EEOC Response to Senate Help Minority Staff Report

November 28, 2014

The Honorable Lamar Alexander
Ranking Member
Committee on Health, Education, Labor and Pensions
United States Senate
Washington, DC 20510

Dear Senator Alexander:

This is in response to the minority staff report¹ (report) that you released on November 24, 2014. The report, which seeks to raise concerns about the agency's enforcement program, is incomplete and inaccurate in crucial respects. We thus believe your office would benefit from additional information regarding the whole picture of EEOC's enforcement efforts.

BACKGROUND

The EEOC is responsible for enforcing Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, the Americans with Disabilities Act of 1990, Section 501 of the Rehabilitation Act of 1973, the Civil Rights Act of 1991, the Genetic Information Nondiscrimination Act of 2008, the ADA Amendments Act of 2008, and the Lilly Ledbetter Fair Pay Act of 2009. Vested with this responsibility by Congress, the Commission is dedicated to achieving our national vision of justice and equality in the workplace by preventing, stopping, and remedying unlawful employment discrimination.

On the advent of the EEOC's 50th anniversary, it is important to note that the Commission has made great strides in expanding equal opportunity in employment. However, as you well know, this important work is far from complete. The EEOC strives to achieve its mission through public outreach and education, development and implementation of regulations and policy guidance, public meetings, mediation, investigation and conciliation. When these steps are not successful, litigation is the enforcement step of last resort. The Commission litigates less than one quarter of one percent of the charges filed with the agency. These efforts historically have brought and continue to bring equal employment opportunity in line with our American ideals.

Given the topics covered in the report, it is important to understand the basic structure of the agency. The statute gives the General Counsel authority over the conduct of litigation in cases brought by the EEOC in federal court. Legal staff under the General Counsel work as part of the Office of General Counsel in both field offices and EEOC headquarters. The Office of Field Programs is responsible for investigations, mediations, settlements during the administrative process and conciliation. Office of Field Program staff work in both field offices as well as EEOC headquarters. The Office of Legal Counsel is responsible for handling FOIA requests and drafting policy guidance. Both the Office of Field Programs and the Office of Legal Counsel report to the Chair of the EEOC.

THE EEOC LITIGATION PROGRAM IS SUCCESSFUL

Congress in 1972 gave EEOC litigation authority to "ensure more effective enforcement of Title VII," General Telephone Company of the Northwest v. EEOC, 446 U.S. 318, 325 (1980). It is difficult for an agency to enforce a statute effectively by filing only suits it is certain to win (if that were even possible). It is also difficult to avoid filing suits that a court may decide years later were, or became at some point, frivolous or without foundation (the standard set by the Supreme Court for an award of attorney fees to a prevailing defendant in a Title VII action). However, as a matter of process, the EEOC performs a careful multilevel review of every suit it files. It is inevitable that in some cases the evidence will turn out differently than expected. Regardless, EEOC's success rate in litigation has consistently been over 90 percent, including more than 93 percent this past fiscal year. By any reasonable metric, this public record shows a successful program in ensuring fairness for victims of unlawful discrimination and deterring future misconduct.

The complete record of the litigation program, demonstrates that the EEOC has had success in significant cases, including disability, pregnancy , vulnerable populations , age, and the sex discrimination. Most recently, we resolved a major systemic race harassment case; obtained meaningful relief for a class of applicants subjected to an illegal medical examination; and prevailed at trial in a sexual harassment and retaliation case. These and other litigation successes have ensured the promise of equal opportunity, such as:

• Presrite (N.D. Ohio 2013) A $700,000 settlement, plus priority consideration to at least 40 female job applicants as well as new measures designed to prevent future discrimination,
• Interstate Distributor (D. Colo. 2012) A $4.85 million settlement, along with revised ADA policy,
• Yellow/YRC (N.D. Ill. 2012) An $11 million settlement in Title VII race harassment case,
• Pitre (D.N.M. 2012) A $2 million settlement, plus new policies and practices to provide a work environment free of sexual harassment and retaliation, evaluation of managers on compliance with anti-discrimination laws, and a compliance monitor,
• Verizon (D. Md. 2011) A $20 million settlement, representing EEOC's largest ADA settlement, plus requirement for revised attendance plans, policies and ADA policy to include reasonable accommodations, 
• ABM (E.D. Cal. 2010) A $5.8 million settlement, along with outside EEO monitor, training for investigators of harassment complaints, tracking future discrimination complaints, employee training in English and Spanish, internal compliance audits, and periodic annual reports to the EEOC, and
• Republic Services (D. Nev. 2010) A $3 million settlement, plus hiring of EEO compliance officer, internal audit policies and procedures, training and reports to EEOC, tracking of future discrimination complaints.

