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.
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.
By Gerald L. Maatman, Jr., Gregory Tsonis, and Christian J. Palacios
Duane Morris Takeaways: On August 22, 2025, U.S. District Judge Matthew Kennelley for the Northern District of Illinois ruled that a group of supermarket meat, bakery, and deli managers could maintain their collective action against the grocery chain, Mariano’s, despite the differences in job responsibilities and store locations of collective action members. In the same order, Judge Kennelley denied Plaintiffs’ motion to certify a proposed class pursuant to Rule 23, highlighting the more demanding requirements for class certification. The case, captioned Depyper, et al. v. Roundy’s Supermarkets, Inc. et al., Case No. 20-C-2317 (N.D. Ill. Aug. 22, 2025) and available here, is significant because it is one of the first times a court considers a defendant’s “decertification” motion following the Seventh Circuit Court of Appeals decision in Richards, et al. v. Eli Lilly & Co., Case No. 24-2574, 2025 WL 221850 (7th Cir. Aug. 5, 2025), (“Eli Lilly”), which addressed the standard applicable for conditionally certifying an FLSA collective action. As this decision illustrates, although plaintiffs may face a higher legal bar for sending notice to a purported collective post-Eli Lilly, maintaining the collective after it has been “conditionally certified” is still subject to a much less demanding analysis than under Rule 23.
Background
Mariano’s and its banner store, Roundy’s Supermarkets, Inc. (“Defendant”), a well-known grocery store chain in the state of Illinois, was sued on April 14, 2020, by a former meat manager and bakery manager, alleging violations of the Fair Labor Standards Act (“FLSA”) and the Illinois Minimum Wage Law (“IMWL”), seeking unpaid overtime wages and alleging they were misclassified as exempt under both laws. Two years later, on April 21, 2022, a former deli manager filed a similar lawsuit alleging similar violations on behalf of her and other similarly situated deli managers. Id. The first lawsuit was “conditionally certified” on November 9, 2020, and Defendant stipulated to conditional certification in the second action on June 14, 2022.
Following the close of the lawsuits’ respective notice periods, the first collective action (comprised of meat managers and bakery managers) numbered twenty-eight (28) plaintiffs, while the second collective action (comprised of deli managers and hot foods managers) contained seventy-six (76) plaintiffs. Id. The parties consolidated the actions shortly thereafter to streamline discovery. Id.
After the close of discovery, Plaintiffs moved for “final certification” of the FLSA collective and concurrently moved to certify a IMWL class under Rule 23 comprised of all Mariano’s deli, hot foods, bakery, and/or meat department managers which were paid a weekly salary and classified as exempt, within the statutory period. Id. at 5. In response, Defendant moved to “decertify” both collectives. Id.
The Court’s Ruling
In a lengthy, 39-page opinion, the Court denied Plaintiffs’ motion for class certification under Rule 23 while simultaneously granting Plaintiffs’ motion for collective action certification (thus denying Defendant’s decertification motion).
The Court considered Plaintiffs’ class certification motion first, holding that while Plaintiffs established a common question (i.e. whether Defendant maintained an unofficial policy of misclassifying department managers), they did not establish that common issues predominated over individual issues. Id. at 10-11. As Defendant maintained that it properly classified Plaintiffs as exempt from the FLSA under the Administrative or Executive exemptions, the Court determined that individualized inquiries would be required to establish whether exempt work was the primary duty of an employee. Id. at 14. Thus, even though proving an unofficial policy “will move the plaintiffs’ claims forward,” the factfinder would still have to determine whether that policy resulted in a department manager having non-exempt primary duties. Id. Notably, the Court also credited various declarations provided by Defendant from department managers that indicated a wide range of “supervisory responsibility,” thus requiring further individualized inquiries regarding satisfaction of the discretion and independent judgment necessary to establish the Administrative exemption, further precluding predominance. Id. at 15-16. Finally, the Court also denied Plaintiffs’ fallback argument for “issue-class certification” under Rule 23(c)(4), similarly reasoning that even isolating the alleged misclassification policy as a common issue would not materially advance the litigation, given liability still turned on an individualized analysis of plaintiffs’ primary duties. Id. at 19.
