Court Rejects Laches Claim Due to EEOC’s Delay

Darrell VanDeusen
Darrell VanDeusen
11/25/2020

One of my first cases as a baby lawyer was a sex harassment lawsuit brought by a former employee who waited over six years for a decision from the EEOC and Maryland Commission on Civil Rights (which did eventually dismiss the charge).  She got her notice of right to sue and, with the help of very able counsel, filed her lawsuit.  No one (still alive) recalled her complaining or supported her claim, but she testified that she had raised her concerns to a higher-up who had died in the intervening years while the charge was pending.  Raley v. Board of St. Mary’s County Commissioners, 752 F. Supp. 1272 (D. Md. 1990).

Such delay significantly disadvantaged the defense’s case.  On summary judgment we raised this fact through the equitable doctrine of “laches.”   It’s rarely used and hard to prove, but the laches doctrine permits dismissal of a Title VII claim where a defendant shows (1) unreasonable delay in bringing the action, and (2) resulting prejudice to the employer.  In my case, the court held that there was no unreasonable delay because the former employee had occasionally checked with the Commission on the status of her charge.  She couldn’t make the government move faster than it wanted to, however, and that was not her fault.  The bright spot for the employer (and for me) was that the court did grant our motion for summary judgment on other grounds.

Memories of that case percolated up when I read the recent decision in EEOC v. LogistiCare Sols., LLC , 2020 U.S. Dist. LEXIS 215486 (D. Ariz. Nov. 18, 2020).   In LogistiCare, the EEOC itself (not an individual relying on the agency’s action – or inaction, I guess) waited nearly seven years between the filing of a pregnancy discrimination charge by two women before filing a lawsuit.  In the intervening period five of six witnesses left the company.  The sixth witness was the training supervisor, who the EEOC claims said he got direct orders to fire the women because they were pregnant.  This witness now says, however, that he can no longer meaningfully recall the events from 2013 (I totally understand the “not meaningfully remember” concept now that I am in my 60’s, by the way).

The trial court rejected the laches defense in ruling on the employer’s motion for summary judgment here.  Particularly damning, said the court, was the fact that the EEOC had quickly found and contacted one of the “missing” witnesses, suggesting that LogistiCare had not taken reasonable steps to contact the former employees before claiming they could not be found.  The case will now be set in for trial.

Laches is a hard thing to prove, for sure, and unreasonable delay alone is not a sufficient basis to dismiss a case. But let’s be clear here:  the EEOC claims that it has direct evidence of pregnancy discrimination – that the training supervisor stated he was told to fire the women because they were pregnant. Yet, it took seven years between the time the charge was filed and the EEOC’s lawsuit.  For goodness sakes, why?  It will likely be over ten years before the case is resolved if it now goes to trial.

While it may not reach the level of prejudice necessary to dismiss the case on equitable grounds, it cannot be gainsaid that there is indeed prejudice – to both the individual claimants and the employer – by the EEOC’s confounding delay.  For the 35 plus years I have practiced employment law, the EEOC has been understaffed and underfunded to be viewed as a meaningful clearing house for addressing discrimination claims in a timely manner.  That’s a view shared by lawyers and clients on both sides. Recent news reports suggest that the EEOC’s case backlog has been reduced over the past couple of years, but the delays in addressing charges does no one any good.

And truly, while everyone is entitled to their day in court, everyone should not be entitled to their decade in court.

 

 

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