When the EEOC Comes Knocking Anticipating and Responding to - - PowerPoint PPT Presentation

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When the EEOC Comes Knocking

Anticipating and Responding to Discrimination and Retaliation Investigations

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURS DAY, JULY 21, 2011

Today’s faculty features: Alison B. Marshall, Partner, Jones Day, Washington, D.C. Teresa R. Tracy, Principal, Gladstone Michel Weisberg Willner & Sloane, Los Angeles

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EEOC Investigations: On the Rise EEOC Investigations: On the Rise

Alison B. Marshall abmarshall@jonesday.com 202-879-7611

5

EEOC Update EEOC Update

• New Chair, General Counsel, and Commissioners
• Increased budget and increased staff
• 93,277 private sector charges in fiscal year 2009
• Recovered $294.1 million
• Filed 281 merits suits, 111 of 281 for classes of

employees

6

Enforcement Priorities Enforcement Priorities

• Systemic Initiative
• Individual charges that raise systemic issues and

Commissioner’s Charges Commissioner s Charges

• E-Race Initiative
• Caregiver stereotyping and family responsibilities
• ADAAA
• GINA
• Ledbetter and compensation discrimination

p

7

E-RACE E-RACE

• “Eradicating Racism and Colorism from Employment”
• 5-year initiative adopted by EEOC for enforcement between 2008 and

2013 EEOC i t d t t t t i f i ll t l l t it i

• EEOC intends to target certain facially-neutral employment criteria

that may have a tendency to disparately impact people of color, including:

• Hiring tests

C dit d b k d h k

• Credit and background checks;
• Arrest and conviction records;
• To accomplish its objectives, the agency plans to:
• Collect greater amounts of employer information

g p y

• Enhance charge processing protocols
• Develop new training methods and tracking tools
• Increase media exposure to race discrimination cases; and
• Promote dialogue about these issues
• Promote dialogue about these issues

8

Hiring: Pre-employment Testing and Hiring: Pre-employment Testing and Background Checks

• Pre-employment testing – subject to increased

EEOC scrutiny J 2008 id f EEOC

• June 2008 guidance from EEOC
• Disparate treatment and disparate impact claims
• EEOC may pursue individual charges which raise

EEOC may pursue individual charges which raise testing issues more aggressively

• May present more complex investigation issues if

test administered by a third party vendor test administered by a third party vendor

9

Hiring cont’d Hiring – cont d.

• Criminal Background Checks
• Potential for disparate impact
• Blanket prohibitions on hiring convicted felons

will likely cause the EEOC to investigate EEOC’ iti i th t l h ld

• EEOC’s position is that employer should

consider: – the nature of the job the nature of the job – the nature and seriousness of the offense – the length of time since the offense occurred

10

Stereotyping Claims Stereotyping Claims

• Example: Caregivers
• Even though caregivers are not a protected

l th EEOC h i i d tt ti t class, the EEOC has given increased attention to discrimination against caregivers, which may largely rooted in stereotypes based on gender d/ and/or race. – Assuming that women are more committed to their families or do not want to take on extra work because of their children. – Assuming that men are “bread winners” as

• pposed to caregivers.
• pposed to caregivers.

11

EEOC Investigations on the Rise EEOC Investigations on the Rise

Presented by

Teresa R. Tracy, Esq. y q

Principal ttracy@gladstonemichel.com (310) 821-9000 ext. 723 ( )

Page 12

EEOC Investigations on the Rise EEOC Investigations on the Rise

I. Current EEOC Enforcement Trends Systemic Cases

■ In FY 2009, the EEOC filed 111 lawsuits on

behalf of classes of individuals

■ 39 Commissioners’ charges under investigation ■ 19 new systemic cases filed ■ Sampling of discrimination lawsuits in FY 2009

EEOC v. Gold’n Plump Poultry, Inc. EEOC v. Pitt Ohio Express EEOC v. Area Erectors, Inc. EEOC v. Sears, Roebuck and Co.

Page 13

EEOC Investigations on the Rise EEOC Investigations on the Rise

Lilly Ledbetter Fair Pay Act Claims ■ EEOC revised its Compliance Manual in 2009 ■ Case Examples AT&T C ti H lt AT&T Corporation v. Hulteen Thornton v. United Parcel Service Gentry v. Jackson State University Johnson v. District of Columbia Beekman v. Nestle Purina Petcare Co. EEOC v CRST Van Expedited Inc EEOC v. CRST Van Expedited, Inc.

Page 14

Wh h EEOC C K ki When the EEOC Comes Knocking

Sponsored by Strafford Publications, Inc.

