Seeking LGBTQ HR Practitioner to Co-present EEO Legal Solutions’ June, 2014 Webinar

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As many of you already know, EEO Legal Solutions offers one free, often-but-not-always HRCI-accredited monthly webinar to help prevent everyday workplace “people problems” from becoming legal ones.   In recognition of LGBTQ Awareness Month in June, our webinar on June 18, 2014 will focus on workplace LGBTQ issues, including discrimination/harassment prevention, FMLA compliance, and benefit administration.  This webinar is also timely for another reason:  next year, on January 1, 2015, Colorado’s HB-1136 will take effect, exposing Colorado employers to the same remedies, risks and costs of equal employment opportunity (EEO) claims of LGBTQ employees as any other protected group (e.g., race, gender, religion).   We want to help employers get ready and get it right, before violations occur.

 We also hope that this webinar will break down communication barriers, sensitize employers to common concerns, and foster greater understanding of how employers can support LGBTQ employees.  To accomplish that goal, we would like to partner with a LGBTQ HR practitioner who would be willing to share anecdotes, insights and tips to strengthen HR’s awareness of LGBTQ issues.  The time investment would be minimal, but the value to both the HR and LGBTQ communities could be great.  If you’re interested in participating, please reach out to Merrily Archer, EEO Legal Solutions at

The EEOC’s FY2013 PAR: How STUCK Employers Are

The EEOC bullies employers into cost-of-defense settlements, and then characterizes its historic monetary collections as evidence of “enforcing the law more effectively.”

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Finally, last Monday, December 16, 2013, the EEOC released its long-awaited Performance and Accountability Report (PAR) for FY2013.  Although the PAR teems with fodder for future blogs, one particular statement really stood out: under the heading “Enforcing the Law More Effectively,” the EEOC’s FY2013 again highlighted its record monetary collections from employers ($372.1m).  In FY2012, the EEOC also claimed that its record collections ($365.4m) showed what a swell job it was doing.   Notably, in FY2013, nearly half of the EEOC’s historic bounty ($160.9m) came from the EEOC’s “fabulously successful” ADR program.

The cost of defense now drives employers’ settlement deliberations, more than ever before.  Almost every day, the EEOC issues a press release touting settlements ranging from $25K to $75K.  These amounts smack of defense cost considerations, not any recognition of guilt or investment in rehabilitation.  For employers, settlements in this range simply signify an effort to stop the financial hemorrhage and incredible inconvenience of EEO litigation.

The EEOC understands, if not EXPLOITS, this sad state of affairs for employers.  Our EEOC Mediation Study (now 610 responses) shows that EEOC mediators HAMMER the cost-of-defense to encourage employers to settle (82.21%).  In many cases, employers have perfectly legitimate reasons for taking the adverse action, as well as ample documentation.  For that reason, they understandably bristle at the suggestion of paying an employee upwards of $15K to $25K just because they cannot probably afford to fight when they’re right.

Given how much anticipated defense costs factor into the settlement equation, what impact, if any, would the specter of a cause determination, systemic investigation and EEOC prosecution have on employers’ settlement behavior?  Our study revealed that EEOC mediators routinely alarm employers with the ostensible danger of a reasonable cause determination (72.84%), systemic investigation, (61.30%), and even EEOC prosecution (68.99%).  Read more here,  And, the results speak for themselves: in FY2013, the ADR program collected the second largest amount ($190.9) in its history.

As commonplace as these mediator tactics are, the EEOC’s FY2013 PAR suggests that the EEOC is struggling to get a handle on its current charge Inventory, let alone reduce it in compliance with its own strategic plan.  Under the heading “Serving the Public More Efficiently,” the EEOC blamed sequestration, furloughs and budgetary constraints for its inability to control the Inventory of pending charges, even though new charge intake dropped by 6,000 charges.  As a result, the EEOC will likely adhere even more religiously to its Priority Charge Handling Procedures (PCHP), reserving a distinct minority of charges (“A-1”) for the full EEOC treatment.  Under PCHP, the vast majority of EEOC charges (“B”) will continue to get heaped on the Inventory pile, where they are “handled” (e.g., processed, settled, and dismissed) but never really investigated.

Further, the EEOC’s PAR demonstrates that it has become far more focused on systemic and class action cases than individual charges; in fact, according to the FY2013, employers’ overall risk of becoming the target of an EEOC prosecution has steadily decreased.  Thus, the likelihood that disaster looms if the charge does not settle in mediation and then gets “transferred to Enforcement” is extremely small, too small to legitimately influence employers’ settlement decisions.

Employers are paying too much in EEOC mediations, and for EEOC mediations.  They are STUCK between the rising likelihood of a workplace EEO dispute and the rising cost of defense; this dilemma, however, should never be confused with the EEOC’s “enforcing the [EEO] law more effectively.” In the end, we hope that our examination of what EEOC mediators say behind closed doors helps employers and their representatives (e.g., attorneys, HR practitioners) disarm common mediator money-making threats and make more informed settlement decisions.

Merrily, December 19, 2013

UPDATE: EEOC Enforcement/Litigation Statistics Belie Common Statements EEOC Mediators Make


In December, 2013, EEO Legal Solutions released then-available results of its EEOC Mediation Survey, provided in full below.  Since then, Bloomberg BNA picked up the story, increasing responses to well over 700—stay tuned: we will publish an updated report in April, 2014.  Also since then, the EEOC released its Enforcement and Litigation statistics, many of which call into question the veracity of common EEOC mediator representations in the EEOC Alternative Dispute Resolution (ADR) program.

Consider the following:

Reasonable Cause Determinations:  Over 70% of survey respondents reported that an EEOC mediator had stated or implied that the EEOC may issue a reasonable cause determination during the mediation.  According to the EEOC’s recently published Enforcement statistics for FY2013, however, the EEOC issued reasonable cause determinations in only 3.6% of charges, down from 3.8% in FY2012; in fact, the EEOC issued “no reasonable cause” determinations in nearly 2/3 (66%) of all charges, a figure that also reflects a three year high.  Contrary to EEOC mediator threats, the likelihood that an employer will face an EEOC “reasonable cause determination” following an unsuccessful mediation is actually decreasing.

EEOC Prosecutions: Nearly 70% of survey respondents reported that an EEOC mediator had implied that the EEOC may even litigate the charge, which would naturally scare employers into big cost-of-defense settlements.  According to the EEOC’s report, however, the EEOC filed fewer lawsuits in FY2013 than in any other year reported on the EEOC’s website (i.e., back to 1997).  The likelihood of falling prey to an EEOC prosecution has decreased markedly since 2011.

