Last Friday, the U.S. Senate confirmed President Obama’s nomination of Plaintiffs’ class action attorney Jenny Yang to serve as one of the Democratic Commissioners on the U.S. Equal Employment Opportunity Commission ("EEOC"). On the one hand, Ms Yang’s confirmation likely does not herald a big change in the EEOC’s philosophy or priorities; Ms Yang’s appointment was of the relatively routine type that the President must make to fill many top positions at federal agencies. Further, Ms Yang replaces another Democratic Commissioner, Stuart Ishimaru, who resigned last year, so the five-person Commission will continue to consist of three Democrats (who tend to be more employee friendly) and two Republicans (who tend to be more employer friendly).
On another hand, though, Ms Yang’s background may signal a renewed focus by the Obama Administration on aggressive EEOC enforcement, including through EEOC-initiated litigation. Ms. Yang is currently a partner at the plaintiff class action litigation law firm Cohen Milstein Sellers & Toll, which has represented plaintiffs in some of the biggest employment discrimination class action cases of recent years. For example, Ms. Yang represented plaintiffs in a large sex discrimination class action case against Boeing in Washington state, which reportedly settled for $72 million in 2005. Her firm also represented members of the putative class of 1.5 million female Wal-Mart employees in the blockbuster case Dukes v. Wal-Mart. While the U.S. Supreme Court ruled in 2011 that the Dukes plaintiffs were too numerous and different to be certified as a single, nation-wide class, the litigation has since continued as numerous "smaller" class action lawsuits in courts around the country.
Fewer Bigger Cases In The Future?
Ms Yang’s background probably fits nicely with some of the EEOC’s stated enforcement priorities. As we blogged about last year, a key priority of the EEOC’s current "Strategic Enforcement Plan" (SEP) focuses on eliminating "systemic" employment practices that the EEOC believes may disproportionately impact protected classes, especially women or racial minorities, under anti-discrimination statutes such as Title VII or the Equal Pay Act. It doesn’t take an employment lawyer to know that, when it comes to litigation "systemic" is usually synonymous with "class action."
In fact, perhaps due to budget constraints (and the as yet unknown impact of the budget "sequestration") the EEOC may be specifically looking to double-down on its systemic strategy by focusing more on class action cases to maximize the bang it can get out of its diminished buck. Despite the popular perception among employment lawyers that the current EEOC is actively engaging in enforcement actions, according to its website it in fact filed far fewer lawsuits in 2012 (150) than in 2011 (300), and the total number of lawsuits has steadily declined over the past decade. But while the total number of cases is down, more of the EEOC’s cases in recent years have been class action lawsuits. Because the EEOC is filing fewer cases, Ms. Yang’s appointment and confirmation suggests it may be looking to make each one count more by sending a message.
It is true that some courts have recently taken a dim view of the EEOC’s aggressive litigation strategy by dismissing claims or refusing to certify classes in recent cases; in some cases courts have even awarded employers attorney fees and expert fees and costs (ranging from $200,000 to several million in various cases) when the EEOC over-zealously pursued cases that lacked merit. EEOC v. Peoplemark, Inc., 2011 U.S. Dist. LEXIS 154429 (W.D. Mich. Oct. 17, 2011).
Employers Should Batten Down The Hatches
But those victories may be of small consolation to employers; a visit to the EEOC’s website shows it settles far more cases than it loses, and employer defendants in employment discrimination cases almost never recover attorney fees. What is more instructive about those cases is that they illustrate how expensive class action litigation can be, and employers should do what they can to avoid a lawsuit in the first place. Everyone knows that the chance of being struck by lightening is very low, but everyone also knows not to dance around in an open field with a metal rod during a thunder storm.
Employers should therefore continue to audit and re-audit their handbooks and hiring and pay practices for potential company-wide (i.e., "systemic") discriminatory impact, especially in the areas such as credit or criminal background checks of particular interest to the EEOC of late. And as always, employers should continue to implement good anti-discrimination policies and quickly and thoroughly investigate and remediate discrimination in the workplace. While the number of EEOC-filed cases may be down, the number of charges filed annually with the EEOC by individual employees (which is often how the EEOC litigation begins), has held steady at about 99,000 per year.