Oh oh, EEOC has just asked you for a list of names and telephone numbers for a large group of your employees. Why? The usual answer is because EEOC wants to interview at least some of them to see if they have evidence supporting the claims in a discrimination charge filed by another employee. The number is usually large, so the employer has difficulty figuring out who might have talked to the Agency and possibly retaliating against them. The approach is called “hiding in plain sight,” and it is used by many investigatory agencies.
Of course, your company would never retaliate against someone for talking to an agency, but what are the employees going to think if they receive a call from THE GOVERNMENT asking them to talk about ALLEGATIONS against the company or its managers? This situation poses real problems for employers, who face pushback from employees about invasion of privacy (Why did you give my number to the Government?), angst over whether employees will get in trouble if they talk or don’t talk to investigators with either the company or the government, and just plain confusion about what the heck is going on.
To try to anticipate and avoid these problems, and others, company counsel and HR personnel may decide to be proactive and to tell employees just what the heck is going on. That’s what a Connecticut employer attempted to do when faced with a disability claim by a former employee, along with an EEOC request for names of co-workers to interview. The company sent a letter to employees telling them about the investigation and that they might be contacted. Unfortunately, the attempt backfired, and the company now finds itself facing a trial about whether it retaliated against or engaged in “interference” under the Americans with Disabilities Act (“ADA”) with a former employee and his colleagues, by sending the letter. The case sounds a warning and provides guidance to employers faced with similar circumstances.
Background of Case
The case is EEOC v Day & Zimmerman NPS, INC., (D. Conn. No 15-cv-1416), decided by Judge Victor A. Bolden on August 22, 2017. This case is one of first impression involving ADA interference under Section 503(b), which is separate from ADA’s standard anti-retaliation provision Section 503(a). A former employee, Charles Marsh, an electrician, filed a charge under the Americans with Disabilities Act against the Company. EEOC subsequently requested names and contact information for Day employees.
To avoid surprise to the employees, Day sent a letter to 146 electrical workers and former workers in Mr. Marsh’s area about the time it responded to the EEOC’s request for names. Day’s in-house labor counsel had the draft of the letter approved by the business agent for Day’s union, and testified she would not have sent the letter without that approval. The letter identified Mr. Marsh as the charging party, and detailed his claim that he could not work around radiation, and that Day denied him an accommodation of working in the 90% of the plant that had no radiation exposure. The letter pointed out that Day denied the allegations of the charge.
The letter also advised the employees that they might be contacted by an EEOC investigator, and stated that it was the employee’s decision whether to speak to the investigator, and that speaking, or not, would have no adverse consequences to the employee. The letter reaffirmed Day’s commitment to equal employment opportunity and its prohibition against retaliation for participating in the EEOC investigation. The letter closed by stating that if the employee chose to speak with EEOC and wanted Day’s counsel present, to let the company know and they would make arrangements. It also provided contact information for the company’s outside counsel.
EEOC sued, alleging the letter was retaliation against Mr. Marsh for filing a charge, and that the letter interfered with Mr. Marsh’s and the recipients’ rights protected by the ADA.
In-house counsel testified that she thought of the letter as a simple courtesy to employees to let them know that the company had given out their names and they could expect a phone call. She felt this approach was better than calling every affected employee. From her experience, she said, the letter was intended to respond to questions about whether employees needed to cooperate, and that retaliation would not occur for cooperation. She also stated that the letter could help find out what the witnesses have knowledge about, and that she had no reason to believe any of the employees knew anything about the case. She agreed that the company had no legal obligation to tell the employees their names were given to the EEOC, and noted that she felt once a charge was filed the company had to conduct an investigation about the claim which the employee has put in issue through the charge.
Following publication of the letter, Marsh was approached by various co-workers about his claims, and he alleged that he is now the first person laid off from jobs when he is referred by his union. EEOC issued a press release the day it filed the lawsuit, describing the case generally. Such press releases often disclose the name of the charging party and the nature of the charge, including that it arises from a disability, but without identifying a specific medical condition. An update about the case was released on EEOC’s Twitter account.
Both EEOC and Day filed motions for summary judgment. The judge denied victory to each side at this point, stating the matter will need to be resolved by a jury. However, the fact that EEOC’s claims have survived this far should be troubling to employers who may wish to contact their employees in similar circumstances. The discussion by the court about the issues provides some guidance, however.
Day argued that any finding against it would violate its First Amendment free speech rights. It also pointed out that EEOC publishes information similar to that contained in the letter. The court rejected this argument, noting that the discrimination statutes sometimes prohibit conduct that involves speech. Looking to NLRB cases, the court also noted a line of cases prohibiting inappropriate communications with employees in class action cases. Lastly, the court rejected the argument that the letter was protected by “litigation privilege,” which protects statements in litigation from ancillary claims such as defamation. The court pointed out that free speech does not protect speech which is retaliatory or coercive. Given the absence of any cases directly on point supporting the company, the court found that if the letter is deemed retaliatory, it is not protected by the First Amendment.
