Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the past year, large settlements of “pattern or practice” employment discrimination claims against Boeing and Abercrombie & Fitch and the certification of the largest civil rights class action in American history against Wal-Mart Stores have prompted questions about what employers can do to avoid being the next target. While we have many years of experience representing victims of employment discrimination, we do not generally give legal advice to employers. But we have served as lead or class counsel in more than 30 of these cases, including the Wal-Mart and Boeing cases, and we can offer clues to the workplace practices that cause particular employers to become the subject of careful investigation and, in some cases, the target of litigation. Since our purpose in bringing these cases is to change employer behavior as well as to obtain relief for our clients, we hope the advance notice we provide here will encourage prudent employers to modify their practices. We examine many clues in determining whether an employment practice is suitable to class litigation. 1. A repeated pattern of individual complaints. Equal employment opportunity class cases may develop when individuals complain about employment practices that they allege have been applied in a discriminatory fashion. Often, the first complaints we receive are insufficient alone to demonstrate a pattern of conduct that would warrant further investigation, much less the filing of a class suit. Yet we track these complaints in a database and, over time, may observe patterns among complaints made against particular employers that warrant further investigation. We look for patterns, and prudent employers should do the same. 2. Failure to afford employees equal opportunity to compete for job openings. Some employers lack systems for making job vacancies known to eligible candidates, hinder the ability of some employees to apply for job vacancies, or deny equal access to career-enhancing opportunities. Evidence of any of these practices will prompt our close examination. Where employers fail to publicize vacancies or limit notice of vacancies in a manner that excludes some employees who are eligible for selection, they create the opportunity for managers to rely upon personal preferences and stereotypes in identifying candidates for promotion or other job openings. Similarly, providing notice of vacancies for only brief periods of time and providing notice by means, such as electronic methods, to which some employees do not regularly have access also raises doubts about whether the process is fair. Where work assignments and training opportunities can enhance the strength of a candidate’s application, we examine the way that the system allocates those assignments and whether it does so equitably. Employee assignments to different facilities or to different departments within the same facilities where work varies in its career-enhancing potential may also warrant our close scrutiny. We have also investigated where employers require that candidates obtain their supervisors’ approval before applying for vacancies. Finally, we investigate ways in which managers may discourage particular employees from pursuing vacancies, especially where the managers rely upon stereotypes about a candidate’s fitness. For example, in one case we received numerous reports of male managers discouraging female candidates from seeking management positions on grounds that the work would be too demanding for a woman and that the men had families to support who needed the extra income. 3. Failure to guide managers in the exercise of discretionary employment decisions. Inevitably, managers require discretion in the discharge of many of their duties. Where managers exercise discretion in making important employment decisions, however, employers must provide detailed guidance in the exercise of this discretion. Employers must also specify concrete and job-related factors on which the decisions are to be made. The broader the discretion afforded the managers, the more guidance that is warranted. In our experience, conducting performance evaluations and setting compensation constitute the most common practices in which the unguided exercise of discretion creates risk to employers. A system of performance evaluations that is unaccompanied by specific guidance and training about how each facet should be conducted and how each factor should be evaluated and weighted is a ready target for possible litigation. Directions to managers that they use their best judgment in evaluating performance or that they simply judge candidates based on merit could easily grace the first page of a class complaint. Although a little less obvious, the use of performance evaluation factors that are not anchored in observable behavior also presents ripe opportunities for managers to apply personal biases. In what may be a misguided effort to inject common sense into the performance review process, some employers create vulnerability by using factors like loyalty, appearance, or personal warmth to assess performance. It is equally risky to empower managers to use unrecorded factors in making performance evaluations. Such subjective factors tend to reflect more about the manager’s personal life experiences than the employee’s merits. The means by which managers set starting compensation and make regular pay adjustments, such as annual raises, also require attention. Setting broad pay scales, but failing to provide proper guidance about how to set each employee’s pay level within that scale creates opportunities to exercise bias. Employers who fail to identify with particularity each factor used in pay adjustments create the same risk. In our experience, the most reliable foundation for pay adjustments is a recent performance appraisal. Employers who permit managers to rely upon other criteria do so at some risk, unless the criteria are recorded, can be readily measured, and are demonstrably related to an employee’s value to the employer. Similarly, employers who allow managers to recognize broad or frequent exceptions to the general rules on performance appraisals and compensation heighten the odds of litigation. While we recognize employers may need to allow for limited, discrete exceptions to their workplace rules, the occurrence of and need for such exceptions should be recorded and reviewed at a higher level before they are permitted. 