E-Newsletter

September 2009

Are You Prepared for an EEOC Investigation?

Deborah A. Krukowski, Esq.

Are you prepared for an EEOC investigation? You may have heard that the EEOC has gotten their groove back. But are you aware of just how threatening the situation really is? Since July 1st of this year, the EEOC has sued 14 employers for sexual harassment or sex discrimination! This doesn't include all of the employers since that date who have settled sex discrimination or sex harassment lawsuits filed by the EEOC. Eleven employers settled these lawsuits with the EEOC for a whopping total of $3,755,000.00 paid just to eliminate these discrimination and harassment actions. For example, a week ago, on September 1, 2009, Mars Supermarkets paid $275,000 to women to settle an EEOC sex discrimination lawsuit.

Last month, on August 21, 2009, Lowe's settled with the EEOC for $1.7 Million after the EEOC sued on behalf of three employees who allegedly were subjected to a sexually hostile work environment and retaliated against for complaining about it. In addition to the monetary relief, a three year consent decree resolving the case requires Lowe's to provide comprehensive training to their employees about harassment and retaliation, requires Lowe's to revise its sexual harassment and anti-retaliation policies, issue an anti-harassment statement to all employees, revise its method for tracking employee complaints of harassment, and report regularly to the EEOC on harassment and retaliation complaints during the term of the decree. The EEOC is quoted as stating "Corporate America should be on notice that sexual harassment and retaliation will not be tolerated by the EEOC...[t]he EEOC litigates in the public interest when employers fail to voluntarily comply with the law. It is in the best interest of all employers to have effective anti-discrimination policies and procedures in place to promptly address work place disputes."

As if that wasn't enough for employers to sit up and take notice, just over a month ago, the EEOC filed a lawsuit against a large Midwestern lumber supplier, Biewer Wisconsin Sawmill, Inc. ("Biewer"), claiming that the supplier allowed female employees to be sexually harassed at its Sawmill in Prentice, Wisconsin. The EEOC is alleging that a Biewer supervisor repeatedly exposed his genitals and is asking a Wisconsin Federal Court for compensation for emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation, punitive damages and backpay, among other relief, on behalf of a group of female employees. The EEOC claims that Biewer did not fire the supervisor until the Prentice County District Attorney began an investigation which led to the supervisor being charged under Wisconsin Law with two counts of lewd and lascivious behavior. The EEOC was quoted as stating "[e]mployers who don't protect their workers' rights need to know that the federal government will enforce our national policy against sexual abuse in the workplace...[d]espite all of the negative attention focused on sexual harassment over the past 20 years, it continues to be an area which demands the EEOC's focused law enforcement attention."

In yet another healthy dose of the EEOC's wrath, a federal court of appeals recently took the EEOC's side after the EEOC appealed a decision originally in favor of an employer. Even after management had taken a number of steps to address an employee's complaint, the Court found that a rational juror could determine that the employer "failed to take additional action...reasonably calculated to end the harassment." Management held several meetings with all people allegedly engaging in the harassment in order to verbally warn them, and walked around the department where the plaintiff worked to ensure that no pornography was being displayed. Management also removed internet access to an employee who worked next to the plaintiff due to her complaint that he was watching pornography. However, the EEOC convinced the Court that the employer could have done more to address the plaintiff's complaints of harassment including demoting the primary offenders, suspending them from work, reducing their pay, or issuing them written reprimands.

The trend indicates that the EEOC is focused on the insufficient responses by employers to harassment complaints-many employers are not taking steps reasonably calculated to end harassment. What steps are you taking?


For more information contact Krukowski & Costello, S.C.'s educational services department at (414) 423-1330.