EEOC Benchslapped for Umpteenth Time on Criminal Background Checks 2019-08-07T13:58:37-06:00

Posted on August 7, 2019

In a case with a truly byzantine court history, Texas v. EEOC, Texas has once again prevailed in striking down the EEOC’s “guidance” on employer use of arrest and conviction records.

Way back in 2012, the EEOC issued “guidance” making it extremely hard for employers to categorically exclude candidates based on criminal arrest or conviction records. Among other things, the “guidance” required employers to exclude candidates only when the specific criminal conduct involved for a specific candidate creates risks inherent in that candidate’s particular position.

The EEOC did not follow the strictures of the Administrative Procedure Act in formulating this “guidance”, but simply imposed it by administrative fiat. This piqued the great State of Texas, since its laws provide for the blanket exclusion of felons in certain agencies and school systems. To make a long procedural story short, the case effectively went up on appeal to the Fifth Circuit three times. In this latest appeal, the Fifth Circuit devoted the vast majority of its opinion to constitutional standing and jurisdiction. But, with a mere three pages of the 27-page opinion remaining, the Court concluded that the EEOC overstepped its authority when it adopted the “guidance” and circumvented the Administrative Procedures Act.

This decision should help employers challenge the “guidance” in other settings. While the decision involved only the State of Texas, the Fifth Circuit’s rationale under the Administrative Procedure Act should resonate with respect to other public and private employers. Having blogged on this case ad nauseum, and having repeatedly railed against agencies such as the EEOC for circumventing the Administrative Procedure Act through unofficial “guidance”, we really, really hope this case will serve as a deterrent to agencies that attempt similar “guidance” end-runs around that Act in the future.

Previous coverage:

“Deference” “Upheld.” 2019-06-26T16:50:25-06:00

Posted on June 26, 2019

By Bill Wright

The Supreme Court’s decision today on “Auer” deference leaves life in the legal trenches untouched. See Kisor v. Wilkie, No. 18-15 (S.Ct. June 26, 2019) Under Kisor, when a regulatory agency issues a rule that is really, truly, ambiguous, and the agency subsequently has an appropriate occasion to think about the rule and reasonably reaches a decision on how to interpret the rule, the courts will defer to the agency interpretation. On the other hand, when an agency issues a deliberately vague rule, and later issues an agenda-driven interpretation of the rule, the courts will agree with the agency interpretation only if the courts find the interpretation persuasive. So, both before and after Kisor, when an employer has to argue in court about the proper interpretation of an EEOC regulation, the employer will argue first about whether the rule is ambiguous or merely vague and will then rehearse the agency’s stated reasons for its interpretation. If the court finds the interpretation “reasonable,” the court might “defer” to the agency. If the court simply agrees with the interpretation, the court will issue a ruling that “agrees,” “upholds,” or “affirms” the standard. Our court arguments will be the same either way. Only the headings in the court’s resulting opinion change.

Nevertheless, the nine-justice court generated four opinions in Kisor. The two longest opinions face off over how much the Court should stray from past precedents on this issue. The justices sometimes called “conservative” favored considering themselves relatively unfettered by previous decisions, free to just decide what’s best. The justices sometimes called “liberal” favored gathering the old decisions together and systematizing them in a new way, but not “overturning” them. Only the Chief Justice and Justice Kavanaugh argued the dispute about precedents was a side show of little practical importance in this particular case.

It appears that the Supreme Court will take every opportunity this term to talk about the value of precedents in a well-governed society. At least in this case, the debate seems to have left life on the ground unchanged.

EEOC Right to Sue Fiasco Ends in Whimper, Not a Bang 2019-06-12T14:35:37-06:00

Posted on June 12, 2019

By John Alan Doran

The EEOC settled a lawsuit challenging its issuance of some 54 “Right to Sue” notices involving BNSF Railway. Law 360 reports that the case settled when the EEOC agreed to set aside the Right to Sue notices.

