Discrimination and EEOC Litigation

1. Discrimination and EEOC Litigation

2. Discrimination Can Occur Because • Intentional differences in treatment because protected group status • In a class action, a pattern or practice of treating groups differently • Outcomes of organizational policies and procedures, whether intended or not • Continuing effects of past practice od discrimination

3. Disparate Impact • The litigation that is most likely to involve an I/O psychologist is disparate impact litigation • Since 1979, EEOC has processed over 750,000 complaints – about 1 in 30 is disparate impact (25,000) • The great majority are single plaintiffs, and the great majority of these go nowhere • They are, however, large-scale cases with important outcomes

4. Griggs v Duke Power • What type or types are involved here? • How did this decision affect I/O practice?

5. Charge Statistics • In an average year, EEOC receives about 79,000 complaints, and recovers about $250 million in back wages • In addition, they will file about 375 cases per year and collect about $165,000 to resolve them

6. Age Discrimination • Last year, 22,875 complaints 2,001 settlements 19,239 no reasonable cause

7. How does litigation work? Mediation is always available and it is EEOC’s preferred solution If EEOC investigates and finds no cause for it to bring a case, they will issue a right to sue letter giving the complaintant the right to file individual suit in Federal Court - these rarely result in successful suits • Judge trial • Jury trial (CRA 1991 – right to jury trial in most cases)

8. Overview Mediation/Settlement Discovery EEOC determination Conciliation Investigation Charge Appeal Decision Class certification Complaint Trial Right to sue Motions

9. Process • 1. contact a federal, state, or local government agency eg., EEOC to register protest • 2. Information- once filed, the agency requests info from employer • What types of information? • 3. Reconciliation-if charge or protest has merit (what is this in I/O terms?), agency may suggest a remedy • Otherwise, if reconciliation is unsuccessful, the individual or group has the right to file a lawsuit

10. Process cont • 4) Right to sue- charging party may receive this in 3 ways: • 1) CP may ask for it after a fixed time period and EEOC must comply; 2) it can be automatically issued if EEOC finds the charge with merit; and 3) may be automatically issued if EEOC find charge to have merit but unable to resolve charge with employer. • 5) Complaint- if CP choose to file a lawsuit, the next step is to file a formal complaint with the court- id plaintif(s), id biases practice and remedy.

11. Process • . Class Certification- • 7. Discovery- period of time during which each side must produce certain evidence • 8. Motions- • 9. In Limine Motions (written motions asking judge to admit or preclude evidence) • 10. Summary judgment motions • 11. Mediation and settlement • 12. Trial • 13. Witnesses- Fact and Expert • Deposition • testimony • 14. Decision • 15. Appeal

12. Process • Federal Appelate Court System • Procedure • Trials, at which witnesses and other evidence are presented to a jury or judge in order to determine the truth or facts regarding a particular case, are held only in courts with original jurisdiction, i.e., courts in which a lawsuit is originally (and properly) filed and which have the power to accept evidence from witnesses and make factual and legal determinations regarding the evidence presented. Such trial courts also determine punishments (in criminal cases) and remedies (in civil cases). • Because the courts of appeals possess only appellate jurisdiction, they do not hold trials. Instead, appeals courts review decisions of trial courts for errors of law. Accordingly, an appeals court considers only the record (that is, the papers the parties filed and the transcripts and any exhibits from any trial) from the trial court, and the legal arguments of the parties. These arguments, which are presented in written form, and can range in length from dozens to hundreds of pages, are ironically known as "briefs". Sometimes lawyers are permitted to add to their written briefs with oral arguments before the appeals judges. At such hearings, only the parties' lawyers speak to the court.

13. Process • The rules that govern the procedure in the courts of appeals are the Federal Rules of Appellate Procedure. In a court of appeals, an appeal is almost always heard by a "panel" of three judges who are randomly selected from the available judges (including senior judges and judges temporarily assigned to the circuit). Some cases, however, receive an en banc hearing. Except in the Ninth Circuit Courts, the en banc court consists of all of the circuit judges who are on active status, but it does not include the senior or assigned judges (except that under some circumstances, a senior judge may participate in an en banc hearing when he or she participated at an earlier stage of the same case). • The current procedure is that a party in a case may apply to the Supreme Court to review a ruling of the circuit court. This is called petitioning for a writ of certiorari, and the Supreme Court may choose, in its sole discretion, to review any lower court ruling. In extremely rare cases, the Supreme Court may grant the writ of certiorari before the judgment is rendered by the court of appeals, thereby reviewing the lower court's ruling directly. Certiorari before judgment was granted in the Watergate scandal-related case, United States v. Nixon, 418 U.S.683 (1974), and in the 2005 decision involving the Federal Sentencing Guidelines, United States v. Booker, 543 U.S.220 (2005).