Co-authored by Lynn Kappelman and Leslie Solondz

Designed to coincide with the first National Equal Pay Day, on April 12, 2011, the Institute for Women’s Policy Research (“IWPR”) issued a 162 page report analyzing 502 race and sex discrimination class action settlements between 2000 and 2008. The IWPR Report analyzes the injunctive relief provisions contained in those class action settlements. Entitled Ending Sex and Race Discrimination in the Workplace: Legal Interventions that Push the Envelope, the research underlying the Report involved both class settlements between private litigants and consent decrees negotiated by the Equal Employment Opportunity Commission and the Department of Justice in pattern or practice cases.  The Report also analyzes four industries – police and fire departments, agri-business and food processing, aerospace manufacturing, and financial services – to show how certain consent decrees and settlements were negotiated and implemented. 

The IWPR Report should be required reading for any corporate counsel facing workplace class action litigation. While plaintiff-oriented, the Report is a window into the thinking of civil rights advocates, plaintiffs-side class action lawyers, and government enforcement attorneys. The basic premise of the report is that class actions  – and the resulting consent decrees and settlements – have been a key to reducing discrimination in the workplace, bringing about greater fairness for all workers, and not just those who brought the suit.  As a result of the research, the Report crafts a number of suggestions to make injunctive relief in employment discrimination settlements and consent decrees “more effective” in actually remedying employers’ discriminatory practices and policies.   

The IWPR concluded that private class action settlements tend to include more effective injunctive relief provisions than the injunctive relief mandated by EEOC or DOJ consent decrees.  The Report notes that class action settlements negotiated by the EEOC and the Justice Department typically involve little more than public postings, minute revisions of EEO policies, or the requirement that the employer conduct harassment or diversity training.  The Report suggests that unless such requirements are linked to more detailed organizational interventions, they are likely to be less effective.  The implication is that class action lawyers for private litigants tend to negotiate more burdensome injunctive relief on employers and this is more effective in producing organizational change and promoting equality in the workplace.  The IWPR opines that the reason that private litigants impose more onerous, and thereby “effective” injunctive relief, is because EEOC and DOJ attorneys are reluctant to be prescriptive in consent decree negotiations for fear that employers may use the agency’s advice as a defense to future discrimination charges.  The Report also suggests that the EEOC’s failure to impose effective remedies is because the agency lacks sufficient financial resources for initial complaint investigations, litigation, and enforcement.  

The IWPR’s Report also notes that in order to be more “effective” in ensuring equality in the workplace, injunctive relief in consent decrees should create transparency in employment practices and hold supervisors more accountable for making sure they achieve the outcomes demanded by the consent decrees.  The IWPR further suggests that future settlements and consent decrees must focus on correcting multiple employment practices because “[c]ase studies suggest that discrimination often is the result of more than one employment practice.  For example, sexual harassment may go hand in hand with discrimination in promotions or hiring.” 

Specifically, the IWPR recommends that the EEOC and DOJ implement numerous changes to ensure that their consent decrees are more effective in remedying company-wide discrimination, including:

• The EEOC and DOL should create transparency in criteria used for making employment decisions, mandate supervisor accountability for outcomes, analyze compensation and promotion decisions and potential bias, appoint a senior manager to oversee EEO compliance, and establish a multi-year time frame for ensuring real organization change.
• The EEOC should establish its own Systemic Injunctive Relief Taskforce with dedicated funding sources so the agency can have access to up-to-date social science research about effective organizational interventions for equal employment opportunity.
• The EEOC should make special efforts in consent decrees in sex harassment cases to require independent monitors more frequently, and mandate measures for assessing real change in the workplace environment such as anonymous employee surveys.
• The EEOC should make more resources and training available for the initial charge and investigation process to ensure that all aspects of discrimination are captured in a charge and resulting litigation, and leave open the possibility for broad effective injunctive relief in a subsequent consent decree.
• The EEOC should investigate how to integrate the concepts of systematic review of an organization’s current human resources practices and up-to-date best practices advice into the consent decree process with smaller employers as well as larger employers.
• The EEOC should establish a central depository for monitoring reports generated by consent decrees and make them available on the same basis as EEO-1 reports so that they can do a more objective evaluation of  the success and consistency of consent decree measures.
• The EEOC should create a mechanism for collecting information on a national basis regarding the level, extent, and type of discrimination it has found in the workplace, so that it may establish better metrics for equal employment opportunity policy-making and enforcement activity in the future.

The IWPR Report also recommends that lawyers and judges take continuing legal education courses regarding how to fashion and enforce injunctive relief in employment discrimination litigation.  It suggests that EEOC, DOJ, private and non-profit lawyers should participate in forums to exchange experiences related to negotiating and implementing injunctive relief. In addition, it recommends that Congress draft legislation and issue executive orders to more closely monitor public sector organizations’ employment practices.  Finally, it suggests that unions play a greater role in negotiating the terms of consent decrees and then train members and shop stewards to monitor the implementation of consent decrees so they may identify problems.

Whether the EEOC and DOJ will implement the IWPR’s numerous recommendations for creating more “effective” consent decrees with employers in the future remains to be seen.  One thing is certain, however, employers should expect Plaintiff’s lawyers to view this report as a play book on the specific injunctive relief which they should request in any settlement of an employment discrimination class action.