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The National Employment Lawyers Association Denounces Changes To EEOC Dispute Resolution Programs

Unilaterally rolled out by EEOC Chair, “pilot” projects hinder employee rights in discrimination cases

For Immediate Release
Contact: Andrea Hansen
509.306.1867
ahansen@flyingcrow.com

Washington, D.C. – August 17, 2020 – The National Employment Lawyers Association (NELA), the nation’s largest legal association whose members exclusively or primarily represent workers, today urged EEOC Chair Janet Dhillon to discontinue two pilot programs that limit the rights of those who suffer from workplace discrimination, such as sexual harassment or race discrimination.

The impacted programs – conciliation and mediation – are forms of dispute resolution intended to encourage settlement rather than litigation. Despite the EEOC’s mission to prevent and remedy unlawful employment discrimination, the proposed changes favor employers by limiting investigation, potentially hiding systemic discrimination on the part of a particular employer or industry, and weakening the employee’s ability to obtain relief from the discrimination and fair monetary damages.

While labeled “pilot” projects, with respect to the conciliation program the modifications were implemented nationwide, a departure from typical EEOC protocol. The pilots were executed unilaterally by Dhillon, without input from the other EEOC commissioners on the bipartisan commission. With respect to the changes in the mediation program, there is no plan to increase the number of … Read More

NELA Strongly Opposes Proposed Changes To EEOC Dispute Resolution Programs

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Janet Dhillon, Chair
U.S. Equal Employment Opportunity Commission
Washington, DC

Via Email

RE: EEOC Conciliation and ADR Pilot Programs

Dear Chair Dhillon:

The National Employment Lawyers Association (NELA) respectfully writes to urge you to discontinue the Conciliation Pilot Project initiated on May 29, 2020 and the Mediation Pilot Project initiated on July 6, 2020 and to abandon the proposed changes to both the Conciliation and the Mediation programs at the EEOC. The changes contained in these pilots have profoundly limiting impact on the rights of working people who seek redress for workplace discrimination.

NELA is the largest professional membership organization in the country comprised of lawyers who represent workers in labor, employment, wage and hour, and civil rights disputes. NELA empowers workers’ rights attorneys through legal training, promoting a fair judiciary, and advocating for laws and policies that level the playing field for workers. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws; provided comments on relevant Notices of Proposed Rulemaking (NPRMs) for federal agencies whose policies impact working people; and engages in legislative advocacy on behalf … Read More

NELA Amicus Brief: Mach Mining, LLC v. EEOC (U.S. Supreme Court)

On November 4, 2014, NELA joined the Impact Fund, AARP and other organizations to file an amicus brief in support of respondent EEOC in the case of Mach Mining, LLC v. EEOC, Case No. 13-1019, pending in the U.S. Supreme Court. The question presented in this case is: Whether and to what extent may a court enforce the Equal Employment Opportunity Commission’s duty under 42 U.S.C. § 2000e-5(b), (f)(1) to conciliate discrimination claims before filing suit. The amicus brief was drafted by NELA Amicus Advisory Council Co-Chair Michael L. Foreman and the Civil Rights Appellate Clinic at the Pennsylvania State University’s Dickinson School of Law, which he directs, and NELA members Jocelyn Larkin and Robert Schug at the Impact Fund.

The case arose in 2008 when a rejected female applicant for a mining position filed a charge of discrimination with the EEOC, alleging that Mach Mining, which had never hired a woman for this position, refused to hire her based on her gender. After conducting an investigation, the EEOC found reasonable cause to believe Mach Mining had discriminated against a class of women who applied for mining-related jobs, and invited it to conciliate. From late 2010 to late 2011, … Read More

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NELA Amicus Brief: EEOC v. Abercrombie & Fitch Stores, Inc. (10th Circuit)

NELA filed an amicus brief in EEOC v. Abercrombie & Fitch Stores, Inc. in support of the U.S. Equal Employment Opportunity Commission’s petition for rehearing en banc before the U.S. Court of Appeals for the Tenth Circuit, in which the panel reversed a grant of summary judgment to the EEOC in this religious accommodation case, and granted summary judgment in favor of Abercrombie & Fitch. In a 93-page opinion, containing a strong dissent, the majority dismissed the plaintiff’s religious accommodation claim because she never informed Abercrombie that she wore her hijab for religious reasons and needed an accommodation for that practice due to a conflict between the practice and Abercrombie’s clothing policy. The assistant manager who interviewed the plaintiff, however, assumed she was a Muslim and wore a hijab for that reason. The plaintiff was never made aware of Abercrombie’s clothing policy, and thus was unaware of any conflict between that policy and wearing a hijab. The EEOC’s petition focuses on the Tenth Circuit’s creation of a rigid prima facie case requirement in this case, which is contrary to Tenth Circuit and U.S. Supreme Court precedent. Its brief also addressed the court’s requirement that the individual must be the source … Read More

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NELA Amicus Brief: Adams v. Festival Fun Parks (2nd Circuit)

NELA was joined by The Arc of the Unites States, the National Disability Rights Network, The Office of Protection and Advocacy for Persons with Disabilities, and Disability Rights Vermont on an amicus brief in this case to ensure that the U.S. Court of Appeals for the Second Circuit had a full understanding of the ADA Amendments Act’s (ADAAA) changes to the disability analysis and, when applying those changes, of the inherent nature of intellectual disability. Both are issues of first impression for the Second Circuit and both analyses were badly botched by the district court. Author: Brian East

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NELA Amicus Brief: Summers v. Altarum Institute Corp. (4th Circuit)

On July 14, 2013, NELA joined AARP in filing an amicus brief supporting Carl Summers, a contract statistician with Altarum Institute Corp. who sustained serious injury to both legs in 2011 accident, in his appeal to the U.S. Court of Appeals for the Fourth Circuit. Mr. Summers was terminated while recuperating from these injuries despite properly requesting an accommodation under the federal disability laws. Amici address several aspects of disability law not analyzed with clarity or precision by the district court, including the significance of enactment of the ADA Amendments Act of 2008 (ADAAA) as well as the issuance of revised regulations by the U.S. Equal Employment Opportunity Commission (EEOC) regarding the status of non-permanent medical conditions. In particular, the district court failed to properly analyze whether Summers was “substantially limited” in a “major life activity,” and whether Altarum “failed” to “reasonably” accommodate his injuries.

Authors: Daniel B. Kohrman, Brian East

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