We practice “lean litigation” so that employers can still afford to fight when they’re right. Because of the staggering cost of defense, however, most employers fold quickly in litigation, which has emboldened the EEOC and the employee-side bar. “Cost of defense” settlements have become the norm, thereby institutionalizing “discrimination extortion” in today’s workplaces.
For example, in 2009, the Denver EEOC filed two companion lawsuits against large national retailers for allegedly mistreating, harassing, and failing to accommodate their profoundly deaf employees in violation of the Americans with Disabilities Act of 1990–EEOC v. Picture People and EEOC v. Petco Animal Supply . Less than one year later, Petco capitulated for $145,000 in cash to former dog groomer, a three-year consent decree with the EEOC, and a brand-bashing EEOC press release announcing the settlement. In the press, Petco “strongly disputed” the EEOC’s underlying allegations, explaining that it subjected itself to the yoke of an EEOC consent decree to avoid the “time and expense of further litigation.” Petco’s attorney from BOUTIQUE giant Littler Mendelson simply stated, “EEOC litigation is expensive.”
With BIGLAW billing practices that reward billed attorneys over skilled attorneys, litigation (particularly EEOC litigation) can hemorrhage money. But with basic “lean litigation” practices, employers can still afford to defend themselves. In EEOC v. Picture People, for example, the employer FULLY PREVAILED against the EEOC, after incurring a fraction of the attorneys’ fees referenced in the EEOC v. Petco settlement. Because the EEOC ordered Picture People to change its business model to accommodate this profoundly deaf employee (something the ADA does NOT require), Picture People had no choice but to fight, and with EEO Legal Solutions’ lean litigation philosophy, Picture People did, in fact, have the resources to fight for its business model and WIN. With lean litigation, EEO Legal Solutions
- Minimizes the legal entourage working on the matter;
- Uses technology optimally to streamline administrative tasks;
- Ensures that necessary work is performed at the appropriate level (and by extension, billing rate);
- Recognizes the common themes and “storylines” in EEO litigation, and thus, zeros in surgically and quickly on a defense theory;
- Understands what a winning defense case looks like and how to build it;
- Draws on a large body of work handling similar matter to minimize drafting time;
- Collaborates strategically with experts in other necessary disciplines, such as adverse impact testing, test validation, and workplace violence, to ensure using the right skillset for the task;
- Steers clear of unnecessary discovery disputes;
- Sketches out the motion for summary judgment before discovery begins to build a favorable record for dismissal without trial;
- Co-opts and leads the employer’s existing staff and resources to minimize external expenses;
- Evaluates directly risk and cost to ensure that employers do not incur substantial legal fees on weak cases; and,
- Partners collaboratively andsubstantively with in-house counsel, EPL representatives, and HR professionals, instead of endless “in firm” conferences.
With these basic practices, which the EPL industry has long demanded, employers can still fight when they’re right, instead of simply settling claims because of the crush of bloated legal bills.