EEOC I i i P & S l C id i EEOC Investigative Process & Settlement Considerations

Materials prepared by: Materials prepared by: Maritoni D. Kane

Counsel 312‐701‐7125

Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and JSM, a Hong Kong partnership, and its associated entities in Asia. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.

mkane@mayerbrown.com

EEOC Investigative Process Evaluating the Charge

What should you evaluate in an EEOC y charge and how do you evaluate it?

16

EEOC Investigative Process Evaluating the Charge

• Evaluate jurisdictional requirements/threshold issues

– Check whether the claimant raised a cognizable claim – Check whether the claimant is a covered individual protected by the applicable EEO statutes – Check whether the claimant identified the proper employer or entity involved in the action at issue and employer or entity involved in the action at issue and whether the employer is a covered entity under the applicable EEO statutes – Check whether the claimant filed the charge in a timely manner

17

EEOC Investigative Process Evaluating the Charge

• Evaluate the claim(s) made

– Review the basis for the claim

• Race? Color? Sex? Religion? National Origin? Retaliation? Age?

Disability? Other? Disability? Other?

– Review the subject matter of the claim(s)

• E g Performance? Discipline? Termination?
• E.g., Performance? Discipline? Termination?

– Assess the scope and potential scope of the allegations

• Individual
• Individual
• Systemic

18

EEOC Investigative Process Evaluating the Charge

• Evaluate the employer’s exposure to liability

– Gather preliminary facts

• Ask who, what, when, where and how questions, as applicable.
• (Have the employer issue a litigation hold.)

– Conduct preliminary research, if necessary

• Review applicable case law.
• Browse the EEOC website for information about initiatives and

ttl t settlements.

– Ask what is at issue

• Mone ? Something else?
• Money? Something else?
• Individual relief? Systemic changes?

19

EEOC Investigative Process Evaluating the Charge

• Evaluate Whether To Engage in Early Settlement

Di i Discussions

– Ask whether the EEOC is open to early settlement discussions discussions – Ask whether the issue is one the employer wishes to defend on principle defend on principle – Assess the cost of defending the charge, including possible subsequent litigation – Assess the cost of preparing a position statement

20

EEOC Investigative Process Evaluating the Charge

• Evaluate Whether Proactive Steps Need to Be Taken

With Th E l T R d E t F t With The Employer To Reduce Exposure to Future Claims

A h h li i d b h d – Assess whether policies need to be changed – Assess whether practices need to be changed or formalized formalized – Assess whether management or HR personnel need additional training g

21

EEOC Investigative Process Preparing the Position Statement

What do you do to prepare a position statement ? What information do you put in a position t t t d h d t it? statement and how do you present it?

22

EEOC Investigative Process Preparing the Position Statement

• Gather Facts and Documents

Cast a wide net to gather facts and documents.

23

EEOC Investigative Process Preparing the Position Statement

• Gather Facts and Documents (cont.)

– Gather documents and information about the claimant from HR personnel or the claimant’s manager.

l ’ l h f h d

• Claimant’s employment history, performance history and

disciplinary history. Obtain a copy of claimant’s personnel file.

• Claimant’s job, duties and responsibilities, day to day activities.

Obtain a job description.

• Claimant’s complaint history. Obtain documents related to the

complaints complaints.

– Gather information about the claimant’s physical work

• space. Conduct an on‐site visit, if possible.

24

EEOC Investigative Process Preparing the Position Statement

• Gather Facts and Documents (cont.)

– Gather information about the claimant’s management hierarchy. – Interview decision makers and other management personnel with relevant knowledge. Treat interviews as confidential. – Get an explanation of the decision making process and any exceptions to the process.

25

EEOC Investigative Process Preparing the Position Statement

• Gather Facts and Documents (cont.)

– Identify applicable policies and procedures.

• E.g., EEO policy, complaint policy and procedures, discipline policy,

attendance policy call in procedures attendance policy, call in procedures

– Ask how the policies and procedures apply and are implemented, and about any exceptions. p e e ted, a d about a y e cept o s – Obtain copies of the employer’s handbook and relevant policies and procedures not included in the handbook. – Obtain copies of relevant communications.

26

EEOC Investigative Process Preparing the Position Statement

• Gather Facts and Documents (cont.)

– Tap into HR personnel if you have not already. – Gather information and records about comparables. – Ask management and/or HR personnel if there are any facts/anything you should be concerned about.

27

EEOC Investigative Process Preparing the Position Statement

• Recommended Elements of a Position Statement

Tell a good story Context, context, context

28

EEOC Investigative Process Preparing the Position Statement

• Recommended Elements of a Position Statement

– Summary of the claim(s) in the charge – Denial of the claim(s) – Preliminary investigation reservation – Non‐consent to use in litigation

29

EEOC Investigative Process Preparing the Position Statement

• Recommended Elements of a Position Statement

( t ) (cont.)

