Employment litigation in 2014: mostly more of the same
Much of the court caseloads in recent years has focused on class actions and collective actions prosecuted concerning wage-and-hour violations as opposed to discrimination, retaliation, harassment, or other civil rights claims. For over a decade, in fact, employment litigation has shifted in focus away from individual and multi-plaintiff discrimination or related civil rights matters as the courts have become increasingly skeptical of those claims. It has also become more difficult to pursue civil rights cases through class action litigation, as illustrated by the decision by the Supreme Court in Wal-Mart Stores, Inc. v. Dukes.
Consequently, employment litigation this coming year will likely retain a focus on wage claims rather than on discrimination or other civil rights issues. In this context, another recent trend has become especially important: the escalating aggressiveness of the Equal Employment Opportunity Commission (“EEOC”). The EEOC, as the Federal agency charged with interpreting and enforcing many of the country’s employment laws and civil rights statutes, has made a national priority of challenging discriminatory employment policies, procedures, and practices – especially those of a systemic nature and those based on race, national origin, or disability status. The EEOC will continue to pursue this approach in 2014.
In short, the trends in employment litigation of the recent past will continue into 2014. Significantly, employees who have endured discrimination, retaliation, or harassment in violation of civil rights statutes can intervene through their personal attorneys in cases filed by the EEOC to address those civil rights violations. Such collaboration between government counsel and private counsel in furtherance of workplace fairness has proven a potent combination both in terms of proving that employers have broken the law and in recovering substantial damages resulting from employer’s legal violations. That trend should also continue.