Leaving Law . . . with Contempt

After 25 years as an attorney specializing in federal Equal Employment Opportunity (EEO) litigation, I am shuttering EEO Legal Solutions, having resolved my last piece of major litigation in May 2022–i.e., a systemic race and disability discrimination matter filed in Federal[ist] court.

I’ve waited months to announce this major move, not even sure how to title this blog. As alternate titles, I considered,

  • “Death of an Ally,” [nah, too dramatic];
  • “Systemic Workplace Race Discrimination is Real, But I Cannot Help You Anymore” [meh, accurate and clear, but hurtful];
  • “Outsourcing Justice: How Judicial Overuse of Special Masters Chills Title VII Enforcement [meh, too academic, may use for upcoming law review article]; and,
  • “The Biased Bench: How Cognitive Bias Undermines Judicial Integrity” [meh, stay tuned].

I’ve also been reluctant to talk openly about the state of our Federal[ist] bench and its treatment of EEO litigants because (1) bad judges ensure silence by threatening and retaliating against attorneys with an ethical grievance for “impugning the tribunal;” and (2) I reject MAGA’s attack on and misuse of our institutions, particularly our federal courts. Should I self-immolate by flinging back the curtain on how our federal courts actually operate, particularly in EEO matters, I wondered?

As I ruminated, however, federal judge Aileen Cannon’s antics started to peel back that curtain for me. The public has started talking openly about “Trump-appointed judges” and the prospect of judicial bias, of judicial mediocrity, and of the more recent judicial trend to outsource their public duties to private Special Masters, at substantial expense to litigants. Respected legal commentators like Asha Rangappa, Andrew Weissman, Barb McQuade, and even Bill Bar [I’m being magnanimous] have exposed Cannon’s order as conspicuously biased, legally unsound, and devoid of any logical legal analysis, to the point of even questioning the credibility of FBI agents without any stated factual basis. Shocking.

These recognized experts have also questioned the need for a private Special Master paid for by one or both of the litigants. After all, adjudication of federal disputes ranks high among a federal judges’ and/or magistrates’ fundamental purposes. When our taxes support the federal judiciary, why would litigants (e.g., the DOJ, plaintiffs/defendants, and especially those exercising federal rights under a “private attorneys’ general” enforcement model) need to pay for private adjudication?

So, is Aileen Cannon the example or the exception, the norm or the aberration?

She is the norm. Over 25 years, I have encountered a few “outliers”–i.e., judges and magistrates who seem intellectually engaged in adjudicating the dispute, who issue timely orders, who follow the law, who make a point NOT to appear biased in favor of any party and/or their attorney(s), and who conduct themselves as though the general public is counting on them to care about their jobs. And ironically, one of those few was a federal judge appointed by Richard Nixon! [not kidding]

See, it SHOULD not matter WHO appointed the federal judge; twenty-five years ago, it did not matter but now, it does. Litigants, including federal law enforcement, only ask that federal judges conscientiously and expeditiously consider the facts and follow the law. Instead, the numerous “Aileen Cannons” on the federal bench seek only to clear their dockets and in civil matters, force the parties into settlement. And they accomplish this feat in several ways:

  • by treating the parties and their attorneys as though they have done something wrong by seeking judicial intervention, often showing outright contempt for them (i.e., the Great Oz charade);
  • by delaying rulings on critical matters for months, even years;
  • by issuing flagrantly problematic orders on matters within their discretion, thereby forcing the parties to incur further delay for inevitable appeals.

If you have followed Judge Cannon’s adjudication of the Trump “records dispute,” these judicial tricks should now snap into sharper focus. And it happens all the time.

And so, why am I leaving the practice of law, especially a practice area that relies heavily on our federal courts? There are two big reasons, and lots of little ones, but I’ll keep it basic:

First, I am leaving law because I doubt whether our privatized system of EEO enforcement works for the people it was ostensibly designed to help/protect–i.e., victims of workplace discrimination. As a JD/MSW, I expected to toil in broken systems, but certainly NOT in systems broken by people with lifetime tenure, perceived impunity, and large swaths of discretion routinely rubber-stamped on appeal. They possess, and often wield, great power to harm those who displease them or speak truth to power. I’m getting out of the line of fire.

And second, I have reached a point where I have become an ineffective courtroom advocate. After 25 years, I have developed contempt for biased and disengaged judges who, because of lack of skill and/or will, perform their jobs poorly without regard for end-users and their attorneys–i.e., everyday citizens who need their help in civil disputes. I am also contemptuous of judges who eschew well-settled legal principles in favor of their own religious beliefs or personal biases. I am especially contemptuous of judges who deliberately made false representations at their confirmation hearings to obtain their jobs. And I am thoroughly contemptuous of judges and especially magistrates who outsource their jobs to private Special Masters at $385/hour at the first whiff of litigation conflict. In an ADVERSARIAL process, conflict comes with the territory. Private adjudication (a paid-for judge) creates conspicuous access to justice problems for people who rely on the federal judicial system to enforce their federal rights, namely, people unlawfully fired from their jobs because of workplace discrimination.

Despite my best efforts, this “contempt” apparently oozes out my pores, I realized. At my last hearing in federal court earlier this year, I tried to maintain a pleasant facial expression and hold my tongue, soothing myself with this internal mantra:

Remember, it’s not about being right anymore. This hearing is pure theater, the Order is already written; and she will “split the baby” (i.e., give each party something it wants, despite the law, facts, and righteousness of one party over another) to pressure settlement. Keep calm and make your record.

As I rose to the podium to preserve arguments for appeal, I vowed never to appear in court again, if I could help it. And, I left that hearing narrowly evading getting held in contempt. Contempt must ooze out my pores, I realized, Just shut up; it’s not about being right here. But as it turns out, I was absolutely right about what this federal judge would do in the already-written order, further reinforcing Merrily’s Razor of Judicial Decision-Making: the EASY and/or SAFE choice (especially one that incentivizes the parties to settle without judicial assistance) always carries the day.

I do not know what, if anything, I’m going to do next. Some folks do retire at 55, and I have enough weird little hobbies (e.g., yoga; songwriting; guitar playing; rockhounding/polishing; tap dancing; tending my various gardens; spoiling my dog, my kids, my adorable husband, in no particular order; hiking in the mountains; riding my bike; kvetching, as here; feeding my unfortunate Trump-news addiction; indulging new tattoo ambitions; finally losing that last 20 pounds of “baby weight” [my babies are 14 and 20 years]) to literally do “nothing” for while.

Initially, I had also considered getting my LCSW (licensed clinical social worker) credentials by taking a licensure exam and completing a 2,000-hour internship. There are many ways to serve the cause of Equal Opportunity outside a courtroom, especially with an MSW, I realized. Although that idea still appeals to me somewhat, I want to make sure I’ve overcome the last vestiges of “compassion fatigue” before I try to help anyone else, for everyone’s sake. After 25 years on both sides of the federal employment bar, my last experience attempting to prosecute a meritorious individual and systemic race discrimination before a Trump-appointed judge was so incredibly disappointing, eye-opening, and soul-crushing (even though I obtained a life-changing amount of money for my individual client in the ultimate settlement), I’m leaving Law altogether and taking time to regain my “sparkle.”

Stay tuned and in touch with me, however, via social media like Facebook. Although I will be disabling EEO Legal Solutions’ social media accounts (Facebook, LinkedIn) and the contact page on this website, I may still post random observations about Equal Employment Opportunity, cognitive bias, and judicial decision-making here. I’d be happy to connect with you via my personal pages; find me. I’ve already threatened to write an entire album of songs about and of interest to dogs. Yes, dogs. If you do not believe me, check out SicKophant Songs.

With love,

Merrily Archer, Works for the Dog

CEO Robin Wittenstein Must Address Denver Health’s Own Systemic Racism Problem Before “Admitting Failure” on Racial Equality


We must cultivate our own garden.

Voltaire, Candide (1759)

Earlier this week, the Colorado Sun published an Op-Ed written by Denver Health CEO Robin Wittenstein entitled,

It’s time to admit failure on equality. Let’s use that as our starting point.

CEO Wittenstein then showcased her ostensible commitment to racial equality and equal employment opportunity (EEO) by announcing the formation of a new CEO group called “Colorado Inclusive Economy“, which is allegedly “committed to doing the work personally and through our organizations to provide opportunities to those who have been without for too long.” 


Since October 2019, Denver Health has defended a systemic pattern and practice race discrimination lawsuit in U.S. District Court (Colorado) brought by its former Employee Relations Investigator, Carol Nichols, Nichols et al. v. Denver Health and Hospital Authority, 1:19-cv-02818.

Carol Nichols, former Employee Relations Investigator at Denver Health, is now pursuing a systemic race and disability discrimination matter in U.S. District Court-Colorado.

Ms. Nichols, a 35-year equal employment opportunity (EEO) investigator, alleges that Denver Health maintains a pattern and practice of subjective, racist decision-making in disciplinary and termination decisions that cause “astronomical” adverse impact against African American employees. Ms. Nichols’s lawsuit is based not only on testimony from former officials in Denver Health’s HR department, but also detailed statistical analyses from Biddle Consulting Group in Folsom, California, leading experts in adverse impact testing and affirmative action compliance.

In June 2020, Ms. Nichols gave Denver Health’s attorneys Biddle’s analysis of disciplinary and/or termination outcomes under Denver Health’s Accountability-Based Performance (ABP) policy and practices. In 2019, Denver Health changed its ABP process from a progressive disciplinary ladder aimed at employee self-correction to a subjective system vesting complete discretion in HR leaders and line managers. Using well-accepted federal EEO statistical modeling, Biddle’s adverse impact analysis revealed that this subjective process yielded worsening severity bias against African Americans with corresponding leniency bias against Caucasian/White ones, effectively echoing the Black Lives Matter studies of severity and leniency bias by police and by courts: mistakes and/or missteps by African Americans are somehow allegedly more “egregious” and deserving of more severe, harsher treatment.

In response, Denver Health hired its own statistical expert who admitted that he was unfamiliar with 30 years of federal adverse impact statistical modeling and so, he constructed his own novel model. Despite his non-conforming approach, Denver Health’s own expert STILL found statistically significant adverse impact by race in some of Denver Health’s most populated job categories. Of course, like Denver Health, its expert minimized this monumental finding, as though Title VII tolerates “just a little” race discrimination. On the contrary, Title VII and pattern and practice litigation like Carol Nichols’s case exist to remove these system-wide racial barriers to equal employment opportunity.

If an employer’s undisciplined system of subjective decision-making has precisely the same effects as a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII’s proscription against discriminatory actions should not apply.

Watson v. fort worth bank & trust, 487 U.S. 977, 990-91 (1988).

In November 2020, Denver Health Workers United (DHWU), through national advocacy group Towards Justice, filed a whistleblowing lawsuit alleging systematic retaliation against doctors and workers who have complained about systemic racism at Denver Health. The fight for racial justice at Denver Health lies at the heart of DHWU’s organizing campaign.

We shared Biddle’s statistical findings, as well as Denver Health’s expert rebuttal reports, with DHWU last year. On an individual basis, racist disparate treatment can be difficult to prove. It comes into sharp focus, however, in aggregate statistical analyses of decisional outcomes: Denver Health has consistently treated mistakes by African American employees far more severely, as “egregious” and worthy of summary termination, while extending Caucasian/White ones the benefit of the doubt–e.g., numerous second chances, less severe discipline, if any at all. Again, that kind of disparate treatment is exactly what Title VII was intended to prevent and correct.

Racist disparate treatment comes into sharp focus in aggregate statistical analyses of decisional outcomes.

DHWU has cited these findings and raised employee concerns of racial injustice and disparate treatment to Denver Health’s C-Suite, its Board of Directors, Denver Mayor Hancock’s office, and the Denver City Council. What does it take to effectuate change at Denver Health, for the benefit of the 7,500 workers serving our community there today? What does it take for our local leaders to hear the voices of Denver Health’s workforce, as well as those of civil rights attorneys, union leaders, local activists and organizers, etc. striving to make Denver Health the kind of employer its workforce and our community deserve?

But also ask yourself: does it make sense that CEO Wittenstein would be unaware of active systemic discrimination litigation alleging astronomical statistically significant racial bias in disciplinary and termination decisions pending in U.S. District Court today? If so, is she similarly uninformed about other matters that directly impact Denver Health’s bottom line, treatment of employees, and community reputation?

More likely than not, CEO Wittenstein knows about the struggle of Denver Health’s own workforce to achieve racial equity at work, but chooses to throw up her hands in failure, ruminate with other CEO’s, and publish self-congratulatory Op-Ed’s rather than strive to fix her own workplace. After all, most compliance-conscious employers mete out discipline CONSISTENTLY in a progressive process aimed at employee self-correction to avoid actual or the appearance of disparate treatment. Not Denver Health.

