EEOC Hand Slapped, And Deservedly So, By 11th Circuit
by Michael Fox
Upholding a district court's finding that the EEOC had failed to engage in reasonable efforts to conciliate before filing suit, the 11th Circuit affirms the dismissal of the EEOC suit and the award of attorneys' fees to the employer. EEOC v. Asplundh Tree Expert Co (11th Cir. 8/7/03) [pdf]. After taking three years to investigate a charge, the EEOC issued a cause finding and then gave the employer 12 business days to respond to a proposal for a nation wide conciliation decree. When the company retained local counsel and responded one day after the EEOC's arbitrary deadline, the EEOC declared conciliation had failed and filed suit. The Court surmised out loud that perhaps the reason that the Miami office of the EEOC had done so was that conciliation was private, while a lawsuit would allow for publication of what were perhaps newsworthy allegations. This was borne out by an article in the New York Times which the court mentions in a footnote "inaccurately suggests that an Asplundh employee placed a noose around Lewis’ neck." The article which has been saved in a Yahoo group, reports on a number of suits brought around the country by the EEOC where "nooses" were involved.
Although obviously a serious matter, the facts as relayed in the decision make it clear that even if the event did happen, which was disputed, the employee who did it was a city inspector, not an employee of Asplundh, and when the employee complained to his supervisor, he arranged for a meeting with the inspector who apologized for any offensive conduct, and according to the employee no further events occurred. When the EEOC fails to act appropriately in these type of cases, and in fact engages in overreaching conduct, it hurts its credibility in dealing with cases where there is legitimate cause for action. And in that event, everyone loses.