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PRESS RELEASE
11-29-07

FEDERAL COURT SHARPLY LIMITS EMPLOYER’S ATTEMPT TO PROBE JOB BIAS VICTIMS’ MEDICAL, ARREST AND LITIGATION HISTORIES

EEOC Race Bias Suit On Behalf of African Americans Can Proceed Without Intimidation, Judge Rules

CHICAGO – U.S. Magistrate Judge P. Michael Mahoney of the Federal District Court in Rockford, Ill., issued an order this week largely denying an employer’s motion to compel discovery regarding medical and psychological records, arrest records and litigation history of claimants in a discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

In its lawsuit (EEOC v. Area Erectors, Inc., N.D. Ill. No. 07 C 2339), the EEOC alleges that Area Erectors, Inc. discriminated against a class of African American employees by firing them and retaliated against a black employee who had sued another employer for race discrimination.

Area Erectors had sought discovery of the claimants’ medical and psychological records for the past five years. According to the court’s opinion, the company “insist[ed] that claimants’ past five years of medical and psychological records are discoverable because Plaintiff has made a claim for compensatory damages rooted in the emotional distress of the claimants.” Magistrate Mahoney rejected Area Erectors’ sweeping view (Memorandum Opinion and Order, N.D. Illinois, Western Div. No. 07 C 023339, M.J. Mahoney, entered 11/27/2007).

Instead, the court held that the claimants did not open the door to Area Erectors’ discovering their medical and psychological records simply by claiming emotional-distress damages as a result of the racial discrimination they experienced. Rather, the court held that the claimants’ medical and psychological records only had to be produced for those claimants for whom the EEOC will present evidence that they experienced medical or psychological symptoms or conditions or sought medical or psychological treatment because of discrimination at Area Erectors. The EEOC does not have to produce medical and psychological records for claimants who experienced “garden-variety” emotional distress because of the discrimination, such as feeling angry, frustrated, or humiliated.

The EEOC’s regional attorney in Chicago, John Hendickson, said, “This is one of those genuinely important court decisions which, unfortunately, sometimes disappear without ever making it onto the radar screen. That sure shouldn’t happen here because Judge Mahoney has so forcefully rejected the employer’s attempt to use discovery to put the lives of victims of employment discrimination under the microscope. That’s an approach to litigation that EEOC is always ready to stand against. So it’s good to win this one and to see civil rights litigants protected from having their lives turned upside-down and unnecessarily subjected to the proverbial ‘third degree.’ ”

Area Erectors had also sought to discover the claimants’ arrest records and all litigation they had been involved in during the past five years. The court refused to compel production of arrest records unless Area Erectors can “articulate some particularized suspicion that a claimant may have been arrested for work related misconduct . . . [W]ithout a particularized showing, the speculative benefit of such a wide sweeping inquiry is outweighed by the threat of annoyance, embarrassment and oppression.”

The court also questioned how Area Erectors could claim that it would have fired a claimant if it had known of his or her arrest record at the time the claimant worked for Area Erectors when the company had no policy against hiring convicted felons. “If Defendant had no qualms about hiring a convicted felon in the first place, why would it fire an employee who was merely arrested, but never charged?” the judge said.

With respect to the claimants’ litigation history, the court limited production to litigation involving civil rights violations, which EEOC has previously agreed to produce, and litigation concerning personal injuries, because the claimants’ testimony about the extent of injuries in a previous lawsuit might be used to impeach their testimony in this case about their ability to work. The court held that Area Erectors has “failed to identify any impeachment value in discovery relating to other types of civil cases.”

The EEOC litigation team is being led by Deborah Powers of the Milwaukee Area Office and Ann Henry of the Chicago District Office. Henry said. “The defendants in employment discrimination cases often try the ‘scorched earth’ discovery tactic of investigating every aspect of an employment discrimination victim’s past. Such tactics can discourage discrimination victims from coming forward and asserting their rights because they put themselves under a microscope if they do so. The court’s decision rejects these methods and keeps the case focused on issues that are truly relevant -- whether Area Erectors fired African American employees because of their race.”

Historically, race-based charges have been the most frequent type of filing with EEOC offices nationwide. In Fiscal Year 2006, the EEOC received 27,238 charges alleging race-based discrimination, accounting for 36 percent of the agency's private sector caseload. On February 28, 2007, EEOC Chair Naomi C. Earp launched the Commission’s E-RACE Initiative (Eradicating Racism And Colorism from Employment), a national outreach, education, and enforcement campaign focusing on new and emerging race and color issues in the 21st century workplace. Further information about the E-RACE Initiative is available on the EEOC’s web site at http://www.eeoc.gov/initiatives/e-race/index.html.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.