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Good morning Mr. Chairman and members of the Subcommittee. On behalf of the
Yet, a properly functioning EEOC is critical for employees and employers alike. An EEOC that timely investigates charges and objectively applies the law to the facts of each charge provides employees with critical information about their rights, and employers with critical guidance as to their obligations under applicable law. Congressionally-mandated bona fide EEOC conciliation and other dispute resolution processes can quickly eradicate and remedy an unlawful practice, while also instructing employers as to their legal obligations regarding individual employment decisions and compliant employment policies. The EEOC's vigorous pursuit of cases where unlawful discrimination has occurred as the end stage of enforcement protects affected workers and ensures employer compliance with federal laws.
As described by the
Attached to my testimony is the Chamber's recently-published Paper entitled: "A Review of Enforcement and Litigation Strategy During the
The EEOC's Investigation and Conciliation Record
Title VII requires the EEOC to "make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge." Yet, Chamber members, as well as plaintiff and management attorneys and courts have uniformly criticized the EEOC for investigations that are dilatory, inconsistent and of questionable quality. n8
Chamber members have voiced concern over numerous examples of EEOC enforcement tactics during the EEOC's investigation and attempts to resolve pending charges of discrimination. n9 Those abuses can be grouped in the following three categories: abuses relating to an investigator's conduct during an investigation; abuses relating to an investigator's conduct during a fact-finding conference; and abuses relating to an investigator's unwillingness to fairly mediate or negotiate a resolution of a charge.
Examples of EEOC enforcement abuses relating to an investigator's conduct during an investigation include: pursuing investigations despite clear evidence that an employee's termination was not discriminatory (including challenging a termination based on video capturing the charging party displaying pornography around the workplace); several examples of instances where employers have been required to submit detailed position statements, information and documents relating to employees' claims that they had been terminated unlawfully when they were either still employed or had resigned voluntarily (resulting in the expenditure of thousands of dollars in legal fees); requiring the production of workplace policies completely irrelevant to the underlying charge; serving subpoenas for information or documents that were not previously requested by the investigator; communicating directly with employer agents though notified that the employer was represented by counsel; refusing to grant extensions of time to produce information or documents requested because, as a blanket rule, "extensions are not granted"; refusing to provide charging parties or employers with information regarding the case status while it is open; and refusing to close cases that are several years old, preferring instead to continually send employers additional requests for information.
Some employers have gone on the offensive against inappropriate EEOC enforcement tactics, including
The Code of Federal Regulations sets forth express guidelines for the EEOC's investigation of charges of discrimination. It states:
The agency must develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complaint. An appropriate factual record is defined in the regulations as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Investigations are conducted by the respondent agency. n12
Various issues have also arisen with respect to EEOC enforcement abuses relating to an investigator's conduct during a fact-finding conference, including: requiring mandatory conferences; holding the conference prior to the start of the investigation and without first receiving an employer's position statement or statement of facts; conducting the conferences in a confrontational manner (aggressively questioning employer representatives, but not charging party); and refusing to allow an employer's representative to speak during the conference.
Additional EEOC enforcement abuses during settlement conversations include: urging an employer in writing to accept a mid-five figure settlement with respect to a charge based on a variety of alleged bad facts the EEOC claimed showed discrimination (though the EEOC had not at that time issued a determination letter), and, when the employer rejected the offer, days later dismissing the charge as without reasonable cause to believe discrimination existed; refusing to engage in a mediation with the employer, claiming the employer did not negotiate in good faith, notwithstanding the same investigator had a few months earlier mediated successfully with the same employer; demanding short turnarounds on any proposed conciliation counteroffers, even though the EEOC's response time for conciliation communications has taken several months; and refusals to provide employers in conciliation and settlement negotiations with information to support the underlying findings or requested relief or appropriate ways to revise policies or practices to comply with non-discrimination laws.
Consistent with the experience of Chamber members, at various Commission meetings aimed at developing the Commission's Strategic Enforcement Plan and Quality Control Plan, Commissioners were confronted with rare agreement between the plaintiff and management bars that the EEOC's investigations are too long, inconsistent, and of questionable quality. n13 The meeting attendees stressed that the EEOC should focus its resources on its priorities and introduced the concept of a "quality, limited investigation" for remaining charges. Unfortunately, the EEOC's recently-released draft Quality Control Plan ("QCP") that is intended to set quality standards for investigations and conciliations does not offer timeliness guidelines for quality investigations nor a definition of a "quality, limited investigation." n14
Recently, and with more frequency, the sufficiency or the appropriateness of the EEOC's pre-suit obligations have been successfully challenged by employers in courts. "Before the EEOC is able to file a lawsuit in its name, it must establish that it has met four conditions precedent, namely: the existence of a timely charge of discrimination, the fact that EEOC conducted an investigation, issued a reasonable cause determination, and attempted conciliation prior to filing suit." n15 The most recent example of EEOC abuse in the investigation context occurred in EEOC v.
