Liberty and Justice for All

In recent columns we have explored several of the Equal Employment Opportunity Commission’s, or EEOC, evolving developments concerning its 2013 agenda and beyond. As previously noted, the commission promised in its December 2012 Strategic Enforcement Plan, or SEP, that it would increasingly focus on preventing and, when necessary, litigating retaliation claims. The commission sharpened its focus on retaliation after obtaining written comments and hosting a full-day public meeting seeking input on its SEP.

At the meeting, several advocacy groups urged the EEOC to rededicate its enforcement efforts to preventing discriminatory retaliation. The commission’s final SEP integrated the concepts into its national playbook, included retaliation as one of its “big six” global priorities.
The EEOC’s warning was no bluff. In January alone — just one month after finalizing the plan — the commission announced four significant settlements with employers concerning claims of retaliation to ensure that employers got the point.

For example, in EEOC v. D.O.E. Technologies Inc. et al., 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 the employee complained, he was fired. The commission filed a retaliation complaint in federal court in Delaware, and soon thereafter finalized a $130,000 consent decree that provides monetary relief to the employee and enjoins the employer from engaging in adverse employment actions or retaliation in violation of the Americans with Disabilities Act.

The government then filed EEOC v. Cappo Management XX Inc. In this case, the employer allegedly fired several salespeople 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 commission’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.”

Then came EEOC v. Kintetsu International Express (USA) Inc. The consent decree in the Kintetsu case resolved the claims from a tour coordinator who was purportedly forced to resign in retaliation for 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. is an example of a rare “lay down” win where the commission won its retaliation case on a motion without even going to trial. The court found that an employee 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.

The court entered a consent decree resolving the lawsuit for $500,000. At the close of the litigation, John Rowe, the EEOC’s Chicago District director, 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 their employees are free from discrimination, rather than threatening their workers with termination in an effort to make sure that employees don’t complain.”

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 hot area for the commission, and administrative enforcement and full-scale litigation will continue to focus on retaliatory practices.