Agency Considers Views on Developing Strategic Enforcement Plan

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The Equal Employment Opportunity Commission July 18 heard from more than 30 private attorneys, law professors, federal agency representatives, former EEOC officials, and current EEOC employees as the commission received input on its development of a strategic enforcement plan.

EEOC in February approved a new four-year strategic plan setting out the commission's goals and proposing steps to achieve them (63 BTM 69, 2/28/12). The plan calls for the commission to also develop and vote on a separate strategic enforcement plan (SEP) by Sept. 30, 2012. In June, EEOC solicited public input as it develops the SEP and invited many of those who submitted comments to discuss the issues at a public meeting (63 BTM 187, 6/12/12).

At the July 18 meeting, EEOC Chair Jacqueline Berrien (D) said the commission received more than 80 comments from groups and individuals regarding EEOC's future enforcement priorities and strategies. Agency stakeholders will have another opportunity to comment after EEOC develops a draft plan and before the four-member commission votes to adopt an SEP, she said.

Berrien, EEOC Commissioners Constance Barker (R), Chai Feldblum (D), and Victoria Lipnic (R), along with EEOC General Counsel P. David Lopez and EEOC Memphis District Director Katharine Kores, held five roundtable discussions with a total of 32 witnesses at a meeting that ran more than seven hours.

Berrien led the agency's strategic enforcement plan workgroup, which has 18 additional members, according to EEOC.

Former EEOC Officials Testify

Most speakers said EEOC should continue the systemic program's emphasis on identifying, investigating, and litigating class cases involving large groups of claimants with the potential to change an employer's or industry's practices.

Feldblum said the questions include both how many priority areas EEOC should identify and what criteria should determine the commission's choice of priority enforcement topics. Witnesses identified pregnancy discrimination, pay discrimination, discriminatory barriers to hiring, bias against immigrant workers, and ADA Amendments Act coverage issues as among potential priority enforcement areas.

Feldblum said the suggested areas seem to fall within three general groups: topics on which there is an “information gap” for both workers and employers; emerging or evolving legal issues; and areas in which a “power gap” exists, such as issues involving immigrant workers or low-wage workers.

Gilbert Casellas, who chaired EEOC from 1994 to 1998, recounted EEOC's development of a “national enforcement plan” and the “priority charge handling process” during his tenure. Under the NEP, EEOC set general national enforcement priorities while allowing EEOC field offices to “fill the gap” with local enforcement plans, said Casellas, who is now chairman of OMNITRU, a management consulting firm in Washington, D.C.

Leslie Silverman, an EEOC commissioner and vice chair from 2002 to 2008, recounted her experience leading the systemic task force, which resulted in EEOC's 2006 unanimous approval of a reinvigorated systemic program.

Given EEOC's limited resources, a case backlog exceeding 75,000 charges, and an influx of nearly 100,000 new charges per year, EEOC must balance the systemic program with other challenges, including “legitimate concerns” about the timeliness and quality of EEOC investigations, said Silverman, now a partner with Proskauer Rose in Washington, D.C.

While the revitalized systemic program apparently has succeeded in “changing the mindset” of EEOC's employees, Silverman said she is troubled by the commission's pursuing multiple systemic cases when the law supporting EEOC's position is “unsettled.” She questioned, for example, whether EEOC must investigate every employer with a criminal background check or leave of absence policy rather than finding a “lead” case to pursue.

Silverman said current EEOC commissioners have a different “vantage point” than she did, since they “neither see nor approve” the “vast majority” of EEOC systemic cases before the cases are filed in court. The fact that EEOC members are “not kept in the loop” about prospective litigation makes creating a “coherent policy” regarding enforcement priorities challenging, Silverman said. EEOC commissioners must regain “appropriate oversight and policymaking roles,” she urged.

“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 of how the cases are proceeding, it can neither make policy that is coherent, nor act as a supervisory body of the agency,” Silverman said.

How to Choose Agency Priorities?

Berrien said EEOC's questions include what role local conditions should play in identifying enforcement priorities and how much autonomy EEOC's field offices should retain. She also asked whether EEOC should focus on issues or industries, perhaps targeting the latter based on statistical data.

Marc Bendick, president of Bendick and Egan Economic Consultants Inc. in Washington, D.C., said 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.

Such “strategic targeting” would allow EEOC to pursue cases with the largest impact, potentially changing industrywide patterns of discrimination, Bendick said. Current research shows entire industries where bias is “greater than the norm,” including construction, high-end restaurants, and financial services, Bendick said. It “defies common sense” for EEOC not to target those areas, he said.

EEOC currently delegates “extensive discretion” to its local and district offices, and a new strategic enforcement plan should “dramatically” shift that priority-setting role to EEOC's national headquarters, Bendick said.

