Meeting of September 8, 2003, Washington D.C. on Repositioning for New Realities: Securing EEOC's Continued Effectiveness
Chairwoman Dominguez, Commissioners, thank you for this opportunity to speak at this public meeting to provide recommendations on how to make the Equal Employment Opportunity Commission (EEOC or Commission) more customer-centered, performance-driven, and results-oriented.
I am Camille Olson, a partner and Chair of the Labor and Employment Group of Seyfarth Shaw, an international interdisciplinary law firm. Today, I come before you on behalf of the Society for Human Resource Management (SHRM) -- the world's largest association devoted to human resource management. Representing more than 175,000 individual members, the Society's mission is to serve the needs of HR professionals by providing the most essential and comprehensive resources available. As an influential voice, the Society's mission is also to advance the human resource profession to ensure that HR is recognized as an essential partner in developing and executing organizational strategy. Founded in 1948, SHRM currently has more than 500 affiliated chapters within the United States and members in more than 100 countries.
SHRM commends the EEOC for seeking stakeholder input on how to best reposition itself for the future. HR professionals are particularly well situated to discuss ways in which the EEOC can efficiently and effectively face the challenges of the 21st century. The Society's membership is made up of individuals - specifically HR professionals - those that stand on the front line when it comes to workplace issues. Human Resource (HR) professionals ensure the effective and efficient use of human talent to accomplish organizational goals. Today, HR professionals balance strategic and transactional roles and are dedicated to maintaining a workplace free of discrimination. Many are the cornerstone of their organizations' employer-employee relations, as they are the individuals committed to fair employment practices in hiring, training, compensation, benefits, promotion, transfer and termination of employees. HR professionals educate both employers and employees with regard to workplace fair employment practices and the legal compliance aspect of such practices. They are the first ones to talk with employees who have complaints and they often are the first ones contacted by the EEOC when a claim of discrimination is filed against the organization. HR professionals are committed to promoting workplace diversity and fair employment practices and are often the advocate for employers and employees on a wide variety of workplace issues. SHRM is pleased to be a part of this process and offers this advice based on feedback from its members.
In an effort to provide the Commission with recommendations for an effective future, SHRM on its website announced that it was seeking insight from its members to help prepare the EEOC for the 21st century. Additionally, SHRM posted queries on its web-based bulletin board and conducted a survey to obtain information form its members. To effectuate the survey, SHRM sent an email with a link to the survey was sent to 2, 245 randomly selected SHRM members. Of these, 1950 were successfully delivered to respondents, and 370 HR professionals responded to the poll, yielding a response rate of 19%. The survey results are attached.
As evidenced in the most recent U.S. Census data, demographic changes will certainly cause great shifts in the workplace. The EEOC has done an admirable job offering relevant documents in many languages; however, it must continue to ensure that information be linguistically accessible to all minority groups. This information should not only center on information for employees, but also information prepared for employers. Additionally, aging baby boomers will bring issues relating to an older workforce to the fore. By 2006, more than half the workforce will be over 40, the youngest age eligible for protection from workplace discrimination under the Age Discrimination in Employment Act (ADEA). In fact, nearly half the population will be in the ADEA's protected age group by 2035. This alone is sure to mark a rise in age discrimination claims. EEOC must be prepared for an influx of age discrimination complaints.
The EEOC must also be able to assist employers with a transitioning demographic workforce. With such a newly diverse workplace, an increase in reverse discrimination claims is a distinct probability. The EEOC should be prepared to handle a greater volume of such claims and should be able to provide compliance guidance to HR professionals in the context of a transitioning demographic workplace. Publishing legal best practices can be a valuable tool to assist HR professionals not only in addressing thorny diversity issues, but also with other workplace concerns such as legally compliant policies, release forms and investigation procedures.
SHRM and its members believe that a major problem the EEOC faces is that it does not come across as a neutral body. Rather, the EEOC is perceived as anti-employer and that perception causes an antagonistic relationship between the EEOC and employers that adversely affects the EEOC's ability to achieve its goals. To help achieve the goal of a discrimination-free workplace, the EEOC must recognize that employers as well as employees are its customers. The EEOC should partner with employers and build stronger employer/HR relationships to better position itself to meet its goals of prevention and mediation in the future.
SHRM is mindful that the EEOC has taken steps to reach out to the business community. For example, it sponsored mediation and guidance for small business and at the regional level, significant progress has been made with improved training for investigators, both on procedural and substantive levels. Additionally, there has been great emphasis on reducing the backlog of charges, minimizing delays and following the practice of utilizing one investigator per industry or per large business.
When an organization receives a complaint, it is generally the organization's HR department that is responsible for handling the complaint and dealing with the fair employment agency. Based on the survey, 61.5% of members' organizations received an EEOC complaint. 56.5% received up to 3 complaints, 13.8% 4-6 complaints, and 29.7% received more than 6. When a complaint is filed, the largest percent of our membership consults with the regional and/or field offices nearest them, and not the EEOC headquarters in Washington.
Contrary to the steps being taken at the National level, SHRM members report that based on their experiences, that they believe that many regional offices automatically assume that discrimination has occurred or at least that the employer was attempting to circumvent civil rights laws. The most important time for employers and the EEOC to establish a working partnership is at the conciliation stage. Yet HR practitioners' experiences have been that at the conciliation state, the organizations they represent are often treated as adversaries. At the conciliation stage, in particular, the EEOC should focus on resolving the case and to further this end should act and be perceived by all involved parties as a neutral third party.