Monetary Benefits (in millions): The EEOC’s report also shows that despite prosecuting fewer cases, taking in fewer charges, and resolving fewer disputes in the administrative process, the EEOC took in more money–$372.1m—in FY2013 than at any other time in its history.

How did the EEOC pull off that amazing feat? Read on . . .

What EEOC Mediators Say to Make Employers PAY

In the late 1990’s, the EEOC launched its mediation or Alternative Dispute Resolution (ADR) program.  I worked there then, and experienced firsthand the genuine excitement as the EEOC moved toward full implementation. The term “FIREWALL” (that is, the ostensibly impenetrable barrier between the ADR, Enforcement, and Legal Units) echoed through the halls.  Office sizes shrunk as the EEOC constructed separate ADR Units with separate entrances, offices, and conference rooms—a visual FIREWALL to reassure employers of the impartiality, confidentiality, and above all, credibility of the ADR program.  The EEOC implemented protocols, reserving ADR for only “B” charges under its 1995 Priority Charge Handling Procedures (PCHP).  And, the EEOC promoted numerous investigators into mediator positions.

Since its roll-out in 1999, the EEOC has considered the ADR program its crowning achievement, as expressed by longtime EEOC leader Mary Jo O’Neil, EEOC Regional Attorney (Phoenix Region) at a recent hearing:

[W]e have a fabulously successful ADR program and I would urge employers to take more advantage of that than they do . . . It’s such a successful program. It’s a wonderful opportunity to settle.

Why We Wondered

In its 2012 Performance and Accountability Report, the EEOC characterized its historic collections from employers as evidence that it was “enforcing the law more effectively.”  Given the staggering cost of defense, we questioned whether the EEOC’s unprecedented plunder really meant that the EEOC was more “effective,” especially in light of its statutory mandate to eliminate unlawful employment practices through “informal methods of conference, conciliation, and persuasion.” 42 U.S.C. §2000e-5(b); more here,  Further, because only things that can be counted count at the EEOC (e.g., cause determinations, inventory reduction, lawsuits filed, and dollars collected), we wondered what impact, if any, this new metric-that-mattered would have on the behavior of EEOC personnel.  After all, if EEOC equates employer collections with efficacy, experience teaches me that its personnel likely have explicit or tacit marching orders to maximize money.

By February, 2013, this hunch grew into suspicion.  Several employers that EEO Legal Solutions coached through EEOC mediations reported high monetary demands, paired with threats of cause determinations, systemic investigations, and EEOC litigation regarding extremely weak charges.  “That’s nuts,” I would reassure them, “if any of those outcomes were likely, the EEOC would not have invited you to mediation!” Could EEOC mediators be making those representations to other employers and attorneys, we wondered, particularly those less familiar with EEOC operations?  And so, at EEO Legal Solutions’ March, 2013 free webinar on EEOC mediations, we asked participants about their experiences in EEOC mediations: nearly 1/3 of them reported similar representations over the past two years.


EEOC mediations occur under a cloak of carefully guarded confidentiality, which prevents employers from comparing notes about what EEOC mediators say behind closed doors to “encourage” employers to pay.  To gain insight without compromising client/charge confidentiality, EEO Legal Solutions designed a short, 11-question survey using to probe whether EEOC mediators made specific representations in the mediation process . . . or not.  Unlike prior ADR surveys undertaken by the EEOC in 2000, 2001, and 2003, we did not intend to research employers’ satisfaction with the ADR program or their reasons for non-participation. After all, employers could simultaneously report satisfaction with the ADR process, notwithstanding the use of specific mediator threats referenced in this survey.  Thus, we used clear, simple questions like those used in formal depositions—i.e., did X state/imply Y? And then, we delimited response choices to the only legally viable answers: “yes”, “no”, and “I don’t remember”.  Questions 4 through 11 follow this format.

Questions 1 and 2 request basic demographic information—e.g., role in the ADR process and state—to permit more detailed analysis later.  Question 3 asks participants to identify the number of EEOC mediations handled over the past two years; if the participant responded “none,” the survey ended for that participant.  To ensure study validity, only participants who reported some firsthand experience with an EEOC mediation over the past two years were allowed to answer substantive Questions 4 through 11.

Beginning in March, 2013, survey responses were solicited through (1) several LinkedIn professional groups targeting HR professionals, EPL adjusters, and employment lawyers (“practitioners”); (2) direct emails to practitioners with requests that they forward the survey link to their contacts; (3) announcements in numerous webinars sponsored by EEO Legal Solutions and BLR/HR Hero; and (4) EEO Legal Solutions’ blog.   To maximize participation, however, EEO Legal Solutions has agreed to maintain the active survey link, at least until March 2014 and will periodically report any statistically significant changes in the results presented herein.

Survey Results

Participant Snapshot

At this writing, the survey yielded 604 responses from a wide range of professionals who may play some role in EEOC mediations:

Consultant: 9.12% (55)

EEO/AA Practitioner: 7.63% (46)

EPL Adjuster: 6.47% (39)

HR Professional: 34.66% (209)

In-house Attorney (Generalist): 8.13% (49)

In-house Labor/Employment Attorney: 9.62% (58)

Small Business Owner: 5.14% (31)

Other: compliance specialist, a federal investigator, labor economist, several franchisees, a non-profit manager, etc.

Of these participants, 28.19% (170) had not participated in any mediation over the past two years and were disqualified from answering further questions.  Approximately 40% (242) of participants had participated in at least one mediation over the past two years, with 15.75% (95) reporting six or more EEOC mediations.   Almost 10% of the participants (56) reported handling over 31 mediations during a two-year timeframe; nearly all of these 56 participants were attorneys in law firms or in-house employment counsel.

Survey participants represented nearly every state, with a significant contingent from Colorado (124), California (40), Texas (40), Illinois (38),  Florida (35), Virginia (19), Georgia (18), Connecticut (17), Michican (14) and New York (14). The large number of participants from Colorado likely stems from the survey collection process, and EEO Legal Solutions’ Colorado base.  For that reason, we have elected to keep the survey open at least until March 2014 in hopes of drawing participants from the broader cross-section of the United States.