BNSF sued the EEOC, claiming that the EEOC violated the Administrative Procedures Act (“APA”) when it issued the Right to Sue notices. BNSF asserted that the underlying charge that gave rise to the notices was flawed for a variety of reasons, not the least of which were that the charge did not specify the date of the alleged discrimination, the EEOC Commissioner approved the charge only after he officially left the EEOC, and the EEOC unlawfully disseminated the charge to potential plaintiffs when it was supposed to be confidential. Last year the trial court found that the notices constituted final agency actions that are subject to challenge under the APA.

This is yet another example of the EEOC’s overreach, which led to unnecessary and costly litigation. More importantly, the case may provide a roadmap for employers to challenge the bona fides of Right to Sue notices, which the EEOC has historically issued like candy out of a PEZ dispenser. And, while the EEOC regularly issues self-congratulatory press releases over miniscule settlements, it is notoriously silent on this settlement, which should come as no surprise to any of us.

BNSF Railway Co. v. EEOC, 4:18-cv-0031 (N.D. Tex. 2019).

SCOTUS Limits Common Title VII Defense 2019-06-03T13:06:34-06:00

Posted on June 3, 2019

By: John Alan Doran

The U.S. Supreme Court ruled today that a plaintiff’s failure to properly perfect an EEOC charge is a “prudential” defense to a Title VII claim, which may be waived by the employer’s failure to promptly raise the defense in litigation. Fort Bend County, Texas v. Davis (June 3, 2019).

Davis filed an EEOC charge against Fort Bend County alleging sexual harassment and retaliation. While that charge was pending, Davis attempted to add a religious discrimination claim to her charge by handwriting on her prior EEOC intake questionnaire the word “religion”, and checking the “discharge” and “reasonable accommodation” boxes on that form, but not on the actual EEOC charge. A trial court subsequently entered summary judgment against Davis on the merits of all her claims. The Fifth Circuit partially reversed that ruling, and the case returned to the trial court. It was only then that Fort Bend raised, for the first time, Davis’s failure to claim religious discrimination in her formal EEOC charge. Fort Bend argued that Title VII’s charge-filing procedures are jurisdictional, meaning they are not subject to waiver and can be raised at any stage of the litigation when the plaintiff failed to follow the charge-filing procedures before the lawsuit. The trial court agreed and dismissed the remaining claim. The Fifth Circuit again reversed, holding that Title VII’s charge-filing processes are not jurisdictional and are therefore subject to waiver by the employer. The Supreme Court agreed, holding that the Title VII administrative prerequisites to suit are not jurisdictional, but “prudential.”

Employers frequently seek dismissal of Title VII claims based on a plaintiff’s failure to fully follow Title VII’s charge-filing procedures. The Supreme Court made clear today that this defense must be raised at the outset of litigation or it may be waived. Standing alone, the decision is of limited impact. However, plaintiffs who fail to fully follow the charge-filing procedures will now undoubtedly argue that, if charge-filing procedures are not jurisdictional, they are similarly subject to the “equitable tolling” doctrine, which theoretically excuses plaintiffs from full compliance with the charge-filing process when it is “equitable” to do so. Equitable tolling promotes plaintiff-contrived “dog ate my homework” excuses for failing to follow Title VII’s charge-filing processes. These concocted excuses undermine one of the few employer protections provided in Title VII, while simultaneously undermining the Act’s strong conciliatory purpose. The Court’s decision also fails to explain under what circumstances (or even if) a plaintiff’s non- (or merely partial) compliance with the charge-filing process may be excused by a trial court for “prudential” reasons. To the contrary, today’s decision further fuels litigation over a plaintiff’s failure to comply strictly with Title VII’s charge-filing procedures, while forcing employers to raise any charge-filing defects immediately at the beginning of a lawsuit.

