Essential Skills for the EEOC Systemic Era: How to Use an Adverse Impact Calculator

When: 04-12-2013 | 12:00 p.m. (MDT)

For today’s in-house employment counsel and HR professionals, understanding how to detect “adverse impact” in the hiring and RIF selection process has become an ESSENTIAL SKILL. Since 2006, the EEOC has consistently reinforced its enforcement focus on neutral employment policies and practices that may adversely impact protected groups, such as hiring criteria, RFI decisions, and pre-employment tests. The EEOC’s Strategic Enforcement Plan for 2012-2016 also emphasizes these systemic, adverse impact cases, which often involve lengthy investigations and likely prosecution. For that reason, employers must audit their hiring and RIF decision-making criteria to determine whether they cause adverse impact based on race, gender, national origin, age, and even disability.  

EEO Legal Solutions is delighted to team up with Biddle Consulting Group (BCGi) for this innovative, hands-on webinar.  BCGi’s Patrick Nooren, PhD– a leading national authority on adverse impact testing, test validation, and compensation discrimination—will guide you through two demonstrations on how to use BCGi’s free online adverse impact calculator (www.adverseimpact.com) to detect adverse impact in hiring and the RIF selection process.    Together, we’ll demystify complicated concepts like “systemic discrimination” and “adverse impact,” and show you how easy it is to ensure that your hiring and RIF selection processes remain legally compliant in the systemic era. 

The HR Certification Institute has awarded one (1) General HRCI credit for this webinar. 

Because of prior overwhelming interest in this program, we will offer it at two different times on Friday, April 12, 2013.  Please register for one of the programs below:

12:00 p.m. (MDT) to 1:00 p.m. (MDT): https://attendee.gotowebinar.com/register/4416197597106846976  

 1:30 p.m. (MDT) to 2:30 p.m. (MDT):

https://www1.gotomeeting.com/register/975263929

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Colorado’s “Holy War” of Words

Workplace inclusiveness begins with employers, not lawyers.  I have dedicated my career to promoting inclusiveness, as a civil rights fellow earning a master’s degree in social work, as a Trial Attorney for the U.S. Equal Employment Opportunity Commission (EEOC) in Denver, as a litigator mostly representing employers since 2000, and as a longtime trainer, coach, and cheerleader for Colorado’s in-house employment counsel and human resources (HR) communities.  I have looked at workplace discrimination and inclusiveness from many perspectives now, and they inform my conviction that HB-1136 promises far more problems for Colorado employers than progress toward inclusiveness.

I testified against HB-1136 before the House Judiciary Committee on February 14, 2013, pointing out very specific, practical concerns about the impact of this legislation on small employers and on Colorado’s already overstretched administrative and judicial resources.  After several minutes of testimony, one Representative asked, paraphrased, “you’re here on behalf of employers, right?”  The Denver Business Journal accurately quoted most of my response, “No, Sir, I’m here as a former EEOC Trial Attorney and employer representative to lend balance to what has become an ideological jihad.”  

Qusair Mohamedbhai, an employee-side attorney who testified in favor of HB-1136 on behalf of the Colorado Trial Lawyers Association (CTLA), apparently heard a very different message and took offense.  In a Letter to the Editor of the Denver Business Journal, Mr. Mohamedbhai characterized my use of the term “jihad” as “offensive,” “hateful,” “anti-Islamic rhetoric.”   Instead of interpreting the use of “jihad” as an innocuous reflection of how Arabic words and loanwords have become part of our collective vocabulary (e.g., algebra, carat, magazine), he ascribed hateful, anti-Islamic sentiments to me, thereby successfully deflecting focus from the substantive policy problems I raised about HB-1136.  This dynamic mirrors most employers’ experiences with discrimination claims, where legitimate, non-discriminatory personnel decisions come under attack as masking some latent discriminatory animus due to, among others, race, religion, and national origin.

Ironically, just a few days after the Denver Business Journal published his letter denouncing my use of “jihad” as “offensive,” “hateful” and “anti-Islamic rhetoric,” Mr. Mohamedbhai popped up in the Denver press again, this time as the attorney for Franklin Sain.  In a statement released to the Denver Post, Mr. Mohamedbhai and his law partner defended Mr. Sain’s threatening emails to Colorado Representative Rhonda Fields as “free speech.”  Mr. Mohamedbhai’s statement also accused Representative Fields of complaining about threatening emails for political gain.  Read more here:

http://www.denverpost.com/breakingnews/ci_22672820/firm-suspends-man-accused-harassing-rhonda-fields?IADID=Search-www.denverpost.com-www.denverpost.com    

Mr. Sain’s emails to Representative Fields, an African-American woman, teem with the most vulgar racist and sexist epithets in our collective vocabulary . . . words that we can only utter as the “F-word” and the “C-word.”  Read them here, http://www.huffingtonpost.com/2013/02/28/franklin-sain-attorney-sa_n_2783075.html.   Those words reflect the nadir (an Arabic loanword) of decency; they are often a prelude to violence.  In fact, they are verbal violence. But according to Mr. Mohamedbhai, when directed at an accomplished African-American woman, we should stifle our outrage because his client was simply exercising his right to free speech and besides, Representative Fields was only taking offense for political gain. 

