The Equal Employment Opportunity Commission (EEOC) had a busy start to 2020, with new Chair Janet Dhillon sharing her priorities for the coming year and the release of the statistics for fiscal year 2019, while a Maryland federal court handed the EEOC a victory in a discrimination suit involving a deaf applicant.
- 2020 Priorities. Dhillon highlighted five priorities for 2020, beginning with a continuing commitment to provide excellent customer service. “Too often, justice delayed is justice denied,” Dhillon said, promising that the EEOC will handle claims of discrimination promptly and fairly, embrace technology, and upgrade its data collection, analysis and reporting capabilities.
The EEOC will also strive to provide “robust” compliance assistance (updating guidance and technical assistance documents to ensure that they represent a clear explanation of the law) and enhance efforts to reach vulnerable workers, Dhillon said.
Dhillon also said the agency will aim for strategic allocation of Commission resources—with a “renewed commitment to meaningful and effective conciliation efforts in all private sector matters,” with litigation “truly a last resort”—and strive to be a “model workforce” by fully embracing the principles of equal employment at the EEOC.
- 2019 Statistics. Of the 72,675 charges of workplace discrimination received by the EEOC in FY 2019, retaliation claims topped the list at more than half (53.8 percent, or 39,110 charges) of all charges filed.
Claims of disability discrimination were next (with 24,238 charges filed, or 33.4 percent of all claims), followed by race (23,976, or 33 percent), sex (23,532, or 32.4 percent) and age (15,573, or 21.4 percent). National origin, color, religion, Equal Pay Act and genetic information rounded out the list.
Enforcement actions decreased in FY 2019, with the agency filing 157 lawsuits, down from 217 filed the prior year. Recovery on behalf of complainants similarly decreased from $53.6 million in FY 2018 to $39.1 million in FY 2019.
By state, the highest volume of charges came from Texas, Florida, California, Georgia and Pennsylvania.
- Victory in disability discrimination suit. While a Maryland federal court agreed with Cracker Barrel that a “mere delay” in hiring or promotion is not an adverse employment action forming the basis of a disability discrimination claim pursuant to the Americans with Disabilities Act (ADA), a reasonable juror could find on the facts presented by the EEOC that the employer took a hearing impaired worker completely out of the running for a job after learning of his disability, the court said, denying Cracker Barrel’s motion for summary judgment.
Donte Kess applied for a dishwasher position at Cracker Barrel’s Linthicum Heights restaurant using the company’s online system. He was invited for an interview and the employer learned of his disability.
But when he arrived for his interview, Kess was told the manager wasn’t there. He followed up with multiple emails, calls and visits to the restaurant but never received a response. Cracker Barrel’s internal records reflected that Kess was removed from consideration from the position, with the note “Do not hire.”
Kess filed a charge with the EEOC and the agency filed suit, alleging Cracker Barrel violated the ADA. Cracker Barrel moved to dismiss, arguing that it did not “refuse” to hire Kess but merely “delayed” its consideration of hiring him.
U.S. District Judge Paula Xinis disagreed, noting “ample evidence” that the employer’s enthusiasm for Kess as a future employee waned after learning of his disability.
“Before Cracker Barrel knew that Kess was hearing impaired, it extended Kess a job interview, thus reflecting it recognized Kess’ qualifications,” the court said. “Cracker Barrel … then learned that Kess was hearing impaired and its enthusiasm for Kess as a future employee disappeared.”
“With this constellation of facts, a reasonable juror could conclude that Kess was denied employment because he is hearing impaired,” Judge Xinis wrote.
The same evidence was sufficient to create a genuine dispute as to whether the treatment of Kess amounted to pretext, the court added, denying Cracker Barrel’s motion for summary judgment.
For the FY 2019 enforcement and litigation statistics, click here.
To read the memorandum opinion in EEOC v. Cracker Barrel Old Country Store, Inc., click here.
Why it matters: The new Chair’s priorities signal a return shift for the EEOC, with litigation now “truly a last resort” for the agency and an emphasis on conciliation and outreach instead. Dhillon also indicated that guidance would be updated as necessary, with some documents rescinded if they are “out-of-date, raise the potential for confusion among our stakeholders or exceed the Commission’s statutory authority.”