My partner, Richard, recently posted about the 5 “fiercest” EEOC regional offices. If your region was not on the list, you may have breathed a sigh of relief. Employers in other regions should be careful about getting too complacent, however.
This week a federal court judge tossed out a case filed by Case New Holland, Inc. against the EEOC for interference with its business operations. The lawsuit stemmed from actions taken by the EEOC in 2013 where it sent a blast email to 1000 employees of Case New Holland (“CNH”). The email informed recipients that the EEOC was investigating the company over allegations that it “discriminated against job applicants and current and former employees from January 1, 2009, to present,” according to the complaint. The message also contained a link to an Internet survey that CNH says was biased and asked its employees leading questions.
The underlying EEOC charge was based on age discrimination claims and was filed in 2012. According to the complaint filed by CNH, it had submitted a formal position statement and produced hundreds of documents in response to information requests, yet it had no warning that the email blast would be sent to its employees. Despite the fact that the underlying charge was based on age discrimination, the EEOC blast email sought information related to any claims of discrimination. Most notably, the EEOC sent out this mass email trolling for claims even before it issued any finding of probable cause in the underlying charge.
I had a case years ago where an employer faced with a charge of disability discrimination submitted a position statement without checking with an attorney. Some employers with significant experience in dealing with charges may be perfectly capable of submitting convincing position statements without the aid of an attorney. In this case, however, the employer was so focused on the claims of disability discrimination that it ignored potential problems under the FMLA. In its position statement, it basically admitted to violating the FMLA. The employer was then shocked when a DOL investigator came knocking on its door.
Although in the majority of cases where the EEOC finds probable cause it does not file suit on behalf of employees, employers should be aware of how aggressively the EEOC will prosecute claims. Employers should not ignore EEOC charges and should be very cautious about what information is put in position statements and responses to information requests.