Sixth Circuit Holds Employers cannot shorten time frame to file Title VII Discrimination Claims

Date: December 31, 2019

The federal Sixth Circuit Court of Appeals recently held that employers cannot reduce the time employees have to file a charge alleging Title VII employment discrimination under the Civil Rights Act of 1964.  The court found that contractual provisions and clauses that shorten Tile VII’s statute of limitations 300-day filing time frame are unenforceable.

Title VII prohibits discrimination by an employer on the basis of race, color, religion, sex, and national origin, and requires employees to first file a discrimination complaint with the Equal Employment Opportunity Commission (EEOC).  The statutory deadline requires charges to be filed within 300 days of the alleged unlawful employment action, and cannot be changed by contract.  After a charge is filed, the EEOC can investigate the allegations, or take administrative remedial measures to resolve the issue (such as mediation).  Alternatively, the EEOC can grant the employee a right-to-sue letter, giving the employee a chance to sue the employer outright in court on their own.  If an employee receives this letter, they have ninety (90) days to file a lawsuit in federal court against their employer.

In the Sixth Circuit case, the Plaintiff’s employment contract contained a provision waiving her right to sue if she waited longer than six (6) months following a discrimination event to file a claim.  The lower federal district court initially adopted the employer’s deadline-shortening clause, but the Sixth Circuit reversed the decision on a case of first impression, stating “[W]here statutes that create rights and remedies contain their own limitation periods, the limitation period should be treated a substantive right . . . [a]nd this type of substantive right generally is not waivable in advance by employees.”  The court distinguished Title VII’s statute of limitations from those under the Employee Retirement Income Security Act of 1974 (ERISA) or Section 1981 claims in that those statutes rely on general limitation periods created by other statutes.  Title VII’s statute of limitations to bring a discrimination claim is found within its own text.  The court also held that Title VII created a “uniform, nationwide system using ‘an integrated, multistep enforcement procedure.’”  The court rejected the employer’s policy of imposing contractual limitations on Title VII’s statutory remedies because it would disrupt Title VII’s uniform national procedures.

The Sixth Circuit oversees federal district courts in Kentucky, Michigan, Ohio, and Tennessee.  Nevertheless, this case provides context to federal questions and interpretations of federal authority, and provides a framework of considerations should you have a business practice that is any state.

VW Contributor: Ryan Coufal
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Holding the EEOC Accountable: 8th Circuit affirms EEOC must pay attorney fees incurred by employer on frivolous claims

On December 10, 2019 the 8th Circuit affirmed a federal district court’s order requiring the Equal Employment Opportunity Commission (EEOC) to pay $3.3 million in attorneys’ fees to CRST Van Expedited, Inc. (CRST) for pursuing claims that the commission knew or should have known were frivolous and failing to satisfy presuit obligations under Title VII.

The EEOC originally filed suit against CRST in 2007, after a female driver alleged that two male trainers sexually harassed her during a training trip.  The litigation was filed on behalf of over 250 female employees, and claimed that CRST was responsible for severe and pervasive sexual harassment and that it subjected its female employees to a hostile work environment. The district court found the EEOC had not established a pattern or practice of CRST tolerating sexual harassment, and dismissed the suit. Finding CRST as the prevailing party and that the EEOC had failed to satisfy Title VII’s presuit obligations, the district court entered an attorneys’ fee sanction of nearly $4.7 million against the EEOC.

This award of attorneys’ fees has been hotly contested, and has made its way through the 8th Circuit and back on remand, and up to the United States Supreme Court, which held that a favorable judgment on the merits is not a requirement to be a “prevailing party” when awarding attorneys’ fees.

The case was sent back to the district court, which engaged in extensive individualized inquiries, and found that most of the EEOC’s claims on behalf of 78 claimants for sexual harassment that were dismissed on summary judgment were frivolous, groundless, and/or unreasonable. The district court further found that the dismissal of the 67 other claims as a result of the EEOC’s failure to satisfy the presuit obligations constituted a sufficient alteration of the parties’ legal relationship to award fees.   The district court ultimately issued a fee award of $3,317,289.17, and the EEOC again appealed to the 8th Circuit.

In the recent decision, the 8th Circuit affirmed the district court’s $3.3 million fee award, holding that the district court did not abuse its discretion in holding individualized inquiries, and determining that 71 of the claims it dismissed on summary judgment were frivolous.  The 8th Circuit also upheld the district court’s method of fee calculation and stated the reasoning was sound “in light of the realities of the case, how it was litigated and the [lower] court’s unique understanding of these proceedings.”

