The EEOC was created almost a half century ago with the task of ending discrimination on the basis of race, color, national origin, sex, and religion in private-sector employment throughout the United States.

In later years, new federal laws were passed that extended the EEOC’s enforcement authority, including, but not limited to, the Americans with Disabilities Act of 1991, the Amended Americans with Disabilities Act of 2008, the Equal Pay Act, the Age Discrimination in Employment Act, the Genetic Nondiscrimination Act of 2008, the Pregnancy Discrimination Act, and the Civil Rights Act of 1991. There are currently numerous statutes under which an employee or the EEOC can bring against an employer charges of discrimination or retaliation for complaining about discrimination.

 

At the conclusion of its investigation into the employee’s alleged charge discrimination, the EEOC will issue a letter of determination stating whether there is reasonable cause to believe that unlawful discrimination occurred. A reasonable cause finding—whether valid or invalid—can have lasting effects in litigation and can even force an employer to pay more to settle a claim than it might otherwise. Why?  In certain jurisdictions, an EEOC determination may pose a significant barrier to a motion for summary judgment. In addition, an EEOC determination may even be a key exhibit in the plaintiff's case at trial, or during settlement conferences with a mediator. Particularly in a jury trial, the plaintiff’s counsel may try to persuade the jury that because the EEOC found reasonable cause that discrimination occurred, the jury should return a finding of liability against the employer. The author has already defended his fair share of cases where plaintiff’s counsel’s biggest bargaining chip, at least during pre-trial settlement negotiations, is an EEOC determination of reasonable cause to believe that discrimination occurred.

 

Congress has not addressed whether EEOC reasonable cause determinations are admissible in subsequent litigation of employment discrimination. Admissibility is driven entirely by case law, and the results vary widely from jurisdiction to jurisdiction. The courts are split on (1) if and when reasonable cause or no cause findings are admissible, and precisely how a court should analyze this question; and (2) what role a reasonable cause finding should play in an employer’s motion for summary judgment when a court does admit the finding.

 

Many jurisdictions have left the admissibility of such reasonable findings to the discretion of trial courts, applying Fed. R. Evid. 803(8), Fed. R. Evid. 403, or both. Fed. R. Evid. 803(8) provides for an exception to the hearsay rule and allows for the admissibility, in civil cases, of factual findings from a legally authorized investigation, provided that the party against whom the evidence is introduced does not show that either the source of information or other circumstances indicates a lack of trustworthiness. When evaluating the trustworthiness of a reasonable cause finding, some courts may apply the following four-factor test: (1) The timeliness of the investigation; 2) the special skill or experience of the official conducting the investigation; 3) whether a hearing was held and the level at which it was conducted; and 4) possible motivation problems. EEOC v. Smokin’ Joe’s Tobacco Shop, Inc., 2007 WL 2461745 (E.D. Pa. Aug. 22, 2007). Issues such as the lack of investigation (for example, a lack of witnesses interviewed or documents reviewed) before reaching a conclusion, or factual inaccuracies contained in the report serving as the basis for the reasonable cause determination, may lead to a lack of trustworthiness, thus excluding the evidence. See Anderson v. Triad Intern. Maint. Corp., No. 3:11-cv-3-J-32TEM, 2012 WL 2044968, at *14 (M.D. Fla. Jun. 6, 2012).

 

Even if a court finds a report to be trustworthy, the inquiry is not necessarily concluded.  Most cases excluding such reports are decided on a Fed. R. Evid. 403 challenge. Fed. R. Evid. 403 provides for the exclusion of evidence where its probative value is substantially outweighed by the danger of unfair prejudice, as well as the danger confusion of the issues, misleading the jury, unduly delaying the trial, wasting time, or needlessly presenting cumulative evidence. It is not uncommon for EEOC records to contain hearsay statements and evidence of other claims of discrimination which may provide separate grounds for attack under a strict 403 analysis. For example, the U.S. Court of Appeals for the Fifth Circuit relied on Fed. R. Evid. 403 in Harris v. Mississippi Transp. Comm., 2009 WL 2168913 (5th Cir. July 21, 2009).

