Making Government a Little Less Bothersome - Here May Be an Opportunity

In a May address to the American Enterprise Institute, Cass Sunstein of Nudge fame, and also the administrative czar of the the Obama administration, announced the result of a four month study of regulations whose costs out weighed their benefits.

Not too surprisingly in today's atmosphere, almost no one was pleased -- one group saying it was at best only a small step and their polar opposites arguing it was a step in the wrong direction and at best was taking resources away from more important regulatory action. See the Huffington post article for the comments, Obama Regulatory Review Announcement Finds Few Fans.

(Or if you actually care to see exactly what Mr. Sunstein said, here's a link to his prepared remarks.)

What brought this to mind was the BNA DLR ($) story this morning about a May 31st informal opinion letter from the EEOC dealing with confidential data from both an ADA and GINA perspective.  The conclusion:

maintaining personal health information and occupational health information in a single Electronic Medical Record, particularly one that allows someone with access to the EMR to view any information contained therein, presents a real possibility that the ADA, GINA, or both will be violated.

I didn't read the opinion letter close enough to know whether I agree with its conclusion. Nor do I know enough to say that there is a substantial benefit to keeping both personal  and occupational health information in a single electronical medical record, although intuitively it sounds as if there would be.  But assuming the letter is right, and that having one EMR is both a cheaper and more satisfactory alternative than having to keep them separate, this would seem exactly the sort of undertaking that I would hope governmental agencies are looking at.

Although the individual cost might not be all that great, the collective costs to all employers could be substantial, and there is also something appealing about thinking that government was in fact thinking of how things could work better for everyone, but in a way that protects interests of both employers and employees.

It might take some revising of regulations, or perhaps even some statutory adjustments, but it would be nice to think rather than just advice to keep them separate, there is even now within the EEOC some one following up to see if there might not just be a better way. 

Hopefully, if there is, they will let us know.

In Defense of the EEOC? No, Just a Reminder About Pancakes

Tom Crane, at the San Antonio Employment Law Blog, had a very interesting post last week that complains about an EEOC investigator turning an employee away when it appeared she had a valid complaint, EEOC Would Not See Retaliation If It Was in Front of Its Face.

And I must admit the story is fairly compelling.

After receiving a report of sexual harassment, the investigator asked whether she had told the HR department. After answering no, the employee called HR and made a report from the EEOC office. Then the story continues:

Within ten minutes, the owner calls the employe, still at the investigator's office. She puts him on speaker phone. The owner says, "I understand you complained about me. You don't need to return to the office." The owner fired the employee over the EEOC's own phone within ten minutes of her complaint. The investigator heard it all.

One might think, great, what great evidence! The silly owner called and fired the employee for pursuing her rights with the EEOC - right where the EEOC could observe the whole chain of events.

Wrong. The invstigator still insisted she had no case and refused to allow her to file a claim for discrimination or for retaliation. He tells the employee she should just go collect her last paycheck and move on with her life.

It is certainly not my place to defend the EEOC, they are big enough to do that themselves, nor can I say that I have not heard of events happening at the EEOC that are probably not the best course of action. (But hey, what large organization doesn't have some incidents that don't put them in their best light.)

But I do have to say, when I read the story, a saying by one of my former law partners came to mind:

Every pancake, no matter how thin, has two sides.

My guess is that there is another side to this story.

EEOC's Year End Rush - 2009 Version

Ross Runkel comments on recent litigation activity at EEOC announces 32 suits in past seven days. Although I don't know the numbers in recent years, I do know that there is always a rush to file lawsuits by the EEOC before the government year ends on September 30th. See my post of a year ago, It's the Last Week in September, So Be Ready for EEOC vs. ...

The EEOC, The 5th Circuit and My First Post

On July 17, 2002 not knowing what I was getting into, this was my very first post on Jottings By an Employer's Lawyer:

For lack of a green card .....

