination, finding the employer discriminated against the charging party and a "class of other employees at its stores throughout the United States" based on an attendance policy in which employees were assessed points and eventually discharged for absences, including disability-related absences.

Following unsuccessful conciliation efforts, the EEOC filed a nationwide ADA lawsuit against AutoZone, challenging the company's attendance plan. Although the lawsuit was filed in May 2014, the issue regarding the scope of the lawsuit did not arise until after the EEOC's Amended Complaint, filed in the fall of 2014, which led to the employer moving to limit discovery to the three stores in which the charging parties worked. In its November 4, 2015 decision, the court determined that the employer was seeking a protective order and then focused on the employer's argument that the EEOC could not expand its lawsuit beyond the three stores because there was "not an adequate nationwide investigation" to support a nationwide lawsuit against the employer.

In rejecting the employer's motion in AutoZone, the court underscored that "Title VII does not define 'investigation' or outline any steps the EEOC is required to take in conducting its investigation," and relied on a Seventh Circuit decision in EEOC v. Caterpillar, Inc.,39 prohibiting parties from challenging the sufficiency of an EEOC's investigation.40 The court also relied on Mach Mining and the view that the courts should play a limited role in reviewing the EEOC's pre-suit procedures, explaining, "Although Mach Mining focuses on the 'conciliation' requirement and Caterpillar addresses only the 'investigation' requirement, Mach Mining supports the reasoning applied in Caterpillar." Relying on Mach Mining, the district court concluded that its sole focus should be whether an "investigation" occurred, as required by Title VII, and "not whether the investigation was sufficient to support the charges brought by the EEOC." The court also concluded that based on Mach Mining, Title VII "does not mandate any particular investigative techniques or standards."

The Court also found the reasoning of the Second Circuit decision in Sterling Jewelers to be persuasive. The court held that "at least under the facts at issue here, the EEOC has met its burden to show that it investigated by issuing a determination that: (1) state that the EEOC investigated and; (2) identifies the alleged discrimination discovered during the investigation."

Continued Debate over Permissible Scope of EEOC Investigations

Employers continue to grapple with the scope of the EEOC's investigative authority. An ongoing concern is whether a charge might lead to a systemic investigation by the EEOC.41 While a systemic charge can arise as a pattern-or-practice charge, Commissioner's charge or "directed investigation" involving potential age discrimination or equal pay violations,42 the most frequent issue of concern is when the EEOC expands an individual charge into a systemic investigation.

The courts generally have broadly interpreted the EEOC's investigative authority, and FY 2015 was no different. The best illustration is the Ninth Circuit's decision in EEOC v. McLane Company, Inc.,43 in which the Ninth Circuit ordered an employer to comply with the EEOC's request for "pedigree information" (i.e., name, Social Security number, last known address, and telephone number) based on a subpoena enforcement action after the EEOC expanded its investigation of an individual sex discrimination charge (based on pregnancy) stemming from the charging party's termination for failing to achieve the required score on a isokinetic strength test upon her return to work.

In the McLane case, all new employees and employees returning from leave exceeding 30 days had to take the test. The charging party's termination occurred after she took the test three times and failed to receive the minimum score required for her position. During the investigation, the employer disclosed that it used the resistance test at its facilities nationwide for all positions classified as physically demanding. The EEOC ultimately expanded its investigation nationwide for the division in which the charging party was employed and required the pedigree information for all those who had taken the test. For all those who were terminated after taking the test, the EEOC requested the reason for termination.

The subpoena enforcement action arose after the employer failed and/or refused to provide the requested information. The district court concluded that the EEOC did not need to know the pedigree and related information to determine whether the company used the test to discriminate on the basis of sex and refused to enforce the subpoena. The Ninth Circuit reversed and relied on the Supreme Court's decision in EEOC v. Shell Oil,44 which upheld the EEOC's right to information as part of a systemic investigation based on the view that the "relevance standard....encompasses 'virtually any material that might cast light on the allegation against the employer.'" Based on requiring the information, "the EEOC will be better able to assess whether use of the test has resulted in a 'pattern or practice' of disparate treatment."

