Our attention was just drawn to an interesting discussion currently being conducted within a LinkedIn group concerning the EEOC and whether it attempts to intimidate employers.

The Article That Started The Debate

It appears that at issue is an article in HRM America entitled “EEOC Insider Reveals ‘Bullying’ Tactics Towards Employers,” which claims that:  “The EEOC deliberately overstates litigation risks in order to intimidate employers into substantial monetary settlements, a Colorado lawyer claims. Merrily Archer, who formerly worked as a trial attorney for the EEOC, is so convinced the commission is pulling the wool over employers that she launched an investigative survey into its conduct.”    The article publishes her survey.

Ms. Archer has apparently found an antagonist in Robert Young, whose LinkedIn bio states that he is a “Labor Services Representative at New York State Department of Labor.”

The First Comment From A Pro Bono EEOC Mediator

After Ms. Archer posted her article, it drew a comment from a professional Pro-Bono Mediator for the EEOC who called on EEOC mediators to: “Hold EEOC accountable in that they cannot use info discussed during Mediation. Insure that the Mediator is not working in the Investigative Unit.  Impasse if they try to play ‘Hard Ball.’ Do not allow them to intimidate you. Several have tried, and I respectfully reminded them of their role.”

The post above drew Mr. Young into his debate with Ms. Archer.

 

The Big Debate 7291254_s

Mr. Young:  “Dwayne it is not about fair or unfair it is about spin. The poor employers with their legal staff do not get their way all the time!!  We need to offer sympathy for their plight, not reality.  Don’t you get it?”

Ms. Archer:  “Is it okay for the government to exaggerate the risk of enforcement activity (i.e., lie) to increase employer payouts in private civil settlements?   Do the historic collections that EEOC mediators and investigators have extorted from employers really show that it is ‘enforcing the law more effectively?’   Has the privatized civil litigation model of CRA 1991 yielded greater equal employment opportunity over the past 20+ years?

These are the SMART questions we should be asking, instead of resorting to sarcasm, Mr. Young.”

Mr. Young:  “Add a comment … I can write fiction too.  Is it correct for employers to have huge legal teams to face simple workers with valid complaints?   Is it fair for employers to ignore complaints and stone wall for years while looking for ways to terminate employees employment.   You are whining up the wrong tree.  You are paid to and are well trained to spin your issues. It is time for employees to have a few pit bulls in their corners too.  It is so bad appeal and produce evidence that your poor clients are being mistreated. Extortion is a legal term.  Do you have evidence of this alleged extortion?  As an agent of the court aren’t you required to produce this evidence?”

Ms. Archer:  “Yes, Mr. Young, please take a moment to review the findings of our EEOC mediation survey, which juxtaposes common representations that EEOC mediators make with the EEOC’s own enforcement data.  http://eeolegalsolutions.com/behind-closed-doors-what-eeoc-mediators-say-to-make-employers-pay/.  Since ‘extortion’ means using threats, deception, and abuse of power to exact a monetary payout, I stand by my use of that term.

The problem, Mr. Young, is that government workers like YOU confuse an ostensibly neutral ‘law enforcement’ role with being ‘a pit bull’ for employees.  You keep proving my point: the EEOC (and apparently the New York Labor Department) have conflated the difference between law enforcement and advocacy.  No wonder you do not get much cooperation from employers.”

Mr. Young:  “Interesting spin. As usual misplaced focus. In fact I have never had an employer that was innocent not cooperate in over 25 years of my experience.  I put great store in a survey done by a legal team with a bias. I will review it though just to see if you disclose all of the questions.”

Ms. Archer:  “Mr. Young, as a governmental representative, your posts are broadcasting that neither you, nor the agency you serve, are neutral and unbiased toward employers. You’ve publicly complained that employers stonewall and spin, and then say “I’ve never had an employer that was ‘innocent’ not cooperate in over 25 years.” Hmm? I’m inclined to perpetuate this discussion just to provide more fodder for New York employers and the defense attorneys representing them.

As a former EEOC Trial Attorney, master’s level social worker, and longtime employer representative, I’ve dealt with my fair share of so-called “pit bulls” and gladiators who like to congratulate themselves for doing “God’s work” and being champions of EEO. But the truth is, those tactics have not worked very well over the past 20+ years. Money changing hands is no substitute for real workplace EEO change.”

 

One Question

The debaters here are fully capable of articulating their points, but we have one question:  Is there something amiss for a NYS Labor Department Representative to be publicly taking the positions that he is taking?

Stay tuned – there’s likely more of this discussion to follow.

 

  • valentino14

    Employer’s are never intimidated. They are amused, at first, then they dig in and deny, deny, deny. Then they settle and claim no culpability. So much for intimidation.

  • rcohenfox

    Accept.

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/

  • From my experience, the employers that are intimidated by an EEOC investigation are small to medium sized companies that do not have HR administrators or legal representation with employment law experience. I agree with the HRM article that if employers realize only a small percentage of the investigations conducted by the EEOC result in cause determinations they will realize that the odds are in their favor.

  • rcohenfox

    Accept.

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/

  • tom

    It appears that some EEOC investigators, whether it is policy or not, attempt to bully and intimidate small employers into exorbitant settlements before they “lawyer up” as they say on the TV cop shows.

  • rcohenfox

    Accept