EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 19 applicable to the EEOC and therefore do not require the EEOC to obtain the consent of employees before pursuing a lawsuit on their behalf. 120 Other decisions have been important because they demonstrate how difficult it can be for employers to dispense with age discrimination cases before trial, upping the cost and burden of such cases to employers. For example, in EEOC v. Rockauto, LLC , 121 the U.S. District Court for the Western District of Wisconsin held that an employer’s use of discretionary exceptions to hire applicants who did not meet its stringent hiring criteria left questions for a jury to decide at trial as to whether those exceptions were used in a manner that discriminated against older employees. In that case, the EEOC brought an action on behalf of a charging party who allegedly was not hired for a position because of his age, in violation of the ADEA. Defendant filed a motion for summary judgment. 122 Finding that the EEOC had presented sufficient evidence of similarly situated comparators who had been treated more favorably, despite not having met the employer’s stringent hiring criteria, the Court denied the motion for summary judgment. In particular, the Court noted that the EEOC had “presented objective evidence in the form of comparators, other individuals who received preferential job treatment despite having equal or lesser qualifications than the plaintiff or claimant.” 123 There was a question, therefore, as to whether the employer had used its discretionary exceptions, called an “Auto Pass” and a “Jim Pass,” in a discriminatory manner: “[a] juror could reasonably conclude that these two factors did not justify giving a Jim Pass to [comparator] but not to [charging party], who had extensive relevant experience. And [employer’s] decision is particularly notable because he credited [comparator] for showing ambition by applying while still in college, a factor that would typically apply only to younger applicants. ” 124 Similarly, in EEOC v. Board of Regents of the University of Wisconsin System , 125 the U.S. District Court for the Western District of Wisconsin allowed an ADEA case to proceed to trial after finding that the employer’s stated reasons for passing over an applicant were vague and subjective. The EEOC brought a lawsuit on behalf of a University Services Program Associate against the University of Wisconsin system, alleging that the charging party had been denied a position because of her age . 126 The employer stated the charging party’s application was rejected because of her past job performance and poor interview. The District Court held that the employer’s evidence was vague and that a reasonable jury could find its explanations to be pretextual. 127 The Court concluded that “[i]n light of the [employer’s] failure to provide more specific reasons for its decision,” “EEOC’s evidence is sufficient to show a genuine issue of material fact requiring a trial.” 128 120 According to the district court, when the EEOC files suit under the ADEA, it must look to the section of the statute that governs procedures that would be followed by the Secretary of Labor, rather than those that would pertain to actions brought by private employees. “There is simply no reason to read the statute in such a way as to require the EEOC to obey the procedures governing private actions under the FLSA while ignoring those governing administrative enforcement actions under the FLSA.” Id. 121 EEOC v. Rockauto, LLC , No. 18-CV-797, 2020 WL 1505637 (W.D. Wis. Mar. 30, 2020). 122 The EEOC alleged that the charging party was more qualified than younger candidates who advanced further in Defendant’s hiring process; that Defendant’s hiring system was biased against older applicants, using applicants’ graduation dates as a proxy for their ages and overvaluing academic accomplishments in comparison to job experience; that Defendant scored charging party’s application less favorably than similarly situated, younger applicants; and that Defendant declined to give charging party a pass in the application process but passed similarly situated, younger applicants. Id. at *2. 123 Id. at *3. 124 Id. at *4. 125 EEOC v. Board of Regents of the University of Wisconsin System , No. 18-CV-602, 2019 WL 5802546 (W.D. Wis. Nov. 7, 2019). 126 Id. at *1-2. In response to budget cuts, the University system had consolidated its marketing departments, and the charging party’s position was identified as one of the 13 positions that would be eliminated due to that reorganization. Although she was invited to apply for other positions, she was not selected for any of the positions she requested. Id. 127 Id. at *4. It was undisputed that the charging party’s performance evaluations were uniformly positive and that she received a recommendation from her former supervisor. The only evidence that the employer presented regarding her past performance were vague statements that charging party was not “responsive” or “timely.” Similarly, with respect to interview performance, the District Court held that the employer’s reasons for rejecting the charging party’s application were vague and subjective. Id. 128 Id. at *5.