Thursday, April 9, 2015

Virginia Becomes 19th State to Pass Workplace Social Media Password Privacy Law

In a continuing trend addressing social media in the workplace, Virginia has become the 19th state since 2012 when Maryland was the first state, to pass legislation protecting employees against employers seeking to gain entry to an applicant's or current employee's social media content.  More specifically, the law prohibits employers in Virginia from requiring, requesting, or causing a current or prospective employee to disclose the username and password to the individual’s social media account.  Additionally, the law also prohibits employers from requiring an employee to add another employee, a supervisor, or an administrator to the list or contacts associated with the individual’s social media account or changing the privacy settings.  

Wisconsin does provide similar protection for its applicants and employees (and also applies to educational institutions and landlords) pursuant to Wis. Stat. section 995.55 and allows for violations to be filed with the Equal Rights Division of the Wisconsin Department of Workforce Development  (Wis. Stat. section 106.54(10)).  

For more of a lay explanation, in Wisconsin, it is now illegal for a Wisconsin employer to request or require that an employee or applicant provide the employer with access to his/her personal Internet account.  More specifically, the law prohibits the following:

  1. Requesting or requiring an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account.

  2. Discharging or otherwise discriminating against an employee for refusing to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing a prohibited practice, filing a complaint or attempting to enforce any such right, or testifying or assisting in any action or proceeding to enforce any such right.

  3. Refusing to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.
Similar to Virginia's law, Wisconsin's law does NOT prohibit the following:

  1. Requesting or requiring an employee to disclose access information to the employer in order for the employer to gain access to or operate an electronic communications device supplied or paid for in whole or in part by the employer or in order for the employer to gain access to an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes.

  2. Discharging or disciplining an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization.

  3. Conducting an investigation or requiring an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred, or of any other alleged employment-related misconduct, violation of the law, or violation of the employer’s work rules as specified in an employee handbook, if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred.

  4. Restricting or prohibiting an employee’s access to certain Internet sites while using an electronic communications device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources.

  5. Complying with a duty to screen applicants for employment prior to hiring or a duty to monitor or retain employee communications that is established under state or federal laws, rules, or regulations.

  6. Viewing, accessing, or using information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain.

  7. Requesting or requiring an employee to disclose the employee’s personal electronic mail address.
The Wisconsin law also does not apply to a personal Internet account or an electronic communications device of an employee engaged in providing financial services, who uses the account or device to conduct the business of an employer that is subject to the content, supervision, and retention requirements imposed by federal securities laws and regulations or by the rules of a self-regulatory organization. Wis. Stat. § 995.55(2)(c)

5th Circuit Holds SIngle "Hitler Comment" and Subsequent Complaint Are Not Protected Activity Under Title VII

The plaintiff, Courtney Satterwhite, was hired by the City of Houston in 1993 as an Assistant City Controller I.  As of March 2010, Satterwhite had made her way to Assistant City Controller V.  Her coworker, Harry Singh, was the Deputy Director of the Controller's Office, but was not Satterwhite's direct supervise in March 2010.

During a March 22, 2010 meeting attended by Singh, Satterwhite, and others, Satterwhite asserts that Singh used the phrase “Heil Hitler,” while Singh maintains he said, “you know, we’re not in Hitler court.” After the meeting, Satterwhite informed Singh that another city employee, Daniel Schein, was offended by Singh’s remarks. Although Singh apologized to Schein and Schein declined to file a formal complaint, Satterwhite reported the incident to the Deputy Director of Human Resources, who reported it to the City’s Chief Deputy Controller, Chris Brown. Brown verbally reprimanded Singh. After his verbal reprimand, Singh approached Schein to inquire why he had reported the incident to Brown. Schein informed Singh that Satterwhite had reported the comment.