– General description of the employer and what it does – Description of the employer’s EEO policies and complaint procedures D i i f h l ’ li i li bl h – Description of the employer’s policies applicable to the claims in the charge – Description of the claimant’s job history current position – Description of the claimant s job history, current position, duties and responsibilities, day to day activities – Description of the claimant’s physical work space p p y p

30

EEOC Investigative Process Preparing the Position Statement

• Recommended Elements of a Position Statement

( t ) (cont.)

– Claimant’s history of complaining (or lack of complaining) and the employer’s response(s) and the employer s response(s) – Description of the events leading up to the action at issue D i i f ’ d/ HR’ h – Description of management’s and/or HR’s response to the events – Description of the decision making process and the basis – Description of the decision making process and the basis for the decision to take an action against the claimant

31

EEOC Investigative Process Preparing the Position Statement

• Recommended Elements of a Position Statement

( t ) (cont.)

– Legal argument

• Set forth any jurisdictional requirement/threshold issue the

charge fails to meet and state why the charge fails to meet it

• Set forth the basic elements of establishing the claim at issue,

Set forth the basic elements of establishing the claim at issue, e.g., the elements of a prima facie case, and include argument supported by facts as to why the claimant cannot satisfy the basic elements, e.g., the claimant was not meeting the employer’s legitimate expectations, the employer treated

• thers not in a protected class comparably

32

EEOC Investigative Process Preparing the Position Statement

• Recommended Elements of a Position Statement

( t ) (cont.)

– Legal argument (cont.)

• Set forth employer defenses and facts supporting how the employer

can establish the defenses, e.g., the employer had legitimate non‐ discriminatory reasons for the action at issue

33

EEOC Investigations on the Rise EEOC Investigations on the Rise

• II. EEOC Investigative Process
• II. EEOC Investigative Process

Discovery Strategies, Including Use of Privileges ■ Responding to EEOC’s Discovery Requests ■ Protecting Employer’s Privileges ■ General Counsel and outside counsel should be consulted be consulted ■ Attorney work product should be carefully protected

Page 34

EEOC Investigations on the Rise EEOC Investigations on the Rise

• II. EEOC Investigative Process (cont.)

Most likely participants in the investigation include: ■ Internal company resources with critical expertise ■ Consultants and testifying experts ■ Consultants and testifying experts ■ Subject matter experts “Advice of Counsel” defense ■ Case Examples Informatica Corp. v. Bus. Objects Data Integration Inc Integration, Inc. Collaboration Props, Inc. v. Polycom, Inc.

Page 35

EEOC Investigations on the Rise EEOC Investigations on the Rise

• II. EEOC Investigative Process (cont.)

Tips for establishing and maintaining privileged status ■ Sample cases ■ Sample cases United States v. BDO Seidman, LLP Herrman v. Gutterguard, Inc. Herrman v. Gutterguard, Inc. In re Qwest Communications International

Page 36

EEOC Investigations on the Rise EEOC Investigations on the Rise

• II. EEOC Investigative Process (cont.)

Providing Information on “Confidential” Basis The EEOC has taken the position that information and documents that are provided to it can be and documents that are provided to it can be disclosed to the charging party, at least under Title VII. ■ Sample cases p University of Pennsylvania v. EEOC Adkins v. Christie EEOC v Sheffield Financial LLC EEOC v. Sheffield Financial LLC

Page 37

EEOC Investigations on the Rise EEOC Investigations on the Rise

• II. EEOC Investigative Process (cont.)

g Preparing for Potential Freedom of Information Act Requests q ■ Historical Data from EEOC ■ The Freedom of Information Act (FOIA) S i 83 ■ Section 83 ■ Deliberative Process Privilege EEOC v. American International Group, Inc. EEOC v. American International Group, Inc.

EEOC v. Fina Oil and Chemical Co.

Page 38

EEOC Investigations on the Rise EEOC Investigations on the Rise

• II. EEOC Investigative Process (cont.)

■ Work-Product Doctrine ■ Attorney-Client Privilege EEOC v. Int’l Profit Assocs. EEOC v. Johnson & Higgins, Inc. EEOC v. Morgan Stanley & Co. EEOC v. Albertson’s Inc.

Page 39

EEOC Subpoena Power EEOC Subpoena Power

• Title VII confers on the EEOC the power to issue administrative

subpoenas in furtherance of its investigations. 42 U.S.C. § 2000e-9; 29 U.S.C. § 161(1) M b d b th EEOC h d t f il f t

• May be used by the EEOC when respondent fails or refuses to

produce requested information or witnesses.

