Why Pay Is an Easy-to-Litigate Issue
Harassment (“He made me uncomfortable”) is vague and often tough to prove, and discrimination (“You didn’t hire me because I am a member of a protected class”) is also hard to prove. But with pay issues —it’s there in dollars and cents for the agency rep or a jury to see.
“Women in this job with equal experience are paid $3.00 an hour less” is not vague. Few jury members won’t log into that difference and understand it immediately. (And they won’t be taking the side of the company, either.)
Here’s more on the report, issued by Littler Mendelson, P.C., the nation’s largest employment and labor law firm representing management,.
EEOC’s investigations and litigation will address alleged discriminatory patterns or practices of discriminatory conduct and/or discriminatory policies that have a “broad impact on an industry, profession, company or geographic location.”
According to Littler’s report, based on systemic investigations alone, the EEOC recovered $36 million for charging parties and others during FY 2012. This was four times the amount recovered in FY 2011 for systemic investigations, and this amount was based solely on its investigation and conciliation efforts, without resorting to litigation.
The EEOC completed work on 240 systemic investigations (cases with at least 20 expected class members), 94 of which resulted in “reasonable cause” determinations that the policies were discriminatory in nature, the report says.
“These statistics continue to be of great concern to employers,” according to Barry Hartstein, executive editor of the report. “This is the second year in which our report found that approximately 40 percent of the systemic investigations resulted in that determination.” (Reasonable cause determinations are typically issued in fewer than 5 percent of charges that the EEOC investigates, the report explains.)
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According to the EEOC’s newly issued Strategic Enforcement Plan, the agency is adopting a multipronged national law enforcement model that will focus on improved integration between EEOC offices, collaborating with other federal agencies, such as the Department of Labor and Department of Justice, and cooperating with the private bar that also is involved in independently filing and joining the EEOC in discrimination lawsuits against employers.
“The EEOC also will be leveraging technology to facilitate cross-office communication, including development of a ‘Systemic Watch List’ that tracks private sector charges and litigation with details on the applicable company,” according to Hartstein.
Littler’s report identifies the six priorities that the EEOC will focus on in its “targeted enforcement” efforts:
- Enforcing equal pay laws
- Eliminating systemic barriers in recruitment and hiring
- Protecting immigrant, migrant and other vulnerable workers
- Addressing emerging issues, including the:
- Americans with Disabilities Act (ADA)
- LGTB (lesbian, gay, bisexual and transsexual individuals) coverage under Title VII
- Accommodating pregnancy
- Preserving access to the legal system
- Preventing harassment through enforcement and targeted outreach
EEOC Will Proceed with ‘Renewed Vigor’
Hartstein notes that with the reelection of President Obama and the Democratic gains in Congress, the “EEOC can be expected to pursue its agenda with renewed vigor and to revisit stalled initiatives,” including:
- Providing ADA guidance,
- Pursuing issues related to hiring procedures and practice,
- Pregnant workers,
- Workers with caregiving responsibilities, and
- LGBT protection under Title VII.
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Other notable findings in Littler’s report include:
- Among reported settlements of $1 million or more, six involved race discrimination or related harassment (including one $11 million settlement), five involved sexual discrimination or harassment, five involved disability discrimination, and three involved age discrimination.
- Recent systemic lawsuits include various nationwide lawsuits filed by the EEOC, which is not limited by the strict rules under Rule 23 of Federal Rules of Civil Procedure in filing class action lawsuits against employers.
- As in FY 2011, in FY 2012 a clear majority of the EEOC’s lawsuits were filed in the last two months of the EEOC’s fiscal year (August and September).
- For FY 2012 the Commission filed 122 “merits” lawsuits, the fewest number in recent memory. Among the 309 lawsuits on its active docket at the end of FY 2012, 75 (24%) involved alleged multiple victims and 62 (20%) involved challenges to systemic discrimination, thus showing that 44% of all pending matters involve claims on behalf of more than one purported victim.
In tomorrow’s Advisor, EEOC charges, investigations, and claims, plus an introduction to the source of practical wage/hour compliance solutions.