Employers subvert enforcement of the anti-discrimination laws

January 3, 2013
By: Charles Lamberton

The federal anti-discrimination laws represent the public policy of the United States to eliminate discrimination from the workplace. Both the EEOC and private parties enforce these laws, with the lion share of enforcement actions taken by private parties who assert claims. Employers know that if they can deter private parties from bringing claims, they will effectively free themselves from the rules and restrictions set forth in the statutes. Employers can deter claims after the fact by retaliating against employees who bring claims, or before the fact, by threatening employees with adverse consequences if they file claims, or by simply lying to employees in employee handbooks, release agreements and other documents by telling them they are prohibited from raising claims. Congress anticipated such maneuvers, however, and expressly prohibited employers from interfering either ex ante or ex post with a current or former employee’s ability to oppose discrimination or participate in proceedings or investigations to enforce the anti-discrimination laws. These protected rights are non-waivable.  One recent case involving Trinity Health Corporation demonstrates how employers can get in legal trouble by attempting to deter or discourage their employees from exercising their non-waivable rights. Trinity Health Corporation, a national Catholic health care system based in Livonia, Mich., and the parent of St. Joseph Regional Medical Center, a South Bend, Ind.-based health care system, has agreed to settle an employment discrimination lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s lawsuit, (3:11-CV-00309-RLM-CAN), filed in U.S. District Court for the Northern District of Indiana, Trinity Health Corporation had a policy since at least February 2008 of denying or delaying severance payments to employees and former employees who signed severance agreements and then filed discrimination charges with the EEOC.

It is unlawful for an employer to punish employees who exercise their right to file a charge of discrimination with the EEOC. Such alleged retaliation violates Title VII of the Civil Rights Act of 1964 as well as the Age Discrimination in Employment Act (ADEA). The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

In the consent decree settling the suit, Trinity agreed that it will not deny or delay severance payments to employees who sign severance agreements and file EEOC charges. Trinity also agreed to pay $25,000 in damages to an employee whose severance pay was withheld after she filed an EEOC charge. Additionally, Trinity agreed that it will not in the future require employees to choose between receiving severance benefits from them or relief through the EEOC process as a condition of receiving their severance payments.

The decree also requires that Trinity post a notice of non-discrimination and non-retaliation at St. Joseph Regional Medical Center and at corporate headquarters, and to distribute that policy to any employee offered a severance agreement throughout the duration of the decree. Trinity will also post an anti-discrimination and anti-retaliation policy on its intranet home page and train its human resources professionals on this policy. The company will report to the EEOC for a two-year period detailing its compliance with the decree.

“We hope that all employers and employees will now understand that even if employees sign severance agreements with their employer, they are still entitled to file a discrimination charge with the EEOC,” said EEOC Indianapolis Regional Attorney Laurie A. Young.

Indianapolis District Director Webster Smith echoed the sentiment, saying “I am pleased that the EEOC charge process resulted in rectifying Trinity’s policy.”