The U.S. Equal Employment Opportunity Commission Office of General Counsel FY 2004 Annual Report - Summary of Accomplishments TABLE OF CONTENTS Structure and Function of the Office of General Counsel Mission of the Office of General Counsel Headquarters Programs and Functions General Counsel Deputy General Counsel Litigation Management Services Systemic Litigation Services Internal Litigation Services Litigation Advisory Services Appellate Services Research and Analytic Services Administrative and Technical Services Field Legal Units Summary of Fiscal Year 2004 Accomplishments EEOC Law Enforcement - Forty Years Ago and Today Getting Results: A Summary of District Court Litigation Activity Eliminating Discrimination through Law Development EEOC Investigation and Litigation Authoriity Liability and Proof Standards Adverse Employment Actions Age Discrimination Arbitration Agreements High Impact Litigation - Highlights for 2004 Sex Discrimination Race Discrimination Age Discrimination Protecting Our Nation's Workers from the Start: EEOC's Youth@Work Initiative Bringing Justice and Opportunity to the Workplace through a Nationwide Litigation Program Title VII Harassment Harassment Based on Sex Harassment Based on Race and National Origin Denial of Employment Opportunities because of Sex Sex Discrimination in Pay Pregnancy Discrimination Race Discrimination National Origin Discrimination Religious Discrimination Age Discrimination in Employment Act Americans with Disabilities Act Protecting Access to the Commission's Processes Outreach: Educating the Public Litigation Statistics Overview of Suits Filed Litigation Workload Filing Authority Statutes Invoked Bases Alleged Issues Alleged Suits Filed by Bases and Issues Sex Discrimination Race Discrimination National Origin Discrimination Religious Discrimination Age Discrimination Disability Discrimination Retaliation Bases Alleged in Suits Filed from FY 1999 through FY 2004 Suits Resolved Types of Resolutions and Success Rate Filing Authority Statutes Invoked Bases Alleged Issues Alleged Resources Staffing Litigation Budget Historical Summary: Tables and Charts Merits Suits Filed from FY 1995 through FY 2004 Merits Suits Resolved from FY 1995 through FY 2004 Total Monetary Relief from FY 1995 through FY 2004 I. STRUCTURE AND FUNCTION OF THE OFFICE OF GENERAL COUNSEL A. Mission of the Office of General Counsel The Equal Employment Opportunity Act of 1972 amended Title VII of the Civil Rights Act of 1964 (Title VII) to provide for a General Counsel, appointed by the President and confirmed by the Senate for a 4-year term, with responsibility for conducting the Commission's litigation program. Following transfer of enforcement functions from the U.S. Department of Labor to the Commission under a 1978 Presidential Reorganization Plan, the General Counsel became responsible for conducting Commission litigation under the Equal Pay Act of 1963 (EPA) and the Age Discrimination in Employment Act of 1967 (ADEA). With the enactment of the Americans with Disabilities Act of 1990 (ADA), the General Counsel became responsible for conducting Commission litigation under the employment provisions of that statute (Title I; effective July 1992). The mission of EEOC's Office of General Counsel (OGC) is to conduct litigation on behalf of the Commission to obtain relief for victims of employment discrimination and ensure compliance with the statutes that EEOC is charged with enforcing. Under Title VII and the ADA, the Commission can sue nongovernment employers with 15 or more employees. The Commission's suit authority under the ADEA (20 or more employees) and the EPA (no employee minimum) includes state and local governmental employers as well as private employers. Title VII, the ADA, and the ADEA also cover labor organizations and employment agencies, and the EPA prohibits labor organizations from attempting to cause an employer to violate the statute. OGC also represents the Commission on administrative claims and litigation brought by its employees, and provides legal advice to the agency on employee-related matters. B. Headquarters Programs and Functions 1. General Counsel The General Counsel is responsible for managing, coordinating, and directing the Commission's enforcement litigation program. He or she also provides overall guidance and management to all the components of OGC, including field office legal units. The General Counsel recommends cases for litigation to the Commission and approves other cases for filing under authority delegated to the General Counsel under the Commission's 1996 National Enforcement Plan. The General Counsel also reports regularly to the Commission on litigation activities, including issues raised in litigation which may affect Commission policy, and advises the Chair and Commissioners on litigation strategy, agency policies, and other matters affecting the enforcement of the statutes within the Commission's authority. 2. Deputy General Counsel The Deputy General Counsel serves as the alter ego of the General Counsel and as such is charged with the daily operations of OGC. The Deputy is responsible for overseeing all programmatic and administrative functions of OGC, including overseeing the litigation program. OGC functions are carried out through the operational program and service areas described below, which report to or through the Deputy. 3. Litigation Management Services Litigation Management Services (LMS) oversees and supports the Commission's court enforcement program in the agency's field offices. Also, in conjunction with the Office of Field Programs (OFP), LMS oversees the integration of field office legal units into the investigative enforcement structure of the field offices. LMS staff provide direct litigation assistance to district offices as needed, draft guidance, develop training programs and materials, and collect and create litigation practice materials. In addition, LMS is responsible for maintaining and updating the Regional Attorneys' Manual. LMS also has an Assistant General Counsel for Technology responsible for providing technical guidance and oversight to OGC headquarters and field offices on the use of technology in litigation and the development of OGC's computer systems. LMS and OFP staff make joint visits to field offices to provide technical assistance regarding the integration of the field legal and investigative units. 4. Systemic Litigation Services Systemic Litigation Services ("SLS") initiates, investigates, and litigates charges raising important legal and policy issues. Uniquely structured and staffed as an issue-oriented unit that combines investigation and litigation, SLS looks for cases involving novel or emerging legal questions arising in favorable factual settings. 5. Internal Litigation Services Internal Litigation Services represents the Commission and its officials on administrative claims and litigation brought by Commission employees, and provides legal advice to the Commission and agency management on employee-related matters. 6. Litigation Advisory Services Litigation Advisory Services (LAS) evaluates field office suit recommendations in cases that require General Counsel or Commission authorization, and drafts litigation recommendations to the General Counsel for approval or submission to the Commission. LAS responds to Commissioner inquiries on cases under consideration for litigation, acting as OGC's liaison and contact point between the Commissioners and the field legal units or Systemic Litigation Services. LAS also performs special assignments as requested by the General Counsel. 7. Appellate Services Appellate Services (AS) is responsible for conducting all appellate litigation where the Commission is a party. AS also participates as Commission amicus curiae in United States courts of appeals, as well as federal district courts and state courts, in cases involving novel issues or developing areas of the law. AS represents the Commission in the United States Supreme Court through the Office of the Solicitor General. AS also makes recommendations to the Department of Justice in cases where the Department is defending other federal agencies on claims arising under the statutes the Commission enforces. In addition, AS reviews EEOC policy materials, such as proposed regulations and enforcement guidance drafted by the Commission's Office of Legal Counsel, prior to their issuance by the agency. 8. Research and Analytic Services Research and Analytic Services (RAS) provides expert and analytical services for cases in litigation, assists EEOC attorneys in obtaining expert services from outside the agency, and provides technical support to field staff investigating charges of discrimination. RAS has a professional staff with backgrounds and advanced degrees in the social sciences, economics, statistics, and psychology who serve as testifying and consulting experts on cases in litigation. RAS also provides services to other agency offices, such as conducting social science research on issues related to civil rights enforcement, advising the agency on the collection of workforce data, and developing and maintaining special census files by geography, race/ethnicity and sex, and occupation. 9. Administrative and Technical Services Staff OGC's Administrative and Technical Services Staff (ATSS) provides administrative and technical services to all headquarters components of OGC. ATSS also is responsible for preparing the OGC budget request to the Chair for the Office of Management and Budget and Congress as well as for handling various budget execution duties such as transferring funds to field offices and monitoring expenditures. ATSS maintains nationwide data on the Commission's litigation activities. C. Field Legal Units Field office legal units conduct Commission litigation in the geographic areas covered by the respective offices and provide legal advice and other support to field office enforcement units responsible for investigating charges of discrimination. Field attorney staff also participate in outreach efforts, and in most offices the legal unit is responsible for responding to Freedom of Information Act requests. Legal units are under the direction of Regional Attorneys, who manage staffs consisting of supervisory trial attorneys, trial attorneys, paralegals, and support personnel. EEOC trial attorneys are the heart of the agency's litigation program II. SUMMARY OF FISCAL YEAR 2004 ACCOMPLISHMENTS A. EEOC Law Enforcement - Forty Years Ago and Today Forty years after the passage of the landmark Civil Rights Act of 1964, which in Title VII created the Equal Employment Opportunity Commission, the EEOC continues its proud tradition of aggressive law enforcement. During this period, Congress has expanded the protections of the laws against employment discrimination, extending their reach beyond the original grounds of Title VII race, color, sex, national origin, and religion to include pregnancy, age (40 and over), and disability, and extending their coverage to governmental entities. These past 40 years have also been accompanied by major societal shifts, from women entering and remaining in the workforce in greater numbers, to workers wishing to remain actively employed into their 60s, 70s, and beyond, to large-scale immigration of both skilled and unskilled workers, and to technological and medical advances that have expanded the ability of people with disabilities to contribute to the nation's productivity. As these societal shifts have played out in the American workplace, the EEOC has been there to protect the rights of all individuals to be considered for jobs based solely on their abilities, and to a work environment free from abusive practices. How have these 40 years played out at EEOC's Office of General Counsel? From the beginning, OGC has influenced the development of employment discrimination law through amicus curiae briefs filed in both federal and state courts. Since Congress's grant of direct litigation authority to EEOC in 1972, OGC has filed suits throughout the United States aimed at furthering the public interest in discrimination-free labor markets. We have sought relief for disparate groups of people unable to join together in private class actions due to federal procedural restrictions. We have entered into consent decrees with carefully crafted and creative injunctive relief that will benefit individuals beyond those immediately affected by the litigation. We have brought cases intended to have an impact beyond the parties to the specific lawsuit and that will serve notice on entire industries of the need to reform their practices. We have brought relief to individuals who would not otherwise be able to pursue their rights due to cost or the unpopularity of their causes. By publicizing our litigation and settlements, as well as through our attorneys' participation in agency outreach programs, we inform employees and employers of their rights and responsibilities and assist employers in developing "best practices" that will avoid future discrimination complaints. And by maintaining a credible court enforcement program, we encourage the voluntary resolution of EEOC charges through mediation, other early administrative settlements, and conciliation agreements. B. Getting Results: A Summary of District Court Litigation Activity OGC resolved 347 merits suits in fiscal year 2004. Merits suits include direct suits and interventions alleging violations of the substantive provisions of the Commission's statutes, and suits to enforce administrative settlements. These resolutions resulted in monetary relief of $168.1 million. As with the $148.7 million recovery in FY 2003, this year's monetary relief exceeded the highest previous single year recovery. The table below presents the top ten cases resolved in FY 2004 by monetary recovery (figures are rounded). Top Ten Cases Resolved In FY 2004 By Monetary Benefits EEOC v. Morgan Stanley & Co $54 million EEOC v. Bell Atlantic & NYNEX $50 million EEOC v. Dial Corporation $10 million EEOC v. International Association of Iron Workers $4.5 million EEOC v. Milgard Manufacturing, Inc. $3.3 million EEOC v. Carl Buddig and Company $2.5 million EEOC v. Honeywell, Inc. $2.1 million EEOC v. PJAX, Inc. $2.0 million EEOC v. Federal Express Corp. $1.8 million EEOC v. Public Retirement System of Ohio $1.6 million The 347 FY 2004 resolutions had the following characteristics: 264 were Title VII suits 38 were ADA suits 28 were ADEA suits 17 were concurrent suits (suits filed under more than one statute), including 11 with EPA claims 133 cases resulted in relief for multiple aggrieved individuals OGC filed 379 merits suits in FY 2004. Of the suits filed, 375 were direct suits and 4 were actions to enforce conciliation agreements. OGC also filed 35 subpoena enforcement actions and 1 preliminary relief action. These 379 suit filings had the following characteristics: 280 were Title VII suits 40 were ADEA suits 42 were ADA suits 1 was an EPA suit 16 were concurrent suits, including 5 with EPA claims 146 cases sought relief for multiple aggrieved individuals Monetary relief is just one aspect of EEOC's litigation program. As the discussion in following sections of this part of the Annual Report shows, EEOC litigated a wide diversity of cases during the fiscal year, remedying systemic violations affecting hundreds of individuals while addressing matters ranging from the sexual harassment of teenage workers to national origin and religious discrimination stemming from the September 11, 2001, terrorist attacks and the United States' involvement in Iraq. A hallmark of all of EEOC's litigation is the effort, through appropriate injunctive and other affirmative relief, to change the practices that caused the discriminatory conduct. C. Eliminating Discrimination through Law Development OGC's appellate litigation program is the agency's primary vehicle of law development. Practicing before the federal courts of appeals of all circuits, in the Supreme Court in conjunction with the Solicitor General's Office of the Department of Justice, and on occasion in federal district courts and state courts, OGC appellate attorneys seek both through appeals in the agency's litigation and as amicus curiae in private suits to ensure that courts interpret employment discrimination laws to achieve the broad coverage that Congress intended. In this section of the Annual Report, we highlight significant appellate cases in which EEOC participated during the past fiscal year. 1. EEOC Investigation and Litigation Authority EEOC v. Bessemer Group, Inc., No. 03-4049, 105 Fed.Appx. 411 (3d Cir. July 29, 2004) (unpublished) EEOC brought an action to enforce an administrative subpoena issued to Bessemer Group. While investigating an ADEA charge, the EEOC subpoenaed information from Bessemer about severance payments to former employees. The charge alleged that Bessemer had a practice of offsetting severance pay by pension benefits due, thereby providing less severance pay to older workers than to younger workers. Bessemer refused to comply with the subpoena, arguing that there was no legitimate purpose behind the EEOC's investigation because the practice of offsetting severance pay with pension benefits is expressly permitted by a section of the ADEA. The district court enforced the subpoena and the Third Circuit affirmed. Rejecting Bessemer's contention that the undisputed facts established that the alleged setoffs were legal, the court of appeals said that more information was necessary before a determination could be made whether Bessemer was in compliance with the ADEA. The court said that the purpose of administrative subpoenas "is to discover and procure evidence, not to prove a pending charge or complaint, but . . . to make one" if the facts discovered justify doing so. EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280 (11th Cir. 2004) The district court dismissed EEOC's Title VII class racial harassment suit under preclusion principles due to an adverse verdict in a private suit litigated by 22 of defendant's approximately 200 African-American employees. The court of appeals reversed, finding no privity between EEOC and the private plaintiffs in the prior action. The court held that in the absence of privity, the doctrines of res judicata and collateral estoppel could not be applied to dismiss EEOC's enforcement action. The court said that EEOC's role as a law enforcement agency is "incompatible with a finding that its authority to bring an enforcement action is barred by a judgment in a private suit." When the Commission brings suit, it does so in the public interest as a law enforcement agency, not merely as a proxy for discrimination victims EEOC v. W.H. Braum, Inc., 347 F.3d 1192 (10th Cir. 2003) Prior to EEOC filing suit in this ADA case, the charging party had filed a private ADA action and dismissed it without prejudice. The district court applied a state statute of limitations to the charging party's claim, and finding that her claim was untimely held that EEOC could not obtain monetary relief on her behalf. In this interlocutory appeal, the Tenth Circuit reversed, holding that because the ADA (through its incorporation of provisions from Title VII) contains a particular timeframe in which actions can be brought, there was no gap to fill through adoption of a state statute of limitations. The court further held that charging party's dismissal of her claim without prejudice could not preclude EEOC's claim for monetary relief on her behalf, because such a dismissal "does not operate as an adjudication upon the merits and thus does not have a res judicata effect." 2. Liability and Proof Standards Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) The plaintiff, a Pennsylvania State police officer, quit her job shortly after her male supervisors, who had subjected her to constant sexually offensive conduct throughout her employment, arrested her for a supposed theft. The Supreme Court held that even if plaintiff had not given her employer a sufficient opportunity to respond to her complaints about the supervisors' conduct, the employer would be liable for their conduct if she was constructively discharged through a supervisor's "official act." In two 1998 decisions, the Supreme Court held that an employer is entitled to an affirmative defense to sexual harassment by a supervisor if it can show that it had an accessible and effective policy for reporting and resolving harassment complaints and that the employee unreasonably failed to use the policy. The affirmative defense is not available, however, where the harassment culminates in a "tangible job action." The Court held in Suders that where an employee "quits in reasonable response to an employer-sanctioned action officially changing her employment status or situation," the affirmative defense is not available. The Court remanded the case for a determination of whether plaintiff's supervisors' discriminatory conduct toward her constituted an official act depriving the employer of the affirmative defense. This case also marks the first time the Supreme Court has recognized a constructive discharge theory under Title VII. The court held that in a sexual harassment case, an employee can establish a constructive discharge by "show[ing] that the abusive working environment became so intolerable that her resignation qualified as a fitting response." In both holdings, the Court largely adopted EEOC's positions set forth in the Solicitor General's amicus curiae brief. Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2004) (en banc) The plaintiff, a 57-year-old female aircraft sheet metal mechanic, filed this action under Title VII and the ADEA alleging that she was discriminatorily discharged because her supervisors relied on the reports of work infractions submitted by a biased safety inspector. In an en banc decision, a divided Fourth Circuit rejected the approach urged by EEOC as amicus curiae and held that the discriminatory motives of a subordinate cannot be imputed to an employer unless the evidence demonstrates that the formal decisionmaker essentially "rubber-stamped" a decision, report, or recommendation of the biased subordinate. The majority conceded that an inquiry into discriminatory motives must often go beyond the actions of the formal decisionmaker, recognizing that otherwise employers could "insulate themselves from liability simply by hiding behind the blind approvals, albeit non-biased, of formal decisionmakers." But the majority said that a biased subordinate's motive was irrelevant where the subordinate merely had "a substantial influence on the ultimate decision or . . . played a role, even a significant one, in the adverse employment decision." The dissent said that the majority's position put the Fourth Circuit at odds with virtually every other circuit as well as with the statutory language, "which impose[s] liability when an adverse employment decision is taken 'because of' sex or age discrimination." The dissent would have imputed a subordinate's bias to the formal decisionmaker when a subordinate's sex- or age-based bias "has a substantial or determinative influence on a formal decisionmaker's adverse employment action," because under those circumstances "the causation (or liability) requirement is satisfied." Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004) The Second Circuit reversed the dismissal of a female employee's sexual harassment claims. Plaintiff, the only female installation and repairs technician at Bell Atlantic's Edgewater Garage on Staten Island, was subjected to persistent sexually offensive remarks and demeaning sexual graffiti, and to specific comments and actions toward her indicating that this negative view of women extended to her and her work performance. The district court had dismissed plaintiff's sexual hostile work environment claim on the ground that the male employees' conduct applied equally to all employees, male and female, and thus was not "motivated by hostility toward [plaintiff] because of her sex." The court of appeals agreed with EEOC's position as amicus curiae that a hostile work environment claim can be based on offensive sexual conduct even without evidence that the conduct was motivated by the plaintiff's gender where a jury could find that the conduct adversely affected the plaintiff's working conditions because of her sex. Shaver v. Independent Stave Co., 350 F.3d 716 (8th Cir. 2003) The Eighth Circuit agreed with EEOC's position as amicus curiae that harassment claims are actionable under the ADA and that the plaintiff, who had metal plates surgically implanted into his head to treat severe epilepsy, was covered by the statute because he had a record of a substantially limiting impairment and was regarded as disabled by his coworkers. The court, however, disagreed with EEOC that the plaintiff was subjected to an objectively hostile work environment even though supervisors and coworkers called him "platehead" on a daily basis over a period of 2 years, told him he "wasn't playing with a full deck," and referred to him as "stupid." The court said that the use of nicknames was widespread at the lumber mill where plaintiff worked, that the harassment was not threatening and not of a physical nature, and that while subjectively offensive to the plaintiff, the harassment was not severe enough to result in psychological treatment. Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228 (11th Cir. 2004) The Eleventh Circuit ruled in this age and retaliatory discharge action that the district court did not commit reversible error when it refused to instruct the jury that it could infer age discrimination or retaliation if it disbelieved the employer's articulated reasons for terminating the plaintiff's employment. EEOC argued as amicus curiae that such an instruction should be given whenever a plaintiff seeks to prove discrimination by showing pretext. In a concurring opinion that essentially adopted EEOC's reasoning, one panel member said that a pretext instruction should be given when requested and that the district court erred in not doing so, but concluded that failure to give the instruction in the instant case did not prejudice the plaintiff. 3. Adverse Employment Actions White v. Burlington Northern & Santa Fe Railway Co., 364 F.3d 789 (6th Cir. 2004) (en banc) EEOC, as amicus curiae, argued that a panel of the Sixth Circuit erred when it concluded that Title VII's antiretaliation provision did not cover the following two retaliatory acts: a transfer to a physically arduous, less desirable job and a 37-day suspension without pay followed by a grievance-ordered reinstatement with backpay. EEOC argued that the antiretaliation provision is meant to encompass any kind of adverse action reasonably likely to deter an individual from asserting his or her rights under the statute, not only those adverse actions that are "ultimate" or "materially adverse." Sitting en banc, the Sixth Circuit unanimously held that the two challenged actions were encompassed within Title VII's antiretaliation provision and rejected the "ultimate employment decision" standard as inconsistent with Title VII's language and purpose. By a vote of 8 to 5, however, the court declined to adopt the Commission's "reasonably likely to deter" standard, and instead reaffirmed that a plaintiff must establish that the employer's challenged action was "materially adverse." Enforcement of the antiretaliation provisions of the laws it enforces is of the highest priority for the EEOC Pegram v. Honeywell, Inc., 361 F.3d 272 (5th Cir. 2004) In this race discrimination action, EEOC argued as amicus curiae that an individual could challenge as discriminatory a reassignment from a job selling a company's core products to new customers into a job with the same base salary selling service contracts on the employer's products to existing customers. The Fifth Circuit agreed that the district court erred in holding that the reassignment was not sufficiently adverse to be challenged under antidiscrimination law. The district court had found that the incentive compensation plans were the same in both positions and therefore held that the reassignment was a lateral transfer rather than an adverse action. The court of appeals found that the plaintiff's former position had the potential to earn more incentive pay because of the difference in the items sold, and thus concluded that a genuine issue of material fact existed as to whether the transfer created a demotion sufficient to constitute an adverse employment action. 4. Age Discrimination General Dynamics Land Systems, Inc., v. Cline, 540 U.S. 581 (2004) The Supreme Court resolved a conflict in the circuits over whether individuals covered by the ADEA can challenge more favorable treatment of older workers. Rejecting the government's position as amicus curiae, the Court held they could not. The Court said that "the text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes, . . . show[] that the statute does not mean to stop an employer from favoring an older employee over a younger one." The Court acknowledged that in the abstract the phrase "discrimination . . . because of [an] individual's age" in 29 U.S.C. . 623(a)(1) could arguably have "a broader construction, since reference to 'age' carries no express modifier and the word could be read to look two ways." But the Court concluded that "[t]his more expansive possible understanding does not . . . square with the natural reading of the whole provision prohibiting discrimination, and in fact Congress's interpretive clues speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones getting treated better." Based on the Secretary of Labor's 1965 report to Congress on age discrimination in the workplace, congressional hearings conducted during consideration of the ADEA, and the Act's introductory provisions, the Court determined that Congress was primarily concerned about two common facts: "that an individual's chances to find and keep a job get worse over time" and that "as between any two people, the younger is in the stronger position, the older more apt to be tagged with demeaning stereotype." The Court therefore found the ADEA's focus to be protection of relatively older workers from discrimination that advantages those who are younger. The Supreme Court ruled in General Dynamics that it is permissible for employers to favor older workers over younger ones Abrahamson v. Bd. of Educ. of the Wappingers Central Sch. Dist., 374 F.3d 66 (2d Cir. 2004) The Second Circuit affirmed the district court's decision granting summary judgment to the plaintiffs on their claims that the defendant school district had excluded them on the basis of age from participation in a newly added retirement program option. The court of appeals held that the option, which permitted teachers to continue working for 3 years and receive an extra $7,000 each year, was not protected by the ADEA's safe harbor provision for voluntary early retirement incentive programs because it did not provide an incentive to retire. The court affirmed the injunctive remedy fashioned by the district court, which permitted defendant to come into compliance with the ADEA by eliminating the option. Finally, the court reversed the district court's denial of attorney's fees to plaintiffs, finding that obtaining the injunction qualified the plaintiffs as "prevailing parties" (assuming that that requirement applied under the ADEA's fee-shifting provision). EEOC as amicus curiae argued in support of the district court's findings on liability and for reversal on the denial of attorney's fees, and briefly noted that the injunctive relief ordered did not constitute an abuse of discretion. 5. Arbitration Agreements Cooper v. MRM Investment Co., 367 F.3d 493 (6th Cir. 2004) EEOC, as amicus curiae, argued in this sexual harassment constructive discharge action that an employer-mandated arbitration agreement improperly shifted costs to the employee and that the fee-shifting provision invalidated the entire agreement. The Sixth Circuit remanded for further proceedings to determine whether the likely costs of arbitration, under the then applicable rules of the American Arbitration Association, were "so high that they will deter [plaintiff] or similarly situated employees from exercising their right to arbitrate." The court found that EEOC's argument against severing the fee-shifting provision was "sound as a matter of federal public policy," and, quoting from EEOC's brief, said that under a contrary approach an employer "will not be deterred from routinely inserting such a deliberately illegal clause in the arbitration agreement . . . if it knows that the worst penalty for such illegality is the severance of the clause after the employee has litigated the matter." D. High Impact Litigation - Highlights for 2004 Certain cases by virtue of their size, amount and type of relief, or industries or individuals affected are of particular importance in redressing discriminatory practices. In this section of the Annual Report, we review highlights from some of FY 2004's high impact resolutions. 1. Sex Discrimination The Commission secured a number of multimillion dollar recoveries in cases involving sex discrimination, demonstrating the continuing battle of women to be judged on their competencies rather than stereotypes about their gender, and to work in an environment free from offensive sexual conduct. The year's largest recovery $54 million was in a suit against the financial services firm of Morgan Stanley, alleging that the firm engaged in a pattern or practice of sex discrimination in its Institutional Equity Division by preventing women from being promoted, compensated, or enjoying other terms, privileges and conditions of employment on the same basis as men. The case was resolved by a 3-year consent decree, with $40 million going to a claim fund to pay identified victims; $12 million to the individual who filed the discrimination charge leading to the suit (who intervened adding other claims); and $2 million for training designed to combat discrimination and enhance promotional opportunities for women. As part of the extensive injunctive relief provided in the decree, Morgan Stanley will appoint an EEOC-approved ombudsperson to oversee implementation of the decree, and will retain an outside monitor to review Morgan Stanley's antidiscrimination policies and be a point of contact for sex discrimination complaints. EEOC v. Morgan Stanley & Co., Inc. (S.D.N.Y. July 12, 2004). Egregious sexual harassment was the focus of a Title VII pattern or practice lawsuit the EEOC brought against the Dial Corporation. The Commission alleged that women working at Dial's Montgomery, Illinois production facility were subjected daily to sexually offensive conduct by male coworkers, including groping, sexual propositions, circulation of pornography, and stalking. Supervisory personnel also took part in this illegal behavior, which Dial took little meaningful action to address. The case was resolved through a consent decree providing $10 million in compensatory damages to approximately 90 claimants. The decree also enjoins Dial from engaging in sex discrimination or retaliation, and provides for an independent three-person panel, paid for by Dial, that will monitor the decree and oversee Dial's investigation and resolution of subsequent complaints of sex discrimination. EEOC v. The Dial Corporation (N.D. Ill. July 31, 2004). Whether at the white collar reaches of high finance or on the blue collar factory floor, EEOC is fighting systemic sex discrimination Sexual harassment was also at issue in a suit brought against Federal Express Corporation. A female tractor-trailer driver, the only woman in that job classification at the facility, was denied routes because of her sex and subjected to sexual harassment so severe that it resulted in her constructive discharge. The employee intervened in EEOC's suit and added retaliation claims under Title VII and claims under Pennsylvania law. Evidence presented at the 11-day trial included coworkers tampering with the brakes of the female driver's truck. The jury awarded the employee a total of $3,241,400, consisting of $391,400 in back and frontpay, $350,000 in compensatory damages, and $2.5 million in punitive damages (portions of the damages awards are subject to the Title VII cap on damages). EEOC v. Federal Express Corp. (M.D. Pa. Feb. 24, 2004). Women in nontraditional jobs also formed part of the basis for the Commission's two lawsuits against PJAX, Inc., an interstate trucking and freight firm. One suit, alleging violations of Title VII, the ADEA, and the ADA, originated when the company refused to hire a 55-year-old woman for a truck driver job despite her 30 years of experience. The suit claimed that the company failed to hire women for driver and dockworker positions, and that it sought preemployment medical information from applicants in order to exclude those with disabilities. The suit also alleged that the company discharged a male terminal manager in retaliation for objecting to its discriminatory practices. The case was settled by a consent decree providing $25,000 to the female applicant who was not hired due to her gender and age; $200,500 to the male manager; and $1.775 million to a class of applicants who applied and were qualified for the positions of driver or dockworker but were denied employment due to their gender or disability. The decree enjoins the company from engaging in the practices at issue and requires it to offer future driver and dockworker positions to interested female and disabled claimants identified by EEOC from the applicant class. EEOC v. PJAX, Inc. (D. Md. Nov. 25, 2003). In the second lawsuit brought against PJAX, EEOC alleged that owners and managers at its Gibsonia, Pennsylvania headquarters engaged in widespread sexual harassment of female employees. Despite complaints about the vulgar language, sexually derogatory names, other verbal abuse, and the requirement that female, but not male, employees perform personal errands for the owners, no corrective action was taken. Ultimately, one woman was forced to resign. In settlement, the company agreed to pay $300,000 in compensatory damages to the constructively discharged employee and $200,000 to four other women. The consent decree enjoins the company from engaging in sexual harassment and requires it to revise its antidiscrimination policy to include a complaint process, confidential investigations, and antiretaliation provisions. EEOC v. PJAX, Inc. (W.D. Pa. Nov. 25, 2003). Operating from a stereotypical view of one gender will often cause a company to act illegally in various aspects of its employment practices The lingering effects of pregnancy discrimination gave rise to two Title VII/Equal Pay Act suits against the predecessors of Verizon telephone company, Bell Atlantic & NYNEX. The Commission sought relief for women denied service credit for pregnancy and maternity leaves taken prior to the Pregnancy Discrimination Act of 1979 and "care of newborn child" leave taken prior to 1984. One suit involved the denial of service credit during an early retirement program initiated in 1994, and the second involved a failure to include credits for pregnancy and maternity related leave in a cash balance plan for management employees implemented in 1998. Under a consent decree covering women in 13 states and the District of Columbia who were employed at any time between January 6, 1994, and April 23, 2002, claimants will receive between 2 and 7 weeks of additional service credit per pregnancy. Additionally, some women who missed out on the early retirement incentive will receive an additional 4 to 12 weeks of enhanced service credit adjustments. Retired claimants will recover a total of $50 million to compensate them for lost pension benefits, and current and future retirees will have their pension benefits increased as a result of the restored service credits. EEOC v. Bell Atlantic & NYNEX (S.D.N.Y. Sept. 30, 2004). 2. Race Discrimination The primary ill the Civil Rights Act of 1964 was designed to address was the corrosive effects of race discrimination in almost every aspect of American life, including the opportunity of African Americans to chose employment commensurate with their abilities and be paid accordingly. Until the passage of that landmark legislation, and in some industries and areas of the country for years thereafter, many employers refused to hire African Americans, and others segregated them into particular classifications and lines of progression, relegating them to the poorest paying, most arduous, and least prestigious jobs. While progress has been made in the last 40 years, race discrimination in employment unfortunately is not a thing of the past, as the following cases demonstrate. Overt race discrimination still exists; the EEOC will attack this evil wherever it surfaces in the workplace In a suit filed against Milgard Manufacturing, Inc., the Commission alleged that a Washington State-based window and sliding door manufacturer failed to hire African- American applicants for its 200-person factory in Denver, despite the plant's location in an area of the city with a large African-American population. The plant manager told the human resources staff not to hire any more black workers for the production line because "black people are lazy and move too slowly." An HR employee reported the discriminatory request to her supervisor; thereafter, she was harassed and denied a bonus. She later complained to the general manager about both the race discrimination and the retaliation and was told to "decide whether she was a team player." She resigned and filed a retaliation charge, which the Commission expanded to include an investigation of the company's hiring practices. The consent decree resolving the case provided over $3.3 million, including $750,000 to the HR employee (who intervened in EEOC's suit), $2.35 million in a settlement fund for African-American applicants denied employment, and up to $250,000 for costs of a consent decree monitor and administration of the decree. The decree requires the company to appoint an EEO Coordinator responsible for overseeing compliance with antidiscrimination laws, and an EEO Consultant, who will act as a liaison between EEOC and the company. The company also will engage in extensive recruiting efforts to attract African-American applicants. EEOC v. Milgard Mfg., Inc. (D. Colo. May 19, 2004). When an employer with an all-white workforce relies heavily on word-of-mouth recruiting to fill vacancies, it is no surprise that black employees lose out on jobs. This was the situation in Carl Buddig & Co., where the Commission alleged that the company denied employment to African Americans because of their race. The case arose out of a Commissioner's Charge and included discriminatory practices going as far back as 1991. Despite receiving applications from many African-American workers for its jobs processing and packing meat products, the company relied on referrals from its current employees, many of whom were Eastern European immigrants who were not likely to refer African Americans. The suit also alleged that defendant physically segregated applications from women and hired them only into packing line jobs, where the periodic raises were lower than in the unskilled jobs given to men. The case was resolved by a consent decree providing $2.5 million in damages for approximately 325 claimants. The company was enjoined from using race or sex in hiring and job assignments, and is required to fill production positions during the 3-year term of the decree by alternating hires between interested claimants and other applicants. EEOC v. Carl Buddig & Co. (N.D. Ill. Sept. 7, 2004). When employers hire on the basis of illegal stereotypes, they lose twice: once by forgoing the talents of entire classes of workers; and second when the EEOC obtains redress for their discrimination 3. Age Discrimination Prior to Honeywell, Inc.'s purchase of AlliedSignal, a manufacturer of consumer car care items, AlliedSignal had demoted, laid off, and terminated sales managers and sales representatives at various nationwide locations during a reorganization. The Commission alleged in an ADEA suit against Honeywell that some of these employment actions were based on age, and settled the case for a total of $2.15 million, with substantial benefits to 6 individuals who had filed charges with EEOC and lesser awards to 25 other aggrieved individuals. EEOC v. Honeywell, Inc., f/k/a AlliedSignal, Inc., Automotive Aftermarket (D.N.J. Sept. 28, 2004). E. Protecting Our Nation's Workers From The Start: EEOC's Youth @Work Initiative In 2004, EEOC launched its Youth@Work Initiative to promote equal employment opportunity for our nation's younger workers. This program is aimed at one of the more vulnerable groups in the workplace teenagers, often working their first job, without any knowledge of their right to a discrimination-free work environment. Through outreach programs and partnerships with the business community, EEOC is raising awareness among teenagers and employers of the unique risks young people face during their early employment experiences. Much of EEOC's litigation on behalf of young workers highlights the disturbing fact that many teens nationwide face sexual harassment at the very beginning of their working lives. Often, these cases arise in a restaurant setting, a common after-school or entry-level job for many teenagers. For example, in Tampa, a 36-year-old male assistant manager subjected a 16-year-old hostess to physical and verbal abuse, including grabbing her breast and other inappropriate touching. After the hostess complained of this behavior, her hours were reduced and she was eventually fired. In New Mexico, the male general manager of a fast food restaurant subjected three 16-year-old female employees to unwelcome physical and verbal sexual conduct, also firing them after they complained. A 'family' restaurant chain in Utah subjected its female teenage workers to grabbing, unwelcome kisses, vulgar comments, and, in one case, sexual assault by male supervisors and employees. Female teenage workers at a Northern Illinois ice cream parlor were kissed, groped, and subjected to offensive sexual comments by male coworkers. In a suburban Baltimore restaurant, an assistant manager ground his erect penis against female teenage workers and inappropriately touched them on their breasts and buttocks. The EEOC sued to obtain compensation for the above victims and prevent future violations of the law. EEOC v. Rare Hospitality Int'l, Inc., d/b/a/ Longhorn Steakhouse (M.D. Fla. Dec. 30, 2003) ($200,000 and an injunction against sex discrimination and retaliation); EEOC v. B&B Mgt., Inc., d/b/a/ Taco Bell (D.N.M. Nov. 14, 2003) ($100,000 total for three claimants plus letters of recommendation; injunction against sex discrimination and retaliation at the employer's New Mexico facilities); EEOC v. JB's Family Restaurants, Inc., & Summit Family Restaurants, Inc. (D. Utah March 26, 2004) ($435,000 to a dozen claimants, plus an injunction, letters of apology, and offers of rehire with retroactive benefits and seniority); EEOC v. Colonial Ice Cream, Inc. (N.D. Ill. Oct. 1, 2003) ($368,000 to 13 claimants, EEO training in English and Spanish, and an injunction against sex discrimination); EEOC v. Brinker Int'l, Inc., Chili's of MD, Chili's of Bel Air (D. Md. July 28, 2004) ($283,000 and an injunction against sexual harassment and retaliation). By educating young workers about their rights as employees and pursuing legal remedies in court, EEOC is helping to ensure an environment free from harassment and discrimination for working teens Not all employment discrimination against teens involves sexual harassment. For example, despite prior work experience at a similar establishment, a 17-year-old was refused hire at a fast food restaurant in Tennessee because he had a below-the-knee amputation of one leg and used crutches. EE0C v. Captain D's Seafood (M.D. Tenn. May 26, 2004) ($5,000 in backpay, $20,000 in damages, and an injunction against disability discrimination and retaliation). In Oklahoma, a 17-year-old with a cosmetic facial disfigurement (cleft palate) applied for a part-time job in an ice cream parlor. She was told that the store was not hiring and would not be hiring in the future. The EEOC discovered that someone else was hired on the very same day and that a classmate of the 17-year-old applied 3 days later and was hired on the spot. EEOC v. W.H. Braum, Inc. d/b/a Braum's Ice Cream & Dairy Store (E.D. Okla. Aug. 2, 2004) ($55,000 in monetary relief and reporting on applicants and hires for an 18- month period). F. Bringing Justice and Opportunity to the Workplace through a Nationwide Litigation Program The EEOC's Office of General Counsel strives to function as a national law firm, working collaboratively to maximize our impact on eliminating employment discrimination. By increasing awareness of discriminatory barriers to equal employment opportunity and successfully resolving lawsuits brought on behalf of groups of individuals, or even one person, we both obtain justice for victims of discrimination and open up opportunities to future applicants and employees. We maintain a presence in all areas of the country, taking on cases arising under all statutes the EEOC is charged to enforce. 1. Title VII a. Harassment Forty years ago, when the Civil Rights Act of 1964 was enacted, workplace harassment was far from the main target of civil rights enforcement efforts. At that time, the EEOC was focusing its efforts on systemic violations such as the exclusion of minorities from entire industries; overtly racially and sexually segregated jobs and lines of progression in many manufacturing and other facilities; state laws restricting the conditions under which women could work, thus denying them many job opportunities; and "male" and "female" classified advertisements. Today, with online resume submissions, the elimination of overt ethnic, racial, gender, and age preferences in advertisements, and the repeal of state female protective laws, it is sometimes difficult for an individual to know that he or she has been discriminated against. With harassment, however, there is little ambiguity the racial slur directed by a supervisor or coworker, the targeting of individuals after 9/11 and commencement of war in Iraq due to their perceived ethnic origin and/or religion, and the constant propositioning of female employees leave little doubt that such people have been subjected to unlawful harassment based on a protected characteristic. Since the Supreme Court's recognition that workplace harassment is actionable under Title VII, and with increased societal awareness that harassment is unlawful, the EEOC has seen an explosion of litigation on this front. The following two subsections discuss cases involving sex, race, and national origin harassment. Harassment issues also appear in cases discussed later in the Annual Report. (1) Harassment Based on Sex An auto dealership was a gauntlet of harassment for two female employees subjected to offensive physical conduct, sexual invitations, pornography, dirty jokes, and loud discussions about masturbation by their male colleagues. After complaining to management, one of the two employees was told she had to improve her attitude or be fired. Eventually, the workplace became so abusive that the two women had no choice but to quit their jobs. The EEOC took the case to trial, and a jury ruled in favor of both claimants on the harassment allegation and one of them on constructive discharge, awarding them backpay and compensatory and punitive damages totaling $132,000 (later reduced for one claimant due to the $50,000 statutory cap on damages). EEOC v. RPM Auto Sales, Inc. (E.D. Mich. Dec. 15, 2003). Pornography, dirty jokes and graphic sexual language, and unwanted touching should not be the price a worker has to pay to keep her job Sexual harassment can be found in all kinds of jobs, not just in the blue or pink collar variety. In a case from Florida, the sole female emergency room physician was harassed by her male colleagues, including graphic sexual language and gestures, sexually explicit jokes, and solicitations by her supervisors and coworkers. She was also denied bonuses and a promotion to partnership because of her sex, and was discharged for complaining about the discriminatory treatment. The case was resolved by a consent decree, which required the employer to pay the physician $296,800 (including damages for pendent state law claims), and another $203,200 in attorney's fees and costs. The employer was enjoined from engaging in sex discrimination and retaliation and required to promulgate a written sexual harassment and retaliation policy and conduct annual training. EEOC v. Emergency Medicine Associates (S.D. Fla. Dec. 23, 2003). Other professional women learned to their dismay that their job included "show[ing] a little tit" to drive up business. Two account executives and an administrative assistant were told by their manager that they should show more cleavage to their customers because "sex sells." This case was resolved by consent decree providing $380,00 to the women, an injunction against sexual harassment and retaliation, and annual training. EEOC v. EZ Buy EZ Sell Recycler Corp. (C.D. Cal. Dec. 5, 2003). A female sales representative was taken to a seamy club during a company-sponsored trip to Las Vegas and told to simulate oral sex with a kilt- wearing waiter after watching her boss engage in such conduct with a bikini-clad waitress. She refused and left the club. The Commission resolved her sexual harassment claim for $85,000. EEOC v. BlueGreen Corp. (N.D. Tex. June 14, 2004). The only female executive in an office of four male managers was subjected to unwelcome sexual advances by her supervisor and other male managers, forced to watch a pornographic video, and asked to attend sales meetings at the supervisor's apartment, a topless bar, and a swingers club, all of which she refused. Her supervisor then required her to attend meetings at Hooters and a transvestite karaoke bar. When she finally complained to a vice president, she was ostracized and her performance rating was reduced. Suffering from post-traumatic stress and depression, she quit her job. The case was resolved by consent decree providing $300,000 to the claimant and sexual harassment and antiretaliation training for all managers at the facility. EEOC v. Parmalat Bakery Div. of North America (D.N.J. March 31, 2004). While most sexual harassment cases involve men harassing women, this is not always the case especially as more women move into positions of power. In a case from Michigan, a female loan officer with authority to approve a male loan officer's loans harassed him by rubbing his groin area, slapping his buttocks, exposing her genital area to him on several occasions, and constantly propositioning him for sex. After the male loan officer complained through proper channels, he was discharged for insubordination and poor performance by the company's president. EEOC v. Team Lending Concepts (E.D. Mich. Feb. 18, 2004) (resolved by consent decree for $50,000 and a requirement that the employer comply with Title VII). Harassment by a member of the same sex is also actionable. In a case from Philadelphia, a female life skills counselor working for a social service organization was subjected to frequent sexual advances by a new female supervisor. When she complained to Human Resources, she was removed from the harasser's supervision, but that person continued to monitor her work and treat her with hostility. Suffering from acute depression and anxiety, the life skills counselor requested leave under the Family and Medical Leave Act, attaching a doctor's certification that her condition was the result of sexual harassment. Her leave request was denied and she was told to have her doctor delete any references to harassment so she could get paid. She refused and ultimately was removed from her job. The case was settled for $90,000, an injunction against sexual harassment and retaliation, and extensive revision of company's sexual harassment and antiretaliation policies. EEOC v. Resources for Human Development, Inc. (E.D. Pa. March 24, 2004). In a shocking case from Texas, a male business owner exploited the vulnerable employment status of young Hispanic male warehouse workers by requiring that they permit him to perform oral sex on them as a condition of employment. The lawsuit was settled by consent decree, providing the class of victims $190,000. A broad permanent injunction accompanied this monetary relief, prohibiting sex discrimination of any kind and prohibiting the company from discussing the sexual behaviors of any current or former employee or requiring any employee to enter the home of the company's owner. The injunction also provides for a written sexual harassment policy in both English and Spanish, with a complaint procedure identifying an EEOC representative. The decree contains extensive reporting requirements, and EEOC will have the right to conduct periodic inspections of defendant's premises at least four times a year and whenever an employee's complaint merits inspection. EEOC v. Craftex Wholesale and Distributors, Inc., & Ashcroft Leasing LLC (S.D. Tex. May 20, 2004). (2) Harassment based on Race and National Origin As with sexual harassment, racial harassment often goes hand in hand with retaliation. In a suit against a chain of San Diego-area autobody shops, two African-American employees were subjected to constant racially offensive comments by their coworkers, including the wife of the district manager. After they complained to the EEOC, they were demoted, placed in less desirable stores, and subjected to disparate discipline. A white store manager and an Hispanic employee also were retaliated against when they complained about the harassment or refused to participate in it. The case was ultimately settled for a total of $295,000 to five claimants, plus $80,000 for a class fund for individuals discriminated against on the basis of race or retaliation during a 3-year period. An outside EEO consultant was mandated, who will assist the company in developing procedures for handling complaints. EEOC v. Earl Scheib, Inc. (S.D. Cal. Aug. 30, 2004). Several cases illustrate the persistence of racist graffiti and displays in workplaces. In a case from Arkansas, African-American workers were subjected to racist graffiti, unfavorable terms and conditions of employment due to race, and retaliation for complaining of discrimination. In settlement, the company was enjoined from race discrimination and retaliation, and agreed to monitor its restrooms, equipment, and other facilities for racial graffiti and to remove it or cover it up as soon as the company becomes aware of it. A total of $220,000 was provided to 10 claimants. EEOC v. Parts Warehouse, Inc. (E.D. Ark. Dec. 17, 2003). In an automobile dealership in Pennsylvania, four African-American employees were subjected to racist cartoons, offensive jokes, racial epithets, displays of the confederate flag, and threats including a list of "10 Ways to Kill a Black Man." They were compensated with $135,000 under a consent decree which also enjoined the company from violating Title VII and from retaliating against them or anyone who complained of discrimination, and required training for all supervisory personnel. EEOC v. Charapp Ford South (W.D. Pa. Nov. 12, 2003). African-American employees at a manufacturing facility in Terre Haute, Indiana were subjected to racist graffiti and the display of nooses. A settlement provided $245,000 to 22 claimants, an injunction against race discrimination and retaliation, and the deposit of $55,000 in an interest-bearing account to be used for rewards for information regarding future acts of racially-motivated vandalism or racial harassment. EEOC v. Bemis Company, Inc. (S.D. Ind. Sept. 24, 2004). In a case from California, the president and owner of a manufacturer and distributer of computer networking parts routinely subjected his female, African-American, and Hispanic workers to a barrage of insults and offensive stereotyping remarks. These ran the gamut from referring to female employees as "stupid girls," telling Hispanic employees that they should go "pick strawberries" like the rest of "their people" because they will never amount to anything, and using various racial epithets towards African-American employees. The company president would threaten and intimidate employees by running a finger across his neck and telling them he could make people disappear because he knew people in the Chinese mob. The case was settled by a 3-year consent decree, which can be extended if the court determines that the company failed to comply with any of its terms. The decree provides a total of $350,000 in damages to 10 aggrieved individuals. In addition, the company must pay for a consultant, who will monitor the company's harassment and other antidiscrimination policies, set up a 12-hour hotline for complaints, and investigate complaints. All new and current employees and managers must undergo training in discrimination laws, and the company president must appear at each training session to reiterate the company's commitment to antidiscrimination and encourage people to come forward with complaints. EEOC v. Unicom Electric, Inc., d/b/a UNICOM Global Systems Solutions and Unity in Communications (C.D. Cal. Jan. 9, 2004). No one should have to submit to an abusive work environment to earn a living Mexican construction workers at a building project in Colorado were the targets of vile discriminatory language on a daily basis, with constant use of profanity combined with the term "wetback." In addition, the workers were prohibited from using the cleaner ground floor restrooms; from using the elevators to carry heavy loads; and from obtaining drinking water from the supervisor's trailer, instead having to bring their own water to the worksite. After a 1-hour peaceful protest of these discriminatory conditions, six of the workers were laid off. The case was resolved through a consent decree providing $600,000 to 10 claimants and $150,000 to other workers of Mexican national origin who worked on the project during a 2-year period and were subjected to harassment or retaliation. An EEO coordinator will maintain records and submit reports on compliance with the decree, and assist in training. EEOC v. Phase 2 Co. (D. Colo. June 1, 2004). A truck driver/crane operator working at the Charlotte, North Carolina facility of a nationwide roofing supply distributor, whose parents were from Puerto Rico, was regularly called names such as "taco," "burrito," and "enchilada" by a coworker. Despite complaints to the general manager, nothing was done until EEOC conducted an onsite investigation of the employee's discrimination charge. A consent decree provided $100,000 in monetary relief to the employee, and prohibits the company from discriminating on the basis of race or national origin and from retaliation. EEOC v. Bradco Supply Corp. (W.D.N.C. March 26, 2004). Afghani workers at two automobile dealerships in California were called terrorists, "camel jockeys," and other derogatory names, and referred to as "the bin Laden gang." A manager frequently announced his dislike of Muslims and Afghans and implied that all Muslims should be killed. Some of the Afghani employees were discharged for complaining about the harassment. This case resulted in a consent decree paying a total of $550,000 to seven individuals as well as the hiring of an outside consultant. EEOC v. Fairfield Toyota, Barber Dodge (E.D. Cal. April 6, 2004). b. Denial of Employment Opportunities because of Sex EEOC sued a restaurant which refused to hire men as servers. Managers at the Indianapolis location of a nationwide chain that operates restaurants with big screen televisions, billiards, video games and live music, told male applicants that their patrons preferred women as servers and that men would not be considered for that position, but could work at the bar, kitchen, and door. The case was resolved by a 3-year consent decree, which provides $350,000 in compensatory damages to a class of male applicants and employees plus $10,000 to cover the costs of locating class members. Additionally, injunctive relief requires sex-neutral hiring in the future, and the use of sex neutral language in job descriptions, for example changing the position of "beer tub girl" to "beer server." EEOC v. Jillian's of Indianapolis, Inc., Jillian's Entertainment and Holdings, Inc., & Jillian's Entertainment Corp. (S.D. Ind. Aug. 12, 2004). A woman who had successfully worked as a member of the "Zoo Crew," the pep squad of the Phoenix Suns basketball team, was denied the opportunity to work in a new season due to her sex. Advertisements for the season were explicitly limited to men because the Suns and an independent corporation managing the crew believed women incapable of performing stunts such as trampoline dunks. The case was settled by separate consent decrees, providing three women a total of $104,500, and a letter of apology and positive reference for the former Crew member. The Suns team is enjoined from sex discrimination or retaliation, and will affirmatively recruit women for the Zoo Crew. EEOC v. Phoenix Suns Ltd. Partnership & Sports Magic Team, Inc. (D. Ariz. Oct. 30, 2003). Whether driving trucks or serving beer, Title VII protects the rights of men and women to work in the jobs they choose Women attempting to break into less traditional jobs encountered discriminatory barriers in several cases. For example, the sole woman hired for a delivery driver position at a Baltimore-area food service distributer was told that her performance would determine whether other women would ever be hired. After she had difficulties and quit her job, another woman applied for the position and was told the company would not be hiring any more women because of its bad experience with a female driver. This case was resolved by a 3-year consent decree providing $350,000 in backpay and compensatory damages to a class of seven women, injunctive relief prohibiting sex discrimination in hiring, and affirmative efforts to recruit qualified female driver applicants. During the course of the lawsuit, the company extended unconditional job offers to seven female applicants. EEOC v. Performance Food Group, d/b/a Carroll Co. Foods, Inc. (D. Md. June 3, 2004). A suit against a leading North American timeshare resort business alleged that the company failed to provide promotional opportunities for women at its facilities in the Northwest. Current and former female employees, including a four-time recipient of an award for highest sales performance in the company, were denied managerial or supervisory positions, while much less qualified men were advanced. In settling the case, the company agreed to set up a fund of $475,000 for approximately 25 class members. The consent decree enjoined the company from discriminating in violation of Title VII and required it to hire a consultant to establish objective criteria for promotions. EEOC v. Trendwest Resorts, Inc. (W.D. Wash. June 1, 2004). c. Sex Discrimination in Pay Women in professional jobs continue to experience wage discrimination. A female developmental chemist, who was also the only African American in that position, was paid $5,000 - $10,000 a year less than her male counterparts. The company contended that her degree in chemistry was not equal to the degrees of the men, but the Commission countered with evidence that nonblack men without college degrees were paid more than she was. EEOC v. Azko Nobel Coatings, Inc. (S.D. Miss. April 30, 2004) ($38,000 in monetary relief). A female customer service engineer for an information technology management company was paid less initially and then given smaller raises than men working on the same project and with the same job responsibilities. EEOC v. Alternative Resources Corp. (N.D. Tex. June 14, 2004) ($60,000 in monetary relief). Also see Morgan Stanley, discussed at page 13 above. d. Pregnancy Discrimination One of the larger societal changes in the 40 years since the passage of Title VII is the entry of women into the work force at all stages of childbearing and rearing. A woman hired as a server at a nine-state restaurant/brewery chain and promoted to supervisor and put on the management career path found that path blocked when she told her employer she was pregnant. Her management training was discontinued, she was removed from the management career track, and she was denied assignments and ultimately discharged. This case was settled for $145,000, a positive letter of reference, and revised employment policies. EEOC v. John Harvard's Brew House, Inc. (E.D.N.Y. June 1, 2004). In another case, one of the nation's largest aftermarket autoparts retailers refused to let a pregnant assistant manager continue working after her doctor had imposed a pregnancy-related 30- pound lifting restriction on her. Evidence revealed that employees with temporary lifting restrictions not related to pregnancy had been permitted to work. EEOC v. O'Reilly Automotive, Inc., d/b/a O'Reilly Auto Parts (D. Kan. June 16, 2004) ($50,000 in backpay and damages and a positive letter of reference). e. Race Discrimination One of the nation's largest providers of temporary manual labor failed to promote African- American employees into management positions in its Memphis and Jackson, Tennessee offices and retaliated against those who opposed discriminatory practices. Despite requests from five employees for branch manager and manager-in-training positions, the company promoted less qualified white candidates. An employee who filed an EEOC charge concerning his nonselection was fired and other employees were disciplined or discharged for participating in EEOC's investigation or assisting employees in filing internal EEO complaints. The case settled for a total of $347,500 in backpay and compensatory damages to eight individuals, and training for the company's branch managers in employment discrimination. EEOC v. Labor Ready, Inc. (W.D. Tenn. Aug. 5, 2004). EEOC sued a regional telecommunications company for failing to promote African- American employees into management positions and denying them management skills assessment testing and participation in training programs. The company agreed to pay a total of $883,000 to 23 African-American employees and to make best efforts to fill at least two additional entry-level management slots with African-American employees. It also agreed to cease using a test for promotion to management positions which EEOC claimed had a disparate impact on African-American employees, and not to use any other test or selection device without first validating it and allowing EEOC the opportunity to review the validation studies and raise objections with the court. EEOC v. BellSouth Telecommunications, Inc. (S.D. Ala. Oct. 22, 2003). "Image" or "branding" is sometimes a modern gloss on old-fashioned