1. EEOC Priorities: Retaliation and Interference
Jessica A. Palmer-Denig
Trial Attorney - EEOC

2. Statutes Enforced by the EEOC
Title VII of the Civil Rights Act of (Title VII)
Pregnancy Discrimination Act (PDA)
Americans with Disabilities Act (ADA)
Equal Pay Act (EPA)
Genetic Information Nondiscrimination Act (GINA)
Age Discrimination in Employment Act (ADEA)
Rehabilitation Act

3. Charge Statistics 2013-2014 88,778 charges filed in FY 2014
Reduction in charges due to government shutdown during reporting period: first quarter filings were down 3,000-5,000 compared to other quarters of the year
Top 3 charge bases alleged:
Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
Race (including racial harassment): 31,073 (35 percent)
Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
The greatest number of charges were filed in Texas (8,035), followed by Florida (7,528) and California (6,363). Minnesota had North Dakota had 91, up from 22 in FY 2009.

4. Strategic Enforcement Plan (SEP)
The plan establishes a framework for achieving the EEOC's mission to "stop and remedy unlawful employment discrimination," so that the nation might realize the Commission's vision of "justice and equality in the workplace." The plan has three objectives: 1) combat employment discrimination through strategic law enforcement; 2) prevent employment discrimination through education and outreach; and 3) deliver excellent and consistent service through a skilled and diverse workforce and effective systems.

5. SEP Priority #5
Preserving Access to the Legal System. The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.

6. Two key target areas:
Retaliation
Interference

7. Retaliation

8. Title VII, 42 U.S.C. § 2000e-3: Opposition and Participation
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter [the “opposition” clause], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter [the “participation” clause].

9. ADA, 42 U.S.C. § 12203: Prohibition Against Retaliation and Coercion
(a) Retaliation. - No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
(b) Interference, coercion, or intimidation. - It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

10. ADEA, 29 U.S.C. § 623(d)
It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.

11. EPA, 29 U.S.C. §215(a)(3) (FLSA)
(a) After the expiration of one hundred and twenty days from June 25, 1938, it shall be unlawful for any person
(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee;

12. Retaliation is an EEOC hot topic!
Number 1 basis of charges filed for years.
FY2014: highest percentage of retaliation charges to date.
Broad interpretation of retaliation provisions.

13. What is retaliation? Employer action that is: Materially adverse
To a reasonable employee (objective standard)
A plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’”
Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

14. What kind of action?
Employer action does not have to relate to terms and conditions of employment.
“The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.”
White, 548 U.S. 53.
Examples: schedule change, exclusion from weekly training lunch.

15. Forbes Magazine: 12 Most Common Workplace Retaliation Tactics
Left Out – excluded from decisions and work activity by supervisors or management
Cold Shoulder from other employees
Abuse by supervisor or manager
Job Loss
No Promotion
Abuse by Coworkers
Pay Cut
Hit the Road: Relocation or Reassignment
Downgrade/Demotion
Online Abuse
Physical Harm to Person or Property
Harassment at Home

16. EEOC Publication: Facts About Retaliation http://www. eeoc
Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, "snubbing" a colleague, or negative comments that are justified by an employee's poor work performance or history.

17. Retaliation: But-For Causation Standard
“Title VII retaliation claims must be proved according to traditional principles of but-for causation [t]his requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” University of Texas Southwestern Medical Center v. Nasser, 133 S. Ct (2013). Higher standard than “motivating factor,” but not sole cause.

18. How far does protection go?
Opposition includes participating in employer’s internal investigation, even if employee did not raise initial complaint and no charge is filed with government agency.
Crawford v. Metropolitan Gov’t of Nashville, 555 U.S (2009) (opposition clause protected participant in internal sexual harassment investigation, court did not reach participation clause).

19. Third parties are protected too.
“We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired,” and determining plaintiff was within the “zone of interests” protected by Title VII.
Thompson v. North American Stainless, L.P., 562 U.S. 170 (2011) (declining to identify a fixed class of relationships for which third- party reprisals are unlawful, but noting firing a close family member will almost always meet the standard while inflicting a minor reprisal on a mere acquaintance will almost never do so).

20. What if the employee opposes something that is not unlawful?
An employee is protected from retaliation for opposing employment actions that are not unlawful, “as long as the employee acted in a good faith, objectively reasonable belief that the practices were unlawful.” Barker v. Mo. Dept. of Corrections, 513 F.3d 831 (8th Cir. 2008) (holding no protection for employee who assisted another in filing a complaint about a comment that women were more nurturing because it was not objectively reasonable to believe this was unlawful sexual harassment).