• Recently, EEOC has issued an increasing number of

subpoenas, often seeking nationwide data. p , g

• In fiscal year 2009, EEOC filed 32 subpoena enforcement

actions.

40

EEOC Subpoena Power cont’d EEOC Subpoena Power cont d.

• EEOC may pursue investigation and subpoena documents

even after original charging party has received RTS and filed suit or settled.

• Supreme Court recently declined to hear case in which

right-to-sue notice had issued to original charging party who had then filed own lawsuit -- EEOC v. Federal Express C 558 F 3d 842 (9th Ci 2009) t d i d U S Corp., 558 F.3d 842 (9th Cir. 2009), cert. denied ___ U.S. ___ (2009)

• See also, EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593

(7th Cir 2009)(EEOC had authority to issue subpoena after (7

• Cir. 2009)(EEOC had authority to issue subpoena after

charging party settled with respondent.)

41

EEOC Subpoena Power -- Scope EEOC Subpoena Power -- Scope

• Respondent may argue that subpoena seeks information

beyond what is relevant to the charge being investigated.

• Need to be aware of recent Second Circuit decision in EEOC

UPS I N 08 5338 2009 U S A LEXIS 25395 (2d

• v. UPS Inc., No. 08-5338, 2009 U.S. App. LEXIS 25395 (2d
• Cir. Nov. 19, 2009)
• Charge filed by job applicant who challenged UPS’

appearance guidelines pp g

• Charging party alleged a “pattern and practice of refusing

to accommodate the religious observances, practices and beliefs of its employees.”

42

EEOC Subpoenas – Scope cont’d EEOC Subpoenas – Scope cont d.

• EEOC subpoenaed nationwide data regarding application of

appearance guidelines.

• District court denied enforcement, concluding that the nationwide

information was not relevant to the individual charge.

• Second Circuit reversed, holding that the EEOC is entitled to “any

evidence of any person being investigated. . . that is related to unlawful employment practices covered by [Title VII] and is u a u e p oy e p ac ces co e ed by [ e ] a d s relevant to the charge under investigation.”

• Court held that EEOC need only show that

– the investigation will be conducted pursuant to a legitimate purpose purpose, – the inquiry may be relevant to the purpose, – the information sought is not already within [the agency’s] possession, and p , – the administrative steps required. . .have been followed.

43

EEOC Subpoenas Scope cont’d EEOC Subpoenas – Scope cont d.

• Third Circuit recently limited EEOC’s subpoena power on the

grounds that it sought information not relevant to any allegation made in the underlying individual charge. y g g

• EEOC v. Kronos Inc., slip op. No. 09-3219 (3d Cir. September

7, 2010)

• Charging party alleged disability discrimination in hiring.
• As part of application process, she took customer service

assessment.

• EEOC’s RFI asked for information relating to the

t i l di “ d ll lidit t di ” assessment including “any and all validity studies”

• EEOC decided to expand investigation into race

discrimination and issued subpoena seeking nationwide data data.

44

EEOC Subpoenas Scope cont’d EEOC Subpoenas – Scope cont d.

• EEOC v. Kronos cont’d.:
• Third Circuit held that the inquiry into potential race

discrimination was not a reasonable expansion of charge discrimination was not a reasonable expansion of charge and “the EEOC’s subpoena for materials related to race constitutes an impermissible ‘fishing expedition.’”

• However, Third Circuit also reversed lower court’s order

limitation on the geographic, temporal and job category scope of the subpoena as to disability related information. – In doing so, the Court held that “the EEOC’s investigatory power is broader than the four corners of investigatory power is broader than the four corners of the charge; it encompasses not only the factual allegations contained in the charge, but also any information that is relevant to the charge.”

45

EEOC Subpoena – Petition to Revoke or EEOC Subpoena – Petition to Revoke or Modify

• Respondent who wants to oppose subpoena must file a

petition to revoke or modify the subpoena

• File with the District Director who issued the subpoena
• Must be filed within 5 days of receipt of subpoena.
• Failure to file petition may foreclose ability to oppose subpoena

enforcement.

• EEOC v Sunoco Inc

2009 WL 197555 (E D Pa 2009)

• EEOC v. Sunoco, Inc., 2009 WL 197555 (E.D. Pa. 2009) –

employer waived its objections to enforcement of subpoena by failing to file a petition to revoke or modify with the EEOC.

