I recently posted about a Seventh Circuit decision that held an employer that settles a charge of discrimination must still comply with an EEOC subpoena. As I said there, the employer stood on principles and lost only because agencies have power that, while not absolute, is substantial and courts have no basis, short of a showing that the EEOC request is unduly burdensome or otherwise inappropriate, to refuse enforcement. It is better, I said, to cooperate even if you are sure you are right.
I should rest on my prior comments about the decision. After all, it is a pretty unique situation and not likely to re-occur. I can't held but comment, however, on the EEOC's press release about the decision (I will explain why in a minute). The EEOC quotes its lead attorney in the case as cautioning:
I should rest on my prior comments about the decision. After all, it is a pretty unique situation and not likely to re-occur. I can't held but comment, however, on the EEOC's press release about the decision (I will explain why in a minute). The EEOC quotes its lead attorney in the case as cautioning:
- Some recalcitrant employers and their counsel attempt to avoid accountability for employment discrimination through adoption of what they consider effective counter-strategies. Such strategies may include filing lawsuits against those who complain of discrimination, conducting endless discovery so as to draw out litigation for years, and, as in this case, getting one or two possible victims of the discrimination which may have been visited upon a class to cut a quick and often cheap deal. Those strategies are, in the final analysis, never really effective against the EEOC. We’re pleased to see that point made once again made so forcefully in this important decision by the Seventh Circuit. (My emphasis.)
Remember, this is the case where the employer implemented a policy of refusing to hire anyone who had been convicted of a violent crime after two of its employees were murdered in violent confrontations in the workplace. The employer didn't ban applicants simply because of prior arrests, it didn't ban applicants because of prior convictions, its policy focused on convictions for violent crimes.
The decision, moreover, made it clear that the EEOC was not investigating a case of intentional discrimination. The EEOC was looking to see whether the policy was unintentionally discriminatory, on the assumption that some races might be more heavily impacted by the policy than others. Now, I am prepared to assume that the employer's practice might have led to a statistical disparity merely because there are more minorities than non-minorities convicted of violent crimes. (To know for sure, we would have to look at several factors and that isn't the point of this post.)
Even if there is a disparity, as the court recognized at oral argument and in its decision (both available through this page) there is a substantial question as to "whether the EEOC is acting prudently by devoting time of both its staff and Watkins to shortlived practices by an entity that is no longer an operating company, and whose rule may well be amply supported by 'business necessity' given its history of workplace violence."
So, the clear message the EEOC's counsel (and the reason I am saying something further here) is sending employers is that the EEOC presumes you are trying to undermine your employee's rights. Even when you are trying to protect your employees from workplace violence, the agency stills believes you are out to do the wrong thing toward your employees.
I am not saying the agency should blindly trust employers and forgoe discrimination investigations. Simply that, if you are ever inclined to think that the EEOC investigator is "your friend," don't. They aren't.
The decision, moreover, made it clear that the EEOC was not investigating a case of intentional discrimination. The EEOC was looking to see whether the policy was unintentionally discriminatory, on the assumption that some races might be more heavily impacted by the policy than others. Now, I am prepared to assume that the employer's practice might have led to a statistical disparity merely because there are more minorities than non-minorities convicted of violent crimes. (To know for sure, we would have to look at several factors and that isn't the point of this post.)
Even if there is a disparity, as the court recognized at oral argument and in its decision (both available through this page) there is a substantial question as to "whether the EEOC is acting prudently by devoting time of both its staff and Watkins to shortlived practices by an entity that is no longer an operating company, and whose rule may well be amply supported by 'business necessity' given its history of workplace violence."
So, the clear message the EEOC's counsel (and the reason I am saying something further here) is sending employers is that the EEOC presumes you are trying to undermine your employee's rights. Even when you are trying to protect your employees from workplace violence, the agency stills believes you are out to do the wrong thing toward your employees.
I am not saying the agency should blindly trust employers and forgoe discrimination investigations. Simply that, if you are ever inclined to think that the EEOC investigator is "your friend," don't. They aren't.
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