EEO Report

Strategic Enforcement and Litigation: An EEO Report

To have a meaningful impact on discrimination, we approach our enforcement activities strategically. We employ our resources in ways that will achieve maximum results, while still protecting the rights of the individual. Through focused and strategic enforcement efforts under all of the statutes we enforce, we seek to broadly influence policies and practices in the American workplace and to bring justice and opportunity to all. In April 2006, to enhance our strategic enforcement of the statutes, the EEOC made the fight against systemic discrimination an agency-wide priority. The Commission unanimously adopted the recommendations contained in an internal task force report that focuses on strengthening the Commission's nationwide approach to investigating and litigating systemic cases.

The task force, led by now Vice Chair Leslie E. Silverman, defined systemic cases as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.” Recommendations adopted by the Commission included the following:

Systemic investigations and litigation will be conducted in the field, and the systemic investigation and litigation units in Headquarters will be eliminated.

Each district in the field must develop systemic plans to ensure that the Commission is identifying and investigating systemic discrimination in a coordinated, strategic, and effective agency-wide manner.

The Office of General Counsel should facilitate the staffing of systemic cases using a national law firm model, whereby cases are staffed with employees who have the expertise needed in each particular case.

The full task force report is available at www.eeoc.gov/abouteeoc/task_reports/systemic.html.

An effective litigation program provides relief for victims of discrimination, many of whom have no other recourse, and it encourages employers to settle cases earlier in EEOC’s administrative enforcement process. Also, publicity about our high impact cases and other litigation increases employer compliance with the statutes we enforce and educates employees and employers of their rights and responsibilities under the law.

In FY 2006, EEOC field legal units filed 370 merits lawsuits and 32 subpoena enforcement and other actions. Legal staff resolved 382 merits lawsuits for a total monetary recovery of over $44 million. Of these resolutions, 294 contained Title VII claims, 49 contained ADA claims, 50 contained ADEA claims, and 8 contained EPA claims. We also resolved 34 subpoena enforcement and other actions during the fiscal year. In terms of dollars recovered in direct and intervention lawsuits by statute, EEOC recovered more than $34 million in Title VII resolutions, nearly $5.5 million in ADEA resolutions, almost $3 million in ADA resolutions, $73,800 in EPA resolutions and $1.7 million in concurrent suit resolutions. At the end of FY 2006, the number of cases on the EEOC’s active docket that involve multiple aggrieved parties or challenges to employment policies was 256 cases, or 43.3% of our total caseload.

For many years, we have achieved a 90% rate of success in our litigation program. We established Measure 1.3.3 in our Strategic Plan to maintain this high level of success while allowing us to continue pursuing cases that have the potential to develop the law in the public interest. Throughout the entire measurement period, we expect to maintain at least a 90% level of success, using a 6-year rolling average of successful lawsuits to account for minor year-to-year fluctuations that can result from a limited database of observations. For FY 2006, we exceeded our target, achieving a 6-year rolling average success rate
of 92.7%.

We established Measure 1.3.2 in our Strategic Plan to reflect our focus on litigating cases that are expected to have a high impact on reducing discrimination and removing barriers in the workplace. High impact cases frequently affect large numbers of individuals, including many who are not party to the case, and can lead to positive changes throughout a wide geographic area, industry, or employer community. While many of our cases are expected to have a broad impact, we have selected the following five cases, resolved in FY 2006, to illustrate this measure.

EEOC v. John Pickle Co. (N.D. Okla. resolved May 24, 2006). The Commission alleged that a fabricator of products used in the petrochemical and power industries discriminated against East Indian steel fabrication workers (welders, fitters, roll/brake operators, and electrical maintenance personnel) in wages and other terms and conditions of employment and subjected them to a hostile work environment because of their race and national origin. EEOC’s suit was consolidated with a private action filed by 52 East Indian employees seeking relief under the Fair Labor Standards Act (FLSA), State tort law, and 42 U.S.C. § 1981. 

Defendant, through a contract with an Indian company, Al Samit International, recruited the claimants, all citizens of India, to come to the United States for jobs they were told would last at least 2 years, with possible long-term employment after that. Many of the claimants left good jobs or their own successful businesses, and some obtained loans from their families and friends to pay large fees required by Al Samit. EEOC participated in a 2-week bench trial on the issue of whether the plaintiffs were employees or trainees under the FLSA. 

After the EEOC and co-plaintiffs prevailed on this issue, the court held another 2-week bench trial and decided for plaintiffs on all claims. The court found that defendant and its President misrepresented the pay and living and working conditions the East Indian employees would receive in the United States; failed to pay them the minimum wages and overtime premiums required under the FLSA; paid them less than similarly situated non-Indian employees because of their race and national origin; and subjected them to a hostile work environment and disparate terms and conditions of employment because of their race and national origin. The hostile work environment and disparate terms and conditions of employment included numerous offensive comments about the claimants’ ancestry, ethnic background, culture, and country; threatening to physically harm them; threatening to deport them; requiring them to live in substandard housing and to subsist on poor quality, rationed food; subjecting them to greater testing requirements, lower job classifications, and less desirable job assignments; and restricting their movement, communications, worship opportunities, and access to health care. The court awarded a variety of damages under all claims, and the total recovery on EEOC’s claims was around $650,000. 

