Extended Remarks of Katherine Bissell on Behalf of the Regional Attorneys

Meeting of September 8, 2003, Washington D.C. on Repositioning for New Realities: Securing EEOC's Continued Effectiveness

Good morning, Chair Dominguez, Vice Chair Earp, Commissioner Miller, Commissioner Silverman, General Counsel Dreiband - I am especially happy to see you here with us - Commission staff, honored guests.

My name is Katherine Bissell. I am the Regional Attorney in the EEOC's New York District Office. My Regional Attorney colleagues from throughout the country have asked me to accept the Chair's invitation to speak to you today on their behalf. The views I present in my oral presentation as well as the extended written remarks represent the consensus views of the 23 Regional Attorneys.

First, let me say that the Regional Attorneys want to be part of the process of determining how the EEOC will position itself for the future. We are willing to participate in the formulation of plans for restructuring and repositioning, to serve on task forces and work groups, to comment on proposals -- to participate in whatever process there is going to be that moves us from where we are today to where we are going to be tomorrow. At a minimum we want to have an opportunity to comment on any plan or proposal in order to make a meaningful contribution. The Regional Attorneys, as a collective group, bring vast experience and knowledge of the agency to the table as well as a commitment to the goals and mission of the agency. While we welcomed the opportunity to speak here today, it is difficult to make concrete comments about any specific restructuring or repositioning because to our knowledge no such plan or proposal has been articulated either publicly or within the agency. It is difficult to say anything very sensible about the merits of reconfiguring or closing or downsizing or restructuring or relocating this office or that function when, insofar as we know, no such plan or proposal exists. Despite some rumors to the contrary, it is our understanding that we are at the beginning of a process. It is our hope that the Regional Attorneys and other field personnel will be part of a work group or groups that take what is learned today, along with other information, and make recommendations for repositioning the EEOC for the future. Our experience is that the most effective changes in the agency have taken place when there has been broad field participation in formulating the changes. We hope that you will take this approach as we move forward.

Second, we believe that any restructuring must be evaluated in the context of the central mission of the EEOC -- eradication of employment discrimination through the investigation and conciliation of charges and litigation of appropriate charges when conciliation fails. As we discussed in our comments on the NAPA study, we believe this was a fundamental flaw in the NAPA study.

Third, we believe that a strong litigation program is an important part of the agency as it is structured today and that a strong litigation program remains important as we discuss an agency that is positioning itself for the future. The 5-year study of the litigation program issued last year by the Office of General Counsel demonstrated that the EEOC's litigation program is successful. We have recovered millions of dollars for victims of discrimination and established thousands of revised policies and training programs, and through publicity about our litigation we have educated many more employers about their responsibilities under the laws enforced by the EEOC. It is our experience that a strong litigation program contributes to the success of other parts of our program. Employers are more receptive to efforts of proactive prevention, more willing to participate in mediation and more willing to resolve charges through settlement and conciliation because they know that the EEOC will litigate if necessary.

With these three premises in mind I would like to comment on the two specific studies before the Commission today,

Reports to the Commission

The first, which was discussed this morning by Singleton B. McAllister, is the report of the National Academy of Public Administration ("NAPA") entitled "Equal Employment Opportunity Commission: Organizing for the Future." The second, which was discussed this morning by EEOC Inspector General Aletha Brown, is the report of the Commission's own Office of Inspector General entitled "Reducing Infrastructure Costs Through Increased Use of Telework."

The NAPA Report

Let me speak to the NAPA Report first. While I will describe the specific NAPA recommendations which I and other Regional Attorneys endorse, I must note our concern about what appears to be the underlying premise of the Report: that there are major flaws is the EEOC's current field structure. We believe that EEOC's results contradict that premise.

