- The first bill that President Barack Obama signed into law (on Jan. 29, 2009) was the Lilly Ledbetter Fair Pay Act of 2009. The
act amends Title VII, stating that the statute of limitation for filing a charge alleging pay discrimination resets with each new paycheck infected by discrimination. The act expressly reverses the Supreme Court decision in Ledbetter v. Goodyear
Tire & Rubber Co., Inc. This landmark act gave plaintiffs more time to challenge pay discrimination.
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Signing of the Lilly Ledbetter Fair Pay Act of 2009
- The Lilly Ledbetter Act required the EEOC to reopen several hundred investigations and issue new right-to-sue notices to charging parties because the Commission had relied on the Supreme Court's decision as to when the time period to file a charge had begun.
- Congress appropriated $14 million more to the EEOC than it had in 2008, and this enabled the agency to begin to rebuild its workforce. The EEOC has had a flat budget from 2000 to 2008, so as employees left the agency, no one was hired to fill the vacancies. During this tight fiscal period, the agency lost 271 frontline investigators, more than 33% of the investigative workforce. In 2009, the agency brought on board 155 net new hires.
- On March 2, 2009, the Commission published a Notice of Proposed Rulemaking (NPRM) concerning the employment discrimination portion of GINA. At the same time, the EEOC issued a technical assistance document, "Background Information for the EEOC: Notice of Proposed Rulemaking on Title II of the Genetics Information Nondiscrimination Act" that explained the regulations in plain, non-technical language. The EEOC began enforcing GINA on Nov. 21, 2009. On December 7, 2009, the EEOC issued procedural and administrative regulations describing how the agency will process private sector charges and federal sector complaints of discrimination alleging GINA violations.
Chair Jacqueline A. Berrien
- On April 8, David Lopez was sworn in as the General Counsel of the EEOC. He was the first EEOC trial attorney to be appointed as the agency's General Counsel. Lopez had been a career employee of the EEOC for over 20 years, including serving as a special assistant to former Chair Gilbert Casellas and as the Supervisory Trial Attorney in the Phoenix District Office.
- In July 2009, during an economic recession, the EEOC issued a Q&A document on "Understanding Waivers of Discrimination Claims in Employee Severance Agreements."
- Because the ADAAA expanded protection to more disabled workers, the number of ADA charges filed with the EEOC increases by 10% from FY 2008 to FY 2009.
- The EEOC arranges for the National Judicial College to provide EEOC administrative judges (AJs) in the Federal Hearings Program with training on writing judicial decisions. The agency also provides training to AJs on e-discovery, sanctions, summary judgment motions and class actions.
- The EEOC convenes a hearing on age discrimination, "Age Discrimination in the 21st Century - Barriers to the Employment of Older Workers," in response to widespread layoffs, a record spike in age discrimination charges, threats to employee benefits, and recent court decisions that affect the enforcement of age discrimination laws.
- The National Training Institute (formerly the Revolving Fund) sponsors its 12th annual EXCEL Conference (Examining Conflicts in Employment Law) for the federal EEO community. A record 1,100 EEO officials, lawyers, agency representatives and union officials attend the conference in New Orleans. New Orleans is selected as the conference site to assist that city's rebuilding efforts after Katrina
Significant Supreme Court Decisions
- The Supreme Court issued five decisions affecting the Commission and its work. The decisions took an expansive look at
the coverage of the anti-retaliation provisions of Title VII; gave weight to collectively bargained arbitration clauses; held that it was permissible to give less credit for pregnancy leave for pension benefit purposes if the leave was taken before
the Pregnancy Discrimination Act went into effect; held that age must be a "but/for" cause of the contested action; and ruled that an employer need not discard the results of a test that had a discriminatory impact unless the employer could show
that actual reliance would have a discriminatory impact.
Significant Appellate Decisions
- In Sandoval v. American Building Maintenance, Inc., 578 F.3d 787 (8th Cir. 2009), the Eighth Circuit examined the proper test for holding a parent company liable as an employer for sexual harassment of its wholly owned subsidiary corporation's employees. The court agreed with the Commission's amicus brief and held that the well-established four-factor integrated enterprise test articulated in Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977) applied.
- In EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593 (7th Cir. 2009), a subpoena enforcement action, the defendant challenged the EEOC's authority to deny a charging party's request to withdraw a charge and continue to investigate an allegation that the employer had a discriminatory policy of denying employment to people with a record of a criminal conviction. The Seventh Circuit ruled that all that is required for subject matter jurisdiction is for the EEOC to make a request to a court to enforce its subpoena, as authorized by statute.