In the event that a case is not settled, the Commission has had an enormously successful trial program, with verdicts for the Commission in 9 out of 10 jury trials during FY 2013.² We have won 11 of our last 16 jury trials, including FY 2013 to the present. Among these recent trials was the $240 million jury verdict against Henry's Turkeys, the second largest verdict ever achieved under the federal anti-discrimination statutes. Trial victories also include litigation challenging age discrimination, denial of promotions based on sex, retaliation, and racial and sexual harassment.  This demonstrates that when put to its proof, the Commission consistently has had enormous success improving equality of opportunity for American workers. Indeed, our total trial success rate is above 50% for the last four years. The law enforcement and public education value of these cases in underscoring our government's commitment to non-discrimination in the workplace in local communities and across the Nation cannot be underestimated.

The Appellate Services Division also has a longstanding record of success in the courts of appeals, including in such recent cases as EEOC v. Baltimore County, 747 F.3d 267 (4th Cir. 2014) (agreeing with EEOC's contention that pension system treated older new-hires less favorably because of their age by requiring them to make larger contributions than younger new-hires); EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013) (unreviewability of conciliation efforts), cert granted; EEOC v. Houston Funding, 717 F.3d 425 (5th Cir. 2013) (discrimination on the basis of lactation is sex and pregnancy discrimination); and EEOC v. Boh Brothers Const. Co., 731 F.3d 444 (5th Cir. 2013) (gender stereotyping evidence can support same-sex harassment claim; reinstating jury verdict for EEOC) en banc; EEOC v. United Airlines, 693 F.3d 760 (7th Cir. 2012) (transfer accommodation of qualified individuals is mandatory absent undue hardship), cert petition denied; EEOC v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012) (pattern-or-practice hiring claim may be pursued under section 706), cert petition denied.

Despite this record, the report lists only our losses and only acknowledges a single successful court victory or settlement obtained by the Commission -- our victory before the U.S. Court of Appeals for the Seventh Circuit in Mach Mining. However, even here the report criticizes the EEOC and takes issue with the court's ruling. Further, the report presents no comparative evidence, or benchmark of any kind, indicating that the agency's performance has significantly declined in this Administration. Indeed, the facts demonstrate otherwise.

Below we respond more specifically to some of the report's criticisms.

DELEGATION OF LITIGATION AUTHORITY

A. The Purpose of Delegation is to Further Good Government Principles of Organizational Efficiency and Effectiveness

The Commission has always premised delegation on good government principles of using streamlined administrative processes and efficiency. This has been an ongoing value for the agency given its limited resources and is an important value for governmental agencies in general.

Thus, in its 1995 National Enforcement Plan, the Commission unanimously delegated, in most cases, the authority to commence litigation to the General Counsel. In doing so, the Commission made this determination "with the goals of increasing strategic enforcement for the General Counsel and field attorneys, freeing the Commission to focus on policy issues, and increasing the efficiency and effectiveness of our litigation program." Then, as now, the Commission had pressing policy matters to address.

Although the report points to the small number of cases sent to the Commission for a vote in FYs 2010, 2011, and 2012, the Commission, on a bipartisan basis, reaffirmed the existing delegation criteria in its Strategic Enforcement Plan adopted early in FY 2013, with the slight modification to submit one case from each office. The Commission also established quarterly reports to assess the effectiveness of delegated authority. The Commission reaffirmed the delegation criteria "with the goal of increasing the efficiency and effectiveness of the agency's enforcement programs."

