If in-house lawyers ever put together a list of some of their favorite things, defending against more employment discrimination suits wouldn’t make the cut. Unfortunately, a new enforcement plan that the U.S. Equal Employment Opportunity Commission has proposed would lead to exactly that. The ACC yesterday sent a letter to the EEOC objecting to parts of the plan, and asking to discuss our concerns before the Commission puts the plan into effect in October.
The plan, which covers a wide range of actions, raises four serious concerns for in-house lawyers, which the letter details. They are:
1) The EEOC would emphasize investigations and litigation concerning broad-based, systemic, and class-wide allegations of discrimination. This is precisely the sort of case that the Supreme Court blocked last year in its seminal opinion in Wal-Mart v. Dukes. The serious flaws that the Court pointed out in Wal-Mart apply equally to the EEOC’s plan.
2) The plan seems to discourage arbitration in employment discrimination suits. If this is indeed the EEOC’s goal, it would conflict with laws that Congress has passed and the cases the Supreme Court has handed down that make clear arbitration is a clear and viable option to litigation.
3) According to the proposed plan, the EEOC should work more closely with private lawyers, and should effectively hand off cases that it drops to plaintiffs’ lawyers. This means that the EEOC will find itself actively encouraging plaintiffs’ lawyers to pursue cases that the Commission thinks are too weak to pursue. The EEOC has many valuable missions, but actively assisting private plaintiffs’ lawyers to pursue potentially frivolous litigation against employers should not be one of them. This priority risks turning the Commission into an investigation and referral service for the plaintiffs’ bar.
4) The EEOC does not always give a heads up about new policy concerns. Instead it too often plunges in to investigate and litigate without giving advance warning to the industry or company it has targeted, or to discuss remedies short of litigation. The proposed enforcement plan does nothing to fix this problem.
ACC’s letter is available here.