Notwithstanding the changing legal and business landscapes, we continue to focus on our fundamental responsibility: to correct the wrongs of employment discrimination and bring justice and equal opportunity to the workplace.
Through our Justice and Opportunity Strategic Objective, we strive to remedy and deter unlawful discrimination and increase public confidence in the fair and prompt resolution of employment discrimination disputes. These broad outcomes focus our measures and strategies on three points of our Five-Point Plan: Proficient Resolution, Promotion and Expansion of Mediation/ADR, and Strategic Enforcement and Litigation.
|Justice and Opportunity FY 2005 Performance|
|Total FY 2005 Investment: $314 million|
||Targets Partially Met1
||Targets Not Met
Proficient resolution connotes the importance of timeliness and quality in service delivery. Our private and Federal sector enforcement programs strive to achieve both success factors-timeliness and quality-in serving our customers.
Private Sector Enforcement Program: Providing quality services that are fair and prompt, for both employees and employers, in our administrative processing system is vital to our mission. In FY 2005, we received 75,428 private sector charges of discrimination, which was 5% less than the 79,432 received in FY 2004. We achieved 77,352 resolutions, with a merit factor resolution rate of 21.5%. (Merit factor resolutions include mediation and other settlements and cause findings, which, if not successfully conciliated, are considered for litigation.) In comparison, the merit factor resolution rate for FY 2004 was 19.5%. This left us with a manageable pending inventory of 33,562 charges at the end of the fiscal year, compared with the FY 2004 figure of 29,966.
Timeliness is a key measure of our success in processing private sector charges. Measure 1.1.1 tracks our progress in resolving charges in 180 days or fewer. In FY 2005, our target was to resolve 70% of charges within this time frame. We did not meet this target. Rather, 65.9% of charges were resolved in 180 days or fewer. Several factors contributed to this outcome, including an emphasis on resolving older cases and reducing those inventories. Further, the average charge processing time was 171 days, up slightly from 165 days in FY 2004. This increase was also due to our emphasis on the resolution of older cases. These and other factors are discussed in the "Achieving Results" section of the PAR.
Our other key measure for success in processing private sector charges assesses the quality of our charge files. Under Measure 1.1.4, we met our FY 2005 target of setting a baseline to measure the quality of investigative charge files for FY 2005 and subsequent years through FY 2009. The baseline is set at 88.5%.
Through our partnership contracts with 94 State and local Fair Employment Practices Agencies (FEPAs), we continued to resolve dual-filed charges as a means of preventing duplication of effort and streamlining the charge resolution process. FEPA charge receipts decreased by 2.4%, from 57,318 in FY 2004 to 55,928 in FY 2005. FEPAs resolved 54,530 charges, 4.1% fewer than during the previous year. The pending inventory decreased to 55,188, down from 57,808 in FY 2004.
Federal Sector Enforcement Program: Unlike our responsibilities in the private sector, we do not process charges of discrimination for all Federal employees. Rather, we are responsible for providing hearings and appeals after the initial processing of the complaints. In FY 2005, we received 10,266 requests for hearings and 7,490 for appeals.
Consistent with our Private Sector Program, timeliness and quality are important measures of success in serving the Federal sector. For FY 2005, our target for Measure 1.1.2 was to resolve 38% of Federal sector hearings in 180 days or fewer. We exceeded our goal, resolving 51.3% of hearings cases in 180 days or fewer. We achieved this result through a long-term approach. In FY 2004, we focused our resources on reducing older charges. As a result, we fell just short of meeting last year's goal of resolving 35% of Federal sector hearings in 180 days or fewer. This emphasis on resolving older charges, however, enabled us to address newer hearings cases during FY 2005. Ensuring a more optimal inventory of both older and newer hearings cases has left us better positioned to maintain our inventory target at or near 50% of hearings being resolved in 180 days or fewer for subsequent years.
Other accomplishments in managing the hearings caseload include the following:
We also made significant gains in processing our Federal sector appellate inventory during FY 2005. Our goal for Measure 1.1.3 was to resolve 50% of appeals within 180 days or fewer. Through the effective management of the appellate inventory, using strategic inventory management projects and technological innovations, we resolved 52% of the appeals received during the fiscal year within 180 days or fewer, exceeding our target.
Other accomplishments in managing the appellate caseload include the following:
The Commission has been successfully implementing its initiative on Promoting and Expanding Mediation/ADR in our private and Federal sector programs. As an enforcement tool, mediation has proven beneficial in advancing the agency's mission in an effective and efficient manner.
