EEOC's latest tactic to drum up lawsuits upheld by judge

Heads up: A U.S. district judge has just given the Equal Employment Opportunity Commission (EEOC) the green light to use a new tactic to prod your employees in an attempt to find discrimination plaintiffs. 
The EEOC is allowed to email your employees directly and subject them to questions in an attempt to find out if they feel they’ve been discriminated against, according to the judge.
The only way you can stop the agency from this alarming practice: prove — with some substantial, not subjective, evidence — that your organization would be “injured” by the practice.
That was the ruling given by U.S. District Judge Reggie B. Walton as he rejected a lawsuit by Case New Holland that accused the EEOC of violating Constitutional law, as well as its own compliance manual, when the agency sent an email blast to employees of the heavy equipment manufacturer as part of a discrimination investigation.

Background: Case New Holland v. EEOC

In March of 2011, the EEOC notified Case that it would be performing a “nationwide review” of the company and its affiliated businesses under the Age Discrimination Act.
As part of the “review,” the EEOC made numerous requests to see Case employment records — including promotion and firing records.
All told, Case provided 66,630 pages of documents to the EEOC.
The last documents were received by the EEOC in January of 2012, and they contained Case employees’ email addresses.
A year-and-a-half later, on the morning of June 5, 2013, well over a thousand Case employees  received an email from the EEOC that said it was “conducting an investigation into allegations” that Case “discriminated against job applicants and current and former employees.”
The email also contained a questionnaire that Case claimed was biased and leading.
You be the judge. Here are three of the questions:

  • “At any point during the application process did anyone … make any comments about your age?”
  • “At any point during the application process did anyone … make any comments about the age of applicants/employees?
  • “At any point during the application process did anyone … make any other age-related comments?”

Case also claimed the questionnaire disrupted normal business operations and raised unnecessary and unfounded fears among workers.
It said: The questionnaire “suggests wrongdoing (when none exists). It causes employees to become concerned about their employment livelihood.”

Judge: No proof, no grounds for suit

Walton, in the U.S. District Court for the District of Columbia, threw Case’s lawsuit out.
He said the company lacked standing to challenge the EEOC because it couldn’t show that it had been “injured” by the EEOC’s actions.
He called Case’s accusations that the EEOC email disrupted normal business operations and raised fears “generalities and speculation.”
Walton than said that the email questionnaire was the “least invasive way” for the agency to fulfill its duties.
The judge is expected to issue a written opinion on the matter within 60 days.

Unsettling development

This ruling isn’t going to sit well with employers. It essentially gives the EEOC a lot more leeway in how it goes about trying to drum up discrimination complaints — which eventually turn into lawsuits.
There’s no telling how the EEOC will attempt to push the envelope next.
Cite: Case New Holland v. EEOC (PDF)