What drives these distinctions for Mr. Mohamedbhai, I wonder.  Could it be misogyny—i.e., men can hurl cruel epithets at women, but women cannot use terms like “jihad”?  Could Representative Fields’ status as a public figure make her an acceptable target of the N-word and the C-word, but using the term “jihad” in a public hearing is unacceptable, hateful anti-Islamic rhetoric? Could money account for these seemingly inconsistent positions?  After all, plaintiff-side trial lawyers like Mr. Mohamedbhai and the CTLA he represents stand to benefit most from the passage of HB-1136; likewise, Mr. Mohamendbhai stands to profit financially by minimizing Mr. Sain’s cruel epithets, even to the point of criticizing Representative Fields for taking offense and expressing concern for her own safety. 

As Mr. Mohamedbhai surely realizes, taking offense pays. In the employment context, taking offense enables employees to attribute terminations not to poor performance or conduct, but rather to their protected characteristics.  Taking offense enables Mr. Mohamedbhai and other trial lawyers to fashion discrimination allegations from difficult personnel decisions, and cook up claims that generate large contingent fees. Taking offense also enables Mr. Mohamedbhai to chalk up my substantive concerns about HB-1136 to “anti-Islamic” animus.  Where taking offense pays, reasonableness takes a back seat.

But reasonableness (not rhetoric)  is exactly what we need to address the inherently complex issues surrounding workplace inclusiveness.  The slow pace of progress toward inclusiveness should trouble conscientious legislators and inspire them to take action.  Instead of relying on remedies that have not proven terribly effective at eradicating discrimination or promoting inclusiveness, we must challenge ourselves and our legislators to develop innovative solutions toward ensuring that our workplaces are as inclusive as our communities.  The BUSINESS case for workplace inclusiveness—i.e., fully inclusive decision-making enables businesses to make products MORE people buy and deliver services that meet MORE people’s needs—is incredibly compelling, and can change hearts and minds where increased regulation and litigation have failed.  

 

D-I-Y Mediations: Getting What You Want without a Big Legal Bill

When: 03-20-2013 | 12:00 p.m. (MST)

In many cases, but certainly not always, EEOC mediation makes sense: it can enable employers to resolve risky personnel decisions early in the process, before attorneys’ fees mushroom.  This lively webinar will offer participants an effective strategy for handling EEOC mediations, particularly without overreliance on outside employment counsel.  With “coaching” and “lifelines,” HR professionals and in-house counsel can realize incredible cost savings by managing their own EEOC mediations.   We will discuss certain benefits of participating in the EEOC’s mediation program, as well as common pitfalls and snags.  Ultimately, participants will gain insight into the EEOC’s mediation process as a whole and a straightforward approach for making them work in their favor.

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Colorado’s HB-1136: Far More Problems than Progress

Last month, a group of House and Senate Democrats introduced HB-1136, the “Job Protection and Civil Rights Enforcement Act” (Bill).  This Bill seeks to align remedies under the Colorado Anti-discrimination Act (CADA) with those available under the federal Civil Rights Act of 1991 (CRA 1991) for actions under Title VII of the Civil Rights Act of 1964 (Title VII), and the Americans with Disabilities Act (ADA).  Although I believe in the value of inclusiveness with religious fervor, I testified against this Bill before the House Judiciary Committee on February 14, 2013.  As a former EEOC Trial Attorney, social worker, Biglaw defense attorney, and Democrat, I hoped to add balance to a dialog steeped in partisanship and ideology-coated greed.  One Representative’s final question, paraphrased, “Whose side are you really on?” quickly dashed that hope. 

HB-1136 promises far more problems than progress toward eliminating discrimination and advancing inclusiveness, particularly for Colorado’s small employers.  It rests on a foundation of flawed logic and burdens Colorado’s employers and CADA’s already over-stretched civil enforcement scheme—the Colorado Civil Rights Division (CCRD) and our courts—in ways that HB-1136’s sponsors have obviously not fully contemplated. 

