Employment discrimination is not limited to individual acts of overtly disparate treatment based on factors like race, sex, national origin, or disability. It can also take much more subtle forms, which might only be visible if one takes a much broader look at an employer’s practices. The Equal Employment Opportunity Commission (EEOC) calls this “systemic discrimination.” While it can affect large numbers of workers in one or more protected classes, it can also be difficult to prove in a legal proceeding. The EEOC recently published a review touting “significant success” in a nationwide program that it launched in 2006 to fight systemic discrimination. New Jersey courts have addressed systemic discrimination under federal and state employment laws, providing workers with a variety of means for asserting their rights.
The EEOC defines systemic discrimination as any “pattern or practice, policy, or class case” having “a broad impact on an industry, profession, company, or geographic area.” Examples of unlawful systemic discrimination might include questions on job applications that unlawfully exclude people with disabilities, as well as restrictions on access to “management trainee programs” or “high level jobs” that disparately affect prospective trainees or employees based on factors like race or gender.
According to the EEOC’s 10-year review, published in July 2016, the agency has prevailed in 94 percent of the lawsuits brought through its nationwide systemic discrimination program. The amount of monetary damages recovered during the period covering fiscal years 2011 through 2015 was reportedly three times as much as the amount recovered during the previous five fiscal years. Between fiscal year 2007 and fiscal year 2015, the EEOC also increased the rate of “successful voluntary conciliations of systemic investigations” from 21 percent to 64 percent.
Courts in New Jersey have made a number of important findings regarding how state and federal anti-discrimination laws deal with systemic discrimination claims. Systemic discrimination, by its very nature, might not involve distinct incidents, such as acts of harassment based on sex or race. As a result, determining whether a lawsuit falls within the statute of limitations could be an issue. The New Jersey Supreme Court has ruled, however, that systemic discrimination constitutes a “continuing violation” under the New Jersey Law Against Discrimination, which overcomes the law’s two-year statute of limitations. Shepherd v. Hunterdon Devel. Ctr., 803 A.2d 611, 624 (N.J. 2002).
Since systemic discrimination affects multiple employees, again by definition, access to class action procedures is critical in many cases. The Third Circuit Court of Appeals has found that systemic discrimination meets the “similarly situated” requirement for an opt-in class action under § 16(b) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b). Lusardi v. Lechner, 855 F.2d 1062, 1071 (3rd Cir. 1988).
A New Jersey court has also ruled on whether expert opinion testimony is required to establish the existence of a pattern or practice of discrimination. The court held that it “can be perceived, or inferred from one’s perception, without specialized training or knowledge,” and expert testimony is therefore not required. Ford v. Cty. of Hudson, No. 2:07-cv-05002, mem. op. at 4 (D.N.J., May 16, 2014); Fed. R. Ev. 701(c).
If you need to speak to an employment discrimination lawyer in New Jersey or New York, contact the Resnick Law Group online, at 973-781-1204, or at 646-867-7997.
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