With respect to Plaintiffs’ motion for FLSA collective action certification, the Court’s analysis and conclusion differed markedly. The Court first noted that FLSA collective actions do not have the same requirements as Rule 23 class actions and, unlike Rule 23, nothing in the FLSA required “adequate representation,” establishing predominance, or proving the superiority of proceeding as a collective. Id. at 21. Notably, the Court first analyzed and considered the Seventh Circuit Court of Appeals’ recent decision in Eli Lilly, which revised the standard for granting conditional certification of an FLSA collective, and its consequence on the instant action. As the Court noted, although Eli Lilly provided some guidance on the “notice” stage of an FLSA collective action, once opt-in discovery concluded, Plaintiffs bore the burden of establishing that they were similarity situated at the final certification stage by a preponderance of evidence. Id. at 23. The Court also noted that Eli Lilly was silent on the standard that district courts should apply to determine whether the collective contains “similarly situated” employees. Id. at 23.
Given the lack of guidance from the Seventh Circuit, the Court applied a three-factor test adopted by district courts in Illinois and elsewhere, which considers: “(1) whether the plaintiffs share similar or disparate factual and employment settings; (2) whether the various affirmative defenses available to the defendant would have to be individually applied to each plaintiff; and (3) fairness and procedural concerns.” Id. at 23.
Applying these factors, the Court determined that plaintiffs met their burden and could maintain both collectives. Specifically, the Court found that the collective members uniformly testified that they were classified as exempt, constrained by upper-level management hierarchy, expected to work 50 hours per week, and often performed the same tasks as hourly employees. Id. at 28. Though Defendant attempted to point to dissimilarities between Plaintiffs’ testimony and the department manager job descriptions, the Court noted that this argument “does not show a difference among the plaintiffs,” concluding that “[t]he fact that the plaintiffs uniformly testified that their job descriptions did not accurately reflect their actual work is a similarity among them, not a difference.” Id. The Court further rejected Defendant’s argument that managers’ job responsibilities varied across locations, noting that the fact that Mariano’s had forty-four (44) locations was not dispositive. Id. at 27. Defendant did not demonstrate how each store was different from the others, the Court opined, further noting that Defendant itself thought store location was “immaterial” when classifying department managers as exempt. Id. at 27-28. Accordingly, the Court certified the twenty-eight (28) collective action of meat and bakery managers and the seventy-six (76) collective action of deli and hot foods managers.
Takeaway for Employers
This decision highlights the relatively lenient standard applicable to FLSA collective actions, as opposed to Rule 23 class actions. Significant variation among job duties, titles, and responsibilities may not be enough to defeat collective action certification, and Employers should formulate an aggressive strategy for obtaining record evidence of substantial dissimilarities to prevail at the decertification stage. The Depyper decision also demonstrates that, while the Seventh Circuit has weighed in on the notice requirement for conditional certification, district courts retain substantial discretion in deciding what standard to apply at the “decertification” stage in assessing whether FLSA collective action members are “similarly situated.” Ultimately, even where employers prevail against Rule 23 class claims, they can still face costly and broad FLSA collective action litigation on wage and hour claims.
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 Takeaway:This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman, Jennifer Riley, and Greg Tsonis with their discussion of the key trends analyzed in the third edition of the Duane Morris Wage & Hour Class And Collective Action Review, including courts’ interpretation of the conditional certification process, a circuit-by-circuit scorecard, and best practices for employers in 2025.
Bookmark or download the Wage & Hour Class And Collective Action Review e-book here, which is fully searchable and accessible from any device.
Jerry Maatman: Welcome back, podcast listeners, to our first session of the Class Action Weekly Wire for calendar year 2025. Thank you for being here. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are my partners, Jen Riley and Greg Tsonis. Welcome back.
Jennifer Riley: Thank you, Jerry, happy to be on the first week of Weekly Wire podcast of 2025.
Greg Tsonis: Thanks, Jerry. Glad to be here.
Jerry: Today on our podcast we’re going to be discussing the most recent publication of the Duane Morris Class Action Defense group regarding the 2025 Wage & Hour Class And Collective Action Review. Listeners can find the e-book version of this publication on our blog, the Duane Morris Class Action Defense Blog. Jen, can you share with our listeners some of the ins and outs of this executive summary and e-book?
Jennifer: Absolutely, Jerry. In the Duane Morris Wage & Hour Class and Collective Action Review, we provide an overview of the trends, the key decisions, and the key settlements impacting the wage and hour space over the past year. The purpose of the Review is really multifaceted. First, we hope that it will demystify some of the complexities of class and collective action litigation in the wage and hour space. Second, we really hope the book will keep corporate counsel updated on the ever-evolving landscape of Rule 23 and FLSA collective actions and enable them to really make informed decisions in dealing with these complex litigation risks.
