L. Jack Vasquez, Jr. Deputy District Director U.S. EEOC, St. Louis District Office April, 2013

Retaliation & Protected Activity Protected Activity: Opposition Participation

2006 – 2011 Developments 2006: Burlington N. & Santa Fe Ry. Co. v. White: What is an Adverse Action? 2009: Crawford v. Metropolitan Gov’t of Nashville & Davidson Cnty.: What is Opposition? 2011: Thompson v. North Am. Stainless, L.P.: Who is within the Zone of Protection

Exhaustion of Administrative Remedies after Morgan Nat’l R.R. Passenger Corp. v. Morgan: The term, “practice” in Title VII does NOT convert, “related discrete acts into a single unlawful practice for purposes of timely filing.” Distinguish multiple instances of failure to promote (e.g., discrete acts) v. multiple instances in a hostile environment (e.g., ongoing violation that can endure/recur temporally)

Circuit Split Richter v. Advanced Auto Parts, Inc. (8 th Cir.): Retaliation claim requires filing with EEOC as it is NOT “like or reasonably related” to the underlying charge(s). CP/Plaintiff had filed charge alleging race and sex (female); subsequently filed suit alleging retaliation. District Court dismissed, and the 8 th Circuit affirmed. Tenth Circuit is in accord with 8 th Circuit. 4 th, 5 th, 6 th and 9 th Circuits: Administrative Exhaustion Exception for “like or reasonably related”.

FY 2012 Statistics/Trends Retaliation Claims: 37,836 Charges (of 99,412 Total Charges) = 38.1% FY 2011 & FY 2010 Respectively: 37,334 (37.4%) & 36,258 (36.3%)

Investigation, Conciliation & Discovery – Or NOT Title VII: Sections 706 & : Permits EEOC to bring a lawsuit in federal court Requires Investigation & Conciliation for Victims 707: Permits suits to redress “pattern or practice” discrimination The Teamsters Framework: Initial Focus on SOP

Another Split in the Circuits 8 th Circuit: CRST v. 6 th Circuit: Cintas & N.D. Illinois: UPS CRST: Section 706 requires victim identification at investigative/conciliation stage; victims may not be identified and added during discovery. Cintas: The Teamsters Framework of Section 707 may be used when suit is filed under Section 706; investigation, conciliation & discovery of victims

LGBT Rights: An Emerging Issue Within Title VII, “sex” includes discrimination because of biological sex and gender stereotyping. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) In accord: 1 st, 6 th & 9 th Circuits Complaint could prove discrimination by showing decision maker believed biological males should present as men (gender stereotyping) OR decision maker was not willing to hire complainant one he found out complainant was now a woman (sex). Macy v. Holder, Appeal No (4/20/12)