In June 2010, Singh was promoted to Acting Deputy City Controller and then became Satterwhite's direct supervisor.  In response to Singh's promotion, the City Controller’s Office and the City Office of Inspector General (OIG) received identical letters from two individuals claiming to be members of the Anti-Defamation League. The letter complained of the “Heil Hitler” incident involving Singh and Singh’s later promotion.  The OIG investigated and concluded Singh's comments violated an executive order of the mayor of Houston prohibiting city employees from using “inappropriate or offensive racial, ethnic or gender slurs, connotations, words, objects, or symbols.”

After becoming Satterwhite's direct supervisor, over the following several months, he disciplined Satterwhite on multiple occasions.  On September 21, 2010, Satterwhite sent Singh an email expressing his belief that Singh’s reprimands were retaliation for having reported the “Heil Hitler” incident. Shortly thereafter, Singh, pointing to Satterwhite’s verbal and formal reprimands, recommended to City Controller Ronald Green that Satterwhite be demoted.

Satterwhite was allowed to defend himself against the demotion recommendation at a hearing.  At this hearing, Satterwhite argued that Singh was retaliating against him for reporting the “Heil Hitler” incident.  However, Satterwhite was still demoted.  


Satterwhite subsequently filed a complaint with the EEOC, and after receiving notice of his right to sue, brought suit in the district court alleging unlawful retaliation under Title VII and the TCHRA. The district court granted summary judgment to the City because Satterwhite could not establish that his reports of the “Heil Hitler” incident were a but-for cause of the demotion.  The Court of Appeals for the Fifth Circuit Agreed and Affirmed.

The 5th Circuit's Decision


To set out a prima facie case of retaliation under Title VII, an aggrieved employee must show: “(1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action.” 

The district court granted summary judgment because they held Satterwhite could not establish the third element: a casual link between the protected activity and the adverse employment action, but the 5th Circuit affirmed because they held Satterwhite had not shown the first element: he engaged in an activity protected by Title VII.


Satterwhite asserts that he engaged in two distinct protected activities: (1) making an oral report to human resources that Singh used the phrase “Heil Hitler” in a meeting, and (2) answering questions in connection with the OIG’s investigation of the “Heil Hitler” incident. While Satterwhite’s actions could qualify as opposing under 42 U.S.C. § 2000e-3(a),  for his actions to be protected activities Satterwhite must also have had a reasonable belief that Singh’s comment created a hostile work environment under Title VII. 

The 5th Circuit held that "no reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII."  As case law has made clear in the past, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII.  

The case is Satterwhite v. City of Houston, No. 14-20240, Fifth Circuit Court of Appeal (March 3, 2015).
 
 
 
 

Tuesday, April 7, 2015

NLRB Holds Employer Who Terminated Employee Who Called Manager a "Nasty Mother F&$#@!" on Facebook Violated NLRA

A case catching some major headlines lately involves a catering company in Manhattan, New York who was found to have committed labor law violations under the National Labor Relations Act (NLRA) when they terminated an employee who took to Facebook to call his boss a "nasty mother ----".  This may sound surprising to many people, but as I often tell people and prospective clients: "the devil is in the details."

Facts

Beginning around January 2011, many employees at the catering company began expressing interest in unionization due to increasing concerns about how they were being treated by management.  In March, the employees presented a petition concerning their ongoing complaints about management mis- treatment to Director of Banquet Services Jeffrey Stillwell. The petition included complaints that the Respondent’s managers and captains “take their job frustration [out on] the staff” and “don’t treat the staff with respect.”  

Just two (2) days before the union election in October, 13-year employee Hernan Perez was working as a server at a fundraising event in the Respondent’s Lighthouse venue. During cocktail service, as Perez and two other servers were silently butlering drinks, Assistant Director of Banquets Robert McSweeney approached them and said, in a loud voice, while pointing to the arriving guests, “Turn your head that way and stop chitchatting.” Shortly thereafter, while Perez, Evelyn Gonzalez, and Endy Lora were waiting for the signal from the captain to clear the plates from the appetizer course, McSweeney rushed to them, swung his arms to indicate that they should spread out, and said, in a raised, harsh tone, “Spread out, move, move.” After the employees complied, McSweeney, in a louder voice, audible to guests, ordered the employees to spread out more. McSweeney was one of the managers specifically identified by employees as treating employees disrespectfully.