Unfortunately, CEO Wittenstein and Denver Health’s PR machine have an established history of taking diametrically divergent positions in policies and press releases versus in court where employee rights are at stake.

For example, where was CEO Wittenstein when Denver Health’s General Counsel and outside litigators argued that the Colorado Antidiscrimination Act (CADA)–the only law outlawing discrimination against Colorado’s LGBTQ+ workers until June 2020–stopped protecting its LGBTQ+ workforce in Houchin v. Denver Health? For several years, Denver Health has held itself out as a particularly LGBTQ+-friendly employer, while claiming in court absolute governmental immunity from the only law protecting LGBTQ+ employees.

Denver Health attorney Brent Johnson (top center) argues on October 13, 2020 before the Colorado Supreme Court that because of governmental immunity, Colorado’s antidiscrimination act stopped protecting Denver Health’s workers on January 1, 2015.

On December 21, 2020, the Colorado Supreme Court rejected Denver Health’s argument that it enjoys absolute governmental immunity from CADA discrimination claims and remanded the case back to Denver District Court. We estimate that Denver Health has spent $1.2 million in non-recoverable legal fees to argue that its LGBTQ+ employees enjoyed no legal protection against discrimination, harassment, and retaliation.

How can CEO Wittenstein plead ignorance? Legitimately, she cannot.

“We must cultivate our own garden,” Voltaire wrote in 1759. The FIX must begin in your own garden, Ms. Wittenstein, starting with Denver Health’s own policies, practices, and Employee Relations leaders which have collectively created barriers to racial equality at Denver Health. Perhaps, Ms. Wittenstein, you could take a greater interest in the legal positions that Denver Health’s outside counsel assert in court, positions that directly conflict with Denver Health’s published policies, press releases, and public pronouncements like your recent Op-Ed. Respectfully, Ms. Wittenstein, until you begin to address the systemic discrimination against Denver Health’s own employees, participation in a group like “Colorado Inclusive Economy” is just more ineffective window-dressing. If you truly care about racial equality, Ms. Wittenstein, start in your own garden.

Merrily Archer, Esq., M.S.W.

How Our Anti-Harassment Enforcement Machine Churns Out “High Value Harassers”

Time Magazine just named the “Silence Breakers,” harbingers of the #MeToo movement, as its 2017 Persons of the Year.  According to Time, the #MeToo movement marks a watershed moment in American labor history that will end workplace sexual harassment once and for all. Because of the #MeToo movement, TV pundits have speculated, women now feel empowered to speak up about harassment and as a consequence, companies will immediately clamp down on “High Value Harassers” like Harvey Weinstein, Matt Lauer, Charlie Rose, Roy Moore, Al Franken, Glen Thrush, Louis CK, Jeffrey Tambor, Kevin Spacey, Bill O’Reilly, Donald Trump . . . and . . .

Um, not exactly. My cynicism comes not just from a jaundiced view of the Nature of Man, but also from experience: three years as an EEOC prosecutor (1997-2000) and 17 years representing EMPLOYERS (e.g. big ones, small ones and in between). As a civil rights geek, I’ve also researched and written extensively about whether our model for enforcing anti-discrimination and anti-harassment laws–namely, the Civil Rights Act of 1991–has WORKED to deliver on Title VII’s promise of equal employment opportunity (EEO) for all, HERE.

And the truth is, our model for preventing and addressing workplace sexual harassment has become a silly Sylvester McMonkey McBean Machine in which nothing much changes except money changing hands . . . between employers, insurance carriers, and lawyers.

In the classic Dr. Seuss tale “Sneetches,” Sylvester McMonkey McBean built a special machine to resolve tensions between Sneetches who had bellies with stars, and Sneetches who had none upon thars. McBean’s machine could apply AND remove stars . . . for a handsome fee. Eventually, after every last cent of their money was spent, the Sneetches figured out that they’d been tricked: the machine really did nothing at all.

Our anti-harassment enforcement machine is just another contraption in which nothing much changes except money changing hands.

In our Sylvester McMonkey McBean Sexual Harassment contraption, allegations of sexual harassment go into the machine, which spits out M-O-N-E-Y, confidentiality and non-disclosure agreements (NDA’s), and “divorces” that end the employment relationship forever. And each time a victim of workplace harassment gets run through the machine, the harasser grows bigger, stronger, and bolder in his serial harassment of women. He knows that he is a “High Value Harasser,” the subject of a carefully contemplated cost-benefit calculation that prompts companies to set aside financial reserves and buy more expensive Employment Practices Liability (EPL) insurance to mitigate the KNOWN RISK. For organizations protecting High Value Harassers, the decision is purely economic: the worth of the High Value Harasser exceeds the cost of paying out sexual harassment claims.

Yep That’s Harassment Indeed!” tells the story of the “High Value Harasser” in musical form–stay tuned for the video! In this song, the listener initially wonders whether the creep realizes that he’s a creepy harasser; the last verse, however, explains his thinking:

Now, I make them good money
So I’ll get my honey
Whenever and wherever I please

Just write me up
Like legal makeup
The lawyers we need to appease

We’ll write a check
Who gives a heck?
We set aside cash for these fees

When money matters
The owners would rather
Pay off silly claims like these

Because of this reality, High Value Harassers have preyed upon women in the workplace for generations. After all, sexual harassment has been illegal since 1986, when the U.S. Supreme Court decided Meritor Savings Bank v. Vinson, the first case to find that sexual harassment violated Title VII. Since 1986, an entire industry of anti-harassment training emerged, making annual anti-harassment training the industry standard for claim prevention. But training has not prevented High Value Harassers from pursuing women at work, nor has it reduced EEOC claims alleging sexual harassment. Given the sheer volume of #MeToo reports over the past 30 years, reasonable minds would likely agree that what we’re doing to prevent and address workplace harassment is NOT WORKING. Millions over dollars in settlement of sexual harassment claims have changed hands, but the harassment has not stopped . . . or even changed.

I know why, after looking at this issue from BOTH sides (e.g. as an EEOC prosecutor and longtime employment defense lawyer) for over 20 years. And here’s how I would tweak our Sylvester McMonkey McBean Sexual Harassment Machine:

I.  Exclude “Sexual Harassment” from Employment Practices Liability (EPL) Coverage

When Congress passed the Civil Rights Act of 1991 in November 1991 (i.e. after the contentious Clarence Thomas-Anita Hill hearings), the insurance industry recognized an opportunity; after all, where there is RISK, they purport to offer a REMEDY, right? Thus, with CRA 1991’s introduction of jury trials, punitive and compensatory damages, and attorneys’ fees as enforcement tools, more and more insurance carriers started offering Employment Practices Liability coverage  to mitigate the costs (attorneys’ fees) and risks (judgments, settlements) of discrimination and harassment claims. Twenty-five years after CRA 1991, most employers (over 80%) now have some kind of EPL insurance to cover attorneys’ fees and settlements related to sexual harassment claims. By design, EPL insurance took the sting out of the stick of CRA 1991’s enhanced remedies.

Sexual harassment, however, is an INTENTIONAL and DELIBERATE act, unlike the other kinds of hazards and “accidents” for which employers purchase liability insurance (e.g. premises liability, workers’ compensation, malpractice). Indeed, the whole theory behind business liability insurance is that despite our best efforts, accidents happen even when we are not behaving negligently: people slip, things break, employees get hurt. But sexual harassment is quite different: sexual harassment is a deliberate effort to demean women and define them sexually as a “piece of meat” instead of as a peer or typically, as an intellectual superior. Men’s choice to view women in sexual terms is designed to humiliate, to reinforce that no matter how smart, talented, hard-working and worthy they are, the existing male-dominated power structure will NEVER take them seriously. I felt that way each time the Regional Attorney of the EEOC’s Denver Office told me that, despite my JD/MSW degrees as a civil rights fellow at Washington University in St. Louis, he’d hired me because of my “pretty blue eyes” and/or because “I was easy on the eyes.”

Insurance is simply not available for other INTENTIONAL and DELIBERATE acts or torts like assault, battery, murder, false imprisonment, etc. Can you imagine trying to buy insurance in case you decide to beat up or murder your neighbor? No doubt, if such insurance existed, insurance carriers would sell it and people (especially in the South) would buy it. Such policies do not exist, however, because they offend our public policy favoring the imposition of penalties for intentional or reckless violent behavior. Congress could, through legislation, effectively nullify all EPL coverage for employee sexual harassment claims as against public policy, which would FORCE employers to take active measures to prevent, respond to, and immediately correct workplace harassment. Sexual harassment is PREVENTABLE, but only in organizations that take it seriously through annual training, a strong reporting infrastructure, prompt quality investigations, and punishment for substantiated harassment.

II.  Dethrone “High Value Harassers”

Organizations construct entire systems to protect their High Value Harassers. In large self-insured organizations, the C-Suite has already set aside substantial reserves to pay out sexual harassment claims anticipated from a KNOWN RISK like Bill O’Reilly, Bill Cosby, Harvey Weinstein . . . in the cases of celebrity serial harassers like Charlie Rose, Kevin Spacey, Louis CK and others, their personal harassment risk factors into their contract negotiations. Thus, when the sexual harassment and assault complaints inevitably come, they get processed through the Sylvester McMonkey McBean Sexual Harassment Machine with little, if any, impact on the bottom line: reserved funds get paid out, confidentiality agreements get signed, and the serial harasser gets back to the business of harassing . . . with impunity.

Employers, especially public and publicly-traded ones, can no longer afford High Value Harassers. As recent events illustrate, High Value Harassers cost organizations more than money: they squander immeasurable amounts in public goodwill, credibility, productivity and talent that leaves for greener, non-groping pastures.

III.  Recognize the Psychodynamics of Harassment

Sexual harassment has become the business of lawyers. Over the past 25 years, however, lawyers have not proven terribly effective at leveling the playing field and/or at eradicating sexual harassment from our workplaces. Legal tools do not always fix social problems, as we have seen with drug addiction, domestic violence, inequitable opportunity, etc. Thus, we MUST invite other experts to the discussion, including social and industrial psychologists, HR executives, andragogy (adult learning) professionals, artists, poets, shamans, etc. These other experts would reveal a universal truth about sexual harassment, a conclusion they all reached from different paths:

Harassers never perceive their own conduct as harassing.

And never means never. Because of cognitive dissonance (a psychological phenomenon afflicting us all), “Harassers” cannot imagine the possibility that (1) their attention or affection is unwelcome and/or (2) their audience could hear or experience a different message than they intended. Over 20 years, I’ve heard just about everything:

  • I was just kidding! Don’t be so sensitive!
  • I was complimenting her when I said she had a great ass!
  • I did not harass her; I just said I wanted to have sex with her.
  • It’s just locker room talk or horseplay!
  • When you’re a star, they let you do anything.
  • I thought she’d be flattered–I don’t invite just anyone to my room to watch me jerk off.

Effective training on sexual harassment challenges potential harassers to consider the possible disconnect between their intended message and the “heard” message; to understand the power dynamics that color every interaction with a subordinate; to embrace the reality that MOST women find sexual overtures really off-putting and demeaning at work; to accept that sexual harassment can jeopardize their careers and credibility just about more than anything else, etc. Effective sexual harassment training, therefore, draws on other tools borrowed from other disciplines like psychology, social psychology, management, and even law enforcement.

At this stage of our journey toward equal opportunity and harassment-free workplaces, we MUST evaluate and modify our methods, methods that have not proven terribly effective over the past 25 years. Otherwise, we will perpetuate a Sylvester McMonkey McBean Sexual Harassment Machine in which a substantial amount of money changes hands between employers, insurance carriers, and lawyers, but nothing else changes for the women in our workplaces. We need to deconstruct a sham machine that has tricked us into believing that it is “doing something” other than collecting and spitting out money, while enriching the insurance, HR, and legal industries.

Three Short Stories about “Harassment”

Whenever I’m facilitating one of WorkplaceTrainingHub.com‘s management courses on “harassment,” I like to ask participants

Have any of you ever been accused of harassment?

Most folks immediately avert their gaze before I even finish the question–i.e., to check for an important email, Facebook post, or nearby Pokemon, right?  It looks like this:


It’s a tough question to answer publicly.  And so, after making clear that I’m just teasing them, I share my personal stories about “harassment,” from all the lenses through which I’ve seen and experienced “IT.”  At that moment, eye contact returns and the thick fog of tension in the room dissipates.

#1:  Accused at the EEOC

I launched my legal career at the EEOC’s Denver District Office, a freshly-minted attorney with an MSW in civil rights. I was insufferable. In any case, I quickly learned to despise the weekly attorney meetings at the EEOC: as more of a “directing-guiding” personality, the chit-chat and lack of clear goals, objectives, and action items drove me bonkers.

