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Friday, October 30, 2015

Top 10 EEOC Litigation Hot Buttons

EEOC General Counsel David Lopez

By: Robin Shea,
Constangy Partner in Winston-Salem, North Carolina

This information is a summary of a more extensive blog post by my law partner Robin Shea who attended a talk by the EEOC General Counsel David Lopez who provided this information with permission for her to share. Top 10 in reverse order:

10. Racial harassment. The EEOC had scored some big wins in this area, generally when the racially offensive behavior was blatant. “Juries don’t like this kind of behavior,” he said, even in parts of the country that you might expect to be more “red” than “blue.”

9. Use of background screens in hiring. The agency won a big settlement in its criminal background check lawsuit against BMW and the agency had “started a conversation” about the use of this information, noting the growing number of states that have adopted “ban-the-box” legislation.

8. Sex discrimination in hiring. The agency is aggressively going after claims of discrimination in the hiring process in heavy manufacturing environments, where women were rejected for positions based on the belief that they could not handle the physical requirements of the job.

7. Preservation of access to the legal system, aka retaliation. The EEOC was winning about 70 percent of its jury trials on retaliation claims.

6. Immigrant/migrant/vulnerable workers. Mr. Lopez spoke of the EEOC’s desire to protect workers “living in the shadows,” and noted that some employers believe they can evade the law because of linguistic and cultural barriers.

5. Americans with Disabilities Act/reasonable accommodation. Mr. Lopez spent most of this topic talking about the EEOC v. Ford Motor Company telecommuting case involving an employee with severe irritable bowel syndrome.

4. LGBT rights. Mr. Lopez said that the EEOC’s position is that sexual orientation discrimination always violates Title VII, and also spoke on the issue of bathrooms and transgender individuals.

3. Pregnancy. This is obviously a very hot area after the Young v. UPS case. Mr. Lopez said that many employers (smaller ones) still don’t know that “Yes, pregnancy discrimination is against the law,” and the Young case was a “game-changer,” and will result in more jury trials.

2. Conciliation requirement. Mr. Lopez said that after the EEOC won the Mach Mining case at the Seventh Circuit (which said that the courts had no authority to review the EEOC’s conciliation efforts). The victory for the EEOC, though, was that if the EEOC doesn’t fulfill its obligations, the court just tells the EEOC to go back and conciliate rather than dismissing the lawsuit.

1. Religious accommodation. “This is number one in my heart,” Mr. Lopez said. He was talking about Samantha Elauf, in the EEOC’s case against Abercrombie & Fitch.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and Robin Shea is in the firm's Winston Salem, NC office. Tommy can be contacted at or 334-246-2901. Blog at with link to full blog post by Robin Shea.