A Wisconsin federal district court decision, EEOC v. Union Pacific Railroad Company,45 also is illustrative of the expansive view courts have taken regarding the EEOC's investigative authority. In Union Pacific, the EEOC was investigating the charges of two former employees who alleged race discrimination. During the investigation, the EEOC issued right-to-sue notices to the charging parties, who then sued in federal court. The court subsequently granted summary judgment in favor of the employer. In the interim, despite the EEOC's issuance of the right-to-sue notices and the charging parties' filing of individual lawsuits, the EEOC asserted it was legally entitled to continue to pursue a pattern-or-practice investigation based on information acquired during the initial investigation. A subpoena enforcement action then followed, and the court upheld the EEOC's right to the information based on the view that "[t]he permissible scope of an EEOC lawsuit is not confined to the specific allegations in the charge; rather, it may extend to any discrimination like or related to the substance of the allegations in the charge and which reasonably can be expected to grow out of the investigation triggered by the charge."

The above decisions should be contrasted with at least one appeals court decision during the past fiscal year, EEOC v. Royal Caribbean Cruises, Ltd.46 In this case the Eleventh Circuit joined ranks with the Tenth Circuit47 in limiting the scope of a subpoena in an ADA48 claim in which the EEOC attempted to discover information to support a pattern-or-practice claim against an employer when it was faced solely with an individual ADA claim. The court sided with the employer on both "relevance" and "burdensomeness" grounds. The favorable impact of this decision should be tempered based on the Eleventh Circuit's view that the EEOC could seek such information in a Commissioner's charge, but the EEOC had not elected that option in dealing with the matter under investigation.

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Footnotes

1. EEOC v. Mach Mining, LLC, 135 S. Ct. 1645 (2015).

2. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015).

3. Young v. United Parcel Service, 135 S.Ct. 1338 (2015).

4. EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, No. 915.003 (Updated June 25, 2015).

5. The EEOC has defined systemic cases as "pattern-or-practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location." See EEOC Systemic Task Force Report (March 2006) at 1, available at http://www.eeoc.gov/eeoc/task_reports/systemic.cfm.

6. The EEOC's Strategic Enforcement Plan, which was adopted by the EEOC on December 12, 2012, is available on the EEOC's website at http://www.eeoc.gov/eeoc/plan/sep.cfm.

7. See HELP Committee Press Release, Alexander Report Finds EEOC Missteps Costing Taxpayers and Victims of Workplace Discrimination (Nov. 11, 2014), available at http://www.help.senate.gov/chair/newsroom/press/alexander-report-finds-eeoc-missteps-costing-taxpayers-and-victims-of-workplace-discrimination.

8. See Senate HELP Committee hearing, Oversight of the Equal Employment Opportunity Commission: Examining EEOC's Enforcement and Litigation Programs (May 19, 2015), available at http://www.help.senate.gov/hearings/oversight-of-the-equal-employment-opportunity-commission-examining-eeocs-enforcement-and-litigation-programs.

9. See Kevin McGowan, EEOC Officials Respond to GOP Criticisms During Senate Committee Oversight Hearing, Daily Labor Report (May 19, 2015), available at http://www.bna.com/eeoc-officials-respond-n17179926736/.

10. Id.

11. See Statement of Jenny R. Yang, Chair U.S. Equal Employment Opportunity Commission Committee on Health, Education, Labor and Pensions U.S. Senate (May 19, 2015), available at http://www.eeoc.gov/eeoc/legislative/yang_5-19-15.cfm.

12. See EEOC's FY 2015 PERFORMANCE AND ACCOUNTABILITY REPORT (herein " FY 2015 PAR") and Press Release, EEOC, EEOC Issues FY 2015 Performance Report (Nov. 19, 2015), available at http://eeoc.gov/eeoc/newsroom/release/11-19-15.cfm.

13. See Littler's Annual Report on EEOC Developments: Fiscal Year 2014 (herein "Littler 2014 Annual Report on EEOC") at 18, available at http://www.littler.com/annual-report-eeoc-developments-fiscal-year-2014.