And so, one Monday morning, as my attorney teammates shuffled into the law library for our weekly meeting, I spoke these words to my African-American colleague, “Elston”:

Elston, it looks like you’re also having a tough time dragging your sorry ass in here today for the attorney meeting!

In a perfect world like the movies, a disembodied Morgan Freeman voice-over would have alerted everyone of the situation’s critical subtext:


What Elston does not know is that Merrily grew up in St. Louis and had used this phrase–“dragging your sorry ass”–regularly with both African-American and white friends. 

But, life does not come with explanatory Morgan Freeman voice-overs, leaving us to our own interpretive biases and faulty attributions.  See, Elston occupied the office next to mine, but kept to himself . . . I reasoned that Elston’s aloofness accounted for his longevity at the EEOC: he’d outlasted several generations of attorneys in the EEOC’s Denver legal department.  I knew very little about him (except that he listened to “I Believe I Can Fly” every morning as one of his rituals), but I respected his seniority and wanted him to mentor me.  After all, the learning curve is STEEP for young government lawyers.

I do not specifically recall Elston’s reaction to my comment, but I remember hearing some chuckles from colleagues who still found my distaste for meetings somewhat charming.  Nevertheless, about four hours later, these words appeared across my computer screen in the subject line of an email from Elston to my bosses and me:

Potential Hostile Work Environment

I read the rest of Elston’s email and then puked.  Elston interpreted my comment as racist because, according to him, “dragging your sorry ass” is a phrase created by African-Americans for the use of African-Americans.  Because I am not African-American, Elston reasoned, I must have used the phrase pejoratively, to make fun of him.

I was devastated.  I cared (and still do) deeply about equal employment opportunity (EEO), especially about advancing the March for African-Americans: caring about EEO forms a big part of my “self-concept,” and so, the accusation hit me really hard, like it does every other human I’ve encountered thus far.  But more importantly to me, I never meant to hurt Elston’s feelings; on the contrary, I was trying to connect with him . . .

In any case, my supervisors put me on investigative leave and I spent the next two days soul-sick in my apartment imprudently looking for shelter pets to adopt in atonement. On the third day, I met with my supervisors, both of whom were, coincidentally, middle aged African-American men like Elston. To this day, I’m grateful for their patience and empathy–I was a blubbering mess. During our meeting, they disclosed Elston’s admission that he had not been happy with previous retirement offers and wanted to add some tension to their negotiations . . . and a racial harassment charge would surely do the trick. I was a pawn in a larger plan.

With that admission, the matter was over as quickly as it started. Like the 95% of people accused of harassment each year, I’d been exonerated, but still damaged–e.g., uglier, crustier, less trusting. Elston and I continued to work “in proximity” for many months afterwards at the EEOC, although never together. My effort to draw Elston closer had only alienated him further,and sadly, further outreach seemed rationally unsafe. And so, I learned to deal with Elston like a “risk,” treating him with a level of formality that only deepened the divide between us . . . because that’s what happens when you’re accused of harassment–you learn to protect yourself.  And that’s a message managers must hear.

#2: Scrotum Jokes at the Christmas Party

Several years after I’d left the EEOC and switched sides to a defense practice, I found myself blessed to work among several of the best litigators in Colorado. Unfortunately, I was the only girl in my little ragtag clique of irreverent smart-asses who saw the sick humor in our work.  Employment law is often amusing, which explains why I write folk songs about it.

So, in the middle of the holiday season when the office was a Ghost Town, my little clique decided to treat ourselves to an early Happy Hour at lunchtime. As usual, I was THRILLED to be included: not only did I find these guys hilarious, but we also regularly consulted with each other when things got tricky in our cases.

At some point in the endless riffing (which included welcomed riffing on each other), my colleagues all started telling jokes about their scrotums (scroti?).  As I girl, I had very little to contribute to this part of the conversation, but I was enjoying the humorous dialog anyway.  And then, I realized I’d tuned them out to listen to my inner voice, which suddenly sounded like a resentful Jan Brady from The Brady Bunch:

Jan Brady

Scrotums are naughty boy parts, right? Why are they talking about them? 

Scrotums, Scrotums, Scrotums!

Is this harassment?

By the time I’d tuned back in to the conversation, the group had moved on to safer lunchtime topics, like the appropriate settlement value of a gnarly wrongful death case. But I quickly dismissed the notion that I’d been the “victim” of “harassment” because of my proximity to an NC-17 conversation; after all, I’m an adult.  At no time did my male colleagues seek to diminish me, to make me feel like less than a peer (despite my obvious handicap of not having a scrotum). It was like being the tomboy sister around a group of brothers who, at least in my mind, (a) thought of me as “one of the guys” or (b) feared verbal humiliation if the sex-talk ever got personal. And it never did.  I’ve since acted as their employment counsel when they formed their own firm, enjoying a friendly professional relationship that has almost spanned two decades.

I have, however, contemplated my inherent power in that situation to TAKE OFFENSE and more pointedly, to cause them trouble simply by interpreting their conduct differently and/or attributing nefarious motivations to it.  After all, ALL harassment lies in the eyes of the Accuser–namely, to satisfy the threshold legal element of “unwelcomeness.”  If I took offense or considered myself a “victim,” I wielded the power of attribution, even faulty attribution.

Indeed, fundamental attribution error (a/k/a “correspondence bias”) is one of the basic tenets of social psychology.  It holds that in explaining the behavior of other people, we have a tendency to overemphasize personal traits (i.e., disposition) and to de-emphasize situational factors . . . BUT when explaining our OWN behavior, we humans consistently focus on situational factors, not dispositional ones.

For example, how many times have you screamed “Asshole!” at another driver instead of thinking

  • Perhaps they’re rushing to the hospital to have a baby!
  • I’ll bet he’s just late for work today.
  • Maybe he did not see me.

And yet, social psychology studies confirm that when WE OURSELVES are the “Asshole” in traffic (and we all are occasionally), we will say to ourselves and others:

  • I did not see that car.
  • I’m late for work and could get written up.
  • Hurry! Faster! Screw the signals! We’re having a baby!

Check out this example:


Fundamental attribution error is pervasive in American thinking and it’s CULTURAL, meaning social psychologists have observed different attributional thinking patterns in other cultures.  Yet, when contemplated in conjunction with cognitive psychology principles like “cognitive dissonance,” “rationalization,” and a whole host of recognized “cognitive biases,” a central truth about sexual harassment emerges:

We seldom perceive our own conduct as harassing, but are often quick to assign those attributions (i.e., harassing pig) and motivations (i.e., harassment) to other people’s behavior.

Particularly in that regard, the foundation of sexual harassment jurisprudence has been built on logical and psychological distortions. FAE#3: My Sweet, Sexy Voice

Years later (and actually not that long ago), I picked up a new “wrongful discharge” and “whistle-blowing” case against a rural Colorado non-profit organization and each member of its volunteer Board of Directors in their individual/personal capacities. As an old social worker, I harbor strong negative opinions about trial lawyers who go after volunteer non-profit Board members. Indeed, decent attorneys on both sides of the bar would likely agree that naming un-paid volunteers as individual defendants is a SCUM-BAG maneuver, absent truly “willful and wanton conduct” like child sex abuse. In my new case, the naming of individual volunteers as Defendants particularly pissed me off because the Complaint stated that each member acted within the scope of their authority at all times.

Nevertheless, as was my practice (and as actually required by rule), I picked up the phone to contact plaintiff’s counsel to introduce myself, to talk about points of agreement and contention, and to discuss case scheduling.  I knew nothing about my new opponent because he lacked a website and online presence, but I correctly surmised that he was an older gentlemen based upon his low attorney registration number.

The conversation started off normally, at least from my perspective.  And at some point, I directly asked,

“Help me understand why you’re going after these volunteers in their individual capacities? I can get them dismissed, but not before they’ll have to bear the expense of preparing the proper pleadings.  What’s your thinking?” 

Instead of a response, my opponent stated

How old are you? You sound so young.  I cannot get over the sound of your sweet sexy voice.

This event marks one of the very few occasions in which I’ve been knocked speechless. In fact, I was not “young;” on the contrary, 15 years of litigation had hardened me into an old crusty Battleaxe.  But I was knocked speechless simply because I had no idea what to do or say next–I had no “event schema” for this kind of treatment by another attorney.

And so, I asked him to repeat himself.  He obliged. I’m not entirely sure what happened next, except that I could see my colleagues coming out of their offices to look at me through the glass in my door while I raged into the phone.  My voice, I imagine, probably sounded very much like Elizabeth Warren responding to a Donald Trump attack, like below.


I do, however, remember hanging up on him.  He called back immediately and I sent the call immediately to voicemail.  I needed to calm down and reclaim my wits for a few moments because I was reeling inside: instead of treating me like peer intent on kicking his ass, he treated me like a hooker, deliberately sexualizing a business conversation to make me feel small, like a piece of meat.  His comments meant, “I will define you sexually, not professionally, and I have the power to do that.”

After I pulled myself together, I noticed the voicemail light blinking on my phone. And much to my utter horror and amusement, he left a rather lengthy voicemail message . . . again making reference to my “sweet sexy voice,” a few times, actually.  And so, I did what any decent litigator would have done: I had the recording transcribed and I cited that transcript liberally in every motion in which he sought to have me sanctioned for not giving in to him (which is most of them).

Throughout the litigation, my septuagenarian opponent insulted me, even encouraging his client and her spouse to do so as well. He called me “bitch” several times to my face and often within earshot when talking about me to others.  He contacted my old white guy bosses at Biglaw to tell them that I was “uncivil” and “taking irrational positions” in my case so that they would put internal pressure on me. He grieved me to Colorado’s disciplinary counsel for truly silly reasons. And during a deposition attended by several witnesses, stated that he would “knock me out” if he thought he could get away with it.  Thereafter, we put the local sheriff on alert whenever I came to town for depositions.

. . . because that’s what happens in a true “harassment” situation: the party that perceives itself as more powerful will use insult, innuendo, and even internal politicking to make others feel “lesser,” like trespassers on the old white guy establishment in their quest for INCLUSION and RESPECT. The insults and innuendo are designed to convey one simple message: you do not belong here and I’m going to make your life suck for trying.

In the end, I trounced this asshole about as completely as a defense litigator can by getting 90% of the case dismissed on summary judgment before trial and winning at the “chicken game” of trial practice. Because we were loaded with evidence to overcome the one remaining claim reserved for a jury trial, the plaintiff’s lawyer fully capitulated and settled the case for nuisance value on the courthouse steps after nearly three years of litigation and six figures in attorneys’ fees . . . to me. (Don’t worry, those attorneys’ fees were paid by an insurance company, not the volunteers or non-profit).  As many women know, WINNING is the best (and often only) revenge.


“Harassment” is a complicated issue, driven by a constellation of factors that have little to do with LAW.  To address workplace “harassment,” therefore, we must turn to other disciplines for wisdom, especially the worlds of cognitive and social psychology.  These disciplines can help us better understand the “microcosm of the workplace” and how we interact with it and each other.  Instead, our workplace policy on harassment focuses on the reptilian mindset cultivated by trial lawyers: namely, that we must identify, weed out, and punish the HARASSERS and EVIL CORPORATIONS through large settlement payouts . . . of which trial lawyers take 33% to 45%.  Accordingly, it comes as no surprise that our efforts to eradicate “harassment” from our workplaces have failed so miserably.

Until we give our managers a truly balanced and realistic view of the “harassment” landscape, organizations will continue to be blind-sided by harassment allegations. In reality, most “harassment” allegations arise in the context of (1) pre-termination performance rehabilitation efforts; and (2) terminations.  Because managers do not recognize their conduct as “harassing,” they are unlikely to seek HR’s guidance in those common scenarios in which allegations arise. For that reason, WorkplaceTrainingHub.com‘s approach to managerial anti-harassment training also focuses on RISK, basic leadership psychology, and evidence development to help organizations manage the increasing risk of harassment allegations.

We hope you will join us.

Merrily Archer, Esq., M.S.W.

August 2, 2016

From Opportunity to Entitlement: How Private Litigation Distorted Our Dialog About Equal Employment Opportunity

Twenty-five years after the Civil Rights Act of 1991, the March toward Equal Employment Opportunity has stalled: trial lawyers’ pecuniary interests have shifted our focus toward TERMINATION decisions, instead of HIRING and PROMOTION practices that keep African-Americans, Latinos, and Women from competing on equal footing in the American economy.  


