Written Testimony of Ray McClain, Employment Task Force, The Leadership Conference on Civil and Human Rights

Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan

Chair Berrien and Commissioners:

Thank you for inviting the Employment Task Force of the Leadership Conference on Civil and Human Rights to participate in this Town Hall event on the Commission's development of a new Strategic Enforcement Plan. My name is Ray McClain. I am the Director of the Employment Discrimination Project of the Lawyers' Committee for Civil Rights Under Law. Along with Fatima Goss Graves of the National Women's Law Center, I am appearing today on behalf of the Employment Task Force. Ms. Graves' remarks focus on topic areas that we ask the Commission to make priorities in the Strategic Enforcement Plan. My remarks address our suggestions for organizing the process of investigation.

The current system produces large numbers of investigations interminably delayed and then ended without substantial explanation; investigations that fail to produce sufficient data to enable the employee and her counsel to make an informed evaluation of the strengths or weaknesses of the case; and systemic investigations that drag on for four or five years without any established deadline for final Commission action. The Commission should include in the Strategic Enforcement Plan a commitment to expedited processing of Priority Charges¹ that are within the scope of the Plan's priorities and identify specific procedures for achieving expedited processing. Here are some suggestions:

• Develop checklists that are based on the specified characteristics of Priority Charges; preferably web-based.
• Involve experienced staff attorneys in the drafting of pro se priority charges.
• Use the checklists completed on each Charge to develop procedures for early review and promptly assign Priority Charges to experienced investigators.
• Designate one or more experienced staff attorneys in each office to consult with investigators on "Priority Charges" throughout the investigation, from an early stage.
• Provide complete disclosure of the respondent's Position Statement to the complainant, preferably by electronic filing.
• Train investigators to request information using the special record-keeping and affirmative action requirements that Executive Order 11246 imposes on employers who have substantial contracts with federal agencies.
• When experienced Title VII attorneys represent the Charging Party, instruct investigators to invite counsel's suggestions for information to request from the employer.
• To assure timely completion of the investigation: establish a benchmark time frame (e.g., 180 days for individual or multiple named Charging Parties, one year for class actions, pattern-or-practice Charges or other systemic investigations) as a target for completing the initial investigation and preparing a recommendation, which recommendation either explains a proposed disposition or describes and justifies a proposed extension of time for the investigation.

We offer the following suggested ways the Commission can enhance the effectiveness of private parties and their attorneys serving as "private attorneys general" in the enforcement of fair employment laws:

• Establish a unit of attorneys in the national office to serve as a liaison for private counsel who encounter non-responsiveness from investigators on Priority Charges.
• When the investigator concludes there was "no reasonable cause" to believe discrimination has occurred, instruct the investigator to explain fully the data and other information collected in the course of the investigation and how that information led to the determination.
• Produce to counsel for Charging Parties, in response to FOIA requests, class-wide data, in digital form, that is produced by the employer in investigations of class or pattern-or-practice allegations.
• The Commission should develop training for investigators and staff attorneys designed to help investigators recognize the importance of this evidence-gathering function in cases within the priorities set for the Strategic Enforcement Plan.

Our organizations strongly endorse the efforts of the Commission to develop priorities for the Strategic Enforcement Plan to guide the Commission's allocation of its scarce enforcement resources. We also endorse the Commission's commitment to developing more effective procedures for the prompt identification and expeditious investigation of Priority Charges, and decisions on enforcement actions consistent with the Strategic Enforcement Plan. We urge the Commission to establish formal policies to share with counsel for charging parties the information it obtains in investigations in which the Commission decides not to bring its own enforcement action: such information sharing is essential to enabling private counsel to function as "private attorneys general" in bringing cases that can further the cause of equal employment opportunity both for charging parties and for the broader national workforce.

Footnotes

¹ I am using "Priority Charges" here to refer to Charges identified as meeting the priorities the Commission establishes in the Strategic Enforcement Plan for 2012-16. I am not referring to the written program for "priority charges" the Commission adopted about 15 years ago.