In Our “Brand-Boycott” Marketplace, the EEOC’s Press Policy Should Bother Employers

Last summer, Former Arkansas Governor Mike Huckabee summed up a basic business truth.

People are voting with their feet today . . . or their faces, they are stuffing them . . . with those lovely chicken sandwiches from Chick-Fil-A.

The Chick-Fil-A Boycott of 2012 shows us that consumers do, in fact, vote with their feet by walking away from businesses that do not appear ethical, moral, or worse, inclusive. Chicken sandwiches and GLBT rights seemingly bear little relationship to one another; nevertheless, the personal sentiments of its CEO apparently turned off an entire community of folks to Chick-Fil-A’s yummy sandwiches, even though no allegation has yet surfaced that Chick-Fil-A actually discriminated against, harassed or otherwise mistreated its GLBT customers and employees.

Image is everything. For that reason, the EEOC’s press policy should cause employers alarm. According to EEOC Regional Attorney Mary Jo O’Neill, the EEOC files a press release whenever it “files cases, win cases, or settle cases,” but never when it loses cases.

The original EEOC press release says we filed a lawsuit saying those things, and that’s true. We never take down press releases retroactively,” stated O’Neill.

In the recent case of EEOC v. Picture People, Inc., the EEOC issued a press release in 2009 claiming that “Picture People Harassed and Discharged Deaf Employee.” The press release alleged that Picture People managers picked on this deaf employee, forced her to work in the back away from the public, and retaliated against her for requesting a reasonable accommodation. This conduct, EEOC officials stated in its press release, violated the Americans with Disabilities Act. Ms. O’Neill herself then offered,

[e]mployers all too frequently underestimate the ability of deaf employees to serve in a customer service capacity . . . here, the employer not only failed to engage in a reasonable dialog regarding a reasonable accommodation, it compounded the offense when it retaliated against the disabled employee for complaining of discrimination.

EEOC District Director Nancy Sienko was equally damning of Picture People, scolding

[i]t is unfortunate whenever able employees like Ms. Chrysler get short shrift just because an employer is unwilling to take reasonable steps to accommodate their [sic] disability. It’s prejudice plain and simple. It’s illegal and it’s a bad business practice.

EEOC Press Release, October 1, 2009 (emphasis added).

As it turned out, although the EEOC’s lawsuit did contain salacious allegations of harassment, discrimination, and mistreatment, the EEOC was unable to prove any of these allegations in its prosecution of Picture People.  In his May, 2011 ruling, U.S. District Judge Philip A. Brimmer, determined that (1) the EEOC had not mustered enough evidence of disability-based harassment to get past summary judgment; (2) the EEOC could not establish that Ms. Chrysler was able to perform the job with or without reasonable accommodation; and, (3) the EEOC’s proposed accommodation—namely, substituting written notes and gestures for the fluid oral dialog permeating three out of four essential job functions—fundamentally altered the position and was not “reasonable” as a matter of law.

After the dismissal of the EEOC’s lawsuit, Picture People asked the EEOC to remove the press release from its website and to deactivate the link on Google. Despite assurances that the press release would be removed and the link deactivated, it remained an active link on the EEOC’s website and on Google for another year.  In fact, even when the EEOC failed to appeal the dismissal of its harassment claim, its press release, “EEOC Harassed and Discharged Deaf Employee,” remained an active link, popping up in routine “Picture People” Google searches.  Thus, any consumer who Googled “Picture People” (i.e., to schedule a sitting, to review seasonal background choices) was treated to the EEOC’s inaccurate press release about Picture People’s alleged disdain for the deaf.  If effect, then, the EEOC, as an agency of the federal government, deliberately and continuously disparaged (if not outright defamed) Picture People by keeping its press release active, despite the likelihood that it could not prove those allegations after all.  As it turned out, the Tenth Circuit affirmed the dismissal of the EEOC’s prosecution en banc.

The Chick-Fil-A Boycott teaches us that customers do, in fact, vote with their feet. Given that reality, brand-sensitive employers in a variety of industries (e.g., retail, restaurant, hospitality) should demand more balanced, reasonable, and responsible conduct from a federal agency that wields prosecutorial discretion. If the EEOC truly acts as a civil law enforcement agency, then the EEOC must also issue press releases when our federal courts reject its legal interpretations. Picture People may never know how many potential customers it lost due to the EEOC’s press release policy. No employer, however, should bear the significant punishment of bad press before the EEOC establishes legal violation.

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