EEOC Litigation Review – 2025

DISCLAIMER The material in this Review is of the nature of general commentary only. It is not meant as or offered as legal advice on any particular issue and should not be considered as such. The views expressed are solely those of the authors. In addition, the authors disclaim any and all liability to any person in respect of anything and of the consequences of anything done wholly or partly in reliance on the contents of this Review. This disclaimer is from the Declaration of Principles jointly adopted by the Committee of the American Bar Association and a Committee of Publishers and Associations.

EEOC Litigation Review - 2025

CITATION FORMATS All citations in the EEOC Litigation Review are designed to facilitate research. If available, the preferred citation of the opinion included in the West bound volumes is used, such as Restaurant Law Center, et al v. U.S. Department Of Labor, 115 F.4th 396 (5th Cir. 2024). If the decision is not available in the preferred format, a Lexis or Westlaw cite from the electronic database is provided, such as EEOC v. 1901 South Lamar, LLC, 2024 U.S. Dist. LEXIS 1297 (W.D. Tex. Jan. 3, 2024). If a ruling is not available in one of these sources, the full case name and docket information is included, such as EEOC v. Waste Industries, Case No. 23-CV-4293 (N.D. Ga. Oct. 21, 2024). E-BOOK HIGHLIGHTS The EEOC Litigation Review is available for use on a smartphone, laptop, tablet, or any personal electronic reader by using any e-book reader application. E-book reading allows users to quickly scroll, highlight important information, link directly to different sections of the Review, and bookmark pages for quick access at a later time. The e-book is designed for easy navigation and quick access to informative data. The e-book is available by scanning the below QR code:

EEOC Litigation Review - 2025

NOTE FROM THE EDITOR We are pleased to provide you with the latest edition of our annual analysis of trends and developments in EEOC litigation, the EEOC Litigation Review – 2025 . This useful reference aims to explain the most important EEOC policies and decisions in 2024 and provide an expert analysis of what we predict for 2025. The Review explains the impact of the EEOC’s six enforcement priorities as outlined in its Strategic Enforcement Plan on employers’ business planning and how the direction of the EEOC’s Plan’s should influence key employer decisions. The Review also highlights the top ten settlements for EEOC matters. Thank you to our Duane Morris colleagues who contributed to the creation of this Review, providing research, analysis, and information on case rulings and agency developments. We hope the Review will provide clients with a definitive resource on EEOC-Initiated litigation. Sincerely,

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EEOC Litigation Review - 2025

CONTRIBUTORS

EEOC Litigation Review - 2025

GLOSSARY AND KEY U.S. SUPREME COURT DECISIONS Adequacy Of Representation – Plaintiffs must show adequacy of representation per Rule 23(a)(4) to secure class certification. It requires representative plaintiffs and their counsel to be capable of fairly and adequately protecting the interests of the class. Amchem Products, Inc. v. Windsor, et al. , 521 U.S. 591 (1997) – Windsor is the U.S. Supreme Court decision that elucidated the requirements in Rule 23(b), insofar as common questions must predominate over any questions affecting only individual class members and class resolution must be superior to other methods for the adjudication of the claims. Ascertainability – Although not an explicit requirement of Rule 23, some courts hold that the members of a proposed class must be ascertainable by objective criteria. Comcast Corp. v. Behrend, et al. , 569 U.S. 27 (2013) – Comcast is the U.S. Supreme Court decision that interpreted Rule 23(b)(3) to require that, for questions of law or fact common to the class, the plaintiffs’ damages model must show damages are capable of resolution on a class-wide basis. Commonality – Plaintiffs must show commonality per Rule 23(a)(2) to secure class certification. This requires that common questions of law and fact exist as to the proposed class members. Class – A group of individuals that has suffered a similar loss or alleged illegal experience on whose behalf one or more representatives seek to bring suit. Class Action – The civil action brought by one or more plaintiffs in which they seek to sue on behalf of themselves and others not named in the suit but alleged to have suffered the same or similar harm. Class Certification – The judicial process in which a court reviews the submissions of the parties to determine whether the plaintiffs have met their burden of showing that class treatment is the most appropriate form of adjudication. Collective Action – A type of representative proceeding governed by 29 U.S.C. § 216(b) where one or more plaintiffs seeks to bring suit on behalf of others who must affirmatively opt-in to join the litigation. It is applicable to claims under the Fair Labor Standards Act, the Age Discrimination in Employment Act, or the Equal Pay Act. Cy Pres Fund – In class action settlement agreements, this is the money set aside for distribution to a § 501(c) organization when class members do not return a settlement claim form and money is left over after distribution to the class. Decertification – Following an order granting conditional certification of a collective action or certification of a class action, a defendant can move for decertification based on the grounds that the members of the collective action are not actually similarly-situated or that the requirements of Rule 23 are no longer satisfied for the class action. Epic Systems Inc. v. Lewis, et al. , 138 S. Ct. 1612 (2018) – Epic Systems is the U.S. Supreme Court decision holding that arbitration agreements requiring individual arbitration and waiving a litigant ’ s right to bring or participate in class actions are enforceable under the Federal Arbitration Act. Opt-In Procedures – Under 29 U.S.C. § 216(b), a collective action member must opt-in to join the lawsuit before he or she may assert claims in the lawsuit or be bound by a judgment or settlement. Opt-Out Procedures – If a court certifies a class under Rule 23(b)(3), class members are bound by the court ’ s judgment unless they opt-out after receiving notice of the lawsuit. Numerosity – Plaintiffs must show that their proposed class is sufficiently numerous that adding each class

