Jottings By An Employer's Lawyer

Wednesday, July 11, 2007

EEOC and the Press Release

For anyone who has ever done battle with the EEOC over the wording of a press release, here's some judicially sanctioned ammunition for the next battle. Although denying Serrano's Restaurant's motion for sanctions against the EEOC, Judge Frederick J. Martone of the District Court of Arizona had this to say:

Our denial of the defendant’s motion is not an expression of our view on the underlying merits or the propriety of the EEOC in using press releases as part of its approach to litigation. Lawyers have a professional obligation to avoid extrajudicial statements that may prejudice a proceeding, see ER 3.6, and an obligation to be truthful in statements to others, see ER 4.1. LRCiv 83.2(d). There is a big difference between promoting the public’s right to know through keeping proceedings public, on the one hand, see Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003), and affirmatively issuing press releases, on the other. The United States, and its employees, have a special duty not to injure the reputations of its citizens. Nor should it use press releases as a bargaining tool in litigation. [my emphasis]

Hat tip to the Daily Labor Report ($)for picking up this unpublished decision entered on July 5th.


In my view, the EEOC unfairly uses the media to gain leverage in its litigation and enforcement pursuits. On several occasions at the start of litigation, the agency has sent out a press release that includes detailed allegations of sexual harassment against a business and individuals. Because the release is issued by a government agency, news media somehow think it is more credible and end up printing the story. In many situations the "threat" of publicity drives the litigation more than the merits of the claims. I am delighted to see that someone tried to fight back.
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