eeoc bloomberg

The Equal Employment Opportunity Commission just got slapped down again.

The latest blow: A federal district court in Manhattan tossed an EEOC lawsuit against media giant Bloomberg LP, saying the way the agency conducted the pregnancy discrimination case “blatantly contravened” the requirements of federal anti-bias law.

Basically, the judge echoed the message several other courts had delivered to the EEOC in rulings over the past year: Don’t sue first and ask questions later.

Judge Loretta Preska blasted the agency for failing to fully investigate the cases of the 29 Bloomberg employees represented in the lawsuit, and then ignored Bloomberg’s attempts to settle the dispute. Federal law requires that individual claims be thoroughly investigated and settlement efforts be undertaken before resorting to court action, she emphasized.

“Congress surely did not intend that employers, even those whose workplaces might be rife and with [discrimination] face the moving target … that [Bloomberg] faced in both the administrative and legal phases of this dispute,” the judge wrote.

The judge added, “The Court doesn’t impose this severe sanction lightly and recognizes that [some of the Bloomberg employees'] claims may be meritorious but now will never see the inside of a courtroom.” But she said not ruling as she did would “be sanctioning a course of action that promotes litigation in contravention” of the EEOC’s responsibility to deal with disputes administratively before heading to court.

The case is EEOC v. Bloomberg LP (link courtesy of  Seyfarth Shaw).

Is there a pattern emerging here?

Judges haven’t gone easy on the EEOC recently.

Recently, U.S. District Court Judge Roger W. Titus slammed the EEOC for bringing suit against the Freeman Companies, a national events marketing organization. The agency had alleged Freeman ”rejected job applicants based on their credit history and if they have had one or more of various types of criminal charges or convictions.”

The judge said the “the story of (the lawsuit) has been that of a theory in search of facts to support it.” He also questioned the employment statistics provided by the agency, saying the data contained “a plethora of errors and analytical fallacies.”

“While some specific uses of criminal and credit background checks may be discriminatory and violate the provision of Title VII, the EEOC bears the burden of supplying reliable expert testimony and statistical analysis that demonstrates disparate impact stemming from a specific employment practice before such a violation can be found,” the judge wrote. “… (T)he EEOC has failed to do so in this case.”

The judge noted two similar cases brought by the EEOC — one against carmaker BMW and the other against retail chain Dollar General Corp. ”By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers,” the judge wrote.

Just weeks earlier, the EEOC was ordered to pay an Iowa-based trucking firm $4.7 million in attorney’s fees and expenses.

The case harkened back to 2007, when the agency filed a class-action sexual harassment lawsuit against CRST Van Expedited, Inc.

The case wound its way through the court system and eventually the 270 women in the original case were whittled down to one — who later settled her case for $50,000..

Last year, a district court ordered the EEOC to pay the company $4.5 million for their “sue first, ask questions later” tactics.”

The EEOC appealed, and the court again ruled in the company’s favor, writing “the EEOC cannot avoid liability for attorneys’ fees simply by artfully crafting a complaint using vague language to hide frivolous allegations.”

And last summer, the EEOC was ordered to pay $752,000 for filing an ‘unreasonable’ lawsuit against Peoplemark regarding the firm’s criminal background check policy.
The agency claimed the company’s policy had a disparate impact on African-American and Hispanic employees — even though the company produced statistical analysis proving that wasn’t the case. Still, the EEOC continued to pursue the matter in court.
A judge later wrote that “once the EEOC became aware that its assertion that Peoplemark categorically refused to hire any person with a criminal record was not true, or once the EEOC should have known that, it was unreasonable for the EEOC to continue to litigate on the basis of that claim, thereby driving up defendant’s costs, because it knew it would not be able to prove its case.”



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