- In EEOC v. Central Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009), the EEOC alleged that Central Wholesalers subjected the charging party to a sex-and-race-based hostile work environment. She was the only female and the only African-American in the company's Inside Sales department. The harassment consisted of coworkers routinely using the "N" word and the "B" word in her presence, displaying mop-head dolls with nooses around the dolls' necks, Playboy magazines and calendar as well as other pornography. The Fourth Circuit held that a reasonable jury could find that the harassment was based on gender or race and was severe or pervasive enough to create a hostile working environment.
Notable EEOC Trial Victories
- After a bench trial in EEOC v. Whirlpool Corp., No. 3:06-cv-0593, 2009 WL 4975280 (M.D. Tenn. Dec. 21, 2009), a federal district judge entered a judgment of over $1 million for the EEOC and a former African-American female employee who was subjected to a racially and sexually hostile work environment that resulted in her constructive discharge, including being punched in the face by her harasser and knocked onto the assembly line where she was hit by an air conditioner coming down the line.
Notable EEOC Resolutions
- In a nationwide sex discrimination lawsuit, EEOC v. Outback Steakhouse of Florida, Inc., and OS Restaurant Partners, Inc. d/b/a Outback Restaurants (D. Col. Dec. 29, 2009), the EEOC settled for $19 million for a class of female employees who were denied hire and promotion because of their gender.
- EEOC v. Albertson's LLC aka Albertson's, Inc. (D. Colo. Dec. 14, 2009) settled for $8.9 million to be distributed to 168 eligible class members who were subjected to discrimination on the bases of race, color, national origin and retaliation at a national grocery chain's distribution center. The EEOC filed three lawsuits (subsequently consolidated) and charged that a class of employees was subjected to offensive and threatening graffiti - including racial epithets, swastikas and depictions of lynchings and other acts of violence against blacks and Hispanics. The EEOC also charged that the company assigned them more difficult jobs, applied its attendance policy more stringently resulting in more disciplinary actions and retaliated against those who complained.
- The Commission settled EEOC v. Sears, Roebuck and Co. (N.D. Ill. Sept. 29, 2009) for $6.2 million in a settlement fund to compensate individuals with disabilities who were denied a reasonable accommodation because the company maintained an inflexible workers' compensation leave exhaustion policy and terminated employees instead of accommodating them, in violation of the ADA.
- EEOC v. Allstate Ins. Co. (E.D. Mo. Sept. 14, 2009) settled for $4.5 million to 92 former sales agents who were denied hire when the company implemented a hiring moratorium that had a disparate impact on former sales agents age 40 and over, in violation of the ADEA.
- EEOC v. B & H Foto & Electronics Corp. (S.D.N.Y. Mar. 18, 2009) settled for $4.3 million to 149 current and former Latino warehouse employees who were subjected to national origin discrimination when they were paid substantially less than non-Latino workers, denied health benefits, and denied promotions to supervisory positions, all in violation of Title VII.
- The Commission resolved EEOC v. Pitt Ohio Express, LLC (N.D. Ohio Jan. 22, 2009) for $2.43 million for women who were denied employment as truck drivers and dockworkers because of their sex in violation of Title VII. In addition to the monetary relief, the company agreed to extend 40 employment offers to rejected female applicants and grant them seniority rights and accompanying benefits based on the initial application date.
Notable EEOC Guidance
- The EEOC issued several technical assistance documents in plain language explaining a wide variety of issues:
- Employer Best Practices for Workers with Caregiving Responsibilities, which supplements the EEOC's 2007 guidance, "Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities," by providing suggestions for best practices that employers may adopt to reduce the chance of EEO violations against caregivers.
- Pandemic Preparedness in the Workplace and the ADA.
- Q&A-Understanding Waivers of Discrimination Claims in Employee Severance Agreements.
- The agency also issued the "Amended Enforcement Guidance on Recent Developments in Disparate Treatment Theory," which discussed circumstantial or direct evidence of discrimination, and limitations on remedies in cases involving mixed-motives.
- Finally, the Commission issued a report addressing concerns and making recommendations for federal sector employment, special emphasis programs, and the complaints process for the Asian-American and Pacific Islander (AAPI) community.
Notable Federal Sector Decisions
- In Fonda-Wall v. Dep't of Justice, EEOC Appeal No. 0720060035, the Commission found that while it may not review an agency's determination with regard to the substance of a security clearance decision, the Commission does have jurisdiction to determine whether the agency was motivated by discriminatory animus when initiating a review of a security clearance.