|May 5, 2003|
Most companies realize that the filing of a discrimination charge is a serious matter that must be investigated and addressed as such. Not only can misstatements made in responding to a charge be treated as admissions against an employer, but findings by the EEOC may be admissible to prove discriminatory intent. This article will address the admissibility of findings and determinations made by the Equal Employment Opportunity Commission (EEOC) in response to a charge of discrimination.
The case of Coleman v. Home Depot, Inc., decided by the Third Circuit Court of Appeals in October 2002, puts the issue in proper perspective. In that case, the plaintiff, Coleman, an African-American female, was hired by Home Depot into a cashier position. After numerous warnings concerning register shortages and overages, the plaintiff's employment was terminated. The plaintiff contended that she should have been hired into a sales associate position instead of the cashier position; that she should have been transferred to a sales associate position shortly after her initial hire; and that she was terminated because of her sex and race in violation of Title VII. The EEOC found in favor of the plaintiff, concluding that she was a "highly experienced" employee; that males who had less sales experience were being transferred directly into the sales department; and that Home Depot had "discriminated against females with respect to hiring and other terms and conditions of employment," and such discrimination constituted a pattern of race and gender discrimination.
The trial court did not admit the EEOC report. The jury found in favor of Home Depot and the plaintiff appealed.
Admissibility of Agency Findings
The Federal Rules of Evidence do not exclude as hearsay factual findings made in investigations conducted pursuant to law, like an EEOC investigation, unless the circumstances indicate a lack of trustworthiness. A lack of trustworthiness may include issues that concern motivation of the investigator, whether the agency findings are final, whether the agency received improper evidence, and whether there is an ascertainable record on which the agency's findings are based.
In the Coleman case, there were no circumstances indicating a lack of trustworthiness in the EEOC determination. Accordingly, the EEOC report did not constitute inadmissible hearsay. Rather, the report would be admissible unless some other rule of evidence required its exclusion.
Exclusion Based Upon Rule 403 Rule 403 of the Federal Rules of Evidence provides that probative evidence, like an EEOC report, may be rendered inadmissible if the probative value is substantially outweighed by the "danger of unfair prejudice, confusion of issues . . . or by circumstances of undue delay, waste of time, or needless presentation of cumulative evidence." The decision to admit an EEOC determination rests within the sound discretion of the trial court. Such a decision is to be made on a case-by-case basis. There are no hard and fast rules governing the admissibility of an EEOC determination. The trial court is required to "engage in balancing to determine whether the probative value of the evidence is 'substantially outweighed' by the negative factors listed in Rule 403."
In the Coleman case, the district court found that the probative value of the determination was "particularly low." The EEOC's finding that Coleman was "highly experienced in sales" was not buttressed by the testimony at trial. In fact, the court found that Coleman's own testimony exposed this finding to be "gossamer." Additionally, the EEOC report contained conclusions regarding systematic discrimination that were similarly not buttressed by the evidence at trial.
With respect to the issues of unfair prejudice, confusion, and undue delay, the court concluded that the EEOC's finding that the company engaged in a pattern of race and gender discrimination would have required the presentation of considerable evidence about numerous former Home Depot employees. Such evidence would have created "a trial within a trial." Home Depot would have been required to rebut such a conclusion by showing that it did not discriminate with respect to the placement of numerous former employees. Accordingly, the undue delay that would have been involved in rebutting the allegations of systematic discrimination substantially outweighed the low probative value of the EEOC determination. Therefore, the determination was properly excluded.
The Coleman decision illustrates several important points for employers. First, charges of discrimination should never be taken lightly. Circumstances that arise during the course of the investigation, statements that are made in response to the charge, and the ultimate determination may be admissible against the employer at trial.
Second, an employer's response to a charge should be sufficiently complete so that the EEOC may enter a decision in favor of the employer. Holding back evidence to gain a tactical advantage at trial may backfire should the employer lose at the agency level and the determination be admitted against the employer.
Finally, if the EEOC enters a determination against an employer, the narrower the findings and the more support the findings have in the record, the greater the likelihood that the determination will be admissible in evidence. However, the more wide-ranging the findings by the EEOC and the more such findings are based upon matters outside the record, the greater the likelihood that the employer will be able to exclude the determination under Rule 403.