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After lovingly writing this blog for 3 years, I’m thrilled to share that it has been selected by the Expert Institute as a nominee for 2015 Best Legal Blog!
Now though I need your vote as the winner will be selected by the readers.
So, can you please visit this page and click the “thumbs up” button to register your vote?
Thanks in advance for your vote!
Earlier this year, the EEOC announced the formation of the Select Task Force on the Study of Harassment in the Workplace. Its purpose is to examine the problem of workplace harassment in all of its forms and look for ways by which it might be prevented and addressed.
The Task Force is being co-chaired by EEOC Commissioners Chai R. Feldblum and Victoria A. Lipnic and is comprised of 16 members from around the country, including representatives of academia and social science; legal practitioners on both the plaintiff and defense side; employers and employee advocacy groups; and organized labor.
As President of Workplace Investigations Group (“WIG”), I am thrilled to announce that WIG member Sindy Warren, Esq. has been invited to present at an upcoming public hearing that is being held by the Task Force. Membership in WIG is limited to attorneys with 10+ years of employment law experience and who meet WIG’s Expert Qualification Criteria. They are all also committed to meeting the Responsibilities of WIG Expert Investigators.
Sindy Warren, Esq. is the principal for Warren & Associates in Cleveland, Ohio and conducts workplace investigations, creates and presents training programs on a wide variety of employment law and human resources issues, and acts as an as-needed human resources department for private and public employers, both large and small, throughout Northeast Ohio and nationally. She has investigated many employee complaints, including complaints of harassment, discrimination, retaliation, fraud and other workplace misconduct. The EEOC sought Sindy out based on her years of experience investigating issues of harassment in the workplace.
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Workplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations. All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny. Click here for information on upcoming training in Washington D.C., Miami, FL, Las Vegas, NV, Chicago, IL, Cincinnati, OH, St. Louis, MO, and Newton, MA.
The NFL’s decision to use the same law firm to both conduct the “independent” investigation in Deflategate and to advocate for the NFL in the subsequent lawsuit was a rookie mistake.
In fact, I think that the judge’s decision today overturning the 4-game suspension can be traced directly back to that rookie mistake. Why? Because that key decision created a conflict of interest at the law firm: Was the law firm’s role one of independence or one of advocacy? You can’t be both, at least as a lawyer.
Here’s how I explained the conflict of interest in my blog of July 29th:
“Here, it seems clear, at least to this attorney, that the NFL has placed the adequacy, reasonableness and independence of the Wells investigation directly at issue. As such, Brady and the NFL Players Association should have been provided with production of the contents of the Wells investigation file, including his communications to/from witnesses interviewed as well as to/from the NFL and others consulted during the investigation process. It is only by allowing the opportunity to review the full investigation file that they can evaluate the adequacy, reasonableness and independence of the Wells investigation.”
The federal judge who heard the lawsuit agreed with me, noting that the firm’s “role in this case seems to have “changed” from “independent” investigators to NFL’s retained counsel at the arbitral hearing.” The judge was concerned that
“[a]mong other things, this change is roles may have afforded Goodell (and Pash) greater access to valuable impressions, insights, and other investigative information which was not available to Brady.”
Ya think?
This begs the question, of course, why would the NFL and its law firm (Paul, Weiss – a prestigious and large firm) make such a rookie mistake? One word:
First, the law firm would lose out on what I can only suspect were significant legal fees associated with representing the NFL during the arbitration hearing and subsequent legal appeal if they referred the NFL to another law firm to handle those matters. These legal fees would be in addition to the reported $3+ million in fees paid to the firm to conduct the “independent” investigation. Second, law firms hate to refer their clients to other law firms because there is always the risk that the client will like the other firm better and they’ll lose the client on future matters.
As Paul Weiss – the law firm at issue here – scrapes itself off the floor after being handed such a public loss, they may also be well served to call their malpractice carrier and perhaps brace for ethics complaints against several of their attorneys. Although the New York Lawyer’s Code of Professional Responsibility does not appear to require the disqualification of the entire Paul Weiss law firm because one of its partners (Ted Wells) was a witness in the litigation, it does seem that Paul Weiss would have been, at minimum, ethically bound to advise the NFL of the disadvantages of retaining the firm to conduct both the independent investigation and then serve as its litigation counsel. The question, of course, is whether the firm did advise the NFL of those potential disadvantages and the NFL decided to use the same firm despite those disadvantages.
