Harassment Prevention: It’s All Fun and Games . . . Until It’s Not

Workplace anti-harassment training can be summarized with the title of this post. The fact that an employee laughs at an inappropriate joke is not a legal defense to a later claim at harassment. Nor is an employee’s failure to object to inappropriate workplace conduct. One employer recently learned this lesson the hard way. Continue reading

Fighting Back: Bullies and Obesity

Some people are real jerks. Anyone who deals with the general public for a living knows that this is an indisputable fact. For those who work in sales or service positions know that the theory “the customer is always right” can be a bitter pill to swallow. Every waiter, store clerk, and receptionist has had a moment where they had to swallow very hard to resist firing back at an irate and/or irrational customer who’s decided to take out his or her frustrations on whoever happens to be in their line of vision. Most of the time, it is not possible or not wise to fight back.

But, sometimes, it is. Continue reading

EEOC Announces Plan for Class Warfare

Why should employers care about what the EEOC has on its to-do list for the next four years? Well, you’ve heard the phrase, “keep your friends close and your enemies closer,” right? Kidding, just kidding, people! Geez!

But, seriously. The EEOC is working on a revised draft of its Strategic Enforcement Plan (SEP) for 2012-2016 and employers should pay close attention. The SEP offers employers important insight into the priorities of the EEOC. So don’t look a gift horse in a mouth. exercising their rights constitute systemic barriers to the legal system.

Class Warfare is EEOC’s Top Priority
Okay, so maybe this is an overly dramatic way to describe the EEOC’s top priority. So sue me. As termed by the EEOC, “System Initiative” translates roughly to a continued focus on class litigation intended to eradicate several types of systemic discrimination:

1. Hiring. The SEP identifies class-based hiring discrimination as a main focus, including discriminatory pre-employment tests, background screening, and date-of-birth screening.

2. Protection of “immigrant, migrant, and other vulnerable workers.” Particular areas of focus in this regard include disparate pay, job segregation, harassment, trafficking, and discriminatory-language policies.

3. “Emerging Issues” identified in the Draft Plan include:

a. ADA Amendments Act issues
b. LGBT coverage under Title VII sex discrimination provisions
c. Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.

4. Preserving Access to the Legal System. This is the big one, folks. There are two components to this initiative. Both should get your attention.

a. Prioritization of the investigation of retaliation claims. Not only is retaliation the most commonly asserted claim but it is also the most difficult to defend. Per the SEP, the EEOC believes that retaliation is a barrier to justice because it discourages employees from exercising their rights. (Hard to argue with that, really).

b. “Systemic barriers” to justice. Think, “settlement and severance agreements.” The EEOC says that “overly broad waivers” and releases that unfairly discourage employees from exercising their rights constitute systemic barriers to the legal system.

The EEOC does not envision the Plan as a one-size-fits-all approach. To the contrary, it will require that each District develop a District Complement Plan to the SEP by March 29, 2013. These localized Plans are to identify how that particular Office will implement the SEP priorities, as well as identify its own local enforcement priorities.

3d Cir Confirms EEOC’s Broad Subpoena Power

The EEOC’s subpoena power is broad. But just how broad has been the subject of debate in recent years. On September 14, 2012, the Third Circuit Court of Appeals issued an opinion that definitely falls on the “broad powers” end of the spectrum.

The case, EEOC v. Kroger, involves allegedly discriminatory assessment tests used by Kroger as part of its hiring process. The tests were created by a company called Kronos, Inc. The district court ruled that the EEOC could not subpoena materials from Kronos that did not directly relate to the test it had developed for Kroger.

The EEOC appealed the decision and the 3d Circuit overturned it. The 3d Circuit ruled that Kronos had to produce such documents “even if not directly linked to Kroger” because they could “reveal that the assessment had an adverse impact on disabled applicants or they could assist the EEOC in evaluating whether Kroger’s use of the test constituted an unlawful employment action.”

Two points to note from this case. First, the general dangers associated with assessment tests used for hiring. Employers are on the hook for tests that they do not create. The entity that the employer hires to create valid tests may be a credible, legitimate authority but, at the end of the day, it’s not that company’s problem when the employer is sued.

