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Employment Law Update

The EEOC and the Financial Services Industry

The EEOC has indicated an increased interest in monitoring issues of alleged discrimination and retaliation within the financial services industry. This is not surprising, given that the financial services industry is a critical component of the nation’s economy and the source of many well-paying jobs. In fact, the EEOC published a recent report entitled Diversity in the Financial Industry, largely devoted to an analysis of the alleged lack of promotions of women, African Americans, Hispanics, Asians and American Indians / Alaskan Natives to management positions.

The EEOC has filed nine cases against financial institutions in the Southern District of New York since 1996. The employer prevailed in three of the cases, five cases settled, and one remains pending.

The EEOC has filed nine cases against financial institutions in the Southern District of New York since 1996. Three of the nine cases included allegations of discrimination based upon gender; three included allegations based upon disability; two included allegations based upon national origin; one included allegations based upon age; one included allegations based upon race; and three included allegations of retaliation. The employer prevailed in three of the cases, five cases settled, and one remains pending.

Every lawsuit settled in which the EEOC was a plaintiff resulted in a consent decree. These consent decrees are the best sources of information about what a financial institution can expect when they negotiate a settlement with the EEOC.

Common Elements — Found in All Consent Decrees:

  • Press release: Whenever the EEOC enters into a consent decree, a press release is issued. These press releases always contain (1) a description of the lawsuit, (2) the settlement amount and (3) a description of the specified relief.

  • Settlement Amount Not Confidential: The settlement amount is not confidential and the employer may not enter into a separate confidentiality agreement with the individual complainant.

  • Notice: The employer must post a notice announcing the settlement with the EEOC and promising adherence to non-discrimination policies.

  • Compensatory damages: The employer must pay compensatory damages.

  • Training: The employer must provide anti-discrimination training.

Negotiable Elements — Found in Some Consent Decrees:

  • No admission of liability: If the employer insists, the consent decree may include a statement by the employer that by settling it is not admitting liability or wrongdoing.

  • Monitored compliance: The employer agrees that the EEOC can monitor the employer’s compliance with the consent decree.

  • Recording and reporting: The employer must record and report any future complaints of discrimination.

  • Mentoring: The employer establishes a mentoring program for current employees.

  • Targeting current and future employees: The employer agrees to target existing employees and future applicants who are in the protected class at issue in the case in order to improve retention and hiring.

Unique Elements — Present in Select Consent Decrees:

  • Exit interviews: The employer will conduct exit interviews of employees who voluntarily leave and are members of the protected class to determine whether those employees experienced discrimination.

  • Scholarship fund: The employer creates a scholarship fund for the educational expenses of employees in the protected class and their families.

Conclusion The EEOC is carefully scrutinizing the financial services industry. While the EEOC is searching for class-wide claims, they have shown a willingness to bring single plaintiff claims with no foreseeable wider implications. By examining the elements both common and unique to consent decrees, employers, particularly those within the financial services industry, are provided with guidance regarding possible terms for settlement of a case of discrimination and/or retaliation with the EEOC.

Kramer Levin Naftalis & Frankel LLP

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