Notwithstanding the above failures in the EEOC's investigative processes, the EEOC is unwilling or unable to provide guidance to ensure investigations are run with the utmost professionalism, quality, and consistency throughout the country. The Chamber urges
Before filing a suit, Title VII requires that the EEOC "endeavor to eliminate any... unlawful employment practice by informal methods of conference, conciliation, and persuasion." n18 That serves all sides - employees, employers and courts. Needless, expensive, protracted litigation should be avoided if compliance can be obtained through informal means.
Despite this statutory language, the EEOC rejects the notion that its statutory obligation is subject to judicial review; rather, the EEOC contends that courts must simply accept the EEOC's assurance it occurred. Courts, however, are empowered to enforce the law, review agency decisions and ensure that agencies do not exceed their statutory boundaries. Making compliance with a statute unreviewable is to make a violation of that statute irremediable. No legitimate reason exists to exempt the EEOC's statutory obligation to conciliate from judicial review, while other statutory requirements - charge requirements, time limits and notice rules - are routinely subject to judicial review.
In fact, when
For the last forty years, courts have routinely reviewed whether the EEOC has sufficiently complied with conciliation obligations. Recently, in EEOC v.
There was a clear and present danger that this case would drag on for years as the EEOC conducted wide-ranging discovery and continued to identify allegedly aggrieved persons. The EEOC's litigation strategy was untenable:
As a result, the district court sanctioned the EEOC and awarded
Yet a recent
The Committee is concerned with the EEOC's pursuit of litigation absent good faith conciliation efforts. The Committee directs the EEOC to engage in such efforts before undertaking litigation and to report, no later than 90 days after enactment of this Act, on how it ensures that conciliation efforts are pursued in good faith. n26
The EEOC should not be permitted to ignore Title VII's plain language, nor should courts abdicate their responsibilities in determining whether an executive branch agency complied with its statutory requirements. Yet, that is what the EEOC argues in courts throughout the country and in its brief filed in response to Mach Mining's petition for writ of certiorari currently pending before the
Recently, multiple federal courts have sanctioned the EEOC in connection with its investigatory and litigation tactics. In the last two years, the EEOC has been ordered to pay employers over
Title VII confers authority to initiate litigation to the five-member
This has not always been the case. In 1995, the Commissioners delegated their authority to initiate litigation to the General Counsel, who subsequently delegated much of that authority to the district offices. Since then, the Commission has only exercised authority to initiate litigation in some but not all cases involving a major expenditure of resources, cases presenting a developing area of the law, cases likely to present a public controversy, and cases where an EEOC amicus brief is sought.
In the early-to mid-2000s, as many as 75-80 litigation recommendations were submitted annually to the Commission for authorization. Yet, in recent years, the number has decreased dramatically. In the three-year period covering 2010, 2011 and 2012, a total of approximately 15 cases (of any type) were submitted to the Commission for authorization. In late 2012, the EEOC adopted its Strategic Enforcement Plan, which continued the EEOC's focus on systemic litigation, but slightly modified the delegation of authority to the General Counsel, which required "most" systemic cases to be submitted to the Commission for review. Overall, the Commission required a minimum of 15 cases, one from each district office, be presented for review each fiscal year. In fiscal year 2013, the EEOC filed 21 systemic cases and 21 non-systemic multi-plaintiff cases. Based on information provided before each public Commission meeting, it is clear that many of these cases were initiated by the district offices without approval from the Commission.
Given the significant expenditure of resources by both the EEOC and private employers in connection with multi-plaintiff cases in 2013, the Chamber urges that all multi-plaintiff litigation be submitted to the Commissioners for review and approval prior to initiation of litigation.
Private Party Litigation Failures
Despite significant budgetary increases in 2009 and 2010, n29 and consistent funding at high levels since, EEOC litigation is down almost 55%. n30 Since
For example, in a race discrimination case, the EEOC alleged that a staffing company's blanket policy of not hiring individuals with a criminal record had a disparate impact on African-Americans. n32 However, the company simply did not have a blanket no-hire policy. Despite becoming aware of the fatal false premise of its case during discovery, the EEOC continued to litigate anyway.
