The U.S. Equal Employment Opportunity Commission
Motions and Directives Presented at the April 4, 2006 Commission Meeting
MOTIONS PRESENTED BY COMMISSIONER SILVERMAN
- I move that the Commission be firmly resolved to promoting a culture at all levels of the agency that supports the identification, investigation and litigation (when necessary) of systemic cases, that is, pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location. To that end, the Commission requests that the Chair take those actions necessary to promote a reinvigorated systemic program at EEOC by enhancing incentives for identifying, investigating and litigating systemic cases, providing additional opportunities for training and the development of expertise related to systemic discrimination, and improving access to technology that supports the systemic program.
- I move that every district should contribute to the Commission's systemic program through the identification, investigation and litigation of systemic cases. In conjunction with this, the districts should be instructed to develop Systemic Plans to ensure that the Commission is identifying and investigating systemic discrimination in a coordinated, strategic, effective agency-wide manner. The Plans should describe the specific steps each District will take to identify and investigate systemic discrimination, including partnering with offices or staff in other districts.
- I move that the Office of General Counsel (OGC), the Office of Field Programs (OFP), and the Office of Research, Information and Planning (ORIP) be instructed to work in a coordinated fashion to support the Commission's efforts to address systemic discrimination by providing assistance and advice to the field offices; facilitating the sharing of investigation and litigation expertise among the Districts; and developing incentives to support and promote the systemic program.
- I move that Systemic Litigation Services (SLS) and Systemic Investigations and Review Programs (SIRP) in the Office of General Counsel be eliminated and that the Office of General Counsel portion of EEOC Order 110.002 be revised to reflect this change; that systemic investigations and litigation be conducted in the offices in the field; and that prior to the effective date of the elimination of SLS and SIRP, staff in SLS and SIRP be reassigned to other positions commensurate with their skills and expertise.
- I move that the Chair direct that a Committee of Advisors for Systemic Enforcement (CASE) be established. CASE should not serve as a management function, but should assess the agency's overall effectiveness in combating systemic discrimination and serve as a resource on systemic matters.
- I move that the Chair direct the Office of Information Technology (OIT) to analyze Task Force recommendations 66 through 92, contained in the Systemic Task Force Report, to identify the items already implemented or in progress and to develop an action plan that includes a timeline for the collection of requirements from the Task Force and relevant offices, a feasibility analysis based on the requirements, and the development of cost and resource estimates needed to implement system modifications or new systems. Priority should be given to the following items: linking IMS data with the data from the EEO-1 Survey to allow users working in IMS to access EEO-1 data automatically; creating a mechanism for placing "flags" in IMS to identify issues, bases, industries, and employers of interest; integrating Census data into the EEO-1 Desktop to allow staff to construct Census-based availability estimates; creating a mechanism such as an electronic bulletin board or listserv to facilitate communication among staff; and ensuring that the technology framework supports staff in different offices working together effectively on systemic cases (via common share drives, litigation support software that can be used across offices, etc.).
- I move that the Office of General Counsel be encouraged to facilitate the staffing of systemic cases using a national law firm model, as recommended by the Systemic Task Force, whereby cases are staffed with employees who have the expertise needed in each particular case.
CHAIR DIRECTIVES ON THE MOTIONS
The District Directors and Regional Attorneys are to prepare Systemic Plans to be submitted to the Director of OFP and the Deputy General Counsel. Such plans should contribute to the EEOC's nationwide systemic program; should include specific steps the district will take to identify and investigate systemic discrimination; and should address the investigation of existing charges or the development of Commissioner Charges and directed investigations. The Districts should be encouraged to partner with offices or staff outside their districts, and OFP, OGC and ORIP should assist the districts in identifying offices and staff with systemic expertise who can serve as partners. The Plans should require results and may require adjustments to other office goals and priorities. OFP and OGC should provide guidance to the field regarding the development of Systemic Plans. The Plans should be submitted to OFP and OGC by the end of the 4th quarter of Fiscal Year 2006 and ultimately approved by the Director of OFP and the Deputy General Counsel by the end of the 1st quarter of Fiscal Year 2007.
