Get Ready to Rumble
When the EEOC comes to investigate or take your deposition, you'd better be ready for battle, say experts and lawyers on this year's Most Powerful Employment Attorneys list.
By Will Bunch
Over the last five years, top employment lawyers such as Elise Bloom are spending a lot more time helping prepare human resource leaders for one of the least appealing aspects of their job: a grilling in a deposition room from lawyers for the U.S. Equal Employment Opportunity Commission.
Bloom, a member of the executive committee at New York-based Proskauer and former co-chair of its labor-and-employment law department, says she tells every HR leader the same thing -- that the best way to prepare for a couple of days of arduous EEOC questions is "to always be honest with yourself, and your lawyer."
She sometimes tells them about her hairiest experience in a deposition room -- this time, it happened to be an arbitration hearing -- when lawyers for the other side sprung a secret tape recording on her client.
"Everybody feels violated in that situation," says Bloom, "but I thought they handled it professionally." Although both she and her client were shocked at the recording, which was legal under New York State law, Bloom's client was able to change her earlier testimony to reflect the conversation and the case was resolved favorably.
Nevertheless, the bad experience in the deposition room caused her to put even greater emphasis on witness preparation, which she now champions. She's not alone.
America's leading employment lawyers say working with human resource executives to prepare for depositions -- especially in bias cases brought by the EEOC -- is more important than ever today because the agency's posture is so much more aggressive.
Experts in EEOC law say that's because the Obama administration, after taking office in 2009 with a generally pro-worker agenda, has been stymied in much of its legislative efforts by Republicans in Congress, initially through the filibuster and later with the added muscle of a GOP majority in the house. As a result, they say, the Obama administration has looked to implement major changes through what it does control -- administrative agencies and commissions.
The numbers bear this out. The dollar amount the agency claims as successful penalties against offenders has skyrocketed, to an all-time record of about $372 million in 2013, according to its own audits.
Employment lawyers say that, while the stronger EEOC has made a few headlines with major policy changes -- most notably a 2012 rule aimed at reducing racial bias by barring employers in the majority of situations from using criminal background checks -- much of its broader goal of a more worker-friendly environment through increased discrimination allegations is achieved under the radar through its filings against specific employers.
"I see the EEOC pushing a very aggressive policy agenda that is not well-thought-out," says Camille A. Olson, a partner at Chicago-based Seyfarth Shaw and co-chair of its national complex litigation practice group, as well as chair of the U.S. Chamber of Commerce's Equal Employment Opportunity subcommittee. In her role with the Chamber, Olson has testified several times before Congress in recent months on what she believes is federal overreach in employment matters. She says she believes the EEOC too often files suit before its staffers even know all the facts -- and then seeks to use forceful depositions to fill in the gaps.
Joseph Olivares, a spokesman for the EEOC, said in response to an inquiry that the commission "won't be commenting on our agency's litigation strategy."
Olson and Bloom are two of Human Resource Executive®'s 100 Most Powerful Employment Attorneys for 2014, a list prepared exclusively for the magazine by Lawdragon, a Los Angeles-based networking site for lawyers and clients. (See lists.) They and other attorneys on the list were interviewed about the growing aggressiveness of the EEOC and were asked to offer advice for human resource executives who might be called to testify in one of its growing roster of cases.
Attorneys and employment-law experts say the forceful posture of the government's equal-employment-opportunity arm, the commission's sweeping agenda and recent rule changes means that HR executives are more likely to find themselves in the hot seat, but they can ride out the wave with solid preparation and by understanding the state of play.
Merrily Archer, a Denver-based attorney who was formerly on the staff of the EEOC and now specializes in advising business clients, wrote a sharply pointed blog post last fall to complain about how the government's attorneys treat HR leaders and other executives when they testify in deposition hearings, which usually spread out for several days.
Archer -- who heads EEO Legal Solutions -- wrote that she learned during her time at the agency that EEOC staffers and plaintiff's lawyers had convinced themselves they were doing "God's work," and that "employers, especially the ones they were currently suing, were malevolently unenlightened, law-flouting discriminators that would discriminate, harass and retaliate with reckless abandon without their vigilance and the threat of liability."
She wrote that, ideally, EEOC lawyers and human resource executives would instead acknowledge their shared goals in reducing discrimination -- but that level of peace and understanding is not likely anytime soon.
In an interview, Archer says that, from her experience on both sides of the deposition table, the EEOC lawyers tend to stereotype the HR executives they are about to question. "For HR, they are either depicted as malevolent or incompetent -- they either did something they shouldn't have done or they didn't do something they were legally obligated to do ... ," she says, adding that the "EEOC is famous -- [as are] plaintiff's attorneys -- for going into the deposition with this attitude, that, 'You're a bad guy and I'm righteous.' "
In Archer's opinion, the zealous black-hat, white-hat approach of the EEOC -- in its eagerness to make new employment law and claim bureaucratic victories -- blinds the agency from looking at the common-sense dilemmas that HR executives frequently face on the job. She cites a recent high-profile case in which she worked with a portrait company, Picture People, charged by the EEOC in 2009 with harassment and discrimination against a profoundly deaf employee who sought to perform a job that requires "strong communication skills" with handwritten notes.
"They were very bullying and harassing," says Archer of the deposition process, adding that the EEOC lawyers did little to hide their contempt as Portrait People executives tried to explain that working with customers required fluent communications and that note-writing was not a viable option.