Here’s my bottom line for lawyers and law firms asked to serve as both independent investigation counsel and litigation counsel: Just say no.
As this case clearly illustrates, the disadvantages to your client are significant. Instead, encourage your clients to retain either separate litigation or investigation counsel and consider consulting the national directory of experienced and well-qualified attorney investigators that is readily available at Workplace Investigations Group.
Addendum: As author Sue Reisinger pointed out in her article “Judge Knocks Air Out of NFL’s Deflategate Probe,” the question of “what is an independent investigation was also at issue in the General Motors Co. faulty ignition switch scandal last year, when GM hired a law firm that had been traditionally close to the company to conduct its internal probe. GM also named its then-general counsel Michael Millikin as co-lead investigator, even though Millikin’s legal department was at the heart of the scandal.”
As I wrote about earlier this week, among the challenges Tom Brady is making in the appeal of his 4-game suspension is a challenge to the NFL’s assertion that the investigation file and the communications between the NFL and the attorney who conducted the Deflategate investigation are privileged. According to media coverage, Tom Brady requested a copy of the investigation file and of the communications between the NFL and Wells as a part of his appeal and the NFL refused asserting the attorney-client privilege.
Brady has now appealed and the suspension will be reviewed and decided by a federal judge unless the parties can resolve their own dispute through negotiations or mediation.
Deflategate highlights a recurring issue that arises when employers retain an attorney to conduct an attorney-client privileged internal investigation into allegations of workplace misconduct: What happens to the privilege if the employer later wants to rely on the results of the privileged investigation to defend the business decision it made as a result of that investigation?
As I explained in my earlier blog, courts generally have held that employers waive the privilege where they rely on the investigation as an affirmative defense in subsequent litigation.
Deflategate stands as an important reminder to employers to understand the scope of the attorney-client privilege, and to take appropriate steps to avoid unintended waivers of the privilege in connection with workplace investigations.
5 Tips for Preserving the Privilege & Avoiding Inadvertent Waiver
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Workplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations. All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny. Click here for information on upcoming training in Houston, and Washington D.C.
Yesterday, the NFL issued a 20-page decision upholding the four-game suspension of Tom Brady, the star quarterback of the New England Patriots.
Brady’s agent, Don Yee, quickly attacked the decision saying the appeal lacked in procedural fairness:
“The appeal process was a sham, resulting in the Commissioner rubber-stamping his own decision. For example, the Wells investigative team was given over 100 days to conduct its investigation. Just days prior to the appeal hearing, we were notified that we would only have four hours to present a defense; therefore, we didn’t have enough time to examine important witnesses. Likewise, it was represented to the public that the Wells team was ‘independent’; however, when we requested documents from Wells, our request was rejected on the basis of privilege. We therefore had no idea as to what Wells found from other witnesses, nor did we know what those other witnesses said.”
In an article earlier today, journalist Daniel J. Flynn picked up on Yee’s criticism and questioned the NFL’s “gamesmanship.” Specifically, Flynn asked
“How can the NFL simultaneously characterize Ted Wells as “independent” and correspondence related to his investigation as “privileged” because of an attorney-client relationship?”
Great question.
The answer: I don’t think the NFL’s assertion of the attorney-client privilege will withstand legal scrutiny by the Federal Court in New York, which has been asked to affirm the NFL’s decision. Here’s why.
The Wells Investigation Likely Attorney-Client Privileged
The attorney-client privilege is the “oldest confidential communications privilege known to the common law.” It protects confidential communications made by clients, including corporate clients like the NFL, to their attorneys in order to obtain legal assistance or advice.
In the context of an investigation like the one the NFL retained attorney Ted Wells, there are two questions relative to the privilege: (1) whether Wells was serving in his “capacity of legal advisor;” and (2) wether the NFL waive the attorney-client privilege by sharing the Wells’ investigation report publicly and repeatedly touting its independence.
In this case, I think it’s fair to say that the answer to the first question is yes. When Wells conducted the investigation he was acting his capacity as an attorney and the investigation, investigation file and investigation report were, therefore, protected from discovery by Brady and the NFL Players Association. However, that doesn’t end the legal analysis.