The 8th Circuit rejected the EEOC’s arguments that its claims were not frivolous as it conjectured that the EEOC could not hold a reasonable belief that it satisfied its presuit obligations when it actually “wholly failed to satisfy them [under Title VII].”

This ruling should provide employers with assurance of the 8th Circuit holding the EEOC accountable for bringing frivolous claims, and failing to meet its mandatory presuit duties.

VW Contributor:  Ryan Coufal
© 2019 Vandenack Weaver LLC
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Age Discrimination Complaints Must Be Specific

Discrimination Protection: The Age Discrimination in Employment Act forbids age discrimination against employees who are age 40 or older. Discrimination based on age involves treatment by an employer when an employee is treated less favorably because of his or her age. Age discrimination can include any aspect of employment including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.

Employment Policies. An employer’s policy can be discriminatory even when it applies to employees of all ages if it has a negative impact on individuals who are age 40 or older and there is no basis in a reasonable factor other than age.
Trends in Legal Practice. Following a lawsuit in Chicago earlier this year where an adjunct professor was not hired because of her age (66), the Equal Employment Opportunity Commission (“EEOC”) has proposed a regulation to remove birth and graduation dates from job applications. While the status of this regulation is currently unclear it is important for employers and employees to understand their rights. The standard under Nebraska law to establish a claim of intentional age discrimination allows a plaintiff to either present direct evidence of such discrimination or prove his or her claim through circumstantial evidence using the familiar McDonnell Douglas burden-shifting framework. An employee must then prove a causal connection between the alleged discriminatory actions and the resulting negative impact suffered. This action must be based on a specific business practice or particular policy and cannot be sustained by a mere allegation of multiple scenarios which could be determined to be age discrimination. Additionally, age cannot be a pretext when an employer is able to prove other reasons for their negative actions.

Nebraska does allow age to factor into an employer’s decision or policy when the requirements of the job would reasonably require an individual of a certain age.

© 2017 Vandenack Weaver LLC
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NEW POLICY ALLOWS EEOC TO DISCLOSE EMPLOYER PROVIDED POSITION STATEMENTS

by M. Tom Langan, II

The EEOC recently released new procedures that permit an employer’s position statement to be released to the charging party.  A position statement is typically the employer’s first opportunity to respond to a charging party’s complaint.  Prior to this change, whether the position statement could be disclosed varied depending on the applicable EEOC office.  This change was designed to bring uniformity to the process.  In light of this change, employers should complete their position statement with the understanding that it will likely be shared with the charging party. The EEOC encourages employers to refer to, but not actually identify, any confidential information that is part of their response.  The actual confidential information should then be provided under a separate attachment that generally will not be shared with the charging party. The change is effective retroactive to January 1, 2016.

© 2016 Vandenack Williams LLC
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Corporate Wellness Programs Receive Scrutiny From the EEOC

The United States Equal Opportunity Commission (EEOC) has filed a petition, their third in three months, regarding a corporate wellness program. The latest petition alleges that Honeywell International, Inc. violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) through the administration of workplace biometric screening.

The program is similar to those seen at companies across America. The employee receives health care discounts and other financial benefits for undergoing workplace biometric screening and choosing healthy lifestyles. The EEOC claims the program violates the law because it is an involuntary, non-work related, medical inquiry. Second, the EEOC alleges the employer is illegally inducing employees to provide family medical history. If the court views the program similarly, it would be a violation of the ADA and GINA.

It is unclear what this challenge will mean for corporate wellness programs.  In the short term, with the end of year approaching, it will unlikely have an immediate impact. However, it will be important to monitor the evolution of the challenges because it could  change how these programs must be administered or even whether these programs can be offered.

© 2014 Parsonage Vandenack Williams LLC

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Pregnancy Discrimination: The EEOC Provides Employers With Updated Guidance

By Eric W. Tiritilli.

An employee announces she is pregnant, but after the congratulations and good wishes are shared, the questions becomes what, if anything, must an employer do to comply with the Pregnancy Discrimination Act (“PDA”)?  Unfortunately, it had been over 30 years since the EEOC last updated its guidance to employers regarding their obligations under the PDA.  Recently, the EEOC issued new enforcement guidance, an employer Q&A and a fact sheet to aid employers.

As the EEOC noted in its press release – the basic law of the PDA hasn’t changed – as an employer may not discriminate against an employee because they are pregnant and a pregnant employee “must be treated the same as other persons similar in their ability or inability to work”; however, the updated guidance for employers provides important information regarding the EEOC’s interpretation of the law including how the PDA interacts with the Americans with Disabilities Act and provides examples of “best practices” to follow to avoid discrimination.

© 2014 Parsonage Vandenack Williams LLC

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