EEOC Full-Scale Investigations and Lawsuits Strategic Techniques to - - PowerPoint PPT Presentation

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Drafting Position Statements to Mitigate EEOC Full-Scale Investigations and Lawsuits

Strategic Techniques to Address Claims of Failure to Hire, Equal Pay, Class vs. Individual and More

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUESDAY, MAY 10, 2016

Presenting a live 90-minute webinar with interactive Q&A Richard S. Cohen, Shareholder, Jackson Lewis, Phoenix Paul Patten, Shareholder, Jackson Lewis, Chicago

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EEOC adopts systemic initiative in 2006. Reiterates focus on systemic litigation in strategic plan approved February 22, 2012. Strategic Enforcement Plan issued on December 17, 2012 identifies six nationwide priorities. “Targeted enforcement”

• Deeper dives during investigations
• Expect more lawsuits

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Identifies the Commission’s nationwide priorities:

• Eliminating systemic barriers to recruitment and hiring
• Protecting immigrant, migrant, and other vulnerable workers
• Addressing emerging issues
• ADA issues, LGBT coverage under Title VII, pregnancy-related

discrimination, aging workforce

• Enforcing equal pay laws
• Preserving access to the legal system
• Combating harassment through systemic enforcement and
• utreach

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Target employers in bigger, more costly systemic discrimination suits EEOC looking to begin collecting EEO-1 Pay Data in 2017. Investigators looking to turn individual cases into systemic cases Nearly every individual charge of discrimination is a potential systemic EEOC investigation and class-wide lawsuit

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Top priority for EEOC right now. EEOC will focus on all aspects of employers’ pre- employment selection processes including:

• Pre-employment tests/online assessments
• Criminal background checks
• Credit checks
• Physical fitness tests
• Drug screens

Count on EEOC following through with this priority!

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EEOC treats cases identified as involving “systemic discrimination” where the “patterns of employment discrimination are the most severe, and where maintenance of a successful ‘systemic case’ will have a significant positive impact on the employment opportunities available to minorities and women.” EEOC Compl. Man. § 16.1.

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• Low utilization of available minorities and/or women.
• Substantially smaller proportion of minorities and/or

women than other employers in the same labor market who employ persons with the same general level of skills.

• Substantially smaller proportion of minorities and/or

women in higher paid job categories than in lower paid categories.

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• Policies and practices that have an adverse impact on

minorities and/or women.

• Practices that have the effect of restricting or

excluding available minorities or women.

• Employers with large turnover or expanding

employment opportunities whose practices may not provide available minorities and women with fair access to job opportunities.

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• Multiple charges with similar allegations filed in a short

period of time.

• Allegations in an individual charge suggesting that a

group of employees may have been impacted.

• No request to mediate.

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Treat this like a potential class action. A thorough investigation is more important than ever. Determine timeliness for acts referenced in the charge. Preserve documents.

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• Enact safeguards against retaliation.
• Determine who will do the investigation.
• Establish a point of contact with the EEOC.

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• Consider resolving the individual case early.
• Consider whether policy or procedure changes might be

useful.

• Be prepared for multiple rounds of requests for

information.

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Determine whether isolated incident or an established practice or policy. Obtain relevant documents. Obtain comparator information.

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Identify and interview key individuals and witnesses, as well as authors of any documents that are not self- explanatory. Identify former applicants and employees who may support the EEOC’s theories. Prepare for EEOC interviews.

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Guidance regarding extensions of time. Charging Parties will be offered a copy of Respondent’s position statement. Respondents are responsible for identifying and separating confidential information from non-confidential information. Expectations of specific, factual responses that are clear, concise, complete and responsive.

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Generally position statement due 30 days after notice of charge of discrimination. If an extension is necessary, request should be made at earliest possible time. Explain reason for extension. Call investigator and confirm in writing.

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Option to be offered to Charging Party. Charging Party has 20 days to respond. Respondent does not see Charging Party Response. Some EEOC offices have historically followed this practice. Concept not entirely new: Charging Party has always had option to review through FOIA. New practice allows review earlier.

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Position statement should refer to, but not identify information that Respondent asserts is confidential. Confidential information loaded as separate documents

• n EEOC portal.

Mark information as “confidential.” Provide justification for designating information as confidential.

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Medical information (except Charging Party’s medical information). Social Security Numbers, dates of birth, home addresses and telephone numbers. Confidential commercial or financial information. Trade secrets. References to other charges filed against the Respondent or other charging parties.

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Explain Respondent’s version of the facts and identify specific documents and evidence supporting its position. Address all allegations of the charge. Provide name of organization, primary business, and contact information for person responding. Identify decision maker. Inform the EEOC if settlement is possible.

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Sex harassment: statement or affidavits from witnesses with direct knowledge. Pay discrimination: compensation for comparable employees and how each employee’s pay was determined. Age termination: personnel records documenting reasons for termination. Pregnancy termination: documentation showing reasons for termination.

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EEOC Will Challenge Anything It : Investigated After Something Reasonably Came to Its Attention; Found Cause to Believe was Discriminatory; and Attempted to Conciliate.

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Position Statements Policies/Guidelines/Code of Conduct Spreadsheets or Other E-Data Discussion of ALL Hiring or Promotion Procedures

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Provide no more and no less information than that which is relevant. Be accurate. Show that “justice” was done.

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State company’s position persuasively. Request close of investigation. Explain company’s EEO policies and if appropriate, training and complaint procedures. Charging party’s employment history. Explain non-discriminatory/business reasons for disputed decisions. Lengthy discussions of legal precedent are usually unnecessary.

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Providing policies that may have a disparate impact or demonstrate lack of accommodation. Lists of employees treated in a like manner (sometimes necessary when responding to state FEPA charges). Background showing the size of the company, especially if charge is filed against subsidiary. Arbitration/severance agreements.

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Class vs. Individual Claims Failure to Hire Claims Equal Pay Claims

Narrow Scope and Individualize!

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Employers must change how they evaluate and respond to charges, even those that involve single, alleged victim. Handling the “request for information” from EEOC. Use caution in defending charges by citing to uniformly enforced policies or providing data about diverse workforce. Ask EEOC to explain nature and scope of its investigation and identify all known aggrieved individuals. Document all efforts to act reasonably and cooperatively with EEOC during investigative process.

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Conduct preventive analyses with data from selection processes. Validate pre-employment tests with statistical analyses. Periodically conduct preventive compensation analyses. Cover internal analyses with attorney-client privilege. Comprehensive diversity and inclusion (D&I) program. Independent, objective assessments of workplace. Stay current with legal trends.

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