President Biden’s EEOC Steps Up Lawsuits

By Rob Binkley

With the change in presidential administrations, the expected increase in activity by the EEOC has begun to manifest itself.  The EEOC has recently announced filing several lawsuits and significant settlements.  The EEOC appears to be pursuing these claims and actions against both medium and large corporations.

In February 2022, the EEOC filed an action against Walmart alleging sex and race discrimination.  Walmart allegedly failed to promote an employee to a management position at one of its stores because it assumed that the employee would not remain with Walmart long enough due to having a newborn at home and further gave her an unsanitary storage closet to express her breast milk when a superior clean space was provided to a white employee for the same purpose.  (EEOC v. Walmart, Inc. et al., 22-cv-00037 S.D. Iowa)

In EEOC v. Corning Incorporated (6:21-cv-06745 W.D. New York) the EEOC sued Corning in December 2021 for allegedly failing to promote female machine operators at two locations in western New York state.  The lawsuit alleges that Corning groomed male machine operators for advancement, provided them with training opportunities, and bent its own eligibility rules to place males in line lead positions instead of similarly or more qualified women.

In February 2021, the EEOC sued Pneuline Supply, Inc. (22-00292 D. Colorado) for firing an employee with severe hearing impairment because of the employee’s disability and/or need for accommodation and for complaining about discrimination.  The aggrieved employee was proficient in American Sign Language (ASL) but not English.  She filed grievances about being excluded from work discussions and meetings, subsequently requested a certified ASL interpreter, and was then terminated. 

In January 2022, the EEOC announced that car dealers Victory Automotive Group, Inc. and Cappo Management XXIX, Inc. (2:20-cv-02245 E.D. California) agreed to pay $150,000.00 in damages and hire a consultant to facilitate changes in their policies and training practices to settle a disability discrimination lawsuit arising after the joint employers terminated a title clerk working at one of their dealerships over fears that the employee might have cancer.  The employee missed several days due to a sudden illness, informed the management that she had been hospitalized, and said she was undergoing treatment for cancer.  The joint employers fired the employee on the day before her anticipated return to work despite a medical release allowing her to return to work.  The termination letter advised her to “focus on her health” and confirmed that the termination was not performance-related. 

Also in January 2022, the EEOC announced a settlement of EEOC v. Charter Senior Living, LLC for $31,750.00. (3:21-cv-00708 N.D. Ohio)  The EEOC sued the family-owned business after a caregiver had passed her pre-employment physical examination, worked for Charter Senior Living for weeks without incident until the director discovered that the caregiver had right-hand nerve damage, and then required the caregiver to have another physical examination.  The second examiner concluded that the caregiver met the physical standards of the examination but declined to clear the caregiver unconditionally due to nerve damage.  Charter Senior Living refused to let her return to work and ultimately fired her without evaluating whether the right-hand nerve damage impacted her ability to perform her job duties.

In EEOC v. Stan Koch and Sons Trucking Company, Inc. (0:19-cv-021480
D. Minnesota), the EEOC in December 2021 reached a $500,000.00 settlement with Stan Koch and Sons Trucking to settle a sexual discrimination lawsuit.  The lawsuit concerned Koch’s use of a CRT Test, an isokinetic strength test developed by a third party.  The EEOC’s theory was that the test discriminated against women truck drivers because of their sex and alleged that the CRT Test disproportionately screened out women who were otherwise qualified for truck driver positions at Koch.  The settlement provides that Koch will pay $500,000 in damages and make job offers to a class of women whose job offers were revoked by Koch after the applicants failed the CRT Test, enjoins Koch from using the CRT Test, and if Koch chooses to use any other physical abilities test having a disparate impact on female drivers, Koch must demonstrate that the test is job-related for the position in question and consistent with business necessity.

  The EEOC had recently won a similar case in EEOC v. Schuster Co.  (5:19-cv-4063 N.D. Iowa)

In October 2021, the EEOC announced that Frizzell Furniture, a furniture retailer with locations in northern Minnesota, had agreed to pay $60,000.00 to an applicant who was denied a sales position because of his transgender status.  A hiring official had told the applicant that he would not “mix well with the customers.”  The case settled before litigation commenced.  Frizzell Furniture agreed to revise its hiring procedures and adopt new antidiscrimination policies, make changes to improve its recordkeeping procedures, provide EEO training to employees, and report future complaints of discrimination to the EEOC for three years.

Lastly, in EEOC v. American Freight Management Company, LLC d/b/a American Freight Furniture and Mattress (2:10-cv-00273 N.D. Alabama), the defendant agreed in February 2022 to pay $5 million and provide job opportunities to settle allegations that since at least 2013 American Freight engaged in a nationwide pattern and practice of sex discrimination against qualified female job applicants for sales and warehouse jobs at the defendant’s retail stores.  The lawsuit alleged that managers discarded job applications submitted by women, managers made comments showing that hiring decisions were tainted with bias and sex stereotyping, and some of the company’s stores hired no women for sales or warehouse jobs for several years.  The settlement also includes a three-year consent period of monitoring to see that American Freight does not discriminate against any job applicant on the basis of sex or engage in any retaliation.  American Freight agreed to appoint a Title VII coordinator to implement and oversee its EEO policies and procedures.  The settlement also requires American Freight to develop a recruitment plan for women in sales and warehouse positions and to provide training on employment discrimination to all company employees.  The company agreed to provide periodic reports to the EEOC about the number of women applying and hired into sales and warehouse positions.  American Freight further agreed to offer sales and warehouse jobs to qualified female applicants who were previously denied employment.

These settlements and lawsuits clearly demonstrate enhanced enforcement activities and further show the importance of making sure that lower, mid and upper management staff receive sufficient training and are well versed in EEO policies, procedures, training, and internal implementation and enforcement of the same.