Pattern and practice cases: EEOC renews focus on systemic discrimination

Lexology.com
Ogletree Deakins
Steven W. Moore and Jennifer L. Gokenbach
USA
November 9 2010

With an increased budget and additional investigative resources, the Equal Employment Opportunity Commission (EEOC) has announced its renewed focus on combating systemic discrimination and its intent to pursue a greater number of large-scale enforcement actions through FY 2012 where it seeks relief for numerous applicants or employees. Known as a “pattern and practice” case, this type of litigation poses the greatest exposure and risk to employers through challenges to policies and practices in the workplace that allegedly have a discriminatory impact on a protected class and relies heavily on statistical evidence. In this past year, there has been a spate of EEOC enforcement actions seeking relief on a class basis. Now more than ever, it is imperative for employers to be cognizant of these large-scale cases, to understand the nuances involved in the EEOC’s handling and prosecution of such cases, and to be prepared to timely challenge any attempts by the EEOC to overreach.

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Walmart To Pay More Than $11.7 Million To Settle EEOC Sex Discrimination Suit

U.S. Equal Employment Opportunity Commission
PRESS RELEASE
3-1-10

Kentucky Distribution Facility Denied Jobs to Female Applicants on a Systemic Basis, Federal Agency Charged

INDIANAPOLIS –Walmart Stores will pay $11.7 million in back wages and com­pen­satory damages, its share of employer taxes, and up to $250,000 in administration fees and will furnish other relief, including jobs, to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
According to the EEOC’s lawsuit, Walmart’s London, Ky., Distribution Center denied jobs to female applicants from 1998 through February 2005. During that time period, the EEOC contends, Walmart regularly hired male entry-level applicants for warehouse positions, but excluded female appli­cants who were equally or better qualified. The EEOC alleged that Walmart regularly used gender stereotypes in filling entry-level order filler positions. Hiring officials told applicants that order filling positions were not suitable for women, and that they hired mainly 18- to 25-year-old males for order filling positions, the EEOC said.
Excluding women from employment or excluding them from certain positions because of gender violates Title VII of the Civil Rights Act of 1964.
The consent decree settling the suit, entered by the court on March 1, 2010, requires Walmart to provide order filler jobs, as they become available, to eligible and interested female class members, as determined by a claims administrator. Walmart will fill the first 50 available order filler positions with female class members. For the next 50 positions, female class members will be offered every other job. Thereafter, every third position will be offered to female class members.
“Forty-plus years after the passage of the Equal Pay Act and Title VII of the Civil Rights Act, far too many employers are still blatantly excluding women from particular jobs, segregating their workforces on the basis of sex, and denying women equal pay for equal work,” said Acting EEOC Chairman Stuart J. Ishimaru. “Let this major settlement serve as a warning: Employers must stop engaging in these outdated and sexist practices, or they will face severe legal consequences.”
Pursuant to the consent decree, Walmart has agreed not to discriminate against females in hiring for order filler positions and not to retaliate against applicants or employees who exercise their rights, complain about discrimination or assist in an investigation or discrimination-related proceeding. Walmart will post a notice of non-discrimination at its warehouse facilities in Kentucky, train its managers and employees involved in the hiring process at the London Distribution Center, and use validated interview questions for the order filler position. Walmart will also submit reports to EEOC detailing its compliance with the decree.
A settlement administrator will distribute the proceeds to eligible class members. Walmart has agreed to pay the first $250,000 of the administration costs.
Indianapolis EEOC Senior Trial Attorney Nancy Dean Edmonds said, “Although it took a long time, we are very pleased that women who want to work at the London Distribution Center will now be able to do so and those who were rejected will be compensated for their losses and offered jobs.”
Louisville EEOC Senior Trial Attorney Aimee McFerren added, “It is satisfying to know that the EEOC’s efforts will allow the women in eastern Kentucky affected by Walmart’s discriminatory practices to better themselves and their families.”
According to company information, Bentonville, Ark.-based Walmart serves customers and members more than 200 million times per week at more than 8,416 retail units under 53 different banners in 15 countries. With fiscal year 2009 sales of $401 billion, Walmart employs more than 2.1 million associates worldwide.
Class members will be contacted by the Settlement Administrator. Updated information on the settlement will be available on the EEOC v. Wal-Mart information line (317) 226-5485.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.

