tlandbusinessjournal.com
portland business journal | november 2, 2012
EEOC anticipates class-wide
actions over discrimination
PORTLAND, OREGON
BUSINESS NEWS FROM THE FOUR-COUNTY REGION
NOVEMBER 2, 2012
FOCUS
EEOC anticipates class-wide actions over discrimination
The agency isThe
unfazed
by aismaterial
Court ruling
agency
unfazedSupreme
by a material
Supreme Court ruling
What could be the “new” Equal EmWhat
could be the “new” Equal Employment
ployment
Opportunity
Commission
Opportunity Commission debuted on Sept. 7,
debuted on Sept. 7, when it published a
when
drafttaking
of its plan
for taking
draft itofpublished
its plana for
enforcement
enforcement
actions
against
employers
in the
actions against employers in the future.
future.
The draft Strategic Enforcement Plan
The draftwhere
Strategic
Enforcement
Planconcenoutlines
outlines
the
EEOC will
where
the resources
EEOC will for
concentrate
its resources
trate its
conducting
investigations
and bringing
charges
for
conducting
investigations
and through
bringing
2016. through 2016.
charges
Historically,most
most
actions
brought
by
Historically,
actions
brought
by the
the EEOC
been
on behalf
of aone
or
EEOC
have have
been on
behalf
of one or
small
a
small
number
of
employees.
In
2011,
number of employees. In 2011, the EEOC filed
the EEOC
lawsuits
and million
obtained
300
lawsuitsfiled
and300
obtained
$455.6
in
$455.6 million in relief for private sector,
relief for private sector, state and local employstate and local employees, as well as job
ees,
as well as job applicants.
applicants.
The
planplan
makes
it clearitthat,
during
the
The draft
draft
makes
clear
that,
next
threethe
years,
thethree
agencyyears,
intendsthe
to focus
its
during
next
agency
resources
“broad-based,
intends on
to identifying
focus its resources
onsystemic
identiand
class-wide”
allegations
of discrimination.
fying
“broad-based,
systemic
and classThe goal
of investigating
and charging classwide”
allegations
of discrimination.
Theclaims
goal appears
of investigating
chargbased
heady, givenand
the decision
ingyear
class-based
heady,
last
by the U.S. claims
Supreme appears
Court in Wal-Mart
given Inc.
thev.decision
by high
the court
U.S.
Stores
Dukes. Inlast
that year
case the
Supreme
Court
in Wal-Mart
Inc.
rejected
the use
of statistics
and otherStores
generalized
v.
Dukes.
In
that
case
the
high
court
data to support a putative class. Nevertheless, rethe
jected the use of statistics and other genEEOC will clearly be stepping up its search for
eralized data to support a putative class.
national, regional and even local entities vulnerNevertheless, the EEOC will clearly be
able
to class-wide
of discrimination.
stepping
up itsclaims
search
for national, reEntities
within
thelocal
EEOC’s
sightsvulnerable
will include
gional
and
even
entities
employers
who claims
are initially
the subject of a sinto class-wide
of discrimination.
gleEntities
employeewithin
claim. Once
the EEOC
adoptswill
the
the EEOC’s
sights
new
plan (likely
by the who
end ofare
the initially
year), eachthe
of
include
employers
subject
ofoffices
a single
claim.
Once
its
53 field
mayemployee
be expected
to evaluate
the EEOC
the new
plan (likely
by
claims
for anadopts
opportunity
to initiate
a broader
the endabout
of theunlawful
year), each
of itsor
53 practices
field ofinquiry
patterns
fices may
be employees
expected on
to aevaluate
claims
affecting
other
class-wide
basis.
for
an opportunity
initiate
broader
Further,
without any to
claim
at all,athe
EEOC
inquiry
unlawful
patterns
praccan,
on itsabout
own initiative,
present
to anyor
employtices affecting other employees on a
er of its choosing costly and time-consuming inclass-wide basis.
vestigative
inquiries.
Further,
without any claim at all, the
What
will
subject
those inquiries
be?
EEOC can, the
on its
ownofinitiative,
present
Highlights
of the plan of
canits
be summarized
as folto any employer
choosing costly
lows
for both individual investigative
and class-basedinquiclaim
and time-consuming
charges.
ries.
What will the subject of those inquiries
be? Highlights
of the
plan can be summaDISPARATE
TREATMENT
IN HIRING
rized
follows
both
individual
The as
agency
will for
target
hiring
practices and
that
class-based
claim
charges.
may
be facially
neutral
but are intended to
Discrimination
baseD recently
The
EEOC
on sexua orientation
filed a federal suit against
The agency identifies the
Bass Pro Outdoor
World,
protection
of lesbian,
gay,a
retailer
of
sporting
goods
and
bisexual and transgendered
products,asclaiming
a systemic
workers
an “emerging
ispattern
of Title
hiring VII
Caucasian
sue”
under
of the
males,
ratherAct.
than hiring qualiCivil
Rights
The Hispanics
draft enforcement
plan
fied
and African
guest
follows
on the
of that
the
Americans,
for heels
positions
column
EEOC’s
includeddecision
cashier, and
salesopinion
associissued
this year stating
ate andearlier
supervisor.