21. EEOC Litigation
EEOC v. Northern Star Hospitality (W.D. Wis. Sept. 2013): Jury verdict in favor of employee terminated in retaliation for complaining about racist display posted in the workplace. Termination occurred just a few weeks after complaint and no previous discipline. Seventh Circuit affirmed on other grounds.

22. Litigation, Cont’d.
EEOC v. Product Fabricators, Inc., 763 F.3d 963 (8th Cir. 2014) (holding insufficient causal connection between acknowledgement of participation in EEOC investigation and termination later the same day, where protected activity occurred a year prior to termination). EEOC v. PMT Corp., Case No. 14-cv-599 (DSD/TNL) EEOC alleged employer pursued criminal charges against former employee whistle-blower upon learning she was the source of the EEOC’s allegations for investigation. EEOC pursued retaliation and constructive discharge claims on behalf of employee. District court held that, as company did not learn of employee’s activities until after she left, no causal connection and no constructive discharge.

23. Interference

24. EEOC Enforcement Guidance:
An employer may not interfere with the protected right of an employee to file a charge, testify, assist, or participate in any manner in an investigation, hearing, or proceeding under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., or the Equal Pay Act (EPA), 29 U.S.C. § 206(d). These employee rights are non-waivable under the federal civil rights laws. This position is built on two cornerstones: (a) interference with these protected rights is contrary to public policy; and (b) the anti- retaliation provisions of the civil rights statutes prohibit such conduct.

25. EEOC Strategic Enforcement Plan
The EEOC will also target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC's investigative or enforcement efforts. These policies or practices include retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information to assist in the investigation or prosecution of claims of unlawful discrimination, and failure to retain records required by EEOC regulations.

26. Recent Litigation: EEOC v. CVS
EEOC sued CVS in 2014 in the Northern District of Illinois alleging use of overly broad severance agreement that interfered with employee’s right to file charges and/or communicate and cooperate with the EEOC.

27. Severance Agreement Terms
Paragraph 7: General Release of Claims
Employee hereby releases and forever discharges CVS Caremark Corp and each of its divisions affiliates, subsidiaries, and operating companies, and the respective officers, directors, employees, agents, affiliates of each of them (collectively, the “Released Parties” from any and all causes of action, lawsuits, proceedings, complaints, charges, debts, contracts, judgments, damages, claims and attorneys fees against the Released Parties, whether known or unknown, which Employee has ever had, now has or which Employee or Employee’s heirs, executors, administrators, successors, or assigns may have prior to the date this Agreement is signed by Employee, due to any matter whatsoever relating to Employee’s employment, compensation, benefits, and/or termination of Employee’s employment with CVS/Caremark (collectively, the “Released Claims”). The Released claims include but are not limited to any claim that any of the Released Parties violated the NLRA, Title VII, Sections , ERIS, IRCA, ADA, ADEA, FMLA, OSHA, any claim that any of the Released Parties violated any federal, state or local statute, law, regulation or ordinance, any claim of unlawful discrimination of any kind, any public policy, contract, tort, or common law claim; and any claim for costs, fees, or other expenses including attorneys’ fees incurred in these matters. For avoidance of doubt, this release includes any claims by Employees under the following laws: W.Va. HRA, NJ Law Against Discrimination, or the NJ Conscientious Employee Protection Act. Notwithstanding the foregoing, this release does not include any rights that Employee cannot lawfully waive and will not release any rights Employee has to (a) defense and indemnification from CVS, Caremark or its insurers for actions taken by Employee in the courts an scope of Employee’s employment with CVS Caremark; (b) claims, actions or rights arising under or to enforce the terms of this Agreement; and (c) vested benefits under any retirement or pension plan and/or deferred compensation plan.

28. Paragraph 7 again…
Employee hereby releases and forever discharges CVS Caremark Corp and each of its divisions affiliates, subsidiaries, and operating companies, and the respective officers, directors, employees, agents, affiliates of each of them (collectively, the “Released Parties” from any and all causes of action, lawsuits, proceedings, complaints, charges, debts, contracts, judgments, damages, claims and attorneys fees against the Released Parties, whether known or unknown, which Employee has ever had, now has or which Employee or Employee’s heirs, executors, administrators, successors, or assigns may have prior to the date this Agreement is signed by Employee, due to any matter whatsoever relating to Employee’s employment, compensation, benefits, and/or termination of Employee’s employment with CVS/Caremark (collectively, the “Released Claims”). The Released claims include but are not limited to any claim that any of the Released Parties violated the NLRA, Title VII, Sections , ERIS, IRCA, ADA, ADEA, FMLA, OSHA, any claim that any of the Released Parties violated any federal, state or local statute, law, regulation or ordinance, any claim of unlawful discrimination of any kind, any public policy, contract, tort, or common law claim; and any claim for costs, fees, or other expenses including attorneys’ fees incurred in these matters. For avoidance of doubt, this release includes any claims by Employees under the following laws: W.Va. HRA, NJ Law Against Discrimination, or the NJ Conscientious Employee Protection Act. Notwithstanding the foregoing, this release does not include any rights that Employee cannot lawfully waive and will not release any rights Employee has to (a) defense and indemnification from CVS, Caremark or its insurers for actions taken by Employee in the courts an scope of Employee’s employment with CVS Caremark; (b) claims, actions or rights arising under or to enforce the terms of this Agreement; and (c) vested benefits under any retirement or pension plan and/or deferred compensation plan.