Jerry: Well, I know that wage and hour litigation is one of the hallmarks of our practice with our team collectively having over 225 years of experience in defending these sorts of cases. The review was edited by the three of us on this podcast and we have dozens of additional contributors that analyzed all of the wage and hour class and collective action certification rulings and settlements over the past 12 months. Greg, from your standpoint in terms of dealing with general counsel, what do you think are some of the benefits of this resource?
Greg: Great question, Jerry. So, wage and hour litigation has long been a focus of the plaintiffs’ class action bar. Part of our purpose in putting this together is really to assist our clients by helping them identify developing trends in the case law and offering practical approaches and dealing with these types of cases and class and collective action litigation.
Jerry: As you had mentioned – in 2024, this was a very active space for the plaintiffs’ class action bar, and I think one of the things that clients have remarked to me about is the statistical analysis contained in the Review in terms of looking at circuits’ success rates for both the plaintiff side and the defense side. I know in calendar year 2024, there were approximately 160 motions that were decided and actually plaintiffs had a high degree of success at close to 80%. Jen, what’s your take on why the plaintiffs’ bar is able to certify in essence 4 out of 5 cases?
Of the 157 total motions for conditional certification filed in federal courts in 2024, the plaintiffs won conditional certification 125 times, or at a success rate of 80%, while 32 motions were denied.
Jennifer: Great question, Jerry. So, the threshold for conditional certification tends to be very low. In many cases, plaintiffs are submitting declarations – sometimes only one or two declarations, sometimes with payroll or time records – and courts are routinely accepting this minimal showing. It’s really not about proving the case, at this stage just about showing there’s a plausible basis for contending that the same allegations apply across a defined group. So, given that the plaintiffs’ bar knows this process so well, it’s really no surprise that they are continuing to have a high rate of success here.
Greg: Exactly, and plaintiffs are often able to leverage the conditional certification process and the subsequent notice that issues to bring in more employees to build their case. The fact that it’s relatively easy to get certified gives them a significant advantage right from the start.
Jerry: At least in all circuits except two, both the Fifth and Ninth Circuits, there’s a standard two-part test. A first stage called the lenient stage of conditional certification, and then a second stage called decertification. What occurred in 2024 in terms of how decertification motions came down, especially with respect to the changes or flux in the case law based on what’s coming out of the Fifth and Sixth Circuits?
Greg: That’s right, Jerry. So, after conditional certification, there’s a decertification phase where the court looks closer at the actual claims, the actual evidence that the plaintiffs have been able to marshal, and determine whether those employees are actually similarly situated. Now, historically, federal courts were almost universally following a two-stage process, but as of 2021, the Fifth Circuit threw a wrench in that with its decision in Swales v. KLLM Transport Services. There, the Fifth Circuit essentially abandoned the two-stage process and instituted a more rigorous approach where they required plaintiffs to present stronger evidence upfront. The Sixth Circuit followed suit in a case in 2023, but took a different approach by imposing even stricter standards.
Jerry: It’s very interesting to me that a piece of New Deal legislation passed in 1938, even close to 100 years later, has three different standards – a virtual patchwork quilt of case law depending on where an employer is sued, and what particular circuit’s law is applicable to the certification motion. What’s that like, Jen, in terms of what employers face in trying to defend themselves in these sorts of cases?
Jennifer: Absolutely, Jerry. In a word, it’s creating inconsistency. And that inconsistency could be problematic because it makes predicting outcomes more difficult. And with these now 3 distinct standards, there is a growing chance that the Supreme Court eventually will step in to provide some clarity here.
Jerry: I think it also has something to do with case architecture and venue selection. In 2023, we saw two dozen rulings in the Sixth Circuit. Yet last year, only a dozen, basically a 50% drop in the number of cases filed and then went to certification there. What do you think are the long-term implications in terms of FLSA litigation and venue selection?
Given the Sixth Circuit’s abandonment of the traditional two-step certification process, we expected a material decrease in FLSA cases filed in that in 2024. Indeed, there were only 12 rulings on certification and decertification motions in 2024 in the Sixth Circuit, down from 22 total rulings in 2023. In 2024, the Second Circuit issued the most certification rulings (27 granted; 6 denied), followed by the Fourth Circuit (20 granted; 1 denied); and the Ninth Circuit (13 granted; 7 denied).