Connecting the Dots

This November will mark the 25th anniversary of the Civil Rights Act of 1991 (CRA 1991), an important milestone in the march toward Equal Employment Opportunity (EEO). CRA 1991 fundamentally changed the enforcement scheme of Title VII of the Civil Rights Act of 1964 (Title VII), from initial informal administrative methods of “conference, conciliation, and persuasion” with employers to private litigation against employers. Today, private litigation (i.e., employee-initiated lawsuits) accounts for 99% of EEO enforcement in the workplace trenches.  The EEOC prosecutes less that .1% of its charge inventory and finds Reasonable Cause to believe discrimination occurred in only 3.5% of all charges. For the other nearly 90,000 charges in the EEOC’s annual intake, therefore, employers feel the effects of CRA 1991 through threatened and actual private litigation prosecuted by TRIAL LAWYERS.

Given the impact of CRA 1991, common sense invites us to ask: has CRA 1991 furthered the march toward EEO as its drafters had hoped (and as trial lawyers had promised?).  As the late great Steve Jobs sagely observed,

Indeed, an entire sub-discipline of social work and public policy analysis is devoted to determining whether our interventions (e.g., legislation, programming) have WORKED, to any degree.  For most non-profit organizations, grant funding depends on their ability to demonstrate, through carefully chosen metrics and reliable measurements, that their help is HELPING–namely, that (a) their methods and mission align; and (b) their methods are “moving the needle” toward positive outcomes. Thus, as a social intervention ostensibly designed to further the great March for Opportunity and Jobs that began in August, 1963, CRA 1991 merits attention and analysis.

Looking Back: A Brief History of EEO Enforcement

Most folks have long forgotten about the employment practices that prompted Title VII’s passage, especially the rampant discrimination in HIRING and PROMOTION that kept racial/ethnic minorities and women from participating fully in the American economy. Because paid employment forms the foundation of most people’s financial security, discrimination in HIRING and PROMOTION reinforced the separation of HAVES and HAVE-NOTS by race, ethnicity, and gender and prevented large swaths of the population from rising above the economic circumstances that trapped them in poverty and powerlessness for generations.

No Irish, no blacks no dogsonly native born americans need applyNo Italians, Blackswhites only

Men wanted

The great March of August, 1963 set out to secure basic equal rights in public accommodations, housing, education, and most importantly, EMPLOYMENT.  Without equal opportunity in employment, civil rights advocates realized, access to public accommodations, housing, and education would remain as ECONOMICALLY elusive as before. Thus, the leaders of the great March of 1963 emphasized equal access to EMPLOYMENT, equating JOBS (i.e., economic opportunity) with FREEDOM.



This March set in motion a legislative blitz that ended with the passage of the Civil Rights Act of 1964 on July 2, 1964, including Title VII’s prohibition against discrimination in EMPLOYMENT.  History buffs will recall JFK’s assassination on November 22, 1963, as well as LBJ’s desire to fulfill JFK’s civil rights vision, notwithstanding his own Texan sensibilities on racial issues.


The next year, the U.S. Equal Employment Opportunity Commission (EEOC) opened for business. Seven years  later, in 1972, the EEOC lobbied Congress to modify Title VII to give it the authority to PROSECUTE private employers for violations, complaining that without the authority to prosecute, the EEOC was nothing more than a “toothless tiger.” After this statutory modification, EEOC Litigation Centers sprung up all over the nation to not only fulfill Title VII’s promises through administrative enforcement (EEOC), but also through civil prosecution of employers in our federal courts.

In its original form, Title VII stressed injunctive, non-monetary relief and the resolution of discrimination disputes through “informal methods of conference, conciliation, and persuasion.” Section 706(b), 42 U.S.C. 2000e-5(b). Indeed, the original version of Title VII did not allow for jury trials, nor the recovery of compensatory (e.g., pain/suffering, humiliation) or punitive damages. At the time, Title VII’s architects surmised (surely correctly) that juries would not effectively enforce the civil rights of groups they had historically marginalized or hated.  Accordingly, Title VII enforcement was initially entrusted to federal judges, adjudicators with lifetime tenure and little oversight.  And not surprisingly, the great March sputtered along.

Enter Trial Lawyers . . . 

At the 25-year mile-marker, civil rights advocates called attention to our lack of progress on several EEO fronts (e.g., ending job segregation patterns, boosting diversity in top jobs, unemployment) and to a constellation of Supreme Court decisions that, advocates argued, unnecessarily limited Title VII’s broad remedial purposes.  They teamed up with trial lawyers, and fashioned a public policy argument that still echoes throughout state legislatures today: because of Title VII’s limited damages (and of course, lack of jury trials), trial lawyers had little incentive to take on employment discrimination cases. Accordingly, these self-proclaimed civil rights “gladiators” asked Congress to “sweeten the pot” by allowing recovery of compensatory damages, punitive damages, and attorneys’ fees and by guaranteeing civil jury trials. With these additional financial incentives to prosecute EEO matters, trial lawyers argued, they can help the EEOC, as deputized mini Attorneys General, stop discrimination and advance the march toward equal opportunity.

In 1991, these arguments still rang true. Due to chronic under-funding, the EEOC had developed an insurmountable backlog of pending EEO investigations, as well as a reputation for inertia.  But, according to trial lawyers and civil rights advocates, the threat of PRIVATE litigation would motivate offending, unenlightened employers to comply with Title VII’s mandates and “provide relief” for “victims” of their “unlawful employment practices.” Business groups offered anemic resistance to CRA 1991, except for insisting upon damage caps based on employer size. And by November of 1991, in backroom deals between lobbyists for advocacy groups, Chambers of Commerce, trial and civil rights lawyers, and small business, the Civil Rights Act of 1991 emerged, a significant change in federal enforcement backed up by surprisingly little legislative history.

Two Decades of Data and Dots to Connect

I joined the EEOC’s Denver District Office as a Trial Attorney six years later, in November of 1997, after finishing my JD/MSW at Washington University in St. Louis on a civil rights fellowship. I started out as a rabid “true believer” in the importance (and efficacy) of changing hearts and minds through rigorous litigation, a belief that dissipated through daily exposure to the EEOC’s methods, management, and much-distorted mission to maximize employer settlement payouts. But my own legal career grew up around CRA 1991, and because my interest equal opportunity has remained constant, I’ve paid careful attention to developments on the ground and in social science research.

Civil rights advocates and policy analysts too often forget a central tenet of natural law (Newton’s Third Law of Motion, actually): for every action, there is an equal and opposite reaction.  As a longtime attorney representing BUSINESSES, Newton’s Third Law roughly translates as the caption below.  How can we respond to or minimize the impact of CRA 1991’s costs and risks?


In fact, after CRA 1991’s passage, the “market” responded in foreseeable ways that we have detailed in other articles:

  • EEOC’s Adoption of Priority Charge Handling Procedures (PCHP)

My tenure as an EEOC Trial Attorney in Denver from 1997-2000 let me observe firsthand how the EEOC grappled with the deluge of new EEOC charges following CRA 1991’s passage. In 1995, the EEOC adopted Priority Charge Handling Procedures (PCHP), triaging protocols that remain very much in use today. Although CRA 1991 effectively privatized EEO enforcement, its statutory scheme still required employees and their attorneys first to file a Charge of Discrimination within 300 days at the nearest EEOC office and to obtain a Notice of Right to Sue before proceeding to court . . . and not surprisingly, EEOC charge intake soared and its “handling” of charges became more superficial and perfunctory than ever before.  Of course, as indicated earlier, the EEOC acts on only a very small number of charges, issuing reasonable cause determinations in 3.5% of charges and prosecuting less than .1% of all discrimination allegations.

  • Proliferation of Employment Practices Liability Insurance (EPL)

In the 1990’s, few insurance carriers offered Employment Practices Liability coverage to defray the defense costs and risks of big damages under CRA 1991.  But where there is risk, the insurance industry offers a remedy, and without doubt, CRA 1991 exposed employers to greater risks (e.g., jury trials on sensitive issues) and costs than ever before. Nowadays, over the past 20 years, a majority of employers have purchased EPL coverage.

I became very familiar with EPL insurance after leaving the EEOC in 2000 to launch my defense practice.  In those early years, I considered EPL insurance a very poor fit for employment cases, given their typically emotional nature: whereas insurance carriers always favor settlement to minimize defense costs, most employers simply cannot not stomach the notion of paying out $30K on unfounded, nefarious, and brand-damaging allegations. Extortion, I’d often hear employers say, during spirited settlement conferences.

I also had difficulty reconciling a logical inconsistency about the insurability of EEO allegations, given that insurance is typically not available for INTENTIONAL acts and discrimination, harassment, or retaliation are theoretically intentional acts.  But over time, I realized that without EPL insurance, the non-recoverable defense costs of proving they did nothing wrong in the first place would force many small to mid-sized businesses into bankruptcy.

By design, EPL insurance took the sting out of CRA 1991’s enhanced remedies–i.e., the “stick” designed to scare employers into Title VII compliance.  Because EPL coverage pays defense and indemnity (e.g., judgments, settlements) costs, employers have minimal direct financial exposure in EEO disputes, except for their deductible and a potential increase in premiums.  And although EEO allegations inherently involve INTENTIONAL acts, many employers now treat EEOC charges as simply an UNAVOIDABLE COST of doing business, like a slip-n-fall or workers’ compensation accident. From a behavioral modification perspective, therefore, EPL neutralized CRA 1991, rendering it completely ineffective as a tool to effectuate workplace change. Instead, CRA 1991 spawned a wealth redistribution cycle between employers, EPL insurance carriers, and lawyers (on both sides) where nothing much changes except money changing hands . . . between themselves.

  • The Stalled March Toward Equal Employment Opportunity

Since 2013, in anticipation of Title VII’s 50th birthday on July 2, 2014, my friends at Biddle Consulting Group and I have, both individually and cooperatively, conducted on-going research about our progress toward EEO.  We started by asking, what kinds of measurements might indicate progress or lack thereof?  After all, the EEOC and OFCCP historically claimed that they were “enforcing the law more effectively” based on employer settlement payouts, a measurement that made little sense in light of their respective missions–namely, to end workplace discrimination against and to promote opportunity for women and minorities.

We analyzed the EEOC’s own EEO-1 data, examining the pace and trajectory of change in two specific areas: (1) historic job segregation patterns; and (2) minority advancement into the Official/Manager and Professional categories of jobs, the “top jobs” in EEOC-speak.  We dug further, analyzing quarterly data from the Department of Labor’s Bureau of Labor Statistics (BLS) on unemployment and its impact across racial/ethnic and gender groups. We tapped into the robust databases at Catalyst.org for international information on women’s corporate advancement, workforce participation, and governmental leadership. And, in March of 2014, we published our findings HERE and in EEO Insight, the nation’s leading periodical for the Affirmative Action and EEO industry.

Based upon our findings, we concluded that the great March for Jobs and Freedom of 1963 stalled out in the mid-1990’s, particularly for African-Americans, Latinos, and women. The next year, the EEOC released its 50th Anniversary Report on the American Workplace based upon the same EEO-1 data that Biddle’s Dan Kuang, PhD had analyzed and not surprisingly, the EEOC’s findings mirrored our earlier report (sans the helpful BLS and Catalyst.org data).

Why have African-Americans lost ground in their quest for Official/Manager jobs since 2008? Why have Women improved their participation rates in the Professional category, but not the Official/Manager category (i.e., the glass ceiling)?  Why are African-Americans, Latinos, and Women still concentrated in lower paying positions, whereas Whites and Asians dominate the highest echelons of the pay scale?

  • From Hiring and Promotion to FIRING Claims

On April 4, 2006, the EEOC announced another major shift in its administrative enforcement of Title VII, switching from a cohort discrimination model to a systemic model. The EEOC stated its intent to focus on “discriminatory hiring barriers” (e.g., criminal background and credit checks, pre-employment tests) that reinforce past “vestiges of discrimination.” In other words, under the EEOC’s systemic initiative, the EEOC planned to return its focus to HIRING and PROMOTION practices that have kept “economic minorities” (e.g., Women, African-Americans, Latinos) from breaking through historic job segregation barriers and glass ceilings.

The EEOC’s renewed focus on HIRING and PROMOTION came as a welcome surprise, until I remembered that the EEOC takes action on less than 3.5% of its charge inventory and prosecutes less than .1% of all allegations. Despite touting this initiative, the EEOC filed only 42 systemic prosecutions in FY2015, and its flagship prosecutions–e.g., EEOC v. Kaplan Higher Ed. Corp. (credit reports) and EEOC v. Freeman (criminal background)–did not survive summary judgment.

While the EEOC’s systemic initiative floundered (despite its laudable aims), however, employers continued to face an increasing number of EEOC charges and PRIVATE litigation from their own employees. These charges seldom involved HIRING and/or PROMOTION discrimination; on the contrary, increasingly over time, the bulk of the EEOC’s charge intake came to involve TERMINATION decisions.  By FY2015, the bulk of the EEOC’s charge intake challenged TERMINATION decisions, not HIRING or PROMOTION ones.

