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The Equal Employment Opportunity Commission is appealing an order requiring it to pay approximately $4.5 million of an employer’s attorneys’ fees and expenses because, in the trial judge’s opinion, the agency’s actions in pursuing a multi-victim sexual harassment lawsuit were “unreasonable,

contrary to the procedure outlined by Title VII and imposed an unnecessary burden upon [the defendant] and the court.”  EEOC v. CRST Van Expedited, Inc., No. 07-CV-95-LRR (N.D. Iowa Feb. 9, 2010).  On November 18, 2010, the federal appeals court in St. Louis heard oral argument in the agency’s appeal.

The EEOC’s hostile work environment class-action claim on behalf of 67 females was dismissed at trial and the district court held the EEOC failed to conciliate and investigate claims of individual complainants prior to filing its suit.  (See our article, Court Awards Employer $4.5 Million in Fees Against EEOC in Harassment Suit, for more information about the trial decision.)

Oral Argument

The EEOC argued at oral argument before the U.S. Court of Appeals for the Eighth Circuit that any fault for its not identifying individual victims in its investigation was that of the employer.  According to the EEOC, the employer was aware that numerous female employees had complained about harassment, but did not supply the information to the EEOC during its investigation, making it impossible for the EEOC to identify victims.

The EEOC also argued that the employer had notice of these alleged victims because they had complained directly to the employer and the employer had documented more than 100 of these complaints.

In response to a question from the appeals court, the EEOC said that no case precedent controls as to the EEOC’s need to identify victims.

The employer’s counsel conceded that the EEOC does not need to identify victims in conciliation in a pattern-or-practice claim and the employer was not questioning the adequacy of the EEOC’s investigation.  The employer’s core argument was that months prior to the EEOC’s complete dismissal for the failure to comply with investigative prerequisites, the district court granted summary judgment to the employer and against the agency on the EEOC’s pattern-or-practice claim.  The agency did not appeal this earlier summary judgment ruling, waiving any argument that such a pattern or practice existed.  The EEOC had to proceed on an individual basis with each alleged victim.  In order to proceed on an individual basis in litigation, the employer contends, the EEOC was required by Title VII to have individually investigated and conciliated the case of each alleged victim.  Because the EEOC did not do so, dismissal was proper.

Questions from the Eighth Circuit panel did not indicate the leanings of the court.  It would be some time before the court would issue its ruling, as it told the parties.

Jackson Lewis will monitor the case and provide updates as appropriate.  We advise clients on sexual harassment preventive strategies and EEOC pattern-and-practice investigations, and defend employers facing lawsuits brought by the EEOC and other federal agencies.

Courtesy 

jackson lewis llp © 2010

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