Drafting Position Statements to Mitigate Full-Scale EEOC ...

Drafting Position Statements to Mitigate

Full-Scale EEOC Investigations and Lawsuits Strategic Techniques to Address Claims of Failure to Hire, Equal Pay, Class vs. Individual, and More

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WEDNESDAY, AUGUST 2, 2017

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

Julia P. Argentieri, Esq., Jackson Lewis, Chicago

Paul Patten, Principal, Jackson Lewis, Chicago

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EEOC adopts systemic initiative in 2006.

Reiterates focus on systemic litigation in strategic plan

approved February 22, 2012.

Strategic Enforcement Plan issued in 2016 identifies six

nationwide priorities.

“Targeted enforcement”

o Deeper dives during investigations

o Expect more lawsuits

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www.jacksonlewis.com

1. Recruiting and Hiring, including screening tools and

medical questionnaires

2. Protecting vulnerable workers (immigrant population,

very low skilled workers)

3. Developing issues (ADA, LGBT, pregnancy

accommodation, joint employer, backlash discrim.)

4. Equal pay (now focused on steering)

5. Access to the legal system (severances, releases,

maintaining records, retaliation)

6. Systemic harassment 6


Target employers in bigger, more costly systemic

discrimination suits

EEOC looking to begin collecting EEO-1 Pay Data in

2018.

Investigators looking to turn individual cases into

systemic cases

Nearly every individual charge of discrimination is a

potential systemic EEOC investigation and class-wide

lawsuit

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Top priority for EEOC right now.

EEOC will focus on all aspects of employers’ pre-

employment selection processes including:

o Pre-employment tests/online assessments

o Criminal background checks

o Credit checks

o Physical fitness tests

o Drug screens

Count on EEOC following through with this priority!

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EEOC treats cases identified as involving “systemic

discrimination” where the “patterns of employment discrimination are the most severe, and where

maintenance of a successful ‘systemic case’ will

have a significant positive impact on the

employment opportunities available to minorities and

women.” EEOC Compl. Man. § 16.1.

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• Low utilization of available minorities and/or women.

• Substantially smaller proportion of minorities and/or women than other employers in the same labor market who employ persons with the same general level of skills.

• Substantially smaller proportion of minorities and/or women in higher paid job categories than in lower paid categories.

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• Policies and practices that have an adverse impact on minorities and/or women.

• Practices that have the effect of restricting or excluding available minorities or women.

• Employers with large turnover or expanding employment opportunities whose practices may not provide available minorities and women with fair access to job opportunities.

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• Multiple charges with similar allegations filed in a short

period of time.

• Allegations in an individual charge suggesting that a

group of employees may have been impacted.

• No request to mediate.

12


Treat this like a potential class action.

A thorough investigation is more important than ever.

Determine timeliness for acts referenced in the charge.

Preserve documents.

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• Enact safeguards against retaliation.

• Determine who will do the investigation.

• Establish a point of contact with the EEOC.

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• Consider resolving the individual case early.

• Consider whether policy or procedure changes might be

useful.

• Be prepared for multiple rounds of requests for

information.

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Determine whether isolated incident or an established

practice or policy.

Obtain relevant documents.

Obtain comparator information.

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Identify and interview key individuals and witnesses, as

well as authors of any documents that are not self-

explanatory.

Identify former applicants and employees who may

support the EEOC’s theories.

Prepare for EEOC interviews.

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Applicant-to-Hire Process

Promotions

Terminations

Pre-Employment Tests & Assessments

Criminal Background & Credit Checks

Physical & Mental Evaluations

Succession & Management Training Selections

… but also Pay Decisions

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Standard Deviation of 1.96+ shifts burden to employer

to defend against “hidden” discrimination

Shortfall = measure of back pay damages

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EEOC can get the biggest bang for the taxpayer’s buck by investigating data

Big Data from HRIS/ATS systems can:

o Identify class members

o Establish violations (“can’t argue with numbers”)

o Establish disparate impact discrimination

This is “low hanging fruit” – EEOC knows most employers are not checking their data for “hidden” disparate impact

o Even if they are, EEOC will slice and dice the data to find trends (so you should too)

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If systemic investigation is

unavoidable, analyze your data to set

your strategy before responding

Use data proactively as a sword to

show why the complainant was treated

fairly

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Guidance regarding extensions of time.

Charging Parties will be offered a copy of Respondent’s

position statement.

Respondents are responsible for identifying and

separating confidential information from non-confidential

information.

Expectations of specific, factual responses that are clear,

concise, complete and responsive.

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Generally position statement due 30 days after notice of

charge of discrimination.

If an extension is necessary, request should be made at

earliest possible time.

Explain reason for extension.

Call investigator and confirm in writing.

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Option to be offered to Charging Party.

Charging Party has 20 days to respond.

Respondent does not see Charging Party Response.

Some EEOC offices have historically followed this

practice.

Concept not entirely new: Charging Party has always

had option to review through FOIA.

New practice allows review earlier.

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Position statement should refer to, but not identify

information that Respondent asserts is confidential.