The NFL Likely Waived the Attorney-Client Privilege
The more difficult hurdle for the NFL to overcome will be to convince the judge that it did not waive the attorney-client privilege when it shared the investigation report publicly and repeatedly assured the public that the Wells investigation was independent, full and fair.
The legal case law in this area has largely developed in the context of employment discrimination cases. In those cases, employers who invest in the expense of retaining an attorney to conduct and attorney-client privileged workplace investigation will often want to use that investigation as a defense to any subsequent discrimination lawsuit. In doing so though, they are generally held to have waived the protection of the attorney-client privilege.
Brady Should Have Been Allowed to Review Wells’ Investigation File to Test Independence of Investigation
Federal Courts in NY (where the NFL/Brady appeal is now pending) have held that employers cannot assert the attorney-client privilege while simultaneously relying on the investigation evidence and/or findings in defense of a discrimination or harassment claim. [i] In rejecting the employers assertion of the privilege in these situations, the courts have said that the employer was attempting to use the privilege and both a sword and a shield and “this it may not do.” [ii]
In reaching this conclusion, the courts have pointed out that equity requires that a plaintiff as well as the court be permitted to explore the parameters of the investigation to evaluate the adequacy, reasonableness and independence of the investigation.
Here, it seems clear, at least to this attorney, that the NFL has placed the adequacy, reasonableness and independence of the Wells investigation directly at issue. As such, Brady and the NFL Players Association should have been provided with production of the contents of the Wells investigation file, including his communications to/from witnesses interviewed as well as to/from the NFL and others consulted during the investigation process. It is only by allowing the opportunity to review the full investigation file that they can evaluate the adequacy, reasonableness and independence of the Wells investigation.
[i] See McGrath v. Nassau Health Care Corp., 204 F.R.D. 240 (E.D.N.Y. 2001); Brownwell v. Roadway Package Sys., Inc., 185 F.R.D. 19 (N.D.N.Y. 1999).
[ii] Brownwell v. Roadway Package Sys., Inc., 185 F.R.D. 19, 25 (N.D.N.Y. 1999).
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Workplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations. All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny. Click here for information on upcoming training in Houston, and Washington D.C.
Regardless of how well operated an organization is, there will, inevitably, come a time when a compliance concern is raised that needs to be investigated. Planning for that day is absolutely critical.
Ask yourself: Who do you have within your organization or in your rolodex who is experienced, well-trained and ready to conduct the necessary prompt, impartial and thorough investigation into an allegation of workplace misconduct or compliance concern?
Today, it is my pleasure to share an article that features one such investigator – Diane Citrino, Esq. Diane is an attorney located in Cleveland, Ohio and a member of the Workplace Investigation Group, a nationwide network of employment attorneys who conduct impartial investigations into allegations of workplace misconduct, such as harassment, discrimination, retaliation and more.
To learn more about Diane’s legal practice and how she draws on her childhood heroes of Nancy Drew and Perry Mason when she conducts independent corporate investigations click here to access the full Attorney at Law article.
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Workplace Investigations Group offers a National Directory of well-qualified attorneys who conduct impartial internal investigations. All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny. Click here for information on upcoming training in Atlanta, Houston, and Washington D.C.
Yesterday, the Hawks’ former GM Dan Ferry told the Atlanta Journal Constitution that he’s “been asking the Hawks for many months to release the results of the Taylor investigation because I wanted everyone to have those facts. For whatever reason, the team refused to release the results until after the season ended.”
According to Ferry, the investigator had completed his investigation over 8 months ago. However, the investigator (Atlanta Attorney Bernard Taylor) only sent Ferry a summary letter advising him that the investigation did not find wrongdoing on June 19, 2015. Here’s a copy of the letter:
As a workplace investigator, that 8 month lag between September of 2014 and June 22, 2015 when they released two letters announcing the results of the investigation leaves me asking some questions.
Why the 8 month lag?
The answer to this question seems fairly obvious: The Hawks waited 8 months to share the results of the investigation publicly because they wanted to wait until the end of the basketball season. Arguably, the Hawks successfully shielded the team and franchise from media distraction and scrutiny through this delay – and the Hawks had a good run.
Why was the impartial investigator asked to draft the June 19th letter to Ferry?
This question requires a bit more reading of the tealeaves. Here’s how Atlanta employment attorney Jimmy Daniel explains it:
“The AJC has reported that on June 19, the Hawks and Mr. Ferry reached an agreement to ‘buyout’ the remainder of his contract for an undisclosed sum and on undisclosed terms.
