The U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting July 18, 2012, at which representatives from special interest groups, the federal sector, former EEOC leadership and current employees provided input on the agency’s proposed Strategic Enforcement Plan (SEP).
The commission solicited the stakeholder comments to determine its enforcement priorities as part of its overall plan to allocate resources for Fiscal Years 2012-2016. The plan, which was approved in February 2012, projected that the EEOC will continue to focus on systemic discrimination claims and increase litigation of systemic cases. As such, companies may face a higher number of investigations and suits based on employment patterns and practices instead of individual cases under the plan.
EEOC Chair Jacqueline Berrien said the commission received more than 80 comments from groups and individuals regarding the agency’s future enforcement priorities and strategies. Agency stakeholders will have another opportunity to comment after the EEOC develops a draft plan and before the four-member commission votes to adopt an SEP, she said.
Central themes brought up by the various stakeholders included:
- What the agency’s priorities should be and how many priorities there should be to remain effective.
- The issue of increased centralized control vs. maintaining local authority over investigations and litigation.
- The need for consistent practices and procedures across field offices.
- The need for more resources to enhance efficient charge processing.
- New outreach and education initiatives, including outreach to “vulnerable populations” such as immigrant and low-wage workers, and greater use of social media.
What to Prioritize?
The various witnesses provided conflicting suggestions as to what the EEOC’s top priorities should be. One panelist recommended that the EEOC engage in broad-based requests for pay data from employers and perform periodic audits to address this issue, as the Office of Federal Contract Compliance Programs does for federal contractors.
“Pay transparency and annual compensation audits can correct problems before they become fodder for litigation,” said Deborah Eisenberg of the University of Maryland School Of Law.
She added that the EEOC can more easily litigate systemic pay discrimination cases and is more likely to be successful in prosecuting pay discrimination cases than private litigants.
Other panelists advocated targeting specific discrimination issues with EEOC investigations, such as pregnancy discrimination, undocumented worker abuse, religious discrimination and violations of the Americans with Disabilities Act.
“Pregnancy-related harassment and pregnancy discrimination against low-wage workers persists and frequently remains blatant,” said Claudia Center of the Legal Aid Society’s Employment Law Center in San Francisco.
She advocated that the EEOC produce a guidance document that stipulates: no comparator is required when employers violate the Pregnancy Discrimination Act (PDA) when they base adverse actions on stereotypes of pregnant women’s capacity to work; reasonable accommodations and a good-faith interactive process are required for pregnancy- and childbirth-related disabilities under the ADA, as amended; and a hostile work environment based on pregnancy constitutes sex discrimination.
Joshua Stehlik, of the National Immigration Law Center in Los Angeles, urged the EEOC to “recognize the potential for misuse” of E-Verify, the federal government’s electronic employment verification system, and the bias that could result from employers’ discriminatory use of E-Verify or inaccurate results obtained through the system.
“The EEOC should monitor for misuse of the E-Verify program by employers who misuse it in ways that constitute actionable discrimination, particularly since the program’s significantly higher error rates for foreign-born individuals exacerbate its potentially discriminatory misuse by employers against any workers perceived to be immigrants,” he said.
Fatima Goss Graves, of the National Women’s Law Center, said the EEOC should continue its focus on potential discriminatory barriers to hiring, including criminal background checks, bias based on unemployment status and age discrimination.
Despite the passage of more than 10 years since the Sept. 11, 2001, terrorist attacks, “there has been an upsurge in hatred, violence and discrimination against Muslims, Arabs and South Asians, and pervasive workplace discrimination based on religion persists due to a variety of factors,” said Sahar F. Aziz, associate professor, Texas Wesleyan University School of Law.
“The EEOC should familiarize itself with the plethora of literature that documents the procedural and substantive flaws with terrorist watch lists and discourage employers from using these lists as employment screening mechanisms,” she said.
Marc Bendick, president of Bendick and Egan Economic Consultants Inc. in Washington, D.C., took a different tack, suggesting that the EEOC should target specific industries for enforcement, based on analyses of EEOC charge data or other indications that certain industries or employers have employment discrimination rates above the norm.
“Strategic enforcement campaigns in a small number of industries where research indicates that discrimination is particularly egregious and the potential for improved employment outcomes is particularly large I argue offers a ‘win–win’ opportunity that would simultaneously benefit taxpayers, employees and employers,” Bendick said. Examples of situations in which bias is “greater than the norm” include female employees in construction and other blue-collar trades, minority employees in high-end restaurants, and black employees in advertising and financial services, Bendick said.
Another aspect of the priority debate centered on the commission’s priority charge handling procedures, adopted in 1995, in which charges are classified as “A,” “B” and “C” charges, with the “A” charges receiving the priority attention, including systemic investigations and/or “reasonable cause” findings. Many witnesses suggested that further clarification may be needed in classifying charges for purposes of investigation and determining how the multitude of charges classified as “B” charges should be handled.
Investigations Must Improve
Former Vice Chair Leslie Silverman, now a partner with Proskauer Rose in Washington, D.C., spoke on the delays in investigating charges of discrimination, along with what she called poor-quality investigations.
She urged the commission to improve the quality and timeliness of its charge processing. “I would also urge the agency to focus on improving the quality of its investigations and to continue to foster and utilize tools such as the mediation program [that] help the EEOC resolve charges in a timely manner,” she said.