Second, this case presents yet another example of the aggressive litigation tactics employed by the EEOC. The Charge that initiated the litigation was filed in June 2007–more than 5 years ago. Yet, here we are, reading an appellate court opinion on discovery issues. (This, by the way, is the second time a discovery decision was appealed to the 3d Cir.). Once the EEOC pulls the litigation trigger, there’s virtually no way to get it to back down.

See also:
What Does “Good Faith” Mean for the EEOC?
When the EEOC Goes Too Far
When the EEOC Goes Too Far, Part II

What Does “Good Faith” Mean for the EEOC?

The District of Hawaii is the latest federal court to address the obligations of the EEOC during conciliation before it files suit. In EEOC v. La Rana Hawaii, LLC, the court determined that the Ninth Circuit’s decision in EEOC v. Pierce Packing required a “genuine investigation, reasonable cause determination and conciliation [as] jurisdictional conditions precedent to suit by the EEOC.” The court explained that, in light of this precedent, the EEOC must actually investigate the claims of discrimination and harassment and attempt to resolve the claims through good-faith conciliation.

The court next considered whether the EEOC’s conciliation efforts in this case adequately satisfied Title VII’s pre-suit requirement. The court acknowledged that the Ninth Circuit has not yet articulated a standard for determining the sufficiency of conciliation. Nevertheless, the court found that the EEOC had failed to conciliate in good faith by failing to provide the defendants with enough information with which they could evaluate the EEOC’s claims.

Specific problems that the court identified included the EEOC’s “obstinate refusal” to provide the defendants with any specific information about the class members or the allegedly unlawful acts. This refusal constituted a failure to demonstrate a “willingness to work toward settlement.” The court found that the EEOC’s “take-it-or-leave-it” offer further demonstrated the insufficiency of its efforts.

Having found that the EEOC failed to satisfy its pre-suit conciliation obligation, the court explained that the EEOC should be provided the opportunity to cure any defect in the process. As a result, the court stayed the case pending the completion of a good-faith conciliation by the parties. The court instructed the EEOC to provide the defendants with information necessary to make an informed decision about the case. For example, the EEOC must provide the number or identity of the claimants that it had identified during its investigation, as well as information about the specific incidents of harassment or discrimination.

EEOC v. La Rana Hawaii, LLC.pdf

See also:
When the EEOC Goes Too Far
When the EEOC Goes Too Far–Part II

When the EEOC Goes Too Far–Part II

In my post, When the EEOC Goes Too Far, I wrote about an opinion from the Middle District of North Carolina, issued in June. In that case, EEOC v. PBM Graphics, Inc., the court found that the EEOC had caused an unreasonable delay in pursuing its claims, based on a 5+-year-long investigation and seemingly superficial conciliation efforts. The court ordered the parties to engage in limited discovery to determine whether the EEOC’s delay had prejudiced the defendant-employer. If so, the court ruled, the employer would be entitled to have the complaint dismissed in accordance with the doctrine of laches.

A laches defense to overzealous claims by the EEOC seems to be gaining traction. A decision issued yesterday by the Western District of North Carolina went farther than the PBM Graphics decision and actually dismissed the case based on this defense.

The facts are similar in both cases. Like the complaint in PBM Graphics, the claims asserted in Propak Logistics were based on the employer’s alleged practice of hiring Hispanics and refusing to hire non-Hispanic persons for non-management positions. Similar to the multi-year delay in PBM Graphics, there was a nearly seven-year delay between the time of the initial Charge and the filing of the Complaint. A few other important, albeit unsettling facts, include:

  • the EEOC did not interview the Charging Party until six months after he’d filed his Charge and did not interview him for a response to the employer’s position statement until a year after it had been submitted;
  • the EEOC referred the Charge to the DOJ, which initiated and completed its investigation in less than a year, resulting in a No-Cause Finding;
  • there was a four-and-a-half-year delay between the Charge filing and the EEOC’s attempt to conduct additional interviews of the relevant decisionmakers;
  • the Charging Party’s federal lawsuit was dismissed with prejudice two months before the EEOC issued its Cause Finding;
  • the Charging Party requested a Right-to-Sue-Letter no less than four times;
  • there was a two-year delay between the time the EEOC designated the Charge as a class claim and the first interview of a potential class member;
  • the employer’s VP of HR was deposed more than eight years after the Charge was filed; and
  • the facility at which the Charging Party had worked (for all of two months) closed in 2008.