Perez was incredibly upset with this incident and Gonzalez, who was the head of the employees' organization effort, tried to calm Perez down, citing that the election was only a couple days away.  However, Perez vented his frustration with McSweeney’s treatment of the servers by posting from his iPhone the following message on his personal Facebook page:

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! 
Perez’s post was visible to his Facebook “friends,” which included some coworkers, and to others who visited his personal Facebook page. Perez deleted the post on October 28, the day after the election.  However, Perez's employer still became aware of the post, and, after speaking to some of the individuals associated with the post, decided to terminate Perez's employment, citing violation of company policy.  However, when requested, the managers declined to provide the policy or explain the basis for the termination.

Perez subsequently lodged a charge with the NLRB, and a hearing was held before an administrative law judge who found in favor of Perez, which the 3-panel NLRB (2-1) upheld holding that the employer violated Sec. 8(a)(3) of the NLRA, along with Sec. 8(a)(1) after its employees selected a union as exclusive bargaining representative, by (1) threatening them with the loss of current benefits, job loss and discharge, and job loss due to lost business, and informing employees that bargaining would start from scratch; and (2) disparately applied a “no talk” rule.

In reaching this decision, the law judge considered the following factors instead of the four-factor test in Atlantic Steel Co., 245 NLRB 814 (1979)

(1) whether the record contained any evidence of the employer’s antiunion hostility; 
(2) whether the employer provoked the employee’s conduct; 
(3) whether the employee’s conduct was impulsive or deliberate; 
(4) the location of the Facebook post; 
(5) the subject matter of the post; 
(6) the nature of the post; 
(7) whether the employer considered language similar to that used by the employee to be offensive; 
(8) whether the employer maintained a specific rule prohibiting the language at issue; and 
(9) whether the discipline imposed upon the employee was typical of that imposed for similar violations or disproportionate to his offense. 

Here, the ALJ found that none of these factors weighed in favor of finding that the employee’s comments were so egregious as to take them outside the protection of the Act.

Board's Decision

In affirming the ALJ's decision, the Board found that, "vulgar language is rife in the Respondent’s workplace, among managers and employees alike. For example, the Respondent’s executive chef, Phil DeMaiolo, cursed at employees daily, screaming profanities such as “motherfucker” and asking employees questions like “Are you guys fucking stupid?”  More vulgar and explicit examples were cited in the Opinion, which I will not cite here.

The Board also agreed with the ALJ that “Perez’ Facebook comments were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment on the part of Respondent’s managers, including McSweeney.” Toward that end, Perez’ Facebook posting protested such mistreatment and exhorted employees to “Vote YES for the UNION.”  The Board further agreed with the ALJ that Perez’s comments were not so egregious as to exceed the Act’s protection, however, they did make a point to write that they do not condone Perez's speech.

The case is (Pier Sixty, LLC, March 31, 2015).
 
 
 

Wednesday, April 1, 2015

Wisconsin Republicans Pushing Legislation to Make Enforcement of Restrictive Covenants Easier to Enforce

Earlier this month, State Republicans introduced Senate Bill 69 and companion bill, Assembly Bill 91 (legislation), a measure that would repeal Wisconsin Statute section 103.465, which applies to contract provisions that restrict competition by employees after the termination of an employment relationship--usually referred to as noncompete agreements.  

Wis. Stat. sec. 103.465 currently reads:

Restrictive covenants in employment contracts. A covenant by an assistant, servant or agent not to compete with his or her employer or principal during the term of the employment or agency, or after the termination of that employment or agency, within a specified territory and during a specified time is lawful and enforceable only if the restrictions imposed are reasonably necessary for the protection of the employer or principal. Any covenant, described in this section, imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable restraint.

