‘I didn’t see women working in the warehouse’: Avoiding EEOC discrimination lawsuits

The U.S. Equal Employment Opportunity Commission is cracking down on companies accused of gender stereotyping, a cautionary tale for businesses to avoid falling back on stereotypes when recruiting employees.

These cases play “off the stereotypes of women in the workplace that one would hope we’ve moved beyond, but obviously do still exist,” said Fiona Ong, a partner at Baltimore labor and employment firm Shawe Rosenthal.

Ong, who authored a blog post advising companies of best practices when being investigated by government agencies, said a company under regulatory scrutiny for alleged bias should seek legal advice immediately—whether from inside or outside counsel.

In an interview with Law.com, she said when companies are approached by government agencies about a compliance review, employers often don’t think this could put the company at some legal risk.

She said that contacting their lawyer doesn’t mean they’re admitting to doing something wrong and need their lawyer to protect them, but rather that it will ensure that things are being done correctly and people are prepared for the inevitable interviews.

Chris DeGroff, chair of Seyfarth Shaw’s complex discrimination litigation practice group, said an important first step is to assemble the employer’s public relations resources and consider key messaging to protect the company’s brand.

“Litigating against a federal agency, like the EEOC, is, in a word, different,” he said. “The motivations and agenda of a federal agency are considerably different than what one sees with private litigants.”

He said an early issue that employers face with an EEOC-initiated case is publicity.

“Unlike most private counsel, the EEOC often launches a case not only in court, but also in the press, issuing an aggressive press release on the same day a complaint is filed,” he said.

A slew of complaints

Not only has the EEOC brought a slew of lawsuits addressing the subject of stereotyping, but dozens of companies have had to pay out huge sums to complainants.

Related: The EEOC’s priorities in 2023: 4 trends employers need to stay on top of

Last month, Ohio-based Safelite AutoGlass agreed to pay a $45,000 settlement after the vehicle glass repair and replacement business was sued for allegedly refusing to hire a woman for an auto glass technician trainee position.

The EEOC claimed that although the female applicant informed the store manager that she had two years of experience as a repair technician, which involved lifting and moving heavy furniture, the manager expressed concern about her ability to lift heavy weight.

During an interview at a Safelite AutoGlass location in Austin, Texas, the store manager offered the applicant a lower-paying position, telling her it would be a better fit because it involved lifting less weight. The applicant did not hear back from Safelite after the interview. Within one week of the interview, the business hired two male technician trainees who were not better qualified than the female applicant, the complaint said.

In addition to the monetary relief, the company was prohibited from denying employment opportunities to women or engaging in any employment practice that discriminates against employees and applicants for employment due to their sex.

The federal agency also ordered Safelite to reissue its written equal employment opportunity policies to employees and to provide mandatory training on sex discrimination to all supervisory and/or management employees of its stores in Austin.

The EEOC also sued a staffing company on behalf of 48 women after the company allegedly refused to hire them for demolition and laborer positions because of their sex.

In this case, the investigation led to a default judgment, meaning the company did not respond. The federal court awarded more than $2.6 million to the workers.

“So the court then issues judgment against the entity because they didn’t put up any kind of defense,” Ong explained.

“Not calling your attorney at all is worse than not calling your attorney at the beginning of a governmental investigation,” she wrote in her blog post.

She told Law.com that if a company is sued, it should be defending itself and, in most cases, it needs a lawyer to do that. If the company doesn’t put up a defense, the court is going to find it liable.

“And particularly, in a case like this, where there were millions at stake, you don’t not put up a defense,” she said.

Costly and distracting

DeGroff said not only can EEOC-initiated actions be extremely expensive, they can pose a significant distraction from operations.

“Understanding what motivates the EEOC and how it uses its considerable resources are keys to an effective defense,” he said.

In March, the EEOC also obtained a default judgment against Hanover, Maryland-based Green JobWorks LLC for $2.7 million in a sex discrimination lawsuit.

Green JobWorks was accused of refusing to hire female workers for demolition and laborer positions. The suit also alleged that the employment agency assigned certain work duties on the basis of sex.

“Don’t make assumptions about whether someone can do a job—particularly one that is traditionally performed by one sex—based on their sex,” Ong warned companies in her blog post. “It is important to focus on whether the individual, regardless of their sex, can perform the role.”

She said she understands that employers may hire the best-qualified applicant for the role, but companies should make sure “that the qualifications are truly relevant to and necessary for the role.”

Andy Scroggins, a labor and employment partner at Seyfarth Shaw, agreed. He said that hiring decisions should be made based on job requirements and the skills and abilities of the candidates.

Scroggins said that he’s learned of some recent EEOC cases that have accused employers of relying on stereotypes instead of skills and abilities, “like assuming that women do not want to want to work the night shift or take on dirty or dangerous jobs.”

“Employers should not make assumptions,” he added. “Train your hiring managers to explain to the candidates what the job requires, then ask the candidate to describe their qualifications and how they would perform the job, and make decisions accordingly.”

He said that the EEOC now has a watchful eye on the construction industry, in particular, in an effort to “make sure that employment decisions are not being made based on outdated stereotypes.”

Be prepared

Ong wrote of her own experience when she assisted a company with a compliance review by the Office of Federal Contract Compliance Programs.

In this case, the company engaged in conversation with the agency before calling its lawyer. One of the warehouse managers told the investigator, “I just didn’t see women working in the warehouse.”

Ong said that the manager should not have spoken with the agency before consulting with a lawyer and should not have made such a statement.

“Also, if they’ve never hired women in the warehouse, I’m not really sure how much we could have saved them from liability,” she added.

She said that the statement was so “flagrant” that it was easy for the agency “to hang a lot onto it.”

DeGroff said that the EEOC and other agencies have also learned how to leverage cutting-edge discovery tactics, including aggressive electronically stored information requests.

“The agency often uses these tactics and a team of internal experts to increase leverage against unsuspecting employer defendants,” he said. “A robust, early, and privileged analysis of one’s data collection and retention posture helps targeted employers avoid letting the electronic tail wag the dog.”

Other companies involved in sex discrimination cases include Meta Platforms Inc., which allegedly “routinely discriminates” in steering job ads to specific age and gender groups on its Facebook platform; Pretium Packaging, for not hiring female machine operators; and Joe & the Juice, for failing to recruit, hire and promote women in its American locations since June 2017.