If Plaintiff Establishes a Violation of an Anti-Discrimination Statute Which Party Bears the Burden of Proof and Persuasion as to Whether an Injunction Should Issue?

 

Recently, in EEOC v. KarenKim, Inc., No. 11-3309-cv, 2012 U.S. App. LEXIS 21908 (2d Cir. October 19, 2012), the Court, in a per curiam opinion, noted that several circuits have held that, where violations of Title VII have been proven, injunctive relief is presumptively appropriate and the defendant-employer therefore bears the burden of showing that it is not.  See, e.g., EEOC v. Rogers Bros., Inc., 470 F.2d 965, 966-67 (5th Cir. 1972) (per curiam).  Judge Katzmann, concurring, stated that he agrees that the burden of proving the appropriateness of injunctive relief should be shifted onto the defendant-employer once liability under Title VII is established, stating: “In other words, I would hold that, after a finding of liability, the defendant-employer bears the burden of establishing that there is no ‘cognizable danger’ that it will engage in ‘recurrent violation[s]’ of the Act.” (citation omitted).  In so stating, Judge Katzmann relied on decisions from the Fifth, Seventh, Ninth, and Eleventh Circuits, which had interpreted the Supreme Court’s holding in Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) to require the issuance of an injunction unless the employer could establish that an injunction was unnecessary.  Judge Katzmann went on to note “that the Supreme Court has construed section 2000e-5(g)(1) of Title VII as not merely [granting district courts with] the power to issue injunctive relief to remedy violations of Title VII, but imposing on them the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” KarenKim, 2012 U.S. App. LEXIS 21908 at *26-*27 (internal citations and quotations omitted), citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975).

See EEOC v. Serv. Temps, Inc., 679 F.3d 323, 338 (5th Cir. 2012) (holding that because injunctive relief is presumptively appropriate once a violation of Title VII is proven, “we need not address [the defendant’s argument] that there was an ‘absence of any evidence’ to support the EEOC’s request for injunctive relief”); EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1253-54 (11th Cir. 1997) (concluding that “the district court abused its discretion in turning down all equitable relief out of hand” and “remand[ing] the case to the district court so that it can grant the requested relief” unless it “finds persuasive reasons to deny particular items of relief”); EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1292 (7th Cir. 1993) (suggesting that the EEOC is ordinarily entitled to injunctive relief where it proves a violation of Title VII and the defendant-employer fails to prove that the violation is not likely to recur); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544-45 (9th Cir. 1987) (instructing that, on remand, “[i]f the EEOC proves its case, and [the defendant-employer] fails to prove the violation will not recur, the EEOC will be entitled to an injunction.”); Rogers Bros., 470 F.2d at 966-67 (upon finding of discrimination in a lawsuit brought by either the EEOC or a private litigant, “injunctive relief is mandatory unless the District Court finds on the basis of clear and convincing proof that there exists no reasonable probability of further noncompliance,” and specifying further that “[t]he burden of negating that probability lies with the defendants” (internal citations omitted)).  

Accordingly, the Second Circuit reversed the lower court’s decision declining to enter any injunctive relief.  While opining that “it is not our role to fashion the specific measures necessary to prevent the recurrence [of harassment]” the Court nevertheless opined on the specifically tailored relief which it felt was appropriate.  Specifically, the Court found that “at minimum, the district court exceeded the scope of its discretion in declining to order (a) that [defendant] is prohibited from directly employing [the harasser] in the future, and (b) that [defendant] is prohibited from permitting [the harasser] to enter its premises.”  It is worth noting that this relief fell short of the stricter measures requested by the EEOC, and the Court noted that “to be sure, the district court was well within its discretion in concluding that some of the EEOC’s requested relief…[was] overbroad and disproportionate to the scale of [defendant’s] unlawful behavior.” 

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