Archer says the EEOC's current strategy aims to force its targets to reach a quick settlement -- boosting the total of cash awards that the agency boasts in year-end press releases -- but that Portrait People elected to fight the EEOC in the courts, and it won. Even so, she says, the EEOC kept the press release claiming that "Picture People Harassed and Discharged Deaf Employee" on its website for at least a year afterward.
Proper Prepping Required
In several other high-profile cases last year -- most notably University of Texas Southwestern Medical Center v. Nassar, involving alleged retaliation against a professor, and Vance v. Ball State, which hinged on who should be considered a "supervisor" in harassment cases -- businesses and their attorneys fought the EEOC all the way to the U.S. Supreme Court and won. But leading labor lawyers also note that these cases are the exceptions and that 95 percent of the EEOC's growing case roster is settled before trial, putting a bright spotlight on the deposition process.
Olson says the aggressive posture of the Obama-era EEOC is not the only major change that HR executives need to be mindful of. Increasingly, she says, the federal lawyers are deposing witnesses under Rule 30 (b)(6) of the Rules of Federal Civil Procedure -- which frequently require firms to designate one key employee who will be expected to testify about all of the company's practices -- even in departments or regions that he or she may have no personal involvement with.
Under this rule, Olson says, it is virtually impossible to identify one key employee -- even the chief human resource officer, the CEO or some other C-suite executive -- who would be able to testify about the range of company practices and about all relevant personnel decisions without extensive preparation. But, she adds, "[y]ou may inform and teach what the answers are -- there's nothing wrong with that."
Nevertheless, says Olson, the widespread use of the federal rule does mean that human resource executives and their attorneys need to make a smart decision up front about who can best speak for the firm, and then undergo a much more extensive preparation process, gathering any and all information from other co-workers that might be relevant to what the EEOC is alleging. That also means EEOC lawyers may ask pointed questions about what the witness did and with whom he or she spoke in order to prepare for the deposition.
More specifically, top employment lawyers say there are a number of other things HR executives can do to prepare for the deposition process. Among their tips:
* Be careful about volunteering information. Archer, the former EEOC attorney, says the government's lawyers often ask HR executives an open-ended question -- if there is anything else they want to add to the record. Any information that's offered up in that fashion, she says, is likely to only help the agency, providing additional layers of information that can be used to box in witnesses at a trial. "It's a trick question," Archer says. "If they say, 'Is there anything else?' you say, 'No.' Don't say six more things."
A somewhat different take is offered by Jonathan Segal, a partner at Philadelphia-based Duane Morris's employment, labor, benefits and immigration practice group who is also managing principal of the Duane Morris Institute. Segal, who advises HR executives and others, says the most important thing for a witness to achieve is to tell his or her story, and if that means elaborating beyond the "yes-or-no" question, then that's the right way to respond to the lawyer across the table. "Sometimes, even with a 'yes-or-no' question, a robust answer is not inappropriate," Segal says. He adds, however, that he also coaches witnesses extensively in advance to make sure their accounts are not open to misinterpretation.
* Take your time. Bloom notes that rules generally limit testimony to seven hours in one day, although -- in a complex case -- the questioning could drag out over several days. Answering questions quickly, thinking that will speed up the process and get you out of the room more quickly, generally doesn't work. Instead, poorly thought-out answers might actually lengthen the process by inadvertently opening new avenues of question -- and they will surely complicate the defense if the allegations ever do go to a trial.
"It's important that people know that you can take a break, that this is not an endurance test," she adds. "This is a new experience, and you may be nervous, so take a break -- even walk around the block."
* Stick to the facts, and be yourself. Bloom notes that most EEOC cases are won and lost on the underlying facts of the case, and not on the witness' demeanor. Deviating from the script can only hurt the case. "The facts are the facts," she says. "Being glib or sarcastic doesn't come across in a deposition -- it's not like a trial, where personality could make a difference. Just make sure that you tell your story." All lawyers advise witnesses to be honest, accurate and mindful that -- if the case does eventually go to trial -- it will be all but impossible to change the information or provide a different story on the witness stand.
* Don't be afraid to admit when you don't know the answer to a question. This point is stressed by almost every attorney interviewed for this piece -- that it's better to be honest and answer "I don't know" or "I don't recall" rather than offering an unsure answer that could be undermined at trial.
"It's all right to say 'I'm sorry, I don't understand the question,' " says T.J. Wray, in charge of the labor and employment practice at Houston-based Fulbright & Jaworski. This is something that high-powered executives might normally be less inclined to say during their day-to-day dealings, he adds. "This is not the business world, where executives are expected to have all the answers," Wray says.
* Know the traps. While executives may sometimes over-worry about encountering trick questions, says Segal, it's important to work closely with the firm's lawyers and understand the EEOC's broader agenda going into the deposition -- that, as a federal agency, the EEOC is seeking broad evidence to bolster policy changes, and may be less focused on the personalities involved.
* Be ever-mindful of social media. Needless to say, the EEOC's attorneys are certain to have combed Facebook, Twitter and even LinkedIn for any and all information that might be relevant -- so prepare yourself. "Be aware of what you've posted or tweeted about," Bloom says.
Lastly, says Olson, the deposition room is ultimately the place for human resource executives to lay out facts in simple language -- avoiding in-house company jargon -- and to establish a clear record, not to argue with the EEOC.
"You're never going to change the mind of the person asking the question," she says.