Posted 9:55 PM by Michael Fox

No, not the kind typically associated with immigration issues, but the kind that accompanies certified mail and is used to prove when an item is received. Some time ago, the EEOC (at least where I practice) quit sending right to sue letters by certified mail. Since the time for filing a lawsuit is tied not to the date of the right to sue letter, but the date of receipt, it is easy to see the kind of problems that were certain to arise. Rather than having government certified (or quasi-government, depending on your view of the U.S. Postal Service's status) proof that the right to sue letter was received on a date certain it is now open to speculation. The 5th Circuit Court of Appeals has added its voice to other courts to at least provide a partial answer. When the date of receipt is uncertain or disputed, the Court will use a statutory presumption that it was received between 3 to 7 days after its date. In this case the court didn't need to be more certain since the suit was untimely regardless of which standard the court applied. Taylor v. Books A Million decided 7/15/02.

The argument for the three days is the period applied in the Federal Rules of Civil Procedure for service of documents by mail. That would make sense, and hopefully will be the standard applied when the Court is forced to decide that issue.

Yesterday the 5th Circuit decided a suit was timely notwithstanding a Katrina delayed receipt of a right to sue notice from the EEOC, Duron v. Albertson's LLC (5th Cir. 2/17/09) [pdf]. Saying what I felt those many years ago, the Court concluded:

In closing, we note that if the EEOC had followed its former practice of sending right-to-sue letters by certified mail, this dispute would, in all likelihood, have never arisen.

When that happens, I will happily update this post.

Big Handslap for the EEOC From the 5th Circuit

I have mentioned in the past how the last week in September often sees an influx of suits filed by the EEOC, see here, but one of those suits has now come back to bite the Commission.

In EEOC v. Agro Distribution (5th Cir. 1/15/09) [pdf] the Court upheld the district court's granting of summary judgment against the Commission in a disability claim, and its award to Agro of its attorneys fees for time spent after the deposition of the plaintiff which made clear that he did not have a viable claim. The amount awarded $225,000.

Although attorneys fees were awarded only post-deposition, it was clear that the courts were not impressed with the EEOC's handling of the investigation or conciliation process as well as the basic claim. After detailing some of the issues (and also finding that the failure to conciliate does not deprive a court of jurisdiction) it concluded as follows:

The EEOC must vigorously enforce the Americans with Disabilities Act
and ensure its protections to affected workers, but in doing so, the EEOC owes
duties to employers as well: a duty reasonably to investigate charges, a duty to
conciliate in good faith, and a duty to cease enforcement attempts after learning
that an action lacks merit. In this case, the EEOC abandoned its duties and
pursued a groundless action with exorbitant demands. The district court
appropriately granted summary judgment for and awarded attorneys’ fees to
Agro, and its judgment is AFFIRMED.

Although it is taxpayer's money that is being expended, for anyone who has had to deal with unreasonable demands from the Commission, can't help but feel a little pleased at the reminder that the EEOC owes duties to employers as well.

It's the Last Week in September, So Be Ready for EEOC vs. ...

In looking at recent cases filed, I noticed the first EEOC suit in Texas in what is traditionally a very busy week for EEOC filings. U.S. Concepts which was sued yesterday in the Western District of Texas gets that small prize.

It is fairly clear that what makes this the week in which a large number of EEOC suits are filed is that September 30 is the end of the government's fiscal year, which also means the end of the period for such metrics as the "numbers of cases filed." Although it may not make a difference on whether a case is ever filed, it is quite clear that the end of the fiscal year impacts the timing of the September surprise that many companies may soon be receiving.

Keeping Data Submitted to EEOC Confidential - Easier Now?

One of the worries about submitting information to agencies investigating workplace issues is the risk that it will be released to an employer's detriment. While the worry is real, the ability to get much judicial guidance is limited as it takes a unique set of circumstances for it to happen.

