By Christopher DeGroff

We have been keeping our readers posted on the rapidly evolving developments concerning the EEOC’s agenda in 2013 and beyond. As we noted in past postings, the EEOC promised in its Strategic Enforcement Plan (“SEP”) that it would increasingly focus on preventing and, when necessary, litigating retaliation claims. The EEOC sharpened its focus on retaliation after obtaining written comments and a full-day public meeting seeking input on its SEP. At the meeting, several advocacy groups urged the EEOC to rededicate its enforcement efforts on preventing discriminatory retaliation. The EEOC’s final SEP integrated the concepts into its national playbook, included retaliation as one of the “big six” global EEOC priorities.

The EEOC’s warning in its SEP was no bluff. The EEOC recently announced three significant settlements with employers concerning claims of retaliation: $130,000 in a case relating to disability discrimination retaliation, $85,000 in a sex harassment retaliation case; and $77,500 to settle another disability harassment retaliation lawsuit. The EEOC closed out January 2013 with a $500,000 consent decree against Cognis Corporation relating to yet another claim of retaliation.

A Salvo Of Retaliation Actions

EEOC v. D.O.E. Technologies, Inc. et al., Case No. 11-CV-00861 (D. Del. Jan. 24, 2013). We start with a case in the U.S. District Court for the District of Delaware. Christopher Vely, a sales representative, allegedly notified his employer of his hearing disability and requested an accommodation. When those talks went sour, he complained. The EEOC claimed that after Vely complained, he was fired. The EEOC filed a retaliation complaint in federal court in Delaware, and on January 24, the EEOC finalized a $130,00 consent decree that provides monetary relief to Vely and enjoins the Defendant from engaging in adverse employment actions or retaliation in violation of the ADA.

EEOC v. D.O.E. Technologies, Inc. is also significant because it the EEOC’s SEP also makes clear that the EEOC is going to “gear up” the investigation and subsequent litigation of ADA matters.  For further discussion on this topic, check out the Executive Summary in our EEOC-Initiated Litigation book.

EEOC v. Cappo Management XX, Inc., Case No. 12-CV-0239 (M.D. Tenn. Jan. 25, 2013). Next we turn to the EEOC’s allegations that Cappo Management fired several salespersons because they complained about sexual harassment. The EEOC asserted that three employees were fired just a week after they complained. Eleven months after filing suit in Tennessee, the parties negotiated a consent decree for $85,000 in monetary damages and a variety of other non-monetary provisions. Cautioning employers that the EEOC will continue its focus on retaliation discrimination, Faye Williams, regional attorney of the EEOC’s Memphis District Office, publicly stated that “Title VII and Supreme Court precedent provide that employees have a right to complain about practices they believe are unlawful without repercussions, and the EEOC will continue to act forcefully to protect this right.”

EEOC v. Kintetsu International Express (USA), Inc., Case No. 10-CV-00560 (D. Haw. Jan. 29, 2013). The consent decree in EEOC v. Kintetsu International Express (USA), Inc. resolved the Commission’s claims that the Defendant harassed and retaliated against, Yuko Lesher, tour coordinator who was purportedly forced to resign in retaliation for her reporting her disability harassment. The parties entered into a $77,500 consent decree and a three-year agreement requiring the Defendant to create new policies and train employees about disability discrimination.

EEOC v. Cognis Corp., Case No. 10-CV-2191 (C.D. Ill. Jan. 25, 2013). In June 2012, we reported that Judge Michael P. McCuskey of the U.S. District Court for the Central District of Illinois granted a rare summary judgment motion for the EEOC, ruling that the Defendant unlawfully retaliated against its employee Steven Whitlow. The Court found that Whitlow engaged in protected activity when he revoked a “last-change” agreement, and Cognis retaliated against him in violation of Title VII when it terminated his employment. At the same time, the Court denied the EEOC’s second motion for summary judgment regarding a similar charge on behalf of a class of Cognis employees. Just days ago, Judge McCuskey entered a consent decree resolving the lawsuit for $500,000. At the close of the litigation, the EEOC’s Chicago District Director, John Roe, publicly stated that “Cognis presented the victims in this case with a terrible, illegal choice:  lose your job or lose your civil rights. Under the law, no worker has to make that kind of choice. Employers would be better served by working to ensure that their employees are free from discrimination, rather than threatening their workers with termination in an effort to make sure that employees don’t complain.”

Implications For Employers

The EEOC has communicated that it intends to vigorously pursue its stated “big six” agenda items enunciated in its Strategic Enforcement Plan. The cases reviewed in this post suggest it is doing just that. The government’s message is clear: the EEOC has been and will continue to scrutinize employers’ actions for any hint of retaliation. In each of these cases, the employers denied any wrongdoing, but the best winning move is not to be on the EEOC’s target list from the start. Employers should train management and human resource officials to effectively deal with retaliation complaints. Suffice it to say, this is a “white hot” area for the EEOC, and administrative enforcement and full-scale litigation will continue to focus on retaliatory practices.

Readers can also find this post on our Workplace Class Action blog here.

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Photo of Christopher J. DeGroff Christopher J. DeGroff

Christopher is a partner in the Labor and Employment Department in the Firm’s Chicago office, with a practice largely focused on multi-plaintiff and class/collective actions. Mr. DeGroff’s class action experience spans the scope of employment law theories. Mr. DeGroff also has extensive experience…

Christopher is a partner in the Labor and Employment Department in the Firm’s Chicago office, with a practice largely focused on multi-plaintiff and class/collective actions. Mr. DeGroff’s class action experience spans the scope of employment law theories. Mr. DeGroff also has extensive experience litigating against the Equal Employment Opportunity Commission (EEOC), both at the early charge stage and in large-scale EEOC pattern-and-practice litigation. Mr. DeGroff has developed innovative strategies for addressing wide-ranging governmental requests for information and has handled complex regional and national EEOC investigations, typially resulting in no action being taken against our clients at all. When the EEOC has resorted to litigation, Mr. DeGroff has been instrumental in defending our clients against these often high-profile systemic cases, working with any number of class action teams to achieve efficient and effective case resolution. Mr. DeGroff’s class experience also includes a significant understanding of emerging electronic discovery issues, and has conducted speeches and published articles on electronic discovery and other high-technology issues.

Photo of Gerald Maatman, Jr. Gerald Maatman, Jr.

Gerald is a partner in the Wage & Hour Litigation Practice Group in Seyfarth Shaw’s Chicago office. Mr. Maatman has a primary emphasis in his practice on defending employers sued in employment-related class actions and EEOC pattern and practice lawsuits brought in federal…

Gerald is a partner in the Wage & Hour Litigation Practice Group in Seyfarth Shaw’s Chicago office. Mr. Maatman has a primary emphasis in his practice on defending employers sued in employment-related class actions and EEOC pattern and practice lawsuits brought in federal and state courts throughout the United States. Mr. Maatman also pioneered the process of conducting employment practices audits to assist employers in structuring effective and practical personnel policies and protocols. These audits are designed to minimize the incidence of employment-related class action litigation and to maximize management discretion and workplace productivity. Mr. Maatman’s work in this area has been profiled in the Wall Street Journal and Time Magazine.