Though the future of long-standing compliance obligations such as EEO reporting seems unclear, employers are taking a huge risk if they stop documenting how they come to their decisions. In this article, Kim Hendon, Affirmity Vice President of Sales, examines how a portfolio of Second, Fifth, and Tenth Circuit rulings reinforce the enduring case for strong documentation and data when defending against employment discrimination claims.
Most employers assume litigation risk gets managed during a case: through a good lawyer, a strong defense strategy, a favorable jury. A recent run of federal appellate rulings is a reminder that the outcome is often locked in long before any of that happens.
The Chemjet Case: A Quick Snapshot
On July 1, 2026, the Fifth Circuit affirmed summary judgment in favor of the employer on every claim in Ayres v. ChemJet International, Inc., meaning the case never reached a jury.
Deana Ayres, a logistics coordinator at ChemJet, alleged she was sexually harassed by three individuals and retaliated against after reporting a workplace threat. The district court granted summary judgment for ChemJet on both her hostile work environment and retaliation claims. The Fifth Circuit agreed on every point.
Three Reasons Why the Employer Won
This wasn’t a case where the court decided nothing inappropriate had ever happened. It was a case where the employer could prove, through its own records, that it had acted reasonably, and where the employee was unable to produce evidence that the employer had a case to answer.
- Two of the three alleged harassers weren’t ChemJet employees. One had already been terminated before the conduct at issue occurred. The other was a coworker’s spouse, not a company employee at all.
- ChemJet could prove the plaintiff never used the harassment reporting channel they provided. The third instance of harassment involved a ChemJet employee. Ayres was provided with an Employee Handbook detailing an anti-harassment policy and where to direct her report. She signed, indicating her receipt of the handbook, but never used the channel. The Fifth Circuit agreed with the district court that this constituted a “Faragher/Ellerth” affirmative defense: the company tried to stop it, the worker failed to act.
- The retaliation claim failed for lack of proof. Ayres claimed she’d lost overtime hours after reporting an incident in which a co-worker threatened to harm a supervisor. However, ChemJet’s own payroll records showed no such decrease.
ENSURE YOUR DATA IS DEFENSIBLE | ‘Poor Data Is a Problem—Here’s How to Find It’
The Bigger Principle
None of this was decided at trial. It was decided at summary judgment, meaning the employer never had to argue its case in front of a jury at all. That only happens when the underlying record is already strong enough to make the legal outcome obvious.
The logic of Faragher/Ellerth, applied here to Ayer’s retaliation claim, extends well past harassment claims. Across employment law, retaliation, discrimination, pay claims, adverse impact, the pattern is consistent: employers prevail when they can show they took reasonable steps and have the documentation to back it up.
This Isn’t One Case: It’s a Pattern
Ayres v. ChemJet International, Inc. isn’t an outlier. Pull the thread across circuits and years, and the same ingredients show up in employer win after employer win.
Policies and Channels Employees Are Well Aware Of
In the Court of Appeals for the Tenth Circuit Moon v. Oklahoma Department of Corrections, the employer won on the same Faragher/Ellerth logic seen in Ayres: a disseminated anti-harassment policy, and an employee who never used the reporting channels available. In the Second Circuit case Ferrara v. Sterling, Inc., the employer didn’t just have a policy. It acted on a complaint once one came in: prompt investigation, corrective action, and the harasser’s exit from any supervisory role. In this instance, the record of appropriate response was pivotal, as it was executed according to the advertised policy.
HAND-PICKED FOR YOU | ‘The State of Global Pay Equity: What Employers Need to Know’
Objective, Consistent Documentation
Within the last five years, the Fifth and Tenth Circuits have ruled on a large number of cases where organizations were saved by their documentation of events and policies:
- In Houston v. Texas Department of Agriculture, a year of documented warnings, attendance, performance, and policy violations defeated a Family and Medical Leave Act-based (FMLA) retaliation claim.
- In Bell v. City of Tulsa, the city’s documented policy violations survived a discrimination and retaliation challenge because the plaintiff couldn’t show those reasons were pretextual.
- In Rodriguez v. DeJoy, USPS’s route and pay decisions were found to be tied to standardized, nationwide count data, constituting a neutral criteria applied the same way to every carrier.
- In Spann v. FedEx Freight, a progressive-discipline paper trail and a documented light-duty review process adequately showed why a decision was made.