If the implication is that the General Counsel has misused his delegated authority in some way, no evidence is presented that supports that conclusion. The General Counsel has scrupulously followed the delegation criteria. This includes submitting for a vote high-profile matters involving felony conviction screens, credit screens, partnership agreements, language policies, and wellness programs. The report does not identify a single suit filed under the General Counsel's delegated authority the Commissioners believed should have been submitted to them under the criteria they have established. In fact, the Commission authorized many of the cases criticized in the report, i.e. Kaplan, Freeman³, and Peoplemark. Moreover, the Commission has frequently concurred with the General Counsel's litigation recommendations. Of the 48 cases that have been submitted to the Commission from FY2011 - FY2014, only one has been rejected by the Commission and one was withdrawn by the General Counsel following a tie vote.

B. Fewer cases are submitted to the Commission because of General Counsel Cooper's Decision to Discontinue Agreement to Submit ADA Cases to the Commission

The report fails to acknowledge the significant impact of the 2008 decision of former General Counsel Cooper, who served from 2006 - 2008, to discontinue sending all ADA cases to the Commission for approval, following the enactment of the ADA Amendments Act (ADAAA). ⁴ The report states that according to previous General Counsel Eric Dreiband, who served during the years 2003-2005, the number of cases submitted by General Counsel Lopez for a vote in the years 2010-2012 represent a "serious departure" from former General Counsel Dreiband's practice during his tenure.

However, a careful examination of the record indicates that the vast majority of cases submitted to the Commission for approval by Mr. Dreiband were individual ADA suits submitted pursuant to an informal agreement by the General Counsel's office following three important 1999 Supreme Court decisions on the ADA. After the expansion of ADA coverage through the ADAAA, Mr. Cooper issued a memo shortly before his departure that discontinued the practice of submitting all ADA suits for a Commission vote because the practice was in conflict with the goals of effective and efficient government. This resulted in a significant decline in the number of cases submitted to the Commission under the delegation of authority. Thus, for example in FY 2009, the year following Mr. Cooper's decision and before Mr. Lopez's arrival, only two out of 281 cases were submitted for a vote to the Commission.

Further, an examination of cases involving multiple claimants reveal that the number of cases sent to the Commission for approval has remained constant. Of the 122 cases Mr. Dreiband submitted to the Commission during his tenure, only 19 involved multiple victims; the other 103 were individual ADA cases. Breaking the suit filing figures down by year, of the 147 multi-victim suits EEOC filed in FY 2004, Mr. Dreiband submitted only 6 for a Commission vote. Of the 136 multi-victim suits EEOC filed in FY 2005, Mr. Dreiband submitted only 12 for a Commission vote. In sum, Mr. Dreiband submitted a considerably smaller percentage of "class" cases to the Commission than the current General Counsel.

FEES AND SANCTIONS

The report identifies ten cases in its appendix where the Commission has been subject to fees or sanctions. Seven involve fees and three involve discovery sanctions. The Commission believes it should be held to high standards and fees and sanctions are unacceptable. Because of this belief, the General Counsel has developed and implemented systems for attorneys in the Office of General Counsel to learn from judicial decisions, including those set forth in the report involving cases filed by his predecessors. These steps include a personal review of cases by the General Counsel where the EEOC has been subject to fees; discussions with the attorneys involved; a discussion of the cases on monthly regional attorney calls including lessons for the program; an adjustment of any internal practices, if appropriate, to ensure we improve our law enforcement performance; and a broader discussion of the issues in formal training sessions during, for example, our annual Regional Attorney meetings. Additionally, significant adverse decisions are circulated to all attorneys.

Still when examined in full context, these cases can hardly be treated as a systemic problem attributed to this administration. Of the seven cases involving fees, two of these cases, RJB Properties and West Customer Management are under appeal consideration. As we saw with the EEOC's case against Cintas, it is important to allow the appellate courts to review a case for error before rendering judgment.⁵

With respect to the remaining five cases, as the appendix to the report shows, four of these cases were filed before the tenure of the current General Counsel.⁶ The remaining case was filed in September 2010 under the tenure of the current General Counsel and represents only one of the 867 cases filed during this period. This cannot be regarded as a pattern of abuse.