46

EEOC Investigations on the Rise EEOC Investigations on the Rise

• III. Settlement Considerations

Wh Ch A N t S ttl d E l When Charges Are Not Settled Early ■ Constraints on Agency Investigations ■ Interviews and on-site visits ■ Subpoenas ■ If investigation does not establish discrimination

• ccurred, then required notice is issued, closing

q g the case and giving the charging party 90 days to file a lawsuit. ■ If evidence establishes discrimination, the , employer and the charging party will be informed in a letter of determination that explains the finding.

Page 47

finding.

EEOC Investigations on the Rise EEOC Investigations on the Rise

• III. Settlement Considerations (cont.)

Resolution of Commissioner’s Charge ■ A Commissioner’s Charge under Title VII and the ADA is one that is initiated by one

• f the EEOC Commissioners.

■ “directed investigation” and litigation ■ directed investigation and litigation ■ The EEOC can conduct an investigation even in the absence of a charge. T diti l h C i i ’ h ■ Traditional charge v. Commissioner’s charge

Page 48

Settlement Consideration (Individual Matters) EEOC Settlements versus Private Settlements How are EEOC settlements different from private settlements?

49

Settlement Consideration (Individual Matters) EEOC Settlements versus Private Settlements

• Private agreements and releases

– Monetary relief – Release of any and all claims – Confidentiality

50

Settlement Consideration (Individual Matters) EEOC Settlements versus Private Settlements

• EEOC consent decrees – differing terms

– Record retention and reporting w/ periodic monitoring – Creation of policies and complaint procedures – Training w/ Commission review of trainer(s) and material – Posting of notices – Scope of release limited

51

Settlement Consideration (Individual Matters) EEOC Settlements versus Private Settlements

• EEOC consent decrees – differing terms (cont.)

– Non‐confidentiality – Notice provisions – Press releases

52

Settlement Consideration (Individual Matters) Typical Terms of EEOC Settlements

• Typical Terms of an EEOC Consent Decree

– All of the above differing terms, plus

• Injunctive relief
• Successor liability
• Individual affirmative relief (e.g., reinstatement, wage increases,

promotions transfers training retroactive seniority lost benefits promotions, transfers, training, retroactive seniority, lost benefits such as pension accruals)

• Monetary relief
• Neutral references

– E.g., Ingersoll Consent Decree, Mitsubishi Consent Decree

53

Settlement Considerations Settlement of Class Action Cases with the EEOC

• The Process for Settlement of Class Action Cases

– Notice to the class of aggrieved persons

• Contents of notice
• Procedure for giving notice

– Objections to the consent decree

• Mistake
• On the merits

– Fairness hearings

54

Settlement Considerations Settlement of Class Action Cases with the EEOC

• Key Provisions of Consent Decrees

– Descriptions of injunctive relief – Description of monetary relief

• Description of the process used to determine the amount of the

settlement fund

• Description of the method used for apportionment of the fund to
• Description of the method used for apportionment of the fund to

individuals

– Explanation of steps to claim entitlement

55

Settlement Considerations Settlement of Class Action Cases with the EEOC

• Key Provisions of Consent Decrees (cont.)

– Explanation of the process, including notice of a fairness hearing, if applicable, and details about submitting

• bjections
• bjections

– No reversion of settlement funds to defendant Name and contact information of person designated to – Name and contact information of person designated to answer questions about the Consent Decree

56

Settlement Considerations Settlement of Class Action Cases with the EEOC

• Possible attachments to the Consent Decree

– Claim form for monetary relief – Release – Claim form for other benefits such as training, reinstatement, etc.

57

Settlement Considerations: EEOC’s Decision- Settlement Considerations: EEOC s Decision- making

• Pre-determination – individual charge – EEOC generally not at

the table;

• commissioner’s charge

settlement authority rests with

• commissioner s charge -- settlement authority rests with

District Director

• Post-determination conciliation – EEOC at table; Regional

Attorney likely involved Attorney likely involved.

• Litigation – Regional Attorney usually has settlement authority

unless the Office of General Counsel has indicated otherwise to the Regional Attorney to the Regional Attorney.

58

Settlement Considerations: Expanded ADR Settlement Considerations: Expanded ADR

• Increasing number of charges mediated
• Class A, B and C Charges
• Meritless charges – not likely sent to mediation
• Class A charges – generally excluded from

di ti mediation process

• Commissioner’s charges generally Class A

59

Enforcement of Settlements and Final Orders Enforcement of Settlements and Final Orders

• Consent Decrees
• Recordkeeping and reporting obligations
• EEOC Compliance Manual instructs field to prepare

monitoring logs E f t ti ill b bli

• Enforcement actions will be public
• Beware of retaliation claims

60