What EEOC Mediators Say to Make Employers Pay

Bearing the Suffocating Cost of Defense

Over 80% (82.13%, 340) of practitioners reported that their EEOC mediator referenced the cost of defense as a reason to resolve the EEOC charge.

No doubt, the staggering cost of defense is real.  Employers spend thousands on attorney-prepared EEOC position statements and upwards of $75K to $100K in litigation, even when they have done nothing wrong.  Although predatory billing practices, skyrocketing rates, and law firm inefficiencies also share the blame for the nearly suffocating cost of defense, employers start losing money as soon as the discrimination allegation is made.  And so, the cost-of-defense conversation goes something like this

It’s going to cost you [employer] $75k to $100k to prove you were right in the first place.  You might as well make it ‘go away’ for $25k to $30k—that’s the sound business decision.

Most employers, however, have difficulty viewing a $30k payout to an undeserving employee as a bargain, especially when their own experience and investigation have convinced them that they have committed no legal violation whatsoever.

Nevertheless, the clear emphasis that EEOC mediators place on the cost of defense raises legitimate questions about the meaning of its historic collections from employers in 2012.  According to the EEOC, this unprecedented amount shows that it is “enforcing the law more effectively.”  As the EEOC is aware, however, employers settle EEOC charges not because they have merit, but rather because the cost of defending the risk exceeds the risk itself. Ultimately, the EEOC’s increasing employer collections simply show how STUCK employers are between the rising incidence of EEOC entanglements and the rising cost of defense.

Losing in Later Litigation

According to our survey, EEOC mediators frequently forecast gloomy litigation outcomes, even before the Charging Party’s allegations have been tested in the discovery process.  Further, as many seasoned defense litigators can attest, judges and professional mediators (many of which are attorneys) have standard “phrases that pay” to exploit employer insecurities about juries:

“Juries dislike employers”:  52.43% (216) of practitioners responded that an EEOC mediator has stated or implied that “juries dislike employers” in a mediation over the past two years.

“The jury won’t like . . .”:  53.26% (313) of practitioners responded that an EEOC mediator stated that a “jury would not like the employers’ evidence or witnesses” as a reason to settle.

“A judge will not grant summary judgment” or “this case will go to a jury”:  44.36% (177) of practitioners reported that an EEOC mediator expressed an opinion on the success of the employer’s future Motion for Summary Judgment.   Typically, the employer files a Motion for Summary Judgment after the parties have conducted a substantial amount of discovery (e.g., depositions, document exchanges, disclosures) during litigation.

In their defense, EEOC mediators can (and probably should) talk about the merits of the charge and the comparative strength of the parties’ evidence, including layperson credibility determinations.  Most EEOC mediators, however, are not attorneys and have never litigated an EEO matter, rendering their jury-based prognostications unreliable at best. Simply put, these representations mimic trial and employee-side lawyers, who have historically purported to intuit the likes/dislikes of future jurors.  Experienced defense practitioners typically recognize appeals to “ghost juries” as posturing, bravado, and theater.

Further, in litigation, the fact-gathering process begins anew and is far more rigorous.  Again, as most seasoned litigators would agree, after discovery, discrimination and/or retaliation lawsuits can reveal a story vastly different from the allegations in the Complaint.  In fact, summary judgment orders following EEOC determinations of reasonable cause are just not uncommon.

Defending against EEOC Enforcement Activity

In creating the EEOC nearly 50 years ago, Congress entrusted certain statutory and governmental powers to it, including broad powers to: (1) initiate systemic or class investigations and issue subpoenas; (2) issue Determinations of Reasonable Cause and thereby force employers into the “conciliation process;” and (3) litigate civil “enforcement actions” against employers.  Given the cost of defense, the threat of possible EEOC enforcement activity would necessarilyweigh heavily on an employer’s settlement deliberations.  In fact, mitigating and containing future costs rank among the top reasons employers elect to settle in the first place.  Thus, if employers believed the representations below, their settlement impact would be profound:

Threats of EEOC Reasonable Cause Determinations

73.19% (303) of practitioners reported that an EEOC mediator had stated or implied that the EEOC’s Enforcement Unit could issue a Determination of Reasonable Cause. After a Determination of Reasonable Cause, the EEOC initiates the “conciliation process,” a settlement conversation in which the EEOC may also impose its standard trinity of injunctive relief: training, posting, and reporting.  The looming possibility of a cause determination, therefore, would likely prompt many employers to offer more money in mediation to avoid (1) inevitable defense costs; and (2) an inevitable increase in the Charging Party’s settlement expectations.

In FY2012, however, the EEOC issued determinations of reasonable cause in only 3.7% of charges containing Title VII allegations.  In reality, the EEOC’s rate of issuing reasonable cause determinations has steadily decreased since 1998. This relatively low rate of reasonable cause determinations casts considerable doubt on whether this outcome is likely for employers.  Indeed, given the EEOC’s adherence to its Priority Charge Handling Procedures, infra, the possibility of a reasonable cause determination following an unsuccessful EEOC mediation is highly unlikely.

Threats of EEOC Systemic/Class Investigations

61.55% (259) of practitioners reported that an EEOC mediator had stated or implied that the EEOC could launch a “systemic” or “class” investigation if the employer did not settle in ADR.

Since the EEOC’s shift from individual to systemic/class enforcement in April, 2006, the terms “systemic” and “class action” have become the phrases that PAY for both trial lawyers, employee-side attorneys, and the EEOC.  EEOC systemic investigations often involve numerous Requests for Information (RFI’s), database construction and analysis, subpoena modification or enforcement actions, negotiations with investigators and/or attorneys, etc., etc.  Indeed, the EEOC has nearly unlimited power to investigate, a public warchest, subpoena authority, and no meaningful timetables, thereby exposing employers to years of enforcement activity that easily racks up seven-figures in defense attorneys’ fees.  From a cost of defense perspective, EEOC systemic and/or class investigations pose the single biggest financial threat to employers, even more than EEOC litigation.  Thus, even though the EEOC has floundered (and employers have prevailed) in recent systemic litigation like EEOC v. Kaplan University and EEOC v. Freeman, the employer has still suffered the considerable expense and hassle of proving the EEOC wrong.  The EEOC possesses great power to punish through prosecution alone.

