The Equal Employment Opportunity Commission has turned its distribution of press releases to the new media into an effective weapon to force employers to cave in to discrimination charges.
“EEOC has acknowledged that press coverage is part of its deterrent message and mission,” say Mark Wallin, Christopher DeGroff and Gerald Maatman Jr., attorneys with the law firm of Seyfarth Shaw. The commission “has become quite savvy at leveraging the press as a pulpit for publicizing its agenda, especially in litigation,” they note. A visit to the EEOC website vividly depicts the role played by releases in its enforcement scheme.
Ordinarily, a lawsuit filed by EEOC involves two releases—one published when the suit is filed, and the second release when the case is resolved. The strength of the commission’s media statements can vary dramatically depending on the kind of case, whether the case theories align with the EEOC’s strategic goals, and even how it views the employer.
“The more resources expended, and the more closely aligned the claims are with the commission’s strategic goals, the more likely the EEOC will publish an aggressive media statement,” the attorneys explain. Whether or not the litigation is deemed “significant” can play a role in the tone of the media release as well.
The EEOC regional attorneys manual says a lawsuit is “significant” if it is “expected to involve significant monetary or injunctive relief,” “a favorable jury verdict or court decision” or resolution which “is likely to receive national or significant local attention due to the notoriety of the defendant, ongoing media interest in the lawsuit and/or issues involved, or other factors that may have spurred significant media scrutiny.”
At the outset of litigation, the release is likely to have a stern tone regarding the employer’s alleged actions. It begins with a general assertion of the legal claims lodged against the employer, including the statute at issue. For example, in a sexual harassment case, the release may state that a female employee suffered in a hostile work environment created by her supervisor, in violation of federal civil rights law.
The release then will recite the key allegations of discrimination, harassment or retaliation in the complaint. “These allegations are often delivered as fact, not issues that will be proven—or not—during the litigation,” the Seyfarth Shaw lawyers observe. The employer will be described, perhaps sharing a website, states of operation and a brief description of the work done by the business. An EEOC district director or trial lawyer also will be briefly quoted, emphasizing the commission policy underlying the lawsuit.
Employers who are the target of EEOC enforcement need to keep in mind that the commission deploys its news release strategy as both carrot and stick. As the Seyfarth Shaw attorneys put it, “It is not surprising that many employers who have been the subject of the EEOC’s media statements have deemed the commission’s tactics to be unfair and designed to apply extra-judicial pressure to settle litigation.”
When the suit is resolved the commission will publish another release, normally through an agreed-upon consent decree (and the occasional trial win). The tone and content of this statement, however, can vary from highly aggressive to fairly measured, and can even verge on “friendly,” according to the attorneys.
Although the commission is unlikely to allow the employer too much say in the final statement, when negotiating resolution, employers should try to use the commission’s publicity priority as a bargaining chip to achieve the best possible wording of the final release.
“By understanding the commission’s strategic goals, employers will gain a greater awareness of what tone and tenor the EEOC’s statement will take upon resolution, and can prepare accordingly,” the Seyfarth Shaw attorneys stress.