By Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik, and Gregory Tsonis
Duane Morris Takeaway: Thank you to all the loyal blog readers and followers who joined us for our Year-End EEOC Strategy And Litigation Review webinar! In this 30-minute program, Duane Morris partners Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik and Gregory Tsonis analyzed the latest impact of the dramatic changes at the U.S. Equal Employment Opportunity Commission, including its new strategic priorities and the EEOC lawsuits filed throughout fiscal year 2025, and discussed how heading into FY 2026 with significant changes implemented by the Trump administration, employers’ compliance with federal workplace laws and agency guidance remains a corporate imperative.
If you were unable to attend the webinar, it is now available on our podcast channel. Click to watch below and stay tuned for important EEOC trends and developments throughout the year.
Duane Morris Takeaways: Artificial Intelligence has brilliantly transformed society to the point where no industry can fully separate from its impact. But the fruits of this technology must be carefully curated to ensure that its adoption is ethical. An evolving legislative landscape and billion-dollar class action litigation industry loom large.
This week, at the University of Notre Dame’s inaugural R.I.S.E. AI Conference in South Bend, Indiana, Partner Alex W. Karasik of the Duane Morris Class Action Defense Group was a panelist at the highly anticipated session, “Challenges And Opportunities For Responsible Adoption Of AI.” The Conference, which had over 300 attendees from 16 countries, produced excellent dialogues on how cutting-edge technologies can both solve and create problems, including class action litigation.
The Conference covered a wide range of global issues affected by AI. Some of the topics included AI’s impact on data privacy, information governance, healthcare, education, voting, and its overall impact on Latin America – including discussions about how large language models are developing when machines are trained in non-English languages. For organizations who deploy this technology, or are thinking about doing so, the Conference was informative in terms of AI’s utility and risk. The sessions provided valuable insight from a broad range of constituents, including business leaders, world-renowned academic scholars, technology professionals – and a lawyer from Chicago.
I had the privilege of discussing AI’s integration into the workplace in two areas: (1) proactive implementation; and (2) reactive class action litigation risk. There is no “one-size-fits-all” checklist for organizations to incorporate AI. But there are several overarching principles that will likely be important factors when establishing an ethical and legally compliant AI framework. These include: (1) creating an AI steering committee with a diverse collection of viewpoints, including Legal, HR, IT, business operations, and other end-users – such as tech-savvy employees – who can collectively opine on the benefits and concerns of AI in the workplace; (2) crafting a robust yet unambiguous policy to ensure that all members of an organization as using AI responsibly and consistently; (3) implementing training programs for both managers and employees on how to equitably implement the AI policy, and understand its interplay with other policies such as EEO; (4) communicating with AI vendors to understand how AI models were trained; and (5) conducting audits before and after implementation to ensure AI use does not result in a disparate impact on certain demographics of applicants or employees.
From a litigation perspective, I discussed the “moving target” of AI laws popping up around the country, which may create compliance challenges. While most of these laws are guided by the same fundamental principles (i.e. transparency and disclosure when AI is being used in the hiring process), accounting for minor variations may ultimately present compliance challenges for employers with national and international operations. The class action litigation and EEOC-initiated systemic discrimination litigation will inevitably follow — as the EEOC v. iTutorGroup, Inc., et al., Case No. 1:22-CV-02565 (E.D.N.Y.) settlement (see our blog post) and currently pending Mobley v. Workday, Inc., Case No. 3:23-CV-00770 (N.D. Cal.) class action lawsuit (see our blog post) confirm.
Overall, I was amazed by the amount of business and academic talent at the Conference. The Conference was an incubator for issue-spotting, brainstorming, and problem-solving. I am grateful for the opportunity to learn about the statistical impact of AI on organizations – and thankful to my many new PhD friends for sharing explanations of their empirical studies. Looking forward, I am optimistic that when constituents from all over the world in a variety of professions collaborate together, we will responsibly unlock AI’s greatest potential.
For more information about Duane Morris’s endeavors in the Artificial Intelligence space, please visit our Firm’s AI webpage here.
By Gerald L. Maatman, Jr., Alex W. Karasik, Jennifer A. Riley, Gregory Tsonis, and George J. Schaller
Duane Morris Takeaways: In FY 2025(October 1, 2024 to September 30, 2025), the EEOC’s litigation enforcement activity stalled significantly compared to previous years. By the numbers, FY 2025 lawsuit filings ended on the lower end of the spectrum with 94 lawsuits filed compared to the height of filings in FY 2018 (217 lawsuits). The decline in enforcement activity suggests that during President Trump’s second term in office, employers should not expect the EEOC to be as aggressive as past regimes in terms of the volume of government enforcement lawsuits, particularly in terms of systemic litigation.
Though the overall filings totals are lower than previous years, certain geographic regions, types of claims, and key industries remain prime targets of the Commission’s lawsuits. Our analysis of these patterns is set forth below and is offered to arm employers with the EEOC’s FY 2025 litigation scorecard through an evaluation of district office enforcement activity, filings by statute and discrimination basis, and the most impacted industries.
In sum, there is still a bevy of EEOC lawsuits being filed against businesses, but in a more localized and targeted fashion. Employers should continue their legal compliance with all EEOC initiatives.