IntakeWHY?  Although data shows that discrimination in HIRING and PROMOTION likely remains rampant, trial lawyers disfavor hiring/promotion cases.  They require statistical experts and lots of work.  Because of the universal “duty to mitigate” damages, hiring and promotion cases typically yield small monetary recoveries; after all, in many cases, a rejected applicant (even one rejected for discriminatory reasons) will simply apply for and accept another job with comparable pay and benefits.

TERMINATION cases, by contrast, allow trial lawyers to pile on discrimination, harassment, and retaliation claims in a familiar “shotgun method” of pleading (i.e., spewing many pellets in hopes that one hits the target).  Termination cases yield bigger backpay awards, in light of most terminated employees’ inability to find comparable employment over long periods of time. Termination cases generate large frontpay awards. Termination cases engender greater emotional distress and juror sympathy–i.e., I was a loyal employee who planned to work here until retirement!  Termination cases, especially those involving retaliation allegations, are easier to spin into settlements, at least from a trial lawyers’ perspective.


From the employers’ perspective, however, termination decisions involve an employee’s SQUANDERING of opportunity, not any discriminatory failure to provide opportunity. Indeed, for every employee allegation of discrimination arising out of a termination, there are one or more equal and opposite explanations for the decision, typically poor performance and failure to rehabilitate.  According to the EEOC’s own statistics, employers’ legitimate, non-discriminatory and non-retaliatory reasons for terminating the employee persuade the EEOC in the majority of cases that no discrimination occurred whatsoever.  Discrimination is, after all, difficult to prove, but easy to allege.

From Opportunity to Entitlement: Refocusing Our Dialogue About EEO

The great March for Jobs and Freedom and the quest for inclusiveness at ALL levels of our workforce have sputtered to a crawl at the 50-year mile-marker, likely for a multitude of reasons. But here’s one reason no one seems to have noticed thus far: instead of focusing on boosting diversity/inclusiveness in HIRING and PROMOTION, employers are naturally more motivated to neutralize any risk posed by TERMINATIONS and to allocate internal resources accordingly. Thus, while statistics suggest that discrimination in HIRING and PROMOTION remains pervasive, it often goes completely undetected or unchallenged because (a) few trial lawyers have the patience, wherewithal, or social conscience necessary for successful private prosecution; and (b) savvy employers allocate resources based on risk exposure–i.e., TERMINATION decisions.

Our national EEO focus on termination decisions, however, has also caused a shift in how employees perceive EMPLOYMENT generally, shifting the workforce from an OPPORTUNITY mindset to one of ENTITLEMENT:  i.e., You can’t fire me!  You owe me a job no matter how incompetently I perform it.  Quarterly Gallup polls reveal that over 70% of the American workforce is “disengaged” (i.e., “checked out”) at work–e.g., disinterested, disloyal, disenchanted like Peter Gibbons from Office Space.

Don't Care

HR practitioners and workplace analysts have known for decades that disengaged employees are most likely to commit “job abuse”–e.g., chronic absenteeism, missed deadlines, poor work product or output.  Disengaged employees do not treat work like an opportunity, but rather an entitlement. They could care less about advancing their employers’ business objectives or even being good at their jobs. Likewise, they could care less about the impact of half-assed performance on others, such as students, patients, customers or clients. On the contrary, chronically disengaged employees chronically under-perform, while demanding that employers tailor their positions to their unique personal circumstances on and off the job. Disengagement and entitlement, I am convinced, also form part of a constellation of behaviors that are predictive of who will sue if terminated.


The numbers are difficult to reconcile: 70% of employees are “disengaged” at work, yet 75% of EEOC charges now involve termination decisions, not HIRING or PROMOTION ones. Worse, the pool of available jobs is SHRINKING, given that technology has steadily replaced jobs quicker than it has created them.  MIT professors Andrew McAfee and Erik Brynjolfsson observed in their revolutionary work, The Second Machine Age, “as technology races ahead, it may leave a lot of people, organizations and institutions behind.”  And no doubt, unless we figure out how to deliver on Title VII’s promise of equal employment opportunity, the people that technology will first leave behind are those concentrated in Administrative Support, Operatives and Laborers/Helpers–to wit, Women, African-Americans, and Latinos.

The Road Ahead

Over the past few years, members of the National Trial Lawyers Association (NTLA) and National Employment Lawyers Association (NELA)–i.e., the chief architects and beneficiaries of CRA 1991–have called me “racist,” “unenlightened” and even “immature” and “anti-Islamic” for questioning the efficacy of this statutory scheme. But their attacks reveal their underlying intent: if they truly cared about advancing EEO as much as the financial windfall that CRA 1991 generates for themselves, they would echo my concerns about whether this enforcement model has worked, to any degree.

NTLA and NELA have convinced advocacy groups and the EEOC, however, that LITIGATION promotes inclusion and diversity or stated another way, that the ability to sue employers somehow equates with greater opportunity and inclusiveness.  Yet, after 25 years of CRA 1991 “enforcement,” NTLA and NELA attorneys have demonstrated that rather than solve the social problem of inequitable economic opportunity, they have simply found a way to make money on it.

NTLA and NELA attorneys also commonly retort: this is the only enforcement model we have; only racists would seek to deconstruct it!  In truth, this enforcement model is all we have because of their powerful lobbying and disingenuous marketing (i.e., “we’ll fight for you!”). But, public policy choices ABOUND for advancing the march toward EEO, from tax incentives like the Work Opportunity Tax Credit (WOTC) to internal management development and resource integration programs. Read more HERE.

Further, research continues to reinforce the strong correlation between diverse/inclusive workplaces and decision-making AND higher profits, better access to top talent, enhanced community reputation, and improved group synergy/creativity. More HERE. As this BUSINESS CASE for diversity/inclusiveness comes into sharper focus, our efforts to advance EEO should concentrate on collaborating WITH employers, not declaring war AGAINST them. With rapid technological advancement, businesses are increasingly questioning the value of hiring HUMANS entirely; after all, technology may malfunction, but it cannot sue.

Merrily Archer, Esq., M.S.W.

April 14, 2016

Numbers EEOC Hopes You Won’t Notice


On February 11, 2016, EEOC released composite charge data from fiscal year 2015, which ended on September 30, 2015.  And not surprisingly, the EEOC emphasized certain data points while completely burying other important (even helpful) facts about its charge intake.

As a matter of math, EEOC prosecutes less than .1% of the charges filed.  Accordingly, and contrary to EEOC propaganda, the likelihood that any employer will deal intimately with the EEOC (i.e., beyond filing a Position Statement or participating in an EEOC mediation) is exceedingly low.  The overwhelming bulk of Equal Employment Opportunity (EEO) enforcement, therefore, comes in the form of PRIVATE litigation, filed pursuant to the Civil Rights Act of 1991 (CRA 1991).  Much more on that topic later.

Before any employee can initiate a private lawsuit in state or federal court, he must first file a Charge of Discrimination within 300 days with the EEOC or its state counterparts (FEPA’s in EEOC-speak). Failure to file charge, or otherwise exhaust “administrative remedies,” is fatal to discrimination litigation.  Because of this critical jurisdictional prerequisite to litigation, the EEOC’s charge intake data provides the best barometer of how employers are experiencing our EEO enforcement scheme (i.e., private litigation) on the ground.  Thus, a more holistic, panoramic view of the EEOC’s charge intake data (e.g., what data EEOC highlights and what data it obscures) provides valuable insights into (a) how the EEOC thinks; and (b) the state of EEO enforcement, particularly private litigation, in the American workplace.

Data EEOC Highlights


In its press release, the EEOC underscored the “metric that matters” at the EEOC–i.e., M-O-N-E-Y.  The EEOC touted the number of charges “resolved” (92,641) and the amount of employer dollars collected on behalf of “victims” ($525 million) of discrimination. Chair Jenny Yang, a plaintiff-side lawyer from California, claimed that

we demonstrated our strong commitment to working with employers to voluntarily resolve charges of discrimination by achieving the highest mediation and conciliation success rates in our history.

Not even close.  EEOC “resolutions” and employer settlement payouts make terrible proxies for progress toward equal employment opportunity, especially given the suffocating cost of defense on employers.  Allegations of discrimination, harassment, and retaliation are extremely difficult to prove, but extremely easy to allege.  And the allegation itself causes employers to incur upwards of $70,000 in non-recoverable legal bills to prove they did nothing wrong in the first place.

The EEOC not only appreciates employers’ cost-of-defense conundrum, its personnel actively exploit it.  From 2013 – 2014, EEO Legal Solutions conducted a national survey of employers’ experience in the EEOC’s mediation program.  Nearly 800 mediation participants representing Respondents (e.g., HR practitioners, employment lawyers, and EPL adjusters) took the survey, the first of its kind to peer beneath the surface of carefully-guarded, selectively-invoked confidentiality and “government deliberative process” privilege.

The results show that the EEOC has now re-calibrated its entire enforcement machinery to churn out quick cost-of-defense settlements.  Over 82% reported that EEOC mediators hammered cost-of-defense when recommending settlement, regardless of charge merit. Worse, participants reported that EEOC mediators then disingenuously brandished EEOC enforcement weaponry to bully them into settlement, threatening “reasonable cause” determinations (73%), systemic investigations (61%) and even EEOC prosecution (70%) if not “resolved” in mediation. Learn more HERE.  Given the amount of bullying employers experience in the EEOC’s ostensibly neutral mediation program, we urged our courts to exercise some oversight of the EEOC’s conciliation process, an EEOC precondition to prosecution, HERE.   At the EEOC, employers walk into a cost-of-defense conversation (i.e., “it will cost $70K to prove you did nothing wrong, but you can pay $35K to just make the charge go away for good“), even when the allegations themselves are provably unfounded.

Thus, the EEOC’s emphasis on employer “resolutions” and monetary payouts for “victims” of retaliation, harassment, and discrimination raises questions about whether, as a law enforcement agency, it can (or even tries to) distinguish between ALLEGATIONS and ACTUALITY.  Under EEOC logic, the fact that an employer paid some money transforms Accusers into “Victims” that the EEOC has “helped” by securing monetary settlements. And although this enforcement model works wonderfully well for trial lawyers who take 33% to 40% of these “resolutions,” EEOC and Bureau of Labor Statistics (BLS) data show that this scheme has failed to level the playing field in HIRING and PROMOTION for African-Americans, Latinos, and women.  Learn more HERE.

Data EEOC Downplays

The EEOC’s press release neglects to mention other numbers that depict more accurately the EEO enforcement landscape.

  • Reasonable Cause/No Reasonable Cause Determinations

According to EEOC data, the EEOC issued Determinations of Reasonable Cause–i.e., the formal agency finding of a violation and a condition precedent to prosecution–in 3.5% of charges and “No Reasonable Cause” in 65.2% of charges, as depicted below.


This low rate of finding “Reasonable Cause” to believe discrimination, harassment, or retaliation has occurred casts considerable doubt upon the alleged 92,641 “Victims” for whom EEOC obtained $525 million in “relief.”  Certainly, a Reasonable Cause determination rate of 3.5%–juxtaposed against steady No Reasonable Cause determination rates of 66% or 2/3 of all charges–belies the EEOC’s campaign to characterize all Accusers as Victims and all employers as perpetrators of discrimination, harassment, and of course, retaliation. On the contrary, the EEOC’s own data demonstrates that workplace discrimination occurs far more rarely than alleged. Employers, however, pay anyway.

  • Employment Practices Yielding EEOC Charges

Reasonable employers may inquire, “What kinds of employer practices generate the most EEOC charges?”  This information, after all, could help employers address specific problems and risks associated with EEOC charges.  But in its press release, EEOC Chair Jenny Yang simply stated

Over the past year, EEOC removed barriers to hire and obtained relief for thousands of people facing retaliation, unfair pay, harassment, and other forms of discrimination.

This statement is both grammatically and factually problematic.  Although the EEOC touts its National Enforcement Plan (NEP), its ad hoc task forces, and its interpretive enforcement guidance, these efforts have little impact on employers compared to the steady swell of private litigation. Indeed, in the real world of EEO enforcement (i.e., private litigation), very few charges involve HIRING, PROMOTION, and UNFAIR PAY. Post-CRA 1991, the overwhelming majority of workplace EEO disputes (76%) deal with TERMINATION decisions.

* “Discharge” includes “constructive discharge” allegations, in which an employee voluntarily quits but blames the employer for creating an intolerable work environment.

Why this overwhelming emphasis on employer TERMINATION decisions? For trial lawyers, TERMINATION cases yield higher settlement payouts than HIRING and PROMOTION cases. Unlike a hiring context with limited employer/accuser contact, termination cases enable trial lawyers to pile on numerous perceived violations throughout the employment relationship (e.g., discrimination, harassment, retaliation), including weird ones referenced in the EEOC’s “Statutes by Issue” data—e.g., “Filing EEO Forms,” “Intimidation”, “Seniority” and “Severance Pay Denied,” HERE.  Further, terminated employees have a tougher time find comparable employment, especially when, due to incremental cost of living adjustments, their wages exceed the market value of their labor; thus, long periods of unemployment and income differentials rack up big damages. By contrast, in HIRING cases, employees find comparable employment far more quickly, thereby reducing damages and rendering their cause far less attractive to trial lawyers.

