UNWELCOME GUESTS
Making The Best Of An EEOC Investigation
Jo Ann Bass had it right when she told a reporter, "The government should have
better things to spend its money on." Bass and her stepmother, Grace Weiss, owners of
Joe’s Stone Crab, have spent the last seven years battling the Equal Employment
Opportunity Commission (EEOC), the federal anti-discrimination agency.
Female or minority business owners, or those with proven track records of
nondiscriminatory employment practices, who believe they are safe from EEOC censure may
have lulled themselves into a false sense of security. Bass and Joe’s Stone Crab, the
landmark Miami Beach restaurant, are proof positive of that.
In July 1997, the U.S. District Court for the Southern District of Florida found that
Joe’s Stone Crab had discriminated against women when hiring servers for the
restaurant even though it found no evidence of an express policy of excluding women from
food server positions. In fact, the court praised the owners and managers as
"courageous in opposing overt discrimination." Despite this, the court concluded
that the evidence showed that Joe’s management "acquiesced in and gave silent
approbation to the notion that male food servers were preferable to female food
servers."
For EEOC investigators, discrimination is a numbers game. If a certain favored group is
underrepresented in a workplace, in the opinion of EEOC, discrimination must be the
explanation. EEOC investigators may even find evidence of discrimination if members of the
under-represented group aren’t applying for jobs.
In some of the more egregious EEOC investigations, agency personnel seemed determined
to find discrimination where none existed. In pursuit of its objectives, the commission
enjoys a great deal of power and discretion, not just in investigating employers, but also
in initiating the investigations themselves.
Mixing it up with EEOC is not only expensive and aggravating; it can harm the
reputation and goodwill a business enjoys. Fighting a charge of discrimination from EEOC
can seem like a complex and intricate legal waltz, the steps of which are not easily
learned.
Finding Discrimination
EEOC has established certain recordkeeping requirements. For example, the commission
requires all employers with 100 or more employees to file an employer information report,
or EEO-1. EEOC may perform a statistical analysis of this information, and, based upon
that information, determine that an investigation into an employer’s employment
practices is warranted.
EEOC requires employers to maintain certain records, especially those that may be
relevant to "the determination of whether unlawful employment practices have been or
are being committed." EEOC will expect to review any such records in an on-site
investigation and may seek the production of such documents in a request for information.
It may then draw any number of conclusions from this information.
For example, EEOC may require employers to provide what it calls applicant flow data,
which is information on who applied for what jobs. When EEOC investigated Joe’s Stone
Crab, it found fault with the procedure Joe’s had used for years to interview
applicants for server positions. Joe’s would hold what it termed a "roll
call" when it was preparing to hire. The date for the roll call was advertised
primarily via word of mouth, with server applicants showing up on the scheduled day for
interviews. Few women were hired because few women applied.
Commission investigators argued that this applicant flow data was skewed. According to
the investigators, very few women applied for server positions at Joe’s because of
its "reputation" for not hiring women for those positions and, thus, Joe’s
recruitment of new employees was discriminatory.
The court agreed with EEOC’s conclusion that Joe’s had discriminated against
women based on a statistical disparity between the number of women hired at Joe’s and
the number of women available in the labor pool. This is just one example of how records,
which at first glance appear supportive of the employer, may not be interpreted that way
by EEOC.
No Complaints Necessary
Employees, past and present, are often the source of an EEOC investigation, but the
commission doesn’t need an actual complaint of discrimination from a past or current
employee to initiate an investigation of an employer.
EEOC has a weapon it calls the commissioner’s, or systemic, charge that it wields
"to raise the level of compliance within industries and occupations having a high
incidence of non-compliance" with any of the statutes
EEOC enforces. Any one of the five EEOC commissioners may file a charge against an
employer, regardless of whether a specific individual has complained of
discrimination.
EEOC will also file a commissioner’s charge based on information commission
personnel obtain in the course of investigating individual charges. Some of these charges
also result from leads supplied by the media and members of the community. Additionally,
any person or organization may request the issuance of a commissioner’s charge.
