By Rebecca Bromet, Christopher DeGroff, and Gerald L. Maatman, Jr.
The EEOC’s Quality Control Plan for investigations and conciliation emerges on the heels of the Commission’s Strategic Enforcement Plan for FY 2013-2016. As we previously reported, the EEOC’s Strategic Plan will function as the blueprint for the Commission’s enforcement activity for the next several years. Because of the Plan’s importance to employers, corporate counsel, and HR professionals, Seyfarth Shaw LLP offered its input on the Strategic Plan from the earliest stages of the EEOC’s drafting process (those submissions are available here, here, here, and here ). Seyfarth was pleased that the final Strategic Plan contemplated the implementation of a Quality Control Plan that will improve the EEOC’s coordination between investigation and legal enforcement functions. The EEOC has indicated that it is hopeful that the Quality Control Plan will increase the timeliness of its investigation administrative charges and the quality of its conciliation efforts.
On February 12, 2013, the EEOC asked the public for input on its new Quality Control Plan. The EEOC indicated that it was most interested in, among other things, recommendations for improving investigations, conciliations, and the quality of the Commission’s intake process.
Today Seyfarth Shaw submitted its recommendations to the Commission for ways in which the EEOC can better fulfill its investigation and conciliation functions, based on our years of close interaction with the agency in some of its largest and most complex matters. Seyfarth Shaw’s recommendations include:
Refining the pre-investigation process: We have seen an alarming trend of the EEOC abandoning its core tenant of seeking voluntary compliance with EEO laws through cooperating with employers to eliminate real and perceived problems. Seyfarth’s submission notes that, although there are large segments of the agency still committed to working with employers during its pre-suit investigations, there is at least a perception that this contingent is shrinking. In today’s submission, we provide a number of suggestions on how the Commission can reverse this trend.
True investigative neutrality: As we point out in our submission, the EEOC is first and foremost to be a neutral fact-finder at the investigative stage. All parties would benefit from increased employer involvement in all facets of the EEOC process. Seyfarth’s submission provides step-by-step suggestions of how the EEOC can keep employers in the loop through the investigation process.
Addressing opportunities for conciliation improvements: We have consistently observed that the Commission has lost some sense of its core mission when it shifted its emphasis to aggressively pursuing large-scale, high-impact and high-profile investigations and cases. With alarming and increasing frequency, the EEOC’s shift in focus has meant that the Commission drifted from its statutory mandate that it may pursue civil action against an employer only after it has satisfied its statutory duty to “eliminate the alleged unlawful employment practice through informal methods of conference, conciliation and persuasion” as a precondition to filing an action. In today’s submission, Seyfarth once again strongly urged the EEOC to consider a change in its current conciliation approach.
We hope that armed with this feedback, the EEOC will be better able to accomplish the goal of improving its investigation and conciliation process. It remains to be seen if the EEOC will listen to Seyfarth Shaw’s suggestions, as well as the many other submissions presented to the agency. We may have an answer to our question next month, when the Quality Control Plan is slated to be submitted to the EEOC’s Commissioners. On April 30, 2013, the EEOC will vote on the Quality Control Plan. We will provide readers with updates on these important dates. Stay tuned.
Readers can also find this post on our EEOC Countdown blog here.