The report also identifies three cases where the Commission has been subject to discovery sanctions: Rock Tenn Services, Womble Carlyle, and Bok Financial Corp.⁷ Without excusing any EEOC discovery conduct that a court has found objectionable, discovery sanctions sometimes occur. In fact, discovery sanctions have been often assessed by the courts against defendants in suits brought by the EEOC, as well. Three awards of discovery sanctions against the agency since 2011 represents a minute fraction of the hundreds of cases litigated during that period of time and it is a gross distortion to treat it as a pattern of bad conduct by EEOC attorneys.

ANNUAL REPORTS

We acknowledge that the Office of General Counsel is not current in posting its annual reports. The prioritization of limited staff resources between direct support and service to the frontline field litigation units, on one hand, and reporting (both internally and externally) and other administrative responsibilities, on the other hand, is an ongoing balancing act. Given resource constraints, we have prioritized allocating resources to the frontline work of the program. However, we intend to catch up with producing the annual reports as quickly as possible. Of course, all EEOC litigation is conducted publicly and information about the litigation program, including number of cases filed and resolved and total monetary recovery for victims of discrimination, has been compiled and provided each year by Office of General Counsel staff as part of the agency's Performance and Accountability Report as well as detailed litigation statistics that are posted on our public website at https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0.

EEOC USE OF DIRECTED INVESTIGATIONS AND COMMISSIONER CHARGES

The report criticizes the Commission's use of tools that allow the agency to enforce the law without a charge or an individual raising allegations of discrimination. It is important to note that, Congress purposely gave the EEOC authority under Title VII and the Fair Labor Standards Act (under which age discrimination and Equal Pay Act suits are brought by the agency) to initiate investigations of discrimination on its own. Congress did so understanding that there would be situations when victims of discrimination were unable to come forward because they did not know they might be victims or unwilling to come forward because they feared reprisal. Use of these practices was endorsed by the Commission under the previous administration in its 2006 Systemic Task Force Report and recently reaffirmed by the Commission in its 2012 Strategic Enforcement Plan. Even with the Commission endorsing the use of these tools, the agency has employed them judiciously. Of the more than 100 systemic cases filed since 2010, 12 were predicated on a charge filed by someone other than the aggrieved party.

The following four cases illustrate the importance of Commission-initiated investigations:

First, in its nationwide investigation of around 40 charges filed by individuals alleging that Verizon Communications' no-fault attendance policies resulted in the failure to reasonably accommodate individuals with disabilities and in the discharge of individuals based on disability, EEOC obtained evidence that the same policies were in effect at all Verizon affiliates. Because the charges did not cover all of Verizon's many related entities, Commissioner Constance Barker issued a Commissioner's charge naming all Verizon affiliates and alleging that these attendance policies resulted in ADA violations at the affiliates. Ultimately, the case was resolved by consent decree providing $20 million to a class of hundreds of victims. Thus, in this instance, the Commissioner's charge was used not to identify a discriminatory practice but to ensure that the full scope of a known practice was determined and remedied.

Second, the Commission's suit against Henry's Turkey was not predicated on a charge filed by any of the intellectually disabled men subjected to egregious discrimination. The Commission learned of the treatment of these men from members of the community, and ultimately the sister of one of the men filed an EEOC charge. This suit resulted in a $240 million jury verdict.

Third, during litigation of an EEOC suit alleging that a staffing agency was making discriminatory employment referrals, the Commission learned that Presrite Corp., a Cleveland, Ohio-area manufacturer of forged metal parts, instructed the staffing agency to refer only men for entry-level laborer and operative jobs at its three plants. Former Commissioner Christine Griffin issued a Commissioner's charge alleging that Presrite denied employment to female applicants because of their sex, and following an investigation, reasonable cause finding, and conciliation failure, EEOC filed suit. The case resolved in April 2013 through a consent decree providing $700,000 to female applicants denied jobs, and 40 job offers to rejected female applicants. The decree also enjoined future gender-based recruitment and hiring discrimination and provided substantial other remedial relief.

