Equal Employment Opportunity Restoration Act of 2016
This bill amends the federal judicial code to permit one or more members of a group seeking relief for discriminatory employment practices under specified provisions of the Civil Rights Act of 1964, Americans with Disabilities Act of 1990, Rehabilitation Act of 1973, equal rights laws under the Revised Statutes, or the Genetic Information Nondiscrimination Act of 2008 to sue on behalf of all members of the group if the representative party shows, by a reasonable inference, that: (1) members of the group are so numerous that their joinder is impracticable; (2) claims of the representative party are typical of the claims of the group the representative party seeks to represent and the representative party and the representative party's counsel will fairly and adequately protect the interests of the group; and (3) members of the group are, or have been, subject to an employment practice that has adversely affected or is adversely affecting a significant portion of the group's members. (Thus, it establishes a new standard for employees bringing group actions for certain employment discrimination, notwithstanding the Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes, which required "convincing proof of a companywide discriminatory pay and promotion policy" as a prerequisite to class certification.)
A representative party may challenge a subjective employment practice covered by any of the above-referenced employment statutes in a group action filed under this bill to the same extent as the party may challenge any other employment practice covered by such a statute in such an action.
A "subjective employment practice" is defined as: (1) an employer's policy of leaving personnel decisions to the unguided discretion of supervisors, managers, and other employees with authority to make such personnel decisions; or (2) an employment practice combining such a subjective employment practice with other types of personnel decisions.
The bill prohibits the fact that individual supervisors, managers, or other employees with authority to make personnel decisions may exercise discretion in different ways in applying a subjective employment practice under such a statute from precluding a representative party from filing a corresponding group action.
Representative parties may elect to proceed in a group action under this bill or in a class action under the Federal Rules of Civil Procedure.