29. CVS, Cont’d. Paragraph 8 No Pending Actions; Covenant Not to Sue
Refers back to released claims
“complaint Of any kind In any federal, state, or local court or agency”
Reimburse CVS for any legal fees as a result of a breach of this paragraph
“Nothing in this paragraph shall interfere with Employee’s right to participate in a proceeding with any appropriate federal government agency enforcing discrimination laws, nor shall this Agreement prohibit Employee from cooperating with any such agency in its investigation ”

30. More CVS… Paragraph 13 Employee Covenants
Non-Disclosure of Confidential Information: includes “personnel, including the skills, abilities, and duties of the Corporation’s employees.”
Can obtain prior written authorization of CHRO
Non-Disparagement: No statements that disparage the business or reputation of the Corporation any officer, director, or employee.
Truthful statements required by law or for legal advice = okay
Cooperation: If employee receives an inquiry in connection with an administrative investigation, employee must notify General Counsel and provide reasonable cooperation.
Employee can testify truthfully in a legal proceeding

31. And this…
Paragraph 14
Breach of employee covenants and injunctive relief
Employee acknowledges that any breach will result in material harm to CVS for which CVS can obtain an injunction
If the court orders any relief or damages, Employee will “promptly reimburse the Company for all reasonable attorneys’ fees incurred by CVS in connection with such relief.

32. Why did the EEOC take action?
"If you have one pound of rights buried in 50 pounds of prohibitions, people are going to react to the prohibitions. That's why we did this.”
John Hendrickson, CDO Regional Attorney

33. CVS Filed Under §707…what’s that?
Two sources of litigation authority under Title VII:
1) Section 706 of Title VII, 42 U.S.C. § 2000e-5; and
2) Section 707 of Title VII, 42 U.S.C. § 2000e-6.

34. Sec. 706(f) of Title VII, 42 U.S.C. § 2000e-5
(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court.

35. Sec. 707(a), 42 U.S.C. § 2000e-6
Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described. **Sec. 707(c) transfers functions of Attorney General to EEOC.

36. Section 707(e)
Subsequent to March 24, 1972 [the date of enactment of the Equal Employment Opportunity Act of 1972], the Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission. All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5of this title [section 706].

37. EEOC perspective on § 707 Pattern or Practice
Any person – not just an employer
Resistance is not limited to discrimination
EEOC does not need a charge, no investigation or conciliation – just reasonable cause
Full enjoyment of rights includes right of agency access

38. Court Decision: EEOC v. CVS Pharmacy, Inc., 2014 WL 5034657 (N.D. Ill. 2014).
EEOC has authority to bring pattern or practice case without a charge
BUT court holds EEOC must still follow procedures under § 706, including conciliation
EEOC had not conciliated
Motion for summary judgment granted.
Court also noted that “resistance” under § 707 requires some retaliatory or discriminatory act.

39. Next steps?
Notice of Appeal of district court’s decision filed for review by Seventh Circuit
CDO Consent Decree language: The company “shall not maintain any employment agreement that deters or interferes with employees’ right to file charges with EEOC and FEPAs or to participate in any investigation by EEOC or FEPAs.”
If separate release negotiated with CP, the release shall not condition receipt of money on:
Confidentiality regarding facts or allegations underlying charge
Waiver or right to file with any agency
Prohibition on CP reapplying
Agree to non-disparagement or confidentiality

40. Tips for Drafters
Avoid broad waivers of the right to file charges that do not exempt EEOC and FEPAs.
Avoid limitations on communication that do not exempt agencies: confidentiality, non-disparagement, notice to the employer of contact with government, cooperation requirement
Ask yourself what a reasonable person would understand regarding provisions in employment agreements
Draw attention to carve-outs for EEOC and FEPAs so employees are aware no prohibition on their rights

41. Thanks and More Information
Assistance provided by Deborah Hamilton, Trial Attorney, EEOC Chicago District Office. More information? EEOC Minneapolis Area Office: (800) or TTY: (800)