Finally, the last example involves PBM Graphics, a commercial printing business that operates a manufacturing facility in Durham, North Carolina. PBM employs several hundred individuals and relies heavily on temporary workers to meet production needs. The Commission received information that two PBM supervisors directed temporary agency staff to send only Hispanic temporary workers to PBM and that PBM had requested only Hispanic temporary workers. Based on this and other information, former Commissioner Leslie Silverman issued a Commissioner's charge regarding PBM's alleged discrimination against non-Hispanic applicants. During the ensuing investigation, the Commission interviewed 23 non-Hispanics who experienced the discrimination alleged in the Commissioner's charge. After a reasonable cause finding and unsuccessful conciliation efforts, the Commission filed suit alleging that PBM engaged in a pattern or practice of refusing to place or assign non-Hispanics in its core group of temporary workers and providing non-Hispanic workers fewer hours based on their national origin. In December 2012, the suit was resolved by consent decree. In addition to a monetary fund of $334,000 for the aggrieved individuals, the decree, among other remedial relief, established neutral criteria for the selection of core temporary workers and for assigning hours to temporary employees.

CONCILIATION: A KEY TOOL IN RESOLVING DISCRIMINATION CASES BEFORE LITIGATION

The EEOC is statutorily required to attempt to resolve findings of discrimination through "informal methods of conference, conciliation, and persuasion." 42 U.S.C. When the evidence gathered during the investigation establishes that there is "reasonable cause" to believe that discrimination has occurred, the EEOC strongly encourages the parties to participate in conciliation discussions and resolve the matter prior to it being considered for litigation. During conciliation, investigators - not the General Counsel - work with the company and the charging party to develop an appropriate remedy for the discrimination. The General Counsel is not in charge of agency investigations or conciliations. The authority to investigate and conciliate resides with the EEOC's Office of Field Programs, an office that reports to the Chair of the EEOC.

The Commission's record demonstrates that the EEOC has made immense progress in successfully conciliating cases where EEOC has found discrimination before filing a lawsuit. In conciliation or settlement discussions, the EEOC seeks targeted, equitable relief that remedies the discrimination and ensures that the discrimination will not recur. More successful conciliations mean that employers are coming to the table after an investigation where EEOC concludes that there is reason to believe that discrimination has occurred and resolving those complaints without the need for protracted litigation.

To that end, over the last three years, EEOC has improved its conciliation results significantly, and in FY 2013, EEOC successfully conciliated 1,437 charges of discrimination. Successful conciliations are now at a rate of 41 percent of all cases that are conciliated, which is up from 31 percent in FY 2011. Your report, which points out that the absolute number of conciliations has dropped, takes these numbers out of context; the report does not recognize that the percentage of charges successfully resolved in conciliation has gone up. Furthermore, over 14,000 charges are settled with EEOC or private settlements before conciliation efforts take place.

STRATEGIC MANAGEMENT OF RESOURCES DEPLOYING ALL TOOLS TO ENFORCE THE ANTI-DISCRIMINATION LAWS

The HELP minority report points out that the EEOC has a pending inventory of 70,781 complaints of discrimination as of March 2014 and states that the EEOC should focus more resources on its "backlog" instead of pursuing frivolous litigation where there may not be a charging party. This would suggest that the Commission expend fewer resources on litigation as a means of addressing its charge inventory. Ironically, the report also seems to criticize the EEOC for garnering lower monetary benefits through litigation over the past several years and only gives the Commission passing credit for the sustained and substantial increase in monetary benefits realized before litigation is filed. In order to fulfill our mission to stop and remedy unlawful employment discrimination, the EEOC must continue to utilize all of the tools provided by Congress.

With respect to the inventory, the EEOC devotes the vast majority of its resources to investigations initiated in response to charges filed by members of the public, which is indicative of the priority that the agency places on managing its inventory. For example, in FY 2012, almost 100,000 charges were filed with EEOC, and over 111,000 were resolved while reducing the total number of unresolved charges by nearly 10 percent. That same year, the agency initiated only 24 directed investigations. The agency is steadfastly committed to managing its inventory despite a perfect storm of fiscal constraints and operational challenges, including historic charge receipts, sequestration and a 16-day government shutdown, which offset the gains made in managing the inventory.

Recognizing, however, that there are allegations that may not be resolved through the investigation and conciliation process, Congress also gave the EEOC the authority to litigate in federal court. Less than one quarter of one percent of all charges filed end in litigation. The agency litigates approximately 5 percent of charges where the Commission has issued a cause finding.

