Increasingly, complaints of workplace discrimination or harassment are settling out of court. Whether through the Equal Employment Opportunity Commission’s (EEOC’s) mediation process, or as the result of negotiations by private employment discrimination attorneys, these cases often result in settlement agreements, rather than judgments. But what happens after everyone signs on to a discrimination-based settlement agreement? What are your options to enforce your rights, and get the relief you need?

In this blog post I will explain what happens after a discrimination-based settlement agreement has been reached. I will discuss EEOC v TRU Towing, Civil Action No. 2:18-cv-3874, and review a worker’s options when an employer does not live up to the terms of a mediation agreement or court order.

Mediation, Negotiations, and Alternative Dispute Resolutions in Employment Discrimination Cases

The EEOC received 84,254 charges nationwide in 2017. That includes claims of discrimination, harassment, equal pay violations, and other civil rights issues. But the number of those complaints that ever saw a courthouse is far lower. In recent years, the EEOC has emphasized the use of its Federal Sector and Private Sector Mediation Programs. These voluntary processes put employees and employers’ agents together with a neutral mediator to come to a resolution that addresses everyone’s needs. For fiscal year 2015, the EEOC resolved 8,243 complaints through this process, including over $157.4 million in employee remedies.

Even when a lawsuit is necessary, alternative dispute resolutions (ADR) like mediation, arbitration, and informal negotiations between attorneys often resolve the case without the time and expense of trial. One report suggests that as little as 15% of employment lawsuits between January 2009 and July 2017 (584 cases) went to trial. The remaining 54,810 were dismissed – most likely because a settlement had been reached.

Settlement Agreements Put Resolutions in Writing

A discrimination-based settlement agreement can include a variety of terms and provisions designed to address the employee’s injuries, direct future employer behavior, and resolve any outstanding lawsuit or EEOC complaint. Depending on the reason for the complaint and the employee’s desired outcome, a settlement agreement could include:

• Lump-sum or installment payments of lost wages or other money damages
• Plans to return the employee to work in the same or similar position
• Promises of a neutral or better recommendation to future employers
• Disciplinary actions against individual supervisors or coworkers responsible for discrimination
• In-house policy changes to prevent future discrimination
• Independent oversight or review of company practices
• Creation of mandatory training programs designed to shift workplace culture
• Waiver of claims and a promise by the employee not to sue for the same conduct
• Non-disclosure agreements that keep settlements and employer behavior private

Employees with discrimination-based complaints may not trust their employers to live up to their promises. From money remedies for lost wages to in-house policy changes, the terms of an agreement are still only words when negotiations are done. But the resulting settlement agreement turns those promises into an enforceable contract for everyone’s benefit. If either party doesn’t do what they promised in the settlement agreement, the other side’s attorneys can file a federal or state lawsuit for breach of contract.

EEOC Sues to Enforce Pregnancy Discrimination-Based Settlement Agreement

For example, on April 12, 2018, the EEOC announced it would be suing TRU Towing Auto of New Orleans for breaching its pregnancy discrimination-based settlement agreement with the EEOC and Devora Hampton, a former employee. Hampton had brought a claim of pregnancy discrimination against the company last year. On January 31, 2018, the EEOC’s mediation program helped the parties reach a settlement agreement in which TRU promised to pay Hampton $5,500 and make certain other in-house policy changes.

When the ink was dry, TRU refused to pay Hampton, breaching its discrimination-based settlement agreement and reopening the wound caused by its illegal pregnancy discrimination. The EEOC was forced to sue TRU in federal court for specific performance of the mediation settlement agreement, including paying the $5,500. Keith T. Hill, field director for the EEOC’s New Orleans Office said in a statement:

“The EEOC will aggressively pursue enforcement of settlement agreements. … It is crucial to ensure that discrimination victims remain confident that they will receive the relief we have negotiated for them.”

The statement emphasized that mediation only works if everyone involved believes the settlement agreements reached that day will stand up over time. Hill continued:

“Parties who participate in mediation with us should have confidence that any agreement reached during that process cannot be invalidated just because the company no longer wants to honor its obligation.”

Enforcing Settlement Agreement Contracts

When an employer violates a discrimination-based settlement agreement, it can add insult to injury and delay the closure so important to many employees. It can also deny those employees money and other remedies they need to pay bills, find a new position, and move on with their lives.

Enforcing settlement agreement contracts can add months, or even years, to the litigation process. Some employees may think enforcing settlement agreements isn’t worth the time and legal expenses involved. However, most settlement agreements include provisions that say the breaching party must pay for attorney fees and costs related to enforcing the contract. That means you and your employment discrimination attorneys can fight to make the company honor its promises without putting you in debt to do it.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to craft and enforce discrimination-based settlement agreements to protect our clients’ interests, and their rights. If you have a complaint for pregnancy discrimination or other illegal workplace conduct, we can help you negotiate the terms of a settlement that works for you, and enforce it if the employer doesn’t live up to its obligations. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.