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eeoc_equal_employment_opportunity_commission_seal_nyreblog_com_.pngEEOC Retaliation Case Against Cognis to Proceed, Federal Judge Orders

Chemical Company Unlawfully Forced Hires to Waive Charge Rights, Federal Agency Charged

Chief U.S. District Judge Michael P. McCuskey of the Central District of Illinois issued an opinion on Dec. 12, denying the motion by chemical company Cognis Corporation for summary judgment in a retaliation case brought by the U.S. Equal Employment Opportunity Commission (EEOC v. Cognis Corp., 10-CV-2182, C.D. Ill.).

In its lawsuit filed Aug. 18, 2010, the EEOC charged that Germany-based Cognis retaliated against a longtime employee, Steven Whitlow, at its Kankakee, Ill., facility, in violation of Title VII of the Civil Rights Act of 1964. As a condition of his continued employment, Cognis required Whitlow to sign a "last-chance agreement" (LCA) that prohibited Whitlow from filing a charge of employment discrimination with the EEOC - even based on conduct that had yet to occur. Thus, Cognis essentially conditioned Whitlow's employment on Whitlow's agreement to give up his right to make any federal complaint of employment discrimination. When Whitlow refused to be bound by that agreement, the company fired him, the EEOC said.

The EEOC's lawsuit also alleges that a class of employees who signed similar last-chance agreements was retaliated against because Cognis forced those employees to make a choice between termination and signing LCAs that stripped employees of their right to file charges and seek relief for future discriminatory conduct -- or at least deterred them from doing so.

On Aug. 29, Cognis filed a motion for summary judgment alleging that it was entitled to immediate judgment in its favor without trial because, it contended, there were no disputed issues of fact, and that Whitlow and the class of employees for whom EEOC sought relief were not entitled to damages. But according to the court's opinion, "there is no question" that EEOC presented sufficient direct evidence that Cognis terminated Whitlow because he revoked the LCA, which precluded the court from granting summary judgment in Cognis's favor as to Whitlow. (Opinion, No. 10-CV-2182, C.D. Ill., J. McCuskey, entered 12/12/2011.) As for the EEOC class members, the court held that "there is sufficient legal support for this court to reach the conclusion that Cognis's threat of retaliation contained in the LCAs constitutes a retaliatory policy under Title VII." (Id.)

In addition to denying Cognis's motion for summary judgment, the court invited the EEOC to move for summary judgment on the issue of whether Cognis retaliated against Whitlow and the class members who signed LCAs. The court granted the EEOC leave to file such a motion until January 6, 2012.

"All employees have the right to file charges with the EEOC," said EEOC's Chicago District Director John Rowe. "Employers cannot attempt to create two unequal classes of employees, with one group covered by civil rights laws and the other left without the protections those rights provide."

The EEOC's regional attorney in Chicago, John Hendrickson, added, "Mr. Whitlow was a savvy employee who came forward to protect himself. It's not just any employee who will quit his job in order to protect himself - and that's what employers like Cognis are banking on. But employers doing business in the United States should take heed. Duping your employees into believing their rights are waived is a risky and illegal proposition, and the EEOC is on the lookout for cases like this where employees are most vulnerable to employer excess."

The EEOC's litigation team is led by Supervisory Trial Attorney Gregory M. Gochanour and trial attorneys Deborah Hamilton and Brad Fiorito of the Chicago District Office.

Cognis was acquired by BASF, a multinational chemical company, in December 2010. According to company information, BASF Corporation, headquartered in Florham Park, N.J., is the North American affiliate of BASF SE, based in Ludwigshafen, Germany. BASF has approximately 16,400 employees in North America, and had sales of $17.7 billion in 2010. Cognis maintains facilities in at least 30 countries worldwide, employing approximately 5,500 people. Cognis has its U.S. headquarters in Cincinnati.