AAAA WEBINAR: "The EEOC, OFCCP and 'Systemic Discrimination': New Enforcement Techniques and How Employers Should Respond"

SAVE THE DATE ** SAVE THE DATE ** SAVE THE DATE
THURSDAY, NOVEMBER 6, 2008
2:00 PM - 3:00 PM EST
AAAA WEBINAR - No. 5 in 2008 SERIES

The EEOC, OFCCP and “Systemic Discrimination”: New Enforcement Techniques and How Employers Should Respond

Mickey Silberman
Attorney at Law
Jackson Lewis LLP

For years, the OFCCP has been changing its focus from affirmative action compliance to “systemic discrimination.” That transformation recently was formalized with the OFCCP’s new Active Case Management Directive, published a few weeks ago. And the OFCCP is not alone - the EEOC has greatly increased its focus on systemic discrimination. The EEOC’s Systemic Discrimination Task Force report – published in 2005 and implemented during 2007 and 2008 – already is having a profound impact on the way EEOC investigates discrimination charges and changes the way employers need to respond. This webinar will explain the recent enforcement developments and provide practical, “real world” strategies for responding to those changes.

WATCH THE AAAA WEBSITE, http://www.affirmativeaction.org/2008webinar.html

FOR REGISTRATION INFORMATION ....

OFCCP Orders Full Compliance Reviews for Every 50th Contractor

On September 17, 2008, OFCCP Deputy Assistant Secretary Charles James issued a directive on the Active Case Management System. In his directive, he announces that as a "Quality Control" measure, "to ensure that contractors are developing and implementing AAPs and that they are maintaining the required supporting data, a full desk audit of the materials submitted is to be conducted on every 25th contractor listed in the Federal Data Selection System (FCSS), even in the absence of systemic discrimination indicators. In addition, a full compliance review -- including an onsite review -- is to be conducted on every 50th contractor listed in the FCSS, even in the absence of systemic discrimination indicators."

Included in the desk audit and full review will be an assessment of compliance with Section 503 of the Rehabilitation Act and the Vietnam Veterans Readjustment Assistance Act (VEVRAA) along with Executive Order 13201.

For a copy of the directive, go to: http://www.dol.gov/esa/ofccp/regs/compliance/directives/dir285.pdf

CHAIR EARP NAMES SYSTEMIC INVESTIGATION PROGRAM MANAGER

EEOC Affirms Commitment to Combat Systemic Discrimination in the Workplace
Tuesday, Sept. 9, 2008

WASHINGTON – Naomi C. Earp, Chair of the U.S. Equal Employment Opportunity Commission (EEOC), today announced the selection of Dana Hutter as the new Systemic Investigation Program Manager. Hutter, a veteran agency official, will assume the new position on September 15 after serving nearly five years as the Washington Field Office Director.
In his new role, Hutter will be responsible for promoting development of systemic investigations through collaboration among field offices, as well as among field investigative and legal units.
“Eliminating systemic barriers to equal employment opportunity continues to be a top priority,” said Chair Earp. “Systemic cases are an effective way of leveraging the EEOC’s resources to have the widest possible reach. This new position will facilitate the goals of the systemic program through a coordinated, strategic, and effective approach to maximize results.”
The Commission adopted the systemic program in April 2006 following a comprehensive study by an internal task force. Since then, the identification, investigation, and litigation of systemic discrimination cases has been an integral part of the EEOC’s work. A systemic case is a pattern or practice, policy, and/or class case where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.
Under the systemic program, the EEOC will oversee the following operational enhancements:
National Law Firm Model – The EEOC is working on staffing systemic lawsuits based on the needs of the case, rather than based on the office where the case arose. This will result in the district offices improving how they work with each other, allowing the EEOC to make better use of existing expertise and cultivate staff to develop additional expertise nationwide.
Technology – The EEOC is expanding its use of technology and information systems to serve as tools that can help investigators and attorneys identify systemic discrimination. For example, the EEOC is integrating EEO-1 reports with charge data to more readily identify potential systemic issues.
Early Identification – Investigators and attorneys are working together to identify systemic cases early in the process.
Education – Field attorneys and investigators will continue to receive specialized training on investigating and litigating systemic cases.
Partnering – District offices are expanding their efforts to partner with one another, as well as with the plaintiff’s bar, advocacy groups, and other state and federal agencies. They are also reaching out to employer groups to encourage employers to identify and address any discriminatory practices proactively.
Commenting on his new position, Hutter said: “Chair Earp is affirming her continued commitment to combating systemic discrimination, and wants to make systemic work part of the fabric of the agency. I look forward to taking on the important responsibilities of this new position, and especially advocating that field staff receive the support they need to ensure the success of the systemic program.”
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its web site at www.eeoc.gov.