Responding to Bendick's remarks, Lipnic asked whether EEOC should expend its limited resources on protecting “well-heeled” workers in the financial industry, for example, when private attorneys are already filing multiple discrimination suits on their behalf.

Prioritize Vulnerable Populations

Other witnesses said EEOC should prioritize protection of vulnerable populations, such as immigrant or low-wage workers, or issues private lawyers are unlikely to address, such as hiring discrimination.

Joshua Stehlik, of the National Immigration Law Center in Los Angeles, recommended that EEOC ramp up its education and outreach efforts in Arizona and five other states that have passed laws placing greater scrutiny on immigrants. Such laws “create a climate of bias and fear” that plays out with increased race and/or national origin bias in the workplace, Stehlik said.

He also urged 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. Low-wage immigrant workers are particularly in need of EEOC's attention, Stehlik said.

Fatima Goss Graves, a National Women's Law Center vice president speaking for the Leadership Conference on Civil and Human Rights in Washington, D.C., said EEOC should continue its focus on potential discriminatory barriers to hiring, including criminal background checks, bias based on unemployment status, and age discrimination. Potential bias based on pregnancy and caregiver status, as well as pay discrimination based on sex and/or race, also are fruitful areas for EEOC to emphasize, Graves said.

Brian East, an Austin, Texas, lawyer speaking for the Consortium of Citizens with Disabilities, said EEOC should seek court decisions on coverage under the ADA Amendments Act, attack employers' “blanket policies” that prevent job applicants from getting in the door, and pursue cases regarding “blanket exclusions” from employment. More legal development is needed on “direct threat” under the ADA and “business necessity” under Title VII of the Civil Rights Act, East said.

EEOC also should litigate ADA cases involving mental disabilities because private attorneys do not take such cases, East said.

Lipnic noted that immigrant workers are “very reluctant to access” the U.S. legal system and asked how EEOC could better reach them.

Claudia Center, of the Legal Aid Society's Employment Law Center in San Francisco, said EEOC should continue challenging employers' English-only rules and make EEOC's website and documents “more accessible” to non-English speakers. Center, whose organization represents low-wage immigrant workers, said pregnancy discrimination “continues to be an endemic problem” for female immigrant workers.

Conciliation, Mediation Addressed

Management attorney Gary Siniscalco of Orrick Herrington & Sutcliffe in San Francisco questioned EEOC's conciliation process, citing statistics that only about 20 percent of the commission's cause determinations lead to conciliation agreements. But EEOC litigates only about 10 percent of cause cases that are not conciliated, according to Siniscalco. “EEOC needs to know why these cases are not being enforced,” he said.

“Courts are no longer giving EEOC a free ride,” as some are granting summary judgment against EEOC based on inadequate investigation or conciliation, Siniscalco said.

Several witnesses said EEOC should expand its mediation program, which currently is available only for selected charges before the commission begins its investigation. They said EEOC should make mediation available for a greater number of charges, and allow parties to choose mediation anytime during the administrative process, even if EEOC has begun its investigation.

Joyce Margulies, a management attorney in Memphis, Tenn., said “lack of consistency” among EEOC's field offices regarding investigations and other administrative processes is “a big problem” that frustrates outside parties.

Margulies said EEOC should update its investigators' instruction manual to “remove ambiguities” that slow down charge handling, reinvigorate and update priority charge handling process (PCHP), consider “specialization” of investigators assigned to specific types of charges, and expand its mediation program.

Directed Investigations

Several witnesses suggested EEOC should encourage greater use of commissioner's charges and directed investigations, which allow EEOC to open investigations independent of any charge being filed. EEOC “should not be whipsawed by charging parties,” Siniscalco said. “It needs to think about commissioner's charges, directed investigations.”

John Hendrickson, EEOC regional attorney in Chicago speaking on behalf of all the regional attorneys, said EEOC has been “a dramatically different and better agency” since litigation authority was delegated to EEOC's general counsel and field attorneys. He said that enables litigation decisions to be made with “seriousness and professionalism, free of politics.”

Hendrickson urged EEOC not to return to the days when litigation decisions had to go through the five-member commission. He added that “any strategic enforcement plan should say litigation itself is the bedrock” of enforcement.

James Lee, EEOC deputy general counsel speaking for the Senior Executive Services Advisory Council, said a concentration on “high-impact” litigation and a reinvigorated PCHP are “essential parts” of any strategic enforcement plan.

Recounting EEOC's history as a “top-heavy” agency with a “full enforcement plan” prior to the 1995 adoption of the national enforcement plan, Lee said that approach was “anything but strategic” and something EEOC should avoid.

By Kevin P. McGowan  


Witnesses' written testimony is available on EEOC's website at http://www.eeoc.gov/eeoc/meetings/7-18-12/index.cfm.