'Fire all the bullets now': EEOC enforcements surge

The Equal Employment Opportunity Commission launched an especially large crop of enforcement actions Wednesday. The agency filed at least nine cases nationwide, which is far more than its average of less than one case filed per day.

Most of the cases focused on gender discrimination, but two of the suits alleged pregnancy discrimination and two others alleged mistreatment of transgender employees. The jump in volume of cases filed could be related to the upcoming election, said Douglas Diaz, a labor and employment lawyer at Archer & Greiner in Voorhees, New Jersey.

“There is a presidential election. Perhaps there’s some concern of ‘fire all the bullets now, in case someone else gets elected’ that they may not want to get elected, and that person changes things,” Diaz said. “If Trump was to win, and I don’t think this will happen, but they would have to say to the court, ‘we’re going to withdraw if Trump was away,’ and I don’t think this will happen, but they would have to then say to the court, ‘we’re now going to withdraw the claim.’ I guess that could happen. I would doubt it,” Diaz said.

The surge in cases could also be related to the arrival, in October 2023, of EEOC General Counsel Karla Gilbride, Diaz said.

President Joe Biden selected Gilbride after firing the agency’s previous general counsel, Trump appointee Sharon Gustafson.

‘Push towards affirming LGBTQ rights’

The prevalence of cases brought by the EEOC claiming violations of transgender rights is also notable, said Diaz, since such cases were rare a few years ago.

The new emergence of transgender discrimination suits stems from the 2020 U.S. Supreme Court decision in Bostock v. Clayton County, which said Title VII of the Civil Rights Act protects employees based on sexual orientation and gender identity, Diaz said. The arrival of Gilbride is also a likely factor in an uptick in discrimination suits based on sexual orientation and gender identity, he said.

“I think the EEOC has had, at least in the past year, if not a couple years, more of a push towards affirming LGBTQ rights,” Diaz said.

Diaz has noticed a similar uptick in LGBTQ employment discrimination suits by private attorneys, he said.

“We’re seeing more of that in the workforce, especially with [claims that co-workers fail to address transgender people with their preferred] pronouns. It used to be bathrooms—there was a big issue for a while about gender-neutral bathrooms, but now we’re seeing more and more cases with pronouns,” Diaz said. “There have been some splits in the courts on the issue, but the EEOC has affirmatively come out and said that if you refuse to use the pronoun the person wants to use, that’s discriminatory.”

Adam Chotiner, a labor and employment lawyer at Shapiro, Blasi, Wasserman & Hermann in Boca Raton, Florida, said the one-day uptick in filings might be a coincidence, or it might be related to the presidential election.

“It could be that they wanted to sort of get the ball rolling on these cases before the presidential election—you know, an indication that things might change,” Chotiner said.

As for the filing of pregnancy-related suits, the EEOC has been eager to pursue claims under the Pregnant Workers Fairness Act, which was signed into law in 2022 and prohibits discrimination and ensures workplace accommodations for workers with known limitations related to pregnancy, childbirth, or a related medical condition, said Chotiner.

“They want to get the word out there—they want employers to know what’s out there. They want individuals to know they have rights that they didn’t previously have under that law. So the fact that there’s pregnancy-related claims is not surprising at all,” Chotiner said.

“I think the bigger takeaway is not so much the timing, but I think the subject matter is the takeaway, because those are definitely areas the EEOC has made it a point to focus on, particularly, the pregnancy discrimination claims under the new law has been undoubtedly a point of significant focus,” Chotiner said.

Gender discrimination

In the Western District of Texas, the agency brought gender-discrimination claims against Benson Enterprises, a holding company that owns car dealerships. The suit alleges that Rebecca Owen and Tammie Faulkner-Taylor, who worked as service advisers, were subject to disparate treatment based on their gender.

According to the suit, Owen, who worked on commission, suffered a loss of income because her boss directed her clients to male service managers and allowed other service managers to say Owens no longer worked there, even while she was still employed, the suit claims.

The suit also alleges Owen and Faulkner-Taylor, the only women service advisers, were excluded from communications about monetary bonus competitions that circulated among other service advisers.

In the Middle District of North Carolina, the EEOC brought claims of gender discrimination in hiring against Battleground Restaurants Inc., the operator of 19 restaurants in North Carolina, Tennessee and Virginia under the name Kickback Jack’s.