A further example involving the EEOC, EEOC v. A&A Appliance, Inc., is illustrative of the same principle. The Colorado federal court, with reference to Fifth, Tenth, and Eleventh Circuit rulings, decided in favour of A&A Appliance, Inc., finding that an EEOC disability discrimination lawsuit was “frivolous, unreasonable, and without foundation”. Though the employer’s success was largely due to issues with the EEOC’s own complaint—the employee’s diagnoses all post-dated the alleged accommodation requests—it helped itself greatly by maintaining clear records of the medical information the employee communicated. The agency was made to pay the fees of the employer’s attorney.
None of these employers are relying on the same facts, the same circuit, or even the same legal theory. What they share is the same underlying capability: policies and procedures that are clearly communicated to employees, and documentation that’s consistent and objective.
From Policies to Data Systems
Ayres v. ChemJet International, Inc. turned on a handbook and a signature—relatively simple documentation. But the same principle extends into far more complex terrain, and should be a boardroom issue rather than an HR filing exercise.
Since EO 11246 was rescinded, many federal contractors have concluded they can scale back workforce analysis. Title VII didn’t go anywhere, though, and neither did the EEOC, which recovered $660 million for over 17,000 workers in FY2025, the third-highest total in the agency’s history, on top of a record $528 million in pre-litigation settlements alone. State pay equity and pay transparency laws are expanding, and AI employment laws (NYC Local Law 144, Illinois HB 3773, California’s bias-testing rules) are now live and enforceable.
The math is the real argument here, not just the legal theory. Every one of the employers above spent money on a policy, an investigation, a data system, or a documentation process, long before anyone sued them. What they avoided was the alternative: discovery, deposition costs, settlement negotiations, and in the average case, a payout. Building the record is the cheap option. The EEOC’s own FY2025 numbers make the size of the alternative clear, and the exposure isn’t just hypothetical:
- EEO-1 and VETS-4212 filings confirm you collected data, but they don’t show whether hiring, promotion, or veteran retention patterns would hold up to scrutiny.
- Pay equity issues compound silently when you have no ongoing regression analysis schedule. Eventually, an audit or charge surfaces these issues, at which point liability applies retroactively across the workforce.
- AI hiring tools now carry independent audit and bias-testing requirements in multiple jurisdictions. However, a vendor’s compliance assurance is not a legal defense: the employer needs its own documented audit trail.
- Adverse impact in hiring, promotion, or termination accumulates quietly without ongoing monitoring. If you aren’t looking for it, a plaintiff’s attorney or the EEOC will find the pattern before you do.
The same question a court asked about ChemJet’s handbook now applies to workforce data broadly: if an investigator, plaintiff’s attorney, or board member asked to see the underlying work, could you show them?
SOFTWARE FOR THE CURRENT ERA OF ENFORCEMENT | ‘3 FAQs That Explore What Proactive Compliance Looks Like With Affirmity’s Talent Decisions Software’
The New Model
The old defense model was reactive: Policy → Training → Investigation → Litigation. The model that organizations must adopt is proactive: Data → Monitoring → Documentation → Early Resolution or Dismissal.
Since well before the rescission of EO 11246, our position has been that organizations need to move on from minimum compliance—filing what’s required and hoping it holds up. We’ve long advocated for defensible compliance, where the analytics, documentation, and audit trail already exist before anyone asks for them. The difference now is that the regulator’s checklists are being taken away, and it’s imperative that you are able to prove, on your own terms, that your decisions were fair.
The Takeaway
Employers don’t win cases because of what they say after a claim is filed. They win because of what they built before the claim existed, the reporting systems employees actually use, the decisions backed by consistent documentation and workforce data that can withstand scrutiny.
Courts don’t expect perfection. They expect proof. Across circuits, industries, and fact patterns, the same ingredients keep showing up in the win column: policies, documentation, and specific data. Building that record costs far less than the fight it prevents.
Equip your organization with expertise for a new era of employment processes and compliance: contact us today to learn about risk assessment and analysis solutions.
About the Author
Kim Hendon oversees account management and sales for Affirmity. She is responsible for building successful, long-term partnerships with clients and generating new business. Having served with the company for more than 25 years, Ms. Hendon has in-depth knowledge and broad experience in all areas of workforce analytics and HR compliance.
Ms. Hendon assists clients with the planning and development of workforce compliance and non-discrimination programs, as well as employee engagement initiatives. She holds a Bachelor of Arts in Speech Communication and a Master’s in Business Administration. Connect with her on LinkedIn.