- The Office of Field Programs and the Office of General Counsel are to prepare a user-friendly memorandum for field personnel by the end of the third quarter of Fiscal Year 2006. This memo will explain the procedures for initiating and investigating Commissioner Charges and Directed Investigations and will also clarify the type of evidence and information that typically should be included in a Commissioner Charge proposal.
- The Office of Field Programs and the Office of General Counsel shall inform new Commissioners about the Commissioner Charge process and the amount of evidence that is typically available at the proposal stage. Commissioners are encouraged to consult with field offices about field proposals, or if they wish to develop their own Commissioner Charges on their own initiative.
- The Executive Secretariat shall ensure that Commissioners review Commissioner Charges in a timely manner.
- I direct that a Committee of Advisors for Systemic Enforcement, that shall be known as (CASE), be established in accordance with the recommendations of the Systemic Task Force. CASE shall not serve as a management function, but shall assess the agency's overall effectiveness in combating systemic discrimination and shall also serve as a resource on systemic matters. The Office of Field Programs, the Office of General Counsel and the Office of Research, Information and Planning will take the lead in establishing CASE. CASE shall provide semi-annual reports to the Commissioners and to the field.
- The Office of Field Programs, the Office of General Counsel, District Directors and Regional Attorneys are encouraged to identify systemic discrimination by doing the following: analyzing relevant information, including reports provided by ORIP and other data; engaging in outreach efforts with advocacy groups, academics and others; collaborating with FEPA partners; coordinating with the U.S. Departments of Justice and Labor; and coordinating other appropriate agencies and among district offices to share ideas and information. Possible systemic discrimination should be pursued through expanded charge investigations, through Commissioner Charges and Directed Investigations where appropriate.
- OFP, OGC, ORIP and the Office of the Chair, in accordance with recommendations 62 through 65 of the Systemic Task Force Report, shall develop incentives to support the successful implementation of the new systemic program, including making appropriate modifications to the performance plans of District Directors, Regional Attorneys and relevant ORIP staff for Fiscal Year 2007. The field should be encouraged to successfully identify, investigate, conciliate and litigate systemic cases, to contribute to the Commission's national program of combating systemic discrimination, and we're going to do this through partnering, mentoring or other methods and developing systemic expertise among staff.
- The Office of Information Technology, in consultation with OGC, OFP, ORIP and the Chief Financial Officer, is directed to analyze Task Force recommendations 66 through 92 and to develop an action plan to submit to the Commission by the end of the third quarter in Fiscal Year 2006. This plan should include a timeline for the collection of requirements from the Task Force and relevant offices, a feasibility analysis based on the requirements, and the development of cost and resource estimates needed to implement system modifications or new systems. When developing the action plan, OIT should give particular priority to: linking IMS data with the data from the EEO-1 Survey to allow users working in IMS to access EEO-1 data automatically; creating a mechanism for placing "flags" in IMS to identify issues, bases, industries, and employers of interest; integrating Census data into the EEO-1 Desktop to allow staff to construct Census-based availability estimates; creating a mechanism such as an electronic bulletin board or listserv to facilitate communication among staff; and ensuring that the technology framework supports staff in different offices working together and effectively on systemic cases (via common share drives, litigation support software that can be used across offices, or any other appropriate tool).
- The Office of Research, Information and Planning shall support the Commission's systemic program by analyzing charges, EEO Survey and Census data to identify possible systemic discrimination from national and regional perspectives, prepare user-friendly reports and identify bases, issues, industries or employers of interest. ORIP also shall work with the field to identify local issues and obtain
information about particular charges and identify local academicians to discuss local economic trends with field offices. ORIP shall gear formal studies toward identifying systemic discrimination for enforcement purposes. In consultation with OFP, ORIP shall also identify instances of possible systemic discrimination where more than one office is investigating similar claims against the same respondent and shall communicate this information to the field and OFP for possible coordination. Headquarters shall also assist the field in conducting library research related to systemic cases.