ESPN has taken that a step further by reporting that the letter from Alston & Bird to Mr. Ferry – dated June 19 – was a condition of that settlement. I certainly cannot verify that ESPN is correct in that regard. In my experience, however, it would not be uncommon for a mid-contract executive negotiating a severance package in the context of allegations of misconduct to seek such a letter. Of course, whether he or she is successful in obtaining such a letter depends on the parties’ respective bargaining power.”
Why did the impartial investigator agree to issue the letter to Ferry?
Often employers will utilize an external investigator to review allegations of misconduct that involve senior leadership. The Hawks’ attorneys and leadership understood the value of hiring someone from the outside to investigate. With an outsider, the Hawks deflected criticism that the allegations were not properly addressed and gave them a more credible source to rely upon when it came time to make decisions based upon vetted factual findings.
What is curious with the Hawks is why the investigator wrote a letter to Ferry on June 19, 2015. While it is common for investigators to share the results of the investigation with the accused and the accuser, sometimes called a “close out” meeting, the timing – among other things – seems a bit off here.
When the impartial investigator agreed to issue that letter to Ferry 8 months after the investigation was complete did he forget his role as neutral and move to a role of advocate?
Put another way, this question asks whether when investigator agreed to issue the June 19, 2015 letter to Ferry over eight months after the investigation was complete he compromised his impartiality as an investigator and/or moved into a role as a representative/advocate of the employer?
Federal EEO laws require that workplace investigations into related misconduct allegations must be prompt, thorough and impartial. That means both the investigation and the investigator must be impartial and neutral. IBM, for example, learned the hard way about what happens when an investigator is not neutral.
Did the Hawks and the investigator make a similar misstep here?
In looking at the bio of the investigating attorney, Bernard Taylor, there is no question that he is a very accomplished and highly skilled advocate. According to his bio, he has over 30 years of trial experience and concentrates his practice on complex commercial litigation, products liability and pharmaceutical, environmental and toxic tort lawsuits. Additionally, he formerly conducted criminal investigations for the Detroit police force. He also has received numerous accolades for his legal advocacy.
His credentials are beyond reproach as a legal advocate. But, here’s the potential problem: Taylor wasn’t retained by the Hawks to be the team’s advocate. He was retained to be an impartial and neutral investigator.
According to the June 19th letter, Taylor’s retention was to conduct an impartial and neutral investigation into a concern that Ferry’s repetition of racially charged words in a scouting report “was motivated by racial, ethnic or country of origin bias or animus.” It appears that Taylor met this charge and delivered his report to the Hawks in September of 2014.
So, why would Taylor now – over 8 months later – write a letter to Ferry now about the investigation’s conclusions? Simply put, there does not appear to be a substantive reason for Taylor – as an investigator – to have written the letter to Ferry in June of 2015. So, again, why was Taylor the author? Perhaps, as Attorney Daniel speculated, it was part of Ferry’s contract buy out.
But, is that the role of an impartial investigator – to execute terms of a settlement? Arguably, Taylor’s conduct “served” both Ferry and the Hawks…but did it also serve the potential victims here?
As an outside attorney your actual impartiality and neutrality is imperative to the integrity of the process, but so is the perception of impartiality/neutrality. According to the Guiding Principals issued by the nonprofit the Association of Workplace Investigators:
“An outside attorney investigator conducting an impartial investigation should appreciate the distinction between the role of impartial investigator and that of advocate.”
Against these principles (and blind eye to the victims of the racially charged comments – admittedly uttered by Ferry and that originated with the Scout that he relied upon), I believe that there is a palpable argument that the investigator at least compromised the perception of his impartiality when he issued the recent letter.
Frankly, the investigator would have been better served (and the Hawks would have been better served) to have passed on the June 19, 2015 letter. Of course, this is a delicate point.
So, what do you think?
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Workplace Investigations Group offers a national directory of well-qualified attorneys who conduct impartial internal investigations. All of its workplace investigators have 10+ years of employment law experience and have agreed to support their responsibilities to the professional and impartial workplace investigations process and the parties that they serve. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny. Click here for information on upcoming training in Washington D.C, Atlanta, and Houston.
