Looking for a Class Action Suit Near You

July 24, 2014

The Equal Employment Opportunity Commission (EEOC) has again made a push towards a shift in enforcement tactics that all employers should be aware of.

The Commission adopted the recommendations of an internal task force that recognized a fault in its investigation and litigation of “systematic” cases of discrimination – or class actions. So to correct what it termed a “deficiency” in class action suits, the EEOC has publicly announced a renewed effort in its pursuit of discrimination claims. It has shifted its focus from individual charges to claims involving a “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location.”

To identify more class actions, the task force made a number of recommendations and employers need to be on alert that more class actions are coming.

Among the recommendations being evaluated is the creation of incentives to encourage EEOC employees to identify, investigate and litigate “systematic” cases. Additionally, it will expand investigations of individual charges that may lead to the discovery of “systematic” discrimination, and create outreach programs to community organizations, workers, the plaintiff’s bar, and state and local agencies to identify potential areas of “systematic” discrimination.

Last year, the EEOC reported that 93,727 claims alleging employment discrimination were filed against private sector employers.  While the number of claims filed with the EEOC may not wane, there has already been a change in the way they are approached.  These changes will have a substantial effect on employment practices in the United States.

As the EEOC intensifies its pursuit of “systematic” cases of discrimination, investigations are likely to intensify and the plaintiff’s bar is expected to respond accordingly.  Employers should follow five simple rules to prepare for class actions.

1. Track your applicant flow data. 

This will help reduce liability in potential hiring claims.  You must be able to show who applied for the job. One way to do this is to ask applicants to complete the EEOC Voluntary Applicant Data Request form. Keep applicant flow data for a minimum of four years.

2. Do not use rigid cut-off scores for employment tests.

Be certain any tests given have been properly validated by an expert in job selection procedures.  Current tests should be used as one of many tools to make a decision on a given selection criteria.  Avoid using the same or similar tests for both hiring and promotion decisions.

3. Job posting should state only the criteria that will be used in the selection process.

Try and explain the process for job selection in the job posting.  Limit the criteria on a posting to no more than eight criteria. Try to list objective criteria in the job posting.

4. Interviews should assess defined criteria.

There should be a defined set of questions for each interview.  The questions should seek to determine whether the job applicant meets the defined criteria set for the job. The criteria should also have some type of rating system, and if one criterion is more important than the rest, it should be documented.  Notes should be taken on the job interview and kept for four years, preferably in a job folder for each filled job.  These notes should reflect how this person measures up to the specific criteria listed in the job posting.  Remember, your notes can always be subject to review if a lawsuit is filed.  Never write down a physical description of the applicant or comments about an applicant’s age, color, gender, religion, national origin, health, family or union affiliation.

5. Selecting candidates from job pools should follow a process. 

Once the job pool is defined, use a defined process to determine the order of who is interviewed, how they are interviewed and how the person is selected.  Be consistent with this process!