IMPROVED TRANSPARENCY

The EEOC is committed to public transparency and public input, although a formal notice-and-comment process is not required for subregulatory guidance (as distinguished from regulations) because guidance is advisory. The current approach to providing an expanded opportunity for public input on EEOC guidance has bipartisan roots. In November 2008, under the Bush Administration, the Commission held a public meeting and heard stakeholder testimony about Title VII and arrest and conviction records, a topic on which the Commission already had policy guidance, approved by the Commission in 1987 under then-Chair Clarence Thomas. The principles of the 1987 guidance were familiar to stakeholders and continue to be reflected in the 2012 guidance, but the need to update the initial documents became clear especially after a 2007 federal appeals court decision. Following on its initial 2008 public meeting, the Commission held a second public meeting on this topic in July 2011. At that time, the Commission also took the initiative to further supplement the record by inviting written comments from members of the public. Approximately 300 stakeholders submitted their views in writing, and the EEOC considered all of them in preparing the Guidance that ultimately was approved by a bipartisan vote in April 2012. The process developed for the 2012 Guidance was utilized again with the Commission's 2014 Pregnancy Guidance.

The EEOC, like all executive branch agencies, is obligated to comply with the Freedom of Information Act (FOIA) and takes its obligations under the Act very seriously. Under FOIA, an agency is generally required to make a determination on the FOIA requests it receives within 20 business days. The agency's dedicated FOIA staff strives to meet the statutory deadlines, although that is not always possible.  The FOIA requests submitted on behalf of Texas Roadhouse are three of the more than 17,000 requests processed by EEOC last fiscal year. Any delay in the processing of these requests is attributable to the FOIA workload, and not the identity of the requester.

Further, you may be assured that the agency is committed to providing maximum access to Commission documents consistent with the law. EEOC withholds documents if they fall within mandatory exemptions. If materials fall within a permissive exemption, the EEOC only withholds documents when disclosure would cause foreseeable harm to the enforcement of the anti-discrimination statutes.  In making determinations on FOIA requests, EEOC applies the standards and criteria in the FOIA without regard to the requesters' intended use of the documents or their identity.

CONCLUSION

We all understand that 50 years in the eyes of history is a significant but brief window of the progress that the EEOC has made in achieving our goal of achieving equal opportunity in our nation's places of work. By many indicators, that movement has been seismic and our progress evident. It is worth noting that Congress drafted the laws granting EEOC myriad tools to address workplace discrimination. The agency's ability to utilize all of these tools is vital to our ability to enforce the anti-discrimination laws. We are at a seminal point on the arc of justice because the ideal of equal employment opportunity for all has not been realized. Until then, the Commission will continue to prevent, stop and remedy unlawful employment discrimination.

We appreciate the opportunity to provide additional information on EEOC's enforcement. We look forward to continuing to work with Congress to achieve our mutual goal of equal opportunity in the workplace.

Sincerely,

Todd A. Cox, Director
Office of Communications and
Legislative Affairs

Footnotes

¹ Congress, Senate, Committee on Health, Education, Labor and Pensions Minority Staff Report, "EEOC: An Agency on the Wrong Track? Litigation Failure, Misfocused Priorities, and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency." (Washington, DC, November 24, 2014).

² In part due to these successes, this year Mr. Lopez was recognized by the National Law Journal as one of the 50 Outstanding General Counsel in the United States.

³ It should be noted that EEOC v. Freeman is still on appeal.

⁴ General Counsel Cooper's action is regarded as an important step to streamline the review process without any decline in the quality of the disability cases prosecuted by the Commission. Indeed, it is notable that the Commission did not reinstate its review of all ADA cases in its 2012 Strategic Enforcement Plan.

⁵ Along with the WSJ editorial page, the report includes frequent cites to management bar blogs as authority for its conclusions. Compare Seyfarth Blog deriding Cintas as a "resounding defeat" (http://www.seyfarth.com/dir_docs/publications/DeGroffMaatmanLJN.pdf) with Cintas decision vacating fees. 699 F.3d 884 (6th Cir. 2013)

⁶ One of these cases, the Commission's case against Peoplemark, was a complex case decided 2-1 with a strong, lengthy dissent.

⁷ Notably, two of these cases resolved for significant and meaningful monetary and non-monetary relief.