14. Compare FY 2015 PAR at 11 to FY 2014 PAR at 46, available at available at http://www.eeoc.gov/eeoc/plan/2014par.pdf; see also Press Release, EEOC, EEOC Issues FY 2014 Performance Report (Nov. 18, 2014), available at http://www.eeoc.gov/eeoc/newsroom/release/11-18-14.cfm.

15. See FY 2015 PAR at 52 and FY 2014 PAR at 46.

16. See FY 2015 PAR at 52.

17. Compare FY 2015 PAR at 36 to FY 2014 PAR at 29.

18. See FY 2012 PAR at 28, available at http://www.eeoc.gov/eeoc/plan/2012par.cfm, and FY 2013 PAR at 32 available at http://www.eeoc.gov/eeoc/plan/2013par.cfm.

19. While the number of reasonable cause findings for systemic investigations completed in FY 2015, is not included in the FY 2015 PAR, this information was provided to Littler by a senior official at the agency.

20. See FY 2014 PAR at 27 and FY 2013 PAR at 32.

21. See EEOC statistics, "All Statutes, FY 2007- FY 2013," available at http://eeoc.gov/eeoc/statistics/enforcement/all.cfm.

22. See FY 2015 PAR at 34.

23. See FY 2014 PAR at 27.

24. See Littler's 2014 Annual Report on EEOC Developments at 20.

25. See FY2015 PAR at 34.

26. Id.

27 EEOC v. Sterling Jewelers, 2015 U.S. App. LEXIS 15986 (2d Cir. Sept. 9, 2015).

28. 29 U.S.C. §2000e-5(b).

29. 29 U.S.C. §2000e-5(f)(1).

30. See EEOC v. Mach Mining, 738 F. 3d 171, 177 (7th Cir. 2013).

31. Mach Mining, 135 S.Ct. 1645, No. 13-1019, slip op. at 13.

32. See EEOC v. Ohio Health Corp., 2015 U.S. Dist. LEXIS 84016 (S. D. Ohio June 29, 2015).

33. EEOC v. Jet Stream Ground Services, Inc., 2015 U.S. Dist. LEXIS 130838 (D. Colo. Sept. 29, 2015).

34. EEOC v. Sterling Jewelers, Inc., 2015 U.S. App. LEXIS 15986 (2d Cir. Sept. 9, 2015).

35. EEOC v. AutoZone, Inc., 2015 U.S. Dist. LEXIS 149849 (N.D. Ill. Nov. 4, 2015).

36. EEOC v. Sterling Jewelers, Inc., 2014 U.S. Dist. LEXIS 304 (W.D.N.Y. Jan. 2, 2014) (Magistrate Judge recommendation).

37. EEOC v. Sterling Jewelers, Inc., 2014 U.S. Dist. LEXIS 31524 (W.D.N.Y. Mar. 10, 2014).

38. EEOC v. Sterling Jewelers, Inc., No. 14-1782-CW (2d Cir.) (Notice of Appeal Filed Oct. 23, 2015).

39. EEOC v. Caterpillar, Inc., 409 F. 3d 831 (7th Cir. 2005).

40. See Id.

41. The EEOC has defined systemic cases as "pattern-or-practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location." See EEOC Systemic Task Force Report (Mar. 2006) at 1, available at http://www.eeoc.gov/eeoc/task_reports/systemic.cfm.

42. See Barry A. Hartstein, et al., Annual Report on EEOC Developments: Fiscal Year 2013, at 31-32, available at http://www.littler.com/publication-press/publication/annual-report-eeoc-developments-fiscal-year-2013.

43. EEOC v. McLane Company, Inc., 2015 U.S. App. LEXIS 18702 (9th Cir. Oct. 27, 2015).

44. EEOC v. Shell Oil, 466 U.S. 54 (1968).

45 EEOC v. Union Pacific Railroad Company, 2015 U.S. Dist. LEXIS 57305 (E.D. Wis. May 1, 2015).

46. EEOC v. Royal Caribbean Cruises, Ltd., 2014 U.S. App. LEXIS 21228 (11th Cir. Nov. 6, 2014).

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In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions