United States: Annual Report on EEOC Developments – Fiscal Year 2020
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This Annual Report on EEOC Developments – Fiscal Year 2020 (hereinafter “Report”), our tenth annual publication, is intended as a comprehensive guide to significant developments in the EEOC during the past financial year. The report not only summarizes case law and litigation statistics, but also analyzes the successes, setbacks, changes and strategies of the EEOC. By focusing on key developments and anticipated trends, the report provides employers with a roadmap to where the EEOC is heading in the coming year.
This year’s report is organized into the following sections:
Part one examines the impact of the COVID-19 pandemic on equal employment opportunity law and provides general guidance from the EEO dealing with ‘return to work’ issues. Additionally, based on the current focus on the COVID-19 vaccine, a significant portion of this section focuses on the EEO and related guidelines involving the vaccine, including guidance provided by the EEOC. Since the issue of employee vaccination is multidimensional, this section addresses both EEO issues and other legal considerations. The section also discusses the ongoing debate as to whether, at this point, employers should consider mandatory vaccination or other options as a recommended practice. Appendix A of this report includes examples of disputes regarding employers’ immunization policies and practices; While there is no EEO litigation yet involving COVID-19 vaccinations, a review of the lawsuits involving the flu vaccine can serve as a useful starting point for dealing with accommodation issues.
Second part describes the EEOC’s charging activity, litigation and settlements during fiscal year 2020, focusing on the types and location of prosecutions brought by the Commission. More details on consent decrees, conciliation agreements, judgments and important jury verdicts are summarized in Appendix B of this report. A discussion of cases in which the EEOC has filed an amicus or appeal brief can be found in Appendix C.
Part three focuses on the changing composition of the EEOC, its regulatory activities and other agency priorities and initiatives. This chapter includes a discussion of current and planned formal regulations, potential changes to the Commission during the Biden administration, and the EEOC’s renewed interest in religious discrimination.
Fourth part summarizes EEOC investigations and subpoena enforcement actions, particularly where the EEOC has made general requests to conduct class-type investigations. Recent developments in cases involving two important issues are also addressed in this section of the report: (1) recent court decisions regarding strict time limits for challenging EEOC subpoenas applicable to Title VII and Title VII investigations. ‘ADA; and (2) recent court rulings regarding documents completed at the EEOC before a charge is pre-prepped, which courts have relied on to broadly interpret the timelines for filing a charge. Appendix D of this report complements this section by summarizing the enforcement actions for subpoenas filed by the EEOC during fiscal year 2020.
Fifth part of the report focuses on the Fiscal Year 2020 litigation to which the EEOC was a party. This discussion breaks down into many thematic areas, including: (1) advocating for gaps raised by employers and the EEOC; (2) statutes of limitation, cases involving both trend or practice and other types of claims; (3) intervention and consolidation of claims with private lawyers representing the accused; (4) class issues in EEOC disputes; (5) other critical issues in EEOC litigation, including protection orders, CSE and experts; (6) general discovery issues in disputes between parties; (7) favorable and unfavorable summary judgment decisions, which are also summarized in more detail in Appendix E; (8) default judgments against employers; (9) impact of bankruptcy proceedings; (10) matters relating to the trial and those relating to remedies and settlements; and (11) the circumstances in which the courts awarded legal fees to winning parties.
Appendices AE are useful resources that should be read in conjunction with the report. Annex Adiscusses cases in which parties have sued employers for their mandatory vaccination policy. Appendix B includes summaries of important consent decrees from the EEOC, conciliation agreements, judgments and jury verdicts. Annex Chighlights appeals cases where the EEOC filed an amicus or appellant brief and decided appeal cases in FY2020.
Annex D includes information on certain enforcement actions for subpoenas filed by the EEOC in fiscal year 2020. Annex E highlights notable summary judgment decisions by claim type.
We hope this report will be a useful resource for employers in their EEO compliance activities and provide helpful advice when faced with a dispute involving the EEOC.
Click on here to read the full report.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought on your particular situation.
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