Bloomberg Law
Dec. 30, 2022, 10:15 AM

Five Times the EEOC Joined Court Battles to Help Workers in 2022

J. Edward Moreno
J. Edward Moreno

In 2022 the US Equal Employment Opportunity Commission has been pushing appeals courts to take on broader interpretations of protections for workers facing alleged workplace discrimination.

The agency filed around two dozen amicus briefs during the year, most of which chimed in on cases related to retaliation and gender discrimination. Retaliation is the most common type of charge the EEOC receives, with 56% of the charges filed in fiscal year 2021 containing some allegation of illegal backlash.

Generally, the EEOC appeared eager to weigh in on cases where lower courts interpreted worker protections too narrowly or where circuit courts have precedents that don’t align with the agency’s interpretation of civil rights law.

Amicus briefs are presented to the commission by the EEOC general counsel’s office and require a majority vote approval. For most of 2022 the commission has had a Democratic chair, Charlotte Burrows, and a Republican voting majority, bringing a bipartisan flavor to its amicus filing decisions.

Here are five briefs from the EEOC that stood out this year:

Frank v. Heartland Rehabilitation Hospital, LLC – Retaliation

The EEOC weighed in on nine cases seeking to expand a plaintiff’s right to bring a retaliation claim this year, making it the second most popular amicus brief “basis” for the agency in 2022 by its own count.

In one such case, Frank v. Heartland Rehabilitation Hospital, LLC, the US Court of Appeals for the Tenth Circuit will decide what threshold a former nursing assistant must reach to prove that a two-week quit-or-be-fired ultimatum following her internal sexual harassment complaint amounts to retaliation.

In its amicus brief filed May 4, the EEOC argued that the lower court should have applied the US Supreme Court’s Burlington Northern & Santa Fe Railway Co. v. White ruling, which said employers can be liable for conduct that would discourage workers from engaging in protected activity like reporting bias or retaliatory harassment claims. The EEOC was allowed to participate in oral arguments in favor of the plaintiff, Tracie Frank.

The lower court ruled against Frank, applying the higher standard set in Daniels v. United Parcel Service Inc., which requires her to demonstrate an adverse employment action.

“Rather than asking whether Heartland’s allegedly retaliatory actions effected a significant change—or any change—in Frank’s employment status or benefits, the district court should have asked only whether they could have deterred a reasonable employee in Frank’s position from making a harassment claim,” the EEOC said in its brief.

Garcia v. Beaumont Health Royal Oak Hospital— Gender, Retaliation

Gender-based discrimination claims were the most frequent basis for the EEOC’s amicus filings this year, as the agency placed 11 cases in this category.

In the Garcia case, a respiratory therapist reported an incident in which a co-worker sexually harassed her in the break room. The complaint took too long to investigate and Kristina Garcia faced hostility from her co-workers, ultimately leading her to resign, according to her lawsuit filed in the US District Court for the Eastern District of Michigan.

She sued the hospital alleging that it didn’t adequately respond to her complaint because she is a bisexual woman who was harassed by another woman and that it allowed her alleged harasser to retaliate against her by telling co-workers she lied about the incident.

The district court granted summary judgment in favor of Beaumont because the judge said the hospital wasn’t deliberately trying to oust her.

In an amicus brief filed May 25, the EEOC told the Sixth Circuit that the lower court applied the wrong standard, pointing to the Supreme Court’s 2016 decision in Green v. Brennan, which said that a constructive discharge claim can move forward under Title VII of the 1964 Civil Rights Act as long as the conditions are “so intolerable that a reasonable person would resign.”

Sharp v. S&S Activewear, LLC – Gender

A few weeks later, the commission weighed in on another notable gender discrimination case in the Ninth Circuit, this one involving songs played in the workplace.

A group of Nevada warehouse workers sued S&S Activewear LLC for “sexually graphic and misogynistic” music that allegedly was regularly played by managers and other employees.

But because both women and men were offended by the music the plaintiffs failed to state a claim, a Nevada federal judge ruled in Dec. 2021.

The judge said Oncale v. Sundowner Offshore Services, the landmark 1998 Supreme Court ruling that first recognized that sexual harassment can be directed at workers of the same sex, requires the conduct to be targeted. But the music in S&S Activewear couldn’t have been targeted because it was played in front of both male and female workers, according to the judge.

The EEOC argued in a June 15 amicus brief that targeting is not required, and in this situation the offensive language used in the music was gendered and could support a female plaintiff’s discrimination claim.

“Even if an employer exposes men and women alike to the same offensive material, such material can support a female plaintiff’s claim of sex-based discrimination where it is degrading to women,” the EEOC said in its brief.

Hamilton v. Dallas County — Gender

Female detention officers in 2019 sued a Dallas County, Texas, jail over its gender-based scheduling policy that they claimed only allowed male officers to take full weekends off.

The case’s dismissal by the lower court was affirmed by an appeals panel because Fifth Circuit precedent requires a plaintiff to plead that they suffered an “adverse ultimate employment action,” such as hiring, promotion, or discharge. The full Fifth Circuit in October agreed to rehear the case en banc.

The EEOC, along with the Justice Department, asked the Fifth Circuit in a Nov. 23 amicus brief to strike this precedent, arguing that Title VII does not contain any such limitation.

The Fifth Circuit’s ultimate employment decision requirement “is fundamentally disconnected from Title VII’s text, structure, and purpose and should be overturned,” the agencies said in their brief.

Nawara v. Cook County— Disability

The EEOC is pushing the Seventh Circuit to grant back pay for an Illinois corrections officer whom a jury found was improperly benched and ordered to undergo fitness-for-duty testing.

Medical exams or inquiries that are not job-related are prohibited under the Americans with Disabilities Act.

Though John Nawara successfully proved the ADA violation, a Chicago federal judge ruled that he failed to show he was disabled or perceived to be disabled, and therefore isn’t entitled to back pay. A clear link to a disability or perceived disability must be established before back pay can be awarded, Judge Rebecca R. Pallmeyer ruled in November 2021.

But in a Nov. 23 amicus brief, the EEOC and DOJ said the ADA only “limits back pay to injuries caused by violation of the statute,” and because Nawara was put on unpaid leave for several months pending the fitness-for duty test, he is entitled to the compensation.

Whether or not he was actually disabled or perceived as disabled, the fitness test was a violation of the ADA, the agencies said.

To contact the reporter on this story: J. Edward Moreno in Washington at

To contact the editor responsible for this story: Rebekah Mintzer at ; Laura D. Francis at