Annual Report On EEOC Developments: Fiscal Year 2014

In This Issue:

- INTRODUCTION

..I. LOOKING BACK AT FY 2014: A REVIEW OF EEOC SUCCESSES AND FAILURES, AND SIGNIFICANT CASES AND DEVELOPMENTS TO WATCH FOR IN FY 2015

..A. Key Statistics

..B. Scope of EEOC Investigations

..C. Conciliation Obligations

..D. The EEOC’s Strategic Plan and Related Enforcement Plan

..1. Eliminating Barriers in Recruitment and Hiring

..2. Protecting Immigrant, Migrant and Other Vulnerable Workers

..3. Emerging and Developing Issues

..a. Pregnancy Discrimination

..b. Religious Discrimination

..c. ADA Claims

..d. LGBT Issues

..4. Enforcing Equal Pay Laws

..5. Preserving Access to the Legal System

..6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach

..E. Proactive Efforts to Challenge the EEOC’s Authority

..F. Attorneys’ Fees

..G. Opening Wrap-Up and What to Watch for in FY 2015

..II. OVERVIEW OF EEOC CHARGE ACTIVITY, LITIGATION AND SETTLEMENTS

..A. Review of Charge Activity, Backlog and Benefits Provided

..B. Continued Focus on Systemic Investigations and Litigation

..C. Systemic Investigations—Comparison Between FY 2013 and FY 2014

..D. EEOC Litigation and Systemic Initiative

..E. Highlights of EEOC Litigation Statistics

..F. Mediation Efforts

..G. Significant EEOC Settlements and Monetary Recovery

..H. Appellate Cases

..III. EEOC REGULATORY AGENCY AND RELATED DEVELOPMENTS

..A. Update on the Commission

..B. EEOC Strategic Plan and Related Enforcement Plan

..C. Noteworthy Regulatory Activities

..1. Initial Planned Agenda and Significant Anticipated Guidance

..2. Employment Background Checks

..3. Pregnancy Discrimination

..4. Religious Grooming Practices

..5. Other Activity: Continued Collaboration with Mexican Consulate

..6. Fair Pay and Safe Workplaces Executive Order

..D. Current and Anticipated Trends

..1. Recruiting and Hiring Issues

..2. Equal Pay Laws

..3. Sexual Orientation and Gender Identity Discrimination

..4. Genetic Discrimination

..5. Social Media

..6. Wellness Programs

..7. National Origin Discrimination

..8. Disability Discrimination Law

..IV. SCOPE OF EEOC INVESTIGATIONS AND SUBPOENA ENFORCEMENT ACTIONS

..A. EEOC Authority to Conduct Class-Type Investigations

..B. Scope of EEOC’s Investigative Authority

..C. Applicable Timelines for Challenging Subpoenas (i.e., Waiver issue)

..D. Who Must Appear to Challenge Subpoena, and who Must be Represented by an Attorney

..E. Review of Recent Cases Involving Broad-Based Investigation by the EEOC

..1. Generally Applicable Standards in Subpoena Enforcement

..2. Subpoenas Broad in Scope and the Resolution of Privilege Issues

..3. EEOC Subpoenas and Electronically Stored Information (ESI)

..4. Limited Defenses Involving Native American Tribes

..F. Confidentiality

..V. REVIEW OF NOTEWORTHY EEOC LITIGATION AND COURT OPINIONS

..A. Pleadings

..1. Attacking Complaint Based on Lack of Specificity

..2. Key Issues in Class-Related Allegations

..3. Who is the Employer?

..4. EEOC Motions—Challenges to Affirmative Defenses

..5. Venue

..6. Miscellaneous

..B. Laches Defenses

..C. Statute of Limitations for Pattern-or-Practice Lawsuits

..D. Investigation and Conciliation Obligations

..1. Challenging Failure to Conciliate in Litigation

..2. The Meaning of “Good Faith Conciliation”

..3. Traps for the Unwary—EEOC Attacks Based on the Good Faith Conciliation Defense

..E. Intervention

..1. EEOC Intervention in Private Litigation

..2. Charging Party’s Right to Intervene in EEOC Litigation

..3. Adding Pendent Claims

..4. Protective Order to Maintain Confidentiality of Alleged Victims

..F. Class Discovery Issues in EEOC Litigation

..1. Bifurcation in EEOC Litigation

..2. Communication with Class

..3. Scope of Discovery Regarding Identification of Class Members

..G. Other Critical Issues in EEOC Pattern-or-Practice and Class-Type Cases

..1. ESI: Electronic Discovery-Related Issues

..2. Reliance on Experts in Class Cases

..H. General Discovery by Employer

..1. General Questions Seeking the Legal and Factual Basis for EEOC Claims

..2. Depositions of EEOC Personnel

..3. Discovery of EEOC-Related Documents

..4. Spoliation

..5. Third-Party Subpoenas

..I. General Discovery by EEOC/Intervenor

..1. Section 30(b)(6) Depositions

..2. EEOC Communications Ex Parte with Former or Current Employees

..3. Spoliation Issues

..4. Financial Information

..5. General Discovery Concerns

..6. Miscellaneous

..J. Summary Judgment

..1. Summary Judgment on the Scope of the EEOC’s Investigation

..2. A Focus on Disability Accommodation and Telecommuting

..3. Continued Focus on Pregnancy Discrimination

..4. U.S. Supreme Court to Decide Whether Conciliation Efforts are Subject To Judicial Review

..K. Default Judgment

..L. Bankruptcy

..M. Trial

..1. Trial Spotlight

..2. Witnesses

..3. Evidentiary Issues

..N. Remedies

..1. Punitive Damages

..2. Additional Remedies

..3. After-Acquired Evidence

..4. Duty to Mitigate

..O. Settlement

..P. Appeal

..Q. Misconduct by EEOC

..R. Recovery of Attorneys’ Fees by Employers

- APPENDIX A—EEOC CONSENT DECREES, CONCILIATION AGREEMENTS AND JUDGMENTS

- APPENDIX B—FY 2014 EEOC AMICUS AND APPELLANT ACTIVITY

- APPENDIX C—SUBPOENA ENFORCEMENT ACTIONS FILED BY EEOC FILED IN FY 2014

- APPENDIX D—FY 2014 SELECT EEOC-RELATED DISPOSITIVE DECISIONS BY CLAIM TYPE(S)

- Excerpt from Key Statistics:

There was a surprising decrease in the number of discrimination charges filed in FY 2014 from the prior year (88,778 in FY 2014, down nearly 5,000 charges from the 93,727 charges filed in FY 2013), the lowest number of charges filed since FY 2007. The significance of this statistic should be viewed in tandem with the FY 2013 Performance and Accountability Report (“FY 2013 PAR”) which reported, “In FY 2013, the EEOC received 93,727 charges. This is approximately a 6,000 charge decrease from the prior three fiscal years.”

Please see full publication below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:

Littler
Contact
more
less

Littler on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide