©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 53 EEOC v. The Phoenix Center Inc., 1:23cv592 (S.D. Ohio) The EEOC alleged that the employer violated the ADA in multiple respects. The EEOC alleged that the employer subjected one applicant to a pre-offer medical inquiry and failed to hire her because of her disability, chronic migraine disease, or because she was regarded as disabled, and alleged that the company terminated a former employee because she was regarded as disabled or because of her record of disability, alcoholism. The EEOC also made the broader allegation that the employer had subjected all applicants to unlawful pre-offer medical inquiries. C. Construction Industry Profile The EEOC’s Strategic Enforcement Plan highlights as an area of “particular concern” the “continued underrepresentation of women and workers of color in certain industries and sectors,” “especially in industries that benefit from substantial federal investment,” including construction. Not surprisingly, then the majority of cases filed against businesses in this industry arise under Title VII and are brought on behalf of groups of employees, rather than just one individual. The EEOC also has litigated claims that certain return from leave policy requirements violate the ADA.92 KEY CASES FILED IN FY 2023 EEOC v. TKO Construction Services, 23-cv-3010 (D. Minn.) The EEOC’s complaint alleges that the employer, a staffing company servicing construction clients, instructed one of its recruiters not to hire women for construction jobs, Blacks in certain areas, and individuals who were over 40 years old because some clients do not want them. According to the EEOC, the recruiter resigned rather than engage in this conflict. The EEOC’s suit is brought on behalf of the recruiter, as well as a class of aggrieved individuals who the company allegedly failed to recruit, hire, assign or refer because of they are female, Black, or age 40 or older. The EEOC further alleges that the company made assignments based on protected traits, resulting women and Black employees working fewer hours and receiving less pay than their counterparts not in protected groups. EEOC v. Asphalt Paving Systems, Inc., 8:23-cv-02169 (M.D. Fla.) According to the EEOC’s lawsuit, African American employees were subjected to a hostile work environment through the open use of racial slurs and racist comments, including use of the “n-word” by employees and managers. The EEOC also alleged that Black employees were subjected to demeaning working conditions, such as being required to work without breaks while white employees watched, and being forced to relieve themselves outdoors 92 For additional analysis of the EEOC’s focus on the construction industry, see Meghan A. Douris and Andrew L. Scroggins, The EEOC Targets Construction Industry For Heightened Enforcement, Seyfarth News & Insights (Feb. 24, 2023), https://www.seyfarth.com/news-insights/the-eeoctargets-construction-industry-for-heightened-enforcement.html. 14 Construction Industry Merit Cases Filed in FY 2023 Birmingham Dallas Chicago Houston Charlotte Los Angeles Miami Philadelphia 3 3 2 2 1 1 1 1 EEOC District Offices Bringing Suit & Number of Lawsuits Brought by Each District Statutory Basis for Suit 11: Title VII 4: ADEA 2: ADA
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