Lawsuit Filings Based On Month And Year
The EEOC’s fiscal year ends each year on September 30. The final deluge of filings for EEOC-initiated litigation maintained its year-end boost in 2025. This year, in September alone, 35 lawsuits were filed, down from September filings in FY 2024 (50 lawsuits filed) and September filings in FY 2023 (67 lawsuits filed) – but still a significant total, nonetheless. Of the 94 total filings this year, just over one-third of EEOC lawsuits were filed in September, down from FY 2024’s last-minute filing frenzy accounting for half of that year’s filings. The following chart shows the EEOC’s filing pattern over FY 2025:
We track the EEOC’s filing efforts across the entire fiscal year with its beginning in October through the anticipated filing spree in September. Unlike other fiscal years, the EEOC’s filing patterns were consistent in the first half of FY 2025, peaking with 14 lawsuits in January. Filings again slowed down until Summer, where there was a resurgence of another 14 lawsuits in June 2025. Thereafter, lawsuit filings dipped until the “eleventh hour” in September.
Comparing these filings in FY 2025 to previous years, the EEOC filed significantly less lawsuits than in FY 2024 (111) and FY 2023 (144 lawsuits), signaling a trend in decreased EEOC enforcement activity. Though EEOC litigation filings continuously decreased compared to pre-COVID era filing metrics, the EEOC’s presence as a litigation powerhouse persists. The following graph shows the EEOC’s year-over-year fiscal year filings beginning in FY 2017 through FY 2025:
Lawsuit Filings Based On EEOC District Offices
In addition to tracking the total number of filings, we closely monitor which of the EEOC’s 15 district offices are most actively filing new cases throughout the EEOC’s fiscal year. Some district offices tend to be more aggressive than others. Some focus on different case filing priorities. The following chart shows the number of lawsuit filings by each of the EEOC district offices.
In FY 2025, Philadelphia and Chicago led the pack in filing the most lawsuits at 11 each, followed by Indianapolis with 8 filings, then Atlanta, Birmingham, Houston, and Phoenix with 7 filings, and Charlotte, New York, and Miami each with 6 filings. St. Louis had 5 filings, Los Angeles and San Francisco had 4 filings, and Dallas had 3 filings. Memphis had the lowest amount with only 2 filings.
Like FY 2024, Philadelphia proved itself as a leader in EEOC enforcement filings. Chicago remained steady with 11 filings, same as FY 2024. St. Louis (2 filings in FY 2024) and Phoenix (4 filings in FY 2024) also experienced increases in filings compared to last year. Other offices comparatively lagged in enforcement activity, Atlanta (11 filings in FY 2024), Indianapolis (9 filings in FY 2024), and Houston (8 filings in FY 2024), showed slight decreases in enforcement activities. Across the board filings generally evened out for each district office compared to FY 2024, but overall, filings fell.
Although filing trends were down for all Districts, the total filings demonstrate the EEOC maintained its consistent litigation strength, across all district offices. Employers with operations in Philadelphia and Chicago should pay extra attention to EEOC charge activity given the aggressiveness of the Commission in those regions.
(Note: Three EEOC press releases from the Washington D.C. Field Office included their lawsuit filings as part of the Philadelphia District Office statistics)
Lawsuit Filings Based On Type Of Discrimination
We also analyze the types of lawsuits the EEOC filed in terms of the statutes and theories of discrimination alleged. This enables us to determine how the EEOC is shifting its strategic priorities.
When considered on a percentage basis, the distribution of cases filed by statute skewed significantly in favor of Title VII cases when comparing FY 2025 to previous fiscal years. Title VII cases once again made up the majority of cases filed, as they constituted 50% of all filings in FY 2025 (decreased from 58% of all filings in FY 2024, significantly down from 68% of all filings FY 2023 and 69% of filings in FY 2022, and decreased compared to 61% of all filings in FY 2021).
Overall, ADA cases also made up the next most significant percentage of the EEOC’s FY 2025 filings – totaling 31.5%. This is an overall decrease in previous years where ADA filings amounted to 42% in FY 2025, 34% in FY 2023, and 37% in FY 2021. Though these filings are marginally higher than FY 2022 where ADA filings on a percentage basis amounted to 29.7% of all filings.
There was also an uptick in ADEA filings, as 9 ADEA cases were filed in FY 2025, whereas 6 age discrimination cases were filed in FY 2024, after 12 age discrimination cases were filed in FY 2023 and 7 age discrimination cases were filed in FY 2022. Like FY 2024, this year the EEOC pursued Pregnant Worker’s Fairness Act cases with 6 filings compared to FY 2024’s 3 filings. In addition, FY 2025 had a slight increase in Pregnancy Discrimination Act cases where 5 cases were filed compared to FY 2024’s 4 filed cases. Notably absent from FY 2025’s filing balance are cases under the Equal Pay Act and Genetic Information Nondiscrimination Act. The following graph shows the number of lawsuits filed according to the statute under which they were filed.
We also collect data on the allegations for which the EEOC bases its litigation filing.
The EEOC’s basis for suit remained the same among its core tenets, with Disability, Sex, and Retaliation claims leading the way. Collectively, these three bases were alleged in 59.4% of FY 2025 EEOC filings. In FY 2024, those same three core tenets also took the top three spots (collectively alleged in 67.6% of FY 2024 EEOC filings). Notably, in FY 2025, only 3 Race or National Origin based lawsuits were filed by the EEOC, or 2.3% of the total lawsuit filings. In FY 2024, 8.9% of all filings included Race claims. The following graph shows a comparison of the filings in FY 2025 to FY 2024 for the allegation basis in filings:
Lawsuits Filings Based On Industry
In monitoring the EEOC’s filings by industry, FY 2025 aligns with prior EEOC-initiated lawsuits in the top two industries compared to FY 2024, demonstrating the Commission’s focus on a few major industries.