discrimination based on supposed customer preference. For example, in one case a nightclub owner fired two African-American bartenders because they did not fit the club's 'new image.' Although the nightclub claimed this was a layoff due to lack of work, six white bartenders were retained and over the next 5 months five additional white bartenders were hired. EEOC's suit settled for a total of $80,000 and an injunction against race discrimination. EEOC v. C-Sonya, Inc., d/b/a The Club and Concept 2000 Professional Employers, Inc. (M.D. Fla. Aug. 24, 2004). Title VII protects individuals of all races. In a case against an independent licensee of Blue Cross/Blue Shield, EEOC alleged that the employer failed to promote and later discharged its Medical Director because he was white. During the selection process for the Chief Medical Officer (CMO) position, which the white Medical Director held on an acting basis, the employer's African-American CEO commented that the company looked "too white" and that she "did not want any more white boys hired." A less qualified African-American candidate was selected for the CMO position and that person eliminated the Medical Director's position and fired him. The case was settled for a payment of $450,000 to the former Medical Director, who intervened in EEOC's suit, as well as training on race discrimination for individuals involved in hiring at the facility. EEOC v. Horizon/Mercy Health Plan of Trenton, N.J. (D.N.J. May 14, 2004). f. National Origin Discrimination EEOC has continued to find discrimination against persons of Middle Eastern national origin in the aftermath of 9/11 and since commencement of the war in Iraq. For example, an Egyptian Muslim manager at the Manhattan showroom of a high-scale cabinet designer was harassed on a daily basis about her Middle Eastern background and Islamic religion by a coworker. The harassment escalated following 9/11, with the coworker calling the manger "Mrs. Osama bin Laden" and "Mrs. Taliban." When the manager complained, she was told that the offending employee was one of the best salespeople and brought in a lot of money for the company. Subsequently, the manager was discharged on a trumped-up charge. She received $162,000 in compensatory damages, and the company created a formal complaint process. Another case involved a long-term management employee for a mushroom production and distribution company who was of Mediterranean/Middle Eastern descent and wore a long beard. In September 2002 the company's sales director became his supervisor and began calling him Osama bin Laden and suggesting that he was associated with terrorists. He was fired for complaining and received $152,000 in compensatory damages through EEOC's suit. Finally, in a horrible irony, an Iraqi-born construction worker, whose family members had been tortured and killed by Saddam Hussein, was call "Saddam Hussein" and "terrorist" by coworkers when the United States began planning to attack Iraq. He received $33,500 through a consent decree. EEOC v. Poggenpohl U.S., Inc. (S.D.N.Y. July 2, 2004); EEOC v. Amycel, Inc. (E.D. Pa. Sept. 13, 2004); EEOC v. Tatley-Grund, Inc. (W.D. Wash. March 22, 2004). In two cases the connection with 9/11 was immediate. The afternoon of the attacks, a Jordanian Muslim working as a security guard at the Daley Civic Center in Chicago was suspended, demoted, and transferred based on an incident for which other guards were equally responsible. After he filed a discrimination charge, he was restored to his original assignment at the Daley Center. EEOC's suit was later resolved for $70,000. EEOC v. Aargus Security Systems, Inc., and MB Real Estate Services LLC (N.D. Ill. May 20, 2004). A naturalized citizen of Palestinian parents was the object of open hostility by his coworkers at a Tampa aerospace industry parts manufacturer in the days following the 9/11 attacks. The coworkers falsely claimed that he had made threatening and inflammatory remarks supporting the terrorist attacks, and reported their suspicions to the FBI, who interviewed the employee but took no action. Three days after the attacks, the employee was suspended with pay during an investigation into his alleged terrorist remarks, and was then fired on the basis of alleged attendance problems. Evidence demonstrated that his absences were excused, and that non-Palestinian employees with worse attendance records were not terminated. EEOC v. Chromalloy Castings Tampa Corp. (M.D. Fla. March 31, 2004) ($52,000 in monetary relief and a positive job reference). Post-9/11 and Iraq war backlash are reminiscent of the mistreatment of individuals identified with the enemy during past international conflicts, but fortunately there are now laws prohibiting such conduct Another form that national origin discrimination can take is employment decisions based on accent. In a case from Arizona, an individual born in New York whose first language was English but who lived in Nigeria from ages 3 to 18 was denied a job as a telemarketer because of his foreign accent. The EEOC's interview indicated that the person had superior English-language skills and, contrary to the employer's claims, could pronounce the word "contestant" without difficulty. EEOC v. Southwest Incentives, Inc. (D. Ariz. Feb. 3, 2004) ($22,000 in backpay and damages and injunction against national origin discrimination and retaliation). Ethnic stereotyping is often at the root of employment discrimination based on national origin. EEOC brought an action against a hotel in Saipan, alleging that it had fired over 40 employees of Filipino national origin following a union organizing campaign. These employees were replaced by people from other countries whom the hotel owners believed would be less likely to support unions. The case also included allegations that persons not of Japanese national origin were denied promotions to assistant executive chef, and that a Filipino cook was discharged because he filed a charge of discrimination. The suit was resolved for a total of $400,000 in monetary relief and an injunction prohibiting the hotel from failing to renew the 1-year employment contracts of 23 current and former Filipino employees. The hotel is also required to pay travel costs to Saipan and to apply for necessary entry permits and work authorizations for nonresident persons covered by the injunction. EEOC v. Pacific Micronesia Corp. (D. N. Mar. I. March 3, 2004). g. Religious Discrimination Not only must employers reasonably accommodate the religious observances and practices of applicants and employees, they must refrain from intruding their own religious beliefs into the workplace. A maintenance employee at a Cookeville, Tennessee travel center refused to shave a beard he wore as part of his religious practices as a Messianic Christian. Despite the employer's "no-beard" policy, the general manager had accommodated the employee's religious practice. When the regional manager encountered the employee he ordered the general manager to fire him for violating the policy. EEOC v. Pilot Travel Centers LLC (M.D. Tenn. April 9, 2004) ($62,400 in monetary relief, an injunction against religious discrimination and retaliation, and distribution of a policy statement regarding reasonable accommodation of religious beliefs to all general managers in Tennessee and all regional managers to whom they report). An employee refused to provide technical support for a customer's violent video games due to her Christian religious beliefs. She viewed the games as vile and pornographic and told her supervisor that the "trash" in the computer was an abomination in the eyes of God. The employee was told there were no openings on other accounts and that she would be discharged if she refused to work on the account. After her refusal, she was fired. EEOC v. Sykes Enterprises, Inc. (D. Colo. Aug. 3, 2004) ($80,000 in monetary relief and implementation of a policy addressing religious accommodation). No employee should be forced to compromise sincerely held religious beliefs as a condition of employment; conversely, no employee should be subjected to an employer's religious coercion on the job Two Catholic employees who worked in a dental office and lab employing approximately 80 people were required to attend weekly courses espousing the religion of Scientology. When they objected to taking the courses, they were discharged. EEOC v. Harlington Family Dentistry (S.D. Tex. Oct. 6, 2003) ($21,500 to each employee and an injunction prohibiting religious discrimination and retaliation). In a similar case, a crew chief for a cellular phone business was required to attend weekly safety meetings concluded by a prayer, and Bible verses were included with his paycheck. His complaints to supervisors about the prayers were unavailing and he was told to keep his mouth shut or risk losing his job. When the mandatory safety meetings were moved to a church, he vocally opposed the forced worship and prayer. Later in the day of the first safety meeting held in the church, the employee, who had received an "outstanding" performance rating the prior month, was discharged. EEOC v. Shenandoah Tower Service, Ltd. (W.D. Va. April 29, 2004) ($45,000 and training on religious discrimination and retaliation). Harassment on the basis of religion is prohibited under the antidiscrimination laws, and is analyzed legally in the same manner as offensive conduct based on any other protected status (e.g., sex, race, national origin, age, or disability). For example, the supervisor of three Jehovah's Witnesses circulated offensive cartoons depicting Jehovah's Witnesses having sex with a goat and preaching while drunk, and made jokes and derogatory comments about the employees' religion. The affected individuals were recent immigrants from Mexico who were not fluent in English. After they threatened to complain to the owner, they were laid off, even though they had more seniority than employees retained. EEOC v. Arizona Paper Box Co., Inc. (D. Ariz. June 10, 2004) ($48,000, an injunction against religious discrimination and retaliation, and revised antidiscrimination policies posted in English and Spanish). 2. Age Discrimination in Employment Act The Age Discrimination in Employment Act (ADEA), passed 3 years after the 1964 Civil Rights Act, recognized that older workers were disadvantaged in finding and retaining employment and that employers commonly set age limits unrelated to performance potential. Congress's stated purposes in enacting the ADEA included "promot[ing] employment of older persons based on their ability rather than age [and] prohibit[ing] arbitrary age discrimination in employment." Despite the aging baby boomer population, increased longevity, and a desire of many older persons to remain gainfully employed, age discrimination remains a fact of life in our society. A high performing manager whose immediate supervisor was pleased with his work was nevertheless seen by a company executive as "just too old" at age 61 to remain employed. The employee's supervisor was instructed to discharge him or harass him into resigning. The supervisor later told the EEOC that the same executive had told him to get rid of two other managers in their 50s because they also were viewed as too old. When the 61-year-old manager learned of the request to get rid of him, he resigned and filed a charge of discrimination. EEOC v. Family Dollar Operations, d/b/a Family Dollar Store (N.D. Miss. April. 29, 2004) ($98,750 in backpay, interest, and liquidated damages and training on the ADEA to all regional vice presidents). Despite his extensive credentials, a 51-year-old applicant for a management trainee position at a financial services company was rejected due to an alleged unstable work history; the employer instead hired a recent college graduate with no experience. Evidence disclosed that seven other people under age 40 with inferior credentials had been hired by the company. The EEOC also found that defendant had not kept applicant information required by the ADEA. The case was resolved by consent decree for a total of $130,000 for two aggrieved individuals and an injunction prohibiting age discrimination in recruiting or hiring for management trainee positions in seven Texas offices and requiring compliance with the ADEA's record keeping provisions. EE0C v. Wells Fargo Financial Texas, Inc., f/k/a Norwest Financial Texas, Inc. (W.D. Tex. Oct. 31, 2003). It is illegal to use age as an indicator of ability or of expected job tenure Following a face-to-face interview with American employees, and a telephone interview with the company's North American head of sales and its President/CEO, a French manufacturer of microscopic machines and structures hired two individuals in their early 50s to work as managers at its small U.S. subsidiary headquartered in San Jose. They were sent for training to Grenoble, France, where they met the company's managers in person. A month later they received identical e-mails dismissing them. Defendant's North American head of sales told them the CEO thought they were "too seasoned," and agreed with one of the rejected individuals that this meant too old. Although the company claimed the new managers' jobs had been eliminated, evidence demonstrated that the company sought to fill their positions immediately after they were let go. EEOC's suit was settled for $125,000, a new written EEO policy setting forth the requirements against age discrimination, and annual training for all Human Resources staff, managers, and employees. EEOC v. Memscap, Inc. (N.D. Cal. March 18, 2004). A health care company promoted a 64-year-old registered nurse to a clinical supervisor position, but refused to pay her the management level salary and concomitant benefits that comparable, younger employees received. The company liked the nurse's skills, but felt she was too old to fit its youthful image. She was replaced by a 44-year-old, and although the company cited unprofessional conduct and performance problems as reasons for discharging her, her direct supervisors disagreed and said the patients loved her. EEOC v. Maxim Healthcare Services, Inc. (M.D. Fla. April 27, 2004) ($75,000, an injunction against age discrimination, and development of an EEOC-approved age discrimination policy). 