 

EEOC determinations are not homogenous products; they vary greatly in quality and factual detail. Johnson v. Yellow Freight System, Inc., 34 F.2d 1304, 1309 (8th Cir. 1984). Sometimes, the EEOC may make a finding of reasonable cause to believe that an employee was discriminated against even after conducting no interviews of the actual employees involved and asking for minimal documentation.

 

The risk of an adverse finding, even if after only a meager investigation, is significant.  It is very difficult to procure the deposition of an EEOC investigator, or even to call one to the witness stand to examine the depth and nature of the investigation which led to the adverse determination. See, e.g., Allen v. Int’l Truck and Engine Corp., No. 1:02-cv-0902-RLY-TAB (S.D. Ind. March 21, 2003). In Allen, the defendant, Truck Engine Corporation, served a subpoena seeking testimony of individuals from the EEOC responsible for drafting the investigative memorandum. The Allen plaintiffs, in drafting their lawsuit, relied in part on the statistical data contained in the memorandum. The EEOC moved to quash the subpoena. After both parties submitted briefs, the court granted the EEOC’s motion to quash. The court arrived at this determination after holding that the scope of the subpoena exceeded the scope of Rule 26(b). Quoting from Leyh v. Modicon, Inc., 881 F.Supp. 420 (S.D. Ind. 1995), the Allen court reasoned that, “despite the generally permissive approach to discovery in federal courts, the [C]ourt does not believe that parties to an employment discrimination case should be able to depose EEOC investigators as a matter of course.”  The court held that “[s]uch depositions should not become a routine method to find a short-cut to evidence.” In reaching this determination, the court weighed private interests against public interests. “While such depositions might save private litigants some time and money, there is a larger public interest here. The EEOC has plenty of work to do investigating new complaints, and its principal responsibility is to serve the public as a whole, not to work for the benefit of particular litigants[.]”

 

Thus, the risk of an adverse finding is compounded by the difficulty of deposing an EEOC investigator, at least in light of Allen (and other courts applying the same reasoning). Without the ability to depose an EEOC investigator, it may be difficult to evaluate the four factors of the Smokin’ Joe test.  Consequently, a party may be unable to establish the untrustworthiness of a reasonable cause determination. And despite Fed. R. Evid. 403’s dictates against unduly prejudicial, confusing, or needless evidence, a court still has broad discretion to admit a reasonable cause finding by the EEOC.

 

As a result, it is important to take a very proactive stance in defending against the EEOC claim at the beginning of the process. Doing so helps to minimize the risk of an adverse finding by the EEOC as well as minimize the time and expense later down the road in having to move to keep the finding out of court. In fact, a strong investigation and a pointed response to the EEOC charges at the outset can do wonders for laying the groundwork for defending against a lawsuit that, in all likelihood, will be brought after the EEOC’s investigation.  Even if the investigation uncovers no reasonable cause to believe that discrimination occurred, the EEOC will still issue the employee a right-to-sue letter.

 

Counsel should be involved early in responding to the EEOC charge. This allows the employer and counsel to work together during an initial investigation to develop a theory of the case under which to refute the EEOC charge and defend against a subsequent lawsuit. For instance, the following counsel defended a lawsuit brought under Title VII (racial discrimination) and the Age Discrimination in Employment Act. At issue was whether the plaintiff-employee was “similarly situated” to allegedly comparable employees of a different race or younger age. During the initial EEOC investigation, documents were submitted showing the extensive nature of the plaintiff-employee’s disciplinary background. The plaintiff-employee had far more write-ups than any of his alleged counterparts. Not only did presenting this information at the start of the EEOC investigation help lead to a determination of no cause, but it also led to a successful motion for summary judgment after the plaintiff-employee sued. Laying the groundwork this early in the EEOC investigation helped streamline later efforts during the pre-trial discovery and dispositive motion phases of the litigation. With counsel involved early, the defendant-employer was better able to understand the law and was able to build the foundation for a successful defense.

 

While no one likes being accused of discrimination, and many companies go to great lengths to prevent discrimination, claims of discrimination by disgruntled employees have nearly become a side-effect of running a successful business. These EEOC charges should be taken seriously at the outset. Failure to do so could result in an EEOC determination of reasonable cause to believe discrimination occurred. This in turn could complicate defense efforts later down the road as well as increase the expense of resources in filing motions to exclude the EEOC’s determination letter.

 

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