Employment Law Daily EEOC advances pattern or practice claim that affiliated companies favored Hispanic applicants
Friday, September 22, 2017

EEOC advances pattern or practice claim that affiliated companies favored Hispanic applicants

By Marjorie Johnson, J.D.

The EEOC plausibly alleged that an employer and its affiliated companies maintained a policy of giving hiring preference to Hispanic and Spanish-speaking applicants. Denying the defendants’ motion to dismiss, a federal court in California held that the EEOC’s pre-suit requirements were non-jurisdictional and that it adequately pled that it had met them. Moreover, though the affiliated companies were not specifically named in the underlying EEOC charges, the agency sufficiently alleged that they had adequate notice of the nationwide scope of its investigation by asserting that they were substantially identical and that their investigation related to them all (EEOC v. Marquez Brothers International Inc., September 18, 2017, Ishii, A.).

Discriminatory hiring policy. The EEOC alleged that the defendants, which operated cheese and whey processing facilities in several states, engaged in a “pattern or practice” of discrimination, including favoring less-qualified Hispanic job applicants for unskilled laborer positions; asking applicants if they spoke Spanish and discouraging those who didn’t from applying; and refusing to accept applications from non-Hispanic individuals.

The EEOC detailed the experiences of two African-American male applicants who filed separate EEOC charges against a Hanford, California plant run by Marquez Brothers International, Inc. (MBI). These claimants asserted that they were repeatedly discouraged from applying and unfairly denied employment in favor of less-qualified Hispanic or Spanish-speaking applicants. In addition, the EEOC conducted a broader investigation into all the defendants’ employment practices, which included reviewing EEO-1 forms; detailing the racial composition of their facilities between a three-year period; and interviewing other non-Hispanic, biracial, or non-Spanish speaking applicants.

Pre-suit conditions non-jurisdictional. The employer characterized their first argument—that the EEOC failed to satisfy conditions precedent to filing suit—as a jurisdictional challenge. However, the EEOC disagreed, relying on the district’s prior decision in EEOC v. Farmers Insurance Co., finding that these preconditions to suit were not jurisdictional in nature. Since the Supreme Court had since issued additional guidance in Mach Mining, regarding enforcement of the conciliation precondition to suit, the court underwent a thorough analysis and ultimately determined that Mach Mining did not compel a departure from its prior determination in Farmers. Thus, the defendants’ motion to dismiss for lack of subject matter jurisdiction was denied.

Plausibly alleged conditions were met. Additionally, the EEOC adequately alleged that the conditions precedent to suit have been satisfied. Specifically, before filing suit it was require to (a) give notice to the employer of the charge filed, (b) conduct an investigation into the alleged unlawful conduct, (c) determine whether reasonable cause existed to believe that an unlawful employment practice had occurred or was occurring, and (d) attempt to eliminate the unlawful practice informally through the conciliation process. The EEOC plausibly alleged that it met these requirements by asserting that, “[p]rior to the institution of this lawsuit, all conditions precedent were satisfied.” It also specifically alleged supporting this allegation.

Charges didn’t need to name affiliated corporations. The court also rejected the defendants’ assertion that the EEOC could only pursue claims of discrimination against the Hanford facility since the underlying EEOC charges named only that facility and MBI, thus failing to place the affiliate companies on adequate notice of the nationwide scope of the EEOC investigation.

Though the defendants were undisputedly all affiliated corporations, they argued that the EEOC investigation of MBI could not expand to them since they were not originally identified in the charge and not given separate notice of such an expansion. Because the EEOC alleged that it investigated claims against them and they were the subject of the EEOC’s conciliation effort—in which they all were apparently invited to participate—they were appropriately named at this stage of the litigation.

Moreover, even if the EEOC were restricted to bringing claims against only those parties named in the underlying EEOC charges, the Ninth Circuit has articulated certain exceptions to the general rule, including where the defendants are substantially identical, such as when one dominates the operations of the other or manages another. Here, the EEOC alleged MBI’s “close inter-relationship and control over” the affiliate defendants was evidenced by its filing of the EEO-1 Reports on their behalf as its “establishments.” Additionally, the EEOC alleged that MBI has exercised control over and/or has been involved in the other defendants’ financial operations and the management of their employees. These allegations suggested that the defendants were substantially identical.

Adequate investigation plausibly alleged. The EEOC has adequately alleged that it conducted an investigation that related to all defendants, and not just the Hanford facility. In this regard, the court does not delve into the substantive sufficiency of the EEOC’s investigation. Therefore, it was sufficient that the EEOC asserted that it conducted an investigation and presented factual allegations regarding MBI’s control over hiring decisions by the affiliates, funding of a common workers compensation policy, and the racial composition of MBI’s nationwide workforce.

Pattern or practice of discrimination. Finally, the EEOC adequately alleged that the defendants all engaged in a practice of unlawful discrimination. In addition to the allegations set forth in the EEOC charges, the agency alleged that between 2010 and 2013, they employed a nationwide workforce ranging from 98.3 to 96.7 percent Hispanic and that in the same period, their nationwide unskilled workforce ranged from 100 to 98.7 percent Hispanic. Evidence of gross statistical disparities between an employer’s workforce and the general population can alone constitute prima facie proof of a pattern or practice of discrimination.

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