United States: 2016's Top 5 Most Intriguing Developments In EEOC-Initiated Litigation (And A Preview Of Our Annual EEOC Litigation Report)

We are once again pleased to offer our loyal readers our annual analysis of the five most intriguing developments in EEOC litigation in 2016, along with a pre-publication preview of our annual report on developments and trends in EEOC-initiated litigation. That book, titled EEOC-Initiated Litigation: FY 2016, is a thorough analysis of the lawsuits that were filed by the EEOC in FY 2016 (spanning October 2015 through September 2016), and the major decisions impacting EEOC litigation.

We have analyzed those filings and decisions to provide our loyal readers with a comprehensive examination of trends affecting EEOC litigation. Every employer wants to avoid becoming a target of a government lawsuit. We believe the best way to do that is to develop a clear understanding of the EEOC's enforcement agenda, litigation activities, and priorities. Our annual report is intended to give corporate counsel, HR professionals, and other decision-makers the tools they need to keep their companies out of the line of fire.

This year's report once again analyzes enforcement trends impacting employers in the retail, hospitality, manufacturing, healthcare, national resources/construction, and business services industries. That analysis can be found here.

We have also organized the substantive developments according to the EEOC's strategic priorities. FY 2016 was the last year of the EEOC's 2012 Strategic Enforcement Plan (SEP). Now is a perfect time to look back and take stock of what the EEOC has actually done with respect to each of those priorities over the past four years. We think our readers will benefit from understanding how the EEOC interpreted and advanced those priorities over the past four years, especially since the new SEP (covering FY 2017-2021) identifies the exact same priorities.

The full publication will be offered for download as an eBook. To order a copy, please click here.

We always like to end our year with a look back at some of the most interesting decisions and developments of the year. Here is our list of the "top five" most intriguing developments of 2016:

FY 2017-2021 Strategic Enforcement Plan

In FY 2016, the EEOC created and announced a new SEP for fiscal years 2017 through 2021. The new SEP establishes the enforcement priorities that will guide its enforcement efforts over the next four years. Our readers can read all about it here. We closely monitored how the EEOC adjusted its tactics and enforcement agenda in light of its previous SEP and found that it was a reliable guide to how the EEOC pursues its enforcement agenda. The same will probably be true of the new SEP as well.

The new SEP identifies the same six priorities as the earlier SEP. However, it added two substantive areas of focus regarding what it sees as developing and emerging issues in the workplace. Those include "complex" employment relationships, such as temporary workers, staffing agencies, independent contractor relationships, and those that arise in the on-demand economy. The EEOC also identified "backlash discrimination" against Muslims, Sikhs, and other persons of Arab, Middle Eastern, or South Asian descent. Employers that operate within any of the "complex" employment relationships identified by the EEOC, or who employ sizable populations of Muslim or Middle Eastern workers, should take heed.

Continuing Impact Of Mach Mining v. EEOC, 135 S. Ct. 1645 (2015).

In Mach Mining, LLC v. EEOC, the Supreme Court unanimously held that the EEOC's statutorily-required conciliation activities are subject to judicial review. At the same time, however, the Court outlined a very narrow scope of that review. The Court then left it to the lower courts to harmonize those two aspects of its ruling. Despite some initial victories for employers, courts deciding cases in FY 2016 have tended to find that the EEOC had met its obligation, even when the evidence amounted to little more than the EEOC's say-so and was contradicted by the employer. The die is not cast just yet, but if this trend continues, it may become much more difficult for employers to contest the EEOC's "take it or leave it" approach to the conciliation process. Our analysis of this trend can be found here.

Continued Focus On LGBT Discrimination

The EEOC has expended considerable effort advocating for the protection of LGBT rights under the existing anti-discrimination laws. In 2012, it decided – in its own administrative decision – that transgender discrimination is a form of sex discrimination because it is tantamount to discrimination on the basis of a perceived failure to adhere to gender stereotypes. Over the next few years it successfully used that decision to obtain favorable precedent in the federal courts. The EEOC is now using the same tactics to try to establish that Title VII prohibits discrimination on the basis of sexual orientation. On July 15, 2015, the EEOC issued another administrative opinion, which held that Title VII extends to claims of sexual orientation discrimination. It then filed two lawsuits in FY 2016 that allege sexual orientation discrimination, one of which survived a motion to dismiss. Employers should expect that these LGBT issues will remain a centerpiece of the EEOC's enforcement agenda under the new SEP. Our discussion of these developments can be found here.

New EEO-1 Reporting Requirements

The EEO-1 Report requires employers with more than 100 employees (and federal contractors or subcontractors with more than 50 employees) to collect and provide to the EEOC certain demographic information in each of ten job categories. On February 1, 2016, the EEOC proposed changes to the EEO-1 report, which would require employers to submit employee compensation data by gender, race, and ethnicity. Unless implementation is delayed or stopped, employers will have to start filing these new reports on March 31, 2018. Many employers expect and fear that the EEOC will use this new data to bring more lawsuits under the EPA and Title VII alleging wage discrimination. We discuss these new regulations here.

Political Changes

The most significant political development that will shape the EEOC's agenda in the coming years is the election of Trump as the next president of the United States. For at least the first two years of Trump's administration, he will have a Republican majority in both houses of Congress. The EEOC has increasingly relied on large, high-impact "systemic" cases to push forward its strategic goals. These types of cases can have a big impact because they tend to affect a larger number of employees and employers. But those tactics have also been roundly criticized by Republican members of Congress and are a likely target for reform under the new Republican leadership. At minimum, the new administration will bring significant changes to the high-level leadership at the EEOC. That alone will have a significant impact on the EEOC's strategic direction. Our predictions regarding these changes can be found here.

FY 2016 is shaping up to be a fulcrum year in terms of the EEOC's enforcement agenda. Not only does it mark the end of the FY 2013-2016 SEP and the beginning of a new SEP, but also it brings with it the uncertainty of an entirely new political climate and a change-over in the party occupying the White House. In that kind of environment, the only thing that is certain is change itself. We do not know exactly what to expect, but we look forward to reporting on those changes as they happen.

We wish all a happy and safe New Year!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Gerald L. Maatman Jr.
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.