Silverman testified that she was troubled by the agency’s pressing of multiple systemic investigations at the same time in various districts around the country. She said this is driving up the cost of investigations, especially when they are conducted in areas where the law is unsettled.
“The commission … should consider the possibility that in the EEOC’s zeal to ramp up its systemic efforts and create a robust, nationwide systemic program, the agency may have bitten off more than it can chew,” she said.
Silverman stressed that it would be far more strategic, effective and economical for the EEOC to select a reasonable number of lead charges to investigate for a given issue and attempt to find an alternative solution for the other charges remaining in the systemic pipeline. “I believe that if the agency approached respondents earlier on in the process, it is likely to find that many employers are willing to make reasonable changes to their policies and practices. These policy changes would come sooner and they would achieve the EEOC’s goals of serving the public interest,” she said.
Silverman also lamented the fact that the commissioners have no knowledge of the systemic cases that are prosecuted by the agency; she urged the EEOC to create mechanisms where the commissioners have an appropriate oversight and policymaking role, and work in conjunction with the office of the EEOC’s General Counsel.
“If the commission is cut off from understanding the types of cases and the theories of discrimination being pursued, as well as a continuing understanding as to how the cases are proceeding, it can neither make policy that is coherent, nor act as a supervisory body of the agency,” Silverman said.
Many witnesses agreed that the commission should include in the SEP a commitment to expedited processing of charges and specific procedures for achieving expedited processing.
“The current system produces large numbers of investigations interminably delayed and then ended without substantial explanation, investigations that fail to produce sufficient data to enable the employee and counsel to make an informed evaluation of the strengths or weaknesses of the case, and systemic investigations that drag on for four or five years without any established deadline for final commission action,” said Ray McClain, Employment Task Force, The Leadership Conference on Civil and Human Rights.
McClain suggested that the commission establish a benchmark time frame (for example, 180 days for individual or multiple-named charging parties, and one year for class actions, pattern-or-practice charges or other systemic investigations).
Plaintiffs’ attorney Joseph Sellers, of Cohen Milstein Sellers & Toll PLLC, noted that because workplace arbitration is likely to become a more common vehicle for employers to use, the EEOC must litigate systemic cases on a dual track with parallel private plaintiff proceedings to fully maximize its litigation resources. Several witnesses said the EEOC should expand its mediation program, which currently is available only for selected charges before the commission begins its investigation. They said that the EEOC should make mediation available for a greater number of charges, and allow parties to choose mediation anytime during the administrative process, even if the EEOC has begun its investigation.
While some testified that the EEOC has spread itself too thin by focusing on too many investigations, Gary Siniscalco of Orrick Herrington & Sutcliffe LLP pointed his finger at the lack of EEOC supervision on investigations. Referring to field investigations as “consistently inconsistent,” Siniscalco decried investigations as “minimally adequate at best. Many are deficient.”
Siniscalco also questioned the EEOC’s conciliation process, citing statistics that only about 20 percent of the commission’s cause determinations lead to conciliation agreements. But the EEOC litigates only about 10 percent of cause cases that are not conciliated, he said.
Accounting for the large influx of individual charges—now 100,000 per year—along with insufficient staff and insufficient budget, there needs to be much more direction and supervision of investigations and a closer working relationship between the compliance staff and the commission’s lawyers to ensure that quality cases are processed and, if conciliation fails, that they are litigation-worthy, he said. “There should be no reason, in my view, why the commission should bring a case that they lose in summary judgment. That should not happen. There’s got to be some further oversight,” he said.
Centralized vs. Local Control
A common theme among the witnesses was the need for consistency in enforcement and litigation. Several witnesses mentioned conflicting advice not only between the EEOC and other federal agencies, but also between district offices within the EEOC itself.
The SEP should “dramatically” shift the priority-setting role to EEOC’s national headquarters and away from the discretion of local and district offices, Bendick offered as a solution.
Members of a panel that included current EEOC officials at the national and district level questioned the wisdom of any directive from the commission that would limit the delegation of authority and prosecutorial discretion by local EEOC leadership.
These panelists stated that the identification of national priorities through the SEP can greatly aid field managers in the design of appropriate local strategies and systemic plans to channel resources that will best contribute toward the national goals, but urged the federal agency to understand the need for flexibility to address local issues of concern, which may be different from a list of priorities established by the commission.
“Directors appreciate and support your concern regarding consistency in the customer service experience across the agency,” said Ruben Daniels, EEOC district director for the Charlotte, N.C., office. “We urge, however, that the discretion of executives to interpret, implement and execute policy not be so constrained as to inhibit our ability to execute timely decisions that respond to real-time events at the local level. The ultimate goal of combating discrimination must not be held hostage to a slavish commitment to form and practice at a national level,” Daniels said.
James Lee, EEOC deputy general counsel, speaking for senior executives at the EEOC, said that the SEP “should not devolve into an attempt to proscribe how investigations are conducted but rather set forth those issues which the commission believes should receive maximum enforcement effort,” and that the one-two punch of high-impact litigation and reformed priority charge handling procedures were critical to mission success.
Roy Maurer is a staff writer for SHRM. To read the original article, please click here.