A federal court in
Similarly, in a case alleging discrimination under the
While litigating disparate impact claims, which do not require that the EEOC prove intentional discrimination against any alleged victim, the EEOC has fared no better. For example, in an
EEOC abuses can also be found during the discovery phase of litigation. For example, in EEOC v. Honeybaked Ham n39, a
The EEOC's Failed Amicus Program n41
Not only has the EEOC been unsuccessful in its major cases in which it is a party, the EEOC's amicus curiae program was equally unsuccessful in 2013. One of the most important legal enforcement methods available to the EEOC is its amicus curiae program. n42 Amicus briefs are "friend of the court" briefs filed by the EEOC "in a case that raises novel or important issues of law" that fall within EEOC's expertise. n43 The EEOC has an exhaustive approval process for amicus participation, with all recommendations in favor of amicus participation approved by a majority of the five-member Commission. Amicus briefs are part of the EEOC's targeted and integrated approach to law enforcement, focused on the EEOC's priorities, and often seek judicial approval of EEOC positions contained in its enforcement guidelines and policy statements.
In 2013, the
In addition to the
Whether the EEOC's amicus program's success is measured on a pure numerical win/loss basis, or on the importance of the substantive interpretations of federal law it supported in its amicus efforts, one thing is clear: it was an overwhelming failure. More important, however, is that courts consistently rejected substantive policy positions adopted by the EEOC, which creates an untenable atmosphere for employers and employees, both of whom are left searching for reliable guidance on rights and obligations under federal employment civil rights laws. The EEOC has abandoned its role as neutral enforcer of the plain language of the law to an overly aggressive litigant, seeking to make law through cases, not legislation.
Expansive Enforcement Guidance
As is clear from the appellate courts' rejection of EEOC guidance, employers find themselves between a rock and a hard place when it comes to determining whether to revise policies and practices to conform to new EEOC enforcement guidance. Guidance represents not the law, but the EEOC's view of the law. Employers look to the EEOC for thought-based, reasonable guidance to assist their compliance efforts. An individual expects that the EEOC provides reliable guidance outlining his or her rights under the statutes within its jurisdiction. However, when any enforcement guidance strays from the statutory intent and is ultimately struck down by the
One potential reason for the continued disregard of EEOC guidance is because it adopts substantive policy positions that create compliance requirements without the benefit of public comment. n55 This is contrary to the strong policy favoring pre-adoption notice and comment on guidance documents. OMB's "Final Bulletin for Agency Good Guidance Practices" states:
Pre-adoption notice-and-comment can be most helpful for significant guidance documents that are particularly complex, novel, consequential, or controversial. Agencies also are encouraged to consider notice-and-comment procedures for interpretive significant guidance documents that effectively would extend the scope of the jurisdiction the agency will exercise, alter the obligations or liabilities of private parties, or modify the terms under which the agency will grant entitlements. As it does for legislative rules, providing pre-adoption opportunity for comment on significant guidance documents can increase the quality of the guidance and provide for greater public confidence in and acceptance of the ultimate agency judgments. n56
For example, one intended audience for any EEOC enforcement guidance is the EEOC investigators, who are trained to implement the relevant guidance document in their day-to-day investigations. EEOC investigators will determine whether reasonable cause exists that discrimination occurred based on an employer's compliance with the relevant enforcement guidance, essentially equating compliance with a guidance document as compliance with a statute. During an investigation, employers are held to the standards set forth in the EEOC's guidance documents. As many guidance documents take expansive views of rights and obligations under the law, it allows investigators to build large systemic cases on questionable theories that force employers to settle before or in the early stages of litigation.
A second flaw in the EEOC's guidance is its treatment of state laws. While Title VII does contain a provision that Title VII supersedes state law only where a state or local law requires or permits an act that would violate Title VII, n57 the EEOC provides no guidance on how an employer should weigh competing federal and state interests, other than to say that an employer will have to establish that a screen based on state law is job-related and consistent with business necessity. It is an expensive endeavor for a nursing home or other health care facility to show that not hiring a serial rapist or drug dealer pursuant to state law is job-related and consistent with business necessity, yet that is what this guidance contemplates.
Finally, the EEOC gives short shrift to common sense employer concerns - workplace safety and the hiring of violent felons, sexual harassment concerns and the hiring of rapists, trust and reliability in one's workforce. In classic "Do as I say not as I do" fashion, the EEOC itself conducts criminal background checks on potential hires because a history or pattern of criminal activity creates doubt about a person's judgment, honesty, reliability and trustworthiness.
