Can the EEOC legally recruit claimants over the radio?

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The EEOC has been running this radio spot in Baltimore, Maryland:

“In connection with the class race discrimination lawsuit, the U.S. EEOC is looking for black individuals who applied for employment at or used to work for McCormick and Schmick’s or M&S Grill at the Inner Harbor. If you applied to work, or worked at either restaurant, please call the EEOC at 410-209-2208. Again, 410-209-2208.”

If you were M&S, what would you do? M&S got creative and sought an emergency order from a Maryland federal court to stop the advertisement.

Did it work? Find out, after the jump.

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I’m not just a lawyer, I’m a mediator

The case is EEOC v. McCormick & Schmick’s Seafood Rests., Inc. And before I commence with a recap of the case, I must disclose that I am a pro bono mediator for the EEOC.

Now, on with the show…

Prior to broadcasting the announcements seeking black claimants, the EEOC had filed a complaint against M&S alleging that the restaurant had engaged in a pattern and practice of discriminating against black job applicants and employees at its Baltimore restaurant facilities. Having received the complaint, heard the radio spots, and learned that the EEOC had purchased more airtime, M&S rushed into court to stop the EEOC. In support of its motion for a an order enjoining the EEOC from airing radio advertisements seeking additional claimants, M&S raised three arguments:

  1. The EEOC’s announcement violates the Rule of Professional Responsibility that prohibits the making of “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

  2. The announcements will pollute the jury pool and threatens to injure its business.
  3. The announcement is misleading because it implies that the EEOC has asserted a class action lawsuit.

As to M&S’s first and second arguments, the court reasoned that the EEOC was “relaying nothing more than what is in the public record, It simply reports the pendency of a lawsuit.” Further, the Court noted that the Rules of Professional Conduct specifically allow “a request for assistance in obtaining evidence and information necessary thereto.”  

The Court also dismissed M&S’s third argument by noting that although the case was not a Rule 23 class action, the Complaint “clearly alleges discrimination against a class of individuals and seeks a class remedy.” Therefore, informing the general public that the action is a “class race discrimination lawsuit” is not misleading.

For these reasons, the court denied the M&S request for equitable relief.

Proactive employers may be able to avoid a similar situation.

The M&S case involves allegations of systemic discrimination. In recent years, the EEOC has focused its energies on investigating allegations of systemic workplace discrimination. This isn’t inside information. This is fairly common knowledge. 

However, just because a few individuals from the same company file charges of discrimination doesn’t mean that the EEOC will just accept the claimants at their word. Generally, allegations of systemic discrimination beget an EEOC investigation. 

What can the employer expect from an EEOC investigation? Among other things, a request for documents…lots of documents. The process is undoubtedly burdensome and may interrupt business operations, but the EEOC doesn’t make these document requests for the sake of making document requests. Ultimately, an EEOC investigator is going to have to justify to his or her supervisor how the investigator reached the conclusion that there is (or is not) probable cause of discrimination. 

To persuade an investigator to find no probable cause, good documentation goes a long way. Therefore, employers can help themselves — before any potential discrimination claims arise — by maintaining good documentation. Document employee discipline. Document employee performance issues and, if those issues don’t improve, document any related employment decision. Therefore, if the EEOC comes calling, an employer can provide this information and more easily convince the EEOC that the employer had a legitimate business reason for taking an adverse employment action against an employee.

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