Since CRA 1991, trial lawyers’ pecuniary interests have distorted our national dialog about equal employment opportunity, shifting employers’ focus AWAY from ensuring equal opportunity in HIRING and PROMOTION TOWARD ensuring that their TERMINATION decisions are legally defensible.  On the ground, termination decisions pose Code Red Risk, whereas from an enforcement and compliance perspective, other kinds of employment decisions (even discriminatory HIRING and PROMOTION ones) pose little risk of detection or prosecution. Likewise, employers also find this enforcement focus on TERMINATIONS particularly frustrating, especially in light of a recent Gallup report that validated many employers’ observations: nearly 2/3 of American workers are “disengaged,” a third of which are “actively disengaged” (i.e., “checked out,” unproductive, aggressively disloyal).  HERE.  For employers, termination decisions involve an employee’s squandering of an opportunity that they actually provided.

And the results of CRA 1991’s scheme speak volumes.  Discrimination in HIRING and PROMOTION against African-Americans, Latinos, and women remains rampant, based on both EEO-1 and BLS data. In 2015, the EEOC published its “50th Anniversary Report on the American Workplace,” citing results that largely mirrored the findings of Dan Kuang, PhD of Biddle Consulting Group issued more than two years earlier:

  • Advancement: Women, African-Americans and Latinos have made little progress toward achieving top-paying Official/Manager and Professional jobs, whereas Asian Americans show significant gains in reaching both Professional and Official/Manager ranks; and,
  • Job Segregation: African-Americans and Latinos remain concentrated in lower paying Service, Technician, and Operative jobs, whereas Asian Americans and Whites still predominate in Official/Manager and Professional job classifications.

These findings line up squarely with BLS data: quarterly unemployment reports consistently show that unemployment hits the African-American and Latino communities the hardest, that African-Americans and Latinos continue to make less than their White and Asian American counterparts, that women continue to exit the workforce at a rate disproportionate to male peers, etc., etc.  More HERE.

Looking Back, Looking Ahead: The March from Here

These statistical realities should cause alarm.  First, the slow pace of progress toward achieving equal employment opportunity in top jobs, toward ending rampant “job segregation,” and toward dismantling the glass ceiling in the Official/Manager ranks should make civil rights advocates question the efficacy of our EEO enforcement model–i.e., 99% private litigation and 1% anemic EEOC “enforcement.” Indeed, both EEOC and BLS data show that although employers are spending record amounts of money on EEO enforcement, Title VII’s underlying mission of removing barriers in HIRING and PROMOTION remains more elusive than ever.  Unfortunately, these advocates have apparently forgotten what sparked the great March over 50 years ago and the passage of Title VII: to level the economic playing field for the generations marching behind us. Instead, CRA 1991 perfected a wealth redistribution loop between employers, insurance carriers, and lawyers where nothing much changes except money changing hands.  And trial lawyers like EEOC Chair Jenny Yang and her ilk at the National Employment Lawyers Association (NELA) like it that way: M-O-N-E-Y.

Unless and until we change our national dialog about equal employment opportunity and how to achieve it in HIRING and PROMOTION, African-Americans, Latinos, and women will face even greater future challenges breaking through glass ceilings and historic job segregation barriers.  The kinds of jobs in which African-Americans, Latinos, and women are currently concentrated are MOST vulnerable to technological replacement–e.g., Service, Technician, and Operative jobs, in EEO-1 speak.  According to Professors Andrew McAfee and Erik Brynjolfsson of MIT’s Sloan School of Management in their work, How Technology is Destroying Jobs and The Second Machine Age, advances in technology account for sluggish job growth over the past 10 to 15 years. These MIT academics also forecast dismal job prospects, as employers increasingly adopt new technologies to reduce headcount, “not only in manufacturing, clerical, and retail work but [also] in professions such as law, financial services, education, and medicine.” In other words, because of technology, the pool of available jobs (i.e., the Opportunity Pie) is shrinking, which means we must remain even more vigilant to ensure that impact and economic opportunity are evenly distributed.

For employers, however, the choice between TECHNOLOGY and HUMANS is pretty easy: after all, technology may FAIL, but it certainly cannot SUE.  Few employers that I’ve represented over a 16-year litigation defense career ever complained about governmental regulation, even in heavily regulated industries (e.g., trucking, health care, pharmaceutical manufacturing).  By contrast, many employers have likened private EEO litigation (and the EEOC’s ADR/mediation program) to “extortion”–i.e., leveraging the cost of disproving allegations, even ridiculous ones, for pecuniary gain.  For businesses, technology  (just like off-shoring) provides the workaround–namely, a foreseeable market response to the high cost and legal risk of hiring humans.  Ultimately, time and longitudinal data will continue to show CRA 1991’s litigation-based model (ostensibly designed to help “victims” of discrimination) only further divided HAVE’s and HAVE NOT’s along color and gender lines.

Merrily S. Archer, Esq., M.S.W.

February 24, 2016

Defensive Management: Getting the Message to Managers (Where It Matters Most)


As a longtime regular on the HR speaker’s circuit, I have often had this nagging suspicion that I’m just preaching to the choir about EEO compliance.  Of course, today’s HR professionals need to know about the latest scary lawsuits, legislation, regulation, and EEOC enforcement guidance.  But increasingly over these past 15 years, as I would look out into audiences of HR professionals, I would catch myself thinking,

These HR folks get it.  Better yet, they’re striving to fulfill the promise of EEO on the ground, where it matters most.  You’re preaching to the choir!  Is this really who the EEOC is “fighting?”

When it comes to EEO, HR professionals more closely resemble acolytes, rather than adversaries.  Even so, discrimination litigation virtually always plays out like old spaghetti Westerns or silent movies, replete with hapless victims (played by the Employee), evil villains (played by Managers), and inept or corrupt sheriffs who refused to enforce “the law” (played by HR professionals).


In this victim/villain view of workplace discrimination disputes, regular line managers play leading roles in creating liability for the overall organization and/or for themselves individually, often carrying out their villainous deeds beyond the reach or with the cooperation of the sheriff (i.e., HR).  After all, in organizations with centralized HR and decentralized operations, HR simply cannot police every potentially problematic personnel interaction or monitor every manager.  In most discrimination lawsuits, the “bad stuff” of EEOC’s charges and employee lawsuits really does happen BEFORE the sheriff (i.e., HR) can restore law and order.

And so, with all this preaching-to-the-choir, I began to wonder whether (and how) the EEO compliance message reached these potential villains in the workplace trenches.  When handing managers the keys to the executive restrooms, do we tell them that their acts and omissions vis-à-vis subordinates could result in corporate and individual liability? Do we explain HR’s essential risk management role—namely, to spare managers the dehumanizing, expensive, and soul-crushing experience of playing “the villain” in employment litigation?  Do we help them spot employee issues that require automatic escalation to HR? After all, line managers are HR’s “eyes” and “ears.”  Have we co-opted line managers into the overall compliance process, actively enlisting their support to reduce organizational risk?  Have we explained HR’s and in-house counsel’s obsession with documentation and processes in an accessible way that makes sense?  Have we made “the law” simple enough to follow during the press of everyday business?

When delivering “Defensive Management” to HR professionals and in-house employment counsel, their sheepish grins actually answer those questions.  Most organizations report a disconnection between in-house counsel, HR and managers, as though each were operating in silos without a shared sense of endgame.  This disconnect may also help explain why, despite record workplace regulation and employee litigation, the EEOC continues to take in nearly 100,000 new charges each year while progress toward leveling racial and gender disparities in unemployment, advancement, and wealth distribution has stalled. Learn more here.  Our litigation-based methods to reduce discrimination charges and promote equal opportunity have not proven particularly effective.  And one potential “fix,” among many others, will involve renewed focus on fully educating managers about organizational commitment to EEO and their important role in advancing it, as well as in reducing the risk of EEO disputes.

EEOC Conciliation Bullying Necessitates Judicial Oversight

Conciliation in the Bewitching Season

shutterstock_47808574 (800x532)

September ushers in the most bewitching season at the EEOC, when EEOC Field personnel scurry to settle long-dormant charges, issue cause determinations, and breeze through the “conciliation” process to file lawsuits before the federal fiscal year ends on September 30.  See Figure 1.  For EEOC Field personnel, equal employment opportunity (EEO) enforcement is a “numbers game,” and September marks a final push to satisfy predetermined “productivity” quotas—e.g., dollars collected from employers, number of cause determinations, inventory reduction, and prosecutions filed.  Fellow EEOC watchdogs have long noted, and bemoaned, the EEOC’s “red zone rush.”  This annual administrative enforcement blitz deeply impacts employers, but takes place under a carefully guarded iron veil of “confidentiality” and “government deliberative process” privilege.


Figure 1, EEOC Prosecutions Filed in 2013, by month.  Compiled/created by Seyfarth Shaw.

Fortunately, the EEOC’s conciliation conduct has recently come under fire just in time for this year’s September “red zone rush.”  In May, 2014, a congressional appropriations committee chastised the EEOC for pursuing litigation absent good faith conciliation efforts, and demanded a report by August 9, 2014 that the EEOC has not publicly disclosed.  Likewise, the U.S. Supreme Court (SCOTUS) granted certiorari in EEOC v. Mach Mining on the questions whether, and to what extent, courts can enforce the EEOC’s statutory duty to engage in good faith conciliation efforts before initiating litigation.  On September 4, 2014, Mach Mining’s attorneys filed their opening brief, affording us a rare glimpse under the EEOC’s iron curtain of confidentiality and deliberative process privilege.  The conciliation process described in Mach Mining’s brief mirrors the experiences of defense attorneys who regularly battle the EEOC, and underscores the concerns we raised in Under the Surface of EEOC Enforcement:  instead of a meaningful opportunity to discuss compliance issues and “make whole” relief, the EEOC’s conciliation process has degenerated into a perfunctory street mugging in which EEOC field personnel bluff, bluster and bully to maximize cost-of-defense payouts . . . especially at this bewitching and spooky time of year.  After all, for the past several years, MONEY has become the metric-that-matters at the EEOC—to wit, the measurement the EEOC characterizes as evidence of “enforcing the law more effectively.

The Mach Mining Conciliation Experience: Bluffing and Bullying


In early 2008, Mach Mining became the respondent of a single EEOC charge alleging that it failed to hire the Charging Party because of her gender.  Thereafter, the EEOC issued a Determination that Mach Mining had discriminated against the Charging Party, and a class of female applicants, because of their gender, in violation of Title VII; otherwise, the determination contained no information about the factual basis allegedly supporting this finding, nor any information whatsoever about the size, character, and temporal scope of this class of female applicants.  The EEOC then made a verbal conciliation demand . . . And then, the EEOC lowered its iron curtain of confidentiality around the conciliation process, even threatening to seek sanctions against defense counsel personally if they discussed the conciliation process in the public record.  p. 5, fn 3, Mach Mining SCOTUS Brief, here.  Just a few days after issuing a conciliation failure notice, the EEOC initiated a civil prosecution and a press release with inflammatory quotes from EEOC attorneys, “Mach Mining needs to realize that this is 2011, not 1911.”

In my Biglaw gigs, I naturally became the repository of “EEOC Parade of Horrors” stories from colleagues across the country, likely because of my own EEOC service (1997-2000), experience, and practice expertise.  Thus, experience, observation, and war-story saturation allow me to fill in some blanks about the Mach Mining conciliation:

Mach Mining’s attorneys likely requested the EEOC to furnish some information about the character, size, and temporal scope of the putative class, the identity of class members, and the basis of the determination.  And of course, these are absolutely reasonable questions.  On whose behalf, or on behalf of how many class members, is the EEOC seeking relief?  What if the employer has defenses available regarding specifically identified class members?  Did the EEOC rely on the employee’s attorney to “estimate” damages or did the EEOC conduct any independent investigation into the alleged damages supporting its demand?  If the EEOC is really concerned about eliminating discriminatory practices, why will not the investigators and Trial Attorneys actually discuss in conciliation the specific practices that were, allegedly, discriminatory?

Still even bigger questions remain: what if EEOC personnel are bluffing about the actual scope of the EEOC’s investigation and putative class to maximize the conciliation payout?  After all, as we’ve previously and publicly pointed out, what the EEOC counts as an “investigation” and as evidence to support a reasonable cause determination is often alarmingly thin.   And, as our EEOC mediation survey revealed, EEOC personnel routinely brandish EEOC enforcement weaponry (e.g., cause determinations, systemic investigations, prosecutions) to boost cost-of-defense payouts, even though they certainly know how unlikely those enforcement outcomes are under the EEOC’s own Priority Charge Handling Procedures.  Learn more here.  Further, the EEOC’s policy of suppressing losses, sanctions, censures, and other unflattering (but real) information about its enforcement programs has only further squandered employers’ trust.

