EEOC Trolling for Plaintiffs? Say it Ain’t so…

Contributed by Julie Proscia

There are many disturbing facets to this story that will both outrage and terrify employers. As such, I will try to narrow the scope as best as possible and weed through the issues. Last month, Case New Holland Inc. filed suit against the federal Equal Employment Opportunity Commission (“EEOC”) in the U.S. District Court for the District of Columbia. The suit alleges that the EEOC unconstitutionally trolled for class members in a potential age discrimination class action by essentially spamming over 1,000 of Case New Holland’s business email domains.  The facts alleged are outrageous for two reasons.  First, the EEOC sent a “spam like” survey regarding working conditions to over 1,000 email addresses and second, it did this two years after the complaint was filed and after allegedly remaining silent and not pursuing any charges for over a year.

The latter fact, the dormancy or silence, is definitely not a new issue. Charges and complaints often languish in EEOC purgatory for months if not years. The length of time for an investigation is not capped with a statute of limitation and there is no watch dog per se to spur completion. Once a charge gets sent to the bottom of the pile, it can be forgotten about for a long time. As management, this can be a catch twenty two: it is frustrating in the desire to have closure, but also allows for a distance that eases tensions and memories. 

The more controversial part of the story is the email blast.  The mass email blast takes the investigation process to a whole new digital level of response that is disconcerting. The mass email was transmitted at 8:00 a.m. and was sent in survey form.  Not only did this early morning email disrupt the enterprise, but it also elicited statements from upper level management that represent the corporation. This email went out not only to non-managerial employees, but also to members of management and executive level staff, including members of the counsel’s office. Some of the managers and executives were at a level where their responses could bind the company and be classified as admissions, unlike in the discovery process of a case where depositions are attended by counsel, this email went out blind.  Case New Holland Inc. was never showed nor told of the survey before its transmission. 

That brings us to back to the complaint. In its complaint, Case New Holland Inc. is seeking a permanent injunction prohibiting the EEOC from soliciting its employees with mass emails; a court order requiring that the EEOC turn over any and all information obtained through the email survey; and an order enjoining the EEOC from utilizing the information obtained and from disseminating the information to any third parties.  All of which are aggressive requests to combat an aggressive move on the part of the EEOC.

This is a case that we will monitor closely and update you on. Technology may make our lives easier, but it also adds an increased dimension of liability. If agencies can send out a mass spam request for information without a company’s knowledge, the class of plaintiffs may have just increased exponentially.