By: Andy Scroggins, Matt Gagnon, Sarah Bauman, James Nasiri, Christopher DeGroff Seyfarth Synopsis: On Tuesday, January 10, the EEOC released for public comment its draft 2023-2027 Strategic Enforcement Plan, or “SEP” (available here)—a document that will guide the Commission’s enforcement priorities for the next five years. The EEOC’s previously announced Strategic Plan described “how” it would pursue its enforcement goals. (See our prior blog on the Strategic Plan here.) The Strategic Enforcement Plan, on the other hand, describes “what” the EEOC’s enforcement priorities will be, making it ..read more

By Danielle Kays and Danny Riley, Law Clerk Seyfarth Synopsis: BNSF Railway seeks a new trial following the verdict against it in the first ever jury verdict in an Illinois Biometric Information Privacy Act (“BIPA”) class action.  BNSF contends that the verdict, which resulted in a court award of $228 million in damages, is unconstitutional and unreasonable given the class members suffered no actual harm. As a refresher, under BIPA, biometric information is any information “regardless of how it is captured, converted, stored, or shared, based on an ..read more

By Christopher DeGroff, Andy Scroggins, and Sarah Bauman Seyfarth Synopsis: On Friday, November 4, the EEOC released its draft 2022-2026 Strategic Plan (available here)—a blueprint of its proposed enforcement plan for the upcoming years. The Plan focuses on strategic objectives accompanied by targeted goals and performance measures. Though each four-year plan differs to some extent, the EEOC’s vision of “justice and quality in the workplace” and mission to “stop and remedy unlawful employment discrimination” remains unchanged. This Strategic Plan is a must-read for employers an ..read more

By: Christopher J. DeGroff, Sarah K. Bauman, and James P. Nasiri   Seyfarth Synopsis: Last year was one of change and recovery for the EEOC as a result of the pandemic and new leadership.  With the new leadership regime and structural changes at the EEOC came an uptick in filings from FY 2021, with nearly half of those occurring in the month of September alone.  Despite an anticipated busy year for 2022, this fiscal year closed with a strikingly low number of filings,and leaves questions as to whether this filing drought will continue.  However, with a Democratic majority ..read more

By: Matthew J. Gagnon Seyfarth Synopsis: This is the third in a series of posts covering recent trends in equal pay litigation. This post discusses how plaintiffs have sought to expand the possibilities of an equal pay claim by whittling away the defenses allowed to employers. In particular, plaintiffs’ counsel have argued that an employer cannot rely on a policy or practice as a defense if that policy or practice is itself discriminatory in nature or effect. One highly visible example of this trend is plaintiffs’ sometimes-successful efforts to delegitimize the use of salary history to set st ..read more

By Gerald L. Maatman, Jr., Jennifer Riley, and Sarah Bauman Seyfarth Synopsis: On August 8, 2022, the U.S. District Court for the Northern District of Illinois granted Plaintiffs’ motion for class certification for a class of applicants who sought employment with the Cook County Department of Corrections.  The Plaintiffs argued that certain hiring examinations disparately impacted African-Americans, and were therefore discriminatory under Title VII of the Civil Rights Act.  As we previously predicted here, disparate impact class actions premised on a theory of liability derived from ..read more

By Gerald L. Maatman, Jr. and Alex W. Karasik Seyfarth Synopsis:  In Savage, et al. v. The City of Springfield, Case No. 3:18-CV-30614, 2022 LEXIS 124587 (D. Mass. July 14, 2022), a federal court in Massachusetts recently denied Plaintiffs’ motion for class certification, holding that (1) Plaintiffs failed to establish that a putative class of Black and Hispanic firefighters met the numerosity requirement of Rule 23(a)(1); and (2) that the seminal ruling in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011), barred certification of a Rule 23(b)(2) class as sought by Plaintiffs. This ..read more

By Gerald L. Maatman, Jr., Alex W. Karasik, and Aaron A. Bauer Seyfarth Synopsis:  In Easom v. US Well Servs., No. 21-20202, 2022 U.S. App. LEXIS 16556 (5th Cir. June 15, 2022), the employer defendant invoked the WARN Act’s “natural disaster” exception when it conducted mass layoffs in its Texas workforce, due to the sudden economic downturn caused by the COVID-19 pandemic in March 2020.  The Fifth Circuit held that the COVID-19 pandemic could not be considered a “natural-disaster” under the WARN Act, and that an employer invoking the “natural-disaster” exception must prove that the ..read more

By Jennifer A. Riley, Andrew Scroggins, and Tyler Zmick Seyfarth Synopsis: As we previously reported, employers generally have found success when the U.S. Supreme Court takes up questions about the arbitrability of workplace disputes. The unanimous decision in Southwest Airlines Co. v. Saxon bucks that trend, denying employers a clear victory and holding that those who load cargo onto airplanes engaged in interstate travel are exempt from the Federal Arbitration Act (FAA). The Court’s fact-specific decision, however, rejects any bright-line test based on the employer’s industry and allows for ..read more

By Andrew L. Scroggins and Sarah K. Bauman  Seyfarth Synopsis: As we previously reported here, last October the EEOC put employers on notice of an initiative to ensure that artificial intelligence (“AI”) and other technology used in hiring and employment decisions comply with federal anti-discrimination laws. Consistent with this recent initiative, on May 12, 2022, the EEOC shared guidance to help employers using AI technology to remain compliant with the Americans With Disabilities Act (“ADA”). The DOJ followed suit by posting similar guidance regarding AI-related disability discriminati ..read more