66 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP PART VII: Media and Publicity Elements of an EEOC Case Preceding sections touched on the EEOC’s public statements concerning case resolution, but given the brand and reputation impact these cases may carry for employers, a specific word on the issue is warranted. The EEOC has become quite savvy at leveraging the press as a pulpit for publicizing its agenda, especially in litigation. An employer need only visit the EEOC’s website to understand the role of media statement’s in the Commission’s enforcement process.103 This section discusses what employers can expect from these releases, including typical language, elements, and timing. EEOC’s Publicity Philosophy. The EEOC has acknowledged that press coverage is part of its deterrent message and mission. Notably, in sources as early as the Commission’s 2006 Systemic Task Force report, the EEOC has announced that the “EEOC engage[s] in high impact litigation and publicity efforts that change the workforce status of affected groups and/or improve employment policies, practices, or procedures in affected workplaces.” 104 (See also opening statement of Sen. Alexander regarding the Commission’s apparent strategy, in filing certain lawsuits, to “achieve a maximum amount of publicity.” 105) The EEOC’s litigation media statement is one of the tools in the Commission’s toolbox that it wields with an aim to achieve its strategic enforcement goals. Often Two Media Statements During The Course Of EEOC Initiated Litigation. In the life of a lawsuit initiated by the EEOC, there will ordinarily be two media statements. The first will be published when the suit is filed, and the second if the case is resolved. Although all media statements published upon filing of a suit will have roughly the same cadence and tone, those published upon resolution can vary greatly. Depending on the posture of the case, whether the case theories align with the EEOC’s strategic goals, and even how the EEOC views the employer, media statements can vary dramatically. Initial Media Statement. A media statement issued at the outset of the litigation tends to have a stern tone, regarding the alleged actions of the employer. The statement will lead off with a general assertion of the legal claims lodged against employer, including the statute at issue. For example, the statement may declare that a female employee suffered through a hostile work environment at the hands of her supervisor, in violation of Title VII. The statement will then go on to recite the key allegations of discrimination, harassment, or retaliation proffered in the complaint. These allegations are often delivered as fact, not issues that will be proven—or not—during the litigation. Often times the statement will also describe the employer, perhaps sharing a website, states of operation, and a brief description of the work done by the business. Finally, the applicable District Director and/or one of the trial attorneys for the matter will offer a quote in the nature of a sound bite concerning the allegations, which will emphasize the Commission policy underlying its prosecution of the lawsuit. Notably, these statements include entirely unproven allegations, many of which are often later proven inaccurate or outright false (and never with an EEOC retraction or modification of the press release). It is not surprising that many employers who have been the subject of the EEOC’s media statements have deemed the Commission’s tactics to be unfair and designed to apply extra-judicial pressure to settle litigation. 103 U.S. Equal Employment Opportunity Commission, EEOC Newsroom, https://www.eeoc.gov/newsroom/search. 104 U.S. Equal Employment Opportunity Commission, SYSTEMIC TASK FORCE REPORT To the Chair of the Equal Employment Opportunity Commission (Mar. 2006), https://www.eeoc.gov/systemic-task-force-report-chair-equal-employment-opportunity-commission. 105 U.S. Government Publishing Office, Transcript from Senate Hearing 114-165, Examining the Equal Employment Opportunity Commission, Focusing on Examining EEOC’s Enforcement and Litigation Programs (May 19, 2015), https://www.govinfo.gov/content/pkg/CHRG-114shrg94782/html/CHRG114shrg94782.htm.
RkJQdWJsaXNoZXIy OTkwMTQ4