Time for the EEOC to Move in a New Direction?

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By Patrick Dorrian

Is the federal agency that enforces the country’s employment discrimination laws misguided and off-track? Or is it underappreciated, misunderstood, and underfunded? The answer may depend on your political perspective.

The Equal Employment Opportunity Commission has strayed from its core missions of protecting the rights of individuals to equal opportunities for employment and to be free from workplace discrimination and harassment, Rep. Bradley Byrne (R-Ala.) said May 23 at a hearing of the House Subcommittee on Workforce Protections. Byrne chairs the subcommittee.

Instead, the federal watchdog during the Obama administration was focused more on trying to bring “attention-grabbing,” class-based cases against large employers, Rae Vann told the subcommittee. She testified on behalf of employer advocate the Equal Employment Advisory Council.

The EEOC’s mission is to ensure fundamental fairness in employment, a task that is more difficult than ever before given the rise in workplace diversity, countered Rep. Mark Takano (D-Cal.). The subcommittee should live up to its name by focusing on “workforce protections” for employees and job seekers, not on “the burdens that some feel the EEOC has placed on employers,” he said. Takano is the ranking Democrat on the subcommittee.

Given the agency’s limited financial resources, its “emphasis on systemic discrimination cases"—the type that Vann and others criticized—"makes complete sense,” Todd A. Cox, director of policy with the NAACP Legal Defense and Educational Fund Inc., testified.

The hearing covered a wide range of issues the EEOC has previously faced scrutiny for, including its new employer data collection form (EEO-1), guidance on employer use of criminal background checks of prospective employees, and the agency’s backlog of worker bias charges. Byrne said the backlog was approximately 90 percent higher under the Obama administration than under his predecessor.

The vast majority of employers treat workers equally, but the “bad actor” companies still must be held accountable, Byrne said in his opening statement. There are laws on the books to ensure employer compliance, but those laws must be properly enforced. The EEOC of late has failed to fulfill its enforcement obligations, he said.

There is now “an opportunity to move the EEOC in a new direction,” Byrne said.

Is Systemic Case Approach Off-Mission?

Whether a new direction is necessary may depend on who is right about the agency’s strategies, goals, and performance.

The EEOC’s core mission is to protect the rights of individual workers, Byrne said. The agency pursued 50 percent fewer cases for individual workers using a systemic litigation approach under President Barack Obama than it did under George W. Bush, Byrne said.

That misplaced focus has lead to EEOC investigators spending an inordinate amount of time trying to find systemic violations when investigating individual bias charges, especially those filed against large companies, Vann said. That means large employers often face different enforcement standards than smaller companies, she said.

The lack of attention to individual bias charges also lead to a significant drop in the number of lawsuits on the merits filed by the agency under Obama, Camille A. Olson, a partner with management-side law firm Seyfarth Shaw in Chicago, testified on behalf of the U.S. Chamber of Commerce

But Cox countered that EEOC systemic cases grow out of individual bias claims filed with the agency. The commission’s litigation choices are just the result of following the directions those individual-charge investigations take it in, he said.

“It all starts with the charge,” Cox said. If the EEOC sees broader implications, then the charge could spur a systemic investigation and lawsuit, he said.

The agency’s charge backlog is the direct result of underfunding, not a failure of focus, Cox said. The EEOC has been underfunded since its inception, and recently has been forced to live through flat funding, hiring freezes, and a government shutdown.

With proper funding the agency could better pursue both its systemic initiative, which began under the Bush administration, and its obligations to investigate individual charges, Cox said.

Closing the Gap or Increasing the Burden?

The EEOC also is on the right track with its revised EEO-1 form, Cox said.

The revised form applies to employers with 100 or more workers and requires them to collect and provide to the agency summary pay data categorized by employees’ gender, race, and ethnicity. That information is needed to help combat the lingering pay gaps that all other workers face when compared to white men, Cox said.

Women still make just 83 cents for every dollar earned by a man, Takano said, and the gap is even worse for women of color.

Collecting the additional information will enable the EEOC to perform aggregate analyses of employee pay by region, industry, and other categories, Cox said. That should help to identify and fix the causes of the various pay gaps, he said. The new form is scheduled to take effect March 31, 2018.

But Olson, Vann, and fellow witness Lisa Ponder questioned whether the expanded EEO-1 will really prove useful in that way.

The form requires employers to group together workers in wide-ranging jobs without taking into account factors that may contribute to differences in pay, such as disparities in skills and experience, Ponder said. That doesn’t allow for a comparison of relevant data points when jobs are too broadly grouped or reasonable explanations for wage disparities aren’t factored in, she said. Ponder is a vice president and global human resources director with Broomfield, Colo.-based MWH Constructors Inc. She testified on behalf of the Society for Human Resource Management.

Olson lamented the increased paperwork and compliance burdens the new form will have on employers. The revised EEO-1 is “a massive expansion” of employers’ existing reporting obligations and will impose hundreds of millions of dollars in increased compliance costs on the employer community, she said.

The existing EEO-1 collects 128 data points from an employer; the revised form collects 3,360 data points, Byrne said in his opening statement. “That’s 26 times more information.”

Where Are the Commissioners?

Takano noted the absence of EEOC commissioners among the hearing witnesses. That criticism was echoed by Rep. Bobby Scott (D-Va.).

If the subcommittee is going to criticize the agency and its priorities, “we should at least invite a commissioner” or some other EEOC representative to testify, Scott said. It wasn’t the first time the agency hadn’t been afforded a chance to defend itself before the subcommittee, he said.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

For More Information

Text of Chairman Byrne's opening statement and the witnesses written testimonies is available at http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=401651.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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