And, as in PBM Graphics, here the employer also filed a motion to dismiss on several grounds, including on the defense of laches. The court denied the motion to dismiss based on failure to state a claim and gave the parties three options: (1) agree to proceed with discovery; (2) have the court consider the motion as a motion for summary judgment; or (3) submit additional briefing and evidence.

The EEOC apparently conceded that there had been a delay. (Indeed!!) This is where we left off in PBM Graphics–the court ordered the parties to engage in limited discovery on this issue. Here, though, the court found that the record contained sufficient evidence to answer the question.

The court explained that, for the purpose of laches, evidence of prejudice may include unavailability of witnesses, change in personnel, and the loss of pertinent records. The court also pointed out that there were periods when the EEOC “took little or no action toward completing the investigation,” during which the “back pay meter has been running” as the defendant-employer could be liable for that period. Because back pay is an equitable remedy within the court’s discretion, though, the court considered this to be further evidence of potential prejudice.

Finding that the employer had established its laches defense by proving that it “suffered material prejudice as a result of the EEOC’s unreasonably lengthy delay,” the court explained:

The fact remains, however, that Propak no longer conducts business at the facility at which the alleged discrimination occurred. The purported class of individuals allegedly discriminated against last existed in 2004 and it is uncertain that these individuals could even be identified at this late date. Meanwhile, for the last eight years, Propak has been embroiled in both the EEOC investigation and two lawsuits stemming therefrom, during which time it has continuously incurred attorney’s fees. The interests in vindicating Propak’s conduct has been served while it appears to be impossible to vindicate the private interests of unidentified and unavailable class members.

Legal music to my ears. The case is a stellar example of a victory of common sense and fairness. It seems that the employer had excellent legal representation, who continued to assert the company’s defenses instead of throwing in the towel and being cooperative to a fault. And that was rewarded by the court, which recognized that there are limits to the EEOC’s power–i.e., there is a difference between an investigation and a persecution.

I have no doubt that many employers will find this to be an important and valuable resource in their arsenals to defend against the EEOC when it goes too far.

As a side note, the court found that the EEOC’s failure to provide its damages calculations to the employer was evidence of an unreasonable delay. This appears to support the use of a laches defense where a defense of failure to conciliate may not be successful, particularly in jurisdictions like the Fourth Circuit that require only the most minimal effort by the EEOC to meet its statutory burden to conciliate in good faith.

EEOC v. Propak Logistics, Inc., No. 1:09cv311 (W.D.N.C. Aug. 7, 2012).

When the EEOC Goes Too Far

What is an employer to do when an EEOC investigation goes beyond the bounds of reasonableness? Or when the EEOC’s “conciliation” efforts seem more like a joke that a good-faith effort to resolve the claims. There have been a smattering of decisions in the past few years by courts across the country answering this question in a variety of different ways–some more favorable to the EEOC and others strongly in favor of the employer. For an excellent overview of this line of cases, see this post at the Hunton Employment and Labor Perspectives Blog.

A recent decision from the Middle District of North Carolina addressed a case involving a particularly disturbing set of facts. The timeline is complicated and, frankly, a bit depressing, so I’ll summarize to spare you the gory detail.

While investigating a temporary staffing agency used by the employer, the EEOC came across what it contended was evidence that the employer favored Hispanic over non-Hispanic employees in its hiring decisions.

The EEOC filed a charge and initiated its own investigation (there was no Charging Party as is the norm). The investigation went on for more than four years, during which time the employer cooperated in full with the many, many requests for information propounded by the EEOC. To give you some perspective on the scope of the requests, the EEOC asked for and received so much data about the employer’s workforce that it actually created its own database to house all of that information.


Finally, after years of investigation stops and starts, the EEOC issued a Letter of Determination in which it found that there was cause to believe that the employer had engaged in unlawful discrimination. The Letter, however, contained no explanation of the reasons for the EEOC’s determinations.


