Presenting a live 90 ‐ minute webinar with interactive Q&A When the EEOC Comes Knocking Anticipating and Responding to Discrimination and Retaliation Investigations THURS DAY, JULY 21, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Alison B. Marshall, Partner, Jones Day , Washington, D.C. Teresa R. Tracy, Principal, Gladstone Michel Weisberg Willner & Sloane , Los Angeles The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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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 EEOC intends to target certain facially-neutral employment criteria d t t t t i f i ll t l l t it i that may have a tendency to disparately impact people of color, including: • Hiring tests • Credit and background checks; C dit d b k d h k • 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 • June 2008 guidance from EEOC J 2008 id f 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’s position is that employer should EEOC’ iti i th t l h ld 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 class, the EEOC has given increased attention to l th EEOC h i i d tt ti t discrimination against caregivers, which may largely rooted in stereotypes based on gender and/or race. d/ – 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 opposed to caregivers. opposed 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 AT&T Corporation v. Hulteen ti H lt 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 When the EEOC Comes Knocking h EEOC C K ki Sponsored by Strafford Publications, Inc. EEOC Investigative Process & Settlement Considerations EEOC I i i P & S l C id i Materials prepared by: Materials prepared by: Maritoni D. Kane Counsel 312 ‐ 701 ‐ 7125 mkane@ mayerbrown.com 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.
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 settlements. ttl t – 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 Discussions i – 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
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