Canada: Systematic Discrimination Claims On The Rise In The United States: Nevertheless, There Are Some Limits

Edited by Jennifer M. Fantini and Naomi E. Calla

A New York Judge has dismissed a U.S. Equal Employment Opportunity Commission Pregnancy – Discrimination Class Action based on Work-Life Balance Theory.

In 2006, the U.S. Equal Employment Opportunity Commission ("EEOC") adopted its Systemic Initiative. This Initiative makes the identification, investigation, and litigation of systemic discrimination cases – pattern and practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area – a top priority. The Systemic Initiative also seeks to ensure that the EEOC has a coordinated, strategic, and effective approach to such cases.

When the EEOC makes a finding of systemic discrimination and efforts to secure voluntary compliance fail, it may choose to file suit to enforce the law. In 2011, the Commission filed 23 lawsuits with at least 20 known or expected class members. This comprises nine percent of all merit filings by the EEOC, and is the largest volume of systemic lawsuit filings since tracking started in 2006.

A recent example of such a lawsuit is EEOC v. Bloomberg L.P.¹ In this case, the EEOC filed a lawsuit against Bloomberg L.P. on behalf of a class of female employees who worked for the company between February 2, 2002, and March 31, 2009, and claimed they were discriminated against because they were pregnant or took maternity leave during that time.

The Judge in the case ruled that the EEOC failed to demonstrate that the employer had engaged in a pattern or practice of discrimination against pregnant employees or those who had returned from maternity leave in violation of Title VII of the Civil Rights Act. Judge Loretta Preska ruled the EEOC presented insufficient evidence of discrimination in its lawsuit, which she found was based on a theory of "work-life balance." According to Judge Preska, the law does not require companies to ignore employees' work-family tradeoffs when deciding about employee pay and promotions. The law simply requires fair treatment of all employees.

In her opinion, the Judge specifically noted that the anecdotal evidence presented by the Commission could not overcome the company's statistical evidence. Bloomberg's statistical evidence showed the company's "standard operating procedure was to treat pregnant employees who took leave similarly to any employee who took significant time away from work for whatever reason." Moreover, the experts reported that employees in the plaintiff-class received higher average and median growth in their compensation packages than those who took non-maternity leaves.

In denying summary judgment, Judge Preska echoed a number of other themes from Wal-Mart Stores, Inc. v. Dukes.² In Dukes, the Supreme Court took notice of the fact that Wal-Mart had a policy against sex discrimination and that Wal-Mart imposed penalties for denials of equal employment opportunity. Similarly, Judge Preska observed that Bloomberg provided its managers with formal training about compensation decisions, including specific admonitions not to discriminate on the basis of pregnancy.

While the employees in Bloomberg were ultimately unsuccessful in their lawsuit, the sheer volume of these types of cases indicates that this will not always be the case. As such, U.S. employers must be vigilant as to any discrimination charge brought before the EEOC or a similar state agency, especially where there is any chance that a class could be eventually named.

Footnotes

1 No. 07-CV-08383 (S.D. N.Y. Aug. 16, 2011).

2 603 F. 3d 571 (2011)

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