60 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP • Modification of Internal Practices and Procedures: The EEOC typically requires employers to ensure their internal processes, policies and procedures comply with the law. In an employment discrimination case, these changes generally impact recruitment, promotion, compensation, training, and other human resources policies. A diverse assortment of institutional changes may be required by the EEOC. In some cases, the EEOC will demand changes to an employer’s policies that go beyond what is necessarily required by law. • Mandatory Anti-Discrimination Training: Most Decrees also include mandatory EEO training programs. The programs most often consist of diversity, racial/gender sensitivity, and non‑harassment training. Training of senior executives and management is nearly always required, but an employer also may be directed to train nearly all of its employees. The scope and cost of such training can be substantial. • Reporting and Monitoring: Virtually all Decrees have some ongoing reporting and monitoring requirements. At a minimum, an employer ordinarily will be required to notify the EEOC when it has complied with certain provisions (e.g., a report on when payment was issued, when training has been conducted, the timing of policy revisions, etc.). The reporting provisions, however, can be far more invasive, requiring employers to update the EEOC on any similar internal claims of discrimination and how they were resolved, providing applicant flow and hiring data in a recruiting case, and detailed reports of any discipline that has been administered if discipline was at issue in the underlying case. The Decree often includes a commitment that the employer will retain and produce documents concerning Decree compliance, will make employees available for interviews, and could even allow the EEOC to access the employers worksites. • Posting: In almost all cases, the employer is required to post a notice visible to all employees that the EEOC brought a lawsuit, that it was resolved via a Consent Decree, explaining that the employer is forbidden from violating certain EEO laws, and providing contact information for the EEOC. There are, of course, other more “exotic” forms of relief found in Decrees, including set hiring efforts, public statements by company leadership encouraging diversity, letters of apology to alleged victims, the hiring of outside experts to guide policy review, the formation of new internal organizations and positions to ensure Decree compliance, and so on. All terms of a Consent Decree are subject to negotiation, and employers are not compelled to agree to any provision. As will be discussed below, the terms the EEOC demands in settlement are often far broader than injunctive relief that is typically ordered by a District Court even when the EEOC is successful a trial. NOTABLE FY 2023 RESOLUTIONS THROUGH CONSENT DECREES EEOC v. Fischer Connectors Inc., 1:22-cv-03884 (N.D. Ga.) Fischer Connectors, Inc., a Swiss-based national manufacturer of circular connectors used in medical devices, agreed to pay $460,000 to settle an EEOC suit claiming the company fired a human resources director who raised concerns that the company was systematically terminating older workers in favor of younger, less-experienced hires in violation of the Age Discrimination in Employment Act (ADEA). According to the EEOC, the human resources director witnessed the company turn down qualified older employees in favor of less-qualified younger employees, attempted to inform the company about anti-discrimination laws in the U.S., and was subsequently terminated. In addition to monetary damages, Fischer signed a 2-year Consent Decree that requires Fischer to train all U.S. employees and managers on the ADEA, distribute its ADEA policies to all employees, post a notice about federal anti-discrimination laws and employee rights in the workplace, and allow the EEOC to monitor how Fischer handles future ADEA discrimination complaints. EEOC v. Focus Plumbing, LLC, et. al., 2:21-cv-01758 (D. Nev.) Focus Plumbing, LLC agreed to pay $500,000 and, along with other defendants Focus Electric, LLC, Focus Concrete, LLC, Focus Fire Protection, LLC, and Focus Framing, Door & Trim, LLC, agreed to provide injunctive relief to settle an EEOC suit claiming that a class of Spanish-speaking female employees were subjected to a hostile work environment. According to the EEOC, the alleged harassment included unwanted touching, groping,
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