3. Americans with Disabilities Act The Americans with Disabilities Act (ADA) was passed in 1990 to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Technological and medical advances in the ensuing 14 years have expanded the employment opportunities for disabled individuals; however, significant barriers remain, many due to fears and stereotypes that are pervasive in our culture. Unfounded beliefs about an illness resulted in a favorable jury verdict for EEOC against a nursing home. A cook/dietary aide was discharged after her supervisor learned she had been diagnosed with Hepatitis C. Despite a medical release from her doctor, the nursing home relied on fears of contagion to discharge her. The jury agreed with EEOC that the nursing home regarded the employee as substantially limited in the major life activity of working and awarded her $30,000 in backpay and $20,000 in compensatory damages. EEOC v. Heartway Corp., Inc., d/b/a/ York Manor Nursing Center (E.D. Okla. Aug. 17, 2004). The need for reasonable accommodation was at the center of case seeking relief for an employee with mild mental retardation who worked as a busperson in a mall food court. A schedule change made it impossible for the employee to take public transportation to work, and she had no other means of transportation. She requested the accommodation of a change back to her old schedule or to another schedule that would permit her to take public transportation. The company refused to accommodate her scheduling request, resulting in her constructive discharge. EEOC v. Service Management Systems, Inc. (W.D. Ark. May 13, 2004) ($75,000 and reports to EEOC for 3 years on accommodation requests). In a particularly egregious case, a fast food restaurant employee with Down Syndrome was repeatedly harassed by management staff and coworkers. In addition to coworkers screaming profanities at him and calling him "stupid," the employee was subjected to physical assaults, including coworkers placing a knife against his stomach, putting ice down his clothes, throwing water in his face, and shoving him. In settlement of EEOC's suit, the employee received $90,000, to be used to fund a special needs trust which would enable him to remain eligible for needs-based government benefits. The company was enjoined from violating the ADA, and specifically from creating or tolerating a disability-based hostile work environment. EEOC v. Spylen of Denville, Inc., d/b/a/ Wendy's (D. N.J. March 16, 2004). EEOC brought suit to obtain relief for an individual, deaf since birth, who attempted to obtain an funeral director position, a job he had held before moving for family reasons. He was hired by a Jacksonville, Florida funeral home to work in its crematorium, and after being transferred to an embalmer position was paid less than a similarly situated embalmer. He was denied a promotion to funeral director because the employer wanted to keep him away from the public, and his manner of speech was mocked by a dispatch manager, who insinuated he was mentally disabled. When he complained about the harassment to higher- level management, nothing was done. He filed a charge of discrimination, and when he refused to drop it he was fired. The case was resolved by a consent decree paying him $275,000. EEOC v. SCI Funeral Services of Florida, Inc. (M.D. Fla. Sept. 30, 2004). Harassment on the basis of disability is just as unlawful as harassment based on sex, race or any other protected characteristic An automobile manufacturer denied a deaf and vision impaired employee the services of a sign language interpreter during staff meetings explaining work procedures. The employer also denied her request for a modification of her start time so that she could use public transportation to get to work. When she was blamed for a physical altercation with a coworker who had been mocking her because of her impairments, she requested the use of an interpreter (or the assistance of her brother) during disciplinary proceedings, but her request was denied and she was discharged. She was reinstated after 8 weeks through a union grievance. In resolving EEOC's suit, the employer agreed to pay her $52,000; provide a sign language interpreter for all substantive employee meetings; give her an alpha pager to communicate with supervisors and coworkers; and engage in an interactive process in the event she needs future accommodations. EEOC v. Daimler Chrysler Corp. (E.D. Mich. Jan. 12, 2004). The ADA strictly limits medical examinations and inquiries and requires that medical information be kept confidential. An applicant for a ramp services clerk/cabin cleaner position with an airline cleaning service was subjected to unlawful preoffer medical questions and then denied employment based on his record of schizophrenia. In addition, during an improper search for medical information, the company revealed his psychiatric history to his sister. EEOC's lawsuit was resolved by a consent decree that prohibits medical inquiries absent a conditional offer of employment and requires that such offers state clearly that the employer will comply with the ADA and provide reasonable accommodations. The applicant received $50,000 in compensatory damages. EEOC v. Worldwide Flight Services, Inc., f/k/a/ AMR Services, Inc., and American Airlines, Inc. (D.R.I. Jan. 14, 2004). Fears about higher insurance costs for people with disabilities cannot justify denying them jobs. A temporary employee working as an administrative assistant was offered a permanent position to take effect automatically after she had completed 500 hours of work as a temp. She accepted the offer, and at that point, indicated to the company Vice President that she had multiple sclerosis. When the 500-hour benchmark was met, she was not converted. Thereafter, she heard a recorded conversation between the company CEO and an investor, in which the CEO commented about increasing healthcare costs, said he had a decent temp who wanted full-time employment but had MS, and indicated this presented difficult ethical issues for a small company. A week later, the temp was fired, ostensibly for tardiness. The case was settled by a consent decree paying the employee $61,000 and providing her with a positive letter of reference, and enjoining the employer from discriminating on the basis of disability. EEOC v. Phillips Edison & Co. (D. Md. June 28, 2004). 4. Protecting Access to the Commission's Processes EEOC defends access to its processes, whether interference takes the form of adverse actions against individuals who complain about employment discrimination or participate in the agency's investigations; restrictive arbitration agreements; or overreaching waiver provisions. EEOC similarly will seek redress in court for violations of its administrative resolutions, including agreements reached through the agency's mediation program. An employer brought suit in an Illinois state court seeking to compel an employee to withdraw her charge of discrimination and arbitrate her national origin and disability claims, and to prohibit the Illinois fair employment practices agency from conducting any investigation of the charge. The district court granted EEOC's application to enjoin the company from pursuing its state court action, finding that granting the company's petition would render meaningless the right of employees working under arbitration agreements to file charges with the EEOC or its sister state agencies, as the agencies would be powerless to do anything about the charges. ,cite>EEOC v. Ralph's Grocery Co. (N.D. Ill. Jan. 16, 2004). EEOC will react quickly to any interference with an individual's right to file a discrimination charge The Commission was granted summary judgment in a case where the court found an employer's reduction-in-force separation agreement facially retaliatory. The agreement provided that acceptance of severance benefits would prohibit signers from bringing a charge or claim in any judicial or administrative forum. Violation of this provision exposed the signer to damages, including return of any benefits and payment of attorney's fees and costs. When an employee selected for layoff was told she could not strike this clause from the separation agreement, she refused to sign and filed a charge with the Commission. The district court ruled that an employer cannot deny a contractual right here, severance benefits because of a refusal to waive the statutory right to file a discrimination charge. The court permanently enjoined the company from maintaining that portion of its severance agreement, and ordered the company to make the employee and any similarly situated employees whole by paying all withheld severance benefits with prejudgment interest. The court also ordered the company to deliver a corrective notice and reformed severance agreement to all affected individuals, and tolled all limitations periods for filing a charge or claim. EEOC v. Sundance Rehabilitation Corp. (N.D. Ohio July 26, 2004). A sexual harassment charge was resolved through the Commission's mediation process for $50,000 and a neutral reference. The agreement also provided for a nondisparagement clause and remedies for the employer if the employee violated the clause. The parties were to return the next day to sign the typed agreement after the company's counsel added the nondisparagement clause. Upon leaving the room, the employee remarked something to the effect: "I hope you guys have learned a lesson." At that point, the employer ordered its counsel to write a note to EEOC's ADR coordinator saying that the company reserved the right to challenge the agreement. Four days later the company submitted a letter stating that it was not bound by the agreement since the nondisparagement clause had been breached. EEOC brought suit to enforce the agreement and the case was resolved by consent decree containing the same monetary provisions agreed to at mediation. EEOC v. Boca Chica, Inc., d/b/a Loca Luna Restaurant (N.D. Ga. July 2, 2004). Employees who complain about discrimination against others also may become retaliation victims. A manager for a nationwide temporary labor service was instructed not to hire any more African Americans in the employer's Jackson, Tennessee office and to "conspire" against three "troublemakers" in the office who had filed EEOC charges. Concerned about his liability for carrying out these directives, the manager told the employer's legal division that he would not be a party to further discrimination. His managers then met with his subordinates in an effort to persuade them to file complaints against him. He was later demoted with a 50% pay cut; suspended when he complained about the demotion; and discharged when he informed the company that he intended to file an EEOC charge. EEOC v. Labor Ready, Inc. (M.D. Tenn. May 21, 2004) ($85,000 and training for managers in Tennessee offices on defendant's policies against discrimination and retaliation). G. Outreach: Educating the Public The Commission is committed to educating employees, employers, and stakeholder groups about the agency's work and the laws it enforces. Each year, OGC legal staff are actively involved in EEOC's outreach efforts. In FY 2004, legal staff participated in 791 outreach events addressing more than 56,800 individuals. Following are a few examples of OGC's outreach activities. Early in FY 2004, the Commission launched its Youth@Work initiative which directs educational efforts at teens and their employers. In order to reach these young workers, many field office legal units held outreach programs at local schools and participated in career day activities. Legal staff also offered their skills and experience in employment discrimination law to local colleges and law schools. For example, a trial attorney from the San Antonio District Office discussed the relationship between the District Office and the Texas Human Rights Commission in a speech before a graduate employment law class at St. Edward University, and the Regional Attorney from the St. Louis District Office discussed recent court decisions with a group of employment law students from St. Louis University. An important objective of EEOC outreach events is to make contact with groups and individuals whose knowledge about EEOC and civil rights laws is limited. For example, foreign-born workers, who may have limited English skills, are often unaware of their rights or may be afraid to exercise them. In order to reach these workers, OGC staff partnered with community organizations, as in the following instances: a trial attorney from the Phoenix District Office discussed litigation on behalf of immigrant women at the National Convention for Battered Immigrant Women; the Los Angeles Regional Attorney spoke about the ADA to the Japanese American Citizens League; the San Francisco Regional Attorney discussed sexual harassment cases at the Western Migrant Stream Conference for Health Workers in Agriculture; and the Dallas Regional Attorney spoke about Title VII at the National Trafficking in Persons Conference on Modern-Day Slavery. Legal staff also meet with many employer groups, educating them about their responsibilities under the agency's statutes. For example, the General Counsel discussed the role of the Office of General Counsel and recent EEOC litigation during a meeting of the Labor and Employment Committee of the Washington Metropolitan Corporate Council Association. A trial attorney from the Charlotte District Office discussed EEOC's Mediation Program and recent EEOC litigation at the Charlotte meeting of the Society for Human Resources Managers. The Detroit Regional Attorney spoke before the National Association of Disability Coordinators. The Cleveland Regional Attorney provided an EEOC update and litigation overview at the annual meeting of the Ohio Contractors Association. A Birmingham District Office trial attorney provided an overview of Title VII for the Jefferson County Personnel Department. The Phoenix Regional Attorney presented "An EEOC Primer for First Line Supervisors" to the Tempe, Arizona police department. The Chicago Regional Attorney discussed the ADA, EEOC's national origin guidance, and EEOC charge processing procedures at an event sponsored