In addition to the poor showings in court, the EEOC continues to send mixed signals regarding the efficacy of its guidance positions. For example, in the
Combating discrimination in the workplace is a worthy goal and one that the
Mr. Chairman and members of the Committee, thank you for the opportunity to share some of those concerns with you today. Please do not hesitate to contact me or the Chamber's Labor, Immigration, and Employee Benefits Division if we can be of further assistance in this matter.
n1 I am Chairwoman of the Chamber's equal employment opportunity policy subcommittee. The Chamber is the world's largest business federation, representing more than three million businesses and organizations of every size, industry sector, and geographical region. I am also a partner with the law firm of
I would like to acknowledge
n2 42 U.S.C. [Sec.] 2000e-5(a).
n3 For example, the Chamber worked closely with the disability community to reach a compromise that resulted in the bi-partisan passage of the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA").
n6 The EEOC's amicus curiae program ("amicus") is one of its most important legal enforcement methods. In 2013, the EEOC's amicus program was a complete failure - not only were the EEOC's amicus positions rejected, the
n7 I request that the Subcommittee accept my written testimony as well as the Chamber's EEOC Enforcement Paper as part of the written record of today's Hearing.
n8 See Meeting Transcript of EEOC's
n10 No. 13-cv-01176 (D.D.C. filed
n11 Chamber's EEOC Enforcement Paper at 10-11.
n12 29 C.F.R. [Sec.] 1614.108(b) (emphasis added).
n13 See Meeting Transcript of EEOC's
n14 Instead, the QCP adopts an "I know it when I see it" standard that offers no guidance to the field other than to correctly fill out a charge form and apply the law to the facts.
n15 Id. at 359-60; 42 U.S.C. [Sec.]2000e-5(b).
n16 EEOC v.
n18 42 U.S.C. [Sec.] 2000e-5(b).
n19 S. 2515, 92d Cong. [Sec.] 4(f) (1971).
n20 42 U.S.C. [Sec.] 2000e-5(f)(1).
n21 679 F.3d 657, 676-77 (8th Cir. 2012).
n22 Id. at 676.
n23 EEOC v.
n24 The Second, Fifth, and Eleventh Circuits evaluate conciliation under a searching three-part inquiry. EEOC v.
n25 H. Rep. No. 113-448, at 83-84 (2014).
n28 In EEOC v.
n29 See http://www.eeoc.gov/eeoc/plan/budgetandstaffing.cfm. Between fiscal year 2008 and fiscal year 2010, the EEOC's budget increased by over
n30 See http://www.eeoc.gov/eeoc/statistics/enforcement/litigation.cfm. In fiscal year 2008, the EEOC filed 290 merits cases. In fiscal years 2012 and 2013, the EEOC filed 122 and 133 merits cases, respectively.
n31 For additional analysis regarding the EEOC's litigation abuses, see the Chamber's EEOC Enforcement Paper at 7-11.
n32 EEOC v.
n33 EEOC v.
n35 EEOC v.
n38 EEOC v. Freeman, 961 F. Supp. 2d 783, 797-799 (D. Md. 2013).
n39 EEOC v.
n40 EEOC v.
n41 For a more in depth analysis of the EEOC's failed amicus program, see the Chamber's EEOC Enforcement Paper at 18-25.
n42 The EEOC has not included information regarding its 2013 amicus record on its website, in its 2013 PAR, or in its General Counsel's Law360 article criticizing other analyses of the EEOC's litigation record as failing to perform a comprehensive review of all 2013 EEOC litigation efforts. Without considering the EEOC's 2013 amicus record, its General Counsel asserted that when one reviewed the EEOC's entire record instead of a few EEOC losses still on appeal, "...we [EEOC] have a record of success in reversing adverse decisions when a case moves to the appellate court.").
n43 See U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, AMICUS CURIAE PROGRAM, (
n44 The EEOC prevailed on procedural arguments in the following three amicus cases in 2013: Mandel v
n45 The EEOC's substantive arguments were rejected in the following eight amicus decisions in 2013: Vance v.
n47 Vance, 133 S. Ct. at 2454.
n48 Nassar, 133 S. Ct. at 2533-34.
n50 Gross v.
n53 714 F.3d 1034, 1037 (7th Cir.
n54 737 F.3d 344, 360 (5th Cir.
n55 Notably, the EEOC placed complete drafts of its Strategic Plan and Strategic Enforcement Plan for public comment. See http://www.eeoc.gov/eeoc/newsroom/1-18-11a.cfm and http://www.eeoc.gov/eeoc/newsroom/release/9-4-12c.cfm. It did not provide a complete draft of either its draft Quality Control Plan, enforcement guidance related to the use of criminal convictions, anticipated guidance related pregnancy discrimination, or other draft guidance documents regarding credit background checks or under reasonable accommodation requirements under the
n57 42 U.S.C. [Sec.] 2000e-7.
n58 See EEOC's Memorandum in Support of Motion to Dismiss, No. 5:13-CV-255 C, at 7 (
n59 Amicus Brief for
Read this original document at: http://edworkforce.house.gov/UploadedFiles/Testimony_Olson.pdf
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