EEOC Litigation Review - 2025

member to the complaint would be impractical. This is a requirement for class certification imposed by Rule 23(a)(1). Ortiz, et al. v. Fibreboard Corp., 527 U.S. 815 (1999) – Ortiz is the U.S. Supreme Court ruling that interpreted Rule 23(b)(3) to require personal notice and an opportunity to opt-out of a class action where money damages are sought in a class action. Predominance – The Rule 23(b)(3) requirement that, to obtain class certification, the plaintiffs must show that common questions predominate over any questions affecting individual members. Rule 23 – This rule from the Federal Rules of Civil Procedure governs class actions in federal courts and requires that a party seeking class certification meet four requirements of section (a) and one of three requirements under section (b) of the rule. Rule 23(a) – It prescribes that a class meet four requirements for purposes of class certification, including numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) – To secure class certification, a class must meet one of three requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). Rule 23(b)(1) – A class action may be maintained if Rule 23(a) is satisfied and if prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members or adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. Rule 23(b)(2) – A class action may be maintained if Rule 23(a) is satisfied and the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Rule 23(b)(3) – A class action may be maintained if Rule 23(a) is satisfied and questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Similarly-Situated – Under 29 U.S.C. § 216, employees may bring suit on behalf of themselves and others who are similarly-situated. The standard is not clearly defined in the statute and many courts have found that, if plaintiffs make a preliminary showing that they are similarly-situated to those they seek to represent, conditional certification is appropriate. A finding in this regard is usually not based on the merits of the claims. Superiority – The Rule 23(b)(3) requirement that a class action can be permitted only if class resolution is the superior method of adjudicating the claims. Typicality – The plaintiffs’ claims and defenses must be typical to those of proposed class members’ claims. This is required by Rule 23(a)(3). Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011) – Wal-Mart is the U.S. Supreme Court ruling that tightened the commonality requirement of Rule 23(a)(2) and held that judges must conduct a “rigorous analysis” to determine whether there is a “common” contention central to the validity of the claims that is “capable of class-wide resolution.”

EEOC Litigation Review - 2025

TABLE OF CONTENTS

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I. Executive Summary ............................................... Error! Bookmark not defined. II. The EEOC's FY 2024 Annual Performance Report .......................................... 1 III. The EEOC's Strategic Enforcement Plan ........................................................ 2 1. The Comission's Strategic Enforcement Plan. ............................................ 2 2. The EEOC's Six Litigation Enforcement Priorities ...................................... 2 3. Strategic Priorities In Litigation And Trends In Case Fiings IN FY 2024 ... 4 4. Lawsuit Filings Based On Month. ................................................................. 5 5. Lawsuit Filings Based On EEOC District Office. ......................................... 6 6. Lawsuit Filings Based On Type Of Discrimination...................................... 7 7. Lawsuit Filings Based On Industry ............................................................... 7 8. Looking Ahead To Fiscal Year 2025. ............................................................ 8 III. EEOC Litigation ................................................................................................. 9 1. EEOC Cases Under The ADA ........................................................................ 9 2. EEOC Cases Under Title VII......................................................................... 17 3. EEOC Appellate Cases ................................................................................ 23 4. EEOC Cases Under The ADEA. ................................................................... 25 IV. Top EEOC Litigation Settlements And Verdicts In 2024 ............................... 27 Index Of 2024 EEOC Litigation Rulings In 2024........................................................ 29

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EEOC Litigation I. Executive Summary

Government enforcement litigation is similar in many respects to class action litigation. In lawsuits brought by the U.S. Equal Employment Opportunity Commission (EEOC), government enforcement claims typically involve significant monetary exposure, numerous claimants, and complex procedures. These types of lawsuits most often pose reputational risks to companies. While plaintiffs in private party class actions must meet the requirement of Rule 23 to secure class certification for their claims, government enforcement litigation is different. For example, systemic “pattern or practice” lawsuits brought by the EEOC follow a framework established by the U.S. Supreme Court in International Brotherhood Of Teamsters, et al. v. United States, 431 U.S. 324 (1977), and class certification is not required. Nonetheless, EEOC systemic lawsuits present analogous issues as compared to Rule 23 private party class actions. The EEOC is one of the most aggressive federal agencies in terms of prosecuting government enforcement litigation. This Review focuses on EEOC litigation in 2024 and the types of legal issues spawned by that litigation. II. The EEOC’s FY 2024 Annual Performance Report On January 17, 2025, the EEOC published its Fiscal Year 2024 Annual Performance Report (FY 2024 APR), summarizing the Commission’s recent year of enforcement activity and recovery on behalf of U.S. workers. As the Annual Performance Report highlights, 2024 was a successful year for the EEOC, and the Commission recovered nearly $700 million for 21,000 individuals (a 5% increase over FY 2023). Significantly, according to the Commission it successfully resolved 132 merits lawsuits (a 33% increase over FY 2023) and achieved a successful outcome in 128 (or 97%) of all suit resolutions. See FY 2024 APR at p. 12. Given the Commission’s spike in enforcement activity, and its odds of prevailing, the Annual Performance Report reminds employers of the risks associated with an EEOC lawsuit and the need maintain and administer EEOC-compliant employment policies. In the EEOC’s 78-page Annual Performance Report, the Commission discusses, at length, its annual performance results and the significant victories it achieved in FY 2024. Specifically, the Report highlights that the Commission secured nearly $700 million for U.S. workers, the highest monetary amount in recent history, including over $469 million for private sector and state/local government workers through mediation, conciliation, and settlements, as well as more than $190 million for federal workers. The EEOC also notes that it filed 111 new lawsuits in 2024 on behalf of alleged victims of workplace discrimination, several of which were brought under the newly enacted and untested Pregnant Workers Fairness Act (PWFA). FY 2024 APR at p. 2 The Commission also reported that it received 88,531 new charges of discrimination this past fiscal year, representing a 9% increase over FY 2023. It experienced increased demand from the public, handling over 553,000 calls through its agency contact center, and receiving over 90,000 emails, which represented a growing demand for the Commission’s services. Id . at p. 3. The Commission also made it clear that it would continue to focus on systemic enforcement, and in 2024 alone, it resolved 16 systemic cases and obtained $23.9 million on behalf of 4,074 victims of systemic discrimination, and other significant equitable relief. Id . As the EEOC’s Annual Performance Report highlights, 2024 was a successful year for the Commission and represents a vindication of its ambitious litigation strategy. Although 2025 has ushered in a new presidential

EEOC Litigation Review - 2025

administration with different policy priorities and strategic objectives, one thing is certain: the EEOC will continue to aggressively enforce federal anti-discrimination laws and its success at bringing enforcement actions should serve as a reminder to all employers of the risks associated with not maintaining EEOC- compliant employment policies. III. The EEOC ’ s Strategic Plan Every four years the EEOC prepares a Strategic Plan that guides how it will improve its internal operations to enforce federal anti-discrimination laws. The Commission ’ s Plan for 2022-2026 sets forth specific goals along with performance metrics to measure how well those goals are being met. The key elements of the Plan and why they are important are critical data points for employers. On August 22, 2023, the EEOC announced the approval of its Strategic Plan for Fiscal Years 2022-2026. The 2022-2026 Strategic Plan specifies that when investigating private sector employers, the EEOC will focus its internal operations on four key areas. First, the EEOC will ensure that by FY 2025, up to 90% of EEOC conciliations and litigation resolutions will contain targeted, equitable relief. Furthermore, between FY 2022 and 2026, the Commission will endeavor to resolve at least 90% of its enforcement lawsuits. On this point, the EEOC explains that because its systemic litigation program is resource intensive, this goal is important to enable the agency to use its resources in a wise and efficient manner. Employers who have faced systemic lawsuits are well-aware of the amount of litigation resources they can consume, both for the companies involved and the Commission. In addition, the EEOC is poised to expand its capacity to prosecute systemic lawsuits. To that end, the EEOC will provide training to all field staff on identifying and investigating systemic discrimination, and at least 90% of its investigators and trial attorneys will participate in systemic litigation training each year. The purpose is to expand the EEOC ’ s capacity to conduct systemic investigations, so that it may engage in a coordinated, strategic, and effective approach to systemic discrimination enforcement litigation. This signals that the Commission will continue to emphasize and prioritize the use of “pattern or practice” lawsuits to enforce the statutes over which Congress gave it authority. Finally, the EEOC will endeavor to increase its monitoring of conciliation agreements, thereby leading to a more robust compliance program. The Commission ’ s focus here is to implement streamlined and standardized procedures, improved tracking and internal reporting mechanisms, and related training for EEOC field staff to ensure that conciliation agreements are enforced to the letter of the law. 1. The Commission ’ s Strategic Enforcement Plan The Commission ’ s Strategic Plan is distinct from its Strategic Enforcement Plan (SEP) as identified above. The SEP is a statement of the EEOC ’ s priorities while the Strategic Plan is an explanation of how those priorities will be effectuated. When the EEOC first unveiled its SEP in December 2012, it stated that the plan established substantive priorities and set forth strategies to integrate all components of the EEOC ’ s private, public, and federal sector enforcement to have a sustainable impact in advancing equal opportunity and freedom from discrimination in the workplace. On September 21, 2023, the EEOC announced its SEP covering Fiscal Years 2024-2028 with similar priorities as in previous years but with the inclusion of a wholly new subset of goals on technology uses. 2. The EEOC ’ s Six Litigation Enforcement Priorities The declared purpose of the EEOC ’ s strategic enforcement priorities is to focus the Commission ’ s programs on reducing and deterring discriminatory practices in the workplace. As in years past, the SEP established the EEOC ’ s six substantive priorities for 2023.

EEOC Litigation Review - 2025

#1 – Eliminating Barriers In Recruitment and Hiring - The EEOC ’ s focus relative to this priority is to address discriminatory recruiting and hiring practices that target racial, ethic, and religious groups, older workers, women, and people with disabilities. This year ’ s priority had updated goals relative to the use of technology, including artificial intelligence, job advertisements that exclude certain protected groups, segregating individuals into specific job duties or categories based on protected characteristics, policies and practices that limit access to on the job-training, policies that limit employees exclusively to temporary work, restrictive application processes, and screen tools that disproportionately impact workers on a protected-category basis. The Commission also emphasized the underrepresentation of women and workers of color in certain industries and sectors (including construction and manufacturing, high tech, STEM, and finance). According to the EEOC, addressing this priority typically involves strategic litigation with pattern or practice cases. #2 – Protecting Vulnerable Workers – The EEOC ’ s priority here is to combat policies and practices directed against “vulnerable workers,” such as immigrants and migrant workers, and those historically underserved by federal employment discrimination protections. The EEOC’s focus on protecting vulnerable workers involves harassment, retaliation, job segregation, labor trafficking, discriminatory pay, disparate working conditions, and other policies and practices that impact “particularly vulnerable workers and persons from underserved communities.” #3 – Addressing Selected Emerging And Developing Issues – This priority focuses on pushing the legal envelope on the contours of employment discrimination laws and establishing new legal precedents. The EEOC seeks to heighten its focus on employment decisions, practices, or policies in which covered entities’ use of technology contributes to discrimination based on a protected-characteristic. #4 – Advancing Equal Pay For All Workers – While the EEOC ’ s primary focus has been combating pay discrimination based on sex, the Commission also endeavors to address unequal pay based on gender and pay discrimination based on any protected status, including race, ethnicity, age, and disability. The EEOC’s enforcement goals also highlight pay practices that contribute to disparities and may lead to violations of statutes the Commission enforces, such as secrecy policies, discouraging or prohibiting workers from asking about compensation or sharing their pay with co-workers, and reliance on past salary history or applicant’s salary expectations to set pay. #5 – Preserving Access To The Legal System – The Commission ’ s focus with this priority is on practices that discourage or prohibit individuals from exercising their rights, including overly broad waivers, releases, and mandatory arbitration provisions, failure to maintain applicant and employee data, and retaliatory practices that dissuade employees from exercising their rights. Most often, this priority manifests itself with lawsuits grounded on retaliation theories. #6 – Preventing and Remedying Systemic Harassment – This priority is directed at recognizing harassment, both in-person and online, as the EEOC’s charge statistics detail that harassment remains a serious issue in workplaces. The Commission’s enforcement efforts on this front aim to combat systemic harassment in all forms and on all bases. Some – but certainly not all – of the EEOC ’ s lawsuits initiated over the past year fall into one or more of these six categories. Further, while the Commission ’ s six major enforcement priorities have remained consistent across its iterations of the SEP, the EEOC has changed how it interprets those priorities. In effect, this has led the Commission to shift how it approaches litigation and the issues it chooses to litigate in the courts. The 2024-2028 SEP shift in focus to technology is impactful and demonstrates the possibility of targeting advanced technologies, such as artificial intelligence, in employment processes. The factors underlying many of these enforcement priorities are “systemic cases.” Briefly, systemic cases are those with a strategic impact, insofar as they affect how the law influences a particular community, entity, or industry. As described in previous coverage on the 2017-2022 SEP, which recognized the importance of “systemic” cases to its overall mission, the EEOC is uniform in its devotion of resources and personnel to this type of litigation.

EEOC Litigation Review - 2025

3. Strategic Priorities In Litigation And Trends In Case Filings In FY 2024

In FY 2024 (October 1, 2023 to September 30, 2024), the EEOC’s litigation enforcement activity showed a notable decrease in filings in a year of transition for America. But with the uncertain election season in November 2024, the EEOC’s onslaught of September filings demonstrates the Agency’s principled approach to thwart discrimination in the workplace. Although the total number of lawsuits filed by the EEOC decreased from 144 in 2023 to 110 in FY 2024, the EEOC’s targeted efforts involve a bevy of September filings concerning discrimination allegations against employers across a myriad of industries. Each year, the EEOC’s fiscal year ends on September 30, and the final sprint for EEOC-initiated litigation in September 2024 aligned with prior “last-month” enforcement efforts. This year, 67 lawsuits were filed in September, equal to the 67 filed in September of FY 2023. Overall, the FY 2024 lawsuit filing data confirms that EEOC litigation continues its steady path in enforcement efforts. While total filings were down, employers should recognize the key areas the EEOC continued its litigation including by industry and filing type. Employers must maintain legal compliance with all of the EEOC’s initiatives and the FY 2024 synopsis offers insights into year- over-year EEOC enforcement patterns. 4. Lawsuit Filings Based On Month We track the EEOC’s filing efforts across the entire fiscal year with its beginning in October through the anticipated final filings in September. As with other fiscal years, the EEOC’s filing patterns remained consistent through June 2024, with a slight increase in July 2024, another slight increase in August 2024, and significant jump in September 2024. Of the 110 total filings this year, more than half – 67 total – were filed in September. The following chart shows the EEOC’s filing pattern over FY 2024:

Comparing these fiscal filings in FY 2024 to previous years, a significant decrease exists from FY 2023 (144 lawsuits), which was an outlier in terms of EEOC litigation in the post-COVID era. The following graph shows the EEOC’s year-over-year fiscal year filings beginning in FY 2017 through FY 2024:

EEOC Litigation Review - 2025

5. Lawsuit Filings Based On EEOC District Office In addition to tracking the total number of filings, we closely monitor which of the EEOC ’ s 15 district offices are most actively filing new cases over the course of the year. Some districts tend to be more aggressive than others, and some focus on different case filing priorities. The following chart shows the number of lawsuit filings by EEOC district offices.

In FY 2024, Philadelphia had the most filings with 14, followed by Atlanta, Chicago, and Indianapolis with 11 each, followed by Phoenix with 9 filings, Charlotte, Houston, and New York with 7 each, and Birmingham, Miami, and San Francisco with 6 filings each. Dallas, Memphis, and St. Louis had 5 filings. Notably, Los Angeles had no filings.

EEOC Litigation Review - 2025

While filings across the board were down, the most noticeable trend of FY 2024 is the filing jump in Atlanta (11 lawsuits), compared to FY 2023 where Atlanta had 9 fillings. In contrast, Philadelphia had a significant decrease in filings (14 lawsuits), compared to FY 2023 where Philadelphia amassed 19 filings. Like FY 2023, Chicago and Indianapolis remained steady near the top of the list again with 11 filings each, down from the 13 filings both districts launched in FY 2023. On the opposite end of the spectrum, New York filings (7 lawsuits) fell slightly compared to its 10 filings in FY 2023, and Los Angeles (0 lawsuits) significantly fell compared to its 10 filings in FY 2023. Although filing trends were down for all Districts, the 110 total filings demonstrate the EEOC maintained its litigation strength, both at the national and regional level. 6. Lawsuit Filings Based On Type Of Discrimination We also analyze the types of lawsuits the EEOC filed, in terms of the statutes and theories of discrimination alleged, so as to determine how the EEOC is shifting its strategic priorities.

When considered on a percentage basis, the distribution of cases filed by statute remained roughly consistent compared to FY 2024 and FY 2023. As can see from the graph, Title VII cases once again made up the majority of cases filed, as they constituted 61% of all filings in FY 2024 (significantly down from 68% of all filings FY 2023, down from the 69% filings in FY 2022, and equal to 61% in FY 2021). Overall, ADA cases also made up a significant percentage of the EEOC’s FY 2024 filings – totaling 41%. This is an overall increase in previous years where ADA filings amounted to 34% in FY 2023, 29.7% in FY 2022, and just below the 37% in FY 2021.

EEOC Litigation Review - 2025

There was also a downward trend in ADEA filings, as 7 ADEA cases were filed in FY 2024, after 12 age discrimination cases were filed in FY 2023 and 7 age discrimination cases filed in FY 2022. However, unlike FY 2023, this year the EEOC filed four Pregnant Worker’s Fairness Act cases (“PWFA”) after the PWFA went into effect on June 27, 2023. The graphs above details the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, Age Discrimination in Employment Act, Pregnant Worker’s Fairness Act, and Genetic Information Nondiscrimination Act) and, the graph to the right shows the basis of discriminatory allegations. 7. Lawsuits Filings Based On Industry In monitoring the EEOC’s filings by industry, FY 2024 has mirrored EEOC-initiated lawsuits in the top three industries compared to FY 2023, demonstrating the Commission’s focus on a few major industries. Three industries were the primary targets of lawsuit filings in FY 2024, including Hospitality (Restaurants / Hotels / Entertainment) with 23 filings, Healthcare with 22 filings, and Retail with 21 filings. The next set of industries did not amount to double-digit filings, but are still well within the EEOC’s sights, including Manufacturing with 11 filings; Logistics with 7 filings; Construction with 4 filings; and Property Management with 3 filings. This aligns with FY 2023, where Hospitality (mainly Restaurants) was the industry at large with 28 filings. In second and third place were Retail and Healthcare, respectively, with 24 filings. Absent from FY 2024’s industry- based filings, however, were Automotive, Security, and Technology. Like FY 2023, Hospitality, Retail, and Healthcare employers should continue to monitor their compliance with federal discrimination laws, as the EEOC continues its enhanced enforcement against these industries for alleged discriminatory practices. The industries are regular hotbeds for charges and ultimately lawsuits. Nonetheless, no matter the industry, every employer should recognize they are vulnerable to EEOC-initiated litigation as detailed by the below graph.

