18th Annual Workplace Class Action Report - 2022 Edition

66 Annual Workplace Class Action Litigation Report: 2022 Edition Id . at 2. Defendant also asserted that the EEOC had no legal basis for the lawsuit and that it acted in bad faith by falsely claiming that it did not obtain the arbitration agreement from a charge of discrimination and by concealing the source of the document leading to the lawsuit. Id . The EEOC argued that the lawsuit was not frivolous when filed, nor did it become frivolous, and that it prevailed on novel legal issues, such as permitting a § 707(a) lawsuit without a charge and without engaging in conciliation. Id . at 3. The EEOC also contended that the lawsuit was not frivolous because: (i) Defendant never moved to dismiss on the wording of the agreement; (ii) Defendant ultimately changed its policy; and (iii) Defendant settled the lawsuit. The Court ruled that the lawsuit was not frivolous when it was filed, and it did not become frivolous later. The Court reasoned that it had agreed with the EEOC that it could bring a lawsuit under § 707(a) in the absence of a charge and without conciliation, and had determined that the case was not moot even after the arbitration agreement had been modified. The Court also found that the EEOC did not act in bad faith in the manner in which it obtained the arbitration agreement after it had been submitted to the EEOC during an investigation. Accordingly, the Court held that Defendant was not entitled to attorneys’ fees and therefore it denied Defendant’s motion. EEOC v. Kelly Services, 2021 U.S. Dist. LEXIS 14773 (N.D. Ala. Jan. 11, 2021). The EEOC filed an motion to compel enforcement of an administrative subpoena to Defendant. In response, Defendant argued that the scope of the subpoena was overbroad. The Court granted the motion in part and denied it in part. The Court explained that the EEOC has authority to conduct an investigation, and therefore to issue an administrative subpoena. However, the Court found that some of the information requested by the EEOC – such as extensive wage data – could not be utilized to advance the investigation. The Court therefore ordered the EEOC to modify its subpoena to request information for individuals who applied for employment, had an active application, or were employed as a result of an employment referral in a craft worker occupation from January 1, 2014 to December 31, 2017 in Defendant’s Huntsville, Alabama location. For such individuals, the Court directed that Defendant must provide the applicant name, first, last and middle initial, last known street address, city, state and zip code applicant ID number or another unique identifier, telephone number, email address, race and ethnicity, date of birth, gender, occupations in which the applicant was seeking work, job titles applicable to applicant, skills or skill groups associated with the applicant and dates when these titles/groups were created and/or modified, occupational or competency tests taken, results of test, and eligibility rating for placement, reason for background check and results, employer requirements for referral, notes regarding applicant placement preferences, notes of staff evaluations of individual, referral restrictions for the worker, job titles where individual was referred and referral dates, the company to which individual was referred, start date of employment, end date of employment, reasons for termination of employment, dates individual was interviewed by KSI and the reasons for the interviews, results of the interviews, description of and dates of other steps taken in referring or hiring individual, results of the other steps, description of training given by Defendant to individual and dates of training, results of training, training by referral employer and dates of training if known, and results of training by referral employer if known. Id . at *2-4. For these reasons, the Court granted in part the EEOC’s motion to compel the administrative subpoena. EEOC v. Mediacom Communications Corp., 2021 U.S. Dist. LEXIS 48533 (M.D. Ga. March 16, 2021). The EEOC filed an action on behalf of three female customer service representatives (“Plaintiff-Intervenors”) alleging that Defendant subjected the employees to a hostile work environment, retaliation, and constructive discharge under Title VII of the Civil Rights Act of 1964 (“Title VII”) and Title I of the Civil Rights Act of 1991 (“Title I”). According to the EEOC, male customer service representative Marcus Christian regularly stared at the three Plaintiff-Intervenors and made them feel uncomfortable through inappropriate sexual conduct. Moreover, Christian allegedly touched Plaintiff-Intervenor Crystal Vinson’s back through her chair a number of times, grabbed her breast on one occasion, and forcibly tried to make Vinson touch his penis. The Plaintiff-Intervenors reported Christian’s conduct to Defendant, but after finding that its investigation was inconclusive, Defendant responded only by changing the Plaintiff-Intervenors’ schedules and seating arrangements as to avoid contact with Christian. The EEOC further claimed that Defendant denied Plaintiff-Intervenor Vinson a raise in retaliation for reporting Christian’s conduct, and that Vinson’s subsequent resignation amounted to a constructive discharge related to Christian’s alleged harassment. Defendant filed a motion for summary judgment, which the Court denied. With respect to the hostile work environment claim, Defendant argued that the EEOC failed to establish that: (i) the harassment was based on the Plaintiff-Intervenors’ sex; (ii) the harassment was sufficiently severe or pervasive; and (iii) there was any legal basis to hold Defendant liable. Id. at *43. The Court reasoned