Private Sector Mediation Program: Mediation is an important tool for resolving private sector charges. These resolutions benefit both employees and employers, as well as the American workplace. Employees and employers benefit because the resolutions occur quickly, before workplace problems get worse, and because mediation fosters open and honest dialogue between employee and employer. The American workplace benefits from the positive changes made as a result of mediation agreements. The program has been very successful and has contributed to our ability, over the past few years, to retain a manageable inventory and resolve more charges in 180 days or fewer, thereby meeting our earlier timeliness measure. In FY 2005, the EEOC's National Mediation Program secured over 7,900 resolutions, just short of the highest number reached in FY 2004-8,086. We secured more than $115 million in benefits for complainants from mediation resolutions.
Three measures highlight important aspects of our private sector mediation program: employer participation, the confidence that employers and charging parties have in the program, and workplace improvements resulting from ADR resolutions. Although participants almost uniformly view our mediation program favorably (see a discussion of Measure 1.2.3 in the "Achieving Results" section), the percentage of employers agreeing to mediate is considerably less than the percentage of charging parties agreeing to mediate. Beginning in FY 2004, we implemented Measure 1.2.2 to increase the number of charges in which employers agree to mediate. In FY 2005, over 12,500 employers agreed to mediate, a slight decrease from the 13,100 that agreed to participate in FY 2004. However, in FY 2005, we continued our efforts to increase the number of employers agreeing to participate in our mediation program through a variety of outreach efforts designed to yield increased employer interest in future years.
We have continued to expand our use of Universal Agreements to Mediate (UAMs) with employers. UAMs are agreements between EEOC and an employer to mediate all eligible charges filed against the employer, prior to an agency investigation or litigation. During FY 2005, we reached a total of 100 national/regional UAMs (NUAMs) and entered into 170 local agreements between employers and our district offices. At the national level, 29 large corporations, including several Fortune 500 companies, have agreed to enter into NUAMs to resolve charges filed with EEOC at any of our district offices across the country. Our efforts in this area, this fiscal year, bring our total count of UAMs in place to 907 (807 local UAMs and 100 NUAMs).
Under Measure 1.2.1, we assess the impact of our mediation efforts on employees in their workplace. For FY 2005, 3.1% of the resolutions in our mediation program, or 171 out of 5,577, resulted in improved employers agreeing to make changes to their workplace practices, policies, and procedures. These workplace improvements resulting from ADR settlements benefited about 191,000 persons.
Federal Sector Mediation Program: Using ADR techniques to resolve workplace disputes throughout the Federal Government can have a powerful impact on agencies' EEO complaint inventories and, in turn, the Commission's hearings and appeals inventories. For example, following the completion of two ADR pilots in 2002, EEOC Federal sector hearings units began to show a slight decline in settlements. While settlements obtained in FY 2003 decreased by less than a percentage point, in FY 2004, the decline was over 5%. FY 2005 continued to show a decline. This decline in settlements at the hearings stage can be attributed to an emphasis on consolidation and improvements in Federal agencies' ADR programs at both the informal and formal stages of the Federal process. Additionally, Federal agencies reported increased participation in pre-complaint ADR. The United States Postal Service, whose cases represent a significant percentage of our hearings workload, reported the highest ADR participation rate in the pre-complaint process at 72.3%. Cases that have received settlement attempts before reaching the hearings stage and have not been settled tend to be more difficult to resolve using the ADR mechanism later in the process.
EEOC continues to actively pursue a variety of means of assisting Federal agencies in improving participation in alternative dispute resolution by identifying and sharing best practices, providing assistance in program development and improvements, providing training to federal employees and managers on the benefits of ADR, and maintaining a web page as a clearinghouse for information related to Federal sector ADR. The EEOC completed more than 2 years of intensive work wherein EEOC staff evaluated the effectiveness of ADR and sought ways to promote its usage in the Federal sector EEO process through an extensive survey of ADR programs at 21 partner Federal agencies. The Commission released the initial findings of these efforts in a report entitled ADR Report Part-I-ADR in the Federal Sector Process, FY 2003-FY 2004, published in September 2005. In this study we examined ADR in the pre-complaint and formal complaint stages of the Federal sector EEO process. The report also evaluated the Government-wide data, as submitted by Federal agencies, to determine how effectively ADR programs resolved EEO disputes and how efficiently the ADR programs operated. In addition, this report addressed other important ADR issues, including types of ADR techniques, sources for securing neutrals, and types of settlement benefits. ADR Report: Part-I is available online at www.eeoc.gov.
Through these efforts, we aim to increase Federal employee participation in ADR. Specifically, Measure 1.2.4 seeks to increase the percentage of Federal employees who participate in ADR during the pre-complaint stage to 50% or higher by FY 2009. We are well on our way toward surpassing this goal: The rate of those who participated in ADR during the pre-complaint process rose from 23% in FY 2002 to 43% in FY 2004, the most recent period for which data are available. The target rate for FY 2005 was 40%.
