In a bind

The Equal Employment Opportunity Commission doesn’t rattle its saber very often, but when it does, watch out. The EEOC is relentless in litigation. When it does settle, the defendant often pays a hefty sum to make the case go away.

The Supreme Court just made it easier for the anti-discriminatory watchdog to take employers to court. In January’s 6-3 ruling, the High Court said the EEOC can, on its own, sue for damages such as back pay and reinstatement in discrimination cases, even when the employee signed a binding arbitration agreement. The EEOC can also seek compensatory and punitive damages on behalf of the victim, the court ruled.

Cases like this will be rare but potentially costly to an employer, says Cleveland attorney George Crisci, a member of Ulmer & Berne’s employment and labor law group.

“The EEOC only gets involved in a small number of cases,” says Crisci, “But when it wants to go to court, there’s very little an employer can do to limit the EEOC’s ability to obtain the remedies for the victim.”

Before the EEOC can file suit, it needs to find probable cause to pursue an investigation. It’s here, in the early stages of a claim, that employers can help prevent litigation.

“Take a charge very seriously,” Crisci says. “Devote whatever resources are necessary to presenting its case to the investigators to get a no probable cause determination.”

Here are Crisci’s recommendations for responding to an EEOC charge.

Don’t fight
An employer needs to be as open and honest as possible during an EEOC investigation, Crisci says.
“If you ever convey to them that the employer has something to hide, they will take it to the next step,” Crisci says. “I do not ever pick a fight with them.”

Control the spin
Deliver all information the EEOC requests, and do it promptly. The commission will most likely request from the employer a position statement detailing what happened to lead up to the employee termination. Include all supporting documentation.
“If something bad comes out, it’s always best that the employer be the person that tells the EEOC because they can put a friendly slant on it,” Crisci says. “You don’t want to run the risk to have somebody else do it who is not friendly to the company.”

Know your rights
If you have an arbitration agreement with the employee, enforce it. If you get a favorable determination in arbitration, it could limit the damages you have to pay, even if the EEOC pursues a lawsuit.

How to reach: Ulmer & Berne LLP, (216) 621-8400

Waffle wrangle

The Supreme Court’s recent ruling that the EEOC could pursue a lawsuit despite a binding arbitration agreement spawned from a simple discrimination complaint.
The claim was from a former Waffle House cook in South Carolina who suffered a seizure on the job. The cook was discharged and filed a complaint with the EEOC claiming disability discrimination. He refused to enter arbitration with Waffle House.

In the end, it was a mixed victory for Waffle House. The employee was obligated to participate in arbitration under a lower court’s ruling, which is what Waffle House had requested. But the suit from the EEOC was allowed to stand, which most likely cost the diner chain a lot of waffles. How to reach: Ulmer & Berne LLP, (216) 621-8400