EEOC Litigation Review - 2025

8. Looking Ahead To Fiscal Year 2025 Moving into FY 2025, the EEOC’s budget includes a $33.221 million increase from 2024, and prioritizes five key areas, including advancing racial justice and combatting systemic discrimination on all protected bases, particularly with respect to vulnerable workers; advancing pay equity; addressing the use of artificial intelligence in employment decisions; providing information to assist employers that chose to undertake lawful approaches to fostering diversity, equity, inclusion, and accessibility (DEIA) in their workplaces; and preventing unlawful retaliation and harassment. The EEOC also maintained its FY 2024 goals for its own Diversity, Equity, Inclusion, and Accessibility (DEIA) program where it seeks to achieve four goals, including workplace diversity, employee equity, inclusive practices, and accessibility. Additionally, the EEOC continues to emphasize and build upon its FY 2021 software initiatives addressing artificial intelligence (AI), machine learning, and other emerging technologies in continued efforts to provide guidance. The EEOC notably recognized that AI systems may offer new opportunities for employers but cautioned AI’s potential to facilitate discrimination. Finally, the joint anti-retaliation initiative among the EEOC, the DOL, and the National Labor Relations Board (NLRB) will continue to address retaliation in Following the White House party switch in January 2025, President Trump made several Executive Orders that impacted the EEOC and its acting Commissioners. President Trump President Trump seems to be looking to pivot the focus of the EEOC to a more business-friendly posture. On February 18, 2025, in EEOC v. LeoPalace , Case No.: 25-CV-4 (D. Guam), the EEOC settled a lawsuit and entered into a three-year consent decree with LeoPalace Resort, a large hotel in Guam. Under the terms of the agreement, LeoPalace agreed to pay over $1.4 million and hire an external equal employment monitor to settle allegations that it provided employees of non-Japanese national origin with less favorable wages, benefits, and other terms of employment than their Japanese counterparts. This lawsuit is significant because it is the first seven figure settlement that the Commission has procured since President Trump took office in January 2025 and it is accompanied by a statement from the new Acting Chair Andrea Lucas announcing the Commission’s new enforcement agenda and its intent to protect all workers from national origin discrimination and “Anti- American workplaces. Yet, a caveat is in store.

EEOC Litigation Review - 2025

American” bias. In the accompanying press release, Acting Chair Andrea Lucas announced, ““Federal anti-discrimination laws ensure equal employment opportunity for jobs performed by all workers regardless of national origin. The President’s Executive Order on Ending Illegal Discrimination and Restoring Merit-Based Opportunity recognizes that the longstanding federal civil rights laws serve as a bedrock to support equality of opportunity for all Americans. This case is an important reminder that unlawful national origin discrimination includes discrimination against American workers in favor of foreign workers.” See EEOC Newsroom, LeoPalace Resort to Pay Over $1.4 Million in EEOC National Origin Discrimination Lawsuit (Feb. 18, 2025). This is the Commission’s first publicized settlement since Lucas was appointed Acting Chair of the EEOC on January 21, 2025. One day after the settlement was announced, the EEOC published a second press release on its Newsroom “putting employers and other covered entities on notice” that the Commission was committed to protecting all workers from unlawful national origin discrimination, including American workers. See EEOC Newsroom, EEOC Acting Chair Vows to Protect American Workers from Anti-American Bias (Feb. 19, 2025). The Commission further explained that, although Title VII’s national origin nondiscrimination requirement generally meant that employers could not prefer American workers, it also meant that employers could not prefer non-American workers, or otherwise disfavor Americans. Id . It concluded its press release by stating that while employers may have “many excuses” for preferring non-American workers (including lower labor cost, client preference, or a biased perception that foreign workers have a better work ethic than Americans), none of these were legally permissible reasons to violate Title VII. Id . Every new presidential administration brings with it an array of objectives focused on different policy priorities. Since President Trump took office, he has taken unique steps to reshape the Commission by firing its Chair, two Commissioners, and its general counsel, all within the course of a few weeks. The Commission has already indicated it is committed to carrying out President Trump’s policy agenda, consistent with his executive orders related to “unlawful DEI-motivated race and sex discrimination,” “defending the biological and binary reality of sex and related rights,” “protecting workers from religious bias and harassment, including antisemitism” and, as the above settlement illustrates, “anti-American national origin discrimination.” See EEOC Newsroom, President Appoints Andrea R. Lucas EEOC Acting Chair (Jan. 21, 2025). Employers should take note of the EEOC’s new policy priorities and can likely expect increased enforcement activity in each of these areas for the next four years. IV. EEOC Litigation 1. EEOC Cases Under The ADA Enforcement of the Americans with Disabilities Act (ADA) remains a core priority of the Commission. In 2024, it pursued a myriad of ADA-related lawsuits. In early 2024, the court in EEOC v. Western Distributing Co., 2024 U.S. Dist. LEXIS 17225 (D. Colo. Jan. 31, 2024), denied the defendants’ post-trial motions in a disabilities discrimination lawsuit over employees taking medical leave. The EEOC filed suit on behalf of individuals with disabilities who worked for Western Distributing Co. (Western), a trucking company, alleging that Western’s employment policies disparately impacted these individuals under the ADA. Western’s policies required employees to return to work on a “full-duty” basis after medical leave; required certain drivers to static push and pull 130 pounds of weight; and required certain drivers to be able to static push and pull 130 pounds of weight at 58 inches above the ground. Id. at *2. In January 2023, a jury decided that Western’s full-duty policy had a disparate impact on disabled drivers. In post-trial motions following the jury’s decision, Western moved to dismiss for lack of standing and moved to reconsider the court’s denial of its yet-to-be-filed Rule 50(b) motion. The court denied Western’s standing motion, in which it challenged the standing of the EEOC to pursue a disparate impact claim because the specific policies that allegedly caused discrimination were discontinued before the lawsuit began. Western claimed that the EEOC did not have standing to seek a remedy because there was no current harm to address. The court rejected this