Threats of EEOC-initiated Lawsuits

Nearly 70% (68.67%, 287) of practitioners reported that an EEOC mediator stated or implied that the EEOC may litigate the charge if not resolved at mediation.  Given the impact anticipated EEOC litigation would naturally have on any employer’s settlement deliberations, this finding is troubling.  In fact, EEOC mediators have neither the authority nor the ability to predict what EEOC charges will eventually become “litigation vehicles”–i.e., charges developed for litigation ostensibly to further EEOC enforcement priorities and legal interpretations.  The EEOC exercises its prosecutorial discretion in an infinitesimal number of EEOC charges, less than .2% of charges in FY2012.  In recent years, the number of EEOC lawsuits has decreased markedly, reflecting an overall litigation trend of larger, class-based or systemic lawsuits.  Thus, the actual risk of EEOC-initiated litigation is quite low.

Under the Guise of Reality Testing

Shortly after EEO Legal Solutions launched this survey in March of 2013, an EEOC mediator reached out via LinkedIn, explaining that she was trained to conduct “reality testing” about what could happen if the charge did not settle and then ended up in the Enforcement Unit—e.g., cause determinations, systemic investigations, litigation.  Overstating these risks, however, actually distorts reality, almost to the point of outright mendacity. As EEOC mediators well know, if any of these EEOC enforcement activities (e.g., cause determinations, systemic/class investigations, litigation) were likely, the EEOC would not have routed it to ADR in the first place under its longstanding Priority Charge Handling Procedures (PCHP).

Adopted in 1995 in response to a sharp spike in charge filings and an increasing backlog, PCHP sets the trajectory and determines the destiny of every EEOC charge based on a loose, three bucket triage in Intake: A, an enforcement priority or likely cause determination; B, the bulk of inconclusive discrimination allegations; and C, time-barred or jurisdictionally deficient charges dismissed right out of Intake.   Under the EEOC’s own protocols, only charges designated as “B” are eligible for mediation. Thus, if the EEOC had deemed the charge worthy of Class A treatment under PCHP (e.g., full investigations, cause determinations, prosecutions) given its limited resources, it would not have invited the employer to mediate in the first place.

This practical reality of EEOC enforcement is a well-kept secret.  At the EEOC’s hearing on March 20, 2013, Commissioner Lipnic suggested that EEOC investigators disclose each charge’s PCHP designation to “take the gamesmanship out of this.”  EEOC field investigators instantly opposed the idea.  They claimed that PCHP designations were top secret under the “government deliberative process privilege,” i.e., the armor that prevents stakeholders from holding the EEOC accountable for its decision-making processes.  Ultimately, the EEOC hearing panel concluded, the EEOC should not disclose the PCHP designation to employers because disclosure would “hinder” their willingness to settle.  In other words, if the employer knew, for example, that the EEOC considered the charge a “B”, and was, by logical extension, unlikely to devote its limited time and resources to “handling” it, it would be far more difficult to scare them into paying money to “resolve” the charge.

The same logic applies to the EEOC mediation process.  By understanding that the EEOC does not actively or aggressively investigate “B” charges (but rather routes them to mediation), employers can disarm and dismiss the common EEOC mediator scare tactics uncovered in this survey.  Further, by understanding how misleading these representations actually are, employers can make smarter, more informed settlement decisions in EEOC mediations, which translates into dollars saved.

MEDIA:  A more detailed report with analytic charts and endnotes is available by contacting directly.

To learn more, please join us on December 18, 2013 for EEO Legal Solutions’ free monthly webinar, “EEOC Mediations Unveiled: How to Negotiate More Effectively.”

Please register here,

EEOC Mediations Unveiled: How Employers Can Negotiate More Effectively

When: 12-18-2013 | 12:00 p.m. (MST)


In its most recent performance/accountability report, the EEOC stated that its historic collections from employers ($365.4m) show that it is “enforcing the law more effectively.”  The EEOC then characterized its Alternative Dispute Resolution (ADR) program as “fabulously success” and a “wonderful opportunity to settle.”  Indeed, “fabulously successful” likely means that the EEOC’s ADR program has proven fabulously successful at collecting money from employers, regardless of charge merits.

Drawing on the lessons of EEO Legal Solutions’ on-going EEOC Mediation Survey, this webinar will explore what EEOC mediators say behind closed doors to make employers pay.   We will then conduct some “reality testing” around these common representations, neutralizing their power to scare employers into unnecessarily high settlements.  This webinar will also familiarize participants with the EEOC’s mediation process, ultimately empowering them to handle their organization’s mediations with confidence and without over-reliance on outside counsel.

EEO Legal Solutions will offer this FREE webinar again in February, 2014 through BLR/HR Hero,, which charges over $200 per registration.  As a gift to EEO Legal Solutions’ clients, friends, and webinar regulars, we wanted to share this webinar with you free of charge.  We will also record the webinar, share the link, and upload it to our new YouTube channel, the Small Employer Education Network (SEEN).  We hope you can join us!

Register for this Webinar

Dismantling the Villain/Victim Paradigm

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The Dark Side

Years ago when I worked at the EEOC, I sat chit-chatting with a plaintiff’s employment lawyer one afternoon at our monthly Plaintiff Employment Lawyer Association (PELA) luncheon.  She was exhausted, she explained, because she’d spent a week deposing employer witnesses in a gender discrimination, failure-to-promote case. “Well, how’d it go?” I asked, almost offhandedly. 

“Oh, great,” she replied. “I made the HR director cry.”

“Yuck,” I recoiled, “that can’t be good.”

“Of course it’s good,” she snapped. “She’s a stupid dirt-bag that should have gotten more involved to make sure my client got the promotions she clearly deserved . . . blah, blah, blah.”  

I’d grown accustomed to the rhetoric: the EEOC and PELA people did “God’s work” and helped “victims” of discrimination.  By contrast, employers, especially the ones they were currently suing, were malevolently unenlightened, law-flouting discriminators that would discriminate, harass and retaliate with reckless abandon without their vigilance and the threat of liability.    

After doing “God’s work” at the EEOC, however, I’d reached very different conclusions: (1) the people most ostensibly dedicated to improving the workplace make the worst employers; (2) in the most Machiavellian sense, rhetoric about “God’s work” and “changing hearts and minds through litigation” often just masks ego and greed; (3) the identity of the righteous “good guys” is seldom clear; (4) discrimination and an employer’s ability to disprove discrimination are two very different things.  Not surprisingly, when I left the EEOC to begin my employer-focused practice in 2000, my EEOC colleagues and the PELA people told me that I was joining the “Dark Side,” even the “Forces of Evil.” 