The suit alleges about 3% of servers at the restaurants are male, and some restaurants did not employ any male servers. The restaurant’s unlawful practices have resulted in a pattern or practice of failing to hire male applicants, a protected class under Title VII, the suit said.

In the Northern District of Illinois, the agency sued Reggio’s Pizza over its treatment of a transgender employee at a location at O’Hare Airport in Chicago.

The suit alleges that the aggrieved individual complained to the company that a manager revealed to other employees that she is transgender. After she was outed, co-workers repeatedly referred to her as a male and used male pronouns. The suit claims that the co-workers’ conduct by prompted a customer to comment about the aggrieved individual, who is also Black, with offense terms for Blacks and gays. She was fired after complaining to a manager about the harassment, the suit claims.

In the Western District of New York, the EEOC brought suit against hotel operators Boxwood Hotels, Sandalwood Hotels, Star Hotels, Bradford Hotel, Hamburg Hotel, Hamburg Lodging, Falls Hotel and Rosewood Hotels. The companies, which operate properties under names such as Holiday Inn Express, Hampton Inn & Suites and La Quinta Inn, subjected employee Dylan Bringuel to a hostile work environment because of Bringuel’s transgender status.

Related: EEOC suit: Employers auto-rejecting applicants who fail background check

Bringuel, who worked as a housekeeper, was subject to slurs, antitransgender statements and misgendering and Bringuel’s manager laughed and terminated Bringuel after Bringuel reported the harassment, the suit claims.

In Minnesota federal court, the EEOC sued the St. Cloud-area YMCA over alleged sexual harassment of female employees. The suit says a manager repeatedly propositioned an employee for sex, which was unwelcome, and subjected others, including teenagers, to offensive and inappropriate sexual comments about their bodies.

In Maryland federal court, the agency sued DR Horton over alleged disability discrimination against a worker with neuropathy that made it uncomfortable for her to drive a car. The employee, Afiya Watkins, a sales representative for new homes, sought accommodation of her disability in the form of an assignment to a worksite close to her home. But the company assigned Watkins to a worksite that was a two-hour drive from her home, subjecting her to severe pain from the long commute, the suit claims.

In Oklahoma Northern District Court, the EEOC sued Urologic Specialists of Oklahoma on behalf of Juliann Walling over its failure to accommodate her pregnancy-related limitations. Walling, a medical assistant, had a job that required her to spend most of her time on her feet, but while pregnant she experienced swelling in her legs and feet, the suit claims.

On June 27, 2023, when the PWFA went into effect, Walling again asked her bosses for an accommodation but was placed on unpaid leave. Later, after she delivered her baby, Walling discussed returning to work but when she asked for lactation breaks every two hours, she was told she could not be guaranteed she would be provided breaks, the suit says.

In  Alabama Northern District Court, the agency sued Polaris Industries over alleged pregnancy discrimination. The charging party worked on an electric vehicle assembly line and notified her employer that she was pregnant when she was hired, the EEOC said.

During the employee’s 60-day probationary period, she was not allowed to take sick leave, but she missed time from work due to nausea, swelling feet, aching joints and gestational diabetes, the suit claimed. Anyone with more than two unexcused absences during the probationary period was subject to termination, the suit said.

She asked to have her work schedule limited to 40 hours per week, and a company occupational nurse approved the request, but the human resources manager refused to accommodate that request, the suit claimed.

In the Eastern District of Tennessee, the EEOC sued Shimmick Corp. over allegedly retaliating against an employee for participating in an investigation into gender bias. The company gave a woman employee, Lindsey Potts, fewer hours and ultimately terminated her for participating in an investigation that was prompted by complaints from another woman employee, the suit claims.

Shimmick is a construction company that is the prime contractor on the U.S. Army Corps of Engineers Chickamauga Lock Replacement Project in Chattanooga, Tennessee, the suit says. Potts was subject to gender-based slurs from male employees at the jobsite, the suit claims.

These actions were surfaced by Law.com Radar, which delivers artificial intelligence-enhanced case summaries and daily case reports from more than 2,200 state and federal courts. Click here to get started and be among the first to act on opportunities in your region, practice area or client sector.