EEO-1 Reprieve 2019-02-21T14:44:59-07:00

Posted on February 21, 2019

By John Alan Doran

Good news from the EEOC for a change! The EEOC announced that it is delaying the deadline to submit EEO-1 data until May 31, 2019. The agency blames “a partial lapse in appropriations” for its need to extend the deadline, but fails to explain why the lapse necessitates the extension. For an agency that has been notoriously stingy with extensions for filing position statements and the like, we are certainly amused to witness its deadline generosity when it comes to its own operational needs.

For more information, click here.

When Trying to Be “Kind” Backfires 2019-01-25T16:35:17-07:00

Posted on January 25, 2019

By Lindsay Hesketh

A federal District Court in Michigan recently found that a plaintiff had presented enough direct evidence of age discrimination to merit a trial. The plaintiff worked as a member of defendants’ kitchen staff for about two months. The day after his termination, plaintiff met with the company’s owner to discuss the situation further. Unbeknownst to the owner, the plaintiff recorded the conversation.

On the recording, the owner said the plaintiff had not been “fitting in” with the rest of the staff. At one point, plaintiff stated, “So you think it’s probably the age difference.” The owner responded, “I think that’s probably a big part of it, from day one.” The conversation continued in a similar fashion.

The plaintiff filed a Charge with the EEOC alleging age discrimination and eventually filed suit against his former employer and its owners. When confronted with the recorded conversation, the owner explained that he “was trying to soften the blow,” “thought it was the kind thing to do,” and “was just trying to make [the plaintiff] feel a little bit better” about the termination.

Lesson learned? While compassion may play an important role in the employee-separation process, employers have to pay attention to how that compassion is displayed. It isn’t “kind” to blame an employment decision on the employee’s age, race, sex, disability or any other protected characteristic; if anything, it is likely to seem unfair – both to the employee and to the court and jury.

Sicuso v. Carrington Golf Club, LLC

EEOC Commissioner Charge Trickery Called Out 2018-12-03T09:06:00-07:00

Posted on December 3, 2018

By John Alan Doran

Back in 2012, the EEOC issued BNSF a “Commissioner’s Charge,” saying it would investigate purported ADA violations by the railroad. For several years, BNSF cooperated with the EEOC’s numerous information requests. During the investigation, BNSF provided the EEOC with the names of 54 BNSF employees, but only after receiving written assurances from the EEOC that these employees were not related to the pending Commissioner’s Charge. Fast-forward to 2018, when the EEOC issued right-to-sue notices to the 54 employees based…(wait for it)…on the supposedly unrelated allegations in the Commissioner’s Charge. BNSF was suitably perturbed and filed suit, asking the court to declare the Commissioner’s Charge and the right-to-sue notices illegal. The complaint alleged the Charge was filed over the signature of a Commission no longer in office and that the EEOC had impermissibly published its findings to members of the public – the 54 unrelated individuals. The EEOC predictably responded that it could not be sued for its trickery. It argued that, because it could always come back and resume an investigation, even after it was “closed,” its right-to-sue notices were not final agency action.

The trial court resoundingly disagreed with the EEOC’s imperious position, and denied the EEOC’s motion to dismiss. The court held that right-to-sue notices ARE final agency action – or final enough to permit suit, and that BNSF had alleged a sufficient legal wrong to permit a remedy under federal law. The court’s decision appears to open the way to broader challenges to the EEOC’s shenanigans, which we applaud. Sadly, the decision also a reminds employers that the EEOC simply cannot be trusted when it describes its position, promises confidentiality, or makes similar representations in the course of an investigation, even when required to do so by law. BNSF Railway v. Equal Employment Opportunity Commission (N.D. Tex. 11/27/18)

Get Your Story Straight! 2018-10-16T14:59:52-06:00

Posted on October 16, 2018

By Alyssa Levy

An employer’s facts in an investigation did not match those it reported to the EEOC in response to the same allegations. The employer created its own factual discrepancy, and based on the discrepancy, the 7^th Circuit reversed the employer’s summary judgment. In this case, the Plaintiff reported to Human Resources that a manager was engaged in sex harassment towards another employee. Days later, HR started a separate investigation into Plaintiff’s own conduct at an offsite event with company vendors six weeks earlier. At the event, Plaintiff took photos of a vendor’s CEO, drunk. The employer fired Plaintiff for taking such photos of the valued partner.

