June 27, 2017

June 26, 2017

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Breaching Glass Ceiling Through Individual and Class Action Cases

You think your employer has a glass ceiling and discriminated against you when you were passed over for a recent promotion.  Whether your company overlooked you because of your gender, race, national origin, or sexual orientation, an important issue is if the company has also discriminated against other employees like you (for example female, African-American, Muslim, LGBT).  Figuring out whether your potential case should be an individual versus a class action case is a key first step.

Glass ceiling/promotion discrimination and other types of employment discrimination cases can be litigated either as an individual case or as a class action.  Significant differences between these two options exist.  So if you believe your employer has discriminated against other employees like you, it’s important to talk with an experienced lawyer who can advise you about the pros and cons of a class action versus an individual case.

The basic difference between an individual versus a class action glass ceiling/promotion discrimination case

An individual case involves one employee (Jane Smith) suing her employer for glass ceiling/promotion discrimination.  The way the company treats its other employees will be relevant in an individual case.  But the focus of the case and the available remedies will remain on what happened to Jane Smith.  Individual lawsuits are far more common than class action lawsuits.

Class action cases, on the other hand, involve a lead plaintiff(s) who, along with the lawyer for the class, represent the interests of a larger group of class members who have been harmed by the company in some common way.  Class actions can range in size from 20-30 individuals to thousands of people.

promotion discrimination; glass ceiling discrimination; employment discrimination; passed over for promotion

Individual glass ceiling discrimination case settles for $300,000

Although women and other protected groups have made significant strides in the workplace over the last few decades, recent individual and class action cases illustrate the stubborn barriers to equal promotions that remain for many women.  Title VII of the 1964 Civil Rights Act, as well as other state and federal laws, make it illegal for companies to discriminate against women and other protected classes by, for example, refusing to promote, hire, or pay women equally.

The Equal Employment Opportunity Commission (“EEOC”) is a federal agency charged with enforcing various federal anti-discrimination laws, including Title VII and the Equal Pay Act.  The EEOC recently settled an individual “glass ceiling” case against Nestle Waters North America, Inc., in which the company allegedly cultivated a “boys club” mentality when it came to promoting women.

According to the complaint, the plaintiff, Dawn Bowers-Ferrara, worked at Nestle for over twenty years and received good performance evaluations.  During her career, Bowers-Ferrara’s male manager reportedly excluded her from all-male, company-funded events, including baseball games and going out for drinks.  Bowers-Ferrara further alleged that she reported her concerns about this exclusive behavior to management.

Soon after, as the company merged two of its business zones, her position was eliminated.  And the promotion for which Bowers-Ferrara applied went instead to an allegedly less-qualified male manager who did not meet the minimum requirements for the job.  Bowers-Ferrara ended up being the only employee to lose their job as a result of the consolidation.

The settlement provides Bowers-Ferrara with $300,000 in back pay and compensatory damages, as well as career transition services.  Nestle will further establish an anti-sex discrimination company policy and provide training on it to managers involved in the selection process.  Nestle did not admit any wrongdoing under the settlement.

Title VII outlaws promotion discrimination and provides significant remedies

The EEOC’s Nestle settlement highlights some of the remedies that are available in individual glass ceiling cases.  For example, Nestle agreed to:

  • provide back pay (the salary the company would have paid you had it not fired you; or the difference between what you should have been paid if promoted and what the company actually paid you);

  • pay compensatory damages, including emotional distress damages, and

  • make changes to the company’s anti-discrimination policies and training.

In addition to the relief provided in Bowers-Ferrara’s case, Title VII also allows for:

  • punitive damages to punish the company in egregious cases;

  • payment of your attorney’s fees and expenses;

  • reinstatement to the position if you were fired, as well as other “make whole” relief; and

  • if reinstatement is not feasible, payment of your lost earnings until you can be reemployed (front pay)

Class action promotion discrimination cases

The EEOC filed Bowers-Ferrara’s case as an individual employment discrimination lawsuit, but the EEOC has also brought glass ceiling discrimination cases as class actions  An example of a class action case is the EEOC’s settlement with Outback Steakhouse.  The settlement resulted in, among other relief, $19 million in damages to the class members.

And in early 2017, the EEOC also settled a class action case, EEOC v. Mach Mining, LLC, on behalf of female applicants of various mining companies—a traditionally male-dominated industry—who alleged they were excluded from high-paying jobs.  The settlement included:

  • $4.5 million in damages to the class members;

  • hiring goals for female employees;

  • training on anti-discrimination policies; and

  • reporting to the EEOC about compliance with the settlement terms

Class action procedural requirements

In either an individual or class action case, you will need to meet certain procedural and jurisdictional requirements.  Class actions, however, have additional requirements under Federal Rule of Civil Procedure 23 that must be met (different rules apply for state court cases).

The requirements include, among other things:

  • showing that the proposed class action involves enough people, usually at least 20-30 class members (numerosity);

  • significant factual or legal issues that will affect the class members in a common way, as well as similar claims or defenses among the parties (commonality and typicality); and

  • demonstrating that the lead plaintiff(s) will properly represent the other class members and that the lawyer is qualified and experienced in class action cases (adequacy of representation).

If the above criteria are met, then the proposed class action must also meet an additional condition:

  • the employer has acted on grounds generally applicable to the class members and they are seeking injunctive and/or declaratory relief (and certain forms of monetary relief) (Federal Rule of Civil Procedure 23(b)(2)); or

  • questions of law or fact common to class members predominate over any questions affecting only individual class member and a class is action is a more fair and efficient way to proceed (Federal Rule of Civil Procedure 23(b)(3)).

Finally, the local rules that apply to different federal courts may also have class action provisions that must be followed.

Key takeaways to see if your promotion discrimination case could become a class action

There are several important factors to consider in evaluating whether a potential case should be an individual or class action.  For example, in a gender discrimination/harassment case, you would want to consider:

  • Do you know other female employees who have experienced similar problems (for example, discriminated against by the same supervisor);

  • Is the discriminatory treatment the result of a company policy or other consistent practice, such as a specific promotion process or compensation formula;

  • Are there at least 20-30 female employees who may have been affected by the same type of discriminatory conduct; and

  • Will it be more efficient to combine all of these claims into one lawsuit rather than having a host of separate, individual lawsuits.

A court will ultimately decide whether the case can go forward as a class action based on a variety of factors, including the procedural requirement described above.

Likewise, the information you should include in an EEOC charge of discrimination will vary depending on whether it is a class action or individual.

© 2017 Zuckerman Law

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About this Author

Eric Bachman, Discrimination Attorney, Zuckerman Law Firm
Of Counsel

Eric Bachman is Chair of the Discrimination and Retaliation practices at Zuckerman Law and has served in senior positions at the U.S. Office of Special Counsel (OSC) and the Department of Justice Civil Rights Division.  Bachman’s wins include a $100 million settlement in a disparate impact Title VII class action, a record-setting Whistleblower Protection Act settlement at OSC, and a $16 million class action settlement against a major grocery chain.  Bachman holds extensive litigation experience, including trials in federal and state courts, and has also set important...

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