18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 53 failed to comply with requirements of the consent decree, the EEOC instituted numerous enforcement actions to comply with the terms of the consent decree. The parties subsequently filed a joint motion to enter into a proposed consent decree that would begin a three-year process to end the previous consent decree on the grounds that Defendants had significantly increased representation of Black and Hispanic members in the labor organizations and among the leadership, Defendants’ recent record of claimed cooperation with the EEOC, and the purported lack of recent Title VII violations by Defendants. Id . at *5-6. The Court denied the motion. It found that the parties failed to make any showing that Defendants cooperated with the consent decree beyond mere conclusory allegations. The Court explained that it needed further information regarding the alleged changed circumstances to ensure that the actual claims at issue have been resolved. Id . at *7. The Court thereby ordered the EEOC to produce information concerning: (i) the EEOC’s outreach to Black and Hispanic members; (ii) the available employment opportunities for Black and Hispanic members; and (iii) the current work hour disparities between White union members and Black and Hispanic union members. For these reasons, the Court denied the parties’ motion for a renewed consent decree. Editor ’ s Note: Originally entered in 1978, the consent decree in this case is one of the longest running for any EEOC action. EEOC v. Yale New Haven Hospital Inc. , Case No. 20-CV-187 (D. Conn. June 29, 2021). The EEOC filed an enforcement action alleging that Defendant’s “Late Career Practitioner Policy” – requiring neurophysiological and ophthalmologic examinations – was discriminatory and therefore violated the Americans With Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). Id . at 1. During discovery, the EEOC filed a motion to compel production of two sets of documents, including peer review and credentials filed for practitioners subject to the policy and the examinations used to examine the practitioners. Defendant argued that because the EEOC was only objecting to the policy, and not discrimination against any practitioners, the value of the production of the entire peer review files that might contain confidential information was minimal. Defendant further contended that the requests were overly broad and invasive. The EEOC asserted that the files it requested were highly relevant because Defendant must justify why it used an age-proxy and whether another selection criteria for identifying poor performing practitioners could be used unrelated to age. The Court agreed with the EEOC. The Court ruled that the EEOC was entitled to review the records to see if the policy was necessary, and any confidentiality concerns could be addressed though proper maintenance of confidentiality designations. The Court noted that there were only 115 files, which was not overly burdensome. The Court also determined that Defendant must produce the requested tests, including the administrator’s documents, raw data, versions of tests used under the policy, and the administrator’s notes. For these reasons, the Court granted the EEOC’s motion to compel production of documents. EEOC v. Yale New Haven Hospital Inc. , Case No. 20-CV-187 (D. Conn. Nov. 10, 2021). The EEOC filed an enforcement action alleging that Defendant’s “Late Career Practitioner Policy” -requiring neurophysiological and ophthalmologic examinations for its employees – was discriminatory and therefore violated the Americans With Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). During discovery, Defendant noticed the depositions of nine individuals who were subjected to its Late Career Practitioner Policy, each of whom was a current employee. Defendant informed the EEOC that, during the depositions, it would ask those individuals if they “were later diagnosed with a cognitive condition, details of those conditions, and their impact.” Id. at 1. The EEOC filed a motion for a protective order barring Defendant from seeking discovery into any medical diagnosis of individuals outside of Defendant’s own testing process. The Court granted the motion for a protective order. It found that with respect to any diagnosis of a cognitive condition received by any individual outside of Defendant’s own testing process, including the details of any such condition and its impact, that information was protected by the psychotherapist privilege and was therefore shielded from discovery. The Court reasoned that any inquiry into this subject would be an invasion of privacy, and this harm was not outweighed by any probative value of the information sought. For these reasons, the Court granted the EEOC’s motion for a protective order. (iii) Third Circuit No reported decisions.