To have a meaningful impact on discrimination, we approach our enforcement activities strategically, taking workplace trends, changing workforce dynamics, and shifting demographics into consideration. We employ our resources in ways that will achieve maximum results, while still protecting the rights of the individual. Through focused and strategic enforcement efforts, we seek to broadly influence policies and practices in the American workplace and to bring justice and opportunity to all.
Elizabeth Grossman, an attorney in our New York District Office, was awarded a prestigious "Service to America Award" in 2005 by the Partnership for Public Service and the Atlantic Media.
Ms. Grossman led a team that filed a sexual discrimination suit against Morgan Stanley, the Wall Street brokerage firm, in September 2001. The lawsuit was filed on behalf of more than 300 current and former female employees of Morgan Stanley, and allegewd that there were few women executives at Morgan Stanley, they held lesser positions and earned lower compensation relative to men, and they experienced slower career advancement, all as a result of unlawful discrimination. Three years later the firm entered into a $54 million Consent Decree, the EEOC's second largest gender-bias settlement ever and the largest with a Wall Street firm. A portion of this settlement--$2 million-will be set aside to pay for diversity training and gender management programs.
With more than 60,000 women working in the financial services industry in New York City alone, the impact of this settlement has already gone beyond the 300 women at Morgan Stanley. "Because of the Morgan Stanley case we are getting calls from people who might not have known the Commission existed," said Grossman.
Judge Richard M. Berman of the Southern District of New York said, "The Consent Decree, in my opinion, is a watershed in safeguarding and promoting the rights of women on Wall Street."
In measuring our more far-reaching and direct impact on the workplace, Measure 1.3.1 assesses the benefits of our administrative enforcement efforts on employees in their workplace. Based on our FY 2005 data, 18% of the private sector charge resolutions (excluding those from our mediation program, which are tracked separately in Measure 1.2.1), or 701 out of 3,863 settlement or conciliation agreements, involved improvements in workplace policies, practices, or procedures. As a result, more than 380,000 persons have benefited from improved workplaces.
An effective litigation program provides relief for victims of discrimination, many of whom have no other recourse, and it encourages employers to settle cases earlier in EEOC's administrative enforcement process. Also, publicity about our high impact cases and other litigation increases employer compliance with the statutes we enforce and educates employees and employers of their rights and responsibilities under the law.
A previous study demonstrated that we achieved a 90% rate of success with our litigation. We established Measure 1.3.3 to maintain this high level of success. Throughout the entire measurement period FY 2004-FY 2009, we expect to maintain at least the 90% level, using a 6-year rolling average of successful lawsuits to account for minor year-to-year fluctuations that can result from a limited database of observations. For FY 2005, we exceeded our target, achieving a success rate of 94.6%.
In FY 2005, EEOC field legal units filed 383 merits lawsuits and 33 subpoena enforcement and other actions. Legal staff resolved 334 merits lawsuits for a monetary recovery of over $106 million. Of the resolutions, there were 240 Title VII resolutions, 40 ADA resolutions, 37 ADEA resolutions and 17 concurrent suit resolutions. We also resolved 33 subpoena enforcement and other actions during the fiscal year. In terms of dollars recovered in direct and intervention lawsuits by statute, EEOC recovered more than $100 million in Title VII resolutions, $2 million in ADEA resolutions, $3.4 million in ADA resolutions and nearly $1 million in concurrent suit resolutions. As of the end of FY 2005, the number of cases on the EEOC's active docket that involve multiple aggrieved parties or challenges to employment policies was 258 cases, or 42.3% of our total case workload.
Consistent with the EEOC's Strategic Plan, Measure 1.3.2, we have increased our focus on litigating cases that are expected to have a high impact on reducing discrimination and removing barriers in the workplace. High impact cases frequently affect large numbers of individuals, including many who are not party to the case, and can lead to positive changes throughout a wide geographical area, industry, or employer community. We have identified five high impact cases resolved in FY 2005 that we plan to track to determine the extent to which they bring about positive change. Positive change may be manifested in any number of ways. For example, there may be an increase in the representation of groups that have been subjected to discrimination in discrete job categories, or even in multiple job categories, within a particular industry or region. Likewise, there may be an improvement in the working environment or the terms, conditions, and privileges of employment of affected groups. Next, we briefly discuss our five selected high impact cases from FY 2005, including how each is expected to generate positive change. A further discussion of these cases appears in Appendix B.
EEOC v. Northwest Airlines, Inc.
