Akin Gump partner Don Livingston is a former EEOC GC who's literally written the book on EEOC litigation. He recently got a high-profile appellate win for client Freeman in a case testing the EEOC's policy guidance on background and credit checks—in which the 4th Circuit strongly confirmed a lower court's dismissal after the EEOC used statistically faulty evidence. On the heels of the case, we asked Don about other hot topics to watch in employment law.
The migration of lawyers from employment discrimination cases to wage-and-hour cases filed by plaintiffs' lawyers has created a proliferation of cases brought under the Fair Labor Standards Act and a decline in large employment discrimination cases sought. Some at the EEOC believe it has a responsibility to step into that void and bring more cases with a national impact.
In the employment discrimination field, there continues to be an open issue as to what rules apply in proving a pattern of discrimination in the wake of the Supreme Court ruling in Wal-Mart Stores Inc. v. Dukes.
Don hears frequently from people at the EEOC that sexual harassment continues to be a significant problem in the workplace.
Gaining traction is the significant issue of whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, also protects persons with gender-identity claims. The EEOC has taken the view that Title VII does provide such protection but traditionally the statutes haven't been interpreted that way. Don suspects Congress will take care of that at some point.