Susan K.
thatThe
discrimination
against
an
draft plan also
indicates
Eggum
employee
or applicant
on the
that the agency
will focus
on
basis of the person’s gender
applicant screening tools, including inquiries
identity violates Title VII.
as to whether the That
applicant
has ever been crimidecision applies to all
nally
convicted.
future
EEOC enforcement and litigation
activities in its 53 field offices, and is bind-
DISCRIMINATION
AGAINST
PREGNANT
APPLICANTS
ing on all federal
agencies
and
departAND
EMPLOYEES
ments.
The draft plan could certainly result
agency will
focusand
on charges
employers
who
in The
a class-based
inquiry
against
employer practices
screening
applicants,
discriminate
against of
pregnant
women
whose
and in retaining
and promoting
open LGBT
applications
for employment
are rejected.
They
employees.
will
also focus on women in the workplace
who lose their employment or suffer other
the aDaemployment
amenDments
adverse
actions substantially due to
act
anD
unDueJust
harDship
being pregnant.
after issuing the draft plan,
The ADA Amendments Act went into
the EEOC filed four lawsuits against employers
effect in 2009, giving employees broader
charging
themin
with
discrimination.
protections
thepregnancy
definition
of a disability, including impairments that are peri-
DISCRIMINATION
BASEDsuch
ON SEXUAL
ORIENTATION
odic or recurring
as post
traumatic
The agency
identifies the protection of lesbistress
disorder.
an,The
gay,EEOC
bisexualhas
andmade
transgendered
as
clear inworkers
its draft
plan
that it will
focus
onTitle
whether
an
“emerging
issue”
under
VII ofemploythe Civil
ers are
failing to provide reasonable acRights
Act.
commodations
to qualified
individuals.
The draft enforcement
plan follows
on the
It
can
be
expected
that
the
will
heels of the EEOC’s decision agency
and opinion
focus earlier
on employer
deissued
this yeardefenses,
stating thatincluding
discrimination
fenses
that
it
would
be
unduly
difficult
against an employee or applicant on the basisor
of
expensive to provide the accommodation
the person’s gender identity violates Title VII.
requested.
That decision applies to all future EEOC
enforcement
retaliatoryand
anDlitigation activities in its 53
field
offices,
andenvironments
is binding on all federal agenhostile
work
cies
and
departments.
The draft
plan to
could
The
draft
plan addresses
the need
encertainly
result in aeducation
class-based
inquiry
and
gage in additional
and
outreach
charges
against
practices
programs
on aemployer
variety of
issues.of screening
These issues
appear to
overly
applicants,
and in retaining
andinclude
promoting
open
broad employees.
arbitration or settlement agreeLGBT
protections in the definition of a disability,
including impairments that are periodic or
recurring such as post traumatic stress disorder.
The EEOC has made clear in its draft plan
that it will focus on whether employers are failing to provide reasonable accommodations to
qualified individuals. It can be expected that the
agency will focus on employer defenses, including defenses that it would be unduly difficult
or expensive to provide the accommodation
requested.
RETALIATORY AND HOSTILE WORK ENVIRONMENTS
The draft plan addresses the need to engage in
additional education and outreach programs on
a variety of issues.
These issues appear to include overly broad
arbitration or settlement agreements that seek to
bar the submission of a complaint to the EEOC;
failures to implement and enforce document
retention programs that preserve employment
and demographic data; and failures to identify
and remedy workplace conduct that is harassing
or retaliatory due to race, color, sex, ethnicity,
age, disability or religion.
DISPARATE PAY FOR MIGRANT AND IMMIGRANT
WORKERS
The agency will be focusing on employers
with immigrant and migrant workers whose
compensation is less than other qualified workers in unprotected classes performing comparable job functions.
With the EEOC likely adopting the plan by
the end of 2012, employers should be auditing
many of their policies.
These include their data retention protocols;
their hiring and screening tools; their policies of
nondiscrimination in hiring, retaining and promoting LGBT workers; their responses to requests for
accommodation by qualified workers; their hiring
and leave policies granted pregnant female workers; and their compensation of protected workers
as compared to unprotected workers performing
substantially similar job functions, particularly
immigrant and migrant workers.
ments that seek to bar the submission of
SUSAN K. EGGUM is a shareholder at law firm Lane Powell,
a complaint
to theACT
EEOC;
failures
to imfavor certain employees, and thus discriminate THE
ADA AMENDMENTS
AND UNDUE
HARDSHIP
where she focuses her practice in the areas of employment and
and enforce
document
retention
Disparate
treatment
hiring classes of plement
against
other
qualified, inprotected
The ADA
Amendments
Act went
into business litigation. She can be reached at eggums@lanepowThe agency will target hiring practices programs that preserve employment and
employees.
effect in 2009, giving employees broader ell.com or 503-778-2125.
that may be facially neutral but are in- demographic data; and failures to identify
and remedy
conduct
that
is ha-Reprinted by Scoop ReprintSource 1-800-767-3263.
tended
to favor
certain
Reprinted
for web
use with employees,
permission fromand
the Portland
Business workplace
Journal. ©2012,
all rights
reserved.
thus discriminate against other quali- rassing or retaliatory due to race, color,
sex, ethnicity, age, disability or religion.
fied, protected classes of employees.