©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 14 13 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP 4 Impact of Loper Bright In its 2023-2024 term, the U.S. Supreme Court brought an end to 40 years of deference to administrative agencies when it overturned Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).16, 17 In Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2273 (2024), the Court held that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” rather than allowing the agency to fill statutory gaps, judging that courts, not agencies, are best situated to interpret ambiguous statutory provisions, even in areas of agency expertise. In the wake of the Court’s decision, it is anticipated that regulated entities will bring new and potentially far reaching challenges to longstanding rules that are premised on statutory ambiguity. Under Loper Bright, courts have significantly more leeway to interpret statutes contrary to an agency’s interpretations, and courts can use this to cabin agency authority. However, while the Court’s decision was a marked change in how courts may review administrative agencies’ exercise of their power going forward, presently, all agency rules that were enforceable before Loper Bright remain enforceable. Indeed, the Court observed that all decisions relying on Chevron to uphold an agency’s action (1) remain good law and (2) are not subject to overruling simply because they relied on Chevron. The result is that, practically, nothing changes for people or entities subject to such pre-existing administrative authority unless or until a new challenge is lodged and decided. Further, Loper Bright does not mark the end of the administrative state. Most notably, the decision appears to endorse the Court’s ruling in Skidmore v. Swift & Co., 323 U.S. 134 (1944), under which courts grant a modicum of deference to an agency’s statutory interpretation to the extent that it has the power to persuade in light of the agency’s thoroughness, its consistency over time, and the soundness of its reasoning. The continuing availability of Skidmore deference likely provides some security to longstanding agency rules and interpretations, particularly in noncontroversial areas of significant agency expertise. Additionally, Loper Bright does little to call into question Congress’s ability to expressly delegate authority to agencies to promulgate regulations and relevant definitions, such as the delegations to the EEOC under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (the ADA), and the Genetic Information Nondiscrimination Act (GINA), as well as the recently passed Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (“PUMP”) Act. Given this, when Congress has directly authorized an agency to exercise discretion about the meaning of a statute, Loper Bright suggests that there is less space for courts to disagree with that interpretation. Consequently, the rules promulgated under such a delegation may similarly be less vulnerable to attack, and the EEOC’s regulatory and enforcement efforts on these fronts is likely to continue unabated notwithstanding the Court’s decision. Elsewhere, the end of Chevron deference should not affect the way that federal courts are likely to view the EEOC’s Title VII guidance, as that guidance has only received Skidmore deference, and not Chevron deference, since the Court’s ruling in General Electric Co. v. Gilbert, 429 U.S. 125 (1976). 5 Recent EEOC Guidance on Vision and Hearing On January 24, 2023, the EEOC published guidance18 regarding hearing disabilities in the workplace. The guidance contained a series of question-and-answer documents addressing how the ADA applies to job applicants and employees with hearing disabilities. In particular, the document explained: when an employee may ask an applicant or employee questions about a hearing condition and how it should 16 See Rachel See, Jules A. Levenson, and Michael D. Berkheimer, The Chevron Doctrine is Dead. Long Live the Administrative State (June 28, 2024), https://www.seyfarth.com/news-insights/chevron-is-dead-long-live-the-administrative-state.html. 17 All case-related information in this Report is strictly derived from court dockets and other publicly-available sources. 18 U.S. Equal Employment Opportunity Commission, Hearing Disabilities in the Workplace and the Americans with Disabilities Act (Jan. 24, 2023), https://www.eeoc.gov/laws/guidance/hearing-disabilities-workplace-and-americans-disabilities-act. treat voluntary disclosures; what types of reasonable accommodations applicants or employees with hearing disabilities may need; how an employer should handle safety concerns about applicants and employees with hearing disabilities; and how an employer can ensure that no employee is harassed because of a hearing disability. In a similar vein, on July 26, 2023, the EEOC published updated guidance regarding individuals with vision disabilities in the workplace.19 This technical assistance document explained how the ADA applies to job applicants and employees with disabilities. The document outlined when, according to the EEOC, an employer may ask an applicant or employee questions about their vision, how an employer should treat voluntary disclosure about visual disabilities, and what types of reasonable accommodations those with visual disabilities may need in the workplace. The document also highlighted new technologies for reasonable accommodations, and described how using artificial intelligence and algorithms to make employment decisions can impact individuals with visual disabilities. Finally, the guidance also addressed how an employer should handle safety concerns about applicants and employees with visual disabilities, and methods to prevent harassment and retaliation. Reflective of its emphasis on protecting employees under the ADA, the Commission filed 48 cases under the Americans with Disabilities Act during FY 2024.20 Focusing on hearing or vision-impaired workers, the Commission brought suit on behalf of a blind employee, for instance, who was fired two days after falling at work despite being uninjured and his exemplary performance for more than a year. Following the fall, his employer made no effort to reassess the employee’s capabilities or potential accommodations after the fall and decided to terminate him in violation of its policies. In another case, an employer was alleged to have violated the ADA after firing a scheduling assistant on her first day of work shortly after she requested reasonable accommodations related to her visual impairments. According to the EEOC, after the scheduling assistant informed the employer about her impairments and need for accommodations, the employer questioned why she failed to raise the issues during her interview and immediately terminated her. The EEOC’s message: employers must engage in the interactive process with applicants and employees, not only during the interview process, but throughout the entire employment relationship. The EEOC’s increased scrutiny on these issues is likely to continue and employers should recognize that the EEOC will target decisions it believes are based on stereotypes. 6 Focus Area: Hearing Impairment Issues in Recruiting and Hiring Relatedly, while the disability-related lawsuits that the EEOC filed concerned a broad range of disabilities in FY 2024, the Commission built on a trend from the end of the previous year and continued to prioritize hearing-related disabilities. Specifically since publishing its guidance regarding hearing disabilities in the workplace in January 2023, the Commission has filed a total of 16 ADA cases on behalf of hearing impaired employees, nine in FY 2023 and seven in FY 2024.21 Like the cases filed in 2023, the cases filed by the EEOC in FY 2024 related to hiring and recruiting fall into one of two categories: challenging employers’ assumptions that hearing impaired workers cannot perform jobs safely; and challenging employers’ alleged failure to provide reasonable accommodations for those with hearing disabilities. The Charlotte District Office and the Philadelphia District Office led the pack, filing two cases each in North Carolina and Maryland, respectively. Other cases were filed in Illinois, Texas, and Florida. 19 U.S. Equal Employment Opportunity Commission, Press Release: Updated EEOC Resources About the ADA and Individuals with Visual Disabilities at Work (July 26, 2023), https://www.eeoc.gov/newsroom/updated-eeoc-resource-about-ada-and-individuals-visual-disabilitieswork#:~:text=%E2%80%9CProviding%20reasonable%20accommodations%20is%20an,the%20resources%20needed%20to%20succeed. 20 U.S. Equal Employment Opportunity Commission, Press Release: Fiscal Year 2024 EEOC Litigation Focuses on Emerging Issues and Underserved, Vulnerable Populations (Oct. 9, 2024), https://www.eeoc.gov/newsroom/fiscal-year-2024-eeoc-litigation-focuses-emerging-issues-and-underservedvulnerable. 21 See Christopher J. DeGroff, Andrew L. Scroggins, James P. Nasiri, and Samantha L. Brooks, EEOC Case Filings Plummet: A Look at the EEOC’s Surprisingly Sluggish FY 2024 (Sept. 30, 2024), https://www.seyfarth.com/news-insights/eeoc-case-filings-plummet-a-look-at-the-eeocssurprisingly-sluggish-fy-2024.html.
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