According to the U.S. Equal Employment Opportunity Commission’s annual Performance and Accountability Report (PAR), the EEOC filed more than double the number of discrimination lawsuits against employers in FY 2017 than in F^2016. The Agency filed 184 lawsuits in FY 2017 as compared to only 86 in FY 2016. Thirty of these 184 cases involved

Daniel V. Duff III
Dan Duff is a principal in Jackson Lewis' Affirmative Action Practice Group in the firm’s New York Metro Region. He has more than 25 years of experience in advising clients in a wide array of employment law and litigation areas, with a focus on affirmative action, diversity, EEO, and pay equity matters. Dan has defended numerous OFCCP compliance evaluations, CMCEs, on-site reviews, and complaints of discrimination. In addition, he has handled federal and state cases and administrative proceedings involving claims of race, gender, age, disability, and sex discrimination, including the successful defense of OFCCP denial of access and pay discrimination claims. Dan also has significant appellate practice experience, including successfully defending appeals to the New York State Court of Appeals and the United States Supreme Court.
Refusal By Employer to Remove Letter of Reprimand from Employee’s Personnel File Creates Viable Claim for Retaliation
In Munive v. Fairfax County School Board, the Fourth Circuit recently ruled that an employer’s refusal to rescind a disciplinary notice issued after claimant filed a discrimination charge with the Equal Employment Opportunity Commission, and the consequent loss of a promotion, could constitute an adverse action sufficient to create a bona fide retaliation claim. As…
Federal Court: Employer’s Letter to Employees During Pending EEOC Investigation May Constitute Unlawful Retaliation
In EEOC v. Day & Zimmermann NPS, Inc., a federal court in Connecticut found that an employer that sent a letter to employees informing them they might be contacted by the Equal Employment Opportunity Commission (“EEOC”) may be liable for unlawful retaliation. This unlikely scenario came about after the EEOC requested the last known…
Recent 7th Circuit Court of Appeals Case Demonstrates Importance of Documentation of the Interactive Process
On May 4, 2017, the U.S. Court of Appeals for the Seventh Circuit in Brown v. Milwaukee Board of School Directors affirmed the summary judgment dismissal of a former employee’s disability discrimination claim under the ADA. While the employer consistently sought to find reasonable accommodations, plaintiff failed to engage in the interactive process because neither …
D.C. Circuit Court of Appeals Upholds the NLRB’s Revision to Its Back Pay Calculation Formula
On June 9, 2017, the U.S. Court of Appeals for the DC Circuit unanimously upheld the NLRB’s pro employee approach in King Soopers Inc. v. NLRB. As previously reported, the NLRB revised its back pay calculation formula to allow employees full recovery for all reasonable interim employment and search-for-work expenses.
Eight Figure Jury Award in California Highlights Risks of Retaliation Claims
A jury in California awarded $22.4 million in punitive damages to a former sales manager of Cardiovascular Systems, Inc., a medical device company, based on a finding that his employer retaliated against him under both the California Fair Employment & Housing Act (California Government Code § 12940(h)) and the California Whistleblower Act (California Labor Code…
Dismissal of Claims of Discrimination in Pay Highlights Importance of Conducting Proactive and Privileged Pay Equity Analyses
In Catalina v. Moniz, the United States District Court for the District of New Mexico dismissed Equal Pay Act and Title VII pay discrimination claims brought against the U.S. Department of Energy (DOE). Although Plaintiff raised a question of fact regarding whether she performed “substantially equal work” as a male coworker, the employer presented…
Dismissal of Claims of Unlawful Discharge for Using FMLA Leave Highlight Importance of Accurate Record Keeping And Consistent Explanations For Employee Terminations
Too often weak claims of employment discrimination gain strength when employers fail to properly document and support with documentation the legitimate, non-discriminatory reasons for an employee’s termination. While the burden of proof never leaves the claimant, and there is no explicit legal obligation to document the basis for personnel decisions, jurors may develop a negative …
NLRB Includes Search-For-Work and Interim Employment Expenses as Direct Part of Make Whole Remedy Awards
Under the National Labor Relations Act (NLRA), the remedies available to a successful claimant have been limited to “make whole relief.” Like Title VII before the Civil rights Act of 1991, relief under the NLRA typically was limited to lost wages, benefits, other economic losses, and reinstatement. The underlying policy behind such “make …