Meet the “New EEOC”
The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with the enforcement of the federal employment discrimination statutes – like Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act – through investigation, conciliation, mediation and litigation. During his campaign for the presidency, then-Senator Barack Obama made known his dissatisfaction with the reduced role the EEOC had taken in enforcing antidiscrimination laws. Thus, it should come as no surprise that the EEOC has launched efforts to revamp its role as the leading civil rights agency for employees. This article will discuss the “EEOC of Old,” the efforts that have been made toward creating a “New EEOC,” and what this new EEOC means to today’s employers.
The Role of the EEOC
The EEOC’s core function is to investigate allegations of employment discrimination and retaliation. Before filing a discrimination lawsuit, a person must first file a charge of discrimination with the EEOC. The agency is then obligated to investigate the Charging Party’s charge thoroughly and determine whether reasonable cause exists (meaning there is reason to believe that discrimination occurred). The EEOC or Charging Party may dismiss the investigation charge or the EEOC may administratively close the charge, which still entitles the Charging Party to file suit. On occasion, a Charging Party’s attorney may file the charge and request a notice of right to sue 24 hours later.
The EEOC of Old
Over the last 10 years, the EEOC has battled constant criticism over its ability to effectively carry out its role. While some of these criticisms have focused on circumstances beyond the EEOC’s control, others appear (at least to its critics) to be the direct result of the EEOC’s actions or inactions.
1. Workforce Attrition
From 2001 through 2009, the EEOC saw its resources substantially curtailed, particularly with respect to the number of investigators. The EEOC declined from 2,850 employees in 2000 to under 2,200 in February 2009 – a loss of 23% of the entire workforce in less than a decade. This attrition was blamed in large part on a 2002 hiring freeze and low morale. A January 2009 survey of EEOC employees found that 59% considered morale within the agency to be at the lowest possible level. In addition, the union representing EEOC workers awarded the agency an “F” rating in 2008, stating that “[r]ock bottom staffing and record high charges of discrimination add up to another failing grade for the beleaguered civil rights agency.” Neglect of the agency culminated in a March 2009 finding by an arbitrator that the agency had been violating the Fair Labor Standards Act by requiring its employees to work in excess of 40 hours in a workweek without paying those employees additional overtime compensation.
2. Reduced Enforcement
The reduction in resources had a noticeable effect on the EEOC’s enforcement ability in terms of pursuing litigation and conducting investigations. First, a key weapon in the arsenal of the agency is its ability to bring suits on behalf of aggrieved individuals. By bringing such an action, the EEOC is able to throw the full resources of the government behind a single individual and save the individual the time and expense of retaining private counsel. Use of this weapon was on the rise from 1997 through 1999 – in 1997, the EEOC brought 332 private enforcement actions and by 1999 that number rose to 465. However, beginning in 2003, the number of suits filed by the EEOC began to fall precipitously, reaching a low of just 314 in 2009. This was despite the fact that the number of charges filed with the EEOC increased annually between 2005 and 2009, with a new high of 95,402 filed in 2008.
3. Case Backlog Increases
With a smaller staff during this time period, the EEOC also had a difficult time investigating claims in a timely manner. The EEOC has operated under a goal of completing investigations within 180 days of a charge being filed. In 2007, 72% of charges were investigated in that 180-day period. However, in 2008 and 2009, that number dropped to just 48%. As a result, the EEOC’s case backlog grew substantially with the EEOC concluding 2007 with 41,171 pending charges and 2009 with 75,743 pending charges. When the EEOC takes too long to conduct investigations and issue determinations, the result is often that crucial witnesses and other evidence necessary to prove or defend a case of discrimination are harder to track down.
4. Unfocused Investigations
Another critique of the old EEOC was that the quality of EEOC investigations had been relatively poor. Indeed, some attorneys suggested that because EEOC investigators lacked time to gain a full appreciation for the facts of a charge, investigations were frequently unfocused, and on-site visits often devolved into “fishing expeditions,” with an investigator trying to weed out any discrimination that may be lurking in an office. Whether overly passive or overzealous, these investigations were likely doing little to actually further the enforcement of employment discrimination statutes.