But happen it did and earlier this week the D.C. Circuit addressed the issue. The opening paragraph outlined the unusual circumstances, and its holding:

Seven years ago, Venetian Casino Resort, LLC repaired to district court for an injunction to keep the Equal Employment Opportunity Commission from disclosing certain confidential information without notice. The district court dismissed the case as unripe, but we held otherwise and remanded the case for proceedings on the merits. The district court then granted the Commission’s motion for summary judgment and Venetian appealed, arguing the Commission’s disclosure policy is unlawful. We agree, reverse, and remand the case for the district court to enter an injunction prohibiting the Commission from disclosing Venetian’s confidential information pursuant to its current disclosure policy.

Venetian Casino v. EEOC (D.C.Cir. 6/27/08) [pdf]

Although not totally clear from the opinion, this seems to be concern about the garden variety turning over of information submitted by the Venetian to a lawyer (or potential one) for the plaintiff, even though the Ventian had identified the information as confidential.

Although it's a victory for Venetian for the time being, it seems likely only to force the EEOC into coming up with a better rationalization for its rules, or a rule that makes it clear that the Commission should give an employer notice and chance to respond before releasing the data.

That's the possibility offered by Professor McCormick in her analysis of the case at Workplace Prof Blog, The EEOC and Disclosure of Employer Data. Although I don't always agree with the academics at Workplace Prof Blog, even though it is clearly one of the best sources of current employment law information on the web, this is one of those occasions where I do.

Supreme Court in a Deferential Mood in Employment Law Decisions

Yesterday, the Supreme Court gave deference to a trial judge's decision on an evidentiary ruling, see "Me Too Evidence" - A Do Over"; today it's the EEOC's turn as the Court finds that the Commission's decision to treat an unsworn intake questionnaire combined with an affidavit as a "charge" is within their discretion. Federal Express Corp. v. Holowecki (S.Ct 2/27/08) [pdf].


It did take quite a bit more explanation, a suggestion to the EEOC that it could do better, and lost two justices along the way. Justice Thomas dissented and was joined by Justice Scalia. Hopefully there wasn't anything in Justice Thomas background as the former head of the EEOC that made him feel as if the agency was not deserving of deference.


To the extent that any hope remained that an employer could argue it was protected against a lawsuit because the EEOC failed to give it notice, it was extinguished. Here, the company only learned about the charge when a suit was filed, a fact Justice Kennedy described as "unfortunate" but obviously not irreparable.


Although this opinion could have some significance, I again don't see it as a "sea change,*" to use a term recently in play in the current presidential contest, but I suppose time will tell.



*Since the phrase is almost always improperly used and is greatly over-used, it has suffered a swamp change into something dull and tiresome. Avoid the phrase; otherwise you will irritate those who know it and puzzle those who do not.

An EEOC Charge and the Local Congressman

Although not making new law, the 5th Circuit's holding this week that a trial judge had not abused his discretion in keeping out an EEOC determination, did give some insight into how political power sometimes comes into play in EEOC investigations. It also added an additional argument for keeping them out that would be applicable in all cases.

About the political issue the Court said:

The EEOC letter was created under questionable conditions—the EEOC investigators initially determined that NEISD had not discriminated against Guerra but later, following complaints by Guerra to a member of Congress, reopened the file and reversed their decision without any new evidence. The district judge did not allow NEISD to subpoena the EEOC investigators to explain this matter.

Not exactly designed to assure employers about the decision making process. Guerra v. North East Independent School District (5th Cir. 8/14/07) [pdf].

For the more general comment applicable in every case, the Court said a second reason for upholding the trial court's discretionary decision to keep the determination out was that "the EEOC evidence spoke directly to the ultimate issue in the case. It would likely have prejudiced the jury since the EEOC made its own factual determination that age discrimination occurred."

Reminds me of the objection that doesn't seem to be used quite as much any more, maybe because there are relatively few trials, that an answer "would be invading the province of the jury."