by the Chicago Rehabilitation Institute. Legal unit staff met with many stakeholder groups. The supervisory trial attorney from Miami discussed the ADA with advocacy groups for individuals with disabilities. A trial attorney from the San Francisco District Office gave an overview of the EEOC and discussed sexual harassment law at an event sponsored by the United Food and Commercial Workers local. A supervisory trial attorney from New Orleans provided an EEOC overview at a program sponsored by the Lighthouse for the Blind. Some legal units held ongoing programs. The Milwaukee District Office partnered with the local state fair employment practices agency to present a series of nine monthly programs on such varied topics as religious accommodation, retaliation, and racism. The New Orleans District Office continued its monthly luncheon meetings with the local American Bar Association liaison group and topics included "A History of Supreme Court Decisions since the Passage of Title VII of the Civil Rights Act of 1964" and "Effective Use of Electronic Discovery Techniques in Employment Litigation." The Detroit District Office participated in a monthly program with the NAACP that offers individuals an opportunity to ask questions and present cases to a district office trial attorney. OGC also uses the media to educate the public about employment discrimination and to deter discriminatory conduct. For example, OGC issues press releases to announce the filing and resolution of all lawsuits. In addition, OGC attorneys are interviewed by various media outlets. In FY 2004, the Phoenix Regional Attorney discussed employment discrimination with the local NBC station and the Acting Regional Attorney in Charlotte discussed recent EEOC litigation with the Charlotte Observer. A Phoenix trial attorney was interviewed about EEOC by a local Spanish newspaper and by the local Telemundo affiliate, and a trial attorney from the Philadelphia District Office was interviewed about employment discrimination on the nationally syndicated Spanish radio talk show, RADIOVISA. These interviews served the additional purpose of reaching out to Spanish speaking communities. III. Litigation Statistics A. Overview of Suits Filed In FY 2004, the field legal units filed 379 merits lawsuits: 375 direct suits and 4 actions to enforce conciliation agreements. (Merits suits include direct suits and interventions alleging violations of the substantive provisions of the Commission's statutes and suits to enforce administrative settlements.) The field legal units also filed 35 subpoena enforcement actions and 1 action seeking preliminary relief. Merits Filings in FY 2004   Count Direct 375 Administ. Enf. 4 Intervention 0 Total 379   233 Individual Suits 146 Class Suits 1. Litigation Workload The FY 2004 litigation workload (merits cases active at the start of the fiscal year plus merits cases filed during the fiscal year) remained substantial with 908 suits in total. Litigation Workload   Active Filed Workload FY 2004 5529 379 908 2. Filing Authority With the adoption of the National Enforcement Plan in February 1996, the Commission delegated litigation filing authority to the General Counsel in all but a few areas; in July 1996, the General Counsel redelegated much of his authority to the Regional Attorneys. Approximately 85% of the cases filed in FY 2004 were authorized by the Regional Attorneys under their redelegated authority. FY 2004 Suit Authority   Count Percent Regional Attorney 324 85.5% Commission 43 11.3% General Counsel 12 3.2%   Total 379 100% 3. Statutes Invoked Of the 379 merits suits filed, 73.9% were filed to enforce Title VII, 11.1% were filed under the ADA, 10.6% were filed under the ADEA, 0.2% were filed under the EPA and 4.2% were filed under more than one statute, including the EPA which was invoked in 5 of the concurrent cases. Merit Filings in FY 2004 By Statute   Count Percent Title VII 280 73.9% ADA 42 11.1% ADEA 40 10.6% EPA 1 0.2% Concurrent 16 4.2%   Total 379 100% 4. Bases Alleged As shown in the next table, sex discrimination (48.8%) and retaliation (37.9%) were the bases alleged most often in suits filed on the merits. Race (15.3%), age (11.8%), and disability discrimination (11.8%) were the next most frequently alleged bases. Note: Total count exceeds suits filed (379) because suits often contain multiple bases. Bases Alleged in Suits Filed   Count Percent Sex 185 52.4% Retaliation 144 37.9% Race 58 15.3% Disability 45 11.8% Age 45 11.8% National Origin 37 9.7% Religion 16 4.2% Equal Pay 5 1.3% 5. Issues Alleged Discharge was an issue in almost 57% of the merits suits filed in FY 2004 when constructive discharge is included. Harassment of all varieties was involved in 47.4% of suits filed. Issues Alleged in Suits Filed   Count Percent All Discharge 216 56.9% Const. Discharge 57 15.0% All Harassment 180 47.4% Sex Harassment 134 35.3% Hiring 48 12.6% Reas. Accom. (Disability) 20 5.2% Promotion 18 4.7% Wages 17 4.4% Reas. Accom. (Religious) 9 2.3% B. Suits Filed by Bases and Issues 1. Sex Discrimination As shown below, 75.6% of cases with sex as a basis alleged some form of harassment; 59.4% of the cases with sex as a basis alleged some form of discharge. Sex Discrimination Issues   Count Percent Harassment 140 75.6% All Discharge 110 59.4% Terms/Conditions 20 10.8% Hiring 14 7.5% Promotion 9 4.8% 2. Race Discrimination As shown below, cases with race alleged as a basis had a higher percentage of discharge alleged (53.4%) than any other issue; race cases alleging harassment were a close second (51.7%). Race Discrimination Issues   Count Percent All Discharge 31 53.4% Harassment 30 51.7% Hiring 8 13.7% Promotion 5 8.6% 3. National Origin Discrimination As shown in the next table, harassment was the most frequently alleged issue in suits with national origin as a basis (62.1%) followed by discharge as the second most alleged issue (48.6% of the suits). National Origin Discrimination Issues   Count Percent Harassment 23 62.10% All Discharge 18 48.6% Hiring 3 8.1% Promotion 2 5.4% 4. Religious Discrimination As shown below, discharge was the issue most often alleged in religious discrimination suits (55.5%) with reasonable accommodation next at 50%. Harassment and hiring, both at 27.7%, were the next most frequent issues in cases filed with religion as a basis. Religious Discrimination Issues   Count Percent All Discharge 10 55.5% Reas. Accom. 9 50.0% Harassment 5 27.7% Hiring 5 27.7% 5. Age Discrimination As shown below, discharge was the most frequently alleged issue in age discrimination suits (46.6%). Hiring and terms and conditions, at 22.2% and 13.3% respectively, were the next most frequent issues. Promotion was the issue in 6.6% of the cases with age as a basis. Age Discrimination Issues   Count Percent All Discharge 21 46.6% Hiring 10 22.2% Terms/Conditions 6 13.3% Promotion 3 6.6% 6. Disability Discrimination As the following table indicates, discharge was the most frequently alleged issue with disability as a basis (55.5% of all suits filed). Reasonable accommodation was the issue next most often alleged (44.4%). Hiring was the issue in 26.6% of the cases filed with disability as a basis. Disability Discrimination Issues   Count Percent All Discharge 25 55.5% Reas. Accom. 20 44.4% Hiring 12 26.6% 7. Retaliation As shown below, discharge was alleged in 66.2% of the suits filed with retaliation as a basis. Retaliation Discrimination Issues   Count Percent All Discharge 96 66.2% Hiring 62 42.7% Wages 30 20.6% C. Bases Alleged in Suits Filed from FY 2000 through FY 2004 As the following table indicates, during the past five fiscal years, from FY 2000 through FY 2004, suits alleging discrimination on the basis of sex (female) ranged from 30% to 43.5% of suits filed each year by the EEOC. In four of the five years, suits filed on the basis of sex (female) represented the highest percentage of cases filed. In FY 2001, suits alleging retaliation represented the highest percentage of cases filed; in the other four years retaliation suits represented the second highest percentage of cases filed. Roughly 15% to 21% of the suits filed each year alleged race discrimination while allegations of national origin discrimination were present in approximately 7% to 13% of all suits filed. Bases Alleged in Suits Filed FY 2000 - 2004 Percent Distribution FY Sex (F) Sex (P) Sex (M) Disab. Age Retal. Relig. Nat. Or. Race 2000 42.4% 3.1% 2.4% 9.0% 11.0% 26.6% 5.9% 13.4% 20.0% 2001 30.4% 3.1% 2.1% 16.50% 91.8% 32.7% 4.4% 7.5% 20.9% 2002 38.8% 4.8% 6.0% 12.1% 10.2% 35.8% 6.0% 7.8% 15.4% 2003 43.5% 3.1% 1.9% 12.7% 7.5% 36.3% 5.5% 10.5% 17.7% 2004 42.7% 6.3% 3.4% 11.8% 11.8% 37.9% 4.2% 9.7% 15.3% D. Suits Resolved In FY 2004, the Office of General Counsel resolved a total of 347 merits lawsuits, yielding $168,098,895 in monetary relief. 1. Types of Resolutions and Success Rate As the table below indicates, of the 347 resolutions of merits suits, 76.7% were by consent decree, 12.7% by settlement agreement, 4.6% by favorable court order, 3.2% by unfavorable court order, and 2.8% were voluntarily dismissed. Of the 347 merits resolutions, 133 sought relief for multiple aggrieved individuals. The rate of merits suits successfully resolved in FY 2004 was 93.9% (includes consent decrees, settlement agreements, and favorable court orders). Types of Resolutions   Count Percent Consent Decree 266 76.7% Settlement Agreement 44 12.73% Favorable Court Order 16 4.6% Unfavorable Court Order 11 3.2% Voluntary Dismissal 10 2.8%   Total 347 100% 2. Filing Authority As shown below, of the 347 merits suits resolved, the Commission had approved 55 or 15.9% for filing, the General Counsel had approved 11 or 3.2% for filing under his authority delegated by the Commission, and Regional Attorneys had approved another 281 or 80.9% for filing under their authority redelegated from the General Counsel. Suit Authority   Count Percent RA 281 80.9% Commission 55 15.9% GC 11 3.2%   Total 347 100% 3. Statutes Invoked Of the 347 merits suits resolved during the fiscal year, 76.1% were filed to enforce Title VII, 10.9% were filed under the ADA, 8.1% were filed under the ADEA and 4.9% were filed under more than one statute, including the EPA which was invoked in 11 of the 17 concurrent suits. FY 2004 Resolutions By Statute   Count Percent Title VII 264 76.1% ADA 38 10.9% ADEA 28 8.1% Concurrent 17 4.9%   Total 347 100% As shown below, Title VII suits accounted for more than 90% of all monetary relief obtained and ADEA suits accounted for 3.2% of monetary relief obtained. ADA suits accounted for $2.5 million in recoveries, 1.5% of all monetary relief obtained. FY 2004 Monetary Relief By Statute   Count Percent Title VII $157.9 93.9% ADA $5.4 3.2% ADEA $2.5 1.5% Concurrent $2.3 1.4%   Total $168.1 100% 4. Bases Alleged As shown in the following table, sex was alleged in 50.2% of the suits resolved while race was alleged in 17.6% of suits resolved. Retaliation was alleged in 38% of the suits resolved and disability in 11.2%. Note: Total count exceeds suits resolved (347) because suits often contain multiple bases. Bases Alleged in Suits Resolved   Count Percent Sex 174 50.2% Retaliation 132 38.0% Race 61 17.6% Disability 39 11.2% National Origin 34 9.8% Age 34 9.8% Religion 15 4.3% Pay 5 1.4% 5. Issues Alleged As shown below, the most frequent issue alleged in suits resolved involved some form of discharge (59.7%). Harassment of some kind was alleged as an issue in 45.2% of the suits resolved and sexual harassment was alleged as an issue in 33.1% of the suits resolved. The issue of hiring was involved in 14.1% of suits resolved. Reasonable accommodation under the ADA was an issue in 4.6% of all suits resolved. Issues Alleged in Suits Resolved   Count Percent All Discharge 207 59.7% All Harassment 157 45.2% Sex Harassment 115 33.1% Hiring 49 14.1% Terms/Conditions 40 11.5% Promotion 26 7.5% Wages 21 6.1% Reasonable Accom. (Disability) 16 4.6% Reasonable Accom. (Religion) 7 2.0% E. Resources 1. Staffing Since FY 2001, OGC's field staff has decreased from 383 to 318, with attorney staff decreasing from 248 to 208. The following shows field and headquarters staffing numbers for the last five years. OGC Staffing (On Board) Year HQ All Field Field Attorneys* 2000 89 359 226 2001 81 383 248 2002 79 353 229 2003 86 332 210 2004 83 318 208 * Includes Regional Attorneys, Supervisory Trial Attorneys, and Trial Attorneys 2. Litigation Budget In FY 2004, the litigation support budget was $3.36 million. From FY 2001 through FY 2004 the litigation support funding ranged from $2.86 to $3.45 million. The following table shows litigation support figures for the last four years. Litigation Support Funding (Millions) Year Funding 2001 $3.45 2002 $2.86 2003 $3.30 2004 $3.36 F. Historical Summary: Tables and Charts   FY95 FY96 FY97 FY98 FY99 FY00 FY01 FY02 FY03 FY04   All Suits Filed 373 193 330 411 464 328 430 430 393 415   Merits 328 167 299 371 437 290 385 332 361 379   Title VII 193 106 174 235 325 222 269 246 277 280 ADA 81 38 79 79 51 23 62 41 46 42 ADEA 41 13 36 36 41 27 31 29 21 40 EPA 1 1 0 2 3 3 5 2 0 0 Concur. 12 9 10 19 17 15 17 14 17 16   Subpoen. & Prelim. Relief 45 26 31 40 27 38 45 32 32 36   All Resolutions 338 296 245 331 349 438 360 373 378 376   Merits 319 278 214 295 319 405 319 345 347 347   Title VII 216 175 122 181 192 305 219 247 256 264 ADA 25 52 45 69 65 52 42 61 48 38 ADEA 61 35 35 35 41 35 34 20 28 28 EPA 2 0 0 1 0 4 6 3 2 0 Concur. 15 16 12 9 21 9 8 14 13 17   Subpoen. & Prelim. Relief 19 18 31 36 30 33 41 28 31 29   Relief $18.9 $50.8 $114.7 $95.5 $98.4 $49.8 $51.2 $52.8 $148.7 $168.1   Title VII $9.0 $18.8 $95.0 $62.0 $49.2 $35.1 $29.8 $29.0 $87.2 $157.9 ADA $1.4 $2.5 $1.1 $2.4 $2.9 $3.0 $2.2 $12.0 $2.6 $2.5 ADEA $8.0 $10.5 $18.0 $29.5 $42.5 $11.2 $3.1 $1.4 $57.7 $5.4 EPA $0.2 $0.0 $0.3 $0.7 $0.3 $0.2 $0.3 $0.1 $0.01 $0.0 Concur. $0.3 $19.0 $0.3 $0.9 $3.5 $0.3 $15.8 $10.3 $1.2 $2.3 The chart below shows merits suits filed for FY 1995 through FY 2004. The chart below shows merits suits resolved for FY 1995 through FY 2004. The chart below shows monetary relief for FY 1995 through FY 2004.

[ad/eeoc.htm]

Get your 28 day trial now 

 

	Web www.LawMemo.com  This form will search the LawMemo web site.  It does not include Key Word Search.