Boobs or Haters

In the victim/villain melodrama of discrimination litigation, the EEOC and PELA people cast (and treat) HR managers as incompetent boobs or raging racists.  After hours of intense deposition questioning, this treatment could make most HR practitioners cry, if not adequately prepared for such antics beforehand.  As a defense attorney, I’ve had to intervene in the most condescending, unconscionable bullying of HR practitioners and managers in depositions and investigations, all ostensibly in the name of vindicating another person’s rights.  But to the EEOC and employee-side counsel that perpetuate victim/villain paradigm, the inherent “evil” of discrimination justifies their abuse of other humans accused of it.  When you’re doing God’s work, after all, all is allowed.

This victim/villain dynamic also affects how they treat their colleagues on the defense side.  In an EEOC ADA prosecution I recently defended, EEOC counsel actually questioned whether I was a “good person” or “enlightened” for suggesting that that the public may not want to conduct retail/restaurant interactions in writing to accommodate one deaf/mute employee.  In a sexual harassment matter I just resolved, plaintiff’s counsel called me a “Clarence Thomas feminist” for articulating a well-supported consent defense in negotiations.  Last February, 2013, the President of Colorado’s trial lawyers association called me “hateful” and “anti-Islamic” for characterizing the victim/villain paradigm underlying HB-1136, which ratchets up damages against Colorado employers accused of discrimination or harassment, as an “ideological jihad.”  When you’re doing God’s work, after all, it is okay to demonize your opponent—we are bad, after all, even when we’re right.

Viewing the Victim/Villain Paradigm through the Lens of Profit and Fundamental Attribution Error

The “victim/villain” paradigm bears little resemblance to reality on the ground.  It endures, however, because it is so profitable financially and psychologically.  For many plaintiff employment lawyers, “victim” has become a euphemism for “client.” The “victim/villain” paradigm takes shape in the initial consultation, as attorneys steer employees toward claims and theories with the highest potential recovery—i.e., EEO claims.  Suddenly, the boss’s once-flattering comment about how Employee “looks darn good for her age” takes on a sinister bent, and begins to fuel the theory that boss’s sexist/ageist animus, not Employee’s subpar performance, caused her not to get that promotion. And then comes the casting: the employee as the hapless victim, the boss as the sexist/ageist jerk, the HR director as the incompetent boob, Plaintiff’s counsel as the righteous crusader, and defense counsel as an unenlightened hater. 

In social psychology, this phenomenon is called “fundamental attribution error,” which posits that in explaining human social behavior, we all have a tendency to overestimate the effect of disposition or personality and underestimate the effect of situation.  When explaining our own behavior, however, we humans focus completely on the effect of situation, not disposition or personality.  Read more here,             

For example, imagine that you’re trying to make a left turn at a busy intersection.  Right before you begin your turn, a blue Buick races through the intersection, causing you to slam on your brakes to avoid a horrible t-bone wreck.  Be honest: like most of us, you probably would scream some version of “JERK”; after all, that inconsiderate jerk could have caused an accident!  But, what if blue Buick’s driver was actually rushing someone to the hospital? Or simply did not see you?  Chances are, if asked, blue Buick’s driver would explain the situation beneath the behavior, instead of saying “Well, I am an inconsiderate jerk.” We let ourselves off the hook by explaining the situation/circumstances prompting our behavior, while attributing others’ behavior to personality, character, and even morality. 

The victim/villain paradigm epitomizes fundamental attribution error: the boss declined to promote employee, not because of situational factors (e.g., better candidate, poor performance, skill deficit) but rather, because he’s an ageist/sexist jerk.  In employment discrimination litigation, the error enables Plaintiff’s counsel to explain an employment decision by focusing on character traits of decision-makers, rather than the complex constellation of circumstances underneath every employment decision (e.g., efforts to rehabilitate, skillset needed, impact on other employees).  The recent Paula Deen raced-based employment discrimination litigation illustrates the point well.  At her deposition, Plaintiff’s counsel asked if she had ever used the N-word.  She admitted she had, and then described the context—i.e., something about being robbed at gunpoint by an employee she’d once hired.  “Ah-ha, see there,” smirked the employee-side lawyers, our victim-client must have suffered a racially discriminatory employment action because Paula Deen is a racist, a bad person.  When the situational facts came out, however, the judge determined that Paula Deen’s accusers could not even muster enough evidence of a racially discriminatory employment decision to reach a jury. 

Squandering Chances to Build on Shared Values

The worst part of the victim/villain paradigm, aside from its psychological distortions, is that it squanders opportunities to build on shared values: e.g., the importance of workplace inclusiveness, consistency, fairness, personal accountability, and financial viability to support JOBS.  The overwhelming majority of HR practitioners also care deeply about equal employment opportunity, and work hard on the inside to ensure that personnel actions consider all the angles of an expanding web of employment regulation.  Instead of misanthropic villains, HR practitioners act more like high school principals, maybe even corporate social workers, endeavoring to ensure that everyday “people problems” do not become legal ones.  More often than not, they’re the good guys.

Until we come to terms with how ineffective the privatized civil rights enforcement model has been in fulfilling Title VII’s promises, however, the victim/villain paradigm will stick around for a while longer.  In the meantime, the HR and employer community must re-claim their “good guy” status by

(1) creating and filling JOBS;

(2) remaining updated and vigilant about EEO compliance issues;

(3) documenting their good faith compliance efforts and employee interactions; and,

(4) investing in their own diversity/inclusiveness initiatives, in order to reap the business benefits of inclusive decision-making. 

In theory, the EEOC, employers, civil rights groups, and the HR community share much common ground in advancing equal employment opportunity, but for a victim/villain model made by attorneys, for the benefit of attorneys.  Employment discrimination, workplace inclusiveness, and the costs to employers of EEO disputes are complex, multi-faceted social problems that deserve more analysis than victim/villain caricatures.  Our progress toward full inclusiveness, after all, depends our ability to find common ground, not deepen divides.     


