Seyfarth Synopsis: A seemingly innocuous
case filed by the EEOC on behalf of a single charging party against
a casino operator highlights some of the risks of betting at the
conciliation table. Employers take note!
As its FY 2016 wound down, the EEOC filed suit against a casino
operator – in the case of
EEOC v. Greektown Casino, L.L.C., Case No. 2:16-CV-13540
(E.D. Mich.) – alleging that it failed to accommodate and
then terminated a pit manager because of his alleged disability
– stress anxiety disorder. Obviously, the casino not yet
responded to the complaint, and it may well have excellent legal
defenses. Yet, the Complaint shows the EEOC's hand (or at least
part of it) and provides an example of some of the important stakes
in EEOC litigation.
Is The Commission Bluffing?
Employers sometimes assume that the EEOC is only in the business
of suing large companies based upon allegations of class-wide
mistreatment of large groups of employees. It is true that
the EEOC makes headlines filing pattern or practice cases against
big companies, but the EEOC routinely files complaints on behalf of
individual charging parties against lesser known businesses and
often smaller companies. In fact, the EEOC often does so
strategically – because it has determined that the underlying
legal issue is more important than whether there is a big-name
company, thousands of employees, or big dollars involved. As noted
here, the EEOC's recent challenge to a wellness program,
and its recent attempt to pursue a claim for transgender
discrimination, for example, were pursued on behalf of individual
charging parties. Obviously, though, the legal issues were deemed
important and, frankly, the press coverage was just as wide as that
of any of the EEOC's behemoth cases.
Also, more than a few cases are filed by the EEOC because it
simply determines justice must be done and that the charging party
might not have the resources to pursue it. So, don't
assume during the conciliation process that the EEOC is just
bluffing when it threatens to bring a case on behalf of one
charging party. It happens.
Know When To Fold Them?
With each reasonable case determination, comes an invitation to
the conciliation (gaming) table. The conciliation process can be
long, episodic, and frustrating. Along the way, an employer
must balance the various pros and cons associated with settling a
case with the EEOC. Certainty of outcome is almost always a
factor, as is money, but, for some employers, the question is
whether the game is lost the instant a suit is filed by the
EEOC. Consumer product and service companies, for example,
are heavily invested in brand development and the relentless
pursuit of brand loyalty. So, each employer must ask itself
what it will wager on whether the failure to reach compromise will
result in damage to its brand or company name if the government
publicly accuses it of discriminatory treatment of employees
(i.e., fellow consumers). The frustrating part is that the
allegations may be wildly misleading and eventually proven wrong,
but no matter how frivolous the assertions may be, the reputational
damage can be done on filing day.
Know When (Not) To Run?
None of this is to suggest that employers should bend to the
will of the EEOC in a meritless individual or class case just
because the EEOC says it might file suit. The fact is that
the EEOC is quite choosy and has limited resources. As we
here, the EEOC filed only 136 cases in its fiscal year ending
September 30, 2016. By contrast, as noted
here, the EEOC routinely receives more than 80,000 charges of
discrimination per year. In other words, the odds of the EEOC
filing suit are actually quite low in any given case.
Plus, not all negative publicity hits are created equal.
What is the issue? Is there an advantage to taking a stand?
Do you have strong PR advisors? Can you turn it on the
government – David v. Goliath style?
And, perhaps most importantly, settling is not always a good
bet. EEOC conciliation agreements are confidential as a
matter of law and EEOC policy – except where the employer
agrees to some measure of publicity. Employers should bet
that the EEOC will request an "agreed" press release if
there is any level of significance to the case, and should demand
to see details of that card before deciding to take it.
Readers can also find this post on our EEOC Countdown blog
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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