Lawsuits against EEOC employers could increase in number, reach

In September, the U.S. Equal Employment Opportunity Commission filed more than 40 lawsuits — many involving women — against employers, alleging gender and racial discrimination in the workplace. . The federal fiscal year ended Sept. 30, and the number of lawsuits filed that month could account for nearly half of the EEOC’s lawsuits filed for the year.

Among the allegations are a complaint that women are not allowed to drive trucks at a freight company in Baldwinsville, NY; another claims a black woman was underpaid compared to colleagues doing similar work at a company in Cockeysville, Maryland. A third lawsuit alleges that a woman born with HIV was forced to disclose her medical condition and ultimately lost her job at a Tractor Supply Co. store in Hattiesburg, Miss.

These types of workplace discrimination and retaliation lawsuits are the bread and butter of the EEOC. Still, there is speculation that more ambitious cases in new areas, including the use of AI in employment, are on the horizon. It is rooted in the fact that the commission is increasing its membership and is on the verge of gaining more political power.

The administration of President Joe Biden is increasing the enforcement capacity of the EEOC. The agency had 3,300 employees in 1980, which fell to 1,939 in 2020, the last year of former President Donald Trump’s administration. The agency expects to reach 2,300 employees this year as part of its self-proclaimed “rebuild.” More litigators could mean more EEOC lawsuits against employers.

A second big change coming for 2023 is a Democratic majority in the EEOC. Republicans currently have a 3-2 majority, which will end if the US Senate confirms Biden’s nominee, Kalpana Kotagal, a civil rights and labor lawyer. Kotagal would replace Janet Dhillon, a Republican congresswoman whose term expired in July, but the nomination is drawing opposition from Republicans who view her as a labor activist and question her impartiality.

EEOC unleashed

A Democratic majority on the commission could free up the EEOC to pursue new areas, said Chris Moran, partner at Troutman Pepper Hamilton Sanders.

Some think they are storing cases, waiting for a more favorable atmosphere.

Chris MoranPartner, Troutman Pepper Hamilton Sanders

“Some think they are storing cases, waiting for a more favorable atmosphere,” he said.

Incumbent Dhillon can serve until replaced or until the end of the year, leaving the commission potentially deadlocked with two Republicans and two Democrats.

Republicans on the EEOC Committee may be less interested in expanding the EEOC’s reach into “areas of liability against employers in a way that hasn’t been done so far,” Moran said. But so far, the number of lawsuits filed by the EEOC is well below its historical averages.

It’s unclear whether an empowered EEOC will take on an AI case, such as difficult HR tools used to screen candidates. But the EEOC has raised concerns about AI’s ability to eliminate bias in hiring decisions. Charlotte Burrows, former president of the EEOC, said there are a lot of “snake oil sellers” in the AI ​​field.

Although official numbers aren’t available, the EEOC could end its 2022 fiscal year on Sept. 30 with fewer than 90 lawsuits, based on a number of agency lawsuit announcements. Some labor attorneys see the high volume of EEOC lawsuits in September as a way for the agency to meet its year-end goals.

Lawsuit counts down

In fiscal year 2021, the agency filed 124 lawsuits; in 2020 it was 97. But in 2005 the EEOC filed 416 lawsuits and went on to file over 300 annually until 2010.

Aimee Gibbs, labor attorney at Dickinson Wright in Ann Arbor, Michigan, sees more enforcement activity coming by the EEOC and warns employers to act now.

“Employers should be proactive in preventing discrimination in the workforce,” Gibbs said. “Now is a good time for all employers to review their anti-harassment and anti-discrimination training.”

In an EEOC lawsuit, Gypsum Express Ltd. in Baldwinsville, NY, is being sued for discriminating against applicants for flatbed driver jobs. The lawsuit alleges that a company official said “words to the effect that he didn’t want to hire female drivers because, ‘They just don’t work.'”

In response to a question from TechTarget Editorial, Gypsum said: “While we do not comment on specifics of pending litigation, Gypsum Express has been involved in this EEOC investigation for five years and has cooperated fully with the investigation. of the EEOC. Based on the information the company submitted in response to this investigation, we are disappointed that the commission has decided to pursue this legal action. The company has always been an equal opportunity employer. chances and we look forward to presenting our defense in court.

Similar work, different compensation claims

Sinclair Broadcast Group Inc. in Cockeysville, Maryland, is being sued for discrimination involving a black woman who was allegedly paid less than white workers for similar computer work.

“The employee was expected to perform higher-level duties and take on increased responsibilities, but was not offered a promotion or salary increase commensurate with the higher roles and responsibilities,” the lawsuit alleged. “Defendant has treated like-minded workers who are not black more favorably.”

In response, the company said in a statement that “it is Sinclair’s consistent policy and practice to meet and/or exceed its legal and ethical obligations with respect to the treatment of its employees. Sinclair will demonstrate that its Applicant’s treatment in the present case was consistent with this principle.”

In another case, Tractor Supply Co. in Hattiesburg, Mississippi, is being sued for discrimination on the basis of disability because of the treatment of a woman living with HIV. According to the lawsuit, the employee faced a “hostile work environment” based on “her disability or perceived disability.” He alleges that she was fired “in retaliation for her complaints and her filing of an EEOC charge.” A spokeswoman said the company is not commenting on the pending lawsuits.

Many of the EEOC’s recent lawsuits deal with gender discrimination and harassment against women, as well as women’s compensation issues, said Andrea Johnson, employment attorney at Kane Russell Coleman Logan in Houston. .

Questions like these “are very important today,” Johnson said. But the lawsuits also focus on women’s non-traditional work, which could be the administration’s way of sending a message to employers, she said.

It’s telling them to “be on your guard, do the right thing,” she said.

Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He worked for more than two decades as a corporate IT journalist.