We reported on the EEOC’s filing of the first LGBT discrimination suit earlier this month, but that was not the only activity at the agency.

Employers should take note of the following new EEOC developments:

Employers Be Careful What You File with the EEOC

EEOC now will give the Charging Party the Employer Position Statement

The EEOC made an official announcement of a change in their charge-handling procedures, making ‘official’ a practice which we had seen the agency follow in the past, but which was apparently confined to certain offices or investigators.  Now, after the employer position statement is submitted, the EEOC will provide a copy of same – along with exhibits and data – to the charging party and allow the charging party the opposing to ‘comment’ on it.

This would seem only fair, as why should the employee making the charge not get a chance to rebut what the employer has said about them, or in defense of the charge?

But is it?  I would say this process is fair, if everyone is given the same opportunity.

The employer is not.  When a charge is submitted, the charging party may submit ‘evidence’, documents or statements to support the charge.  The employer or Respondent is not always given that evidence.  We have at times had to ‘argue’ with the EEOC to obtain documents which are identified in the charge as ‘exhibits’.

Also, when the charging party submits their rebuttal to the position statement, is the employer shown that and given an opportunity to respond?  NO.  That rebuttal, according to the process unveiled by the EEOC, will now go unanswered as the employer will not be given a copy.

Adding to the unfairness of the process, the employer will not see the rebuttal until the investigation is over, and the EEOC has made its determination. Thus, the determination could be based on false, erroneous or even fabricated information from the charging party in that rebuttal – and no one will know that until it is too late.

  • My (humble) suggestion to the EEOC – just level the playing field. If you are going to allow the charging party to see the Respondent’s position statement, then also allow the employer to also see what they have submitted in response.
  • My suggestion to employers – be careful. Now that you know a charging party may be given your position statement and exhibits, be cautious about what goes in there. Just be careful, as you certainly will have no control over what happens to that information once the charging party (and their attorney) gets hold of it.
    • Avoid including names of other employees who may be ‘comparators’, unless absolutely necessary to the defense.
    • Avoid including any information which may be confidential to your business: customer names, business plans, marketing strategies, or information about the financial health of the business.
    • Avoid attaching affidavits or sworn statements to the position statement, as these may become ‘public’ and could end up in the hands of plaintiff’s counsel.
    • Avoid attaching exhibits which may reveal confidential information about your business or other employees. This would include things like addresses, phone numbers and other personal information of other employees or witnesses, which you will want to redact from anything turned over to the EEOC.
    • MAKE SURE THE POSITION STATEMENT IS FACTUALLY ACCURATE. This is not the time to ‘embellish’ the facts or to try to gloss over bad information.  If you have good facts, present them in an accurate and objective manner.  If there are ‘bad’ facts, present them too and explain to the agency why they should not affect the outcome of the investigation.  It is always better to get out in front of bad facts and present them in the best light possible, rather than wait for the plaintiff to present them as he/she wants them to be portrayed.

As a general matter, the EEOC has historically tried to be fair and neutral in its conduct of investigations and determinations. We can only hope that this change in procedure does not signal a major shift in that attitude and practice.  For the moment, however, employers should continue to be vigilant about what they turn over to the agency.

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EEOC Subpoena Power Expanded

In a decision which may send red flags to employment agencies and staffing firms, the 7th Circuit just upheld enforcement of a very broad EEOC subpoena issued to a staffing firm that was accused of discrimination.  See, EEOC v. Aerotek.  The decision also contains language about EEOC subpoena power in general which does not bode well for all employers.

Aerotek had been accused of age discrimination.  According to the decision, in reviewing files the EEOC found multiple instances of allegedly discriminatory requests to the agency from clients, asking specifically for applicants only of a certain age (usually younger).

The EEOC issued a subpoena asking for names of all clients over 62 offices, and of all employeesplaced with those clients. The agency naturally objected, noting that this subpoena went far beyond the scope of the charge, would encompass over 22,000 clients, and also could damage its relationship with its clients.  The district court ordered the subpoena enforced, and the 7th Circuit agreed.

In affirming that the subpoena was enforceable, the court noted that the EEOC did not need to find a specific violation of the law in order to demand information via a subpoena. Indeed, it held that the EEOC could “investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”  It even had the power to “investigate on suspicion that the ADEA is being violated, without the necessity of bringing a charge.”  The EEOC could thus seek “access to virtually any material that might cast light on the allegations against the employer.”

This is not helpful language for any employer that is looking to fight an EEOC subpoena, but is certainly something that employers should be mindful of before undertaking such a fight.

What is the takeaway?

  • All employers should be aware that, when dealing with the EEOC in an investigation, the powers of the agency are extremely broad. When possible, it is better to agree on the scope of information to be produced to the agency rather than take your chances and litigate the issue in court.
  • Staffing agencies in particular should be mindful of their obligation not to discriminate. If a client makes a request for a “young” applicant, or a “pretty girl” or a “strong man”, etc., etc. – the agency should have a stated response that “we cannot honor that type of request”.  That response should be put in writing and/or sent via email, if possible, so that there is a record that it was rejected.  Of course, the ultimate proof will be who the agency refers for jobs, and it should also keep records showing that it makes a real effort to make sure that it refers applicants who are diverse, when those applicants meet the criteria for the position.