We keep reporting in this space about how federal courts have slapped down the long-shot lawsuits and activist legal positions advanced by the Obama administration’s Equal Employment Opportunity Commission (EEOC). In the Freeman case last year, a Maryland federal judge used such unflattering terms as “laughable,” “unreliable,” and “mind-boggling” to refer to Commission positions, while in the more recent Kaplan case, in which Cato filed a brief, a Sixth Circuit panel was only slightly more polite about the systematic shortcomings in the commission’s case. Both of those cases arose from the commission’s controversial crusade against the use of criminal and credit background checks in hiring.

Since our report in April, the commission has extended its epic, cellar-dwelling record of federal court losses with at least three more defeats. 

* Yesterday a Second Circuit panel ruled on a case in which the EEOC had claimed that female and male lawyers at the Port Authority of New York and New Jersey had not received equal pay for substantially equal work. The problems with the commission’s case were many, including a seemingly “random” choice of comparison employees that tried to dodge the significance of substantial differences between them based on how long they had been practicing law and had been at the Port Authority. Above all, the EEOC chose to rest its case on the notion that “an attorney is an attorney is an attorney,” which meant it was entitled simply to assume that Port Authority lawyers “in practice areas ranging from Contracts to Maritime and Aviation, and from Labor Relations to Workers’ Compensation” were all doing the “same” work meriting the same pay. The panel of appeals judges barely concealed its impatience with this unrealistic assumption — judges are if nothing else experienced lawyers themselves — and upheld the dismissal. 

* The Obama EEOC had stirred wide alarm in the business community when it decided to take the position that many clauses used in garden-variety severance agreements, in which the departing employee agrees not to sue or disparage the employer, are in reality unlawful “retaliation” against protected activity. But in the first tryout of that position, the commission fell flat on its face, as InHouse Cafe relates: 

On September 18, 2014, Judge John Darrah of the U.S. District Court for the Northern District of Illinois dismissed the EEOC’s lawsuit against CVS challenging CVS’ standard separation agreement. The judge will issue a written opinion explaining his decision at a later date.

* In late June, a federal judge in North Carolina granted summary judgment against the agency in a disabled-rights case brought by a complainant who, the judge found, “cannot perform the essential functions of the job with or without a reasonable accommodation.” The case was notable in at least two ways. First, it had been brought against Womble Carlyle, one of the bigger law firms in the South, which seemed to betoken the commission’s hubris: not only will we bring weak cases, it seemed to be saying, but we’ll even bring ‘em against the sorts of law firms that have the means and will to fight such things. The second notable feature was that the court had earlier ordered the EEOC to pay $22,900 in sanctions to the law firm, over an episode in which the plaintiff admitted that after the commission had begun representing her, she had shredded and discarded job-search records relevant to Womble Carlyle’s case. Lawyers call that spoliation of evidence. 

Somewhere, I’m sure, someone is thinking the commission’s real problem must be with holdover Republican-appointed judges unwilling to cut civil rights complainants a break. So it’s worth noting that in the Port Authority case, two of the three judges on the appellate panel are Obama appointees, while the district judge who dismissed the case was an appointee of Bill Clinton. The district judges in Illinois and North Carolina who dismissed the commission’s claims are respectively Clinton and Obama appointees. The problems with overreaching, extreme, and just plain sloppy litigating at the EEOC go beyond differences between liberal and conservative judges.