End of Fiscal Year Filings Signal Business as Usual at the EEOC – For Now
Just like the leaves turning colors, you can count on a flurry of court filings from the Equal Employment Opportunity Commission (EEOC) every September as the agency rushes to get cases on file before the end of its fiscal year, September 30. Despite the dramatic changes in Washington D.C., as well as turnover within the top ranks of the historically litigious EEOC’s Chicago Regional Office this year’s filings suggest that it is business as usual for now.
Employers have been speculating as to what changes to expect at the EEOC under the Trump Administration. President Trump has already made his mark through appointments, having nominated Janet Dhillon to take over Commissioner Jenny Yang’s spot, and also serve as Chair. Dhillon has served as in-house counsel for several major retailers, leading many to believe she will contribute to a more “business-friendly” atmosphere at the EEOC. More recently, President Trump nominated Daniel Gade, a Bush Administration alum who focused on veterans’ issues and military healthcare, to the final vacant Commissioner spot. Gade also served on the National Council on Disability, which may indicate a continued focus on both veterans’ employment opportunities and people with disabilities.
During their confirmation hearings, Ms. Dhillon and Dr. Gade answered questions from members of the Senate Health, Education, Labor, and Pension (“HELP”) Committee carefully. During one exchange, Ms. Dhillon explained that while she understood the EEOC’s current position is that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation and gender identity, she believes the current state of the law “is in flux” and would not say definitively whether or not she would amend the EEOC’s position on the issue.
Notwithstanding the new Commissioners’ backgrounds, EEOC Regional Offices have historically exercised considerable autonomy. Therefore, perhaps as important as changes in Washington are recent changes in leadership at the EEOC’s Chicago District Office, which covers Illinois, Wisconsin, Iowa, Minnesota, North Dakota, and South Dakota.
Under the leadership of Regional Attorney John Hendrickson, the Chicago Office has long been widely known among employers as one of the most formidable and aggressive EEOC offices when it comes to pursuing litigation against employers during both Republican and Democratic administrations. The Chicago Office announced on January 11, 2017, that Hendrickson was retiring and Greg Gochanour, a long-time trial attorney in the office, would be appointed Regional Attorney.
Despite all these changes, the year-end filings don’t signal any discernible change in strategy or priority yet from the Obama/Hendrickson years. For example, one of “hot button” issues for the EEOC in recent years has been whether existing federal civil rights laws such as Title VII prohibit discrimination based on sexual orientation and/or gender identity. As discussed above, the most recent nominees sent mixed signals during their Senate confirmation hearings on this topic. But for now, the EEOC appears to be standing firm in its position, adopted by the full Seventh Circuit in Hively v. Ivy Tech Community College, that discrimination based on sexual orientation violates Title VII.
Specifically, in EEOC v. Malcolm S. Gerald & Associates, Case No. 17-CV-6744, filed on September 19, 2017, the EEOC brought suit against a Chicago-based financial services and billing collections firm alleging that a gay male employee was subjected to a hostile work environment based on his sexual orientation. According to the Complaint, for nearly two years, supervisors and co-workers used gay slurs against the affected employee, and the employer failed to stop this conduct.
As in recent years, the EEOC also continues to focus on disability discrimination and claims alleging discrimination based on multiple protected categories. For instance, in EEOC v. S&C Electric Co., Case No. 17-CV-6753, the EEOC alleges that a 52-year veteran of a Chicago area electric power supply systems company was discriminated against. The EEOC filed a lawsuit on his behalf, alleging that he was terminated because of his age (72) and his disability after being diagnosed with melanoma, rectal cancer, and other ailments. In EEOC v. Home Depot Inc., Case No. 17-CV-6990, the EEOC alleges that Home Depot failed to reasonably accommodate and unlawfully terminated a cashier who suffered from fibromyalgia and irritable bowel syndrome and had a disability-related emergency while working as a cashier.
Pregnancy discrimination also remains a priority for the Chicago Regional Office. In EEOC v. Trinity Health System, Case No. 17 1:17-CV-200, the EEOC filed an enforcement action in North Dakota against a hospital that refused to grant certain accommodations to an employee with pregnancy-related medical restrictions. According to the complaint, a nurse at Trinity Hospital had a cervical disorder which made it difficult to carry a pregnancy to term. When she became pregnant in April 2016, she had a surgical procedure for her condition, and for the remainder of her pregnancy had a lifting restriction of 25 pounds. Trinity Health refused to provide the accommodation, and the EEOC now alleges that the hospital violated Title VII (sex discrimination), the Americans with Disabilities Act (cervical disorder constitutes a disability), and the Pregnancy Discrimination Act.
The EEOC also continues to focus on systemic, “pattern and practice” cases alleging that employment practices and/or policies discriminate against a class or group of employees. In EEOC v. Palm USA, Inc., Case No. 17-CV-6692, filed on September 18, 2017, the EEOC alleges that the parent company of City Sports, a chain of sporting goods store operating in several locations throughout the Chicagoland area, denied promotions to African American and Hispanic employees because of their race and national origin. The Complaint also alleges that at several store locations, African American and Hispanic employees were subject to racial slurs.
In summary, despite recent leadership changes in Washington and Chicago, employers, particularly those within the jurisdiction of the Chicago Regional Office, should not underestimate the EEOC.