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Employers: Be prepared for an EEOC lawsuit

by Kevin J. Skelly

Employers sued by the Equal Employment Opportunity Commission (EEOC) often face more challenging demands for discovery and settlement agreements than companies facing lawsuits filed by individual employees. Let’s look at what you can expect if the EEOC comes knocking at your door.

How an EEOC investigation works
Employers are often all too familiar with being sued for employment discrimination by current or former employees. However, you may not be as familiar with lawsuits filed by the EEOC, the agency charged with enforcing federal antidiscrimination laws. Under federal law, it’s unlawful to discriminate against employees or job applicants because of their race, color, gender, age, national origin, disability, or genetic information. Employees or job applicants who feel an employer has discriminated against them have the right to consult the EEOC about the alleged discrimination. After interviewing the affected employee or job applicant, the EEOC may file a charge of discrimination, which puts the employer on notice that the agency is investigating the allegations against it.

During the pendency of its investigation, the EEOC usually asks the employer to submit a position statement in response to the allegations of discrimination. Following its investigation, the agency has several options. In many cases, the EEOC will issue the employee a right-to-sue letter if its investigation shows the allegations lack merit or it cannot complete its investigation in a timely manner. If the investigation results in probable cause to believe the employer committed an unlawful act of discrimination and the EEOC is unable to successfully “conciliate,” or settle, the matter, it may then opt to file a lawsuit against the employer rather than leave the employee to start legal proceedings herself.

Claims can snowball
Lawsuits filed by the EEOC generate unique challenges for employers. As a federal agency, the EEOC has the objective of eradicating workplace discrimination throughout the country. Unlike an individual plaintiff who files a lawsuit, the EEOC isn’t always interested in private relief such as back pay for a single employee. Rather, the agency will often focus its litigation efforts on addressing systemic discrimination, which affects a large number of individuals who may work in a variety of locations. That difference in perspective has important consequences for employers defending a lawsuit filed by the EEOC.

For example, during the discovery phase of the case, when the parties exchange documents and information relevant to the claims, the EEOC may ask for broader and more costly and burdensome statewide or nationwide information about the employer’s practices. Additionally, lawsuits filed by the EEOC are often accompanied by a press release, which may result in bad publicity for the employer.

Settlement agreements with the agency are also very different from settlement agreements with an individual employee. Settlement agreements with the EEOC are memorialized in a detailed and extensive consent decree, which typically requires an employer to:

  • Post a notice of the lawsuit and settlement in the workplace for all employees to see;
  • Compile and send periodic reports to the EEOC certifying compliance with the provisions in the consent decree.

Additionally, most consent decrees remain in effect for one to five years following the settlement, which gives the EEOC the authority to monitor the employer’s compliance for several years.

Bottom line
Employers sued by the EEOC often face more challenging discovery and settlement demands than employers facing lawsuits filed by individual employees. Therefore, you should immediately contact employment counsel for assistance if you receive a charge of discrimination from the EEOC.

Kevin J. Skelly is an associate with Day Pitney LLP in the firm’s Parsippany, New Jersey, office. He may be contacted at

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