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Illinois Court Gives EEOC a Boost On Controversial Pre-Lawsuit Techniques

By Forrest Read

In recent years, the Equal Employment Opportunity Commission (EEOC) has taken the aggressive approach of expanding charges it receives from one or a few individuals into larger-scale class actions in federal courts.  Last week, in EEOC v. United Road Towing, Inc., the U.S. District Court for the Northern District of Illinois declined to challenge the adequacy of the EEOC’s administrative practices, thus giving ammunition to the EEOC to continue its approach of widening litigation involving alleged discrimination.

In that case, the employer, URT, argued that the EEOC had failed to satisfy its pre-lawsuit obligations regarding charges initially brought by two disabled employees under the Americans with Disabilities Act claiming unlawful denial of reasonable accommodation, termination of employment, and refusal to rehire.  Specifically, URT contended that the EEOC added 17 plaintiffs during discovery whose claims it had failed to investigate during its administrative investigation and that its conciliation efforts were deficient because it did not disclose the number or identities of the other purported class members.

In denying URT’s motion, Judge Castillo took a hands-off approach to judicial review of the EEOC’s administrative practices.  He wrote that the court could not undertake an evaluation of the EEOC’s investigatory practices because doing so would stray from the validity and merit of the actual claims.  As to conciliation, Judge Castillo concluded that the EEOC’s determination letter stating that a class of members had been subjected to violations and its identification of those violations were sufficient triggering of and engagement in conciliation, even without including the specific names and quantity of purported members.

Although other courts have reached different conclusions faced with similar facts, this ruling emboldens the EEOC to continue to decline or neglect to investigate the experiences of each purported class member to the same extent it investigates those of named charging parties.  Moreover, it means the EEOC has authority for continuing its pre-lawsuit practice of pointing to little specificity and vague details in support of requested monetary relief during conciliation.

Hospitality employers should understand that class actions – whether privately or agency-initiated, whether in the discrimination or wage-hour context – continue to be an epidemic from which they should protect themselves to the fullest extent possible.  While it is not possible for employers to ensure that disabled employees will never file charges, developing and following policies that engage in the interactive process and constructively discuss the possibility of reasonable accommodations is vital to minimizing the possibility of having to defend against would-be class actions.  Similarly, in order to reduce the possibility of facing class action lawsuits on other bases, hospitality employers should regularly monitor their policies, pay rates, benefits, and other company practices to ensure that they are consistently and uniformly applied to similarly situated employees.