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EEOC Tries to Skip

Proof Steps: No Dice


Judge Gottschall

Has other Ideas


            When the EEOC takes the role of plaintiff and goes to federal court, it tends to have a “class” or “pattern and practice” mindset.  This extends to its philosophy of damages in sexual harassment cases, and the Commission seeks court approval to impose punitive damages applicable to each and every affected class member based on – critics call it too often vague – evidence of an overall hostile environment.

             EEOC “class” cases are generally not class actions in the technical sense; the term is used loosely in discrimination litigation to describe cases involving numerous – but generally identifiable – plaintiffs.

             In the widely reported International Profit Associates litigation, the EEOC charged that over one hundred women had been sexually harassed by around sixty IPA managers over a period of ten years.  Convinced that proof of widespread hostile environment discrimination would be enough to hold the Buffalo Grove consulting firm liable, the EEOC filed a motion before Judge Gottschall here in Chicago federal court.  The Commission – as it had done in other discrimination cases – sought to bifurcate the trial between liability and damages questions, and asked the court to permit findings of liability of IPA for each individual victim based on the finding of a hostile environment. Hence the EEOC wanted the court to permit findings as to the specific based on findings as to the general.  Obviously this would streamline the Commission’s proofs and generate money for each affected class member without the need to prove each woman’s harassment case.

             But IPC argued that depositions had showed that among the various affected class members there very uneven facts and wide variations in the degrees of harassment.  Hence evidence of a hostile environment would not necessarily apply in each woman’s case, the company contended.

             Judge Gottschall was unimpressed with the Commission’s theory that proof of a hostile environment was enough to impose punitive damages for each individual employee found to have suffered unwelcome sexual advances or other sexual harassment. She did grant the motion to bifurcate, but held that the liability and remedial phases would be conducted before the same jury.  The EEOC had wanted two juries, one for each phase.

             More importantly she ruled that proof to establish liability and damages would proceed in two stages.  The first stage of proof would focus on a hostile environment – whether it would be offensive to a reasonable person in the same situation as the women involved – to be followed by evidence as to whether IPA knew or should have known of the hostile environment.  The second stage – a segment the EEOC did not want – would then proceed, in which each individual claimant would prove that she had experienced what a reasonable person would deem hostile or abusive, and EEOC would also have to prove that each individual had subjectively perceived that the treatment was hostile or abusive.

             John Hendrickson, who runs the litigation section at the Chicago District Office of the EEOC, reportedly was “acutely disappointed” with the court’s ruling.  But an administrative agency’s disappointment over judicial oversight of its litigation strategy is not new, and it is an acute necessity to keep agency power in check.  Just ask the General Counsel for the National Labor Relations Board how often the D.C. Court of Appeals has pinned that agency’s ears back for seeking enforcement of Board orders that the Court of Appeals has often rejected for lacking substantial evidence in the record.