18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 29 On the employment discrimination class action front, corporate counsel can expect to see the following: • The plaintiffs’ bar will continue the process of refining the architecture of employment discrimination class actions to increase their chances to secure class certification in the post- Wal-Mart v. Dukes era. Their focus is likely to be on smaller class cases ( e.g. , confined to a single corporate facility or operations in one state) with “small and tight” certification requests as opposed to nationwide, mega- class action cases, as well as cases confined to a discrete practice – such as a hiring screen ( e.g. , a criminal background check) – that impacts all workers in a similar fashion. • In terms of certification theories, the plaintiffs’ bar is apt to pursue hybrid or parallel class certification theories where they seek injunctive relief under Rule 23(b)(2) and monetary relief under Rule 23(b)(3), as well as a range of partial “issue certification” theories under Rule 23(c)(4). The take-away from this strategy is an effort to “aim small” in order to certify a piece of the litigation, and use fee-shifting statutes on attorneys’ fees to pressure employers into class-wide settlements. • Plaintiffs are also likely to pursue certification of liability-only classes under Rule 23(c)(4), while deferring damages issues and determinations, and pressuring employers to settle due to the transaction costs of individualized mini-trials on damages. • If legislative efforts to amend or eliminate the impact of workplace arbitration agreements succeed in 2022 with respect to harassment claims, employers could see a renewed focus by the plaintiffs’ bar on employment discrimination class actions. While the barriers to certifying such cases generally may be higher in the employment discrimination arena than, for instance, the wage & hour space, and such cases often require more front-end investment by the plaintiffs’ bar to create favorable conditions for settlement, we expect that the elimination of workplace arbitration would remove a significant barrier and, thus, generate a renewed interest in this area. Government Enforcement Litigation – The Biden Administration has announced several priorities that are likely to manifest in significant employee- friendly policy shifts in 2022. Although the EEOC will continue to operate under a Republican majority of Commissioners into 2022, employers should expect the EEOC to pivot as soon as it is in a position to do so prompting activity on various fronts. First, according to President Biden’s campaign website, he wants to increase the Commission's budget and “empower the EEOC to initiate investigations for all areas of discrimination under its purview.” Employers should expect the EEOC to expand in terms of its aggressiveness and the number of investigations and lawsuits that it pursues, particularly regarding LGBT, pregnancy, and disability rights. Second, in line with the Executive Orders that President Biden signed upon taking office, employers should expect the agency to focus on lesbian, gay, bisexual, and transgender (LGBT) rights, particularly in light of the U.S. Supreme Court’s ruling in Bostock v. Clayton County , 140 S. Ct. 1731 (2020), that Title VII protects workers from discrimination based on sexual orientation and gender identity. In light of the Bostock decision, the EEOC may continue to vigorously pursue claims related to the discrimination or harassment of individuals on the basis of sexual orientation or gender identity. Third, the EEOC may finally turn greater attention to pay equity issues, along with renewing efforts to revive pay- data collection and reporting requirements through the EEO-1 survey. Due to protracted litigation in the U.S. District Court for the District of Columbia regarding EEO-1 pay data collection, the EEOC was forced in 2019 to collect extensive pay data for a two-year period under an Obama-era rule that it has since repudiated. This pre- Trump Administration data collection initiative required employers with at least 100 employees to report W-2 wage information and total hours worked for their workforce broken down by race, ethnicity, and sex within twelve EEOC created pay bands. Ultimately, the district court held that the EEOC had to take all requisite steps to complete the data collection for 2017 and 2018 by no later than January 31, 2020. Once this collection was