300px-US_DC_AZ_svg.pngBy Christopher DeGroff and Julie Yap

Despite a number of setbacks in 2011 and 2012, it appears that the EEOC is charging into 2013 with much the same playbook it adopted in years past: aggressive litigation tactics, unreasonable demands for settlement, and an expectation that it can investigate and litigate under its own special set of rules. As we have reported in earlier posts, the EEOC’s questionable practices have not gone unnoticed by the federal bench. In EEOC v. Swissport Fueling, Inc., Case No. 10-CV-2101 (D. Az. Jan. 7, 2013), the U.S. District Court for the District of Arizona joined the growing number of federal judges to reject the EEOC’s aggressive litigation tactics and unsupported arguments that it should receive special treatment under the rules.  Specifically, the Court concluded that the EEOC is not entitled to relaxed burdens of proof or to limitless time periods in which to file claims. Id. at 13, 34. The Court also concluded that the EEOC has a statutory duty to engage in good faith conciliation efforts prior to filing suit and cannot engage in “fishing expeditions” during the course of discovery. Id. at 43-44, 49-50.        

Background Of The Case

In EEOC v. Swissport Fueling, the EEOC brought claims for harassment, disparate treatment, and retaliation on behalf of a group of workers from various countries in Africa, including Sudan, Nigeria, Ghana, and Sierra Leone. From April 2007 to June 2010, the EEOC investigated allegations made by 18 employees and subsequently issued letters of determination for each. 

Between June and September of 2010, Swissport and the EEOC unsuccessfully attempted to conciliate the charges. The EEOC’s initial conciliation offer demanded back pay for only four charging parties in the amount of $61,328.84, non-pecuniary compensatory damages in the amount of $3,725,000.00, and punitive damages in the amount of $1,200,000. When Swissport requested more information regarding the basis for these alleged damages, the EEOC stonewalled. The EEOC refused to indicate what factors it considered or how it arrived at any of its figures. Though Swissport indicated throughout the conciliation process that it might increase its offer if given more information, the EEOC steadfastly refused. Indeed, the EEOC repeatedly changed its position regarding how many charging parties and class members it sought to represent. Accordingly, the “conciliation efforts” by the EEOC failed to resolve the investigation. 

After filing suit, the EEOC identified 17 charging parties, who had been the subject of the pre-litigation conciliation efforts. The EEOC also named 21 additional charging parties, who were not identified prior to bringing suit.

The EEOC’s claim was based on allegation that a Swissport manager verbally abused African employees, ridiculed their national origins, yelled and cursed at them, and generally treated them more harshly than their non-African counterparts.  

The Court’s Ruling

The Court dismissed the EEOC’s claims brought on behalf of the 21 charging parties not identified before filing suit, concluding that the EEOC had failed to comply with its statutory mandate to engage in good-faith conciliation. Id. at 43-44. Specifically, the Court concluded that the EEOC did not give Swissport a meaningful opportunity to make an informed choice to settle when it failed to disclose the claimants’ identities, particularly in light of Swissport’s repeated requests to do so. Id. at 40. The Court also noted that granting the EEOC a stay to attempt conciliation for claimants it had never previously identified would not only fail to resolve the deficiency, but also would “improperly reward the EEOC for using the discovery phase of this litigation to engage in prohibited ‘fishing’ to solicit more claimants.” Id. at 43-44.

Moreover, the Court ordered the EEOC’s claims brought on behalf of the 17 identified charging parties stayed, pending meaningful conciliation. Id. at 49-50. The Court concluded that the EEOC’s failure to respond to Swissport’s reasonable requests for necessary information regarding the asserted claims and their value constituted a failure to conciliate in good faith. The Court noted that “[w]hile the EEOC’s burden to attempt conciliation is not a heavy one, it is not a mere formality.” Id. at 49. Based upon its pre-litigation conduct, the EEOC failed to meet even that minimal burden.

In turning to the merits, the Court concluded that the EEOC could not litigate the claims of the charging parties “in the aggregate.” Id. Rather, it held that the EEOC must prove its hostile work environment claims on claimant-by-claimant basis. Id. at 13. Furthermore, the Court noted that the EEOC cannot substantiate hostile work environment claims based only on offensive comments made to persons other than the claimant. Id. at 17-18. As such, despite its efforts to carve out its own distinct burden of proof, the EEOC has to play according to the same rules applicable to everyone else.

Additionally, the Court joined a growing majority of federal courts by rejecting the EEOC’s contention that it does not have to abide by the time limits in the statute. Indeed, the Court clarified that the EEOC cannot attempt to apply the continuing violation doctrine in the aggregate. Id. at 34. The Court refused to adopt the EEOC’s argument that it may bring claims on behalf of any claimant that experienced a hostile work environment, so long as one act against one claimant fell within the proper time period.  Rather, the Court again noted that this type of theory must be litigated on a claimant by claimant basis. 

Implications Of The Ruling

The Court’s ruling is a tour-de-force of developing legal concepts that have cut against the EEOC in the last two years; and a decision that is encouraging for its precedential value but disheartening in the sense that it shows the EEOC continues to use the same counterproductive tactics it has used in the past. EEOC v. Swissport once again emphasizes that the EEOC must take the statutory conciliation obligations seriously. As the EEOC continues to take an aggressive litigation stance and seeks to bring more systemic discrimination suits in the coming years, employers should ensure that the EEOC is bringing sufficient information to the conciliation efforts in order to truly assess the value of the case. 

Readers can also find this post on our EEOC Countdown blog here.