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The Labor and Employment Section of the Michigan bar held
its annual spring meeting last Thursday, and the topic was A backstage pass to
the EEOC. The Detroit office had over 20 representatives attend.
The round-table topics were intake and investigation; mediation and
conciliation; and litigation.
An overview of the office was given by the various representatives. The
Detroit office receives between 2300-3000 charges a year. It has 17
investigators; 2 full time mediators; and 5 attorneys. The office is
affected by the sequestration, and all employees have scheduled furloughs.
In addition, the office is subject to a 3 year hiring freeze.
One point which was emphasized at each discussion group is the agency's
commitment to the agency's Strategic
Enforcement Plan. In particular, the agency is seeking out the LGBT
community for charges since the agency believes such discrimination is
prohibited under Title VII under the theory of sexual stereotyping consistent
with the Supreme Court's decision in Price Waterhouse v. Hopkins [an enhanced version of this opinion is available to lexis.com
Other areas of emphasis are pregnancy discrimination; reasonable
accommodation under the ADA; mandatory arbitration and the shortening of
statute of limitations; and equal pay(although only 1% of the charges filed
allege equal pay violations.) The emphasis on the so called "no
fault" leaves of absence with mandatory termination after the passage of a
set period of time as an ADA violation are not being emphasized as much as they
once were. In Detroit, the emphasis is being placed on discrimination
against immigrants; LGBT discrimination; and systemic harassment discrimination
with emphasis on fast food chains and small restaurants.
The intake/charge investigation session reviewed the process. At intake,
approximately 2 hours are spent with the charging party. The ability to
articulate the claims and credibility are assessed at this time.
Case are categorized as A,B, and C. With A being litigation worthy
and C being without merit. The charges are constantly being assessed as
the investigation proceeds. Each investigator is assigned to an attorney
who reviews and assists as needed. The investigators review their cases
on a monthly basis with the attorney and other supervisors. When a charge
involves one of the subjects of the strategic enforcement plan, the attorney
will become more involved.
Other points which were discussed were the desire that respondents review and
follow the green sheet included with the charge concerning position statements.
Fact finding is used when the investigator wants both sides to hear the
other's position. It is used in B cases but not in A cases. The
investigator decides when to schedule it. The investigator will review
the respondent's policies even if not directly involved in the charge to see if
there may be other violations. Investigators prefer taking affidavits
from company witnesses but are rarely allowed to do so.
With respect to litigation, the attorneys emphasized their interaction with the
investigators and the ongoing review that occurs during the investigation.
With respect to the selection of cases for the EEOC to litigate, the
office looks for cases that are covered by the strategic enforcement plan and
cases where the agency wants to establish precedent. The agency wants to
be able to determine strategy rather than a have a private litigant pursue a
case and will litigate even where only one employee is involved.
The meeting provided a rare opportunity to meet and to interact with all levels
of the Detroit office. This interaction will help to improve the
communication during case processing.
For additional Labor and Employment law
insights from John Holmquist, visit the Michigan
Employment Law Connection.
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