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The Deck is Stacked Against Plaintiffs in Employment Cases – But the Fight Goes On

On Behalf of | Aug 16, 2016 | Employment Law |

The U.S. Supreme Court recently decided a case that attracted little attention. On the surface, CRST Van Expedited, Inc. v. Equal Employment Opportunity Commission[i] (5/19/16) was about the definition of a “prevailing party” for purposes of awarding attorney fees. The Court unanimously held that a defendant does not need to obtain a favorable judgment “on the merits” in order to be awarded attorney fees.

Translation: The ruling opened the door for the district court’s whopping $4.7 million dollar award to be reinstated against the EEOC. This would be the largest attorney fee award ever levied against the federal employees’ rights agency. Why did the district court order the EEOC to pay such a large award in the first place?

This merits a refresher on what the EEOC does. In short, they enforce federal laws making it illegal to discriminate against job applicants or employees on the basis of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. An employee alleging discrimination must file a charge with them as an administrative prerequisite to filing in federal court. The EEOC has a statutory duty to investigate and determine whether discrimination occurred.[ii]

In rare cases, usually involving egregious or class-wide allegations, the EEOC will try to settle the case, and failing that, litigate the case themselves. This is where they got into trouble in the CRST case. The district court held that the EEOC didn’t do a good enough job investigating or trying to settle, or “conciliate,” on behalf of the plaintiffs. As a result, they dismissed the case and levied the massive attorney fee award against the agency.

But who really suffered, besides the taxpayers? The case began eleven years ago when one Monica Starks alleged she was sexually harassed by two males during her training. The EEOC investigated, found reasonable cause that discrimination occurred, and filed suit on behalf of Ms. Starks and a class of other women. During discovery, the EEOC determined that 250 other women had suffered discrimination; this number was eventually reduced to 67. However, the district court dismissed the entire case because it determined the EEOC did not do what it was statutorily required to do regarding investigation and conciliation.

What of poor Ms. Starks, or the other women who may have been sexually harassed and otherwise discriminated against? Eleven years later, they have no claim left.

This article is not to pass judgment on whether the EEOC did, in fact, fall short of its statutory duty. Instead it is an attempt to highlight merely one of the many procedural obstacles that aggrieved employees face when they attempt to make a claim. Nobody ever determined whether Ms. Starks was in fact sexually harassed, nor whether any of the other women in the class suffered discrimination. Instead, the case has meandered through the court system for eleven years on procedural issues, and the plaintiffs are out of luck.

Employees face many other additional procedural obstacles before a court may even begin to consider the merits of their claim. Employers may bury shortened statutes of limitations in the fine print on employment applications or other documents, just above where the employee signed it on applying many years ago.[iii] The same principle will apply to arbitration provisions.[iv] This is why it’s critical to get ahold of an employee’s personnel file immediately upon potential representation.

Another procedural “gotcha” affects those who declare bankruptcy, a common and understandable response to being fired and losing income. Debtors who fail to disclose a potential employment claim as an “asset” of their estate may lose their claim entirely.[v]

Employees suing governmental entities face special obstacles. They may be forced into the newly reorganized Court of Claims,[vi] or lose their claim altogether due to governmental immunity issues. For example, neither state governmental entities nor their employees may be sued for damages under the Americans with Disabilities Act,[vii] Family Medical Leave Act, [viii]or the Fair Labor Standards Act.[ix]

Even plaintiffs who successfully avoid these procedural traps will almost assuredly not have their day in court. According to a 2010 ABA study, far more than 90% never go to trial. Over 40% have their claims dismissed beforehand; the rest accept modest settlements. Those that do go to trial lose 2/3 of the time.[x] Even those 2% of all cases who win at trial will likely face appeal, and additional risk of losing what they won.

In the face of all this, it’s easy to see why the decision in CRST Van Expedited, Inc. v. EEOC barely caused a ripple: plaintiffs being denied their day in court was not news.

Despite such procedural traps, seasoned employment rights attorneys can nonetheless achieve justice for their clients. Success may be had in protecting a person’s career and future employability, as well as defeating dismissal and obtaining significant compensation. And while trial victories are rare, they are especially sweet when they occur. The deck is stacked, but the brave claimants who assert their rights – and the attorneys who buck the odds – will keep fighting as long as there’s even a scrap of sod on that uneven playing field.

Nick Roumel is a principal with NachtLaw, P.C., and he is a co-chair of the WCBA Labor and Employment Section.

[i] ___ US ___ (Docket No. 14-1375, May 19, 2016).

[ii] See, generally,

[iii] Rory v. Continental Ins. Co., 473 Mich 457 (2005); Clark v. Daimler Chrysler, 268 Mich App 138 (2005).

[iv] Rembert v. Ryan’s Family Steak Houses, 235 Mich App 118 (1999).

[v] A debtor is supposed to know that questions like this one on the bankruptcy schedules are supposed to elicit potential employment claims: “[List] Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims. Give estimated value of each.” Failure to do so will bar a later employment claim under the doctrine of judicial estoppel. E.g., White v. Wyndham Vacation Ownership, Inc., 617 F.3d 472 (6th Cir. 2010).

[vi] MCL 600.6419, PA 164 (November 13, 2013).

[vii] Board of Trustees v. Garrett, 531 U.S. 356 (2001).

[viii] See, e.g., Coleman v. Maryland Court of Appeals, 132 S. Ct. 1327 (2012), where in a plurality opinion, the Court held that states enjoy sovereign immunity for claims under the self-care portion of the FMLA. See also Touvell v. Ohio Dept., 422 F3d 392 (6th Cir. 2005), cert den 546 U.S. 1173 (2006).

[ix] Alden v. Maine, 527 U.S. 706 (1999). In Mich. Corr. Org. v. Mich. Dep’t of Corr., 774 F.3d 895 (6th Cir. 2014), the 6th Circuit held that claims for injunctive relief are also barred, and that they may be presented to the Department of Labor for enforcement. However, this author’s administrative claim to the DOL a year and a half ago has yet to even be acknowledged.