EEOC and the Press Release

For anyone who has ever done battle with the EEOC over the wording of a press release, here's some judicially sanctioned ammunition for the next battle. Although denying Serrano's Restaurant's motion for sanctions against the EEOC, Judge Frederick J. Martone of the District Court of Arizona had this to say:

Our denial of the defendant’s motion is not an expression of our view on the underlying merits or the propriety of the EEOC in using press releases as part of its approach to litigation. Lawyers have a professional obligation to avoid extrajudicial statements that may prejudice a proceeding, see ER 3.6, and an obligation to be truthful in statements to others, see ER 4.1. LRCiv 83.2(d). There is a big difference between promoting the public’s right to know through keeping proceedings public, on the one hand, see Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003), and affirmatively issuing press releases, on the other. The United States, and its employees, have a special duty not to injure the reputations of its citizens. Nor should it use press releases as a bargaining tool in litigation. [my emphasis]

Hat tip to the Daily Labor Report ($)for picking up this unpublished decision entered on July 5th.

State Court Suit Can Bar EEOC's Suit for Monetary Relief - 5th Circuit

A private sector employer got a rare opportunity to have a denial of summary judgment tested by the 5th Circuit Court of Appeals, and came away not with a total victory, but with one that is likely to make it happy.

Anyone who has had to deal with a federal case brought by the EEOC under Title VII and a companion state court suit brought by the same individuals on whose behalf the EEOC is suing, knows how frustrating it can be. In the case decided today, the attorneys for the EEOC had gone so far as to attend the state court mediation and trial, even assisting the plaintiffs' private attorneys in selecting the jury and passing notes during the trial.

When the result of the state court favored the defendant, it tried to trump the EEOC's federal suit by arguing res judicata. Although the district court didn't buy the legal argument, it did note the inherent unfairness in giving the plaintiffs two bites at the apple, so it allowed an interlocutory appeal.

And today, in EEOC v. Jefferson Dental Clinics (5th Cir. 2/12/07) [pdf] the Court held that while the EEOC's entire suit was not barred by res judicata, the claim for make whole (monetary) relief was. The EEOC can continue its suit, but only for injunctive relief. Not the whole enchilada, but nevertheless a satisfying meal for Jefferson Dental.

It also rounded out the 5th Circuit's look at the other side of the coin, where it had held that when the EEOC brings suit on behalf of individuals and loses, their subsequent state court claim should be barred by res judicata. See EEOC Suit Binding on Named Individuals, And A Poke in the Eye to the Louisiana State Courts.

Update: The DLR has a good story on the Jefferson Dental case, EEOC Suit OK Despite Loss of State Case,But Court Says No Second Chance for Money ($), and mentions a key fact I didn't know when I wrote my post. The lawyer handling the case for Jefferson Dental was Ron Chapman, who with a number of my other colleagues in our Dallas office handled not only the federal action, but were the trial team for the successful state court lawsuit that was the basis for the res judicata defense upheld by the 5th Circuit.

6th Cir. Hands EEOC a Setback in Release War

One area of recent contention has been fights over employer's releases -- do they comply with the OWBPA, or worse, are they themselves retaliatory. That's the tact the EEOC took with respect to a severance agreement utilized by an employer that not only asked for a release of claims but also barred the employee from filing any administrative claims, including an EEOC charge. If a charge was filed after signing the release, the employer was entitled to the return of the severance payment.

The trial court granted summary judgment to the EEOC which argued the release was retaliatory on its face, calling it a “preemptive strike against future protected activity.” Disagreeing, the 6th Circuit in a 2-1 decision found while the bar on filing the charge was not enforcible, it was not on its face retaliatory. Probably realizing the complexity of the issues (not to mention the real world impact), the Court emphasized, the narrowness of its ruling:

SunDance’s mere offer of the SeparationAgreement does not amount to retaliation under ADA, ADEA, EPA, or Title VII, either as a facialviolation of those statutes’ antiretaliation provisions or under the conventional burden-shiftinganalysis. SunDance has not tried to enforce the Separation Agreement, and the question of theenforceability of the Agreement or any of its provisions is not before us.

