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James Sherer Comments on Client Questions Post-Election in Law.com and The Recorder Articles

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Sarah La Voi, Lauren Bass Pen Article for The Licensing Journal on Morals Clause

Most employers today have anti-harassment policies covering race, gender and other types of discrimination to help comply with state and federal antidiscrimination legislation and to take advantage of the affirmative defense described in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). But what happens when employees are dissatisfied with the results of the investigations undertaken pursuant to those policies? That was the question answered by the court in Brown v. The Board of Trustees of the University of Illinois, Case No. 2:19-cv-02020 (C.D. Ill., Dec. 9, 2022).

In Brown, the three plaintiffs were Black employees who worked at the University of Illinois’ Urbana-Champaign campus. They brought a class action against the school under Title VII based on the inadequacy of its investigations of complaints of race discrimination. They argued that the school’s Office of Access and Equity, which investigated claimed violations of its antidiscrimination policies, required too high of a standard of proof and too often found that discrimination had not occurred. They moved the court to certify a class largely composed of nonsupervisory Black employees at the campus.

Much of the court’s opinion was bound up in attempting to determine the theory under which they could proceed and whether commonality could be established based on that theory. The court found that such claims would ordinarily be “highly individualized” because the results of an investigation, and whether those results were appropriate, would necessarily turn on the individual facts. It concluded that such a claim could only be brought on a class basis if the plaintiffs could establish that the university had either “systemic Title VII violations or enforced an illegal policy.”

While the court stated that such claims were often asserted in the hiring context, it expressed skepticism as to whether they could be asserted on a class basis based on the employer’s alleged failure to investigate discrimination claims thoroughly enough. The problem, the court found, is that the sufficiency of the process “has no bearing on whether anyone suffered a Title VII violation.” (Emphasis in original.) While the structure of Title VII encourages employers to develop complaint procedures, it does not mandate them or regulate standards for their sufficiency. Rather, if the employer asserts a Faragher/Ellerth affirmative defense, the plaintiffs could, after establishing that a violation had occurred, assert that the defense was not satisfied. Further, the school had numerous avenues by which aggrieved employees could complain about alleged discriminatory treatment, bypassing the procedure the plaintiffs claimed to be inadequate.

Finding that the claims could meet neither the requirements of commonality nor typicality, the court denied class certification.

The Bottom Line: Employers should have robust procedures to investigate and address complaints of discrimination but claimed weaknesses of those procedures alone does not create a class action claim.

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Illinois District Court Refuses to Certify Class Based on Anti-harassment Policy

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