In FY 2025, two industries remained in the EEOC’s targets: Hospitality and Healthcare: On a percentage basis, Hospitality (Restaurants / Hotels / Entertainment) comprised 25% of filings, and Healthcare had 21.3% of filings. A key difference in FY 2025 compared to FY 2024 is Manufacturing (15% of FY 2025 filings; 12.1% of FY 2024 filings) overtaking Retail (11.3% of FY 2025 filings; 23.1% of FY 2024 filings) as the next most targeted industry. The staggering drop in enforcement actions against Retailers poses a distinct drop in enforcement actions in this industry. Only one other industry, Transportation & Logistics, entered double digit enforcement activity (with 10%).The remaining industries in FY 2025 did not enter double-digit percentages though Staffing and Construction each experienced EEOC initiated litigation in FY 2025 (8.8%, and 8.8% of filings respectively per industry).
Unlike FY 2024, FY 2025 did not have any actions which involved Property Management industries. Overall, the FY 2025 industry spread aligns with FY 2024, where Hospitality and Healthcare are the most heavily targeted industries. Though Manufacturing and Retail swapped positions in enforcement priority, both still placed in the third and fourth impacted industries. Like FY 2024, the EEOC’s FY 2025 fiscal year again did not advance any industry-based filings in the Automotive, Security, and/or Technology industries.
Like FY 2024, Hospitality and Healthcare employers should continue to monitor their compliance with federal anti-discrimination laws. These industries are regular hotbeds for charges and ultimately lawsuits. No matter the industry, every employer should recognize they are vulnerable to EEOC-initiated litigation as detailed by the below graph.
Looking Ahead To Fiscal Year 2026
Moving into FY 2026, the EEOC’s budget justification includes a $19.618 million decrease from FY 2025. President Trump’s Administration prioritizes a return to the “agency’s true mission.” The reinvigorated EEOC aims to “return to its founding principles and restore evenhanded enforcement of employment civil rights laws on behalf of all Americans.” The EEOC’s mission is guided by the President’s pledge to “restore dignity to the American worker” and is bolstered by the President’s series of executive orders.
The FY 2026 EEOC budget justification signals a transition to “attacking all forms of race discrimination, including rooting out unlawful race discrimination arising from DEI programs, policies, and practices; protecting American workers from unlawful national origin discrimination involving preferences for foreign workers; defending women’s sex-based rights at work; and supporting religious liberty by protecting workers from religious bias and harassment and protecting their rights to religious accommodations at work.” The Commission also intends to continue its efforts in incorporating technological advances, streamlining and improving operational processes, and refining its organizational structure to ensure efficiency and effective EEOC enforcement.
The EEOC also shifted its goals in FY 2025. The EEOC now prioritizes three strategic goals. First, the EEOC will combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities. In achieving this goal, the EEOC will employ broad remedial measures and exercise its enforcement authority fairly, efficiently, and based on the circumstances of the charge or complaint. Second, the EEOC will prevent employment discrimination and advance equal employment opportunities through education and outreach. Namely, the EEOC will increase public awareness of employment discrimination laws, and knowledge of specific rights and responsibilities under these laws, while also using its agencies to advance and resolve EEO issues. Third, the EEOC will strive for organizational excellence through its people, practices, and technology. In so doing, the EEOC intends to achieve a culture of accountability, inclusivity, and accessibility balanced against intake, outreach, education, enforcement, and service to the public to protect and advance civil rights in the workplace.
Key Employer Takeaways
In several respects, FY 2025 represented a change in enforcement targets and continued efforts in key discriminatory areas. While total filings decreased, the new administration foreshadows a targeted approach in upcoming EEOC enforcement. This is considerably true where the requested budget decrease reflects a narrower window of enforcement priorities but maintains the EEOC’s hallmark tradition of defending public civil liberties.
Given the President’s second term is just beginning, the EEOC’s FY 2025 data should be taken with a grain of salt. After all, it was a year of transition for the Commission. The Commission’s FY 2025 filings suggest discrimination always stays within the purview of the EEOC’s priorities, but what constitutes “actionable” or “litigation-worthy” discrimination is wavering. We anticipate these figures will grow by next year’s report. Finally, given the volatility of the EEOC’s priorities, it is more crucial than ever for employers to stay abreast of EEOC developments and comply with anti-discrimination laws.
***This article is published in advance of EEOC’s FY 2025, with the data current as of 5:00 p.m. CST. Duane Morris will post the final numbers and statistics through FY 2025, by 5:00 p.m. CST on October 1, 2025.
***For more on the EEOC’s FY 2025, we invite you to attend Duane Morris’ Year-End EEOC Review Webinar on October 22, 2025. To register for the webinar access the link here.
By Gerald L. Maatman, Jr., Jennifer A. Riley, and Alex Karasik And Gregory Tsonis
Mark your calendars for our bi-annual program analyzing the latest EEOC developments: Wednesday, October 22, 2025 from 11:00 a.m. to 11:30 a.m. Central. Reserve your virtual seat for the program here.
Join Duane Morris partners Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik and Gregory Tsonis for a live panel discussion analyzing the latest impact of the dramatic changes at the U.S. Equal Employment Opportunity Commission, including its new strategic priorities and the EEOC lawsuits filed throughout fiscal year 2025. In its annual performance report for FY 2024, the agency touted a record $700 million in monetary recoveries for workers through litigation and administrative avenues. Heading into FY 2026 with significant changes implemented by the Trump administration, employers’ compliance with federal workplace laws and agency guidance remains a corporate imperative. Our virtual program will empower corporate counsel, human resource professionals and business leaders with key insights into the EEOC’s latest enforcement initiatives and provide strategies designed to minimize the risk of drawing the agency’s scrutiny.