The EEOC is Penalized
The recent decision issued in EEOC v. CRST Van Expedited, Inc. provides some insight into the old EEOC. There, a federal judge in Iowa dismissed a case brought by the EEOC on behalf of a class of female workers claiming sexual harassment. The court had previously found that when the EEOC filed suit, it was not certain how many aggrieved individuals existed, and had used the discovery process to try to identify potential complaining parties. As a result, the judge found that the EEOC had not conducted any reasonable investigation of the specific claims of the aggrieved class before filing suit, depriving the parties of their opportunity to settle the claim. As a result, the EEOC paid the opposing party’s (CRST) attorney’s fees. The case had the potential to strike a huge blow against the defendant corporation, with the EEOC alleging that 270 employees were the victims of discrimination. The EEOC was considered to have acted hastily in filing this case before fully investigating the various claims involved.
“The New EEOC”
In April 2009, the New York Times editorialized that the EEOC needed to be “repair[ed], replenish[ed], and [receive] a major attitude change forthwith.” More than a year later, the EEOC and federal government in general appear to be responding to this charge. For the fiscal year 2010, the EEOC requested and received from Congress a budget increase of $23.4 million – the largest increase in the EEOC’s budget since 1999. In February, the EEOC announced its request for an $18 million increase for fiscal year 2011. If granted, the increase between 2009 and 2011 will be greater than the total increase in the agency’s budget between 2001 and 2009.
With this infusion of funds, the EEOC has set out to markedly improve its enforcement capabilities. In 2009, the agency had a net new hiring of 155 new employees, and it has plans to continue this trend into the next year, seeking to hire 100 new investigators in fiscal year 2011. In the materials the EEOC published in support of its 2011 request, the EEOC stated that with these new hires, it hoped to be able to decrease the backlog in investigating individual cases, while also taking on an increased role in combating systematic discrimination throughout the workforce. In the same report, the EEOC identified new ways to conduct more efficient investigations, including: scheduling fact-finding conferences with both parties to a charge, providing education for employers on how to respond to a charge, and educating its own employees on its internal procedures for prioritizing charges that appear ready for a determination. The EEOC has articulated a goal of having at least 54% of all private sector charges resolved within 180 days. In its February report, the EEOC stated that it could meet this goal through the hiring of new investigators who could conduct quicker, higher quality investigations. The EEOC has also made the encouragement of private settlement or the use of mediation or alternative dispute resolution (methods in which the parties present their case to a neutral arbitrator for a binding resolution) key components of its efforts to increase efficiency. Finally, the EEOC plans to enhance its litigation efforts to combat systemic discrimination. While the EEOC does not expect an increase in the total number of cases that it will file on behalf of individuals in the next three years, it does expect to undertake larger-scale litigation.
What This New, Refocused EEOC Means to Employers
With the EEOC’s increased funding and renewed mission, the EEOC has the potential to dramatically affect the way that private employers respond to claims of discrimination and retaliation. Employers and their attorneys are already experiencing differences in their dealings with this new EEOC.
1. More Investigations. As a result of increased funding, the EEOC may be completing more investigations in a given year. This could lead to the issuing of more “cause determinations” than the EEOC has done in years past when investigations took longer and the backlog built up. More cause determinations could ultimately result in more lawsuits because individuals with a cause determination are more likely to find a plaintiff’s attorney willing to take the case.
2. Aggressive Requests for Documents and Information. There has been a marked increase in the EEOC’s requests for additional information from employers in connection with most charges of discrimination. The EEOC also appears more willing to make use of its subpoena power in order to secure documents it contends are relevant to an investigation.
3. Changes to On-Site Investigations. Employers have also recently experienced a rise in the number of on-site visits by EEOC investigators and changes to how these onsite visits are conducted. Notably, employers have found that on-site investigations are now lasting longer than in years past. The reasons cited for these lengthy investigations have been that the EEOC investigators are interviewing more witnesses than usual and are now requesting that witnesses provide written affidavits summarizing their interviews with the investigator. Indeed, in one recent on-site visit handled by this law firm, the investigator requested that witnesses write down the answer to each of the investigator’s questions, which resulted in an on-site visit lasting the entire work day. Other firms are reporting that investigators are insisting on affidavits being prepared on site by management and nonsupervisory personnel. On several occasions recently, the on-site visits have resulted in efforts by investigators to examine personnel files for job applications, W-2 forms and periodic performance evaluations. In light of this renewed vigor, we recommend establishing an exhaustive list of individuals the investigator plans to interview, a list of documents to be reviewed, and a description of parts of a facility the investigator plans to visit before the on-site investigation takes place so that any disputes over the EEOC’s intended scope of the investigation can be worked out beforehand.
Special thanks to Jonathan Ross, who assisted with drafting this article.