4. Failure to ensure that the factors on which employment decisions are based are job-related. All the work-related rules in the world will not save an employer’s personnel system if the factors used in employment decisions fail to measure success in the job to which they apply. Promotion decisions based upon factors that do not seem to bear a close relation to the important job tasks will raise questions. As human resource professionals know, there are well-established protocols for systematically determining the knowledge, skills, and abilities required to perform particular jobs. Employers can reduce their exposure to litigation by undertaking this kind of job analysis and using the result to establish the factors on which selections will be made, performance will be evaluated, and compensation will be set. But when we learn of employers who have failed to undertake any form of professional job analysis, leaving to their managers the sole selection of the factors used in employment decisions, or who rely on outdated analyses, we look closely at whether these decisions suggest discrimination has occurred. 5. Failure to monitor individual manager decisions and failure to audit work-force data to detect patterns of discrimination. Employers who fail to regularly review the personnel decisions of their managers or who fail to maintain or review work-force data about fundamental personnel decisions miss a great opportunity to identify and address patterns suggestive of discrimination before litigation forces them to do so. In the absence of regular reviews of individual personnel decisions, managers may lack a sense of accountability � that is, an understanding that their decisions and the grounds for them will be subject to scrutiny. Similarly, employers who fail to collect data on the selections made and the applicants for each selection, on each component of compensation paid, or on the performance evaluations conducted miss a valuable opportunity to examine their managers’ personnel decisions. While the failure to undertake these forms of self-examination and to hold managers accountable for personnel decisions is not fatal to an employer’s personnel system, it invites questions about whether the employer is truly committed to equal employment opportunity and whether bias in the workplace exists unaddressed. Monitoring manager decision making and personnel decisions is not the end of the inquiry, of course. Employers who engage in these forms of self-examination must evaluate the results dispassionately. They must investigate and address anomalies or patterns suggesting discrimination, rather than ignore them. Once informed of evidence that practices have operated adversely to harm a protected group, an employer that does nothing risks exposure to a punitive damage award. Employers who use workforce data to conduct meaningful analyses of their personnel decisions must also ensure that the data collected, to the greatest extent possible, captures the variables bearing on their personnel decisions. An employer who believes an employee’s education is relevant to particular promotion selections, for example, should maintain current education data. Otherwise, it risks difficulties in offering differences in education as a legitimate explanation for observed disparities. 6. Failure to respond promptly and effectively to employee complaints. Most employers maintain offices that investigate complaints of employment discrimination. But the existence of such offices alone will do little to remedy discrimination in the workplace unless the office investigates and redresses complaints promptly and effectively, and employees regard it as doing so. When we hear complaints about a company’s human resources office, it is often a warning that the pursuit of equal employment opportunity is a low priority of management or that the office has failed to be accepted as a legitimate and safe place where employee complaints may be brought. In our experience, widespread complaints about a human resources office suggest that the company may have failed to recognize and address ongoing patterns of discrimination. The absence of complaints about the human resource professionals, however, may not demonstrate the converse � that is, that all is well in the workplace. We look further to determine whether the employer maintains multiple avenues for lodging complaints. Can complainants bypass the chain of command to lodge complaints against their supervisors? Does the human resources office employ staff who are trained and operate professionally and who determine whether complaints have merit? And how are results of investigations reported and to whom? Not surprisingly, we find troubling any allegations that employees who lodged complaints were subject to retaliation later. These assertions are investigated very carefully. 7. Epithets and bigoted humor in the workplace. There is likely little dispute that ethnic, racial, gender, or other epithets expressed in the workplace would trouble most employees and attract the attention of their lawyer. The same is true of bigoted jokes and other expressions of intolerance dressed up in friendlier clothes. But in our investigations, we give considerable attention to the employer’s response to these incidents, even where they are isolated. We ask about how managers handled the incident. Did senior management address the matter, and what message did they communicate? We are interested in learning about what, if any, discipline was applied to persons who made bigoted remarks. We also investigate what, if any, action the company undertook to investigate the conditions that gave rise to the incident and what, if any, precautions were taken to reduce the likelihood of its recurrence. The price of avoiding class litigation is constant vigilance and a commitment, by word and deed, to treat the protection against discrimination in the workplace as among a company’s highest priorities. Instead, we see far too often that preventing discrimination is a gesture supported half-heartedly by managers who regard it simply as an unwelcome expense. Companies that treat diversity as a valued business goal will avoid, or at least reduce, their exposure to these cases. They tackle the signs of trouble above with the same zeal and attention as they promote business growth. Joseph M. Sellers is a partner and Julie Reiser is an associate in the D.C. office of Cohen, Milstein, Hausfeld & Toll. They represent plaintiffs in employment class actions, including in the Boeing and Wal-Mart cases mentioned here. They can be reached at [email protected] and [email protected], respectively.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.