Duane Morris Takeaways: On August 14, 2025, in Flores v. N.Y. Football Giants, Inc., No. 23-1185, 2025 U.S. App. LEXIS 20688 (2d Cir. Aug. 14, 2025), the U.S. Court of Appeals for the Second Circuitaffirmeda decision from the Southern District of New York denying a motion to compel arbitration of claims of plaintiff Brian Flores (“Flores”) asserting race discrimination filed by the National Football League (“NFL”) and six of its member clubs. In closely examining the arbitration provision at issue (and agreed upon by the parties), the Second Circuit found that the NFL’s internal arbitration framework, which provided the NFL Commissioner with unilateral control over arbitrator selection, substantive process of proceedings, and other discretionary decision-making powers, provided for arbitration “in name only” and fell short of requirements set forth in the Federal Arbitration Act (“FAA”).
According to the Second Circuit, the NFL Commissioner’s complete control over the NFL’s internal arbitrations pursuant to the NFL Constitution makes the process, “inherently biased” and leaves it outside the protections of the FAA. The Second Circuit sternly concluded that, “[u]ltimately, the NFL’s arbitration provision is fundamentally unlike any traditional arbitration provision protected by the FAA,” and the agreement between Flores and the NFL to arbitrate his claims, “is plainly unenforceable under the most basic principles of the effective vindication doctrine,” requiring arbitration guarantee that Flores can “vindicate [his] statutory cause of action in [an] arbitral forum.” Id. at *5. As a result, Flores’s racial discrimination lawsuit will proceed in federal court and the NFL will likely need to go back to the drawing board to update its internal arbitration provisions so they comply with arbitration mandates under the FAA and prior court decisions. All employers seeking to prepare and enforce arbitration provisions should heed the Second Circuit’s concerns with the NFL’s arbitration language and process to ensure their agreements comply with the FAA.
Case Background
Since 2008, Flores – the current defensive coordinator of the NFL’s Minnesota Vikings – has been employed as a football coach by a variety of NFL teams, including the New England Patriots (2008-2018), Miami Dolphins (2019-21), Pittsburgh Steelers (2022), and the Minnesota Vikings (2023-Present). Id. at *5. The operation and structure of the NFL and the relationship between the NFL, its member clubs, and the clubs’ employees (including NFL coaches), are governed by the NFL Constitution and Bylaws (the “NFL Constitution”). Id. at *6. The NFL Constitution “broadly empowers” the NFL Commissioner to manage the league’s affairs, including, but not limited to, the ability to interpret and establish league policy and procedure, discipline relevant parties, hire legal counsel to respond to conduct detrimental to the league, its member clubs or employees, or to professional football, and the full, complete, and final jurisdiction and authority to arbitrate disputes between relevant parties, including between employees and member clubs. Id. Flores’s employment agreement with the Patriots included a club-specific arbitration provision, incorporating by reference arbitration language in the NFL Constitution. Id. at *9-10.
In January 2019, while still under contract as a coach with the Patriots, Flores interviewed to be the head coach of the Denver Broncos. Id. at *9. Flores claims the Broncos discriminated against him because of his race in failing to hire him and that the Broncos only offered him an interview as a “sham” to satisfy the Rooney Rule – a long-standing requirement by the NFL that two opportunities to interview for each open coaching position be allotted to prospective candidates who are members of a racial minority group and/or a woman. Id.
One month later, in February 2019, Flores was hired as the head coach of the Dolphins. Id. In January 2022, Flores was fired following three seasons as head coach of the Dolphins. Id. at *10. After the Dolphins fired him, Flores interviewed for head coach positions with both the New York Giants and the Houston Texans, though he was not hired for either position due to what he alleges to be racial discrimination and retaliation. Id. at *10-11. In February 2022, Flores was hired as a senior defensive assistant and linebackers coach with the Steelers, signing an employment agreement that, like his agreement with the Patriots, included a club-specific arbitration agreement and incorporated by reference the NFL Constitution. Id. at *11. The same month, Flores filed a putative class action against the NFL, the Denver Broncos, New York Giants, and Miami Dolphins alleging claims of race discrimination under 42 U.S.C. § 1981, as well as state and local statutes. Id. at *6. In June 2022, the NFL and its relevant member clubs sought to compel Flores to arbitrate his claims pursuant to the employment agreements Flores signed with the Patriots and Steelers, respectfully. Id. at *7-8.
The District Court found that Flores’s claims against the Broncos and the NFL clearly fell outside his club-specific arbitration agreement with the Patriots. Id. at *10. Although the District Court found that the NFL Constitution’s arbitration provision applied to Flores’s claims, the Court refused to enforce it, reasoning that it was illusory and unenforceable under Massachusetts state law because “the NFL and its member clubs have the unilateral ability to modify the terms of the NFL Constitution.” Id. As such, the District Court ordered that Flores’s claims against the Broncos and related claims against the NFL be litigated in federal court. Id. The NFL’s appeal to the Second Circuit followed.
The Second Circuit’s Decision
The Second Circuit affirmed the District Court’s decision denying the motion to compel Flores to arbitrate his claims against the NFL, the Broncos, the Giants, and the Texans. Id. at *25-26. Specifically, the Second Circuit concluded that Flores’s agreement under the NFL Constitution to submit his claims against the Broncos and the NFL to the unilateral substantive and procedural discretion of the NFL Commissioner (the principal executive of one of Flores’s adverse parties) provides for arbitration “in name only” and lacks the protection of the FAA. Id. at *18. It also held that Flores’s agreement to submit his claims against the Broncos and the NFL to the unilateral discretion of the NFL Commissioner is unenforceable because the agreement fails to guarantee Flores can “vindicate [his] statutory cause of action in [an] arbitral forum.” Id. The decision further confirmed that the District Court did not err or abuse its discretion in denying Defendants’ motion to compel arbitration or in denying Defendants’ motion for reconsideration. Id. at *2.
