a new eeoc and the "systemic initiative": developments and strategies october 13, 2010

A New EEOC and theA New EEOC and the"Systemic Initiative":"Systemic Initiative":

Developments and Strategies Developments and Strategies

October 13, 2010October 13, 2010

2 | © 2010 Seyfarth Shaw LLP

Today’s Discussion Leader

•Christopher J. DeGroffCo-Chair, Complex Discrimination Litigation

Practice Group

•Seyfarth Shaw LLP

•Chicago Office

•[email protected]

•(312) 460-5982


Today’s Discussion Points

• Overview Of The New Direction And Focus Of The EEOC

• The EEOC’s Systemic Litigation Program And What It Means For Employers

• Strategies For Dealing With Expansive EEOC Administrative Investigations

• Strategies For Confronting And Defeating EEOC Pattern Or Practice Lawsuits

• Negotiating And Settling Litigation With The EEOC, And How It Differs Substantially From Private Party Litigation


Key Trends In 2010

• An Activist EEOC

• An Increased Emphasis On Systemic Discrimination Issues

• Expansive, High-Stakes Governmental Investigations

• Bigger EEOC Pattern Or Practice Lawsuits


Leading Settlements – 2009 Government Enforcement Actions

• Top 10 Settlements Of Governmental Enforcement Actions In 2009 Totaled $107.1 Million. The 5 Biggest EEOC Settlements In 2009 Were:

EEOC v. Outback Steakhouse (D. Colo.) - $19 million

EEOC v. Albertsons (D. Colo.) - $8.9 million

EEOC v. Sears, Roebuck (N.D. Ill.) - $6.2 million

EEOC v. Allstate Insurance (E.D. Mo.) - $4.5 million

EEOC v. B&H Photo Corp. (S.D.N.Y.) - $4.3 million


Leading Settlements – 2010 Government Enforcement Actions

• The Top EEOC Settlements Thus Far In 2010 Are:

EEOC v. Schwab Tire Centers, Inc. (E.D. Wash. Mar. 10, 2010) - $2 Million

EEOC v. Wal-Mart Stores, Inc. (E.D. Ky. Mar. 1, 2010) - $11.8 million

EEOC v. Arapahoe Motors (D. Colo. Jan. 6, 2010) - $1.5 million

EEOC v. YRC Inc. (N.D. Ill. Sept. 15, 2010) - $10 million


Most Significant Rulings Thus Far In 2010 In EEOC-Initiated Litigation

• EEOC v. CRST Van Expedited, Inc., Case No. 07-CV-95 (N.D. Iowa Feb.9, 2010) (the court sanctioned the EEOC $4.5 million for prosecuting a pattern or practice case that had no basis in fact or law)

• EEOC v. Sterling Jewelers Inc., 2010 U.S. Dist. LEXIS 649 (W.D.N.Y. Jan. 6, 2010) (the court held that in a § 707 pattern or practice lawsuit, the EEOC’s claims are not constrained by any statute of limitations)


EEOC Systemic Initiative

• What Is It?

New, Cooperative Effort Among EEOC Field Offices

Effort To Identify “Class-Like” Cases Earlier In The Charge-Processing Procedure

Concerted Move Toward Initiating More Systemic Cases

Based On The Notion That “Where There Is Smoke (One EEOC Charge), There Is Likely To Be Fire (Discrimination Against A Group Of Employees)”



• Why Is This Important?

EEOC’s Systemic Case Initiative Means That Employers Are Being Targeted For More Class-Like Cases

EEOC Is Getting Better At Litigating These Cases (Use Of In-House Experts)

EEOC Is Not Limited By All Of The Rules That Impact Private Party Lawsuits (No Statute Of Limitations Or Certification Requirement)

Bigger Dollar Amounts at Stake



• New Investigation Methods

A Team Of At Least One Investigator And One EEOC Attorney Assigned To Each Case

EEOC Attorneys Are Closely Involved With All Phases, Including Intake Of Charge

EEOC Attorneys May Participate Jointly With Investigators In On-Site Interviews At Employer Sites

Pushes Talent and Expertise Out To The Field Offices

Establishment Of A “National Law Firm Model” – Deploying Experts (Both Statisticians And Labor Economist) As Needed



• Early Identification

EEOC Attorneys Involved In Intake Interviews

“When A Charging Party Asserts Class Allegations, Even Though Not Readily Apparent To The Investigator, The Class Charges Should Be Included.”

►Memo To EEOC Staff

“Charging Parties May Not See The Issues Broadly Enough To Realize That A Class Of Individuals Could Have Been Affected…Structured Interview Questions May Be Helpful In Eliciting Such Information.”