EEOC v. Cracker Barrel Old Country Store, Inc. (N.D. Ill. resolved Mar. 13, 2006). The Commission alleged that defendant subjected employees in three Illinois stores to sex and race discrimination and retaliation. Defendant subjected female and black employees to a hostile work environment, and required black employees to wait on customers that white employees refused to serve and to work in the smoking section. According to the suit, management officials at the three Illinois stores failed to take effective corrective action to stop the harassment and other discrimination, and the company took no action in response to complaints reported to the company’s complaint hotline. Under the 2-year consent decree, defendant will pay $2 million into a settlement fund. Fifty-one individuals are eligible to receive payments from the settlement fund, and any undistributed payments will be distributed to a nonprofit organization that benefits women’s and/or minority workplace interests in one or more of the communities in which the stores are located. Defendant must provide annual training to managers on discrimination, including harassment and retaliation issues, and to all employees on workplace harassment.

EEOC v. SPS Temporaries, Inc.; Professional Personnel Management Corp.; Jamestown Container Lockport, Inc.; Jamestown Container Corp.; and Whiting Door Manufacturing Corp. (W.D. N.Y. resolved Nov. 22, 2005). The Commission alleged that the largest temporary employment agency in Buffalo, New York, and two of its clients engaged in various violations of Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. The suit alleged that SPS: (1) failed to refer applicants for temporary employment based on their race, gender, pregnancy, national origin, age, disability, and responses to preemployment medical inquiries; (2) violated the Commission’s recordkeeping regulations by intentionally and systematically destroying documentary evidence during the EEOC’s investigation; (3) required applicants for temporary employment to complete a preemployment questionnaire that elicited information regarding potential disability; (4) failed to hire/refer a charging party for a machinist position because it regarded him as disabled due to his disclosure of a medical condition on a preemployment medical questionnaire; (5) discharged a second charging party from a sales representative position for questioning defendants’ failure to hire the first charging party; and (6) discharged a third charging party from a service coordinator position because of her pregnancy.  In addition, according to the suit, one client asked the temporary agency not to refer female applicants and another client asked the agency not to refer black or female applicants.

The EEOC entered into separate consent decrees with the defendants, settling the case for a total of $580,000 in monetary relief to be administrated through a claims fund. The 4-year SPS decree enjoins future discrimination, including complying with discriminatory requests from clients and requiring applicants for temporary employment to complete preemployment questionnaires containing questions that may reveal information about actual or potential disabilities. The SPS decree also requires the distribution of a notice regarding resolution of the case and a memorandum setting forth the coverage of Federal employment discrimination laws to all applicants, employees, and clients. SPS must also place job advertisements for temporary positions in specified newspapers and send job notices to specified organizations, with the goal of increasing applications from blacks, Latinos, females, disabled individuals, and persons 40 years old and above. SPS will provide the EEOC with semiannual reports on the race, sex, age, national origin, and disability status of applicants for temporary employment. The Whiting Door and Jamestown Container decrees (3 years each) require training, the adoption of nondiscrimination policies, and reporting on the hiring of temporary employees and on temporary employment agencies each defendant uses.

EEOC v. Paul Hall Center for Maritime Training and Education and Seafarers International Union (D. Md. resolved Nov. 14, 2005). The Commission alleged that the defendants discouraged individuals age 40 and above from applying for, and denied them admission to, a seafarers’ apprenticeship program. Paul Hall operates an apprenticeship program for deep sea merchant seafarers and inland waterways boatmen. Graduates of the program become eligible for membership in the union, which places many of them with cooperating shipper-employers. One of the eligibility criteria for admission was being “between the ages of 18 through 25.” Application requests from a number of individuals in the protected age group were marked “too old.” According to the suit, after defendants dropped the age limit from the application form, they continued to exclude applicants in the protected age group.

The lawsuit was resolved through a 5-year consent decree following defendants’ unsuccessful interlocutory appeal to the Fourth Circuit challenging EEOC’s regulation extending the age discrimination prohibitions of the ADEA to all apprenticeship programs. The appeals court ruled that EEOC’s regulation was a valid exercise of the agency’s rulemaking authority. Under the decree, the defendants will pay aggrieved individuals $625,000 for lost wages. The decree enjoins defendants from imposing any upper age limit in recruiting applicants for or admitting applicants to the apprenticeship program. It also enjoins defendants from discriminating based on age (40 or older) against individuals who inquire about the program, apply for the program, or are enrolled in the program. In all written and electronic recruiting and admissions materials for the program, defendants will state that they do not discriminate on the basis of age.

EEOC v. S&Z Tool Co., Inc. (N.D. Ohio resolved Aug. 16, 2006). The Commission alleged that a Cleveland manufacturer of precision metal-formed products and assemblies refused to hire women and African Americans into laborer and machine operator positions at its plant because of their sex and race, and failed to retain employment applications. According to the suit, defendant rejected qualified female applicants in favor of lesser qualified male applicants. Evidence showed that women were employed only as clericals and blacks were not employed at all. External measures of availability showed statistically significant disparities between defendant’s employment of women and blacks in laborer and operative positions and their representation in the relevant labor market. Under the 39-month consent decree, defendant will pay $940,000 into a fund to compensate at least 19 individuals, and the fund administrator will identify additional potential claimants. In addition, the defendant will make good faith efforts to increase recruitment of female and black applicants, appoint an EEO Coordinator, and retain extensive hard copy and computer records regarding its recruitment and hiring efforts. Defendant will also submit reports to the EEOC indicating application flow and hiring data by race and sex.