Labor and Employment Law

A Conversation with the EEOC

 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 subscribers]. 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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