©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 59 2. Common Provisions of a Consent Decree Consent Decrees can differ significantly based on a host of factors, including the claims alleged, the size and nature of the employer, the strategic importance of the issue litigated, and the scope of alleged victims impacted by the employer’s action or policy. Decrees can also differ significantly depending the EEOC District bringing the action, and can even differ by the EEOC lawyer negotiating the settlement. There are, however, certain features common to most Decrees: • Injunctive “Follow-the-Law” Provision: A term appearing in virtually any Decree is a requirement that the employer not violate the particular statute at issue in the case for the term of the Decree. While this may seem like an innocuous provision, it technically creates a new cause of action against the employer for any alleged violation of statute during the term of the Decree. For example, if an employee feels they were a victim of discrimination during the Decree, and the EEOC believes that claim is substantiated, not only could the employee file an individual action under the particular statute, but the EEOC could also claim the employer defendant violated the Decree as well, and pursue a separate enforcement action. The impact of these provisions can be so great that certain Courts have, in very rare circumstances, refused to enter a Decree unless the provision is removed. Fla. Ass’n of Rehab. Facilities v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1223 (11th Cir. 2000) (citing Meyer v. Brown & Root Constr. Co., 661 F.2d 369, 373 (5th Cir. 1981) (“An injunction must be framed so that those enjoined know exactly what conduct the court has prohibited and what steps they must take to conform their conduct to the law.”); see, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1200 (11th Cir. 1999) (invalidating an injunction which prohibited a municipality from discriminating on the basis of race in its annexation decisions because it “would do no more than instruct the City to ‘obey the law’…”); Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 897 (5th Cir. 1978) (invalidating injunction that prohibited defendant from violating Title VII in its employment decisions). • Scope and Duration of the Decree: Consent Decrees necessarily include provisions outlining the organizational and/or geographical scope to which it applies, and how long the Decree will remain in effect. The scope can range from as small as a particular department in a single facility to a coast‑to‑coast scope if the alleged offending policy or practice was nationwide. The length of Decrees typically range from as short as one year to as long as five years (and, in some rare instances, even longer). The most typical Decree length demanded by the EEOC is three years. • Monetary Relief: The Decree will include the details of any monetary settlement, both for individual claimants and for class relief where applicable. The monetary relief section of a Decree can be as simple as outlining where and how checks will be sent, to pages of complicated instructions as to how a class settlement will be funded, managed, and issued to a large group of alleged victims. In some instances, employers and the EEOC engage a settlement administrator to assist in the monetary relief distribution process (at the employer’s expense).
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