Advantage Employer?

A recent federal district court decision may give companies a useful weapon to defend themselves in litigation with the Equal Employment Opportunity Commission.

In the case of EEOC v. DHL Express, the U.S. District Court for the Northern District of Illinois has granted the logistics provider’s motion to compel the EEOC to make all claimants in the case available for deposition.

In the suit, a group of 94 black drivers and dockworkers for DHL Express in Chicago claimed they had been unlawfully given less desirable, more difficult and more dangerous route and dock assignments than white employees. In addition, the claimants alleged they were typically assigned routes in predominantly black areas.

The EEOC had refused to let DHL depose all of the claimants involved, contending the vignettes the EEOC had provided for each claimant in the interrogatories were sufficient, as were the company’s depositions of 34 of the plaintiffs. Further, the agency argued that deposing each claimant would be unnecessarily expensive and redundant.

The court, however, determined that “expenses are being incurred based on how the EEOC has decided to prosecute this case overall, including hiring an expert to analyze route assignments. The court will not jeopardize DHL’s opportunity to defend itself in order to accommodate the expense of plaintiff’s litigation strategy.”

This was just one court’s opinion, and others may not apply the same reasoning in the future. But the DHL decision may give the EEOC cause to rethink its approach to litigation going forward, says Jeff Nowak, partner and co-chair of the labor and employment practice group at Chicago-based law firm Franczek Radelet.

“Over the past few years, the EEOC has pursued an aggressive agenda to expand the scope of its charge investigations to focus on systemic discrimination,” he says. “As a result, it regularly subpoenas employer documents that far exceed any semblance of reasonableness. Unfortunately, it has a track record of approaching litigation in a similar fashion.”

The ruling in the DHL Express case, however, levels the playing field to some extent, “in that employers now are better able to confront purported charging parties and class members to test the veracity of these individuals’ claims and mount an adequate defense,” says Nowak.  

Will [this decision] stem the tide of EEOC litigation against employers? No. But it sends a message to the EEOC that it must carefully evaluate potential litigation before filing suit, and set aside any ‘hide the ball’ tactics when engaged in litigation.”