Employers must use care in the information they consider in their decisions to hire, fire, promote, demote, relocate, or rehire job applicants and employees. The United States Equal Employment Opportunity Commission (“EEOC”) has clarified that refusing to hire someone because she previously filed an EEOC complaint is an act of retaliation and unlawful discrimination. Retaliation complaints account for more than half of all charges filed with the EEOC.
Background & Lawsuit
Employer Keystone Foods LLC (“Keystone”) extended a job offer to a former employee to work in an Alabama food processing plant. Upon reviewing the former employee’s records, Keystone retracted the job offer when it discovered she previously filed a charge of discrimination with the EEOC for pregnancy discrimination against Keystone. The EEOC is the government agency responsible for enforcing federal laws prohibiting employment discrimination, including discrimination based on a job applicant’s or employee’s race; color; religion; sex; including pregnancy, related conditions, and gender and sexual orientation; national origin; age; disability; or genetic information.
After failed settlement discussions between Keystone and the former employee via the EEOC’s voluntary conciliation process, the EEOC sued Keystone in Alabama federal court for discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and Title I of the Civil Rights Act of 1991. Keystone and the EEOC ultimately agreed to settle the lawsuit and resolve the issues arising out of the former employee’s charge according to a 2-year consent decree issued by the United States District Court for the Middle District of Alabama.
In addition to what was surely unwanted attention surrounding the EEOC’s publication of the press release, under the consent decree, Keystone had to pay the former employee $60,000 ($30,000 as backpay and $30,000 for “alleged emotional distress, mental anguish, and punitive damages”); properly separate and maintain the former employee’s confidential and non-confidential records, including providing a neutral reference to future employers; disseminate to plant employees a statement that it will not violate Title VII by retaliation and its policy on harassment and discrimination; train and educate employees on anti-discrimination laws including Title VII’s anti-retaliation provisions; post a workplace notice about discrimination and the consent decree; and maintain all records as specified in the consent decree for its duration.
The EEOC wanted to make a point through its publication of this press release: employers should be wary of making adverse employment decisions based on an applicant’s or employee’s legally protected rights including the right to file a discrimination complaint with the EEOC. If you want more information or have questions regarding best employment practices, please contact Neumann & Associates or your local employment law attorney.
 KEYSTONE FOODS LLC TO PAY $60,000 TO SETTLE EEOC PREGNANCY DISCRIMINATION LAWSUIT, U.S. Equal Employment Opportunity Commission Bulletin published November 16, 2022, available at https://content.govdelivery.com/accounts/USEEOC/bulletins/33850d8 (hereinafter the “Keystone EEOC Bulletin”).
 EEOC v. Keystone Foods LLC, No. 2:21-cv-00629-MHT (M.D. Ala. Nov. 16, 2022).
 Keystone EEOC Bulletin; EEOC v. Keystone Foods LLC, No. 2:21-cv-00629-MHT (M.D. Ala. Nov. 16, 2022). After an EEOC investigation and the EEOC finds there is reasonable cause that the employer discriminated, the EEOC issues a “Letter of Determination” inviting the parties to join the agency to settle the charge through an informal and confidential process called conciliation. https://www.eeoc.gov/laws/guidance/what-you-should-know-eeoc-conciliation-and-litigation (retrieved July 20, 2023). If conciliation fails, the EEOC must decide whether to sue the employer in federal court. Id. In deciding to file a charge, the EEOC considers “the seriousness of the violation, the type of legal issues in the case, the wider impact the lawsuit could have on the agency’s efforts to combat workplace discrimination, and the resources available to litigate the case effectively[;] . . . Filing a lawsuit is a last resort [.]” Id. (emphasis added). “The EEOC files suit in less than 8 percent of the cases where it believes discrimination occurred and conciliation was unsuccessful.” Id.
 Keystone EEOC Bulletin. A consent decree is a court-approved settlement agreement between the parties to a lawsuit.
 EEOC v. Keystone Foods LLC, No. 2:21-cv-00629-MHT (M.D. Ala. Nov. 16, 2022). The parties paid their own costs and attorneys’ fees. Id.