In fact, EEOC has demonstrated continuous improvement since at least early 1995. The NAPA Report notes that EEOC executives, managers and staff are dedicated to eradicating employment discrimination, most even passionate about it. Report Summary p. 16. It further notes that since the implementation of Priority Charge Handling Procedures (PCHP) in 1995, the agency's key results with respect to its core mission of enforcement are the following for FY 2001:

(1) EEOC cut its pending inventory to 32,481 (with an intake of 80,840 private charges), the lowest level in 20 years and 5% lower than in FY 2000;

(2) EEOC reduced the average charge processing time to 182 days, 33 less than in FY 2000; and

(3) EEOC increased the percentage of class cases in litigation to 40% .1

These successes have been based on a number of principles: Charges should be categorized at intake by experienced investigators, with input from supervisors and lawyers as appropriate. Thorough investigations should be conducted of the charges with the most merit, and should generally include an on-site. Lawyers should be involved in every stage of the investigations of high priority charges, including conciliation. Litigation should be in accord with a national strategic plan (formerly the National Enforcement Plan and the Comprehensive Enforcement Plan). Decisions about how to investigate and about which cases to litigate should be delegated to the field as much as possible, in accord with these principles.

Nor do the Regional Attorneys agree with the suggested focus on the 10 federal regions. Report pp. 43-44. There is no reason to organize on that basis from a litigation standpoint.2 In fact, we have a much better ability to succeed in our cases where we have offices located within the district. The Commission attorneys' ability to gain familiarity with the judges and potential jury pools is invaluable. Moreover, they can also develop close relationships with members of the local bar that lead to referral of good litigation vehicles to the Commission by members of the plaintiff's bar and a positive relationship conducive to obtaining mutually agreeable settlements with management attorneys.

Perhaps the most glaring error in the NAPA Report is the description of legal unit productivity on page 113 of the Report. The Report indicates that the " there are consistently more than three attorneys per case in most offices." Report p 113. However, the chart on page 113 shows that Commission attorneys handled an average of 3.4 cases per attorney (including regional attorneys and supervisory trial attorneys). Finally, the analysis of productivity fails to recognize other time-consuming functions handled by the field attorneys, including outreach and consultation with and advice to the enforcement unit on investigatory functions. Even in the smallest offices, attorneys are assigned to hundreds of charges. This glaring inaccuracy creates a substantially misleading picture of the productivity of Office of General Counsel field staff..

Accordingly, there is no legitimate basis for suggesting that "there is an opportunity to examine attorney staffing levels" in order to reduce them. Report p. 112. This is particularly true in view of the fact that there are, as of the last reliable count I was able to obtain, only 163 trial attorneys in the field. This is 27 less than were on board in 2001, the year of the staffing figures used by NAPA in Table 6-1 on p. 113, and given our current hiring freeze the number has not gone up. With the current workload of over 800 cases, there are about five cases for each trial attorney. And a significant number of those cases are class pattern or practice cases which the defense bar may, in the estimation of experienced Regional Attorneys, staff with 10 or 15 or more attorneys. In my view -- and I know it is one which is shared by all the Regional Attorneys -- steps ought to be taken immediately to assure that the level of attorney staffing does not fall even lower. Furthermore, paralegal and clerical staffing in the field legal units has fallen as well and has the shortages have reached critical points in many offices.

Cooperation Between Legal and Enforcement Units

Increased cooperation between legal and enforcement units in the field offices has been a long-term goal of the Commission. Such cooperation serves enforcement by providing timely legal advice as needed, and particularly with respect to cases in which discrimination is egregious and wide-spread and appears to require that it be addressed by the agency through the courts. Legal involvement in conciliation, particularly with well developed charges, encourages employers to conciliate, to offer substantial relief for discrimination, and to fashion remedies that prevent future discrimination.

Over the last several years, attorneys have been moved into area and local offices. We believe that this has improved the quality of the enforcement units in those offices and has provided some assurance that when litigation is indicated with respect to charges filed in those offices it can be done. This process should be continued.

The Regional Attorneys recognize the serious budgetary constraints facing the agency. We recognize that the agency, and the legal units in particular, can benefit from reflecting on our performance and working for continuous change for the better. However, we are not satisfied with the NAPA Report or its recommendations. We think that as we go forward, the Commission should recognize that we are building on success and that the EEOC has continuously improved its mission-critical work over the past several years. The Commission would be better served by retaining the current field office structure to the extent possible and focus on savings elsewhere. We believe that this goal, whether or not it can be fully realized, is a better goal and would form a stronger basis for implementing positive change.

OIG Infrastructure and Telework Report

Let me now turn to the EEOC Office of Inspector General report on "Reducing Infrastructure Costs Through Increased Use of Telework." The infrastructure and cost reductions suggested in the OIG's Report are predicated upon a reduction in space through the use of shared offices based upon the implementation of a frequent telework program.

