Dollar General ruling strengthens EEOC's hand to widen discrimination claims into 'fishing expeditions'

By Mike Helenthal | Apr 24, 2017

The ruling of a Chicago federal judge in favor of an Equal Employment Opportunity Commission enforcement case against retail giant Dollar General will strengthen the EEOC’s hand in bids to widen single claims of employment discrimination into "company-wide fishing expeditions," say two Chicago attorneys and labor law experts.

Christopher DeGroff, a partner at Chicago-based Seyfarth Shaw, a leading national labor and employment firm, told the Cook County Record that the April 10 court ruling extends beyond the Dollar General case.

“With rulings such as this one, we can expect that the EEOC will continue to test courts’ willingness to force the Commission to abide by its statutory duties,” he said.

In the Dollar General case, the company claimed the EEOC didn’t follow the required pre-enforcement settlement process when it initiated an enforcement action against it.

While a Chicago federal judge ruled against the employer, DeGroff said other courts across the country have held the EEOC to a rigorous standard—and that companies should continue to try to hold the EEOC to that standard.

“Despite the unfavorable result for the employer here, employers should still be encouraged that many courts across the country have held the EEOC accountable for not fulfilling its pre-suit obligations,” he said. “One court’s adverse decision should not deter employers from pushing back against the EEOC when the Commission uses questionable investigation tactics.”

Alex Karasik, a colleague of DeGroff, agreed, saying companies should not just lay down when the EEOC starts proceedings against them.

“If employers do not push back on hasty EEOC investigations, the Commission will increasingly use single charges of discrimination as bait to quickly grow such investigations into company-wide fishing expeditions,” Karasik said. “As such, employers must be aggressive in attacking instances where the EEOC improperly expands its lawsuits beyond charges or fails to investigate and/or conciliate.”

Both attorneys said that to avoid EEOC intervention, employers should “consistently and thoroughly” conduct reviews of their policies and practices.

“These privileged audits can identify potential vulnerabilities, which is not only important for developing a legal defense, but also is a sound business best practice,” DeGroff said. “It is far better to learn early about any potential issues, and make considered decisions about if and how an adjustment should be made, rather than those same issues being tested in open court.”

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