United States: EEOC's "Mission Accomplished" – The Anatomy Of An EEOC Media Statement

Seyfarth Synopsis: The EEOC operates with limited resources, yet has the daunting responsibility of enforcing an alphabet soup of anti-discrimination laws. 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.

In the life-cycle of EEOC initiated litigation, the agency will almost invariably issue two media statements: one issued when the suit is filed, and another when the suit is resolved. But not all media statements are the same. 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. This post 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, the Commission's 2006 Systemic Task Force report provides 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." (See also opening statement of Sen. Alexander regarding the Commission's apparent strategy, in filing certain lawsuits, to "achieve a maximum amount of publicity.")

The EEOC's litigation media statement is one of the tools in the Commission's toolbox that it will wield 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.

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. In the most recent batch of EEOC filings, for instance, which occurred in September, combating sexual harassment and discrimination ("me too") is the most common EEOC policy articulated. 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 a rare trial win), the EEOC will publish yet another media statement. The tone and content of this statement, however, can vary from highly aggressive to fairly measured, and can even verge on "friendly." The direction taken by the EEOC in this statement will depend 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. Some insight into the Commission's process can be found in the Regional Attorney's manual, published here. Notably, before the resolution of "significant litigation" a Regional Attorney is 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 is deemed "significant" may well play a role in the tone of the media release as well.

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, but also a detailed description of the monetary and programmatic relief obtained in the consent decree. For example, in a recent matter involving an Illinois restaurant, the EEOC's media statement set forth that "numerous employees ... were routinely sexually harassed by coworkers and managers, including offensive sexual comments, groping, physical threats, and, in one instance, attempted forced oral sex with a management employee." The statement went on to detail the programmatic relief, followed by harsh admonishments from a Regional Attorney and District Director, specifically:

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 a recent 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 scant details concerning the claims brought. Further, after a short description of the programmatic relief contained in the lone statement of a Regional Attorney was far more benign:

And on occasion, it will even boarder on "friendly" — including a statement of appreciation to the employer for its cooperation in resolving the litigation. In a suit brought in Wisconsin, filed and settled within five months, the Commission was quoted as stating:

Although "friendly" media statements are the exception, not the rule, the EEOC is more likely to publish such a statement to incentivize other employers to similarly resolve enforcement actions.

A Word On Conciliation Media Statements

Historically, the EEOC has generally issued media statements for lawsuits only, as conciliation is intended to be a confidential process. Indeed, one of the chief reasons for employers to engage in pre-suit conciliation is the carrot of confidential resolution. Interestingly, however, we have seen a trend of the EEOC issuing presumably agreed-upon media statement for matters settled in conciliation. Accordingly, the employer has a degree of leverage in negotiating these publications. As one might imagine, conciliation media statements are, thus, more positive in tone. Further, on occasion, the employer may also make a statement, which at minimum disclaims any liability — something rarely, if ever, allowed in a litigation media statement.

Elements Of A Media Statement

Regardless of the tone, EEOC media statements are consistent in their basic elements and structure.

First, there will be a headline crafted to be eye-catching, such as "Paramount Mailing Company Punished Female Employees for Complaining About Abuse, Federal Agency Charges." Below is a word cloud, highlighting the most common words and phrases employed by the EEOC in its 2018 headlines. Not surprisingly, in the current environment, "Sexual" and "Harassment" play prominently.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.