The proposed legislation would make drastic changes to make restrictive covenants substantially easier to enforce as Wisconsin currently does not favor such restrictive covenants as the current policy is to encourage employment, not stifle it.  This policy became solidified in the Wisconsin Supreme Court's landmark decision in Star Direct, Inc. v. Eugene Dal Pra2009 WI 76, 767 N.W. 2d 898, 319 Wis.2d 274.  

Though it's not clear how the final legislation would look like, if passed, the key highlights of the legislation as drafted are:

  • Excludes from the definition of "restrictive covenant" two types of agreements:  certain confidentiality agreements that apply to confidential information that is not competitively valuable, and certain employee non-solicitation agreements.
  • Provides guidance for courts in the form of 3 factors on when to find a restrictive covenant is reasonable and supported by sufficient consideration as current law and case law still makes it difficult for lawyers and judges to fully determine when a restrictive covenant may be considered unreasonable and unenforceable.  (Note:  The issue of whether consideration in addition to continued employment is required to support a covenant not to compete entered into by an existing at-will employee is currently before the Wisconsin Supreme Court in Runzheimer International, Ltd. v Friedlen.)
  • "Legitimate business interest" to support enforcement of a restrictive covenant would include:  a business' trade secrets, confidential information, substantial relationships with existing and potential customers, goodwill associated with a specific geographic location, and unique extraordinary, or specialized training provided by a business as a result of the employment relationship.
  • Determination of reasonable necessity of restraint.   4 factors are provided to consider when determining whether a restraint is reasonable and includes rebuttable presumptions that a court is required to apply.
  • "Blue penciling" now allowed.  Currently, if any of the known 5 criterion are deemed unreasonable, the restrictive convenient is void in its entirety.  This legislation does away with this precedent and allows blue-penciling by allowing a court to modify the restrictive covenant so it is reasonable.
Stay tuned!

Tuesday, March 31, 2015

Map of States that Explicitly Ban Discrimination in Employment of LGBT Community

In light of all the events taking place in Indiana regarding their Religious Freedom Restoration Act law passing, people might be interested to know which states have laws that protect the LGBT community in their employment as no such law exist at the federal level due to the Employment Nondiscrimination Act (ENDA) constantly being stalled and shelved.

As most people may be aware, Wisconsin, under the Wisconsin Fair Employment Act (WFEA), does provide protection, but only for "sexual orientation," not gender identity.


4th Circuit Holds Social Anxiety May Be Disability Under the ADA

As most employment lawyers are aware, the Equal Employment Opportunity Commission (EEOC), as the administrative agency entrusted as experts in enforcing the nation's anti-discrimination laws, often issues writings like compliance letters, enforcement guides, etc where they often take positions on how to apply the law in certain situations.  Toward that end the EEOC defined the “ability to interact with others” as a major life activity, bringing social anxiety disorder into the scope of protection afforded by the Americans with Disabilities Act (“ADA”).  Recently the Court of Appeals for the Fourth Circuit agreed in Jacobs v. N.C. Admin. Office of the Courts, No. 13-2212 (4th Cir. Mar. 12, 2015).

The plaintiff, Christina Jacobs, had been promoted to be one of 30 deputy clerks where she was assigned to assist customers at the front counter, a job assigned usually to the most junior deputy clerks. While in this assignment, she began to experience extreme stress and panic attacks stemming from her previously-diagnosed social anxiety disorder.  Logically, Jacobs then went to her supervisor about her health issues, along with her social anxiety disorder.  The supervisor suggested Jacobs seek treatment and then informed her own supervisor about the issue.  Jacobs did seek treatment, but then sent an email to her three supervisors that once again disclosed her disability and asked for an accommodation. The employer never acted on the accommodation request and then terminated Jacobs three weeks later for allegedly poor performance and filed a charge with the EEOC claiming the firing was in retaliation for the accommodation request.  The lower district court granted summary judgment on all counts alleged.

