drafting position statements to mitigate full-scale...
TRANSCRIPT
Drafting Position Statements to Mitigate
Full-Scale EEOC Investigations and LawsuitsStrategic Techniques to Address Claims of Failure to Hire, Equal Pay, Class vs. Individual
and More
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.
WEDNESDAY, OCTOBER 17, 2018
Presenting a live 90-minute webinar with interactive Q&A
Julia Pearce Argentieri, Attorney, Jackson Lewis, Chicago
Paul Patten, Principal, Jackson Lewis, Chicago
Tips for Optimal Quality
Sound Quality
If you are listening via your computer speakers, please note that the quality
of your sound will vary depending on the speed and quality of your internet
connection.
If the sound quality is not satisfactory, you may listen via the phone: dial
1-866-258-2056 and enter your PIN when prompted. Otherwise, please
send us a chat or e-mail [email protected] immediately so we can address
the problem.
If you dialed in and have any difficulties during the call, press *0 for assistance.
Viewing Quality
To maximize your screen, press the F11 key on your keyboard. To exit full screen,
press the F11 key again.
FOR LIVE EVENT ONLY
Continuing Education Credits
In order for us to process your continuing education credit, you must confirm your
participation in this webinar by completing and submitting the Attendance
Affirmation/Evaluation after the webinar.
A link to the Attendance Affirmation/Evaluation will be in the thank you email
that you will receive immediately following the program.
For additional information about continuing education, call us at 1-800-926-7926
ext. 2.
FOR LIVE EVENT ONLY
Program Materials
If you have not printed the conference materials for this program, please
complete the following steps:
• Click on the ^ symbol next to “Conference Materials” in the middle of the left-
hand column on your screen.
• Click on the tab labeled “Handouts” that appears, and there you will see a
PDF of the slides for today's program.
• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.
FOR LIVE EVENT ONLY
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
6
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 7
Target employers in bigger, more costly systemic
discrimination suits
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
8
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!
9
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.
10
• 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.
11
• 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.
12
• 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.
13
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.
14
• Enact safeguards against retaliation.
• Determine who will do the investigation.
• Establish a point of contact with the EEOC.
15
• Consider resolving the individual case early.
• Consider whether policy or procedure changes might be
useful.
• Be prepared for multiple rounds of requests for
information.
16
Determine whether isolated incident or an established
practice or policy.
Obtain relevant documents.
Obtain comparator information.
17
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.
18
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
www.jacksonlewis.com
19
Standard Deviation of 1.96+ shifts burden to employer
to defend against “hidden” discrimination
Shortfall = measure of back pay damages
www.jacksonlewis.com
20
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)
www.jacksonlewis.com
21
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
www.jacksonlewis.com
22
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.
23
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.
24
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.
Practice allows review earlier.
25
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.
26
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.
27
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.
28
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.
29
EEOC Will Challenge Anything It :
Investigated After Something Reasonably
Came to Its Attention;
Found Cause to Believe was Discriminatory;
and
Attempted to Conciliate.
30
Policies/Guidelines/Code of Conduct
Spreadsheets or Other E-Data
Discussion of ALL Hiring or Promotion Procedures
31
Provide no more and no less information than that which
is relevant.
Be accurate.
Show that “justice” was done.
32
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.
33
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
34
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.
35
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
36
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
37
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.
www.jacksonlewis.com 38
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
www.jacksonlewis.com 39
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
www.jacksonlewis.com 40
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.
www.jacksonlewis.com 41
Class vs. Individual Claims
Failure to Hire Claims
Equal Pay Claims
Narrow Scope and Individualize!
42
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.
43
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
www.jacksonlewis.com 44
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.
45