The parties scheduled to meet for the mandatory conciliation but the EEOC canceled it when it was unable to provide the employer with any kind of damages calculation–kind of a necessary element for any productive settlement discussion. The EEOC eventually rescheduled the meeting but still could not produce the numbers requested by the employer or even identify all of the employees it contended had been affected by the allegedly discriminatory practices.

You’d think that, with that big ‘ole database that it created, this wouldn’t be such a difficult task!

The story goes on but, as promised, I’ll spare you the rest. Needless to say, the EEOC was not deterred and eventually filed a complaint in federal court.

The employer moved to dismiss the complaint on several grounds. The court rejected most of the employer’s arguments but did limit the size of the potential class. More interesting, though, was the court’s discussion of the employer’s motion for summary judgment, which was brought pursuant to the doctrine of laches.

This particular defense permits dismissal of a claim where the plaintiff unreasonably delayed in bringing its claim and where the delay prejudiced the defendant. Here, the court agreed that the EEOC had, indeed, been unreasonable in pursuing its claim. (Amen!) But the court found that there was not enough of a record to determine whether the employer had been prejudiced because of the delay.

I’m sure that there is not an employer in this country who would reach the same conclusion after reading the facts of the case but, putting that aside, . . . I’ll turn to the good news. The court ordered the parties to engage in limited discovery only on the issue of prejudice. Once discovery on that issue is complete, the employer will have the opportunity to renew its motion seeking dismissal under the doctrine of laches. I’ll be interested to see whether the case makes it to that stage–but I’d be willing to wage that it does. The EEOC tends not to let go once it gets its teeth sunk in. Still, I’ll keep my fingers crossed that the employer makes out better on its renewed motion and maybe, if all goes really well, that it is awarded fees for its troubles.

EEOC v. PBM Graphics, Inc., No. 1:11-cv-805 (M.D.N.C. June 28, 2012).

Discrimination Charges Filed With EEOC Remain at Record Levels

The U.S. Equal Employment Opportunity Commission (EEOC) reported that it a record number of discrimination charges in FY 2009, the second-highest number in its history. Race and sex discrimination continued to be the most frequently filed, but religion, disability and retaliation claims all reached new highs. EEOC investigates and enforces claims of discrimination under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).

Notable statistics relating to resolved claims (those resolved via settlement, withdrawal, and conciliation), include:

  • EEOC resolved 85,980 charges.
  • Resolved charges resulted in $294.2 million in relief for claimants. 
  • Total relief represented a $20 million increase over FY 2008.


Notable statistics relating to “merit” lawsuits (suits filed by EEOC against employers who refuse to comply with information requests or who allegedly breach settlement agreements), include:

  • EEOC filed or intervened in only 281 “merit” lawsuits
  • This is the lowest number of new merit cases for a fiscal year since 1997, according to the EEOC’s online statistics, and is down from a high of 438 merit cases in 1999.
  • EEOC resolved 321 “merit” cases, for a total of $82.1 million, a decrease of about $20 million from FY 2008.

The Delaware Department of Labor (“DDOL”) handles most discrimination charges filed against Delaware employers. The DDOL and EEOC have a work-sharing arrangement. The DDOL has a mediation program for newly filed charges in which employers can participate before filing a substantive response to the charge. Mediation can result in a low-cost settlement with a minimum of disruption and negative publicity. Neither the DDOL nor EEOC publicizes settlements reached during the administrative process–another reason to consider settlement at this stage of the dispute. Employers who are curious about the types of cases that the EEOC likes to file can review its press release page, where it publishes, on a daily basis, news releases about cases it has filed and settled.

Religious Discrimination Claim Succeeds for Failure to Accommodate Facial Hair

religion_rastafarian_lionTitle VII prohibits employers from discrimination based on religion, among other things.  The anti-religious-discrimination requirements actually require employers to go a step further.  Not only must employers refrain from acting (i.e., from discriminating), but they must also take action in the form of providing an accommodation for sincerely held religious beliefs of an employee.  Of course, there are limits on how far an employer must go to make such accommodations. And, like all of Title VII, the law applies not only to employees but to applicants, as well.  Continue reading