In 2006, the Equal Employment Opportunity Commission changed its strategy when it announced plans to file more class action suits. This shift was predicated on the decrease in the number of private-sector discrimination-related class action suits and increase in wage-hour class actions. As a result of this decline in discrimination class actions, the Commission's position may indicate a trend toward more government-led class actions in this area.
The EEOC is in a unique position to litigate this type of suit because it is not required to meet the strict requirements to maintain a class action set forth in Rule 23 of the Federal Rules of Civil Procedure. In addition, the agency isn't hampered by considerations of whether the monetary compensation won will be worth the expense of a trial.
The Commission is also spurred on in its decision by the belief that a national approach to litigating workplace civil rights is necessary due to a lack of consistent effort on the part of the private sector. The Commission itself is guilty of not identifying widespread discrimination in the past, and this shift is seen as attempt to make the agency more proactive.
What means will the agency use to evaluate which cases require class action treatment? Its primary sources will be:
· Data gathered through EEO-1 surveys of private employers of 100 or more employees
· Analyses designed by private statisticians who act as consultants to the Commission
· Charges filed by claimants
· Its own databases
· Pending litigation
· Long-term analysis of EEO-1 reports
In light of this emphasis on rooting out systemic discrimination, employers need to be increasingly vigilant. Here are some guidelines that can help you prevent becoming party to an EEOC-initiated class action suit:
1. Keep your affirmative action plans updated so that when analyzing, the data will identify problem areas in recruitment, hiring, transfer, promotion, compensation, termination, or other terms and conditions of employment.
2. Review the criteria used for hiring, firing and other personnel decisions to identify standards or actions that can be perceived as discriminatory.
3. Review instances in which a personnel decision impacted negatively on an employee or employees to be sure that all criteria used to make the decision was job related and the result of the need to maintain business operations.
4. Provide updated training for management involved in interviewing, hiring, job assignment, compensation, job advancement, and termination to ensure that they understand their obligations under the equal employment opportunity laws.
5. Inform management of the negative impact that e-mails have on the defense of claims, especially if careless phrases are used, insulting comments are made or e-mails are used for inappropriate purposes.
6. Publish company policies that spell out a zero tolerance for all forms of discrimination, harassment, and retaliation. Train non-management employees in those policies and their obligation to report immediately any actual or perceived harassment, discrimination, or retaliation.
7. Post and regularly distribute policies regarding reporting harassment, discrimination, or retaliation.
8. Develop a program through which employees receive severance pay or other consideration in exchange for executing binding releases that comply with the Older Worker Benefit Protection Act.
9. Keep and regularly review electronic data to identify potential problems and to avoid the possibility of it becoming damaged.