The Regional Attorneys understand that there is a need to control costs and that rental costs are a major budget item. But the need to reduce rental costs ought to be addressed in the larger context of other changes that may occur as a result of the process we are engaged in today, the NAPA Report, or other decisions about the direction of the agency and how the agency spends money. Overall, the Regional Attorneys are concerned that the space reduction issue, which appeared to be premised on shared offices and mandatory telecommuting, has not been thoroughly examined with respect to both real budgetary concerns and programmatic implications.

In recent months, there have been statements to the effect that budgetary concerns compel an agency goal of a thirty-five percent reduction in space over time. Whether in actual occupied space or in the cost of occupied space has not been made clear, nor has the benchmark against which any such percentage reduction would be computed.. We have also been told that the configuration of any office will ultimately depend upon what the local director decides. Our principal concern is that these policies may drive also us into situations in which attorneys will be required to share offices -- which, as I have already said is precisely the recommendation of the OIG Report. Although we are only able to represent our own concerns, we believe that the concerns we raise are equally applicable to our fellow professional employees, the investigators and the Administrative Judges.

Because we know that there are situations where attorneys share office space now, we are not saying that it cannot be done. What I and others are saying is that it should not be done if it can be avoided. My thoughts on this matter are based on my own observations and experience, which I know have been shared by Regional Attorneys in every District Office: Whatever the OIG Report may appear to suggest, the reality is that no one who currently shares an office will tell you that it is a good idea or that sharing an office results in better work product or working conditions.

Our work is complex and it is disruptive to work when your office-mate is on the phone or meeting with someone. The attorney-client privilege and the confidentiality imposed upon us by statute would be difficult, if not impossible, for attorneys sharing offices to maintain. Sharing offices makes the EEOC a less desirable workplace when we are recruiting new lawyers and seeking to retain the ones we have. Shared offices detract from our goal of having EEOC be a model workplace.

By way of example, we note that our current space allotment often fails to provide sufficient small conference rooms for trial preparation or client interviewing. In addition to their work with Charging Parties, EEOC attorneys also interview witnesses in their offices, both in person and by telephone. They meet in their own offices with lawyers from the plaintiffs' bar to work up cases, divide work, coordinate work and otherwise litigate. They also sometimes meet with defense counsel. In general, these meetings are in their own offices, where the files are, and where documents are readily accessible. There are very few small conference rooms in most District Offices. Those conference rooms that exist are frequently booked for charge and litigation mediation sessions, break out rooms for mediation, conciliation conferences, investigator unit meetings and the like. These frequent uses make the few conference rooms inaccessible for the kind of unplanned meetings described above. In some offices, conference rooms are non-existent. In others, they are not readily accessible to the legal unit because of distance and the need to transport large and bulky files. Even if one room is set aside as a trial prep room it will not necessarily be sufficient to meet the ongoing needs of document intensive litigation.

In addition, attorneys need the files and documents that comprise the case, as well as the internet based legal research tools at our desks. An attorney cannot, for instance, effectively produce complete and correct responses to discovery if during the interview with the Charging Party he has to listen to an office-mate meeting with an investigator about another case or talking on the telephone to opposing counsel. And the attorney cannot expect to effectively create a complete and correct record of the Charging Party's responses, his or her own concerns, and possible objections when he or she must leave his own office and his own computer to interview the Charging Party at a location other than his office, without the full file available.

Unless a very strict policy is followed that would require that anyone other than another EEOC attorney must vacate the shared office each time there is any conversation with a person who has a privilege or qualified privilege, there are real and potential waiver issues. This is a very real situation in many jurisdictions where defense counsel are extremely aggressive and courts are not sympathetic to the EEOC.

Regional Attorneys have been told (1) that shared offices are not mandated where other cost cutting measures produce required savings, and (2) the configuration of any office, i.e., the decision to use shared offices, is ultimately up to local management. Laudable as these statements are, they do not adequately address our concern that shared offices be avoided if possible.