Strategic Partnerships: Our Peanut Butter and Chocolate Model

shutterstock_606741 Some things just work better together

What I’m about to say will shock some folks, anger others, and maybe deservedly draw a “Duh” from pragmatists:  many of employers’ workplace compliance needs can be more cost-effectively met through excellent HR practitioners, rather than attorneys.    And I feel strongly about making compliance affordable for employers, especially small to mid-sized ones.  For example, about two weeks ago, a rapidly growing Colorado employer called for information about the legal differences between employees and independent contractors.  I introduced this employer to an excellent HR consulting firm, which hooked this employer up with a handbook, a form and FAQ library, counseling services, and lots of other good stuff.  “You don’t have a Merrily problem yet,” I told the employer.  “If one comes up, your outsourced HR partner knows when to get me involved . . . now, I hope I never hear from you again.”  For many small to mid-sized employers, this model seems to work better than what I observed/experienced at Biglaw firms, which often provide really expensive solutions to more minor people problems.   Besides, the vast majority of workplace people problems should never become legal ones.

Further, many small to mid-sized employers reach me because a people problem has already degenerated into an EEOC charge or litigation.  Employers of this size simply get too bogged down with on-going operational stuff to pay attention to their personnel practices, until it’s too late.  As unpleasant as these experiences are for the employer, however, they ALWAYS offer positive opportunities to refine personnel practices to reduce future risk.   From our perspective, HR consultants fulfill an important rehabilitative role. 

Again, as crazy as it sounds coming from an attorney, I’d like to learn more about what services your firm and you offer, and how you help employers.   Further, EEO Legal Solutions offers a FREE (often HRCI-accredited) webinar each month, and moderates the Small Employer Education Network (SEEN) on LinkedIn, resources that may also help your clients stay in compliance.  I’ve heard grumblings from the HR community that working with attorneys historically has been unpleasant and/or bad business: the attorneys have not reciprocated referrals or they have completely poached clients.  I get it.  But, EEO Legal Solutions is hardly a traditional law firm: we aim to make compliance affordable, to enable employers to fight when they’re right, and to underwrite inclusiveness initiatives that will fulfill Title VII’s promises far faster than litigation.   

If you’re interested in learning more about EEO Legal Solutions and our business model, please visit, and/or reach out to me at

It’s 10:00 a.m.: Do You Know Where Your Employees Are?

When: 10-16-2013 | 12:00 p.m. (MDT)

shutterstock_12602725 (640x427)

With increasing obligations to provide a variety of paid/unpaid leaves of absence, employers often wonder which, if any, employees will be at work on any given day.  This webinar will tackle the leading causes of employee absences and their legal implications under the ADA and FMLA, offering practical suggestions for (1) managing employees back to work; and (2) making legally defensible workforce planning decisions. 

The HR Certification Institute,, has awarded one (1) General HRCI credit for this webinar.

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Investing in Inclusiveness: Making Room at the Powertables

PowerKids with OtterBox CEO Brian ThomasPowerKids Networking with OtterBox CEO Brian Thomas

Some solutions are not entirely “legal.”

At EEO Legal Solutions, not all the solutions are “legal” . . . in fact, some our solutions to the problems of workplace discrimination and under-inclusiveness are social/psychological and even business-focused.  Truth is, legal remedies alone for eradicating workplace discrimination, in place since the Civil Rights Act of 1991, have done little to ensure the inclusiveness of people of color, religious minorities and women in the highest paying jobs (e.g., executive management) in every major industry.   Over the past 25 years, a substantial amount of money has changed hands (mostly between insurance carriers, plaintiff lawyers and defense attorneys), but otherwise, very little has actually changed for women and minorities trying to reach the top.  In America, our management ranks remain 83.6% male and white.  Legal “solutions” (i.e., litigation) simply have not solved . . .

For that reason, EEO Legal Solutions established the Inclusiveness Account.   As strong proponents of the “business case” for diversity and inclusiveness, our Inclusiveness Account funds social programs that level the playing field, promote understanding, and empower kids to reach the top– e.g., PFLAG, Phamaly, the Colorado Muslim Society, the American Indian College Fund, and of course, Junior Achievement (to name a few).   EEO Legal Solutions’ Inclusiveness Account, however, also seeks to demonstrate that investing in inclusiveness earns incredible returns that benefit people AND bottomlines.  Progressive and visionary business leaders like Colleen Abdoulah, CEO of WOW! get it, investing their time and treasure into building an inclusive organization from within.

Toward Creating Inclusive Powertables

In 2012, the Denver Business Journal (DBJ) bestowed upon me the dubious honor of including me as a finalist in its annual Denver PowerBook; that year, EEO Legal Solutions had defeated the EEOC in an ostensible disability discrimination prosecution where the EEOC did serious violence to the ADA.  Read more here,  In any case, my husband and I used the DBJ’s PowerBook event as a chance to groom our 10-year-old daughter for her place at the proverbial “powertable”, coaching her on business etiquette, professional dress, networking, virtues of hard work.  Within 10 minutes after our arrival, my daughter asked “Where are all the girls? The people with brown skin?” Looking around, she was right: the Powertables, nominees, and winners literally mirrored the stark reality for women and minorities trying to reach the real Powertables in their organizations.  “That’s real,” I told her, embarrassed. “But we’re working hard to change that.”

Then, Robin Wise, the charismatic CEO of Junior Achievement Rocky Mountain and last year’s winner in the Non-profit category, took the stage.  With characteristic exuberance, she observed “You’re what is working in our economy right now—I wish I could bring you all to Junior Achievement!”  And then, an inspiration: if Denver’s leaders were too busy to come to Junior Achievement, let’s bring an inclusive group of Junior Achievement “PowerKids” to them!  From a social/psychological perspective, this investment in inclusiveness could give other kids the same opportunities as my daughter—e.g., networking, mentoring, grooming, and a dose of “you can!” cheerleading; it could also model for the grown-up Powertables the incredible synergy and value of an inclusive community of achievers.  But perhaps more important, from a business perspective, this idea seemed like a great chance to motivate other business owners and entrepreneurs to “invest in inclusiveness,” and fund this and other projects that groom young women and men of color to step up to the power table.     

Junior Achievement liked the idea right away.  We reached out to the DBJ shortly thereafter, discussing extensively in email exchanges the social/psychological and business interests at the heart of EEO Legal’s monetary investment.  Scott Bemis, stated that he “loved the idea” and that he was looking forward to the 2013 PowerBook event because of “you” (i.e., EEO Legal Solutions).   We assumed “loving the idea” also meant loving its underlying purposes.