Jennifer: Well, Jerry, it’s hard to say for sure. On the one hand, the stricter certification process could deter some plaintiffs from filing in the Sixth Circuit. That certainly seems to have been the case over the past year. On the other hand, employers could face a tougher time getting cases decertified after they’ve been conditionally certified which could lead to larger settlements, or more cases being litigated in other jurisdictions. So, we may see a shift in how and where the cases are filed going forward.
Jerry: Well, certainly anyone who is awake and watching TV on January 20th saw that change is inevitable, and change is now upon us, at least at the governmental sector. Greg, what do you think 2025 bodes for employers in terms of the types of things that the private plaintiffs’ bar will do, especially in the context of FLSA class and collective action litigation?
Greg: The overall trend is clear, Jerry. Employers should be aware that wage and hour litigation isn’t going away anytime soon. Given the plaintiffs’ bar’s ongoing success in these types of cases, and the ease with which they’re able to secure conditional certification, employers really need to be proactive. That means making sure that their pay practices are fully compliant, making sure that they’re reviewing employee classifications, and being ready to respond quickly to potential lawsuits. If they don’t, they might face costly litigation even in those jurisdictions where the plaintiffs’ bar is seeing more pushback.
Jennifer: And to add to that, employers also should be mindful of jurisdictions that are considered plaintiff-friendly, such as the Second Circuit, Fourth Circuit, Ninth Circuit. These are areas where a lot of FLSA litigation is concentrated and they tend to have even higher success rates for the plaintiffs.
Jerry: Success is all about filing the lawsuit, certifying it, and monetizing it. The Review spends a lot of pages delving into key settlements in the wage and hour space – what were the results in 2024 and what does it tell us for 2025?
Greg: Well, Jerry, plaintiffs did very well in securing high-dollar settlements in 2024 in this space, although not quite as well as they did in 2023. In 2024, the top 10 wage and hour settlements totaled just shy of $615 million. That was a decrease from 2023, when the top 10 wage and hour settlements totaled $742.5 million, but relatively in line with recent years.
The top 10 wage & hour class and collective action settlements totaled $614.55 million in 2024, down from $742.5 million in 2023, and up from $574.55 million in 2022.
Jerry: Well, my prognostications are the numbers in 2025 are going to go through the roof, and I think we’re apt to see even higher numbers than we’ve seen ever before. But obviously the jury’s still out on that. Well, thank you, Jen, and thank you, Greg, for your thought leadership and analysis in this area, and thank you to our loyal blog readers for tuning in to our first podcast of 2025. Please order your free copy of the Duane Morris Wage & Hour Class And Collective Action Review e-book right off of our blog.
Greg: Thank you for having me, Jerry, and thank you, listeners.
By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory Tsonis
Duane Morris Takeaways: Complex wage & hour litigation has long been a focus of the plaintiffs’ class action bar. The relatively low standard by which plaintiffs can achieve conditional certification under the Fair Labor Standards Act (FLSA), often paired with state law wage & hour class claims, offers a potent combination by which plaintiffs can pursue myriad employment claims. To that end, the class action team at Duane Morris is pleased to present the second edition of the Wage & Hour Class And Collective Action Review – 2025. This new publication analyzes the key wage & hour-related rulings and developments in 2024 and the significant legal decisions and trends impacting wage & hour class and collective action litigation for 2025. We hope that companies and employers will benefit from this resource and that it will assist them with their compliance with these evolving laws and standards.
Click here to download a copy of the Wage & Hour Class And Collective Action Review – 2025 eBook.
Stay tuned for more wage & hour class and collective action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.
By Gerald L. Maatman, Jr., Gregory Tsonis, and Ryan T. Garippo
Duane Morris Takeaways: On January 15, 2025, in Carrera v. EMD Sales, Inc., No. 23-217, 2025 WL 96207 (S. Ct. Jan. 15, 2025), the U.S. Supreme Court unanimously reversed the U.S. Court of Appeals for the Fourth Circuit, holding that the burden of proof required to prove the applicability of exemptions to the Fair Labor Standards Act (the “FLSA”) is not the “clear and convincing evidence” standard applied in the Fourth Circuit. In so doing, the Supreme Court harmonized the law across the country and confirmed that such exemptions need only be proven by a preponderance of the evidence.
