©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 78 77 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 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.117 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.” 118 (See also opening statement of Sen. Alexander regarding the Commission’s apparent strategy, in filing certain lawsuits, to “achieve a maximum amount of publicity.” 119) 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. Typical 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. Media Statement Upon Resolution. When a suit is resolved, typically through an agreed upon Consent Decree (but occasionally after confidential conciliation or a rare trial win), the EEOC will publish yet another media statement. The tone and content of this statement, however, can vary from extremely aggressive 117 U.S. Equal Employment Opportunity Commission, EEOC Newsroom, https://www.eeoc.gov/newsroom/search. 118 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. 119 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. to fairly measured, and can even verge on “friendly.” The direction taken by the EEOC in this statement has historically depended largely on the resources devoted to the litigation, how contentious the litigation was, as well as whether the claims and allegations at issue align with the Commission’s strategic goals. The Commission used to publish its process in the Regional Attorney’s manual, but that document has been rescinded and replaced by a document titled “Dissemination of Information to the Public about EEOC Cases in Litigation.” 120 In year past, before the resolution of “significant litigation” a Regional Attorney was required to advise the Office of the General Counsel. The Commission defines “significant” to mean a lawsuit “expected to involve significant monetary or injunctive relief”; “a favorable jury verdict or court decision”; or resolution which “is likely to receive national or significant local attention due to the notoriety of the defendant, ongoing media interest in the lawsuit and/or issues involved, or other factors that may have spurred significant media scrutiny.” Whether or not the litigation was deemed “significant” played a role in the tone of the media release as well. The current protocol released on May 21, 2024, does not indicate the internal process for deeming certain cases significant, or what role the Office of the General Counsel plays in press releases. The policy simply states that “it is EEOC policy to issue a press release each time the EEOC files a case in court, resolves a lawsuit, or experiences other significant litigation developments.” The EEOC also indicates that it takes individuals’ privacy concerns into account, and will not release an individual’s name or personal identifying characteristics in a press release without express consent. Historically, the more resources expended, and the more closely aligned the claims are with the Commission’s strategic goals, the more likely the EEOC will publish an aggressive media statement. The hallmarks of such a statement will be not only the recitation of the most salacious of the allegations (often those that remain contested but offered as fact), but also a detailed description of the monetary and programmatic relief obtained in the Consent Decree. For example, in a representative matter involving a Brooklyn-based company supplying home health aides, the EEOC’s media statement set forth that “[the company] routinely acceded to patients’ racial preferences when making home health aide assignments, including removal of Black and Hispanic aides. Those aides would be transferred to a new assignment or, if no other assignment were available, lose their employment completely.” 121 The statement went on to detail the programmatic relief, followed by harsh admonishments from a Regional Attorney and District Director, specifically: “ Employers cannot make job assignment decisions based on a client’s preference for a worker of a particular race or national origin,” said EEOC Regional Attorney Kimberly A. Cruz. “It is imperative for employers to have policies, training, and other safeguards in place that help prevent a client’s prejudices from influencing their employment decisions.” Yaw Gyebi, Jr., director of the EEOC’s New York District Office, added, “In the 60 years since the enactment of Title VII, the EEOC has remained vigilant and committed to the elimination of discrimination in the workplace, which includes addressing employer practices which accede to client’s discriminatory preferences. The EEOC will continue to investigate allegations against employers who make job assignments based on such improper bases and obtain appropriate relief for those victims who are harmed by such practices.” Moving down the spectrum, the Commission may take a more measured tone where the litigation is less protracted and the claims are not necessarily consistent with its strategic goals. For instance, in an ADA case settled by the EEOC concerning an employer’s alleged discriminatory termination of a disabled employee, which had been pending less than a year, the media statement provided few details concerning the claims brought.122 Further, after a short description of the programmatic relief contained in the lone statement o a Regional Attorney was far more benign: 120 U.S. Equal Employment Opportunity Commission, Dissemination of Information to the Public about Cases in Litigation, https://www.eeoc.gov/ regional-attorneys-manual/c-dissemination-information-public-about-cases-litigation. 121 Press Release, U.S. Equal Employment Opportunity Commission, Four Seasons Licensed Home Care Agency to Pay $400,000 in EEOC Race and National Origin Discrimination Lawsuit (Sept. 24, 2024) https://www.eeoc.gov/newsroom/four-seasons-licensed-home-care-agency-pay-400000eeoc-race-and-national-origin.. 122 Press Release, U.S. Equal Employment Opportunity Commission, Otto Candies to Pay $165,000 to Resolve EEOC Disability Discrimination Suit (Aug. 23, 2018), https://www.eeoc.gov/newsroom/otto-candies-pay-165000-resolve-eeoc-disability-discrimination-suit.
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