After disposing of potential defenses, the court turned to the question of whether the letter constituted retaliation under ADA. The court applied the McDonnell Douglas burden-shifting analysis, stating the plaintiff must prove:
Factors 1 and 2 were not in dispute. The court had previously ruled that it could not say as a matter of law that the letter was not an “adverse action.” The court had previously noted other decisions that a reasonable fact finder could conclude that dissemination by an employer of an employee’s administrative charge to colleagues is an adverse action. Given that retaliation cases define adverse actions more broadly than discrimination cases, the court stood by its previous ruling and said it was up to a jury to decide if the letter was “adverse action.”
On the issue of a causal connection between Mr. Marsh’s protected activity and the possible adverse action, the court noted that the time lag between the filing of the charge and the company letter, 17 months, was not the only relevant timeline. The letter was sent only three months after EEOC’s request for names and contact information, which request indicated that EEOC intended to pursue the charge seriously. Close temporal proximity, such as three months, has often been used to demonstrate causation in retaliation cases, the court said. Moreover, the letter clearly mentioned Mr. Marsh’s charge and EEOC investigation, further linking the protected activity and the potential adverse action, the letter. Thus, found the court, a jury could reasonably decide there was sufficient causation to demonstrate a violation.
The court also determined that a jury had to decide whether Day’s legitimate, non-discriminatory reason for the letter, “minimiz[ing] business disruption,” was credible. The court believed a jury could reasonably find that the letter did not need to identify Mr. Marsh, the nature and subject matter of his charge, the accommodation sought, nor explain that employees did not need to speak to the EEOC investigator and then offer counsel to employees. Such actions could be found to undercut Day’s professed legitimate reasons for sending the letter by a jury.
The court then denied both EEOC’s and Day’s motion for summary judgment on interference. The Supreme Court has not defined a test for what constitutes “ADA interference,” nor have other courts crafted such standards. The protection against “interference” is arguably broader than “retaliation,” because this portion of the ADA says an employer “may not interfere with any individual.” Thus, the rights of third persons besides Mr. Marsh – his colleagues – also come into play. Looking to interference cases under the National Labor Relations Act, the court noted that the motives of the employer in taking action may not be relevant. Thus, whether the letter had a “chilling effect” on Mr. Marsh or his colleagues was something to be determined by a jury, and not on summary judgment.
So, unless settled, a jury will soon be deciding this very interesting case. What can contractors and employers learn from this result?
If, as the court found, your legitimate motives may not be enough to keep you from enduring an expensive trial, the question becomes how do you balance legitimate business needs to avoid upheaval in your workforce with a goal of not winding up in court?
The author believes that there are some guidelines which can be discerned from Day & Zimmerman. Of course, from the EEOC’s standpoint, they would prefer the employer not contact employees at all, which avoids any possibility of retaliation or harassment. However, from personal experience, the author and many in-house legal and HR personnel have seen just how disruptive unannounced calls to a group of employees can be – HR may be flooded with questions.
Although the opinion notes the employer had no “duty” to send a letter to employees, it did not expressly prohibit all communications. To the author, it appears that the real problem for the court here is found in the specific details of the letter. Given the paucity of cases on this issue, it is difficult to give definitive guidance. However, the author suggests the following approach:
Do not state the name of the employee charging party, or describe the case in such a specific manner that the employee is identifiable. Placing this kind of focus on the charging party makes them a potential target, and is likely to backfire. EEOC is not going to name an individual publicly during the investigation stage, but only when suit is filed.
Do advise employees that it is their choice about whether to speak to EEOC, and that no adverse employment consequences will result from the investigation, regardless of their choice. While EEOC might prefer the employer say nothing, or instruct its personnel to cooperate, employees are free to decide for themselves. Day may have stressed the right not to speak a bit too much, but accurately stating the fact that it is the employee’s choice, without pointing out the right not to speak with EEOC more specifically, should be defensible.
Do not offer counsel. EEOC looks on that offer as tantamount to per se interference. However …
Maybe provide counsel when the employee comes to you and asks for help. Maybe, because you can create some interesting (meaning difficult) privilege and conflict issues by doing so. If you do offer counsel, be prepared to demonstrate that this was the employee’s initiative, not the employer’s.
Our guidance cannot guarantee that EEOC will not come after you. However, the actions suggested should allow you to reasonably balance the risks of business disruption with the risks of litigation. In-house personnel should be sure to stay up-to-date with developments in this area as they occur.