The 2013 Kids’ Powertable: Investing in Inclusiveness WORKS . . . Mostly

Given its dual purposes, the inaugural Kids’ Powertable simultaneously succeeded and failed.  From a social/psychological perspective, this project succeeded beyond our wildest hopes. Junior Achievement selected six PowerKids from the Denver School of Science and Technology (DSST)—Ashlee Rodehorst, Derrick    Trujillo, Dwight  Pullen III, Jubilee Michael, Lourdes Luna, Rachael Rousseau-Shander—all of whom established themselves as rock stars during in its weeklong summer program, Business Week.  Under the leadership of Emily Milan, Business Week accomplishes the impossible—i.e., polishing 250 teenagers into sophisticated presenters who can deliver excellent marketing campaigns for major corporate sponsors.  As a rookie Business Week judge this year, Junior Achievement’s and the kids’ enthusiasm, energy, and EFFICACY literally blew my mind.

At the PowerBook luncheon on September 19, 2013, the six PowerKids challenged each other to work the room and collect business cards, just to practice the networking skills that Junior Achievement had taught them.  One PowerKid met State Representative Angela Williams, who invited his entire team to visit the Capitol floor in January to learn how laws are made.  Two PowerKids met OtterBox CEO Brian Thomas, earning invitations to tour its Fort Collins headquarters.  All the PowerKids got to hear personal stories about how hard work paid off, how leaders overcame adversity, and how investing in the community is good business.  Junior Achievement reported that after the event, the PowerKids were “on fire” (hopefully with excitement and inspiration).  The Kids’ Powertable, then, fulfilled its primary objectives: creating more opportunity, modeling inclusiveness and inspiring excellence.

The inaugural DBJ Kids’ Powertable, however, missed its business objectives in ways that should be acknowledged.  We quickly discovered that “loving” the idea of the Kids’ Powertable did not necessarily mean that the DBJ embraced its underlying message of promoting corporate inclusiveness and charitable investment.  Despite promising corporate table sponsors “mention in program, powerpoint & DBJ thank you ad”, the DBJ sanitized the program of any reference to EEO Legal Solutions as a corporate sponsor.  From the podium, publisher Scott Bemis welcomed the PowerKids on behalf of the DBJ, insinuating that DBJ had sponsored the inaugural Kids’ Powertable, not a small business owner.  In the end, the DBJ donated nothing, made money, and then took credit.  But for this blog, no one would likely guess that the inaugural Kids’ Powertable happened only because of one person’s “investment in inclusiveness,” Junior Achievement’s vision and mission, and DSST’s enthusiastic cooperation.

The social/psychological successes of the inaugural Kids’ Powertable far outweigh any losses from a business perspective.  EEO Legal Solutions thanks Junior Achievement for its enduring efforts to level the playing field and increase opportunity for kids, and will continue to partner with Junior Achievement in its inclusiveness initiatives.  Through this blog, we also still hope to inspire other like-minded business owners to invest in inclusiveness and to partner with community non-profits, chambers of commerce, and other associations that help fulfill the promise of equal employment opportunity.  Despite the DBJ disappointment, this project showed that one person’s small “investment in inclusiveness” opened doors for young people who may not otherwise have had those opportunities, a social/psychological solution that, COLLECTIVELY, will likely help address the problem of underrepresentation far faster than litigation.   

How EPL Insurance Protects Employers’ Greatest Risk: EMPLOYEES

When: 09-18-2013 | 12:00 p.m. (MDT)

With the steady increase in workplace legal disputes, Employment Practices Liability (EPL) Insurance has become a business necessity.  Without it, many employers face defense costs and settlement demands that could easily put them out of business, even if the employee’s allegations are completely baseless.  Nevertheless, many small to mid-sized employers often decline this important protection because they treat their employees “like family” and would NEVER intentionally subject them to discrimination, harassment, retaliation, or the growing panoply of regulatory violations.  Particularly with the passage of HB-1136 in Colorado last term, however, EPL Insurance provides essential protection from the very real risk that a workplace people problem will someday become a legal one.

EEO Legal Solutions is delighted to team up with business insurance expert Allan Morton of Morton Insurance and Risk Management for this in-depth look at the realities of employment litigation, the benefits of EPL insurance, and the key considerations when purchasing this protection—e.g., typical coverages and exclusions, choice of counsel, deductibles, reporting “claims,” just to name a few.  We have applied for One (1) General credit through 

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Some Straight Talk about the High Cost of EEOC Systemic Losses


After the EEOC’s recent defeat in EEOC v. Freeman, a 2009 civil prosecution challenging the use of criminal background checks in hiring, social media came alive with legal alerts from various Biglaw outfits.  I gratefully posted several of them in SEEN, as well as other employment law/HR LinkedIn groups.  After all, with the EEOC’s policy of publicizing only its wins, settlements, and lawsuit filings, it is critically important to present a more balanced and accurate view of the enforcement landscape. 

Odds are, however, that the folks at Freeman are not exactly doing cartwheels over their EEOC victory.  Whatever elation they now feel will surely subside once they receive their legal bill, no matter which law firm championed their successful defense.  EEOC systemic investigations and prosecutions are crushingly expensive for employers and/or their EPL carriers, perhaps unnecessarily so in some ways.  Nevertheless, given the staggering expense of proving that they are right in the first place, employers must DEMAND more responsible and competent use of the EEOC’s prosecutorial discretion and public war-chest. 

Piling on the Attorney Heap

As a freshly-minted EEOC attorney in the 1990’s, it always amused me when I encountered an entourage of defense attorneys at every meeting, deposition or court appearance: if they knew how understaffed, underfunded and overworked we EEOC attorneys were, they’d never send an army to fend off little me, I thought.  When our skeleton EEOC crew successfully prosecuted a systemic age discrimination case, we literally joked about how every attorney in this mid-sized defense firm must be billing on this one case.  At the EEOC, by contrast, we litigated lean. 

Years later as a Biglaw defense attorney, I freaked when the EEOC announced its enforcement shift to systemic discrimination on April 4, 2006 (not coincidentally, the anniversary of Dr. King’s assassination).  I probably even earned the moniker of “Chicken Little of Systemic Discrimination;” in fact, my local colleagues at one Biglaw outpost actually turned my obsessive musings about systemic discrimination into a drinking game. 

