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By November 1, 2011No Comments

In addition to General Liability, Errors and Omissions (E&O), and Directors and Officers (D&O) policies, some employers also buy Employment Practices Liability Insurance (EPLI). An EPLI policy usually covers claims by employees and former employees under federal, state, and local discrimination laws, including Title VII, the Americans with Disabilities Act (ADA), etc. EPLI policies usually exclude claims arising under the National Labor Relations Act (NLRA), the Employee Retirement Income Security Act (ERISA), and sometimes the Fair Labor Standards Act (FLSA).

A recent federal district court ruling, that an EPLI policy did not cover a lawsuit brought by the Equal Employment Opportunity Commission (EEOC), reinforces the need for employers to do a careful review of possible exclusions in their EPLI policies.

In Cracker Barrel Old County Store, Inc. v. Cincinnati Insurance Co., the EEOC sued the employer alleging systemic sexual and racial harassment based on 10 EEOC charges. The employer settled the lawsuit and signed a consent agreement with the EEOC to pay $2 million. The company had an EPLI policy and submitted the claim to its insurer. However, the insurer refused to cover the costs of the settlement, arguing that a suit filed by the EEOC was not a “claim” against the employer under the EPLI policy, which defines “claim” as “a civil, administrative, or arbitration proceeding commenced by the service of a complaint or charge, which is brought by any past, present or prospective employee(s).” The employer sued the insurer for indemnification. The trial court dismissed the company’s suit, holding that because the EEOC, rather than an employee, filed the suit, the EPLI policy did not cover the claim

This case highlights the potential cost when an employer does not understand the scope of insurance coverages. Employers should review their policies to ensure that they have a complete understanding of what their EPLI policies will and will not cover. Although this review should occur when the policy is purchased, at a minimum, the employer should review its coverage with the insurer after a lawsuit so that it has a full understanding of what will be covered.

Provided by the law firm of Shawe Rosenthal.