As expected, EEOC sought Eighth Circuit en banc review of its case regarding CRST Van Expedited, Inc. A panel of the appellate court ruled that the agency cannot use litigation discovery to identify claimants, and has to investigate for each individual claimant. Initially EEOC had filed for a rehearing, as well as for rehearing en banc. The panel decided to rehear and dismissed the rehearing en banc petition as moot. Then the panel, upon rehearing, affirmed itself on May 8. EEOC refilled its petition for rehearing en banc, and the full appellate court voted not to take up the case.
Meanwhile, the agency is touting a district court ruling in the Seventh Circuit, EEOC v. United Road Towing, Inc., No. 1: 10-cv-02259, N.D. Ill., 5/16/2012, a disability case where the court ruled that the agency could bring suit for 17 claimants not identified before suit was filed. The court indicated that under Seventh Circuit precedent the court should not review EEOC investigations to determine if a particular investigation supports claims in a class action.
But in the Ninth Circuit, a district court faulted EEOC regarding good faith conciliation (i.e., settlement talks) in EEOC v. Evans Fruit Co., No. CV-10-3033-LRS (E.D. Wash., 5/24/2012) and has ordered mediation. The court cited the CRST case.
That court noted that the Ninth and Sixth Circuits tend to be deferential to EEOC actions. But a Sixth Circuit district court has not been so inclined in EEOC v. Nestle Prepared Foods, No. 5:11-mc-00358 (E.D. Ky. 2012). The court denied the Commission’s request to enforce a subpoena seeking information for every employee whom the employer referred for or who actually submitted to a medical examination based on a charge of genetic information discrimination by a single employee.
Also in the Sixth Circuit, EEOC is trying to reverse a district court award of $750K to the defendant (EEOC v. Peoplemark, No. 11-2582, 6th Cir.) over a failed case involving use of criminal history for hiring. Affirmation of the award is supported by amicus briefs from some management groups who think that the agency should be slapped for pursuing a case it knew could not succeed.
Then a federal district court in Texas tossed out most of EEOC’s suit regarding widespread discrimination against blacks and Hispanics (hiring, retaliation) against a sporting goods retailer, at least for now. The case is EEOC v. Bass Pro Outdoor World LLC, No. 4:11-cv-03425, S.D.Tex., 6/1/2012. The court found that a handful of alleged racist incidents, although disturbing, did not amount to a pattern-or-practice case. The court also was not happy with allegations of retaliation where no claimants were named, nor with claims outside the charge filing deadline. However, the court kept the allegations of record-keeping violations in play and gave leave for EEOC to amend its complaint, indicating that a plausible claim likely could be stated with more narrow allegations or more extensive facts. Texas is in the Fifth Circuit.
EEOC has also been on the receiving end of discovery action. The for-profit university in EEOC v. Kaplan, No. 1:10-cv2882 (N.D. Ohio) has gotten the court to order the agency to identify claimants and to disclose its own practices regarding use of credit history for employment decisions.
Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.