The Second Circuit provided background on the FAA and its principles mandating that although the FAA establishes a “liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract,” not every self-described “arbitration agreement” falls within the FAA’s ambit. Id. at *14. Under the facts at issue here, the Second Circuit found that while Flores agreed to arbitrate his statutory claims by way of arbitration provisions in the employment agreement he entered with the Patriots, the relevant language granted the NFL Commissioner unilateral discretion over the arbitration process itself. Id. The Second Circuit held that such one-sided control undermines the fairness required for a valid arbitration agreement under the FAA because the NFL Constitution’s arbitration provision fails to provide: (i) an independent arbitral forum for bilateral dispute resolution, resulting instead in compelling one party (Flores) to submit disputes to the substantive and procedural authority of the principal executive officer of one of their adverse parties (the NFL); and (ii) the procedure to be used in resolving the dispute, instead allowing the NFL Commissioner to unilaterally dictate arbitral procedure. Id. at *19-22. The Second Circuit concluded that “the NFL’s arbitration provision is fundamentally unlike any traditional arbitration provision protected by the FAA,” is not afforded any special deference under the FAA, and that this served as an independent reason to affirm the District Court’s order denying the motion to compel Flores to arbitrate his claims. Id. at *22.
Moreover, the Second Circuit found Flores’s agreement was “plainly unenforceable” under exceptions to the FAA since the arbitration provision “fails to provide Flores access to an arbitral forum” and in fact waives Flores’s right to pursue statutory remedies. Id. at *22-24. It reasoned that requiring Flores to submit statutory claims to the unilateral discretion of the executive of one of his adverse parties (the NFL Commissioner), without an independent arbitral forum, denied Flores arbitration in any meaningful sense of the word, rendering the agreement unenforceable. Id. at *24.
Relying on the foregoing reasoning, the Second Circuit affirmed the District Court’s order, finding: (i) Flores’s agreement under the NFL Constitution to submit his claims against the Broncos and the NFL to the unilateral substantive and procedural discretion of the NFL Commissioner provides for arbitration “in name only,” thus lacking the protection of the FAA; (ii) Flores’s agreement to submit his claims against the Broncos and the NFL to the unilateral discretion of the NFL Commissioner is unenforceable because the agreement fails to guarantee Flores can “vindicate his statutory cause of action in an arbitral forum,”; and (iii) the same unprotected and unenforceable agreement also cannot be used to compel Flores to arbitrate his claims against the Giants, Texans or related claims against the NFL. Id. at *25-26.
Implications For Employers
The Second Circuit’s decision means Flores can continue litigating his race discrimination claims against the NFL and its member clubs in the public eye of federal court, despite the NFL’s attempts to force Flores into its internal private arbitration framework. While the attention-grabbing headline provides Flores a major victory in keeping his race discrimination lawsuit alive, perhaps the most important takeaways are for companies or businesses with an arbitration clause or agreement in effect, as well as employers considering implementing same for employees. Employers must ensure that any arbitration procedures, including arbitral forum and substantive process, comply with the FAA’s mandates to ensure bilateral and objective arbitration for all involved parties.
The Second Circuit repeatedly held that although there was no dispute that both Flores and the NFL member teams signed the employment agreement and agreed to the referenced NFL Constitution’s arbitration provision, a process providing one party with unilateral discretionary control over arbitrator selection and substantive procedure amounts to arbitration “in name only,” and lacks the protection of the FAA. As evidenced by the Second Circuit’s description of the relevant arbitration provision’s shortcomings, businesses seeking to ensure their arbitration agreements are enforceable should have counsel regularly review their existing arbitration language to confirm it is bilateral and objective, thus falling under the FAA’s protection.
By Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik, and Gregory Tsonis
Duane Morris Takeaways: The EEOC’s fiscal year (“FY 2025”) spans from October 1, 2024 to September 30, 2025. Through the midway point, EEOC has filed 23 enforcement lawsuits, an uptick when compared to the 14 lawsuits filed in FY 2024, but still down from the 29 filed in the first six months of FY 2023. Traditionally, the second half of the EEOC’s fiscal year – and particularly in the final months of August and September – are when the majority of filings occur. However, an early analysis of the types of lawsuits filed, and the locations where they are filed, is informative for employers in terms of what to expect during the fiscal year-end lawsuit filing rush in September.
Cases Filed By EEOC District Offices
In addition to tracking the total number of filings, we closely monitor which of the EEOC’s 15 district offices are most active in terms of filing new cases over the course of the fiscal year. Some districts tend to be more aggressive than others, and some focus on different case filing priorities. The following chart shows the number of lawsuit filings by EEOC district office.
The most noticeable trend of the first six months of FY 2025 is that the Philadelphia District Office has already filed five lawsuits. Indianapolis has four lawsuit filings, and Atlanta and Houston have three each. Many of the district offices have yet to file a lawsuit at all in FY 2025. But for employers in the Philadelphia, Indianapolis, Atlanta, and Houston metropolitan areas, these early tea leaves suggest that a higher likelihood of pending charges may turn into federal lawsuits by September.
Analysis Of The Types Of Lawsuits Filed In First Half Of FY 2025
We also analyzed the types of lawsuits the EEOC filed throughout the first six months, in terms of the statutes and theories of discrimination alleged, in order to determine how the EEOC is shifting its strategic priorities. The chart below shows the EEOC filings by allegation type.
In the first half of FY 2025, 64% or 14 of the 22 filings contained Title VII claims. The percentage of each type of filing has remained fairly consistent over the past several years, until the first half of FY 2024, when nearly every filing contained Title VII claims, with 12 of the 14, or 87% alleging these violations. This year’s filings are more aligned with years prior to FY 2024. In FY 2023, Title VII claims comprised of 59% of all filings, 69% in FY 2022, and 62% in 2021. ADA cases were alleged in 10 or 45% of the lawsuits filed, a substantial increase from FY 2024, where ADA claims were only 21% of the cases in the first half of the year. There were also two ADEA lawsuits filed.
