EEOC's Aggressive Systemic Discrimination .EEOC's Aggressive Systemic Discrimination Initiative

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  • EEOC's Aggressive Systemic Discrimination Initiative Strategic Responses to Expansive Requests for Information, Subpoenas and "Sue First, Ask Questions Later" Approach

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    TUESDAY, OCTOBER 15, 2013

    Presenting a live 90-minute webinar with interactive Q&A

    Alison B. Marshall, Partner, Jones Day, Washington, D.C.

    Maritoni D. Kane, Counsel, Mayer Brown, Chicago

    Eric S. Dreiband, Partner, Jones Day, Washington, D.C.

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  • EEOCs Focus on Systemic Discrimination October 15, 2013

    Alison B. Marshall Jones Day

    202-879-7611 abmarshall@jonesday.com

  • EEOCs Renewed Focus on Systemic Investigations and Litigation

    EEOC adopted systemic initiative in 2006. Reiterated focus on systemic litigation in strategic

    plan approved on February 22, 2012. Emphasis on targeted enforcement. Strategic Enforcement Plan issued on December

    17, 2012 identifies six nationwide priorities. Continues delegation of litigation authority to the

    EEOC General Counsel with some exceptions. In targeted areas, expect a deeper dive during

    investigation and likely more lawsuits.

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  • Strategic Enforcement Plan Identifies the following as the Commissions

    nationwide priorities: Eliminating systemic barriers in recruitment and hiring. Protecting immigrant, migrant, and other vulnerable

    workers. Addressing emerging issues current issues identified in

    plan: ADA issues, pregnancy discrimination, and LGBT coverage.

    Enforcing equal pay laws. Preserving access to the legal system retaliation and

    releases. Combating harassment.

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  • FY 2012 Enforcement Activity 99,412 charges filed in FY 2012 (ended 9/30/12). Completed work on 240 systemic investigations.

    46 settled or conciliated. 94 reasonable cause determinations.

    EEOC filed 122 merits suits during FY 2012. 10 were systemic cases.

    At the end of the year, EEOC had 309 active merits suits. 62 or 20% were systemic.

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  • FY 2013 Enforcement Activity (ended 9/30/13)

    Filed approximately 130 merits suits. Continued to file significant number of ADA and

    retaliation claims. Of 40 cases filed in September, 14 included ADA

    claims and 13 retaliation claims. Also notable increase in pregnancy discrimination

    claims.

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  • FY 2013 Enforcement contd.

    Two illustrative recent EEOC complaints: EEOC v. Catastrophe Management Solutions, Inc., Civil Action

    No. 1:13-cv-00476-CB-M) filed 9/30/13 in Mobile, Ala. alleging race discrimination against an African American applicant because she wore dreadlocks.

    EEOC v. All Star Seed d/b/a Eight Star Commodities, et al., Case No. CV 13-07196 filed 9/30/13 in the Central District of California alleging discrimination based both on disability and genetic information where pre-employment physical elicited family medical history information.

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  • EEOCs Continued Focus on Criminal Background Checks

    EEOC issued new guidance on April 25, 2012. In guidance, EEOC focuses on national conviction statistics to

    show disparate impact. EEOC suggests that employer will have burden of refuting

    a disparate impact determination by showing that its own applicant statistics show no adverse impact.

    Employer must then satisfy the affirmative defense of showing that the use of criminal background information is job related for the position in question and consistent with business necessity.

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  • Criminal Background Checks New EEOC Guidance contd.

    EEOC identifies two circumstances when an employer will meet the defense: The employer validates the criminal conduct screen for the position in

    question per the Uniform Employee Selection Procedures. The employer develops a targeted screen considering at least:

    The nature of the crime, The time elapsed, The nature of the job, AND then provides an opportunity for an individualized assessment for

    people excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity.

    Clear emphasis on individualized determinations. Also, the guidance states that while federal laws and regulations that restrict or

    prohibit employing individuals with certain criminal records provide a defense, state and local laws or regulations are preempted by Title VII if they purport[] to require or permit the doing of any action which would be an unlawful employment practice under Title VII.

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  • Criminal Background Checks contd. On June 11, 2013, EEOC filed two suits that received

    extensive media: EEOC v. Dolgencorp LLC d/b/a Dollar Gen., N.D. Ill., No.

    1:13-cv-04307. EEOC v. BMW Mfg Co. LLC, D.S.C. No.7:13-cv-01583.

    But agency has had little success in existing cases. EEOC v. Peoplemark, Inc., W.D. Mich., 2011 Claims

    dismissed because employer did not, contrary to EEOC allegation, have blanket prohibition on hiring convicted felons.

    EEOC v. Freeman, Case No., RWT 09 cv 2573 (D. Md. Aug. 9, 2013) In harshly worded opinion, court rejected EEOCs statistics and granted summary judgment against EEOC.

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  • Pay Equity

    Pay equity emphasized in strategic enforcement plan.

    EEOC offices have started conducting directed investigations under the Equal Pay Act. EEOC can start investigation without a charge.

    EEOC official has stated that the EEOC, like the OFCCP, will be looking at all practices that affect compensation.

    EEOC still considering whether to collect pay data.

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  • Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe-Brussels LLP both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

    EEOCs Aggressive

    Systemic Discrimination Initiative: Response Strategies

    October 2013

    Maritoni D. Kane Mayer Brown LLP Chicago, Illinois 312-701-7125

    mkane@mayerbrown.com

  • Responding to EEOC Charges and Information Requests

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  • Responding to EEOC Charges

    Evaluating the charge Looking for red flags

    Drafting a position statement

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  • Responding to EEOC Charges

    Evaluating the charge Jurisdictional requirements

    Threshold issues

    Claims made

    Potential exposure to liability

    Settlement

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  • Responding to EEOC Charges

    Looking for red flags Scope of the allegations

    Do the allegations suggest a group of employees are impacted?

    Subject matter of claims made Do the claims involve one of the EEOCs Strategic

    Enforcement Plans six priorities?

    Are the practices implicated perennial targets of the EEOC?

    Multiple claims with similar allegations Are there multiple charges/claims with similar allegations?

    EEOC v. Georgia Power, 1:13:cv-03225 (N.D. Ga.)

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  • Responding to EEOC Charges

    Looking for red flags (continued) Scope of requests/subpoena for information and documents

    Are the requests broad?

    Do the requests ask for information beyond the scope of the charge?

    Scope of on-site investigation Has the EEOC asked to conduct interviews of employees not involved

    in the allegations in the charge?

    Appetite for settlement Did the EEOC offer mediation?

    Did the EEOC deny a request for early settlement discussions?

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  • Responding to EEOC Charges

    Drafting a position statement

    Draft careful and thoughtful responses