We thought we had noticed a bit more activity from the Equal Employment Opportunity Commission lately. What we weren't sure of was whether it was merely a high point in the ebb and flow of the tide of litigation, or whether the EEOC really had expanded its efforts to fight discrimination.
According to the Associated Press, it's the latter. In 2006, the agency had about 50 active investigations. In 2011, it was closer to 600. Last year alone, companies paid out more than $60 million in settlements in EEOC cases.
What was the catalyst, besides, of course, the change in president? It was a shift in strategy. Instead of investigating and litigating single person claims, the EEOC started focusing its efforts on workplaces where discrimination was widespread. They went from $11,000 individual lawsuits to $11 million class-action lawsuits.
It hasn't been an easy transition. There was some litigation earlier this year about what steps the EEOC has to undertake before it can file a class action. In most cases, the suit starts with one or two affected employees. They complain to the EEOC. The question was, can the EEOC file a class-action lawsuit and dig through a company's files based only on the claims of a couple of employees? The answer, according to the court, was yes. Now, if the EEOC suspects widespread discrimination, they can file the suit and utilize the discovery process to unearth as many victims as possible. This means class-action lawsuits with possibly dozens or hundreds of employees. Larger lawsuits mean larger and more resounding messages to the employers.
One other strategy that we've noticed is the EEOC's attempt to provide "guidelines" for employers to follow in regards to discrimination, background checks, and disability accommodations. Though they've always done so, the frequency of issued guidelines certainly seems to have picked up.
Altogether, the EEOC's strategy now seems to be two pronged. The first prong is to litigate large class-action cases that vindicate the rights of as many people as possible. The second prong is to issue guidelines to employers. These guidelines warn them that if they don't fix their in-house policies, the EEOC's litigation teams will come calling.
It sure seems like a more efficient strategy than the one case at a time method of previous administrations.
- Consult a Chicago Employment Law Attorney (FindLaw)
- Do Background Checks on Applicants Constitute Discrimination? (FindLaw's Philadelphia Employment Law News)
- YRC/Roadway Express Settles Racial Bias Suit For $10M (FindLaw's Chicago Employment Law Blog)
- Class Action Lawsuits (FindLaw's LawBrain)