We’ve written in the past that the EEOC, at times, lives by the adage “don’t let the facts get in the way of a good story.”  A recent case demonstrates that the facts are, indeed, relevant and that the EEOC must permit the employer discovery to test the factual theories it presents in litigation.

In EEOC v. DHL Express (USA), Inc., Case No. 10C6139 (N.D. Ill. Oct. 31, 2012), the EEOC brought suit against carrier DHL, contending that it discriminated against a class of 94 African American dockworkers and drivers on the basis of their race. The EEOC contended in general that the workers were given “less desirable” assignments that were “more difficult” and “more dangerous” than those given to whites.  It also claimed that black drivers were assigned to “black neighborhoods” more frequently than whites.  Rather than produce evidence to support these claims, the EEOC provided unsworn “vignettes” about the situations it was claiming on behalf of the individual class members.

The employer took depositions of 34 of the 94 potential class members, but the EEOC refused to produce additional members for litigation, contending that the sampling of roughly one third of the class members was sufficient and citing the cost of further depositions.

The court was obviously unimpressed with the EEOC’s level of proof.  It noted that the unsworn “vignettes” were not evidence and, in fact, that the depositions of even the 34 members had proven them to be less than accurate.    It was also troubled by the generally vague allegations by the Commission and noted differences in testimony as to what constituted, for example, a “more dangerous assignment” or a “black neighborhood.”

The court similarly rejected numerical limits on the depositions, citing the Eighth Circuit’s similar rejection of limits in EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 670 (8th Cir. May 8, 2012) (ordering production of 270 claimants for deposition).  It directed the EEOC to produce all of the claimants to be deposed.

The DHL decision raises serious questions about the EEOC’s prosecution of its case, much as the court did in the CRST Van case in the Eighth Circuit.  One might wonder why the Commission refused to produce proof of evidentiary quality to begin with, and then to resist further depositions once the “vignettes” proved to be inaccurate.  Further, vague allegations such as “more difficult” or “black neighborhood” should have been fleshed out before the lawsuit was even filed.  If, in fact, the EEOC reasonably believed that the employer was somehow guilty of discrimination, it should have been able to articulate why and to produce at least some evidence that the class-wide allegations were true. 

The Bottom Line:  The EEOC must produce proof of evidentiary quality and likely must make its claimants available for deposition if it is going to claim class-wide discrimination.