After Mach Mining’s attorneys likely posed these reasonable questions, I’m betting that the EEOC steadfastly refused to provide any information, maybe even blaming the EEOC’s confidentiality provisions for its intractability.  At that point, the conciliation process probably broke down completely, resulting in the prosecution and press release filed just days later.  We have previously challenged the EEOC’s policy of filing brand-bashing, snide press releases based on allegations in the Complaint as amounting to punishment before proof, given the very real possibility that the EEOC cannot adduce evidence in litigation to support those allegations, here.  Mach Mining surely suffered brand damage, still while literally guessing about the basis of the EEOC’s determination and the number of women allegedly affected by its allegedly unlawful practice.

Congress surely envisioned more substance in the EEOC’s conciliation process.  After all, the EEOC’s mandate requires it “eliminate unlawful employment practices through informal efforts of conference, conciliation and persuasion.”  42 U.S.C. §2000e-5(a).  Now however, litigation (or more pointedly, the THREAT of litigation) has become the EEOC’s most powerful weapon to ratchet up the one measurement that it counts as successful performance of its mandate: employer settlement payouts.  Threats of litigation begin in the mediation process, loom over charge “processing,” and take center stage in conciliation.  During this bewitching time of year, EEOC personnel deliberately truncate conciliation with “take-it-or-leave-it” and/or unreasonable demands, hoping conciliation will fail so that they can file (and get credit for) the lawsuit by the end of the fiscal year.  In fact, the EEOC credits the “close collaboration” between its Enforcement and Legal units for the record amount of employer settlement monies “obtained” in the conciliation process:

Of particular note was the increased number of charges resolved through successful conciliations, with 1,591 in FY 2012 compared with 1,351 in FY 2011, an 18 percent increase. The increase in conciliations reflects an emphasis on even closer consultation between the Commission’s investigators and attorneys.

FY2012 EEOC PAR, “Enforcing the Law More Effectively,” here. Indeed, last year, conciliation brought in far more employer booty than litigation for one simple reason: the threat of EEOC litigation generates more dollars than actual litigation in court, where the EEOC must actually PROVE its allegations and over-broad legal theories. See Figure 2.

Figure 2

EEOC Collections FY2013

Thus, especially during this bewitching time of year, EEOC conciliations resemble Mafioso shakedowns (i.e., “accede unquestioningly to our demands or we’ll sue AND punish you with bad press”) more than any meaningful effort to secure voluntary compliance and make whole relief.  Instead of using conciliation to FIX whatever problem the EEOC allegedly detected, the EEOC enflames the FIGHT through litigation.  And, unfortunately for stakeholders and employers alike, a recently released study by law professors at University of Michigan and Washington University in St. Louis raises seriously doubts about the efficacy of the EEOC’s litigation program toward eliminating discrimination and promoting EEO.

Conciliations: Confidentiality of Convenience

When Mach Mining challenged the EEOC’s compliance with its statutory requirement to engage in good faith conciliation efforts, the EEOC simply responded, “conciliation is not subject to judicial review.”  The EEOC also relied heavily on the confidentiality provisions built into Title VII, which prohibit disclosure of any charge information unless and until a [public] lawsuit is filed in court.  Indeed, Sections 706(b) and 709(e) of Title VII not only prohibit disclosure of any information about a charge unless/until a lawsuit is filed, these provisions also impose CRIMINAL PENALTIES on “any person” who discloses EEOC charge information; likewise, the EEOC’s own regulations echo this strict confidentiality requirement.  29 C.F.R. §1601.22, 29 C.F.R. §1601.26; see also 42 U.S.C. §§2000e-5(a), 8(e).  Presumably, EEOC Trial Attorneys invoked these strict confidentiality standards when threatening Mach Mining’s attorneys with sanctions if they publicly disclosed what actually happened in their EEOC conciliation.

Paradoxically, however, the EEOC issues press releases announcing “successful” conciliations.  During the pendency of the Mach Mining dispute, just two weeks earlier, the EEOC issued press release announcing the CONCILIATION of a single sexual harassment charge against a small employer, with this headline, “Sal’s Mexican Restaurant Settles EEOC Sexual Harassment Charge Involving a Teenager.”  Sal’s denied all liability, but reportedly agreed to pay $15K to resolve these allegations in an ostensibly confidential conciliation.  To seasoned defense attorneys, $15K represents a true nuisance settlement.  Nevertheless, according to the EEOC’s press release, the EEOC had determined that a manager subjected a teenager to sexual propositions, advances, and groping, allegations that would naturally have an impact on Sal’s brand, goodwill, reputation and by extension, business.

No doubt, the EEOC’s position regarding the confidentiality of the conciliation process is difficult to reconcile.  The EEOC can apparently ignore Title VII’s confidentiality provisions and its own regulations to publicize charge allegations and the substance of the conciliation agreement involving a small employer like Sal’s Mexican Restaurant (i.e., “brand bashing”).  When called upon to explain the basis of its determination and astronomical conciliation demands, however, the EEOC takes cover behind these same confidentiality provisions.  This obvious contradiction highlights just how the Obama EEOC has “interpretively” and selectively enforced its own statutes and regulations, acting more like schoolyard bullies than a neutral law enforcement agency worthy of employers’ trust.

The Stakes for the EEOC and Employers

Whenever employers attempt to peek behind the EEOC’s iron curtain of confidentiality and government deliberative process privilege, the EEOC becomes predictably prickly.  But why?  Perhaps the EEOC does not want employers and stakeholders to see what lies behind the curtain.

In EEOC v. Picture People, for example, we attempted to ascertain what evidence (if any) the EEOC possessed to determine that a profoundly deaf/mute woman was “qualified” to perform a retail sales position requiring “strong verbal communication skills.”  The EEOC strenuously resisted our 30(b)(6) deposition notice, making nearly identical arguments to those in Mach Mining: (1) EEOC investigations are not subject to judicial review; and (2) statutory confidentiality prohibits disclosure.  Ultimately, the court rewarded our tenacity by requiring the EEOC first to answer “contention interrogatories” regarding evidence in its possession that the Charging Party was “qualified” when the EEOC issued its determination, filed its Complaint, and disseminated its brand-bashing press release.  The EEOC produced this document, which should embarrass the EEOC and alarm employers.  But the point is, once we peeked behind the EEOC’s iron veil, we understood why the EEOC so strenuously resisted disclosure:  it was attempting to conceal a shoddy investigation, a highly questionable determination, and a blatant disregard for the employer prerogatives deliberately built into the Americans with Disabilities Act (ADA).

Similar considerations could explain the EEOC’s position in Mach Mining.  EEOC Trial Attorneys, after all, have come out swinging.  In Mach Mining, EEOC Trial Attorneys threatened defense counsel with sanctions if he disclosed what actually happened in conciliation, supra.  Another even claimed that Mach Mining’s challenge to its statutory conciliation requirement is just an excuse for defense attorneys to rack up billable hours, here.   Of course, this allegation makes little sense: if Mach Mining’s defense attorneys were fundamentally focused on racking up billable hours, they would not strive to resolve the allegations in conciliation; obviously, from a “billable-hours perspective,” lengthy EEOC prosecutions, even frivolous ones, can cost employers several hundred thousands of dollars in non-recoverable defense fees.

For the EEOC, the Mach Mining matter is about avoiding judicial and legislative scrutiny–i.e., “it’s discrimination if we say so.” For employers, however, Mach Mining is about leaving open an avenue of redress (i.e., the courts) to challenge abusive administrative enforcement of the law. After all, more often than not, disputes about the adequacy of the EEOC’s conciliation efforts can be efficiently and effectively resolved at the pleading phase of litigation under Rule 12 of the Federal Rules of Civil Procedure.  Upon a 12(b) Motion to Dismiss for, inter alia, lack of subject matter jurisdiction arising out of the EEOC’s failure to fulfill its administrative conditions precedent, a federal judge could simply stay the proceedings and REMAND for further (and perhaps supervised) conciliation efforts.  If the EEOC is forced to conciliate in good faith (e.g., by substantiating its monetary demands, providing pertinent risk assessment information, participating in more than one round of negotiations), most employers will elect to settle, if for no other reason than to avoid the crushing expense of an EEOC prosecution.  Under most circumstances, therefore, challenges to the EEOC’s fulfillment of its conditions precedent will ultimately spare limited judicial resources, while furthering the EEOC’s mandate to enforce Title VII through informal methods of conciliation, conference and persuasion.

As employers and small business owners, any governmental effort to resist transparency and scrutiny cannot go unchallenged, even if we agree with the EEOC’s underlying mission.  In fact, the EEOC’s strenuous efforts to resist judicial review of its compliance with Title VII’s minimal procedural safeguards ought to INVITE SCRUTINY.  As a federal law enforcement agency entrusted with investigative powers, public war-chests, and prosecutorial discretion, the EEOC owes concomitant duties of fairness, balance, and regard for the concerns of employers.  Under this iron veil of confidentiality and government deliberative process privilege lurk some extremely disturbing and unbalanced civil enforcement practices.  We can only hope that SCOTUS’ Mach Mining decision will stand for governmental transparency and accountability, and leave open an avenue to challenge EEOC bullying, especially at this most bewitching time of year.

Merrily S. Archer, Esq., M.S.W., September 10, 2014


Recording Available: Tech Solutions to EEOC Pregnancy Accommodation Problems

When: 09-24-2014 | 12:00 p.m. (Mountain)


In July, 2014, the EEOC issued new enforcement guidance on “pregnancy and related discrimination,” which creates additional accommodation obligations for employers.  Perhaps for that reason, numerous Biglaw outfits have publicly challenged the EEOC’s guidance as, among others, exceeding its statutory mandate, lacking statutory basis and contradicting the majority of judicial circuits to consider these issues.  Unfortunately, HR practitioners are stuck in the middle, struggling to reconcile and administer competing legal views in everyday leave, hiring, termination, and reasonable accommodation decisions.

This webinar will candidly address the EEOC’s new enforcement guidance, pointing out where the EEOC’s “interpretation” oversteps actual judicial precedent and agency authority.  More importantly, however, we will also offer practical solutions about how to ensure accountability and enforce performance standards while accommodating pregnancy and related conditions in the workplace.   With a legally conservative, creative, and technologically-based approach, the EEOC’s new guidance on pregnancy discrimination—extrajudicial as it may be—need not undermine operations and performance objectives.

Listen in here!

Register for this Webinar

The EEOC’s Litigation Program: Bureaucracy, NOT Real Reform


While Congress and the Supreme Court mull over the adequacy of the EEOC’s pre-litigation conciliation efforts, a more fundamental question remains: has the EEOC’s litigation program accomplished any meaningful reform of the workplace?  A recently released longitudinal study by law professors at Washington University in St. Louis and University of Michigan raises serious doubts.

The Tiger Remains Toothless

In 1972, Congress modified Title VII of the Civil Rights Act of 1964 (“Title VII”) to give the U.S. Equal Employment Opportunity Commission (“EEOC”) the authority to initiate civil prosecutions against private employers under its jurisdiction. Without prosecutorial authority, civil rights advocates then argued, Title VII and the EEOC were nothing more than “toothless tigers,” unable to effectuate real reform of the American workplace.  According to the EEOC, the 1972 Act gave “teeth” to the “tiger,” ushering in a “new era” of vigorous law enforcement that saw “legal protections extended to millions of persons, and the elimination of many discriminatory practices.”

Pretty lofty representations . . . but what’s real?

On July 2, 2014, Title VII just passed its 50-year mile marker in the March toward equal employment opportunity (“EEO”).  Likewise, for the past 42 years, the EEOC has wielded prosecutorial discretion.  And, when we measure what matters, the results speak for themselves.  Based on several reliable indicators of our progress (e.g., unemployment, advancement, job segregation, household income, international leadership, Gallup polling, EEOC charging data), the March has stalled for most of Title VII’s intended beneficiaries, particularly women, Latinos and African-Americans, more here.  Simply put, our methods for eliminating “many discriminatory practices,” extending legal protections to millions, and advancing EEO have not worked very well, and we strongly advocate for fundamental readjustments in how we think about and work towards these important goals.  Check out Eight (and Counting!) Sparks to Jumpstart the Stalled March to Equal Employment Opportunity.   In fact, since the 1972 Act and especially since the Civil Rights Act of 1991 (“CRA 1991”), a tremendous amount of money has changed hands litigating EEO disputes, but otherwise, very little else has changed to level the playing field for women, Latinos, and African-Americans.  .

