Duane Morris Takeaways: On November 6, 2024, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York once again denied a request to approve a settlement between the U.S. Equal Employment Opportunity Commission ("EEOC" or the "Commission") and a union that would have ended a fifty-three (53) year old race discrimination lawsuit. In a strongly-worded opinion, the Court found that, despite a number of approval requests, the parties still could not provide it with data necessary to demonstrate that race-based hiring and employment disparities (concerning Black and Hispanic union members) had been eliminated. The case, captioned EEOC v. Int. Ass'n of Bridge Structural and Ornamental Ironworkers Local 580 et al., Case No. 71 Civ. 2877, 2024 U.S. Dist. LEXIS 202057 (S.D.N.Y. Nov. 6, 2024), is significant because it illustrates the importance of complying with recordkeeping requirements and other court-mandated activities in consent decrees, as well as the potential consequences for failure to do so. In the event an employer and, as applicable, a union or group of plaintiff-employees, are unable to convince the court that they are meeting their obligations under a consent order, even the Commission's support may be unsuccessful in convincing a court to end longstanding court-supervision of agreed-upon remedial measures.
Case Background
In 1971, the United States sued Local 580 of the International Association of Bridge, Structural, and Ornamental Ironworkers ("Local 580"), alleging that an apprenticeship program that it ran, titled the Joint Apprentice-Journeymen Educational Fund of Ironworkers Local 580 ("AJEF"), and Allied Building Metal Industries ("Allied"), an association of metalworking companies that employ Local 580 members in New York City, discriminated against applicants on the basis of their race, in violation of Title VII of the 1964 Civil Rights Act. Id. at *1. In 1974, the EEOC was substituted for the United States as plaintiff. Id. at *2.
As a result of the litigation, the EEOC entered into a consent decree with the defendants in 1978 to resolve the Commission's claims, and the consent decree was thereafter approved by the Court. Id. Ten years later, Local 580 and AJEF were found in contempt of the consent decree, and remedial orders were subsequently entered to enforce compliance, requiring, inter alia, appointment of a special master, new rules related to job referrals, the development of a new "information tracking system" and certain other recordkeeping requirements. Id. at *3. In 1991, the Court entered another remedial order in an attempt to ameliorate the racial disparity in working hours, further revise Local 580's job referral system, and require its contractors to make at least 65% of their hires through the new system. Id. Two decades later, in 2011, the Court issued its most recent contempt order against the union for failure to adhere to the court-mandated system. Id. In a joint motion filed by the parties in June 2023 (shortly after the Court rejected the parties' initial joint motion filing for failure to provide adequate information), the defendants and the EEOC requested approval of a proposed consent decree that would wind down the Court's supervision of the parties' obligations, and thereafter terminate judicial oversight of defendants, after a three-year period. Id. at *6.
On November 6, 2024, U.S. District Judge Lewis A. Kaplan penned a strongly-worded order denying the parties' motion.
The Court's Ruling
The Court began its analysis by confirming its denial of the parties' second joint motion for largely the same reasons that it denied the first joint motion for approval of the consent decree; namely because of: (1) the parties' failure to provide the data underlying employment opportunities for Black and Hispanic union members, and (2) the lack of detailed accounting of the parties' efforts to achieve proportionate working hours. Id. at *9-10. The Court also stated its belief that based on the parties' recent filings as part of their second joint motion for approval, the data and information in question do not exist. Id. at *10.
The Court dispatched with the parties' expert testimony, observing that the expert had only used data after June 19, 2018, despite the fact that his report was meant to analyze a decade-long period, from 2009 to 2019. Id. at *11-12. Further, according to the Court, the expert witness attempted to use incomplete data from a source other than the union's own records; however, the expert concluded that even this data contained "critical limitations" and could not provide "any meaningful value" to his report. Id. at *12.
Accordingly, the Court held that "one year of partial data is not sufficient to justify a conclusion that defendants and contractors no longer discriminate against Black and Hispanic union members and now are committed to providing them with equal employment opportunities. Indeed, this is particularly true given the long and well-documented history of discrimination by defendants, as well as the existence of current evidence suggesting that Black and Hispanic workers still are not receiving the same hours of work as other union members." Id. at *14. The Court was also critical of the parties' attempt to dispute whether the Court's previous Order placed an affirmative obligation on Local 580 to address the hours disparities between its minority and non-minority members, concluding that based on the clear text of the Order, defendants were obligated to work proactively to ensure proportionate employment opportunities for Black and Hispanic members. Id. at *17-18. The Court added that it "will not reward defendants for their apparent indifference to minority workers and to the law by entering into a less stringent regime with the aim of winding down any and all supervision in only three years." Id. at *24.
Finally, the Court concluded that approval of the proposed consent decree would harm the public interest since the existing orders "can produce the desired results if adequately pursued" and "entry of the Proposed Consent Decree — which would decrease oversight and reduce the obligations imposed upon defendants known to be in violation of Court orders and demonstrably unwilling to eradicate racial disparities — would disserve the public interest." Id. at *28.
Implications for Employers
Given the age of this case, it is possible that by the time the Commission and Local 580 successfully petition the Court for approval, this will have been one of the longest-lasting consent decrees in the Commission's history and American jurisprudence. This litigation is already over half a century old, and the Court's ruling makes clear that the parties still have much more work to do before it will grant their requested wind-down of judicial oversight. This case illustrates the risks employers face when they fail to comply with court-mandated record-keeping requirements in connection with EEOC consent decrees, and the possible longevity of these consent decrees in the event the Court is not satisfied with compliance and enforcement of same.
As the Court noted, although "[p]erpetual court oversight is to be disfavored...[t]he case at hand...presents a situation where, despite repeated claims that the need for judicial oversight is gone, the Parties have admitted to continued and persistent racial disparities." Id. The Court here pointed directly to the parties' failure to abide by its express orders to collect relevant data for purposes of analyzing progress and compliance, and held that without this data, "the Parties have failed to show that the racial discrimination which first gave rise to the need for court oversight has been eliminated...". Id. at *28-29.
Employers and businesses should heed the Court's warning and ensure relevant data and information applicable to analyzing potential discrimination of any kind is collected and preserved in the normal course of business. Companies should apply this principle regardless of whether or not the company is already subject to a court order or any other oversight for compliance with practices required to fight against and eliminate discrimination. The case also serves as a critical reminder that once an agency files a lawsuit in federal court, the parties may not be able to simply agree on their own to settle claims, especially where defendants fail to abide by the Court's orders. As this litigation demonstrates, federal judges have ample patience – decades of it – to ensure litigants adhere to mandated requirements justifying dismissal.
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