Nevertheless, in early 2007, the EEOC hit one of my firm’s giant institutional clients with systemic investigation related to its use of criminal background information in the hiring process.  Given my background (but still, as an afterthought) I became part of an entourage of partners, associates, and adverse impact “analysts” working the file.  I “earned” the responsibility of responding to the EEOC’s RFI’s, while only “relationship partners” communicated with the client’s in-house counsel and could talk in marathon conference calls—i.e., an unduly expensive telephone game. All I knew is that I was really busy; I still have no idea what the other seven attorneys did.  Anyway, about five years after it started and long after I’d left this firm, I learned that the employer settled with the EEOC for over $3.3 million. With seven attorneys billing on the case for five years, I can only imagine the final price tag. In any case, and in my humble opinion,  one (maybe even two) minimally knowledgeable and competent litigators could have settled the case for $3.3m long before incurring five years of Biglaw legal fees. 

At another Biglaw outpost, a partner in a distant office requested my help with a “directed investigation” that the EEOC had initiated, alleging that this employer’s use of a manufacturing skills test screened out older applicants.  I immediately teamed up with my longtime, trusted statistical and test validation expert, understanding quite well the importance of having adverse impact analyses conducted on ANY dataset turned over to the EEOC.  To keep fees low, I advised this one-client partner that EEOC systemic investigations and prosecutions do not require an entourage of lawyers, but rather the right skill set: (1) an excellent statistical and test validation expert; and (2) a knowledgeable legal strategist.  He assigned a giant entourage of lawyers in his distant office anyway, while I (in Colorado) and our expert (in California) formulated and handled the substantive defense.  Ultimately, the EEOC ended its directed investigation after our expert demonstrated the absence of any statistically significant adverse impact against older workers by clarifying several pivotal incorrect assumptions the EEOC had made about the data and applicant flow.  The winning argument was not a LEGAL argument, but rather a STATISTICAL one developed by a PhD-level expert at an hourly rate far less than standard legal fees. 

Winning (in Context)

I fault these experiences for ruining the genuine excitement that employment defense attorneys should enjoy watching our federal courts set limits around the EEOC’s runaway systemic initiative.  In December 2012, for example, a federal judge in Ohio smacked down the EEOC’s flagship prosecution on CREDIT REPORTS, EEOC v. Kaplan University, in which the EEOC had argued that Kaplan’s use to credit reports in hiring financial aid analysts had an adverse impact on African-American applicants.  Problem is, Kaplan did not collect race information in the hiring process.  And so, to support its assumption that this practice disproportionately screened out African-Americans, the EEOC resorted to applicants’ driver’s license photos and data, counting anyone who looked or sounded African-American as African-American–i.e., creepy, racist stereotypes.

Quite understandably, the defense’s PhD-level expert went nuts, establishing that the EEOC’s use of “race raters” was simply too unreliable for admission as expert testimony.  Once the defense knocked out the EEOC’s threshold statistical case on a Daubert motion, the entire EEOC prosecution crumbled on summary judgment. Ultimately, the winning argument focused on statistical, not legal grounds.  According to the Bloomberg BNA write-up of this important defense victory, however, this excellent result necessitated the involvement of eight attorneys, seven from a single firm. 

In EEOC v. Freeman, the district court also sharply criticized the EEOC’s statistical analysis, calling it “an egregious example of scientific dishonesty” and noting a “mind-boggling” number of errors, including miscoding the race of certain job applicants.As in Kaplan, the court dismissed the EEOC’s prosecution on summary judgment with a stinging rebuke, correctly noting that whether a practice causes an adverse impact depends entirely on the composition of the applicant pool, not overbroad assumptions about the impact of criminal background checks generally.  Nevertheless, I wonder how many attorneys it took to advance that winning statistical argument.

Takeaways for Employers and EPL Carriers

Given the realities of the EEOC’s systemic initiative and our courts’ reception of it, three main “takeaways” emerge for employers and EPL carriers:

Winning defense arguments are often STATISTICAL, not LEGAL

Excellent defense outcomes depend on competent adverse impact analyses performed by PhD-level industrial psychologists or labor economists. Despite its professed “expertise”, the EEOC consistently botches the adverse impact analysis necessary to make its prima facie case of disparate impact discrimination. Based on these botched analyses, the EEOC lurches forward with these expensive investigations, even using faulty logic/data to justify seven-figure monetary demands in conciliation or settlement discussions.  A competent adverse impact analysis performed by a PhD-level expert can actually scare away EEOC systemic investigations, minimize the “shortfalls” the EEOC uses to negotiate settlements, and defeat an EEOC prosecution.  Both the Kaplan and Freeman decisions make clear that statistical (not legal) arguments carry the day.

It does not take an entourage of attorneys to present a winning STATISTICAL argument

No doubt, the EEOC hopes to settle every systemic case for millions of dollars as some kind of sick return on its time/money investment; after all, last year, the EEOC equated its historic collections from employers with evidence of “enforcing the law more effectively.”  Million dollar exposure, however, does not justify million dollar attorney “pile-ons.” Because systemic cases often succeed or fail based on threshold statistical considerations, in-house counsel and EPL carriers must become more savvy about the actual skillsets needed to yield cost-effective outcomes—e.g., a PhD-level expert and one (maybe even TWO) knowledgeable attorneys. 

Employers deserve better from the EEOC

Given the staggering defense expense of EEOC systemic investigations/prosecutions, employers must DEMAND more reasonable and competent use of its enforcement powers and prosecutorial discretion.  The EEOC is well aware that employers are spending millions to fend off its systemic investigations and prosecutions, which are often based on faulty, even “laughable” and “scientifically dishonest” statistical analyses.  Notably, the EEOC’s entire systemic initiative hinges on the theory that certain employer screening practices adversely affect certain protected groups more than others, “a theory in support of facts to support it,” as the Freeman court described.  While this theory may have generalized support in social scientific literature, the determination whether a particular employer’s practice causes an adverse impact depends entirely on a specific applicant pool.  As a practical matter, therefore, the EEOC has placed individual employers in the unfortunate position of spending millions to disprove the EEOC’s generalized theory about credit and criminal background checks, a theory that has not stood up particularly well to the scrutiny of peer review and the litigation process.  

Despite the EEOC’s recent setbacks, employers and EPL carriers are probably stuck with the EEOC’s preference for big, systemic cases for the foreseeable future.  Employers and EPL carriers must, therefore, get smarter about how these cases are defended and staffed.   Unfortunately, most attorneys personify the old adage “he who is good with a hammer thinks everything is a nail.” They treat indispensable experts like playthings, not partners, and then overstaff the matter with the wrong skill sets (e.g., layers of attorneys).  If employers are going to weather the EEOC’s systemic storm intact, however, they must learn to use the right “tools” for the case.