The Plaintiff filed an EEOC charge for retaliation based on her reporting the sex harassment. In response to the EEOC charge, the employer said the decision-maker saw the photos the night they were taken and was not amused, but when Plaintiff’s claims reached court, the employer’s story changed. Suddenly, the decision-maker had heard nothing about the photos until HR started an investigation 6 weeks after the event. The District Court granted summary judgment for the employer, but the 7^th Circuit ruled factual disputes required a trial.

If the employer had presented a single version of the facts, it might have kept its summary judgment ruling. Either story – that the decision maker had or had not seen the photos before the investigation – would have worked. But not both. In the end, the double talk compromised the employer’s defense. This once again highlights the extraordinary legal significance of position statements and reminds us to take the position statement process very seriously.

The case is Donley v. Stryker Corp. , No 17-1195 (7^th Cir. Oct. 15, 2018).

STATE SENATE SUES EEOC? 2018-10-11T16:56:48-06:00

Posted on October 11, 2018

By John Doran

In a classic “man bites dog” story, the Florida Senate filed a federal lawsuit against the EEOC yesterday. The suit seeks to kill an EEOC charge and administrative hearing alleging that a senator sexually harassed a legislative assistant. While the actual dispute involves only a single senator, the entire Florida Senate was named as the respondent. The Senate’s lawsuit claims that the EEOC is stonewalling by refusing to turn over roughly 1,000 pages of evidence and a sworn statement from the alleged victim. Instead, the EEOC has provided only a one-page charge that references, but does not attach any evidence. This, the Senate claims, violates due process. The Senate also claims that it is immune from the charge and hearing process due to sovereign immunity.

Frankly, we are shocked, flabbergasted, and gobsmacked by this alleged EEOC stonewalling. Never before has an employer ever been forced to defend itself to the EEOC with no more information than that provided in a one-page charge. And never before has an employer been denied much-needed information to defend itself by the EEOC. Oh, wait, yes, yes that happens pretty much every single time the EEOC investigates a charge. So good luck with that argument Florida Senate.

Wholesale Harassment 2018-09-18T10:17:50-06:00

Posted on September 18, 2018

By Joe Hunt

A customer at a members-only wholesale club frightened an employee with his constant attention. He asked personal questions, repeatedly asked her out and offered his phone number, touched her face while he asked about darkness under her eyes, tried to hug her twice, and filmed her with his cell phone. When she reported his attentions to her manager, the manager confronted the customer and told him to leave the employee alone. The manager did not ban the customer from the store or revoke his membership, and the harassment continued. The employee called the police and, after more than a year of frequent, unwelcome contact, obtained a restraining order, but the damage was done – the employee had to take unpaid leave because of the stress. Although the employee never returned from leave, the employer went on to ban the customer from the store where the employee had worked, and told her that her internal complaint was closed. When the employee ran into the customer at another store, he screamed profanity at her. Then, the employer canceled the customer’s membership.

Was the customer’s conduct harassment? The employer’s defense was that the customer’s conduct did not rise to the level of severe or pervasive, hostile conduct. A better defense would have been that the employer had taken effective measures to stop the customer’s conduct – if only that had been true. In fact, the employee won at trial on a claim for sexual harassment.

The same standard – severe or pervasive, hostile conduct – applies to both co-worker and customer harassment. Even conduct that is not lewd and offensive in and of itself might count as harassing – especially in the context of stalking. There was plenty of evidence that the employee was terrified by the customer’s conduct and that, by itself, should have been enough for the employer to act. Relying on a careful comparison of legal precedent was the last ditch, and the employer lost.

The case is EEOC v. Costco Wholesale Corp., Nos. 17-2432 & 17-2454 (7th Cir. Sept. 10, 2018).

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