The right to communicate with the Equal Employment Opportunity Commission (EEOC) is protected by federal law. In fact, the EEOC’s Strategic Enforcement Plan identifies, as one of its six enforcement priorities, “preserving access to the legal system.” Recently, one employer learned that a letter from its in-house attorney to its workforce may be viewed as violating federal law by “chilling” employees’ willingness to file discrimination claims.
In September 2015, the EEOC filed a lawsuit in federal court in Connecticut, against Day & Zimmermann NPS (DZNPS), a provider of staffing services to the power industry. The suit alleged that DZNPS violated the Americans with Disabilities Act (ADA) when that company sent a letter from its in-house counsel to nearly 150 employees, informing them that one of their co-workers had filed a disability discrimination charge. The letter divulged the name of the employee, the specific allegations in the charge (including the nature of the disability alleged), and the actual accommodations sought by the individual.
The EEOC’s lawsuit invoked the ADA’s “interference provision,” alleging that the sharing of details related to the employee’s charge not only amounted to retaliation against that employee, but also created a potential “chilling effect” by intimidating other employees against filing charges in the future. The company responded by stating that the letter was provided to other employees as a “courtesy” simply to alert them that they may be contacted by the EEOC with respect to the original charge.
Cross motions for summary judgment by the parties both were denied by the court. Instead, the court found, in late August of 2017, that the case should be determined at trial by a jury, both on the retaliation claim against the filer of the original charge and on the interference claim affecting other employees.
A settlement was reached in November 2017. In that settlement, the company agreed to “extensive injunctive relief” and $45,000 in compensatory damages to the filer of the original EEOC charge.
This decision involving the EEOC’s New York district Office – which oversees NY, Northern NJ, CT, MA, RI, VT, NH, and ME – should be noted by employers and, more specifically, by their in-house counsel. The ADA’s interference provision was interpreted in this case as protecting an individual charge filer from retaliation, as well as protecting workers who hadn’t yet engaged in any specific EEOC-related activity.
All that is required to establish an ADA interference claim is to point to evidence of an employer action that could be interpreted as coercing or intimidating an employee into not exercising his or her rights under the ADA. In this case, the letter, which included specifics about the employee’s disability discrimination charge, was sufficient to get the lawsuit in front of a jury. In-house counsel therefore should ensure that if a letter to other employees is necessary, that letter should be limited in scope and factual information. Such careful action can avoid unintended liability under the ADA’s interference provision.