In addition to the employer losing their argument that social anxiety disorder isn't a disability under the ADA, the employer also could have easily accommodated Jacobs given she was one of 30 deputy clerks with the same title and job description, where only 4-5 of those clerks were assigned to front desk work.  The other 25-26 clerks performed work that did not require interaction with the public as the front desk position was one more of seniority than it was of skill.  Thus, the likelihood of the employer showing undue hardship was weak.  

The employer also failed miserable in showing their legitimate nondiscriminatory reason for terminating Jacobs because they had next to no documentation of her alleged poor performance.  The witnesses for the AOC testified that Jacobs had performance issues and was a poor employee long before she received assignment to the front counter, but the AOC had no documentation to back any of it up.  However, it appears those witnesses were rather unpersuasive.

Tuesday, March 24, 2015

EEOC Settles ADA Case Against Employer Who Did Not Offer Medical Leave to Probationary Employees

The Equal Employment Opportunity Commission (EEOC) has announced it has settled a disability discrimination lawsuit against a Pennsylvania pipe-fitting manufacturer, Exeflow USA, Inc., for $65,000 when they failed to provide medical leave to a U.S. Marine Corps veteran, Adam Brant, when he experienced seizures caused by service-related disabilities.  EZEFLOW USA denied the request because Brant was still a probationary employee.

EZEFLOW USA did, however, offer up to 26 weeks of paid leave to non-probationary employees.  Probationary employees are not eligible for leave under the Family and Medical Leave Act (FMLA), but the EEOC has long held that the Americans with Disabilities Act (ADA) covers probationary employees, who are entitled to accommodations under the ADA.

This case again highlights the importance for employers to review requests for medical leave on an individualized basis and not apply universal rules and policies to all requests.  This interactive process is crucial for determining whether the employee's absence will affect the company's operations.  Although here the requested leave was of a specific duration, if no time frame is given, employers should explain to the employee how his absence would impinge on their business. Employers should then request a reasonable estimate of when the employee will be able to resume his essential job functions — with or without an accommodation — to enable them to better assess whether leave can be provided as a reasonable accommodation, or would impose an undue hardship on the employer. Unfortunately, there is no bright line rule outlining the length of leave employers must grant as an ADA accommodation. Instead, the ADA requires this individualized interactive process for each employee requesting leave.

The case was EEOC v. EZEFLOW USA, Inc., Civil Action No 02:14-cv-527

Former Twitter Enginner Files Sex Discrimination Suit

A former female engineer, Tina Huang, for popular social media website, Twitter, has filed a proposed class action lawsuit alleging that Twitter’s promotion process unfairly favors men.  Huang alleges, among other things, that Twitter has no formal promotion process and relies on a "shoulder tap" custom, which explains why few women are in higher-level positions with the company.

This lawsuit is just one of a few made by former female employees at these popular websites as Time magazine reports:

The lawsuit against Twitter follows similar claims made against Facebook last week by Chia Hong, who accused Facebook of wrongful termination in 2013 after allegedly being harassed based on her gender, race and Taiwanese nationality. Facebook has denied Hong’s accusations.

Hong’s lawyers are also involved in a similar case against venture capital firm Kleiner Perkins, which former employee and current interim Reddit CEO Ellen Pao sued for gender discrimination. A judge upheld Pao’s claims on Saturday, saying “There is sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional gender discrimination.”

Tuesday, February 10, 2015

EEOC Releases Fiscal Year 2014 Enforcement and Litigation Data

It's available here.  From the EEOC press release on the 2014 data:

The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings--which included the period of the shutdown--were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC's Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.
  • Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
  • Race (including racial harassment): 31,073 (35 percent)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
  • Disability: 25,369 (28.6 percent)
  • Age: 20,588 (23.2 percent)
  • National Origin: 9,579 (10.8 percent)
  • Religion: 3,549 (4.0 percent)
  • Color: 2,756 (3.1 percent)
  • Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII's sex discrimination provision
  • Genetic Information Non-Discrimination Act: 333 (0.4 percent)
  Here is the data for Charges filed in Wisconsin.