The Regional Attorneys want to see a stronger commitment to individual offices. Specifically, we would like to have consideration of alternative cost-reduction measures mandated before any resort to shared professional offices. These measures include: moving outside of the downtown area; elimination of excess space in current lease; and allowing staff to elect to have smaller private offices. We believe that some of these issues should be addressed on a national level rather than entirely left to local determination. For example, moving the office outside of a downtown area may be beneficial as a cost-saving measure. However, it may make the office less accessible from a customer service perspective. Some guidelines may need to be established, from a programmatic perspective on office location. The Regional Attorneys and other field managers also need to be included directly in the local office space-planning process in order to help assure that the reduction in space is accomplished with the maximum efficiency with the least impact on the effectiveness of our respective units.

Telework

The Office of Inspector General has proposed that the Commission can effect a substantial cost saving in leased space through the implementation of a frequent telework program. The study offers two projected levels of savings. The Optimum Model in based upon an eighty-five percent participation rate in the frequent telework program. The Survey Model projects that all employees participating in the frequent telework program will work out of the office fifty percent of the time. Both models rest on the conclusion that the trial attorney position is suitable for frequent telework. The OIG study and its conclusions are flawed.

Section 34.09 (d).

The Regional Attorneys unanimously disagree with the conclusion that the trial attorney position is suitable for frequent telework. The Report, while conceding that "[g]enerally, comments from trial attorneys and supervisors of trial attorneys were negative regarding frequent telework and shared office space for trial attorneys," discounts those concerns. Furthermore, the Report's articulated criteria for determining what jobs are or are not suitable for telework are incomplete. Absent from any consideration is the concept of teamwork both in litigation and investigation.

Under the Strategic Enforcement and Litigation Plan, the development of impact or class litigation is a primary goal. This litigation requires the assignment of more than one attorney to such cases. These attorneys have to coordinate with one another on a daily basis. The Report also ignores the benefits of having professional staff accessible to one another for informal as well as formal consultation and guidance. The reality of field attorney work is that we have frequent and unplanned face to face meetings with investigators, their supervisors and sometimes higher level managers. This is the happy result of years of planning and work to foster cooperation and communication. These meetings are generally informal and happen when people can find the time to talk. It is not uncommon for an attorney to see three different investigators during the course of the day, as they drop by when they are free. All staff benefit from this type of collegial interaction, as does the mission of the agency itself. Planning or mandating change on the basis that large proportions of the agency's attorneys are -- not counting annual leave, sick leave, and business travel -- going to be out of their offices one half or more of the time is counterproductive and does not and will not serve the mission.

Let me conclude by saying that the success of the frequent telework program is predicated upon the ability of the Commission to supply -- actually supply, not merely consider supplying -- all the necessary tools to each employee who works at home. "Telecommuting" without the full panoply of state of the art telecommunications equipment is not really telecommuting -- it is merely doing whatever work one can periodically do at home with the occasional telephone call to and from the office, something that has been going on for years virtually everywhere. There is nothing new about it.

Thus far, there has not been any unequivocal determination that the Commission can and will fully support trial attorneys or any of its professional staff in home offices and will in fact pay what it will cost to supply computers, FTS lines, FAX and copying machines and access to intra-office networks for all employees teleworking from alternate work sites. Until EEOC has accurately assessed all of the cost implications of telecommuting and has the budgetary means and the determination to spend the money required for that purpose, telecommuting is not an option for reducing our infrastructure costs -- unless we are also willing to reduce our ability to perform our mission. Further, even if money were no object, serious doubts would remain about the ability of even the most able and well-intentioned lawyers to effectively pursue the mission when a significant amount of collegial face-to-face interaction is removed from their jobs.

Thank you for this opportunity to address you and thank you for your attention. The Regional Attorneys look forward to working with you on these issues.

1 The Report is in error when it says that the amount of litigation is decreasing. The field legal units have consistently carried a case load of over 800 for the last three years, as compared to 582 in FY 1997 and 750 in FY 1998. As discussed below, the case load is more than three cases per attorney, not three attorneys per case as the NAPA panel believed. Report pp. 112-13.

2 Nor do the 10 cities where the regional offices are located correspond to our significant charge base. As the report recognizes, there would be no basis for locating a district office in Boston or Kansas City in view of the charge intake there. Moreover, some of the other 8 cities may not meet the other criteria set by NAPA (population demographics, growth potential, etc).