EEOC v. Sundance Rehabilitation Corp. (6th Cir. 10/24/06) [pdf].

The dissent thought that the majority opinion was drawing too fine a line:

The majority in effect says that an employee who believes he or she has an EEOC enforceable claim or at a minimum is willing to testify in an EEOC enforcement action should sign the agreement, take the money and then go forward with the EEOC. If SunDance sues for a return of the severance pay, then the defense of retaliation should be raised and may carry the day. Any act by an employer which interferes with or chills a protected right is, I believe, contrary to public policy and in violation of the anti-retaliation provisions of the several statutes involved.

Most releases, at least in the 5th Circuit which has long held such requests are void as against public policy, make it clear that they do not bar filing a charge of discrimination with the EEOC. Today's opinion does nothing to change the wisdom of that approach.

Given the subject matter and the EEOC's position, I doubt this is the last word on this issue and maybe not even on this case.

3rd Circuit - Make Sure the EEOC Charge Is Verified Before Responding

A school district thought it had hit a home run -- obtaining dismissal of a sexual harassment lawsuit because the plaintiff's EEOC charge wasn't verified, as required by Title VII and the implementing regulations. And although I have often said (tongue in cheek) that while anyone can win on the facts, it takes a real lawyer to win on a technicality, it is hard to argue with the 3rd Circuit's conclusion here:

Under the circumstances of this case, the School District’s motion to dismiss on the basis of Buck’s failure to verify her charge seems like “an afterthought, brought forward at the last possible moment” to preclude “consideration of the merits”; it can prevail “only from technical compulsion irrespective of considerations of practical justice.” [cite omitted] Given our determination that the verification requirement is not an inflexible bar to suit, but a statutory requirement of the initial charge, with non-compliance amenable to equitable considerations, we cannot countenance this result. Accordingly, we hold that where, as here, an employer has actual notice of a discrimination charge and chooses to respond to the merits of the claim before the EEOC without asserting lack of verification as a defense it waives its right to secure dismissal of the federal court proceedings on that basis. [emphasis added]

Buck v. Hampton Township School District (6/30/06) [pdf] .

Although I haven't given much thought to whether there is a legal argument against the underlying premise, that the requirement for verification is not jurisdictional, given the outcome in Arbaugh v. Y & H Corp. (S. Ct. 2/11/06) [pdf] where a unamininous Supreme Court took less than six weeks after oral argument to pour out a similar "technicality" -- holding the 15 employee requirement of Title VII was not jurisdictional -- I doubt such research would be fruitful.

Since it is hard to imagine that if raised, it would not be corrected, Buck probably consigns another "technicality" to the dustbin. A hat tip to the DLR for alerting me to Buck.

Broad EEOC Administrative Subpoena Upheld -- But Where Are They Headed?

Last Friday as I was preparing for a leisurely Memorial Day weekend, the 8th Circuit was enforcing a broad EEOC administrative subpoena for the following:

(1) documents that show the name, immigrant status during employment, dates of employment, total actual compensation for each pay period, work history, and present work status for each person who worked as an electronics engineer, system analyst, or field service representative for any length of time between January 1, 2001 and the present (“work history information”); (2) copies of all documents submitted to and received from the Department of Labor (“DOL”) and the Immigration and Naturalization Service (“INS”) during the years 2001 through 2003 (“DOL and INS documents”); and (3) the complete contents of all personnel files and records pertaining to each Filipino employee present under an H-1B visa and employed at any time between January 2001 and the present (“personnel files”).

Bottom line, the EEOC gets it all. EEOC v. Technocrest, Inc. (5/26/06) [pdf].

If you are involved in a fight with the EEOC over an adminstrative subpoena, it's probably worth a read.