The graph set out below shows the number of lawsuits filed according to the statute under which they were filed (Title VII, Americans With Disabilities Act, Pregnancy Discrimination Act, Equal Pay Act, and Age Discrimination in Employment Act).
The industries impacted by EEOC-initiated litigation have also remained consistent in FY 2025. The chart below details that hospitality, healthcare, and retail employers have maintained their lead as corporate defendants in the last 18 months of EEOC-initiated litigation.
Notable 2025 Lawsuit Filings
Sexual Harassment
In EEOC v. Teamlyders LLC (E.D. Mich. Feb. 28, 2025), the EEOC filed an action against six entities operating Taco Bell restaurants in Michigan, alleging that a senior area manager subjected female employees, including multiple teenage employees, to sexual harassment. The EEOC contended that the harassment included inappropriate sexual comments, such as asking if underage employees were sexually active, asking an employee if she would give him “sugar” when she turned 18, unwanted and inappropriate touching of females under age 18, and asking an assistant manager for videos or images of her having sex with her boyfriend. The EEOC also asserted that the defendants failed to take effective action against the manager, despite receiving multiple complaints from different employees, supervisors, and managers, and that one female employee was terminated immediately after making a complaint about the manager’s conduct.
Sex / Disability Discrimination
In EEOC v. Equinox Holdings, Inc., Case No. 24-CV-3597 (D.D.C. Dec. 23, 2024), the EEOC brought suit alleging that the defendant, which owns and operates fitness facilities and gyms nationwide, illegally discriminated against a woman who suffers from endometriosis on the basis of disability and sex when it failed to hire her as a front desk associate at its sports club in Washington because of her “monthly cycle,” failed to provide her with a potential need for a reasonable accommodation, and failed to accommodate her disability during the job application process. The EEOC asserted that the applicant, who previously worked in similar positions for other gyms, asked for her second-round interview to be delayed by a few days because she experiences painful menstrual cramps and was anticipating being in that situation imminently. The EEOC alleged that the defendant rejected the applicant, and that the manager with whom she had her initial interview told her in a text message that she was passed over for the position because there was a concern that she would be absent in the future “due to [her] monthly cycle.” The EEOC also alleged Equinox subsequently hired a male applicant with no prior experience working in gyms for the front desk associate position.
Disability Discrimination
In EEOC v. Alto Experience, Inc., Case No. 24-CV-2208 (E.D. Va. Dec. 6, 2024), the EEOC filed an action alleging that the defendant, a ride hailing company, violated the ADA when it denied reasonable accommodations and employment to deaf and hard-of-hearing individuals who applied to work as personal drivers, despite the availability of technological accommodations, and, in some instances, despite previous experience as drivers for other ride-hailing companies. The EEOC also alleged that some qualified deaf and hard-of-hearing individuals who were denied accommodations or employment as personal drivers were steered into in less-desirable car washing positions.
These filings illustrate that the EEOC will likely continue to prioritize sex, sex harassment, and disability discrimination claims in the second half of FY 2025.
Release Of Enforcement Statistics
On January 17, 2025, the EEOC published its Fiscal Year 2024 Annual Performance Report (“FY 2024 APR”), summarizing the Commission’s recent year of enforcement activity and recovery on behalf of U.S. workers. As the Annual Performance Report highlights, 2024 was a successful year for the EEOC, and the Commission recovered nearly $700 million for 21,000 individuals (a 5% increase over FY 2023). Significantly, according to the Commission it successfully resolved 132 merits lawsuits (a 33% increase over FY 2023) and achieved a successful outcome in 128 (or 97%) of all suit resolutions. See FY 2024 APR at p. 12. Given the Commission’s spike in enforcement activity, and its odds of prevailing, the Annual Performance Report reminds employers of the risks associated with an EEOC lawsuit and the need maintain and administer EEOC-compliant employment policies.
FY 2024 Highlights
In the EEOC’s 78-page Annual Performance Report, the Commission discusses, at length, its annual performance results and the significant victories it achieved in FY 2024. Specifically, the Report highlights that the Commission secured nearly $700 million for U.S. workers, the highest monetary amount in recent history, including over $469 million for private sector and state/local government workers through mediation, conciliation, and settlements, as well as more than $190 million for federal workers. The EEOC also notes that it filed 111 new lawsuits in 2024 on behalf of alleged victims of workplace discrimination, several of which were brought under the newly enacted and untested Pregnant Workers Fairness Act (“PWFA”). FY 2024 APR at p. 2
The Commission also reported that it received 88,531 new charges of discrimination this past fiscal year, representing a 9% increase over FY 2023. The EEOC experienced increased demand from the public, handling over 553,000 calls through its agency contact center, and receiving over 90,000 emails, which represented a growing demand for the Commission’s services. Id. at p. 3. The Commission also made it clear that it would continue to focus on systemic enforcement, and in 2024 alone, it resolved 16 systemic cases and obtained 23.9 million on behalf of 4,074 victims of systemic discrimination, and other significant equitable relief. Id.
Takeaways For Employers
By many accounts, FY 2024 was a record-breaking year for the EEOC. As demonstrated in the report, the Commission has pursued an increasingly aggressive and ambitious litigation strategy to achieve its regulatory goals. The data confirms that the EEOC had a great deal of success in obtaining financially significant monetary awards.
We anticipate that the EEOC will continue to aggressively pursue its strategic priority areas in FY 2025. There is no reason to believe that the annual “September surge” is not coming, in what could be another precedent-setting year. However, with a new presidential administration, there are apt to be changes in the coming year. We will continue to monitor EEOC litigation activity on a daily basis, and look forward to providing our blog readers with up-to-date analysis on the latest developments.
