We've commented before (April 20, 2011) on recent cases in which the EEOC was sanctioned for bringing and pursuing expensive, class-wide litigation without much evidence. While the case has not yet resulted in sanctions, a recent decision from the Southern District of New York reflects another instance in which the EEOC made bold accusations against a high-profile employer, but failed to back up those accusations with any real proof.

In EEOC v. Bloomberg L.P.pdf Case No. 07 Civ. 8383 (LAP) (S.D.N.Y. Aug. 16, 2011), the EEOC brought suit against financial services and media giant Bloomberg, contending that it had engaged in a pattern and practice of pregnancy discrimination in violation of Title VII. According to its own press release issued at the time of filing suit, "the EEOC asserts that Bloomberg engaged in a pattern or practice of demoting and reducing the pay of female employees after they announced their pregnancies and after they took maternity leave. Some women were replaced by more junior male employees, the EEOC says. The lawsuit also alleges that the same pregnant women and new mothers were excluded from management meetings and subjected to stereotyping about their abilities to do their jobs because of their family and caregiver responsibilities." Ultimately, discovery revealed that approximately 600 women of Bloomberg's 10,000 employees had taken leaves.

So far, sounds like a big case, but for one problem - despite the seriousness of the charges leveled by the EEOC, it had no evidence to support them. As the District Court noted in its opinion granting summary judgment, "J'accuse! is not enough in court. Evidence is required." After three years of litigation, Bloomberg moved for summary judgment as to the pattern and practice claim.

It is difficult to square the EEOC's own efforts to garner publicity for the case with the amazingly small amount of evidence. The court noted, for example, that statistical evidence is virtually required to mount a pattern and practice case. The EEOC not only failed to produce such evidence, but the largely undisputed evidence from the employer demonstrated that women taking maternity leaves continued to have thriving careers and to receive hefty pay raises. In fact, the employer was able to show that women taking maternity leaves received, on average, higher pay increases than those returning from other types of leave.

Even without the all but essential statistical evidence, the court was unimpressed by the anecdotal evidence the Commission raised, in part because it was not very accurately presented. For example, the EEOC described one unnamed class member as "a consistently strong performer" whose compensation "repeatedly remained flat" after she took two maternity leaves. That individual, however, had received only middling reviews and had received regular increases, the largest of which occurred on her return from her second leave. In other instances, the EEOC relied on hearsay or the mere representation of its counsel, neither of which was competent evidence. Other examples proved not to be true on closer examination, or to support the employer's arguments.

The court noted in several instances that Bloomberg unabashedly was a demanding employer, one that advised its employees that it expected them to put their work ahead of their work demands. It ultimately concluded that the law did not "mandate work-life balance" and that the EEOC did not establish any company-wide discriminatory practice that did violate the law. After 64 pages of careful and at times incredulous analysis, the court granted summary judgment as to the pattern and practice claim.

The Bottom Line: The EEOC will pursue high-profile claims even without the requisite evidence, but courts are dismissing them when the promised facts never materialize.