Unions have been known to use this tactic as part of the corporate campaigns they wage
against employers they can’t unionize by more traditional means, such as an employee
election.
A commissioner may file an EEOC charge on behalf of a group of individuals believed to
have been the victims of discrimination. There is no requirement that a member of the
aggrieved class authorize a commissioner’s charge; EEOC can even act when the
aggrieved individuals have refused to cooperate.
Joe’s Stone Crab was charged with sex discrimination even though, according to
co-owner Jo Ann Bass, there was no indication that any woman had accused the restaurant of
discriminatory practices. Nevertheless, the investigation and litigation have lasted well
over seven years and have already cost Joe’s over $650,000 in attorney’s fees
alone. Joe’s will also have to pay a yet-to-be-fully-determined amount of damages.
Another recent high-profile discrimination case arising out of EEOC’s Miami office
(EEOC also has a Florida field office in Tampa) was the one against the office of the
state’s top legal officer. EEOC has come in for some scathing criticism from the pen
of Attorney General Bob Butter-worth over its handling of the accusation filed by Elaine
Thompson, a former assistant attorney general in south Florida.
In a letter to the director of the Miami office, Butterworth wrote, "It is clear
that the EEOC here in Florida now has a regional office running out of control." The
attorney general then equated the commission with the Internal Revenue Service in terms of
its arrogance and to a "Star Chamber in which the accused is handed a
‘confession’ and told ‘Sign here.’ "
According to Butterworth deputies, EEOC investigator told them that the commission had
received other complaints besides Thompson’s but refused to identify the sources of
those other complaints. As Butterworth observed, "Even the commonest criminal in the
nearest county jail has the right to know who his accusers are so he can defend
himself."
Thus, employers should be aware that they may not even be informed of who the alleged
victims of discrimination are and may be subject to a commissioner’s charge even if
there are no identified "victims."
Scattershot Investigation
Once an investigation begins, EEOC gathers evidence in two ways. First, it will ask the
employer to supply certain documents and position statements within a specified period of
time. It may also request an on-site examination of the employer’s workplace for the
purpose of face-to-face interviews, examination of documents, or inspection of facilities.
These documents and position statements must be prepared with great care, and not only
because they may be used in the EEOC investigation. They will also be made available to
lawyers for the other side and, thus, may be used as evidence against the employer in any
subsequent litigation.
Employers run into numerous problems with the investigatory process. First, the
investigators often do not limit themselves to information specifically related to charges
they are investigating. Instead, they may submit a standardized request for all kinds of
documents and information that have nothing to do with the allegations they are
investigating. Efforts by employers to curtail the EEOC investigatory process based on
claims of undue burden have usually been unsuccessful. If the employer refuses to provide
the documents requested, EEOC might simply subpoena the information.
The agency’s investigatory process has often been criticized by frustrated
employers. For example, the EEOC investigator may draw inferences from the documents
produced that the employer finds questionable, and may or may not interview all of the
individuals the employer believes relevant and necessary to making an informed
determination of the claims being investigated. Attorney General Bob Butterworth expressed
his irritation with the investigatory process, citing what he called "professional
sloppiness, inaccuracies, improper application of the law, and an absence of anything
resembling internal oversight." However, an employer’s recourse is limited,
since complaints are made to EEOC itself or to the court during any resulting litigation.
Employers are generally not permitted to file suits against EEOC.
The potential result of an EEOC investigation of a charge is litigation in federal
court. However, since EEOC’s investigation of a charge may be broader than the actual
allegations in that charge, litigation may be permitted on claims that were not actually
included in the EEOC charge. Thus, an employer may find itself defending allegations in
federal court that were never raised in the EEOC charge, and that were based upon an
investigation the employer believes was inappropriate or inadequate.
Negotiating from Weakness
Conciliation is a stated statutory goal of the EEOC procedure. However, settlement
negotiations with EEOC differ in a number of ways from those conducted with a private
plaintiff. There are agency regulations that must be followed that severely limit the
employer’s negotiating power. Additionally, EEOC may not be interested in settling
with the employer for damages; it may prefer to seek injunctive relief or structural
changes in an employer’s workplace.