Finally, as previously talked about on the blog here – we are thrilled to announce that will be providing a webinar on May 5, 2025, to further analyze the above data. Employers will gain insight on what they should be doing to ready themselves for the remainder of FY 2025. Save the date and stay tuned!
Duane Morris Takeaway:This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman, Jennifer Riley, Alex Karasik, and Greg Tsonis discussing the upcoming Duane Morris webinar that will provide analysis of key developments in the first six months of the EEOC’s fiscal year 2025 and the 2025 edition of the EEOC Litigation Review.
Join us on Monday, May 5 at 12 p.m. Central. Learn more and register here: Mid-Year Review of EEOC Enforcement Litigation and Strategy. Stay tuned for the new edition of Duane Morris’ EEOC Litigation Review launching on our blog this Thursday, May 1.
Jerry Maatman: Welcome to our listeners. Thank you for being here for our weekly podcast series, the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris and joining me today on the podcast are my partners Jen Riley, Alex Karasik, and Greg Tsonis. Thanks so much all of you for being here on the podcast.
Jennifer Riley: Thank you, Jerry, happy to be part of today’s podcast.
Alex Karasik: Thanks, Jerry. Glad to be here.
Greg Tsonis: Great to be here, Jerry.
Jerry: Today we have a message about a great webinar coming up, Duane Morris’ mid-year review of the EEOC enforcement litigation and strategy. The host will be the four of us, and we wanted to personally invite all of our listeners and readers to sign up and attend this 30-minute event. Jen, do you want to share with our listeners a little bit about the content of this webinar?
Jennifer: Sure, Jerry. The webinar will be a quick 30-minute panel discussion where the four of us will review the EEOC’s latest strategic priorities and lawsuit filings. We’ll take a look at the first six months of the Commission’s fiscal year 2025. We’ve analyzed the strategic priorities, the lawsuit filings, and other activity for fiscal year 2025 to date, and we’ll provide our listeners that analysis in a short half-hour segment.
Jerry: This virtual program is in response to many phone calls we’ve been receiving from general counsel, HR professionals, and the like in terms of what in the world is going on with the EEOC. So, we’ve designed this webinar for corporate counsel, human resource professionals, and business leaders to provide insights into the EEOC’s latest enforcement initiatives, and just what is going on in Washington, D.C. in terms of all things involving the EEOC. Alex, what are the webinar details?
Alex: The webinar is scheduled for Monday, May 5, from 12 p.m. to 12:30 p.m. Central time. We will provide the sign-up link in the episode transcript on the Class Action Defense Blog. This webinar is really great information-packed 30 minutes and it’s well worth your time – especially to get insights into the EEOC’s activities on the first half of its fiscal year.
Jerry: This webinar will prove to be very informative, and we hope all of our listeners for our weekly podcast series can tune in for it.
Greg: We also want to remind listeners that we are publishing our primer on EEOC litigation, the EEOC Litigation Review 2025 edition this coming Thursday, May 1. Given the importance of compliance with workplace anti-discrimination laws for our clients, the Review is a great resource for corporate counsel and human resources professionals. It’ll be available on the Class Action Defense Blog in e-book format.
Jerry: Well, thanks, Jen, Greg, and Alex for being here today. We’re looking forward to our webinar next week, and to sharing our insights in terms of all things EEOC and what is going on in Washington, D.C. And we’ll continue to share those details in updated blog postings and sharing further thoughts and analysis regarding what employers can do to get ready.
Jennifer: Thanks, Jerry, and, thanks to our audience. Hope to have everyone at the webinar next week.
Greg: Thanks for having me, Jerry, and thank you to all the listeners.
By Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik, Gregory Tsonis, Justin Donoho, and Tyler Zmick
Duane Morris Takeaways: The last year saw a virtual explosion in privacy class action litigation. As a result, compliance with privacy laws in the myriad of ways that companies interact with employees, customers, and third parties is a corporate imperative. To that end, the class action team at Duane Morris is pleased to present the second edition of the Privacy Class Action Review – 2025. This publication analyzes the key privacy-related rulings and developments in 2024 and the significant legal decisions and trends impacting privacy class action litigation for 2025. We hope that companies and employers will benefit from this resource in their compliance with these evolving laws and standards.
Click here to bookmark or download a copy of the Privacy Class Action Review – 2025 e-book. Look forward to an episode on the Review coming soon on the Class Action Weekly Wire!
Duane Morris Takeaways: Data breach litigation is a billion-dollar industry worldwide. At the ASIAL Security Exhibition + Conference in Sydney, Australia, on August 22, 2024, Partner Alex W. Karasik of the Duane Morris Class Action Defense Group gave a highly anticipated 40-minute address, “A Deep Dive Into Data Breach Class Action Litigation.” The Conference, which had over 10,000 attendees, produced excellent dialogues on cybersecurity threats, mitigation strategies, data breach litigation, and the implications of artificial intelligence on data security.
The Conference’s robust agenda featured over 35 speakers from a wide array of backgrounds, including Australian government officials, data security industry experts, executives from blue-chip companies such as Amazon and Microsoft, and a lawyer from Chicago. In a masterful way, the agenda provided valuable insight for attendees from a broad range of backgrounds, including business owners, c-suite executives, risk officers, privacy professionals, technology start-ups, vendors, attorneys, journalists, and other individuals with interests in the tech, legal, and security industries.
I had the privilege of speaking about global data breach litigation risk, with a focus on the Unites States’ data breach class action landscape. A few of the highlights from my presentation include the following:
Data breach class action lawsuit filings doubled from over 300 in 2021 to over 600 in 2022, and then doubled again to over 1,300 in 2023. I do not expect this trend to slow down any time soon.