No. 01-705 MJD/JGL (D. Minn. Jan. 12, 2005)
The Milwaukee District Office filed this nationwide ADA action alleging that Northwest Airlines excluded applicants with insulin-dependent diabetes and with seizure disorders requiring antiseizure medication from equipment service employee (ESE) and aircraft cleaner positions because of their disabilities. The case was resolved through an agreed order that prohibits Northwest from applying a zero tolerance policy to applicants for ESE and aircraft cleaner positions who have a diagnosis of diabetes requiring insulin or an epilepsy/seizure disorder requiring antiseizure medication. This case is expected to remove barriers to equal employment opportunity for hundreds of qualified individuals with diabetes or epilepsy in every region of the country, not only at Northwest, but also within the airline industry generally.
EEOC v. Abercrombie & Fitch Stores, Inc.
No. 04-4731 (N.D. Cal. Apr. 14, 2005)
In this Title VII action, the Los Angeles District Office alleged that Abercrombie & Fitch, a national clothing retailer with over 700 stores, engaged in a pattern or practice of race, color, national origin, and sex discrimination in the recruitment, hiring, assignment, promotion, and discharge of blacks, Hispanics, Asians, and women. The case, which was consolidated with two private class actions, was resolved through a consent decree filed contemporaneously with the complaint and approved following a fairness hearing. The decree, which has a term of 6 years, enjoins Abercrombie & Fitch from discrimination and creates the framework for extensive changes in the way it does business. This case is expected to benefit thousands of applicants and employees of Abercrombie & Fitch nationwide, as well as serve notice to other retailers who would seek to hire and fire based on "image" to develop protocols and policies to prevent bias and stereotyping from influencing employment decisions.
EEOC v. EchoStar Communications Corp.
No. 02-CV-00581 (D. Colo. May 6, 2005)
The Denver District Office alleged in this ADA action that EchoStar, a leading provider of satellite television equipment and services, based in Englewood, Colorado, discriminated against Dale Alton, a blind applicant for a customer service representative position. After completing training at the Colorado Center for the Blind on working in customer service representative positions, Mr. Alton went to EchoStar to apply in response to a newspaper advertisement for customer service representatives. He was told it would not do him any good to put in an application because EchoStar was not set up to handle blind people. After Mr. Alton filed his charge, EchoStar called him back for an interview that included a braille test that had three times as many questions as the written test given to sighted applicants. Following a 3-day trial, the jury returned a verdict for EEOC and Mr. Alton, awarding him $2,000 in back pay, $5,000 in compensatory damages, and $8 million in punitive damages. While this case was brought on behalf of a single individual, we believe it has far-reaching implications because some employers are relying on stereotypical notions associated with disability even in the face of evidence of workable, inexpensive technology-based reasonable accommodations.
EEOC v. Ford Motor Co. and United Automobile Workers of
No. 1:04-CV-00845 (S.D. Ohio Jun. 16, 2005)
In this nationwide Title VII action, the Cleveland District Office alleged that Ford and U.A.W. used a written test for skilled trades apprentice positions (electrical, millwright, plumber-pipefitter, machine repair, and tool and die) that had a disparate impact on African-American applicants. The case was resolved through a settlement agreement that provides that an industrial organizational psychologist selected by the parties will design and validate an apprenticeship selection instrument(s). The settlement also provides that Ford will select 280 class members for apprentice positions. The 13 charging parties will receive $30,000 each in monetary relief, and approximately 3,400 additional class members will receive $2,400 each, for a total recovery to the class of approximately $8.55 million.
EEOC v. Dial Corp.
No. 3:02-CV-10109 (S.D. Iowa Sep. 29, 2005)
The Milwaukee District Office brought this Title VII class sex discrimination/failure to hire case against a nationwide manufacturer of household products. The suit alleged that Dial's use of a physical "work tolerance" test has a disparate impact on female applicants and constitutes a pattern or practice of intentional sex discrimination. Following a 5-day trial, the jury returned a verdict for EEOC. The court later ruled that the test had a disparate impact against women. The judgment provides approximately $3.38 million in back pay, benefits, and prejudgment interest to be shared among 52 class members.It also prohibits Dial from implementing any pre-employment screening device for 5 years without first consulting the EEOC and provides job offers with rightful place wages to all class members.
The EEOC's suits against Ford and Dial share a common theme-an employment test (a physical test in the Dial case and a written test in the Ford case) operated as a barrier to equal employment opportunities for qualified applicants. Both cases will directly benefit hundreds of individuals by giving them jobs, and will indirectly benefit untold numbers of future applicants who could have been excluded from employment by tests that were not truly job-related.
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