EEOC: Trolling for plaintiffs

published in McAfee & Taft EmployerLINC | September 29, 2014

By Charles S. Plumb

It’s no secret to employers that the Equal Employment Opportunity Commission has taken a more provocative and confrontational approach to investigating and litigating claims of employment discrimination. But the EEOC’s treatment of Case New Holland, Inc. takes “pushing the envelope” to a new level. To make matters worse, a federal court has OK’d the EEOC’s tactics.

The investigation

In March 2011, the EEOC’s Philadelphia district director informed Case that the agency was launching a nationwide investigation of the employer and its related entities for possible violations of the Age Discrimination in Employment Act (ADEA). As part of that investigation, beginning in March through November 2011, the EEOC requested Case to produce records regarding the hiring, training and employment status for all employees of Case and its related entities. The agency’s requests for Case records were enormous.  In November, Case representatives and EEOC representatives met to sort out the pending data requests.

In January 2012, Case produced to the EEOC a mountain of data. According to the employer, it provided the EEOC with at least 5,707 pages of “hard copy” documents and 600,000 electronic records totaling 66,630 pages of documents. In response to the EEOC’s multiple record requests, Case estimated it gave the agency more than 600 megabytes of information.

Then nothing happened. It was all quiet … until June 5, 2013.

You’ve got mail

Case employees who reported to work on June 5, 2013, and checked their email inboxes found a warm greeting from the EEOC. The agency sent emails to more than 1,000 Case employees’ business email addresses around the country stating it was investigating accusations of employment discrimination against the employer. The email did not disclose the accusations were limited to age discrimination, and the EEOC did not advise the recipients that no finding of discrimination had been made against their employer. The email included an Internet link to a questionnaire, which employees were directed to complete. The questionnaire asked the employees to include their contact information. From Case’s standpoint, the EEOC’s email blast and questionnaire to its employees were misleading and unfair, and were an improper attempt by the agency to generate more discrimination claims.

Court: No harm, no foul

Case filed a lawsuit in federal court against the EEOC over its actions. In addition to being misleading and amounting to an improper solicitation of lawsuits, Case complained that the EEOC’s mass email and questionnaire sent to its employees at work violated the Constitution, federal regulations, and the EEOC’s own compliance manual. Ready for the kicker? On September 14, 2014, the federal court dismissed Case’s lawsuit against the EEOC, concluding the employer could not show any harm caused Case by the email blast.

Buckle up. With court rulings such as this, the EEOC’s current trajectory of provocative and confrontational approaches to employment discrimination charges and investigations is likely to continue.