Dark Money in the Federal Courts and the EEOC

So-called “dark money” groups have reported spending more than $800 million on campaign-related activities between January 2010 and December 2016, the last full election cycle.

The top spender on the Federal Elections Commission’s list was the U.S. Chamber of Commerce, a conservative, profit-making group that laundered $130 million for … who knows?

While dark money is widely associated with political campaigns, including judicial campaigns, it also influences the machinations of federal courts and has reached the front lines of worker rights at the U.S. Equal Employment Opportunities Commission (EEOC).

Dark money is money collected by a front or middle-man organization, usually with a vaguely positive sounding name, that is distributed to influence public policy. The source of the money is anonymous so the public is clueless about the donor’s intentions. The U.S. Supreme Court legalized dark money in Citizens United v. FEC (2010).

Dark money strips workers of justice in federal courts and at the EEOC.

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New Federal Court Lobbyist – Restaurant Law Center

The restaurant industry is taking its cue from the U.S. Chamber of Commerce , which has been a remarkably successful behind-the-scenes lobbyist in the federal court system for years.

The National Restaurant Association has launched a Restaurant Law Center to “protect and advance” the restaurant industry.

In its first action, the Restaurant Law Center has asked the U.S. Supreme Court to overturn a 2016 ruling by the U.S. Court of Appeals for the Ninth Circuit in Oregon Restaurant and Lodging et al v. Perez, et al that prohibits employers from forcing tipped employees to share gratuities with non-tipped staff. The Restaurant Law Center wants to void a 2011 rule by the U.S. Department of Labor that was upheld by the 9th Circuit.

The Oregon decision conflicts with an earlier decision by the U.S. Court of Appeals for the Fourth Circuit and creates a split in the federal circuits that can only be resolved by the nation’s high court.

The Restaurant Law Center says it is now “managing” the Oregon restaurant case.

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The EEOC’s Surprising New Fan – The U.S. Chamber of Commerce

After years of criticism, the U.S. Chamber of Commerce is now applauding the EEOC for focusing on “compliance assistance” rather than enforcement and litigation.

Randel K. Johnson, a senior vice president of the Chamber, “commends” the EEOC for “identifying efforts to focus resources on compliance assistance” in a letter submitted to the EEOC in connection with a draft of the EEOC’s proposed new strategic plan for 2018-2022. The Chamber is a conservative, profit-making group that lobbies the legislature and federal courts on behalf of business interests. It consistently opposes pro-labor measures.

The EEOC is seeking comment on a draft of its proposed strategic plan until 5 p.m .ET on January 8, 2018. To weigh in, go here or to https://www.regulations.gov/document?D=EEOC-2017-0005-0001.

In the letter, Johnson refers to the Chamber’s 2014 report to Congress in which the Chamber criticized the EEOC for “enforcement and litigation abuses.” The Chamber’s report came at a time when the EEOC was litigating the fewest number of cases in modern history and had completely ignored a major increase in age discrimination cases during and since the Great Recession. In 2013, the EEOC had filed 147 lawsuits, compared to 416 in 2005. But the Chamber’s report was an effective public relations ploy and seems to have had a big impact on the EEOC, which reduced its litigation efforts even further. The EEOC filed only 114 lawsuits in 2016 (of which only TWO contained age discrimination claims). Continue reading “The EEOC’s Surprising New Fan – The U.S. Chamber of Commerce”

EEOC Secrecy Rule Hides Procedural Irregularities and Gross Unfairness

Note: About a week after this story was written, the EEOC filed a lawsuit against a Texas television station because it allegedly failed to consider qualifications when it rejected a 42-year-old female applicant for a position as a weather person. This lawsuit completely contradicts the EEOC’s decision in the case below and raises questions about what the EEOC’s position is with respect to qualifications.

A recent decision by the EEOC raises questions about whether the secrecy surrounding the EEOC’s handling of discrimination complaints hides serious procedural irregularities and basic unfairness.

EEOC spokeswoman Kimberly Smith-Brown has said that federal law “prohibits EEOC employees from confirming or denying the existence of charge filings, investigations or administrative resolutions. The only time information about a specific case becomes public is if EEOC files a lawsuit against the employer, which is usually a last resort.” This means that complaints and documents associated with the EEOC’s adjudication of complaints are secret – except in the rare instance when the EEOC files a lawsuit or a complainant objects publicly (and someone listens) to the EEOC’s handling of her complaint.

The EEOC’s secrecy rule stands in sharp contrast to the openness of the federal court system. If a complaint is filed in federal court, it is public and so are the documents associated with the complaint, unless the judge enters an order to seal the file. That order can be challenged by the media. Public access to court records serves to insure the integrity of the court system. The EEOC’s closed door rule leaves the public in the dark about the basis for complaints, why the Administrative Law Judge ruled the way h/she did, the context for the OFO’s decision on an appeal of the ALJ’s ruling and why the EEOC chose to affirm or reject the OFO’s decision. With secrecy, the public has no way to insure the integrity of the EEOC’s handling of complaints.

Not only does secrecy fail to insure integrity at the EEOC but it clearly benefits discriminatory corporations and businesses. Their customers never find out about their illegal acts and neither do their employees, who might put two-and-two together and file their own discrimination complaints. Complainants, who are almost always individuals, may prefer to have their name remain confidential because the mere fact they filed a complaint may make it difficult for them to find new employment. However, this preference can be accommodated through the use of a pseudonym, which is a practice the EEOC already employs when it publishes a precedential decision.

Secrecy allows the EEOC to evade accountability for misconduct and discriminatory rulings.

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U.S. Chamber of Commerce No “Friend of the Court”

Nice to see someone calling out the U.S. Chamber of Commerce, which frequently inserts itself into national litigation as a “friend of the court.”

In reality, the Chamber is almost always an advocate for a dues paying corporate member and espouses a position that is anti-employee and anti-consumer. In 2014, I argued the Chamber was a federal court lobbyist.

According to Reuters, the firm of Lieff Cabraser Heimann & Bernstein has opposed the Chamber’s request to file an amicus or “friend of the court” brief in a case involving a challenge by Direct TV to the certification of a class action by the 11th Circuit Court of Appeals in Atlanta. Lieff’s brief argues the Chamber, the Chamber’s lawyers, DirectTV and Direct TV’s lawyers are bound so closely together that even under a liberal reading of the definition of an amicus curiae, the Chamber cannot legitimately be regarded as a friend of the court.

“The Chamber is not merely a friend of the party, but essentially the party itself.” – Lieff Cabraser Heimann & Bernstein

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