HR professionals believe that an effective way to increase conciliation results would be to allow the free flow of information between the parties. SHRM members can appreciate that such free flow of information may amount to "free discovery" in a potential future lawsuit; however, the inability to freely disseminate information goes against the very nature of conciliatory efforts. Another problem is the seemingly pro forma demand for compensatory and punitive damages at the conciliation stage. Regardless of whether there is evidence of emotional damage to the charging party or malicious behavior, regional offices most often will demand such damages, making the possibility of settlement unlikely.
Because it is at the conciliation stage where a working partnership between HR professionals, the organizations they represent and the EEOC is most important; SHRM recommends utilizing mediation at both the pre and post-cause determination stages. Using mediation at the conciliation stage will provide a check and balance system and better ensure that the regional offices follow the mandates of the EEOC Headquarters in Washington. Further, mediation should not be negotiation nor focus on a financial assessment. To be effective, a resolution does not require a large settlement and significant award including compensatory and punitive damages. Rather it should entail a meaningful discussion of employee claims and employer actions.
It seems that the regional offices seek compensatory and punitive damages in even run of the mill cases where there is no evidence to support such damages. This is problematic because the possibility of settlement subsides the instant the EEOC seeks such damages, especially in cases where there is no apparent evidentiary support. SHRM recommends that EEOC Headquarters play a larger role in determining which cases warrant such damages. Possibly this could be a task left to the General Counsel either by developing a certification process or by simply demanding a closer review of the facts outlining a complaint. Either way, greater oversight is needed. Additionally settlements should be reached with a reasonable amount of consistency from the regional offices throughout the country, which should all be operating from guidance drafted by the national office.
Furthermore, the EEOC should direct more of its resources on prevention and educational efforts aimed on compliance. For instance, the EEOC might consider presenting an award (similar to the Department of Labor's Malcolm Baldridge awards) to discrimination-free workplaces. Other possibilities include highlighting best practices, partnering with organizations, such as SHRM, to deliver these types of programs directly. The EEOC's Technical Assistance Seminars (TAPS) are excellent tools for teaching prevention, however feedback from SHRM members highlights that TAPS are informative, yet the content is inconsistent across the country. Additionally, the seminars are prohibitively expensive, especially for small employers.
SHRM has a great deal of concern that there is not uniformity among the regions in charge processing, claims handling, and other activities. The Commission's offices in Washington should require greater accountability for its programs, mandates and intentions. As the regional and field offices are revamped, they should operate as extensions of the National office.
SHRM recommends that EEOC headquarters in Washington develop and implement a standard operating procedure that will enable the regional offices to coordinate their efforts and work toward a common goal. The standard operating procedure should include instruction on intake of claims, including a streamlined checklist to assist the intake officer to assess unmeritorious claims from the outset. For example, with respect to the lowest priority charges, investigators should not require employers to immediately submit a position statement or fully respond to an information request without first evaluating the claim. Often these charges are vague and HR professionals and their employers are in the dark as to the basis for the charge. To more efficiently deal with such charges, SHRM recommends an investigator first seek a statement from the complainant supporting the charge, and relay this evidence to the charging party. HR professionals and the organizations they represent can then more effectively and efficiently respond. The standard operating procedure should also focus on such tasks as the granting of extensions and describe how and when requests for information will be received and answered. The operating plan should also address the role of investigators and outline their goals and duties. Decisions to litigate should not be based on the possibility of large financial awards, but on a variety of factors.
We also suggest that EEOC National office do more to influence the overall strategic direction of the regional offices to be more consistent with the goals and objectives of the National office. One way to accomplish this is by evaluating the performance of the regional office on a variety of criteria, not just the largesse of financial settlements or the number of charges that are filed. Other key performance measures should include the success of the regional offices; outreach activities, compliance or training efforts, or the number of successful mediations. Incentives should be tied to the goals set by EEOC headquarters.
Of the EEOC's three stated goals, prevention, enforcement and mediation, one stands out of great importance to SHRM members: prevention. SHRM applauds the steps that the EEOC has taken to create materials that better educate HR professionals and the organizations they represent as to the legal requirements of Title VII, the ADA and other laws enforced by the EEOC. To be even more effective, SHRM suggests that the EEOC attempt to synthesize the vast materials created into a more user-friendly system. From EEOC Regulations to Compliance Manuals, to Enforcement Guidances to Memoranda of Understanding, finding useful, relevant and up-to-date information is often an extremely complicated, complex and confusing endeavor for HR professionals. The EEOC website needs to be more comprehensive. SHRM's survey of its members indicates that few use the EEOC's website regularly and the majority used it only rarely. The survey also shows that more than 75% would use internet-based charge processing systems, which would allow initial contact with the EEOC to be made electronically.
SHRM members also indicated that they would welcome a national EEOC call center that would cover routing inquiries and provide initial information to investigators at the outset of an investigation. To be effective, the call center must be staffed with well-trained employees who would give advice and information to employees and employers alike. SHRM offers its members comprehensive and complete information on the variety of HR laws, regulations, and policies through its Information Center, which is staffed by SHRM employees at its headquarters in Alexandria, Virginia. We invite the Commission to visit SHRM's Information Center to view its operations.
SHRM looks forward to playing an active role in helping the EEOC address and implement this extensive and impressive overtaking
This page was last modified on September 16, 2003.
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