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.
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.
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.
As reported in law360, 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.
The EEOC’s Nestle settlement highlights some of the remedies that are available in individual glass ceiling cases. For example, Nestle agreed to:
In addition to the relief provided in Bowers-Ferrara’s case, Title VII also allows for:
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:
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:
If the above criteria are met, then the proposed class action must also meet an additional condition:
Finally, the local rules that apply to different federal courts may also have class action provisions that must be followed.
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:
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.
Given the strict deadlines associated with EEOC employment discrimination charges and the often complex issues that should be weighed in deciding between proceeding as an individual versus class action claim, you should speak with an experienced employment discrimination lawyer to discuss your legal options.