EEOC Litigation Review - 2025

argument. It held that the EEOC had standing to pursue its claim and seek equitable relief, and specifically for back pay, regardless of whether the policies were currently enforced. The court also granted Western’s motion to reconsider concerning arguments raised in its initial Rule 50(a) motion. The court addressed Western’s arguments and denied each in full. First, Western argued “the EEOC waived its disparate impact claim to the extent it was based on the ‘full-duty policy’ by failing to include this claim in its proposed Challenge Standards” instruction. Id. at *5. The court determined its order one month before trial on the EEOC’s motion for partial summary judgment included both the “full-duty and maximum leave policies ‘[as] two of the thirteen discriminatory standards, criteria, or methods of administration that form the basis of the disparate impact claim.’” Id. at *6. The court also reasoned that Western was aware of the need to defend against the full-duty policy given the “significant body of evidence Western in fact prepared and marshaled to [defend against] just that.” Id. Second, Western moved to reconsider the adequacy of the evidence the EEOC presented at trial with respect to the existence of the full-duty policy and its disparate impact on qualified individuals with disabilities. Id. at *7. The court rejected Western’s request to re-weigh the evidence as the jury during trial “was attentive, engaged, and clearly thoughtful in issuing a narrow verdict.” Id. at 8. As to the disparate impact portion, the court emphasized that there was “a retread of one of Western’s rejected summary judgment arguments.” Id. at *7. Therefore, the court decided it would “not functionally reverse its own legal conclusions reached during the summary judgment phase.” Id. at *8. For the same reasons, the court denied Western’s third argument regarding statistical evidence of the 130-pound push/pull tests as a “re-tread” of an issue already decided on summary judgment. Id. Finally, the court denied Western’s argument because it “[was] merely a short summary of the arguments raised in the Standing Motion.” Id. In EEOC v. Triple-S Vida, Inc., 2024 U.S. Dist. LEXIS 229285 (D.P.R. Dec. 18, 2024), the EEOC filed an action on behalf of Ivelisse Gonzalez against the defendant, alleging that it subjected her to discrimination based on her disability in violation of the ADA. The parties filed cross-motions for summary judgement, and the Magistrate Judge recommended denying both motions. The court thereafter adopted the recommendation. Gonzalez was hired in 2015 as an authorized representative responsible for selling life insurance, collecting payments, and spending significant time driving to meet clients. In 2018, González was diagnosed with fibromyalgia, a condition that causes chronic muscle pain, fatigue, and dizziness, which affected her ability to perform her duties. As a result, she requested a reassignment to an office position, supported by a medical recommendation from her doctor. The defendant initially denied her request for reassignment and instead offered her an ergonomic chair and suggested that she apply for other vacancies for which she was qualified. Gonzalez filed a charge of discrimination with the EEOC and the Puerto Rico Department of Labor, but both agencies found no probable cause for her claim. Despite this, Gonzalez continued to apply for various office positions without success. In 2020, Gonzalez applied for a customer service position, specifically requesting it as an accommodation for her disability. The defendant ultimately hired another person for the position. Eventually, the defendant moved Gonzalez to a customer service position, after she filed a second charge of discrimination with the EEOC, and nearly three years after her first request for an accommodation. Despite the reassignment, the EEOC filed a lawsuit alleging that the defendant failed to provide a reasonable accommodation in violation of the ADA. The court explained that unreasonable delays can be seen as discriminatory if they are unreasonable. The EEOC argued that the defendant could have accommodated Gonzalez sooner, as she repeatedly applied for available office positions, but the company only provided a reassignment after the EEOC intervened. The court ruled that summary judgment was not appropriate, because issues including whether Gonzalez could perform the essential functions of her desired position and whether a vacancy existed would require further briefing. The court also opined that a jury could reasonably conclude that the defendant’s delay in reassigning Gonzalez was excessive and unjustified. As a result, the court ruled that whether the delay was based on valid reasons or if were part of a discriminatory pattern was a question for the jury to decide. For these reasons, the court adopted the Magistrate Judge’s recommendation to deny summary judgment for both parties on the issue of whether the defendant reasonably accommodated Gonzalez. In EEOC v. Covius Services, LLC , 2024 U.S. Dist. LEXIS 224471 (W.D. Wash. Dec. 11, 2024), the EEOC filed an action on behalf of Kelli Ebert, who suffered from chronic migraines and fibromyalgia, alleging that the defendant subjected her to discrimination in violation of the ADA. The EEOC asserted that Ebert’s conditions limited her major life activities when untreated, and she used prescription pain medication, including opioids, to manage the conditions. In March 2020, Ebert was referred for a position as a Non-Escrow Tax Specialist (NETS I) and disclosed her use of pain medication during her interview. Despite being rated as a potentially eligible candidate by one interviewer, the defendant did not hire Ebert. The defendant later informed her that her use of