- The Office of Research, Information and Planning is requested to unify its expert staff who support the field's development and identification of systemic charges.
- The Office of General Counsel is encouraged to facilitate the staffing of systemic cases using a national law firm model, as recommended by the Systemic Task Force. In addition, OGC is encouraged to provide increased assistance to the field in systemic cases that are consistent with the Task Force's recommendations, including providing direct litigation support services; providing additional assistance with technology-related discovery and trial matters; identifying staff with systemic expertise; assisting with coordination between offices on related or similar systemic cases; and assisting the field in identifying, selecting and working with experts. OGC is requested to provide quarterly reports to the field and appropriate headquarters offices on the status of EEOC's systemic litigation program.
- OFP, OGC, ORIP, in collaboration with the field and relevant headquarters staff, shall support and promote the enhancement of expertise related to the identification, investigation, conciliation and litigation of systemic cases through a variety of means, consistent with the Systemic Task Force's recommendations 54 through 60, and 99 and 100. Specifically, OFP and OGC are encouraged to help facilitate partnering opportunities as a means to develop expertise in systemic cases. I request that by the end of the third quarter of Fiscal Year 2006, OFP, OGC and ORIP, with broad consultation with internal staff, prepare plans for formal, informal and self-directed training on systemic matters (including training in partnership with other agencies and organizations, as appropriate). OFP, OGC and ORIP should collect and create manuals, guidelines, checklists, sample documents and other appropriate materials useful to field staff in developing, investigating or conciliating systemic cases, and these materials shall be placed on an internal website, in a section devoted to the Commission's systemic practices. OGC, ORIP, and the Chief Financial Officer are encouraged to provide access to appropriate subscription services, books, videos and journals to support the systemic program, consistent with available resources. To help launch the Commission's systemic program this year; I will commit Fiscal Year 2006 training funds to conduct a systemic conference.
- In conjunction with the Director of the Office of Field Programs, the Deputy General Counsel and the Chief Financial Officer, and consistent with available resources, I will ensure that staff are properly allocated in support of the systemic program. I will further assess the staffing recommendations identified in the Systemic Task Force Report to determine appropriate staffing, either through the realignment of existing staff or through new hires, including the recommendation to hire additional field staff, particularly in those offices that are sharing their expertise with others. We also have to look at hiring additional expert staff for ORIP and OGC, to add paralegal positions, and redeploy some Headquarters staff to enhance the library staff. The Office of Human Resources is hereby directed to explore the feasibility of creating a select number of GS-13 lead systemic investigator positions and GS-12 systemic litigation analyst positions as appropriate.
- Districts are requested to identify a primary point of contact, a person responsible for coordinating with ORIP, OFP and OGC in the identification of systemic discrimination.
- OGC, OFP and ORIP are requested to identify contact people for field offices who wish to seek assistance in developing or investigating systemic Commissioner Charges or Directed Investigations.
- OFP and OGC shall issue a memorandum to the field by the end of the third quarter of Fiscal Year 2006, clarifying that: 1) there should be close interaction between enforcement and legal on the development and investigation of systemic charges; 2) A-1 charges should not be sent to the mediation program without the concurrence of the District Director and the Regional Attorney; 3) districts should share priority issues with other districts, appropriate headquarters staff and FEPAs; 4) staff should explore the class potential of charges where appropriate, and charging parties may include class allegations in charges if they wish to do so; and finally systemic charges should be processed as appropriate, including dismissed when a review of the information on hand indicates that further investigation is not likely to uncover evidence substantiating the allegations.
- OFP, OGC and district offices should coordinate with federal, state and local sister agencies on systemic cases, where appropriate. OFP and OGC should identify an employee responsible for coordinating with the Department of Justice and the Department of Labor on systemic charges and cases.
- Members of the Commission and employees who engage in outreach are encouraged to use their public speaking engagements to educate employers and other members of the public about systemic discrimination, including trends and issues that the agency has identified and cases that the agency has handled.
This page was last modified on April 5, 2006.
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