Few EEOC initiatives have spurred as much comment – and criticism – as its 2012-2016 Strategic Plan. In essence, it is the EEOC’s blueprint for enforcement activity in the years to come. As we previously blogged and discussed, when the EEOC first reported the Plan this past January, one of the EEOC’s chief goals is to “combat employment discrimination through strategic law enforcement,” including using administrative and litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination. The cornerstone of this objective is the EEOC’s ambition to develop and implement a “Strategic Enforcement Plan” – the tip of the spear for its Systemic Initiative.
On June 5, 2102, the EEOC sought public input on the Strategic Enforcement Plan, and on June 19, 2012, Seyfarth Shaw submitted its recommendations to the Commission for ways it could better achieve its goals – one of the few private organizations submitting a response. Following up on those written submissions, the EEOC held a full-day public meeting today seeking additional input on its Plan.
We attended, and found the discussion to be quite informative. Employers, corporate counsel, and HR professionals are well served to take note of today’s discussion in Washington, D.C.
Five panels presented their views to the Commissioners in Washington, D.C. The first included former EEOC Chair Gilbert Casellas and former Vice Chair Leslie Silverman. They discussed where the EEOC’s Strategic Enforcement Plan should focus its efforts, based on previous attempts to streamline and improve efficiency in the EEOC’s enforcement mission. The second and third panels consisted of private sector stakeholders, along with state and local government sectors. These panels included high-profile private plaintiffs’ attorneys, like Joseph Sellers, who represents the employees in the Dukes v. Wal-Mart Stores, Inc. litigation. These panels also included representatives of non-profits who focus on non-discrimination and employment law issues, state human rights and civil rights enforcement officials, and law professors who have studied trends in employment discrimination litigation and the EEOC’s enforcement efforts. The fourth panel discussed the special considerations the EEOC faces in enforcing anti-discrimination laws as they apply to federal government employees. A final panel consisted of current EEOC employees who provided their perspective as agency insiders to give the Commission their views on how the Strategic Enforcement Plan should be implemented.
Even with short individual speaking times, much could be gleaned from the issues the panelists chose to address, and the questions asked by the Commissioners. Especially telling were comments by former EEOC high-level leaders. Former Vice Chair Silverman focused on the delays in investigating charges of discrimination, along with what she sees as poor quality investigations. Former Chair Casellas agreed, stating that quality control remains a challenge. Ms. Silverman was troubled by the EEOC status quo of pressing multiple systemic investigations at the same time in various districts around the country. She sees this as driving up the cost of these investigations, especially when they are conducted in areas where the law is unsettled. Ms. Silverman also lamented the fact that the Commissioners no longer review the vast number of systemic cases that are filed; she urged the EEOC to create mechanisms where the field is not only exposed to the systemic litigation program more directly, but work in conjunction with the office of the EEOC’s General Counsel. Ms. Silverman pointedly observed that the Commissioners have no knowledge of the systemic cases that are prosecuted by the EEOC. Her advice to the Commission was to set as a priority the hardest, most shocking and most egregious cases of discriminatory conduct and focus on those cases as a way of harnessing the powerful deterrent function while allowing the agency to use scarce resources more efficiently.
Other panelists urged the EEOC to set as priorities certain types of discrimination that it feels are common and often unaddressed, such as pregnancy discrimination, national origin discrimination against immigrants, and religious discrimination against Muslims, Sikhs, and others. Mr. Sellers’ comments were noteworthy in that he focused attention on the need for certain investigations to be more rigorous than others. Mr. Sellers stated, “everyone has a right to an investigation, but not to the same investigation.” He further 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. Other ideas floated by panelists for focusing the EEOC’s systemic enforcement priorities included looking at specific industries that data show historically disadvantage female and minority employees or applicants – something like “Mad Men” regarding the advertising industry, for example, or the financial services industry.
Finally, a common theme among the panelists was the need for consistency in enforcement and litigation. Several panelists explained how private sector employers, such as small business in particular, receive conflicting advice not only from EEOC versus other federal agencies, but also even within the EEOC itself. Members of the defense bar who work on defending employment discrimination cases brought by the EEOC know too well how one District office can work to resolve or litigate a case in one manner, while another District office works in an entirely different way.
The panel of EEOC employees was particularly informative, in that it revealed some frustrations among lower-level agency leaders and attorneys about the direction the Strategic Enforcement Plan might lead. One controversial subject seemed to be the use of certain metrics as tools for measuring “success.” One panelist from a rural area stated that she was expected to file a certain number of systemic cases each year, even though there were very few large employers in her region. She strongly disagreed that sheer numbers of cases filed or resolved was a reasonable measure of “success” in light of the agency’s mission of ensuring equal employment opportunity for all. Other EEOC employees strongly suggested that the Commission should not issue national “directives” to districts or regions, but instead give those with “boots on the ground” the discretion to pursue investigations and litigation as their cases lead them there. Elizabeth Grossman, the Regional Attorney of the EEOC’s New York District Office, for example, argued that diversity of approaches in various EEOC offices is a strength that allows for creativity – as opposed to the apparently bad words like “uncertainty” and “inconsistency” that previous panelists had uttered. John Hendricks of the Chicago District Office pointedly warned the Commissioners that “what you do will determine whether the EEOC moves in the direction of fair employment for all,” rejecting the view that the EEOC’s systemic litigation program is too aggressive. He stated, “we are now taken seriously as a law enforcement agency – and our results compel that.” He agreed with Ms. Grossman on the need for continued decentralized decision making on litigation, saying “delegation of authority to regional attorneys means that those with the most knowledge are making litigation decisions seriously and free of politics.”
In all, this meeting resulted in a robust exchange of ideas and viewpoints from both employers and the panelists. The question remains, of course: will the key decision-makers at the EEOC listen? Further, will those key decision-makers take control of litigation systemic issues. If the EEOC acted on the written recommendations that were submitted, along with those voiced in today’s meeting, it would mean a fundamental change in the way that the EEOC views and approaches cases. If the systemic litigation priorities are set by principles (issues where there are power gaps or information gaps), or even specific “hot” issues (pregnancy discrimination, sexual orientation discrimination, etc.), employers would have much more certainty about whether they are likely to be targeted for enforcement activity. Further, if the EEOC does embrace a process of dialogue with stakeholders focused on education and outreach efforts – as several panelists urged – where it will take notice of and value the efforts that many large employers have made to promote diversity in their workforces, the prospects for reducing discrimination in the workplace will come closer to full realization.