But even more interesting was the factual background. All of the company's technical employees were Filipino. According to the opinon:

The six charging parties charged that Technocrest illegally discriminated against them and Filipino employees as a class based on their Filipino national origin when they received less favorable treatment than promised after Technocrest recruited them from the Philippines to work in the United States. Specifically, the charging parties allege that they and Technocrest’s Filipino employees as a class were “subjected to wages less than or equal to the minimum wage, intimidated, and treated to less favorable terms and conditions of employment than promised.

It's not immediately clear to me where the traditional comparator is -- but the company's argument that the EEOC couldn't establish a prima facie case because all of its technical employees were Filipinos, was rejected as premature -- that's not the test for enforcement of an administrative subpoena.

The EEOC argument seems to stretch its traditional boundries of being tied to discrimination, but that is also the tenor of one of the latest MDV's: Pickle Verdict: Guilty: Judgment exceeds $1 million. (Technically from the news story, it appears this was a ruling by the court which would mean it is not really a verdict, but the money is still the same.) The defendant was accused of holding foreign workers, more than 50 men from India, as "virtual slaves." A district judge in Tulsa rendered the award. Although it was hailed as setting a national precedent in "human trafficking," again not normally the EEOC's territory, there was at least a mention of a comparison to treatment of American workers.

Actually, accepting at face value the allegations, both of these sound like worthy causes -- but so is finding a cure for cancer, which isn't part of EEOC's portfolio either.

An Unusual Ad Campaign - Government Union vs. EEOC

It will be interesting to see what the AFSCME hopes to accomplish with their advertising campaign being launched tomorrow in 12 cities, including Austin. The Austin Business Journal has the story, Austin to be target of new EEOC ad campaign.

The union apparently wants to point out the woes it sees at the agency including according to the article:

Significant attrition and a backlog of cases at the Equal Employment Opportunity Commission are putting the jobs of millions of Americans in jeopardy, the federation contends. The EEOC has lost 20 percent of its workforce, the federation says, and a hiring freeze has been in effect since 2001. Despite the need for additional staff, the administration still wants to cut the EEOC budget for next year by $4 million, the federation says. Consequently, the agency says its backlog of cases will grow to nearly 48,000 in fiscal 2007, according to the federation.

A little interesting for the workers of an organization to take out ads against their own employer, but that is the nature of the public sector and having an organized work force. It's not always clear that all are pulling in the same direction.

The other cities that will get to hear and see the campaign are Atlanta; Baltimore; Birmingham, Ala.; Cheyenne, Wyo.; Chicago; Dallas; El Paso; Miami; Montgomery, Ala.; San Francisco; and Washington, D.C.

EEOC Wins 2nd Round with Sidley Austin

Thanks to Howard Bashman for his quick find of today's decision by the 7th Circuit, EEOC v. Sidley Austin (7th Cir. 2/17/06) [pdf]. The underlying lawsuit is the EEOC's effort to bring age discrimination claims on behalf of 30 or so "partners" who the EEOC contends for purposes of Title VII were mere employees protected by the Age Discrimination in Employment Act. Today's ruling was on an interlocutory appeal to determine whether or not the trial judge correctly decided that the EEOC could recover damages on behalf of the "partners" even though they would be barred from bringing an action on their own behalf because of their failure to timely file a claim.

Sidley Austin had the benefit of prior precedent, since the 7th Circuit previously answered that precise question, no. But unfortunately for Sidley, the intervening decision of the Supreme Court in Waffle House now required a different answer. While Waffle House had to do with the impact of an arbitration agreement on the powers of the EEOC, its underlying rationale makes it clear that the rights of the EEOC are not vicarious (and thus dependent on the employee administratively protecting his or her claim) but stand alone.

The net result, the EEOC can continue on its quest for losses for the "partners." Judge Posner wrote the decision, his second ruling in favor of the EEOC in this on-going litigation. For background on the litigation and Judge Posner's first ruling (enforcing a subpoena) see my earlier post, Discriminating Against Your Partner? - Sidley & Austin Sued By EEOC .

