Who Says I’m a Girly Man? Doth Sayeth the EEOC

The EEOC has enjoyed several victories in recent months. For example, the EEOC was granted summary judgment in a hostile-environment claim filed on behalf of a class of black construction workers. Even more recently, the EEOC was awarded summary judgment in an age-discrimination lawsuit against the City of Baltimore. But things haven’t been all peaches and cream for the EEOC. Continue reading

Discovery of EEOC Claimants’ Social-Media Posts

In my previous post about EEOC v. Original Honeybaked Ham Co. of Ga.,, I described a somewhat ambiguous, if not unusual, procedure for the production and review of individuals’ social-media accounts ordered by a Magistrate Judge. In short, the Judge’s well-reasoned decision attempted to balance the individual claimants’ privacy interests with the defendant-employer’s right to broad discovery of potentially relevant information. Faced with these two competing interests, the court crafted a fairly complex, multi-tiered, and dynamic process to collect, review, and produce the information from the former employees’ social-media accounts.

The EEOC has filed an Objection to that decision. (An “objection” is, to put it simply, an appeal of a magistrate judge’s decision to the trial judge). The objection gives us a bit more insight but a lot more questions.

The EEOC acknowledges in its objection that, since the issuance of the discovery ruling, the Magistrate Judge had revised the procedure–perhaps more than once. This indicates, and the EEOC makes clear, that the court has been and is continuing to be flexible in working with the parties towards a workable procedure. Nevertheless, we do not know what the alterations were.

One of the changes, though, is described in the Objection. Specifically, the EEOC states that the Court eliminated the appointment of a special master and, instead, designated an EEOC employee with computer-forensic qualifications to perform the collection. Under the initial Order, the claims were to turn over their log-in and passwords to their Facebook accounts to the special master, which caused a big stir among commentators. Now that the data will be harvested by EEOC personnel, perhaps the password issue is an issue no more.

But none of this addresses my bigger question–why make the process so complicated? Particularly, I wonder whether it wouldn’t have been easier to have the claimants download their account information by using the tool provided by Facebook precisely for that purpose. DIY e-discovery of social-media seems to me to be a better option than the process in this case–at least the version of the process outlined in the Order.

Employer Can Depose All 94 Claimants In EEOC Lawsuit

Litigating against the the EEOC is difficult for several reasons. For one, unlike a lawsuit brought by an individual plaintiff, a suit brought by the EEOC has the resources of the entire federal government behind it. Perhaps because of the agency’s bureaucratic structure, negotiating with EEOC counsel can be difficult during litigation, at times resulting in a total breakdown of communication. A recent decision by a federal court in Illinois illustrates what happens when the lawyers in an employment-discrimination lawsuit take the driver’s seat to the exclusion of the individuals at the heart of the case. Continue reading

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.

Implementation
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.