In Search of a Public Interest Litigation Model to Explain EEOC Prosecutions

Recently, the EEOC Litigation Project—a project undertaken by two well-respected law professors at Washington University in St. Louis School of Law and University of Michigan School of Law—published the results of its longitudinal look at the EEOC’s prosecutorial behavior.  Pauline Kim (Washington University) and Margo Schlanger (Michigan) analyzed over 2,300 EEOC prosecutions from 1997 – 2006, a period that captures my own service as an EEOC Trial Attorney in Denver, 1997-2000.  Their analysis targeted EEOC prosecutions considered “class action” or “systemic,” explaining that such matters epitomize “public interest litigation”—i.e., litigation aimed at structural reform instead of monetary gain.  Further, as Kim and Schlanger noted, EEOC immunity from Rule 23’s class action certification requirements necessarily carves out special role for the EEOC in pursuing class-based and systemic litigation, a role they expect to increase in the aftermath of Wal-Mart v. Dukes.

In their review, Kim and Schlanger looked at the EEOC’s prosecutorial behavior through the lens of three accepted theoretical models of “public interest litigation” (e.g., gladiator, collaborative, and managerialist), attempting to discern some trends and lessons.

Gladiator” public interest litigation, they explained, resembles intense, hard-fought and high stakes fights for social justice that end in Consent Decrees to ensure remediation and future compliance.  Under this theoretical model, prosecutors—whether government, advocacy groups, private attorneys—attempt to vindicate not only the rights of individuals, but also effectuate workplace reform for the benefit of incumbent employees, future applicants and “society as a whole.”  After pouring over 2,300 EEOC prosecutions, however, these law professors found that the “gladiator model” simply did not fit:  during this period, the EEOC pursued comparatively “low stakes” cases that ended in negotiated settlements without a single substantive motion filed.  Likewise, many of these matters concluded with Consent Decrees of short duration that simply contained the EEOC’s tired trinity of “injunctive relief”—e.g., training, posting and reporting—instead of substantive rehabilitative requirements.

Collaboration” public interest litigation theories have garnered greater attention of the past decade, Kim and Schlanger note, particularly as a way to address “second generation discrimination” and institutional barriers to EEO.   Instead of the rigid “fixed rule solutions” characteristic of “gladiator” litigation, collaborative public interest litigation seeks structural reform through experimental remedies and on-going, fluid collaboration among stakeholders. The collaboration model also contemplates Consent Decrees, and significant post-prosecution engagement to determine whether experimental interventions have worked.

This model, however, also did not explain the EEOC’s litigation behavior. Instead of flexible, collaborative problem-solving toward development of customized, experimental solutions, these law professors found that the EEOC’s “injunctive relief” in Consent Decrees consisted largely of cookie-cutter, one-size-fits-all “best practices” that were already implemented in the workplace—i.e., that tired trinity of training, posting, and reporting.  Further, although the EEOC has capacity to monitor compliance with Consent Decrees, real monitoring, follow-up and evaluation rarely occurred.  As their interviews of EEOC Trial Attorneys revealed, monitoring compliance with Consent Decrees was “not a priority for the agency.”

Maybe, therefore, a “managerialist” theory of public interest litigation explains the EEOC’s prosecutorial behavior, a theory that

highlights organizations’ voluntary responses to the legal prohibition against discrimination by adopting a standard set of bureaucratic responses, such as EEO policies, training programs, and grievance procedures.

Managerialist organizational responses emerged to mitigate the risk/costs of EEO disputes, which later institutionalized standard human resources practices as actual compliance measures (e.g., employee handbooks, management training, internal grievance procedures).  For example, in response to the risk of sexual harassment disputes, many organizations adopted internal grievance procedures, a practice that the U.S. Supreme Court codified in its 1998 Faragher v. City of Boca Raton decision.  As Kim and Schlanger aptly point out, many scholars and practitioners (myself included) remain extremely skeptical about the efficacy of standard “managerialist” responses.  They are a “modern diversity toolkit . . .  window dressing that signals EEO compliance while doing little to promote equality or unbiased decision-making in the workplace.”

Through this “managerialist” lens, the EEOC’s litigation program comes into sharper focus.  The EEOC’s injunctive practices—practices theoretically designed to reform the workplace—simply reflect the “widespread adoption of routinized bureaucratic responses to the legal prohibition on employment discrimination.”  Managerialist responses amount to “going through the motions” to mitigate business risks and costs, without focusing on actually preventing discriminatory practices or championing equal opportunity.  And based on their longitudinal analysis, Kim and Schlanger concluded that the EEOC’s litigation program has played a role in ratifying managerialist responses, by imposing injunctive relief that merely duplicates the existing HR infrastructure.  In short, their study revealed that the EEOC’s litigation program emphasized “bureaucratic solutions” to enforcement challenges, without substantive efforts toward structural reform.

They concluded that the EEOC’s

structural reform efforts are best viewed not as intense battles seeking to transform the heart and soul of complex organizations, nor as equally intense and equally transformative partnerships, but as the quite routinized application of managerialist, bureaucratic responses to the legal prohibitions against discrimination.

Different Paths, Same Conclusion

The EEOC Litigation Project and resulting report derived from lengthy analysis of the EEOC’s actual work, not its words.  And remarkably, academic analysis and my personal observations and experiences converge at the same conclusion: the EEOC’s litigation program is not equipped to reform the workplace; on the contrary, the EEOC’s litigation program is simply an extension of an ineffectual bureaucratic process in which nothing changes except money changing hands.

I began my legal career as an EEOC Trial Attorney in Denver, after completing law school and a Master’s in Social Work on a civil rights fellowship at Washington University in St. Louis in 1997.   Armed with two advanced degrees, I enthusiastically joined the “fight” to combat ugly “isms” and “haters,” only to leave less than three years later in utter disgust.  In fact, I credit my EEOC experience for turning me into an EEO defense attorney, HR advocate and trainer, EEOC watchdog, and searcher for more effective ways to deliver on Title VII’s promises.  I have daughters, after all.

I became quickly acquainted with the EEOC’s litigation model and philosophy, which pervade still today:  the EEOC must sue to “change hearts and minds” about discrimination and EEO, an imagined “gladiator” stance based on an overly simplistic view of employees as “victims” and employers as “villains.” This victim/villain paradigm, however, bears no resemblance to the complex reality of discrimination disputes in the HR trenches.  Far more often than not, employers strive to do right by their employees.

At the EEOC, I learned that only things-that-can-be-counted count.  More importantly, I learned how important it was for the EEOC Field management to “make its numbers” every fiscal year. I observed a large complement of long-term, disengaged and entitled employees (management and union alike) who spent as much time pursuing their own grievances and charges against the EEOC as handling charges of discrimination.  I realized that those who most outwardly “fight” for employee rights can make the worst employers.  I discovered tremendous disconnect between “headquarters” policies and actual practices in the Field offices.  And, I saw complete misalignment between the EEOC’s mission and the manner in which Field personnel (EEOC mediators, investigators, and Trial Attorneys) carry out their work.

For example, given the paramount importance of “making numbers,” the fourth quarter (“Q4”) of the EEOC’s fiscal year (July-September) became a numbers-making frenzy.  During my EEOC service, the “metrics-that-mattered” for successful performance were (a) hitting a predetermined number of reasonable cause determinations and (b) reducing EEOC investigation inventory.  Thus, every Q4, EEOC careerists in every unit (e.g., ADR, Enforcement and Legal) re-doubled their efforts to resolve charges, to issue reasonable cause determinations, to reduce inventory by simply dismissing long-dormant charges, and to file new lawsuits and settle old ones.  And each year during my service, our district office made “its numbers,” even when such “success” resulted in ridiculous determinations and questionable prosecutions.   EEOC bureaucrats in the Field were not motivated to vindicate discrimination or promote meaningful equal employment opportunity; rather, they were simply trying to “make numbers.”  Bonuses depended on it.

I left the EEOC in 2000, convinced that there was nothing substantive or helpful about its administrative enforcement and litigation programs.  Another decade and a half defending employers against the EEOC convinced me that I was right.   And, as law professors Kim and Schlanger point out, the results of the EEOC’s litigation program speak volumes about its functionality: managerialist, bureaucratic, and ineffective.

Managerialism and the Money Metric

EEOC managerialism, dysfunction, and inefficacy, however, may be worse than Kim and Schlanger imagined.  They still give the EEOC the benefit of the doubt:

One might expect that the EEOC, as a publicly funded agency, is less likely to be driven by monetary concerns. In fact, the agency has self-consciously adopted a stance differentiating itself from private litigants, claiming to target systemic discrimination for reform and to assist complainants based on the merits, not the monetary value, of their claims.

On the contrary, according to the EEOC’s own annual Performance and Accountability Reports (“PAR’s”) in FY2012 and in FY2013, its historic collections from employers–$365.4m and $372.1m, respectively—show that it is “enforcing the law more effectively.” Although historic collections may signify effective wealth redistribution, settlement payouts make a poor proxy for progress toward EEO, especially compared to more reliable and logical indicators—e.g., unemployment, advancement, job segregation/mobility. Nevertheless, if the EEOC equates its efficacy with employer settlement payouts, what impact would this metric-that-matters have on the managerialist behavior of its Field personnel?

In reality, the EEOC’s focus on employer money as the measure its success has effectively re-calibrated the entire enforcement machine to spit out cost-of-defense settlements. In our EEOC Mediation Survey, we discovered that EEOC mediators routinely brandished EEOC’s litigation powers, while emphasizing cost-of-defense as the primary rationale for settlement.  See Figures 1 and 2, below.

Figure 1


Figure 2


Given the ostensibly neutral role of EEOC mediators, employers surely face even greater pressure to settle from EEOC Investigators and Trial Attorneys in the investigation and conciliation process.   In fact, in its 2012 PAR, the EEOC credited the close collaboration between EEOC Investigators and Trial Attorneys for the record amount of employer settlement monies “obtained” in the conciliation process:

Of particular note was the increased number of charges resolved through successful conciliations, with 1,591 in FY 2012 compared with 1,351 in FY 2011, an 18 percent increase. The increase in conciliations reflects an emphasis on even closer consultation between the Commission’s investigators and attorneys.

FY2012 EEOC PAR, “Enforcing the Law More Effectively,” here.  Thus, because of the exorbitant cost of defense, the THREAT of litigation apparently proves more effective than actual litigation at ratcheting up the one measure that EEOC counts as successful performance—i.e., employer settlement payouts.  Figure 3, EEOC Collections FY2013.

Figure 3

EEOC Collections FY2013

Ultimately, the EEOC’s efforts to maximize settlement payouts underscore complete misalignment of mission and methods, as well as the devastating impact of a truly disengaged workforce.  After all, most Field bureaucrats reason, “I can make my numbers and look like a star employee by bullying employers into cost-of-defense settlements with threats of reasonable cause determinations, systemic investigations, and EEOC prosecutions,” a classic bureaucratic stance that bears no reasonable relationship to the ostensible mission of the agency.  Not surprisingly, the EEOC’s “work” simply has not worked to reduce discrimination and level the playing field.

Going Further . . .

Since the 1972 Act, the EEOC has considered its prosecutorial discretion the cornerstone of its enforcement powers.  Until the EEOC Litigation Project, however, scholars and practitioners have not tested the EEOC’s representations about the value, efficacy, and reasonableness of its litigation (and enforcement) efforts.  Consequently, we have allowed the EEOC to use dollars to define its effectiveness.  When we measure what really matters (e.g., unemployment, advancement, job segregation/mobility), the results teach us that we cannot rely on the EEOC or employee-side bar to end discrimination or promote EEO.    Rather, with the 1972 Act and CRA 1991, it has now become apparent that we entrusted the March to lawyers and lawyers have used the only tool in their toolbelt (i.e., litigation) to address complex socioeconomic problems like inequitable opportunity and discrimination; after all, as Abraham Maslow observed, “He who is good with a hammer sees every problem as a nail.” Yet ultimately, the sparks that will jumpstart our March to EEO will come from a variety of important sources—e.g., HR, business, legal, social work, academe.  Learn more here.

The work of the EEOC Litigation Project, therefore, must continue.  By limiting its analysis to EEOC prosecutions from 1997 to 2006, the study ends right before the EEOC announced its shift from cohort to systemic enforcement on April 4, 2006.  This shift, however, did not become truly palpable until FY2009, when the EEOC began receiving cash transfusions in the early years of the Obama administration.  Since then, the EEOC’s systemic/class docket and investigative workload have grown, creating an even more expansive view of the EEOC’s prosecutorial behavior.  We urge other academics and practitioners to follow the lead of professors Kim and Schlanger toward the development of more meaningful measures of our progress and the efficacy of our methods to advance it.

Merrily S. Archer, Esq., M.S.W., August 11, 2014