Confidential information loaded as separate documents

on EEOC portal.

Mark information as “confidential.”

Provide justification for designating information as

confidential.

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Medical information (except Charging Party’s medical

information).

Social Security Numbers, dates of birth, home addresses

and telephone numbers.

Confidential commercial or financial information.

Trade secrets.

References to other charges filed against the

Respondent or other charging parties.

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Explain Respondent’s version of the facts and identify

specific documents and evidence supporting its position.

Address all allegations of the charge.

Provide name of organization, primary business, and

contact information for person responding.

Identify decision maker.

Inform the EEOC if settlement is possible.

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Sex harassment: statement or affidavits from witnesses

with direct knowledge.

Pay discrimination: compensation for comparable

employees and how each employee’s pay was

determined.

Age termination: personnel records documenting

reasons for termination.

Pregnancy termination: documentation showing

reasons for termination.

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EEOC Will Challenge Anything It :

Investigated After Something Reasonably

Came to Its Attention;

Found Cause to Believe was Discriminatory;

and

Attempted to Conciliate.

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Policies/Guidelines/Code of Conduct

Spreadsheets or Other E-Data

Discussion of ALL Hiring or Promotion Procedures

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Provide no more and no less information than that which

is relevant.

Be accurate.

Show that “justice” was done.

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State company’s position persuasively.

Request close of investigation.

Explain company’s EEO policies and if appropriate,

training and complaint procedures.

Charging party’s employment history.

Explain non-discriminatory/business reasons for

disputed decisions.

Lengthy discussions of legal precedent are usually

unnecessary. 32


Focus on the performance that led to the termination

Spoon feed the EEOC with business reasons

Policy against discrimination/harassment

If harassment situation and alleged harassing events

pre-dated first complaint, make that point

Steps taken by company after finding out about

harassment

Accurate

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Providing policies that may have a disparate impact or

demonstrate lack of accommodation.

Lists of employees treated in a like manner (sometimes

necessary when responding to state FEPA charges).

Background showing the size of the company, especially

if charge is filed against subsidiary.

Arbitration/severance agreements.

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References or information about standardized tests

Focusing on attendance policies

Background check information

Statements about medical leave being denied because FMLA

has expired, employee is not eligible

Attaching severance agreements

Saying charging party not being able to perform the essential

functions of the job without saying no other jobs available that

would permit continued employment

Referring to neutral consistently applied policies

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The EEOC handles 100,000 charges a year

Unlike some state agencies, the EEOC makes no

commitment to fully investigate each charge

The EEOC is triaging

Looking to see if there is strong evidence that an employer

discriminated against an individual

Or, putting all merit to the individual charge aside, is there a

policy or practice that might involve a class

Use a bit of a deposition mindset

Discussing unrelated sins of charging party just gives the

EEOC something else to investigate

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Facts you know

Charging party was no-call, no-show three days in a row. Within the

last three months, 4 other African-Americans (and no other employees)

were terminated for poor attendance, but not no-call, no show.

Charge

I worked as a technician and satisfactorily performed my job. On May

1, 2017, I was terminated for poor attendance.

Respondent has a practice of terminating only African-Americans for

poor attendance, and all other employees terminated for poor

attendance were African-American.

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Respondent admits CP worked as a technician

Respondent denies CP satisfactorily performed his job

Respondent admits that CP was terminated on May 1, 2017

Respondent denies that CP was terminated for poor

attendance per se

Instead, he was terminated for being no-call, no show three

days in a row

No other employees at the facility were terminated for being

no-call, no show in the last year

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Argument/Discussion Section

Background on reasons for no-call, no show policy

Facts about CP’s no-call, no show, if applicable business

implications

“Attendance” is not the proper inquiry

No other employees were terminated for no-call, no-

show in the past year

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Respondent admits that CP was terminated for egregious violations of Respondent’s attendance policy. Any notion that the reasons for his termination were based on anything other than his utter disregard for his attendance obligations are completely unfounded. The attendance records of other employees at the facility and Respondent’s actions towards other employees are irrelevant to CP. In addition, CP’s allegations regarding other employees seek to invade the confidential information of those employees.

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Class vs. Individual Claims

Failure to Hire Claims

Equal Pay Claims

Narrow Scope and Individualize!

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Employers must change how they evaluate and respond to

charges, even those that involve single, alleged victim.

Handling the “request for information” from EEOC.

Use caution in defending charges by citing to uniformly

enforced policies or providing data about diverse workforce.

Ask EEOC to explain nature and scope of its investigation

and identify all known aggrieved individuals.

Document all efforts to act reasonably and cooperatively

with EEOC during investigative process.

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Limit by:

o Location or geography

o For the last 300 days

o Those person reporting to the same supervisor

o If discipline in nature, to the exact same conduct engaged in by

the CP


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Conduct preventive analyses with data from selection

processes.

Validate pre-employment tests with statistical analyses.

Periodically conduct preventive compensation analyses.

Cover internal analyses with attorney-client privilege.

Comprehensive diversity and inclusion (D&I) program.

Independent, objective assessments of workplace.

Stay current with legal trends.

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