The media frenzy continues today as Tom Brady is anticipated to appeal his four-game suspension and connection with DeflateGate. Brady’s suspension has been criticized for being out of proportion with other disciplinary decisions, namely that other players’ domestic violence incidents have resulted in only 2 game suspensions.
These criticisms omit a critical fact.
In Vincent’s disciplinary notice to Brady, he is crystal clear that Brady’s four game suspension is not only related to his role in deflating footballs, but also (and critically) related to his misconduct during the investigation itself.
The letter states in relevant part:
“Moreover, the report documents your failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information, and by providing testimony that the report concludes was not plausible and contradicted by other evidence.”
In short, Tom Brady’s failure to cooperate with the investigation undermines the ability of the NFL to take care of shenanigans (and worse) on an internal basis. Only a few media outlets highlighted this fact.
But what’s the big deal here? Here’s the big deal: Brady (and his agent who is also an attorney) refused to provide text messages to the investigator as requested, despite the investigator taking extreme measures to assure and confirm that the investigation would only be interested in relevant text messages.
Workplace Investigator and Attorney Diane Citrino explains it well: “In today’s digital age, text messages exchanged at or near in time to the incident are gold.” In the “Deflategate” investigation, text messages relating to a Patriot’s staff person calling himself (or herself) “the deflater,” were the type of critical evidence evidence that “was not typically available in the past,” says Citrino. Citrino agrees that the “DeflateGate” investigation’s conclusion that Brady was uncooperative was on point. Indeed, the lack of cooperation suggested that Brady had motive to hide the ball, not just deflate it.
Where an employee (or NFL player) fails to cooperate with the very mechanisms intended by the employer (or League) to ferret out wrongdoing and wrongdoers quickly and efficiently, a stiff penalty – perhaps even greater than a four game suspension – is merited to ensure that any investigation into allegations of misconduct – whether domestic violence, juicing, or cursing – is taken seriously by all of the employees (or players) involved. Without the ability to enforce the duty to cooperate it would be difficult, if not impossible, to deter any future players from gaming the system.
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Workplace Investigation Group offers a national directory of well-qualified attorneys who conduct impartial internal investigations. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny. Click here for information on upcoming training in Jacksonville, FL, Washington, D.C., Philadelphia, PA, and Atlanta, GA. – See more at: https://winwinhr.com/#sthash.rtWhbCZZ.dpuf
Yesterday’s press conference by Ted Wells defending the independence of his internal investigation should serve as a reminder of the importance of selecting an investigator who will not only be independent and impartial but also be perceived as independent and impartial.
Wells and his law firm Paul Weiss had been retained by the NFL earlier this year to conduct an independent and impartial investigation into allegations that the Patriots intentionally deflated footballs in the AFC Championship Game against the Colts.
As an organization faced with the need to retain an attorney to conduct an impartial internal investigation into an allegation of misconduct, the NFL was faced with a balancing act.
On the one hand, as regular legal counsel to the NFL, Ted Wells was familiar with the NFL. Wells had done prior investigations for the NFL and together with his colleagues at the law firm of Paul Weiss is defending the NFL in a lawsuit brought by former NFL players alleging the league deliberately and fraudulently ignored the risks of neurological damage caused by repeated blows to the head that the players suffered.
As such, Wells was a good candidate for the investigation because he could more easily navigate the organization resulting presumably in an ability to more quickly conduct and conclude the investigation.
On the other hand, the existing relationship between Ted Wells and his law firm would create at least the appearance of a potential conflict of interest, i.e. did Wells make close calls in favor of the NFL in order to keep his current work with the NFL and curry favor for future work?
Here are my two cents: As a general matter, the higher the stakes of the investigation the more important it is to avoid even the appearance of a conflict of interest. If an investigation is more routine in nature – think employment claims of harassment or discrimination or a potential regulatory compliance violation — then using an attorney at an organization’s regular law firm may be appropriate.
But, where – as was the case with the NFL investigation of the Patriots and Tom Brady – the stakes are high and everyone knows the report will be subject to significant media and legal scrutiny why create even the perception of a conflict of interest by selecting an attorney at the NFL’s regular law firm.
There are any number of well-qualified attorneys in the United States available to conduct an independent investigation of this type. Given the stakes, one has to ask whether the NFL would have been better served to have selected one of those other well-qualified attorneys to conduct this investigation.
