EPLI LITIGATION: WHEN THE EEOC COMES CALLING

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2 EPLI LITIGATION: WHEN THE EEOC COMES CALLING MODERATOR: Mercedes Colwin, Esq., Managing Partner - New York Office, Gordon & Rees LLP PANELISTS: Linda G. Burwell, Esq., Principal, Nemeth Burwell, P.C. Jason A. Fogg, Esq., Vice President, Claims, Monitor Liability Managers, LLC Tom Hams, JD, Managing Director, Aon Financial Services Group Diane I. Smason, Esq., Supervisory Trial Attorney, U.S. Equal Employment Opportunity Commission

3 Agenda Introduction to the EEOC EEOC Systemic Initiative Spreading the Word Key Trends EEOC Systemic Litigation Investigation Litigation EEOC vs. The Courts How to Litigate and Negotiate with the EEOC

4 The State of the Economy

5 EEOC Budget Statistics The EEOC has received: In 2010, $367 Million In 2011, $367 Million In 2012, $360 Million In 2013, Requested $373 Million

6 The Increase in EEOC s Case Load Between 2007 and 2011 the number of claims filed with the EEOC has increased by 17,155. In 2011, charges filed with the EEOC hit an all-time high of 99,947. Retaliation: 37.4% Race: 35.4% Sex: 28.5% Disability: 25.8% Age: 23.5% 40,000 35,000 30,000 25,000 20,000 15,000 10,000 5,000 EEOC CHARGE STATISTICS Age Disability Equal Pay Act National Origin Pregnancy Race Religion Retaliation (All Statutes) Sex Sexual Harassment Total Charges Hit Historic High: 99,947 Retaliation overtakes race ADA Claims Soar

7 The EEOC Website Simplified Website How to Newsroom EEOC Contact Information Settlement awards posted online Twitter Feed Individuals who believe they may have been denied a position or who have any information that would be helpful to the EEOC s suit should contact the EEOC toll free at (855) or by

8 The EEOC Strategic Enforcement Plan In September 2012, the EEOC declared that its strategic enforcement plan would focus on : A Targeted Approach An Integrated Approach Accountability

9 The EEOC s Systemic Initiative Established in 2006, but re-emphasized in 2012, the Systemic Initiative prioritizes pattern or practice, policy and/or class cases where discrimination has a broad impact on an industry, profession, company or geographic area.

10 Recent Pattern and Practice Claims

11 EEOC v. Mavis Discount Tire Refusal to hire women despite superior qualifications while less qualified men were hired Involves the Mavis job positions of tire installers, mechanics, assistant managers and managers

12 EEOC v. Bass Pro Outdoor World African-Americans and Hispanics routinely denied retail positions Failed to keep records related to employment applications and internal discrimination complaints Racially derogatory remarks made acknowledging the discriminatory practices

13 EEOC v. Texas Roadhouse

14 EEOC v. Texas Roadhouse Failed to hire front of the house employees over 40 years old Managers instructed to hire younger employees Images of employees in its training and employment manuals are of young people

15 Tell Tale Signs of a Pattern or Practice Claim Expansive Requests for Information Requests to Interview High-Level Employees Broad Subpoena Requests

16 How to Prevent Pattern or Practice Claims Employee Handbooks Supervisor Training Interview Protocols Familiarity with developments in law

17 The Impact of the Executive Branch s Influence on the EEOC s Systemic Initiative

18 The Lilly Ledbetter Fair Pay Act of 2009 Specifies the time period in which to file a charge EEOC expects increase in number of charges filed Greater opportunity to identify systemic pay discrimination

19 Americans With Disabilities Act Amendments Act of 2008 Broadened scope of who is disabled Significant increase in filing of ADA charges 41 suits filed in suits filed in 2011 George W. Bush initiative

20 How the Systemic Initiative is Affecting the EEOC Internally Strengthening training programs Investing in experts and technology An increase in filing Systemic Lawsuits Increases in budget proposals to litigate systemic cases

21 How the EEOC is Spreading the Word of the Systemic Initiative to the Public Social Media postings Online posting of settlement awards EEOC press releases Radio advertisements Interviews with EEOC s general counsel

22 How Does the EEOC Increase Its Systemic Cases? Merging phases Transforming a single charge into a systemic action Making nationwide requests for data typically through its subpoena powers Joining forces with other agencies to obtain additional information

23 Key Areas of Law that EEOC is Currently Pursuing Disability Discrimination and Leave Policies Hiring Practices Arrest and Conviction Records Pay and Promotions Gender Discrimination Migrant Workers LGBT rights under Title VII

24 Recent Cases EEOC v. Howard University Disability Claim EEOC v. Caldwell Freight Lines Race Discrimination EEOC v. PFERD Milwaukee Brush Company Failure to pay female employee equal wages EEOC v. H&E Equipment Services Gender Discrimination Claim EEOC v. Roy Farms, EEOC v. River Point Farms, EEOC v. National Food Corp Allegations of Sexual Abuse and Abuse of Farm Workers Mia Macy v. Eric Holder LGBT Discrimination

25 How The EEOC s Systemic Initiative Affects Its Litigation Program Broadened Investigations Systemic Plans now submitted by EEOC districts to EEOC headquarters Districts with significant systemic experience partnering with other districts Staff with systemic experience serving as team leaders

26 Systemic Litigation Lawsuits staffed based on needs of case, rather than where case arose Initiated and prosecuted by attorneys in field offices Plaintiffs attorneys called upon to assist EEOC

27 Pattern or Practice Lawsuits/Class Actions The EEOC has two vehicles to bring claims on behalf of classes : Representative actions Under section 707 of Title VII Pattern or practice cases Under section 706 of Title VII So long as one employee has filed an administrative charge of discrimination, EEOC may pursue relief on behalf of other similarly situated employees

28 Bifurcated Trials Liability Phase Statistics play an important role EEOC need only prove that discriminatory policy existed Employer can rebut prima facie case Remedial Phase Individual and prospective relief Individual unsuccessfully applied for a job EEOC v. New Indianapolis Hotels, LLC, 2012 WL EEOC v. JBS USA, 2011 WL EEOC v. P.A.M Transport, Inc., Case No

29 How Employers Can Litigate and Negotiate With the EEOC to Settle

30 How Employers can Litigate and Negotiate with the EEOC to Settle When litigating: Oppose bifurcation Challenge timeliness issues Seek to split up the class action

31 When settling: How Employers Can Litigate and Negotiate With the EEOC to Settle EEOC vs. private plaintiff s attorney Consent decrees Training Press Releases

32 Strategies for Not Becoming an EEOC Target Employ and enforce anti-discrimination policies Implement policy updates Avoid arrest, conviction and credit records as basis for refusing to hire Ensure that pay and promotions are fair and uniform, to the extent possible

33 Key Areas of Focus for EPLI Underwriting Application Training Initiatives Policies and Procedures Claims Management Process Diversity Initiatives Lay-off Information Claims Activity Including OFCCP General Relationship with the EEOC

34 Questions & Answers