EEOC Meets English Common Law

The author analyzes a recent case involving the EEOC which is being hailed as an important decision against what he calls “over-zealous prosecution by government entities.” He says it is evidence that adoption of a legal system under which the losing party pays the other party’s legal fees would be beneficial.

Under English Common Law there is the English Rule.  This is applied to the assessment of attorneys’ fees, and provides that the party who loses in court pays the other party’s legal fees.

Nearly every democracy follows this standard.  Well, nearly every democracy, but the United States.

In the US each party pays for their own legal fees unless there is legislation or some contractual obligation to the contrary.  As we all know in the federal system, if a complainant brings an action before the Merit Systems Protections Board or the EEOC, and they prevail where there is an order for back pay under the Back Pay Act, the complainant is entitled to reasonable legal fees.

In a recent decision the court ruled against the EEOC, and ordered it to pay the other parties’ legal fees in the amount of $751,942, which was far less than the company originally claimed.  The case is being hailed as a very important decision of judicial intolerance against an over-zealous prosecution by government entities.  In EEOC v. Peoplemark, Inc., the EEOC alleged that the staffing company’s policy of not hiring individuals with a criminal record had a disparate impact on 258 people.

EEOC found that approximately 92 percent of the employers’ responding to a survey used criminal history information to combat theft and fraud, as well as increased  concerns about workplace violence. Employers’ concern centers around a developing body of tort law and potential liability for negligent hiring and negligent retention where they have a potential liability if their hiring practices lack due diligence in ferreting out problems associated with a person’s past whereas that person is hired and later causes injury or worse to another employee or customer.  The use of this information may be used in very limited circumstances such as making suitability determinations where there is a nexus between the person’s prior criminal record and the duties and responsibilities for which they are being considered. This has become an increasingly difficult area for employers, especially in the federal sector where under HSPD-12 and the PIV II processing requirements, agencies are required to conduct criminal background checks, in addition to the routine NACI background investigations for nearly every new appointee.

EEOC’s Enforcement Guidance, 915.002, dated 25 April 2012 contains that:  “The EEOC enforces Title VII, which prohibits employment discrimination based on race, color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny employment violates Title VII depends on whether it is part of a claim of employment discrimination based on race, color, religion, sex, or national origin. Title VII liability for employment discrimination is determined using two analytic frameworks: “disparate treatment” and “disparate impact.”

A covered employer is liable for violating Title VII when the plaintiff demonstrates that it treated him differently because of his race, national origin, or another protected basis. For example, there is Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.”

The EEOC alleged that the staffing company Peoplemark had a policy where they would not hire a person with a criminal record.  In keeping with its above enforcement guidance the EEOC has repeatedly signaled that it intends to attack these blanket criminal background policies as disproportionally and discriminatorily affecting minorities.

In the Peoplemark case, the Court noted that the Commission had unanimously approved the case against Peoplemark.  There was one major problem, the evidence did not support the assertion and the allegation was not true.  Despite this knowledge EEOC nevertheless pursued the case.

Years ago I was involved in an age discrimination complaint where a person over 50 was not selected for promotion from a merit staffing best qualified list.  We felt the complaint was specious inasmuch as every person on the best qualified list was over 50, and the person selected was two years older than the complainant.  We felt this case was a no brainer.

Not so said EEOC, and on three separate occasions remanded the case back to the agency for further investigation. We were dumbfounded and confused as to what more would it take to demonstrate that there was no discrimination in this particular selection.  It appeared to us that the Commission was trying to find discriminatory behavior where none existed, and the additional investigations were a needless and a gross waste of agency resources and time.

In the private sector employers can proceed to recover legal fees and costs if they can demonstrate that the EEOC pursued a case after there is evidence within the record that the claim is without merit.

I am not aware that such an action has ever been attempted or allowed in the federal sector.

In the opinion of this writer the adoption of the English Rule could serve as a significant counter balance. As a former HR Officer I always advocated for the person’s right to redress a grievance through the established social justice system.  However, once a competent investigation has been completed, if a person continued to pursue an action, where the evidence is weak or non-existent, then the party bringing the action should be held accountable for some or all of the costs incurred.

I believe a survey of federal managers would reflect that a significant majority would say that the present system appears to be overly weighted in favor of the process, as opposed to a legitimate pursuit of social justice.

Hopefully, the EEOC had a large unobligated balance in its budget. As a taxpayer I am appalled that my taxpayer monies had to be spent because of foolish decision making by EEOC, yet at the same time I am enthralled they were brought up short, and now have to pay for their abuse of process.

About the Author

Since retiring in 2011 after nearly 40 years of federal service, Bob Dietrich has been active in training supervisors and HR staff on FLSA and FMLA. He has a three-day course that he can bring to your agency, and he may be reached through the website.