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Workplace Investigation Group offers a national directory of well-qualified attorneys who conduct impartial internal investigations. It also delivers training to in-house counsel, risk managers, human resources professionals and others on how to conduct internal investigations that will withstand third-party scrutiny. Click here for information on upcoming training in Jacksonville, FL, Washington, D.C., Philadelphia, PA, and Atlanta, GA.
The United States Supreme Court yesterday settled the question of whether the Equal Employment Opportunity Commision’s statutory duty to conciliate a remedy to a Title VII violation prior to filing a lawsuit is subject to some level of judicial review. The decision was unanimous and the answer is – yes, the EEOC’s actions are subject to a “narrow” judicial review.
The Supreme Court Decision
The Supreme Court had granted review to decide the issue of “Whether and to what extent may a court enforce the EEOC’s mandatory duty to conciliate discrimination claims before filing suit?”
Under the law, the EEOC is required to “conciliate” cases after having found “reasonable cause” that a violation of the law has occurred before it files a lawsuit against the employer. Significantly, the language of Title VII specifically requires the EEOC to “endeavor to eliminate” alleged discrimination by “informal methods of conference, conciliation, and persuasion.”
In the Mach Mining case, the EEOC sued the company for sex discrimination on behalf of a class of women who were denied jobs. Mach Mining accused the EEOC of filing the lawsuit before attempting to conciliate in “good faith” and a battle then ensued over whether the EEOC has complete discretion on conciliation, or whether its conduct should be reviewed by a court.
EEOC’s Position: The EEOC’s position in that battle has been that the courts have no right at all to review the EEOC’s conciliation efforts. In the alternative, the EEOC argued that should there be some level of judicial review that it would be limited to confirming that (1) the EEOC had notified the employer of its reasonable-cause determination in a letter inviting the employer to conciliate the charge; and (2) the EEOC had subsequently sent a letter to the employer advising it that conciliation had failed. As such, any judicial review would be limited to confirming the existence of those two letters.
Mach Mining’s Position: Mach Mining argued that although courts should be deferential to the EEOC that judicial review should consist of more than confirming the existence of two letters and that con. Mach Mining insisted that the EEOC’s “conference, conciliation, and persuasion” must be done in good faith, and subject to court review.
Supreme Court’s Holding: The Supreme Court rejected the arguments of both the EEOC and Mach Mining holding that the EEOC’s conciliation efforts are subject to a narrow review but that there is no requirement that the EEOC engage in those efforts in “good faith.”
Reactions from Plaintiffs’ Attorneys
The plaintiffs’ bar sees the decision as a win for the EEOC and employees. In fact, Atlanta, Georgia attorney Matthew Billips says “the Court got this one completely right.” According to Billips, “good faith negotiation doesn’t work when only one side is required to do it” and since employers are under no obligation to negotiate, much less negotiate in good faith” it would be unfair to “impose a one-sided duty on the EEOC.”
Paul W. Mollica, an attorney in the Chicago office of Outten & Golden says that the “decision abrogates a line of case authority which for years sanctioned searching discovery and judicial second-guessing about EEOC conciliation efforts” and “restores the balance that Congress intended in Title VII of the Civil Rights Act, to reward collaborative behavior.”
Donna Ballman (a Florida attorney who wrote Stand Up For Yourself Without Getting Fired and represents employees) says the Supreme Court’s decision “makes perfect sense, since there is absolutely no realistic way for a court to decide if one party is being unreasonable in a settlement discussion. While EEOC has to try to get the employer to voluntarily comply with the law, the courts are not going to tell it how to accomplish that. Frankly, it’s the employers who should be really glad that the Supreme Court didn’t order EEOC to get more forceful with scofflaw employers, and it’s taxpayers and employees who lose out when employers fail to conciliate reasonably.”
Reactions from Defense Attorneys
Although the Supreme Court’s decision was a compromise between the EEOC’s argument and the employer’s position, the defense bar views the decision as being a win for employees. Fisher & Phillips (a national law firm with 300 attorneys and 30 offices) cautions that “the decision frees the EEOC to continue its use of inflexible and frequently unreasonable demands accompanied by the threat of the EEOC’s aggressive litigation tactics and tremendous resources to force employers into settling claims. Employers will now only obtain relief against these tactics by taking cases to judgment and seeking attorneys’ fees, a costly and hardly palatable proposition.”