EEOC Loses Pattern-or-Practice Claim, Allowed to Pursue Individual Prayer Break Religious Discrimination Claims

In April 2011, the Equal Employment Opportunity Commission ("EEOC") filed a joint Bifurcation Agreement to bifurcate discovery and trial into two (2) phases:  Phase I involved the EEOC's pattern-or practice claims, and Phase II were for all individual claims for relief, and "[a]ny claims for which no pattern or practice liability was found in Phase I and any claims not tried in Phase I shall be tried under the traditional McDonnell-Douglas burden-shifting paradigm [in Phase II], including all claims of harassment/hostile work environment, as well as "[I]ndividual entitlement to back pay, compensatory, and punitive damages."

A trial was held on the EEOC's pattern or practice claims May 7-17, 2013.  At the close of evidence, the defendant, JBS USA, LLC ("JBS"), made an oral motion for judgment on partial findings pursuant to FRCP 52(c) and the Court concluded that although the EEOC established a prima facie case of denial of religious accommodation, the requested accommodations imposed an undue burden on JBS.  Thus, JBS argued that the Court's Findings of Fact and Conclusions of Law in Phase I preclude the individual Plaintiffs from pursuing claims of religious discrimination and retaliation in Phase II. 

In arguing for issue preclusion, JBS pointed out that the Court found that (a) JBS did not discipline or discharge any of its Muslim employees for praying, and (b) Somali-Muslim employees who left the plant the night of September 18, 2008, were terminated for withholding work and violating the Collective Bargaining Agreement ("CBA").  Thus, JBS asserted, these findings establish that its reason for terminating the employees was legitimate and nondiscriminatory, and preclude Plaintiffs from pursuing claims that they were terminated or otherwise retaliated against for requesting religious accommodation.  Furthermore, because the Court concluded the Plaintiff's requested religious accommodations would impose an undue hardship on JBS, JBS argued that they did not unlawfully deny Plaintiffs' requested religious accommodations.

Issue Preclusion

The opinion obviously discussed the 5 elements a party must show in order for issue preclusion to be found.  The Court then found that (1) the EEOC and the Individual Plaintiffs were in privity during Phase I, (2) the issue raised in the second proceeding was raised in the first proceedings by the party sought to be precluded and the fact that Phase II is to be analyzed under a different analytical framework (Teamsters pattern or practice analysis vs. McDonnell Douglas framework) has no bearing on whether issue preclusion apples, (3 & 5 were discussed jointly)  the issue of undue hardship were fully-litigated in Phase I and will not be re-litigated in Phase II.  However, with respect to employee discipline and reasons for termination, the Court held that they did not make a thorough and meaningful assessment of whether any Plaintiff suffered an adverse employment action as the result of discrimination or retaliation, because such claims were outside the scope of Phase I. 

Failure to Conciliate

JBS moved for summary judgment to dismiss the EEOC's three Phase I pattern or practice claims on the grounds the EEOC had failed to satisfy the conciliation requirement prior to bringing the lawsuit as case law and statute states, "The EEOC may bring a direct suit against an employer only after it has attempted to conciliate in good faith but failed to reach an agreement."  EEOC v. Trans State Airlines, Inc., 462 F.3d 987, 996 (8th Cir. 2006) (citing 42 U.S.C. sec. 2000e-5(f)(1); Johnson v. Nekoosa-Edwards Paper Co., 558 F.2d 841, 848 (8th Cir. 1977)).  The Court found that the EEOC's conciliation efforts allow it to avoid dismissal.

The Court also noted that since the time the Court first considered this issue, a circuit split has arisen as to whether failure to conciliate is an affirmative defense and the Supreme Court has granted certiorari on the question of "[w]hether and to what extent may a court enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit?"  Thus, the Court decided not to resolve the issue at this time, but did not preclude JBS from reasserting its position after the Supreme Court issues its opinion in Mach Mining, LLC v. EEOC.

The case is EEOC v. JBS USA, LLC, No. 8:10-CV-318 (D. Neb. Jan. 28, 2015),