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Watch out! EEOC complaint can mushroom into class action

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in Employment Law,Human Resources

If there was ever a reason to involve your attorney in an EEOC investigation, here’s a powerful one: If a lone employee who brings an EEOC complaint claims you favored white employees, he may be able to expand his lawsuit to represent all nonwhite employees who were allegedly discriminated against, not just employees who belong to his particular protected class.

Recent case: Mohammed Rahman worked as a waiter for the Park Avenue Café in Manhattan from 1998 until he was fired in 2005 for allegedly misusing a gift card. Rahman is a Muslim of South Asian descent.

Rahman filed an EEOC complaint alleging he had been discriminated against on the basis of color, race, religion and national origin. In the complaint, he claimed managers told him that “all Muslims should be killed” and that he should go “die in Afghanistan.” He also claimed that supervisors said “too many Indians work here” and “Indian people are only good for cleaning our toilets.” He added that the restaurant routinely favored white waiters for prime tables and special assignments, where they received bigger tips.

The EEOC investigated and said Rahman’s evidence seemed to indicate he had been harassed, as had similarly situated employees. Rahman then filed a federal lawsuit and asked that he be allowed to represent all employees who may have suffered harassment or discrimination and who were not white—not just Muslims or South Asians.

Park Avenue Café objected, arguing that the original complaint mentioned only Muslims and Indians, not every other nonwhite employee. But the district court allowed class-action certification, saying that because Rahman had “specifically alleged that white waiters received preferential treatment, and any such favoritism would have been detrimental to … other ethnic minorities as well,” he could represent them all. (Rahman v. The Smith & Wollensky Restaurant Group, et al., No. 06-CIV-6198, SD NY, 2008)

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