The last two years procured massive settlement totals, with over $515 million in 2023. Google and T-Mobile each settled data breach class actions for $350 million in the last two years. The financial exposure is enormous in data breach class action litigation.
Major U.S. Supreme Court decisions (TransUnion LLC v. Ramirez, et al., 141 S.Ct. 2190 (2021)); pending class action litigation (In Re MOVEit Customer Data Security Breach Litigation, MDL No. 3083 (J.P.M.L. Oct. 4, 2023); and the next wave of data security class action claims (stemming from the recent CrowdStrike outage) will all continue to collectively and profoundly impact the data breach class action landscape.
Low class certification rates, generally trending below 50%, provide some room for optimism for data breach class action defendants. Plus, with the large number of breaches that have now impacted a plurality of major corporations across all sectors, causation of damages is more difficult to prove than ever.
Some of the “toolkit takeaways” for businesses include: (i) implement a multi-faceted approach to data security mechanisms; (ii) develop a data security task force within the organization; (iii) provide extensive training to employees, which will need to evolve as the types of threats change; and (iv) utilize arbitration agreements with class action waivers.
Finally, one of the greatest joys of attending an international conference is the opportunity to draw on the wisdom of my fellow presenters from across the globe. Below are a few of the highlights:
“Employers cannot contract out risk.” I loved this quote from Australian government official, Justine Jones. This sentiment echoes many of my conversations with and publications prepared by U.S. EEOC Commissioner, Keith Sonderling, who has consistently noted in the artificial intelligence context that employers cannot simply point their fingers at vendors if hiring or recruiting software procures discriminatory outputs. Jones opined that even if businesses use third-parties for data security purposes, they still remain responsible.
Brett McGrath, President of the Law Society of New South Wales, provided excellent insight on what I interpreted to be “cautious optimism” from the Australian legal system in terms of embracing artificial intelligence. He discussed the creation of a task force involving judges, lawyers, academics, and technology experts. Jurisdictions in the United States – at the local, state, and federal levels – would be wise to follow suit.
Amazon’s Lindsay Maloney, Lead of Security & Loss Prevention, Australia & Singapore, highlighted hiring risks associated with different geographical markets. From my perspective, the rapid emergence of artificial intelligence laws involving employment decisions are often similar but not the same. This means American businesses likewise should take heed of where they are hiring and what technology they are using in each locale.
Philip Meyer, a Technology Strategist at Microsoft, delivered an impactful address that examined the history of ChatGPT and the future of artificial intelligence. Philip’s commentary regarding Microsoft’s commitment to providing training meshed well with my message about how companies must embrace the training process, so that artificial intelligence and data security measures are deployed ethically and in the best interests of the organization.
Brian de Caires, CEO of the ASIAL, opined on the need for consistent security standards across Australia. For those of you who follow my publications on artificial intelligence, privacy, and data security, a motif of my writings is that there is a patchwork of laws among a myriad of jurisdictions, creating a compliance minefield for employers.
Thank you to ASIAL and its incredible team, my fellow speakers, the engaging attendees, the media personnel, and all others who helped make this week in Sydney, Australia an informative and unforgettable experience “Down Under.”
For more information on the Duane Morris Class Action Group, including its Data Breach Class Action Review e-book, please click the link here.
Duane Morris Takeaway: Available now is the recent article in the American Bar Association’s magazine “The Brief” by Partner Alex Karasik entitled “An Examination of the EEOC’s Artificial Intelligence Evolution.”[1]The article is available here and is a must-read for all employers and corporate counsel!
In the aftermath of the global pandemic, employee hiring has become a major challenge for businesses across the country, regardless of industry or region. Businesses want to accomplish this goal in the most time- and cost-effective way possible. Employers remain in vigorous pursuit of anything that can give them an edge in recruiting, hiring, onboarding, and retaining the best talent. In 2023, artificial intelligence (AI) emerged as the focal point of that pursuit. The use of AI offers an unprecedented opportunity to facilitate employment decisions. Whether it is sifting through thousands of resumes in a matter of seconds, aggregating information about interviewees’ facial expressions, or generating data to guide compensation adjustments, AI has already had a profound impact on how businesses manage their human capital.
Title VII of the Civil Rights Act of 1964, which is the cornerstone federal employment discrimination law, does not contain statutory language specifically about the use of AI technologies, which did not emerge until several decades later. However, the U.S. Equal Employment Opportunity Commission (EEOC), the federal government agency responsible for enforcing Title VII, has made it a strategic priority to prevent and redress employment discrimination stemming from employers’ use of AI to make employment decisions regarding prospective and current employees.
Focusing on the EEOC’s pioneering efforts in this space, this article explores the risks of using AI in the employment context. First, the article examines the current litigation landscape with an in-depth case study analysis of the EEOC’s first AI discrimination lawsuit and settlement. Next, to figure out how we got here, the article travels back in time through the origins of the EEOC’s AI initiative to present-day outreach efforts. Finally, the article reads the EEOC’s tea leaves about the future of AI in the workplace, offering employers insight into how to best navigate the employment decision-making process when implementing this generation-changing technology.
Implications For Employers: Similar to the introduction of technologies such as the typewriter, computer, internet, and cell phone, there are, understandably, questions and resulting debates about the precise impact that AI will have on the business world, including the legal profession. To best adopt any new technology, one must first invest in understanding how it works. The EEOC has done exactly that over the last several years. The businesses that use AI software to make employment decisions must similarly make a commitment to fully understand its impact, particularly with regard to applicants and employees who are members of protected classes. The employment evolution is here, and those who are best equipped to understand the risks and rewards will thrive in this exciting new era.