EEOC Charges Down in Number

Ross Runkel at the Lawmemo Employment Law Blog has a good post on the recently released EEOC statistics for the government fiscal year that ended September 30, 2005. The headline tags one of the big points, EEOC discrimination charges decline in 2005.

The EEOC is attributing the decline to its active outreach program. To the extent that the outreach is to employees, I would have thought that it would have had the opposite effect.

One other factor not mentioned that I think should have resulted in more charges not less, is the impact of National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). A number of courts have interpreted Morgan, correctly in my view, to require separate charges for discrete employment acts, even if they occur after an initial charge has been filed.

Maybe that hasn't resulted in more charges because the EEOC disagrees with that position. You have to go to footnote 186 of Chapter 2 of their Compliance Manual to find their position. In fairness they do point out one appellate court has held and another has hinted that their position is wrong:

But see Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (finding that under Morgan, discrete acts that occurred after a charge is filed must be raised in a new charge, even if related to acts included in the pending charge); EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 n.5 (11th Cir. 2002) (court stated that because the issue of post-charge discrimination had not been presented squarely, it would not address it, but noted that a charge may not encompass events that occur after it is filed because Title VII requires a charge to be filed after the unlawful employment practice occurred). The Commission disagrees with this view. Nothing in Morgan suggests that a new charge must be filed when a charge challenging related acts already exists. Thus, Morgan does not affect existing case law that permits subsequent related acts to be addressed in an ongoing proceeding.

If they are wrong, then Potter should lead to more charges being filed not less.

A couple of other things that jumped out at me from the Commission's numbers -- 1 out 5 charges is for disability discrimination and 1 out of 3 allege retaliation, often in conjunction with some other substantive claim. Couple that last figure with the increasing number of retaliation claims brought under statutes outside the EEOC's purview and you begin to see how important retaliation is as a cause of action.

Gallup Poll on Discrimination vs. EEOC Filings

EEOC has posted preliminary data on charges filed in FY 2005, along with results of a recently conducted Gallup Poll on discrimination in the workplace, New Gallup Poll on Employment Discrimination Shows Progress, Problems 40 Years after Founding of EEOC. One sharp difference in the data noted by Chair Cari M. Dominguez:

When you compare our most recent EEOC charge statistics with the Gallup data, we find that a far greater percentage of Hispanics and Asians perceive themselves to be discriminated against than actually file charges. Through the continuation of strong enforcement and targeted outreach and education, the EEOC is striving to ensure that the promise of the Civil Rights Act of 40 years ago will continue to be fulfilled for succeeding generations of American workers.

According to the EEOC there were just over 75,000 charges filed in the year which ended September 30th - 61% under Title VII, 20% under the ADA and 18% under the ADEA.

Race discrimination was about 36% of all charges, sex discrimination 31%, retaliation about 29% and national origin about 11%. No figures were released on religious discrimination charges, which based on anecdotal evidence one would have thought might have shown a substantial increase.

EEOC v. Fox News and the Art of Punitive Pleading

Couldn't have been a happy day at Fox News when the EEOC's complaint based on the conduct of one of its vice presidents, Joe Chillemi, was served. See a copy of the complaint, which is replete with "quotes" attributed to Chillemi that are both course and sexist, here. The blogosphere is full of condemnatory articles about Fox and its view/treatment of women.

Without in any way defending the conduct as appropriate, I can't help but wonder if the justice system really benefits from such specific pleadings. I know the argument that the pain caused Chillemi and Fox News by reciting in vivid detail his allegedly inappropriate conduct in a public pleading serves as a powerful message to other employers in the workforce to clean up their acts to ensure they don't receive the same fate. Hard to argue, in fact I sometimes point out the possibility of such a danger in anti-harassment training that I do. And if, as some reports indicate, at least some of the comments have been confirmed as accurate by counsel for Fox News, then it is even harder to argue against the pleading.

