A "Hail Mary" Pass - An EEOC Interlocutory Appeal On Key Pattern Or Practice Issues

While we usually post about “hot off the press” federal decisions in employment-related class action litigation, today we highlight litigation that is still simmering in the pleadings stage. In EEOC v. United Parcel Service Inc., No. 09-CV-05291 (N.D. Ill. Sept. 28, 2011), Judge Robert M. Dow Jr. of the U.S. District Court for the Northern District of Illinois partially dismissed the EEOC’s claim that the Defendant, UPS, systematically discriminated against disabled employees in violation of the Americans With Disabilities Act (“ADA”). The EEOC’s case is hanging by a thread, but the Commission is still holding on. In a last resort effort, yesterday the EEOC field a motion seeking permission for an interlocutory appeal on a key issue underlying EEOC pattern or practice litigation that Judge Dow decided adversely to the Commission - the extent to which the EEOC may pursue claims on behalf of unknown claimants (often called “class members” by judges and litigants, even though EEOC pattern or practice cases are not governed by Rule 23 and are not class actions) allegedly injured by an employer’s policy.

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