►Memo To EEOC Staff


The EEOC’s New Investigation Strategy

• Push The Envelope Requests For Data, Locations, And Time Parameters

• Criminal Conviction Policy / Use Of Background Checks / Hiring Patterns

• Recidivist Sexual Harasser Situations

• RIF’s

• ADA Leave Of Absence/Per Se Termination Policies


Employer’s Response: Early Identification

• RECOGNIZE WHEN THE COMPANY IS BEING TARGETED EARLY

• Red-Flag Language in Charge

• “I Am Bringing This Charge On Behalf Of Myself And Other Employees Who Are Similarly-Situated”

• “I Have Witnessed A Pattern Of Preference For Younger, Caucasian Workers, Including In Layoffs Of Older African-American Workers”


Early Identification Cot’d

• “A” Charge – Class Allegations + No Mediation may mean Systemic Treatment

• Pattern of EEOC Investigations (could cross geography or business units – TRACK YOUR CHARGE ACTIVITY)

• Aggressive, wide-spread Requests for Information

• Requests to Interview High-Level Managers, Executives, and/or Policymakers

• Know your local EEOC investigators – “Systemic Investigators”


Early Strategies

• Phased Or Stages Responses – Diminish Curb Appeal

• Creation Of Firewalls Around Geographic Areas / Time Periods

• Laying The Groundwork For A Subpoena Opposition

• Selective Strategies In “Calling The EEOC’s Bluff”


EEOC Subpoenas

• The EEOC Is Uses Its Subpoena Power As An Early Discovery Tool – Especially During Investigations Involving Class Claims

• Fact Of Life: Very Short Time Frame To Challenge An EEOC Subpoena (5 Business Days)

• Use Negotiation Methods To Avoid EEOC Enforcement Actions Or Position The Employer’s Defenses

• The EEOC Often Prevails (At Least In Part) In Enforcement Actions


Strategies For Confronting And DefeatingEEOC Representative Actions And

Pattern Or Practice Lawsuits


Representative Actions

• Brought Under § 706(f)(1) of Title VII

• EEOC May Pursue Any Violation Uncovered During Investigation Into Charging Party’s Charge


Representative Actions

• Important Issues

Filed On Behalf Of Individual Or Class Of Individuals

EEOC Does Not Have To Satisfy Rule 23 Requirements – EEOC Sues In Its Own Name To Redress Discriminatory Practices

Not Tied To Typical Statute Of Limitations: Where The EEOC Brings Both A § 706 Representative Action And A § 707 Pattern Or Practice Claim, The EEOC May Be Able To Reach Back To When Pattern Or Practice Began


Private Plaintiffs

• Individual Plaintiffs May Seek To Intervene In An EEOC Action -- To Either Have Some Control Over The Progression Of The Case Or To “Piggyback” On The Work Done By The EEOC

• They May Join As A “Person Aggrieved” As Long As Someone Else Has Filed A Charge Close To The Claim Set Forth In Plaintiff’s Complaint

• Promotes “Co-Venturing” Between EEOC Attorneys And Private Plaintiffs’ Counsel


Pattern Or Practice Cases

• Action Brought Under § 707(e)

• Often Brought With A Parallel § 706 Representative Action

• EEOC-Initiated Action That Alleges A “Pattern Or Practice Of Systemic Discrimination,” i.e., Discrimination Is Employer’s Standard Operating Procedure


Defense Pointers

• Summary Judgment Is Exceptionally Difficulty To Obtain

• Slicing And Confining The “Class” – By The Class Period, Geographic Regions, Job Positions, Etc. – Is A Better Goal

• Experts Are Crucial To Success


Negotiating And Settling LitigationWith the EEOC

• Remember Who You Are Dealing With

• Key Differences From Negotiating Settlements With The Private Plaintiffs’ Bar

• Public Interest Factor

• Media Issues


Consent Decree Essentials

• “Ice In Winter” Strategy

• Caveats; Training; Revised Policies; Monitoring (Internal Or External); Record-Keeping; Posting Of Notice

• Lilly Ledbetter Fair Pay Act Provision


What Should Be In Your Tool Kit?

• State-Of-The-Art e-Discovery And Data Management Capabilities

• On-Going Audit Of And Rigorous Monitoring Of Key Employee Data (Hiring, Pay, And Promotions) And Personnel Policies (Leave And Recruiting)

• Robust Tracking Of Charge Activity

• Rigorous And Early Defense Of EEOC Charges – The Days Of Underestimating The EEOC Are Over


Questions?

a new eeoc and the "systemic initiative": developments and strategies october 13, 2010

Documents

new eeoc

eeoc charge

biggest eeoc settlements

defeating eeoc pattern

eeoc field officeseffort

eeocinitiated litigationeeoc

systemic casesbased

practice case