EEOC press releases make great fodder for LinkedIn posts. Usually, they’re salacious, scary, or even sexy, which grab headlines and remind us of the EEOC’s enforcement authority. But, before re-posting another EEOC press release, consider:
The EEOC Tells Only Half the Compliance Story
According to EEOC Regional Attorney Mary Jo O’Neill (Phoenix District Office), the EEOC issues press releases only when it files, settles or wins a prosecution against an employer, but never when it loses, gets sanctioned, or fails to persuade SCOTUS to adopt its legal interpretations. Two points stand out: (1) the EEOC tells employers only what it wants them to know; and (2) the EEOC deliberately withholds relevant information about the LAW, as opposed to just the EEOC’s construal of it. As a “law enforcement agency,” the EEOC has an obligation to enforce the law (and educate employers), not sell its interpretation. Further, given the EEOC’s power and status as an agency of the federal government (e.g., prosecutorial discretion, public war-chest), I’m troubled that the EEOC gets away with telling employers only what it wants them to know–it smacks of propaganda. Read more here, http://www.bizjournals.com/denver/print-edition/2012/07/20/is-eeoc-too-aggressive.html and here, http://blog.hreonline.com/2012/07/19/is-eeoc-vs-the-picture-people-ruling-part-of-something-bigger/
The Sexy Allegations in the Press Release May Not Even Be True
When the EEOC files a lawsuit, it routinely issues a press release reiterating the allegations of the Complaint. What if, however, the allegations set forth in the Complaint are (or more pointedly, later prove) completely baseless? In an EEOC prosecution I defended on behalf of a retail employer, the EEOC issued a salacious, brand-bashing press release regarding this employer’s so-called abuse, discrimination, and harassment of a deaf employee—i.e., really heavy stuff. The problem is, when these allegations were subjected to the scrutiny of the litigation process, the EEOC could not prove any of them and the U.S. District Court dismissed the matter entirely on summary judgment.
I then demanded that the EEOC deactivate the link to its press release on the website, which popped up immediately when any customer conducted a Google search of this retail employer. The EEOC refused. In fact, the EEOC maintained the active link to a press release alleging that the employer harassed a deaf employee, even though it declined to appeal the summary dismissal of the harassment claim. After the 10th Circuit affirmed the dismissal of its prosecution, the EEOC finally deactivated the press release link only when members of the PRESS challenged the EEOC on its apparent policy of perpetuating disproven allegations against a retail employer. Mary Jo O’Neill, the Phoenix Regional Attorney defended the practice of publishing (and perpetuating) disproven press releases that bash employers: “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. Again, read more here, http://www.bizjournals.com/denver/print-edition/2012/07/20/is-eeoc-too-aggressive.html.
Employers Operate in a Brand-sensitive Marketplace
The Paula Deen Debacle and the Chick-Fil-A Boycott of 2012 show us that allegations of racism, discrimination, and harassment (to name a few) can have a significant financial impact on employers’ bottom-lines. Image is everything. Accordingly, the EEOC’s press policy effectively punishes employers financially before proof of any violation. Customers vote with the feet; how many walked away from my retail client based on allegations that were not even TRUE, allegations that still bore the imprimatur of the federal government? 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.
The EEOC’s Press Machine is Built to SCARE, NOT SOLVE
Given that EEOC press releases provide only 50% of the compliance picture and only restate unproven (and probably untrue) allegations, EEOC press releases simply freak out employers with little, if any, corresponding benefit to them. Thus, the fact that the EEOC has sued a particular employer for disability discrimination furnishes no useful compliance assistance to employers wrangling similar issues in the trenches . . . unless the press release itself prompts employers to contact defense counsel for compliance assistance. As a Biglaw refugee myself, I have observed firsthand how firm marketing departments perpetuate EEOC press releases to “scare up business.” Although scaring employers may have once been an effective marketing tool, however, I strongly sense that employers and EPL carriers want solutions and strategies, not scare tactics.
As a Defense Community, We Must Stop Perpetuating Practices that Harm All Employers
As a defense community, we need to engage in a little “protected concerted activity” for the mutual aid and benefit of all employers, not just the ones that hire us. Given my background as a former EEOC Trial Attorney and Biglaw law defense attorney, I cringe whenever a colleague re-posts an EEOC press release, simply because their harm to ALL employers far outweighs any material benefit to them or the larger compliance community. In fact, given the EEOC’s press policy, ALL we can really infer is that an employer landed on the EEOC’s radar, as nearly 100,000 do each year.
Two takeaways become clear: (1) infer little, if anything at all, from the EEOC’s press releases; and (2) if you’re battling the EEOC now, safeguard your client’s brand in settlement by not allowing the EEOC to inflict $1m in damage based on a brand-bashing press release, even if the overall settlement is nominal. Always attempt to negotiate a joint press release; if the EEOC refuses (as often occurs), consider enlisting the help of the PR firm to fight back. In this day and age, an employers’ brand and reputation matter more than ever.