Seyfarth Synopsis: In recent years, a body of law has developed surrounding pattern or practice lawsuits brought by the EEOC. This has helped to clarify, for example, when the 300-day filing cutoff applies, or whether the claimant is eligible for damages as opposed to just equitable relief. In a recent decision out of the Western District of Oklahoma, yet another court has expanded the breadth of knowledge surrounding EEOC pattern or practice lawsuits, explaining that the continuing violation exception can toll Section 706’s timely filing requirement.
Horizontal Well Drillers (“HWD”), is an oil and gas drilling company. Between January 1, 2012, through June 30, 2014, job applicants to HWD were required to submit information on age, family and personal health history, doctors’ care status, prescription drug use, and other health inquiries. HWD also sought information regarding applicants’ workers’ compensation histories, preferring to hire people with no history of workers’ compensation injuries or claims.
Wilbert Glover (Plaintiff-Intervenor), applied for a drilling position with HWD on January 11, 2013. He passed the rigorous health and background screenings and the HWD doctor who conducted his new hire medical exam concluded that he was medically qualified to perform the job. HWD, however, terminated Mr. Glover’s employment shortly after completing his new hire medical exam because of his high blood pressure.
Mr. Glover filed a charge of discrimination with the EEOC on or around April 1, 2013, alleging that his termination violated the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The EEOC requested relevant records from HWD and expanded the scope of the investigation to include all applicants hired and not hired from January 1, 2012 through June 30, 2014. (Notably, June 30, 2014 was also when HWD removed the “Applicant and Family Health, Worker’s Compensation, and Disability Pension history questions” from its application.) After its investigation, the EEOC found reasonable cause to believe that HWD violated the ADA, GINA, Title VII, and the Age Discrimination in Employment Act (“ADEA”).
Consequently, the EEOC (as Plaintiff) filed a class action lawsuit against HWD alleging various claims, including (i) pattern or practice of discriminatory failure to hire in violation of the ADEA; (ii) pattern or practice of discriminatory failure to hire in violation of the ADA; (iii) unlawful disability inquiry in conducting workers’ compensation background checks, in violation of the ADA; and (iv) unlawful post-hire medical exam, in violation of the ADA. Thereafter, Glover intervened as a party, alleging claims under the ADA and GINA.
HWD filed a motion to dismiss on various grounds. Our discussion focuses on HWD’s argument that the 300-day limitations period should bar recovery for putative class members who allege ADA failures to hire before June 5, 2012 and from putative class members who allege ADEA failures to hire before February 7, 2014.
A primer on HWD’s limitations argument
Title VII — 42 U.S.C. § 2000e-5(e)(1) (“Section 706”) (and which the ADA and ADEA follow on this point) — states that a charge of discrimination shall be filed within 300 days after the alleged unlawful employment practice has occurred.
Because Mr. Glover filed his charge with the EEOC on April 1, 2013, HWD argued that to obtain relief, any purported class member must have experienced discrimination within 300 days of that date, i.e. June 5, 2012, at the earliest. According to HWD, any alleged discrimination occurring prior to that date was time-barred and argued a number of other procedural reasons why the EEOC’s claims were not appropriate. The EEOC took the opposite position, arguing that it was alleging a “pattern or practice” of discrimination on behalf of aggrieved individuals. And, because this was a continuing violation, the June 5, 2012 cutoff did not apply. [Recall that if the “continuing violation” doctrine applied, individuals who experienced discrimination prior to the 300-day cutoff could still obtain relief through the EEOC’s claim if part of the violation fell within the 300-day window.]
The Court’s analysis of HWD’s limitations argument
The District Court reached three distinct conclusions – all in favor of the EEOC:
First, the Court held that while Sections 706 and 707 were intended to address different forms of discrimination with unique remedies, the EEOC can use a pattern or practice theory to recover on behalf of aggrieved individuals under both Sections.
Second, the Court agreed with the EEOC that the continuing violation exception can toll Section 706’s timely filing requirement for pattern-or-practice claims.
Finally, although it was too early to determine whether the EEOC met its burden of proving that HWD’s conduct was indeed a continuing violation, the Court determined that the EEOC’s claim survived HWD’s motion to dismiss for two reasons:
- The subject matter of the discrimination remain unchanged with regard to the ADA claim: the EEOC alleged that HWD used applicants’ workers’ compensation history to perpetuate a pattern or practice of discriminatory failure to hire based on disability. Similarly, the subject matter of the discrimination also remained unchanged with regard to the ADEA claim – the EEOC alleged that HWD subjected applicants to improper hiring practices based on their age (40 and above).
- The discrimination occurred frequently – the EEOC alleged that HWD routinely performed these background searches on all applicants before the interview and hired applicants with significantly lower workers compensation injury and claims histories. The EEOC also alleged frequency with regard to HWD’s failure to hire applicants who were 40 or older.
It remains to be seen whether the EEOC would meet its burden to demonstrate that there was indeed, a continuing violation. But for now, the Court has denied HWD’s motions to dismiss claims of EEOC class members for ADA failures to hire before June 5, 2012 and for ADEA failures to hire before February 7, 2014.
Takeaways for Employers
This is an important decision for employers, especially those sued in the Tenth Circuit as this could result in a significant increase in the number of aggrieved individuals who claim membership in an EEOC pattern-or-practice class. Employers are also now potentially exposed to a wider range of relief (including compensatory and punitive damages) – not merely equitable relief – for pattern and practice suits brought by the EEOC.
For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.