Written Testimony of Gary Siniscalco, Orrick Herrington & Sutcliffe LLP

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

I had the honor and opportunity to work at the EEOC during its formative years from 1967 to 1978. I worked in Washington Headquarters until 1973 and then served as San Francisco Regional Counsel until 1978. Since leaving the Commission I have continued to specialize in EEO law representing employers.

My comments below focus on recommendations for improving enforcement. I recognize that the EEOC's strategic plan intends to address quality issues later during the five year plan, but I do not believe the Commission can be effective in enforcement without a concurrent focus on quality.

The Commission's enforcement efforts fall primarily into two areas that are separate but related: Administrative investigations that result in Reasonable Cause Determinations and a process of Conciliation, and cases that fail conciliation and end up either with a private Right-to-Sue or EEOC initiated litigation.

Individual Charges and Field Investigations

My starting point, therefore, is the investigation process and the Reasonable Cause Determinations of individual charges (many of which now include a finding on persons "similarly situated").

The plain and unfortunate fact is that the Compliance side of the Commission (field investigations) has changed little. Investigations are, for the most part, minimally adequate at best. Many are deficient.

Certainly the large influx of individual charges, now 100,000 per year, along with insufficient staff and insufficient budget, preclude significant attention to most cases. However, for cases destined for enforcement, there needs to be much more attention and supervision by Field Managers and lawyers.

In recent years, nearly every investigative file I've reviewed after litigation has commenced (by either EEOC or a private lawsuit) reflects, at best, a superficial investigation. Reasonable Cause determinations invariably are summary in nature, as District Directors continue to ignore the Commission's own Manual standards for what should be in a Determination. Indeed, recent court cases have shown that federal judges are now expecting Commission litigation to adhere to basic statutory requirements during the investigation and conciliation phases.

On a related note, I have served for the past several years on the faculty at NYU for its annual employment law training program for federal judges and magistrates (about 60 attended the 2012 program). During the program this year, we talked about procedural litigation issues. Later, in a side conversation with several judges, three of them commented negatively on their perception of Commission pleadings as not meeting Iqbal standards and seeing EEOC cases that ignore statutory procedural requirements or fail to present adequate proof of bias. As we have seen recently, litigation initiated by the Commission presumably is comprised of the Commission's "best" cases. Yet, the EEOC has suffered a number of defeats – either at the initial pleading stage (Rule 12 motion) or on summary judgment. See, e.g., EEOC v. Carrols; EEOC v. Bloomberg; EEOC v. Port Authority. This hardly is a track record on which to build an effective Strategic Enforcement Plan.

Furthermore, in past conversations with senior lawyers in the General Counsel's office, they also have acknowledged that most cases they receive, after a Cause Determination and after conciliation has failed, simply are not litigation-worthy. EEOC's annual statistics show that every year, only a small fraction of conciliation failures result in EEOC-initiated litigation. Those failed conciliations alone should serve as a quality control point. The Commission should follow up on the conclusion of its lawyers in the Office of the General Counsel that a cause case is not worthy of litigation. Someone needs to review these files and determine why so many investigations leading to a Cause Determination are not litigation-worthy. Was the investigation/determination deficient? Or is there some other legitimate explanation?

Systemic Program

The Commission should be applauded for finally ramping up its systemic program. However, Field Offices, I believe wrongly, are given too much independent authority to pick and choose cases. They do some simple ones to show numbers, but there appears to be no coordinated or concerted effort to deal with significant, complex pattern or practice issues. I should hasten to add that I am not suggesting that there exists many situations involving employer pattern or practice bias. But for purposes of the Commission's plan, I recognize that the Commission believes that such cases do exist.

For example, despite the Administration's focus since 2009 on pay equity (i.e. The National Equal Pay Enforcement Task Force comprised of all the enforcement agencies), the EEOC has made little headway in compensation-based enforcement efforts. One might ask whether pay inequality really is the result of employer bias, especially since several authoritative studies suggest that the pay gap is due largely to factors other than employer pay bias. But if, as the Commission contends, it does exist, pay cases are complex and require much greater attention, expertise and quality supervision.

Perhaps the biggest mistake of the 2006 Systemic taskforce, in my view, was the decentralization of responsibility. The Commission has moved away, not towards, an effective national law firm model. I continue to see broad, overreaching or poorly focused RFIs.

In order to have an effective Strategic Enforcement Plan I believe there needs to be greater supervision and direction of investigations and a closer working relationship between the Compliance staff and the Commission's lawyers to ensure that quality cases are processed and, if conciliation fails, that they are litigation-worthy. By all means make use of field office resources for local fact-finding and to develop some local target recommendations. But the Commission needs to centralize control, quality and supervision of "A" cases that are deemed high value. A focus on quality will ensure that targeted cases will get the necessary attention and expertise needed for an enforcement program that will result in enforcement of cases that really warrant litigation. A transparent, quality enforcement program will benefit employers, charging parties and the Commission.

Finally, there also needs to be an interim process that permits review of cases to ask: 1) Is there enough to continue forward, and/or 2) Is this a case where some approach to settlement short of a full Cause Determination and Conciliation is warranted. Too many cases seem to go on for years; long after it is evident there is less to the case than initially envisioned. However, no one seems to have the authority or willingness to address settlement.

Please feel free to contact me if you wish to discuss this further.