June 2012 Volume XI No. 2 Taking Care of Business
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EEOC Develops New Plan To Focus On “Systemic Litigation”

Kevin Kerr
Kevin Kerr

Complaints ("Charges") of unlawful discrimination based on gender, race, color, national origin, age, religion or disability, are filed with the Equal Employment Opportunity Commission ("EEOC"). Typically, the EEOC investigates a charge and, if appropriate, will issue a Notice of Right to Sue Letter. The complainant has ninety (90) days after his/her receipt of the Letter to file suit. If the 90 days passes, any suit is barred.

However, the EEOC can also decide to prosecute a suit on behalf of the claimant. It may do this when it believes there is evidence that the employer discriminated against the individual complainant. This pattern has and is about to change. The EEOC's new strategic plan adopts a priority to focus more of it’s case load on "systemic litigation".

The strategic plan notes that "systemic litigation" cases are those that address a pattern or practice, a policy or class cases where the alleged discrimination has a broad impact on an industry, occupation, business or geographic area. In other words, the case has a perceived significance greater than the claims of an individual claimant.

The strategic plan also provides that by the end of fiscal year 2016, a percentage – still to be determined – of cases in the EEOC’s litigation docket will be systemic cases. Increasingly, the EEOC will have to prioritize the systemic cases it chooses to litigate and to bring fewer individual and small-class claims of discrimination, since systemic litigation requires significantly greater resources than other types of litigation.

This emphasis on systemic litigation will begin in the Fall of 2012. Over time, the impact of this new priority will emerge. It seems that the cases involving systemic litigation will involve larger businesses in targeted business clusters.

In 2011, the EEOC had 580 systemic investigations which involved more than 2,000 charges. While systemic lawsuits filed were less than ten percent of the total filed in 2011 (23 out of 261) this number can be expected to increase. In July, 2011, the EEOC obtained a $20,000,000.00 (twenty million dollar) settlement from VERIZON in a nationwide disability lawsuit. From the EEOC’s point of view, the emphasis on systemic cases allows it to utilize its resources to maximize enforcement by focusing on cases with the broadest impact.

There has been some push back from employers and the federal courts where the EEOC has used a few employee’s claims of discrimination to seek much broader relief or action. In the Eighth Circuit (a federal appeals court) the EEOC had made a vague determination that the employer had subjected a “class of employees” to sexual harassment. In EEOC v. CRST Van Expedited, Inc., the Circuit Court dismissed 67 claims because the EEOC failed to properly investigate the claims before filing suit. The Circuit required the EEOC to investigate the claims of each class member. The EEOC is seeking review of this decision.

However, a different result was recently reached by a district court in the Northern District of Illinois. In EEOC v. United Road Towing, Inc., the district court (the federal trial court) allowed the EEOC to pursue claims without a pre-suit investigation of each individual employee's claims or disclosure of the identities of the employee-claimants to the employers. The EEOC had sought $2,000,000 in monetary relief for the charging parties but only two employees of the systemic class were identified. It was only after suit was filed that the EEOC disclosed the names of seventeen other employees allegedly affected by the discrimination.

The EEOC has embraced the district court’s judgment as vindication of its "sue first disclose later" systemic policy. Updates will be provided as this area of the law evolves.

Please contact us at www.hwelaw.com if you have questions regarding this article or if we can be of assistance.


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EEOC Issues Guidelines on Criminal Background Checks

Jim Jorgensen
Jim Jorgensen

Many of our clients routinely use criminal background checks when hiring new employees. The EEOC has just issued new guidelines which limit this use.

The EEOC's concern is that some protected classes, especially minorities, may be unfairly affected ("disparate impact") by the use of criminal background checks. Accordingly, the EEOC has indicated that when using criminal background checks, employers must be guided by three (3) factors.

First, the employer must consider the nature or gravity of the offense or conduct. For example, armed robbery is more serious than vandalism. Second, the employer must consider how much time has elapsed since the conviction or completion of the sentence. Finally, any criminal past must be evaluated against the nature of the job sought.

The guidelines elaborate on several specific points. Two are worth noting. First, they do not impose a blanket prohibition on the use of the question "have you ever been convicted of a crime?" However, the guidelines state that the question should only be asked of applicants who are applying to positions where the criminal history may be relevant, and even then, the question can only relate to convictions that are related to the job.

The biggest development in the guidelines is the EEOC's introduction of the concept of "individualized assessment" to criminal background checks. An employer conducts an "individualized assessment" when it informs an employee or applicant that he or she is being screened out due to a criminal record, provides the individual with an opportunity to respond, and the employer considers extenuating circumstances before making a final decision.

The EEOC characterizes individual assessment as a best practice. However, the EEOC has said it is not required in all circumstances. It is not entirely clear under which circumstances the EEOC will expect an individual assessment to be utilized. To be safe, employers should adopt the process uniformly.

Please contact us at www.hwelaw.com if you have questions regarding this article or if we can be of assistance.

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