And of course this pleading is quite tame compared to many I have seen, such as the complaint against Fox commentator Bill O'Reilly, which are salacious not just crude. See my post from a year ago, Mackris v. O'Reilly - A Sexual Harassment Complaint. Still, and although I know this boat sailed a long time ago, I can't help but wonder if the days when such a pleading would have been seen as scandalous rather than helpful, were not better days.

False Economy - Bring Back the Green Cards

Why doesn't the EEOC send right to sue letters by certified mail? Given that an important right expires within 90 days from the receipt of the right to sue letter, wouldn't it be nice to have some degree of certainty? Or is it cheaper to leave individual cases subject to the vagaries of the mail and the testimony of individuals? For example, just how much in government resources (not to mention the costs of the defendant, their counsel, the plaintiffs and plaintiffs' counsel) were expended in resolving Kerr v. McDonald's Corp. (11th Cir. 10/6/05) [pdf]? The basic facts were not that complicated - right to sue letters were dated December 31, 2002, suit was filed on May 15, 2003 and plaintiffs' testified that they didn't receive the RTS letters until sometime in February.

But to decide whether the suit was barred by limitations, because there was no proof certain that would have been provided by certified mail, return receipt requested, we had the filing of a lawsuit, a motion for summary judgment with its attendant briefing, a decision by the district court, an appeal to the 11th Circuit, briefing, oral argument and a 14 page opinion.

Among the evidence gathered was the following on EEOC's procedure for sending a right to sue letter:

Both RTS letters were signed by Webb and dated 31 December 2002. General EEOC practice is to mail them out the day they are dated, or within the following two days, at the latest. Because such letters are mailed by a clerk, however, the exact date of mailing is not confirmable. Evidence in the record about specific EEOC office procedures related to the preparation and mailing of RTS letters and the closure of files sheds some light on the issue. First, as a rule, files are not submitted for closure until the RTS letters have been sent out. Second, the normal practice of the EEOC is to send out RTS letters to the charging party and the respondent at the same time. Finally, the majority of RTS letters are sent out tri-folded in regular white business envelopes. Investigation files are returned to charging parties by a wholly different department, in large manilla envelopes marked “CRTIU,” and only after the file has been closed. See 29 C.F.R. § 1610.17(g) (request for copy of investigation file in an ADEA case will be denied unless case has been closed).

And there's more detail on the EEOC procedures if you care to look at it. All of which you can be sure required considerable time (and angst) to procure in suitable form for presentation to the trial court.

And of course then there is the time that this issue remained up in the air. The two plaintiffs were terminated from McDonald's in October of 2001. The lawsuits filed in May 2003, the appeal filed in August, 2004 and now finally a decision in October, 2005, four years after the terminations. Of course there is still the possibility of rehearing, rehearing en banc and cert. to the Supreme Court, so let's not call it wrapped up too soon.

And this was not a straight forward case for the defendant. The Court summarized its holding as follows:

In this appeal, we were called upon to consider whether, under the test established in our circuit, actual knowledge on the part of a complainant that the EEOC has terminated its investigation of her claim, as evidenced by her request for an RTS letter, may be sufficient to cause the time for filing to begin running within a reasonable time after written notice of complainant’s right to sue has been mailed. Based on our review of the law in our circuit, we have concluded that it is, and that the ADEA complaint filed by Kerr and Green Smith was untimely.

The cost of the green cards that could have avoided all of this? $4.42 each according to the following example at the U.S. Postal Service website:

First-Class Mail with Certified Mail and Return Receipt

First-Class Mail will get the title to its destination in 1 to 3 days. Certified Mail with Return Receipt will give Maria proof that she mailed the title and will return a card to her with the date the title was delivered and the signature of the person who received it.

First-Class Mail $0.37

Certified Mail +$2.30

Return Receipt +$1.75

Total $4.42

Two plaintiffs - $10 vs. all the costs above. Doesn't take many of these to pay for a lot of right to sue letters.