How a Bad Position Statement Led to a Civil Rights Lawsuit
I was confronted with this dilemma after serving as a college vice president of advancement. I witnessed a violation of someone’s rights and was faced with standing up to my former employer, or ignoring the victim’s complaint. The decision didn’t come lightly. Sometime after leaving my position as vice president of advancement one of my former direct reports, Ms. Hudson, was dismissed while still under possible protection of the Family Medical Leave Act (FMLA). The termination itself was perhaps the second or third incident that caused Hudson to file an Equal Employment Opportunity claim against her former employer. At this point, both parties had an opportunity to work things out but unfortunately what occurred next ignited a bigger action. The employer submitted what is referred to as an “employer position statement” to the Equal Employment Opportunity Commission (EEOC). A position statement is tantamount to a defense. It was supposed to explain why Hudson did not have a valid claim. After the employer submitted their position statement the EEOC provided Hudson with a copy of the statement. As a result of a January 1, 2016 policy change at the EEOC, Hudson was permitted to share the employer’s response with a qualified individual. The individual she shared it with was me. Hudson called me and asked me to read the position statement. I was floored by the content of the response. Based on my knowledge of the complaint, portions of the employer position statement were patently false. I realized that Hudson knew that some statements were not true and she wanted to prove that her former employer created a false narrative.
As a one-time director of employee relations, with a background in employment law I was quite familiar with the process of responding to a claim. What was new to me was the fact that I could legally read the employer’s response to the claimant’s charge of discrimination without being the claimant, nor the employer representative.[1] The story the employer told would land them in court. I explained to Hudson that she did indeed have a legitimate complaint and that her former employer’s position statement was her road-map to filing a civil rights lawsuit because it was littered with statements that if proven false would support her claim. Ultimately, the contents of the response set the stage for the claimant to file a civil rights law suit for “discrimination because of association with an individual alleged to have a disability in violation of the Americans with Disabilities Act of 1991 (ADA); discrimination on the basis of her sex because she was allegedly denied a promotion in violation of Title VII of the Civil Rights Act of 1964 (Title VII); and retaliation because she allegedly made a complaint of discrimination in violation of Title VII.”[2]
The implications of the employer response (which now) possesses a life of its own are discussed in my book, It’s Easy to Talk Justice: A Case Study of Hudson v Philander Smith College.
It’s Easy to Talk Justice Copyright © 2019 C.J. Duvall, Jr.
Available on Amazon (Kindle)
[1] Legal representatives, clergy persons and financial advisors are among those individuals with whom the claimant may share the employer’s position statement.
[2] According to the claimant.
When Evidence is one “Click Away”
An employer became a defendant in a civil rights lawsuit after being accused of promotion discrimination based on sex by a former female employee. Upon direction from federal court each party was given a schedule to collect and submit exhibits, material discovery and names of witnesses as evidence for the purposes of defending or proving their case.
During the ‘discovery’ period each party interviewed potential witnesses and collected material evidence such as memos, notes, letters, personnel file information, photo and electronic data including emails and call history. The search for evidence was extensive and time consuming.
At one point in the case the plaintiff was engaged in a casual phone conversation with a potential witness about how to prove her credentials were substantially superior to the male employee that was hired into a position for which she was denied the opportunity to compete. On the phone call the plaintiff voiced frustration that the president of the institution appointed the male using what the institution called “Presidential Proclamation” to make the hiring decision. Presidential proclamation was the employer’s defense for not considering anyone other than the male candidate whom the president of the institution identified. The plaintiff had asked to compete for the job because of her deep experience performing similar, or same work. Her peers and her supervisor had raved about her effectiveness. The plaintiff had a highly successful track record as defined in her performance evaluation.
The conversation with the witness took a marked turn when the witness stated that the new male employee did not have the expertise, experience or knowledge required for the position based on easily discovered information on the Internet. The witness said that the Internet listed the candidate’s work history outlining a background that was different than what the employer provided to their attorney. In the matter of one click, the plaintiff found several official news releases and announcements that contradicted the statements made by the defendant. The Internet contained information from a previous employer of the male candidate as having less experience than the female plaintiff. The male candidate’s true work experience was only a “click away” for the plaintiff. After reviewing the information retrieved from the Internet, the plaintiff realized she found proof to vindicate her story. She redirected her search for evidence by using the Internet and ultimately turned up more information vital to her case. In this civil rights lawsuit, the easy availability of information published on the Internet proved timely for the plaintiff, and sank the position of the defendant.
The moral to this story? Defendants and plaintiffs should check the validity of their position electronically against information on the Internet before and after they hire a law firm. Failure to do so can be costly.
This article is based upon the book: It’s Easy to Talk Justice: A Case Study of Hudson v. Philander Smith College. Copyright 2019 C.J. Duvall, Jr. Available on Amazon (Kindle), Amazon (Print) and Apple Books.