EEOC Litigation Review - 2025

pain medication was the reason for the decision. Shortly thereafter, Ebert accepted another job offer, but that position was postponed indefinitely due to the COVID-19 pandemic. In the meantime, the defendant hired another candidate, Rosalee Sharnetsky, for the same position. The defendant subsequently closed its tax department and the office to which Ebert applied for employment. Following discovery, the defendant filed a motion for summary judgment, and the court denied the motion. First, the defendant argued that the EEOC’s request for injunctive relief was moot, due to the closure of its Washington office and changes to its anti- discrimination policies. However, the court found that the defendant had not sufficiently demonstrated that future discrimination was unlikely, as the defendant’s drug testing policies still applied to all applicants, including remote employees. The court also rejected the defendant’s argument that changes in its policies since 2020 precluded future violations. In addition, the defendant argued that Ebert’s disability was not the "but-for" cause of her not being hired, as the company had hired another disabled candidate, Sharnetsky, around the same time. Id. at *11. The court determined that there was a factual dispute over whether the decision to hire Sharnetsky was influenced by her disability, such that summary judgment was not appropriate. The defendant also sought to dismiss the availability of punitive damages, arguing that there was no evidence of "malice or reckless indifference" in its conduct. Id. at *14. The court, however, reasoned that there was enough evidence to suggest that the defendant may have attempted to cover up discriminatory actions or failed to implement proper training on anti-discrimination policies. This raised a factual issue about whether the defendant acted with reckless indifference to Ebert’s rights, which the court concluded should be decided by a jury. Finally, the defendant also argued that Ebert should not be entitled to back pay because she accepted another job offer before learning that she was not hired. The court disagreed. It held that there were no reasons to deny back pay. For these reasons, the court denied the defendant’s motion for summary judgment. In EEOC v. Union Pacific Railroad Co., 2024 U.S. Dist. LEXIS 118841 (D. Minn. July 8, 2024), the EEOC filed an action against Union Pacific Railroad Co. (Union Pacific) on behalf of a group of railroad conductors alleging that its policy of requiring light-cannoning testing was discriminatory in violation of the ADA. Union Pacific moved to dismiss the EEOC’s action, and the court denied the motion. The Federal Railroad Administration (FRA) sets safety standards for railroad employees, including certification requirements such as passing a color-vision test. There are twelve color-vision tests approved by the FRA for use by railroads to determine whether an individual can identify railroad signals’ colors in an adequate manner. Union Pacific required its engineers and conductors to take two visual-acuity tests, including the Ishihara test, which was accepted by FRA, and Union Pacific’s own developed “light cannon” test, which was not accepted by FRA. Id. at *4. Twenty-one employees failed the light cannon test and subsequently were removed from their positions. The EEOC asserted three main claims, including: (i) that Union Pacific discriminated against the employees by treating them unfavorably due to their perceived disabilities; (ii) that Union Pacific imposed qualification standards that unfairly screened out individuals with disabilities; and (iii) that Union Pacific conducted improper medical examinations and inquiries. The court found the EEOC’s allegations were plausible and sufficiently stated claims under the ADA. The court explained that the EEOC plausibly alleged that the employees were qualified under FRA standards if they passed the Ishihara test, despite failing the light cannon test. The court declined to take judicial notice of two decisions issued by the FRA’s Operating Crew Review Board, which were offered by Union Pacific to show that the light-cannon test was considered val Id. Accordingly, the court denied the motion to dismiss. The court opined that it faced too many fact issues to grant summary judgment in EEOC v. Modern Group, Ltd., 2024 U.S. Dist. LEXIS 53275 (E.D. Tex. Mar. 25, 2024). The court denied summary judgment for Modern Group Ltd. and partially denied summary judgment for the EEOC in its suit claiming the companies violated the ADA when they walked back a job offer for Alexander Dare (Dare), after finding his prescribed methadone and Xanax doses were too high for him to operate equipment safely. According to the lawsuit, Modern Group denied employment to Dare, who was diagnosed with anxiety and Opioid Use Disorder (OUD), because of the prescription medications he used to treat those disabilities. Modern Group made a job offer to the applicant after he applied to work for Dragon Rig, in February 2019. The applicant completed and passed Modern Group’s required drug screen because he had prescriptions for the medications. However, the EEOC asserted that Modern Group jointly withdrew the offer of employment without contacting or engaging with the applicant to determine if he could perform the essential job functions with or without a reasonable accommodation, ultimately basing their decision on statements about the medications made by a medical review officer, in violation of the ADA. Both the EEOC and Modern Group sought summary judgment regarding whether Modern Group functioned as an integrated enterprise with third-party Dragon Rig. The EEOC presented evidence of significant operational ties between the two entities, such as shared management, human resources policies, and financial

EEOC Litigation Review - 2025

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