For example, when the judge ruled against Joe’s Stone Crab on liability in 1997,
he reserved jurisdiction to conduct a trial on damages and other affirmative and
injunctive relief. In a subsequent hearing, the judge ordered Joe’s to take action to
eliminate what he determined was continuing discrimination. Those measures included a
requirement that Joe’s notify the National Organization for Women when it was
preparing to hold its next roll call. Furthermore, Joe’s was also required to place
ads for the roll call, with the judge outlining exact specifications concerning the
wording of the ad and even the size of the type. The judge even dictated the wording of
the recorded telephone message applicants would hear when they responded to the ads.
The court also required Joe’s to utilize certain detailed procedures in the 1997
roll call that, according to the restaurant owners, increased their costs for the roll
call from $650 to $100,000. At the trial on damages in April of this year, EEOC not only
sought monetary damages on behalf of six individual women; it also asked the court to
monitor the company’s hiring processes for the next five years. As of this writing,
no decision had been issued on damages.
Many employers find EEOC less than cooperative during the conciliation process. When
Attorney General Butterworth’s deputies went to a conciliation conference, they were
only able to meet with one non-lawyer investigator. According to press reports, they were
told the supervisor was "too busy" to meet with them.
According to Butterworth, an EEOC official told his deputies that the attorney
general’s office was in compliance with federal law with respect to the numbers of
women and minorities working there. The official, however, refused to put that statement
in writing, a result the attorney general sought to combat the negative publicity he had
already received when the results of the confidential EEOC investigation were leaked to
the press.
What To Do
Dealing with EEOC is a complicated process. At all stages it should involve
consultation with and assistance from an attorney who is experienced with the workings of
EEOC. If you would prefer to deal with the EEOC one on one, you would still be well
advised to consult with an experienced labor and employment law attorney for advice on how
to proceed. Employers must remember that information obtained during an EEOC investigation
may be used against them in any subsequent litigation, making competent legal advice a
necessity throughout the investigation.
Employers should also seek legal advice before communicating with EEOC in writing
because such communication can be used against them in the future. One document that
became a crucial piece of evidence against Joe’s Stone Crab was a letter written by
co-owner Grace Weiss to U.S. Sen. Connie Mack (R-Florida) in 1992. Weiss wrote, "I
cannot explain the predominance of male servers, but perhaps it has to do with ... the
ambiance of the restaurant." In referring to this letter in the order granting
summary judgment against Joe’s, the court held that "Grace Weiss provided a clue
to the true cause [of the small number of female servers] with her reference to the
‘ambiance of the restaurant.’ " EEOC will use the most innocent remarks as
evidence against an employer.
The best defense against EEOC can be erected before it even makes an entrance.
Employers should develop and promulgate policies setting forth a position of zero
tolerance for discrimination, making it clear that the organization will not tolerate
prohibited discrimination or harassment of any kind. These policies should be prominently
posted in the workplace and distributed to employees.
When employees are given copies of the policy, they should be required to sign a
document acknowledging that they have read, understood, and agreed to comply with the
policies. Part of the court’s holding in Joe’s Stone Crab focused on the fact
that Joe’s had no policy specifically prohibiting discrimination, and advertisements
for the roll call failed to state that the company was an equal opportunity employer. In
criticizing the employer’s delegation of hiring decisions to male subordinates, the
court noted that the delegation was done "without the benefit of policies or
guidelines."
Pro-active steps by an employer to evaluate its employment policies, to promulgate and
enforce effective anti-discrimination policies, and to monitor its workforce will go a
long way in protecting the employer in the event of an EEOC investigation or litigation.
An awareness of the rights of the employer and EEOC during an investigation is essential
in protecting the employer.
John-Edward Alley and Amy W. Littrell are with the law firm of Alley and
Alley/Ford & Harrison, LLP, where Alley is a partner.
Sept/Oct 1998 -- Florida Business Insight, PO Box 784, Tallahassee, Fla.
32302
(850)224-7173, insight@aif.com