Background
E.M.D Sales, Inc. (“EMD”) is a company that distributes food products in the Washington D.C. area. It employs sales representatives who work with partner grocery stores to help manage EMD products. The sales representatives “spend most of their time outside of EMD’s main office servicing stores on their routes,” however, there was disagreement as to “whether [the] sales representatives’ primary duty is to make sales of EMD products.” Carrera v. EMD Sales, Inc., No. 17-CV-3066, 2021 WL 1060258, at *2 (D. Md. Mar. 19, 2021).
In 2017, several of these sales representatives sued EMD in federal court in Maryland, arguing that they were entitled to overtime pay under the FLSA. In response, EMD argued that the sales representatives were exempt from the FLSA’s requirements pursuant to the “outside salesman” exemption. 29 U.S.C. § 213(a)(1).
Following a bench trial on the issue, the district court held that the outside salesman exemption did not apply. In so doing, the district court relied on Fourth Circuit precedent holding that the employer has the burden of proving the applicability of any FLSA exemption by “clear and convincing evidence.” Carrera, 2021 WL 1060258, at *5. In federal courts outside of the Fourth Circuit, an employer is only required to prove these exemptions under a lower standard of proof called the preponderance-of-the-evidence standard, which is the typical standard in civil cases. Id. The district court held that the employer failed to meet the heightened burden of proof regarding the applicability of the exemption, and thus held that the EMD sales representatives were entitled to overtime pay.
On appeal, EMD argued that the heightened “clear and convincing evidence” standard, which had long been the applicable standard for federal courts within the Fourth Circuit, should be overturned so it conformed with the standard applied across the rest of the country. The Fourth Circuit declined to do so and explained that “the district court properly applied the law of this circuit in requiring the defendants to prove their entitlement to the outside sales exemption by clear and convincing evidence.” Carrera v. EMD Sales, Inc., 75 F.4th 345, 353 (4th Cir. 2023). EMD, thereafter, sought review from the U.S. Supreme Court, which granted certiorari to resolve the issue.
The Supreme Court’s Opinion
In a unanimous 9-0 opinion written by Justice Kavanaugh, the Supreme Court explained that the “Fourth Circuit stands alone in requiring employers to prove the applicability of Fair Labor Standards Act exemptions by clear and convincing evidence. Every other Court of Appeals to address the issue has held that the preponderance standard applies.” Carrera, 2025 WL 96207, at *3. In noting that the “preponderance of the evidence” standard is “the established default standard of proof in American civil litigation,” the Supreme Court explained that the default standard can only be abrogated by statute, constitutional requirement, or other uncommon situations where unusual coercive relief is sought (e.g., revocation of citizenship, etc.).
In analyzing whether any such circumstances existed, the Supreme Court first observed that the FLSA is silent on the applicable burden of proof, noting there is no language that suggests that Congress intended a heightened burden to apply. Second, because the FLSA does not implicate constitutional rights, the U.S. Constitution did not compel a different result. Third, because FLSA lawsuits are akin to other employment statutes that entitle certain employees to monetary relief, they are not unusually coercive.
Turning next to policy arguments in favor of a heightened standard, the Supreme Court noted that other important statutes, such as Title VII of the Civil Rights Act, apply a preponderance standard while seeking to achieve laudable policy goals, such as ending discrimination in the workplace. Id. at *4-5. Finding nothing particularly distinct about the FLSA, the Supreme Court ultimately rejected the policy arguments advanced by the sales representatives, explaining that “rather than choose sides in a policy debate, this Court must apply the statute as written and as informed by the longstanding default rule regarding the standard of proof.” Id. at *5.
As a result, the Supreme Court reversed the decision of the Fourth Circuit and held that an employer must prove the applicability of FLSA exemptions only by a preponderance of the evidence. The Supreme Court also remanded the case back to the district court for a determination as to whether EMD met the lower evidentiary burden.
Implications For Employers
The Supreme Court’s decision in Carrera is a welcome reprieve for employers sued in Maryland, Virginia, West Virginia, North Carolina, and South Carolina federal courts. These employers will no longer have to satisfy a heightened burden of proof that they would otherwise not have to satisfy if sued for the same claims in any other state. Accordingly, employers based in those states can rest a little easier knowing that the standard for proving FLSA exemptions if sued will be the default standard applied in other jurisdictions, and not the heightened “clear and convincing evidence” standard that has long applied.
