By Rebecca Bromet, Christopher DeGroff and Gerald L. Maatman, Jr.
On May 10, 2013, the EEOC released its Quality Control Plan (“QCP”) draft principles. In an accompanying press release, the EEOC said that the “[Quality Control Plan] will revise criteria to measure the quality of agency investigations and conciliations throughout the nation.”
If the Plan is a “blueprint” for the EEOC’s enforcement activity, the “draft principles” could only be called a rough and high-level sketch of the ultimate structure. The EEOC’s Strategic Enforcement Plan for Fiscal Years 2012 – 2016 requires the EEOC to develop a QCP that “establishes criteria for evaluating the quality of its investigations and conciliations and a peer review system to conduct assessments of investigations and conciliations.” The draft principles are intended to address “issues of quality and timeliness.”
The EEOC set a short window for public input on the draft principles. Today, Seyfarth Shaw submitted its recommendations to the Commission for ways in which it can meaningfully evaluate its investigation and conciliation functions without losing sight of its mission: “to encourage voluntary compliance with anti-discrimination laws and to assist employers, employees and stakeholder groups to understand and prevent discrimination.”
Seyfarth Shaw’s recommendations include:
Measurable criteria: The EEOC has touted a commitment to a “national law firm” model, but employers still confront “consistent inconsistency” with the agency characterized by wide variation among the procedures used by EEOC’s District, Field, Area, and Local offices. In an effort to standardize EEOC’s practices, the draft principles outline the criteria for “quality” investigations and conciliations. Unfortunately, the principles are too general. Seyfarth’s submission expresses encouragement for the EEOC’s move in the right direction, but observes that the devil will be in the details. Seyfarth suggests that measurable criteria are necessary to give true incentive to the EEOC’s definition of “quality” and to ensure “timeliness.”
Separation of fact-finding and litigation functions: Seyfarth has consistently expressed concerns with the blurring of the line between the EEOC’s purportedly “neutral” fact-finding and litigation functions. We have stressed that a separation between these functions is necessary to ensure that EEOC’s investigations are fair and impartial, as opposed to surface attempts to check off “investigation” and “conciliation” boxes before filing suit, or worse, a way of obtaining “pre-discovery” before litigation. Our concerns are not addressed in the draft principles; we hope later drafts and the final Quality Control Plan will reinforce such a division.
Good-faith conciliation: Employers dealing with the EEOC are often vexed by its unwillingness (or inability) to explain the bases or merits of enormous pre-suit conciliation demands. The draft principles offer a glimmer of hope in this regard. As part of a quality conciliation, the EEOC appears to be more willing to share information with employers regarding how it calculates monetary relief and why it may be seeking certain programmatic relief. However, the quality criteria for conciliations omit any reference to or discussion about the merits of the charge or the EEOC’s reasonable cause determination. We suggest that the EEOC re-think and expand its conciliation parameters. From employers’ perspective, a meaningful negotiation regarding the appropriate value of the EEOC’s claims must include a discussion regarding the merits.
We recognize that the draft principles are a work in progress. We are cautiously optimistic that the EEOC has initiated a discussion regarding the manner in which it conducts investigations and conciliations. A meaningful discussion is necessary to reform the process, which, as we have previously noted, is balkanized and district-centric, often combative rather than cooperative. We hope the EEOC is committed to doing the hard work it will take to flesh out the draft principles into a robust Quality Control Plan that encourages uniformity and accountability – the touchstones of “quality.”