The Boogeyman behind HB-1136

At the February 14, 2013 hearing, I sat stunned as HB-1136’s House sponsors claimed that without the enhanced penalties of compensatory (i.e., squishy, unquantifiable damages for emotional pain) and punitive damages, small Colorado employers with less than 15 employees will harass, discriminate and retaliate against workers with reckless glee.  This jaundiced view of Colorado’s employers, however, differs mightily from my experience with them over the past 15+ years.  Even as a rabid young EEOC prosecutor, I realized that all discrimination law is ultimately about PEOPLE, delightfully imperfect as we are.  Instead of evil-doing employers intent on discriminating against and harassing employees, I mostly saw people struggling to comply with conflicting workplace laws while managing business operations.  I began to liken discrimination law to a “commercial divorce”—all the complexity of a big federal case with all the emotion of a hotly contested divorce—instead of a “holy war” where right and wrong is clear and God takes sides.  In fact, mostly, I encountered employers facing discrimination, harassment, and retaliation charges for firing employees for . . .

  • Showing up late for every shift, delaying other employees’ shifts and causing the employer to pay overtime;
  • Resisting employers’ efforts to rehabilitate poor job performance;
  • Harassing and threatening supervisors and other employees;
  • Alienating customers with outrageously bad customer service;
  • Smoking crack in the bathroom; and, my favorite,
  • Storing goose droppings in the refrigerator of a residential facility, just to name a few.

Indeed, according to the EEOC, it issued Determinations of Reasonable Cause finding discriminatory treatment in only 3.8% of its administrative closures last year; likewise, CCRD’s reasonable cause determination rate also falls below 5%.  While not all 95% of charges are legally frivolous, the CCRD and EEOC ultimately find most of them non-meritorious, which also comports with my observation and experience.  What HB-1136’s sponsors do not seem to grasp, however, is that even for non-meritorious discrimination charges and lawsuits, Colorado’s employers must still expend substantial time and money defending themselves, both at the CCRD and in court.

As in discrimination litigation, HB-1136 casts Colorado’s HR practitioners and small employers as villains, naturally inclining toward harassment and discrimination without the threat of looming future penalties.  And yet, most, if not the overwhelming majority, of them want to do the right thing by their employees.   Most HR practitioners entered this complex field because they actually like other people; I’ve seen many of them act as “corporate social workers,” going out of their way to help employee struggling at work and at home.  Most small employers consider their employees “family,” a notion that often backfires.  And most non-profit leaders croak in heartbreak at the accusation that they would do anything as misanthropic as harassment or discrimination.  The boogeyman behind HB-1136 (i.e., HR practitioners and Colorado small employers who want to harass, discriminate, and retaliate with reckless abandon) is probably not under the bed after all.    At the very least, we should demand that the proponents of HB-1136 establish just how the availability of compensatory and punitive damages in some hypothetical CADA lawsuit has any meaningful impact on the real personnel decisions employers make each day in the business trenches.  After all, if damages deterred discrimination, the campaign for inclusiveness would surely have advanced further than it has. 

Promises without Progress

HB-1136 seeks to provide the same remedies under the CADA that became available to employees under CRA 1991—jury trials, compensatory (i.e., unquantifiable emotional pain) and punitive damages, and attorneys’ fees.  During passage of the CRA 1991, the trial lawyers associations also insisted that without the ability to recover compensatory and punitive damages at a jury trial, harassment and discrimination would forever pollute the American workplace.  Ratchet up the penalties, they promised, and progress will follow. 

Over the past 22 years, however, very little has actually changed except money changing hands.  Women, for example, make up only 8% of top wage earners at Fortune 500 companies.  In retail, women make up nearly 50% of the labor force, but only 17.9% of executive managers.  Likewise, in law, women comprise less than 18% of law firm equity partners where they earn approximately 86% of their male peers’ salaries.  In the science/engineering sector, women constitute slightly over 40% of workers, but only 11% of leaders.  In finance and insurance, women make up a majority (57%) of the workforce, but only 18.6% of executive leadership.  The United States lags substantially behind Australia, Canada, Israel and South Africa for women’s corporate executive officer membership.   

People of color have fared worse. In 2010, African-American men made up only 5.7% of executive boards on Fortune 100 companies, whereas Latinos were just 2.3%.  Latinos occupy only 7.5% of professional or management positions in the United States, with African-American men just slightly higher at 8.4%.  In America still today, white people still hold over 83.6% of all management positions.  Thus, even with the availability of stiff penalties for workplace discrimination under CRA 1991, our workplaces have hardly become more inviting for women and minorities vying for the highest paying and most desirable positions. (source: www.catalyst.org)

In fact, according to the EEOC, workers’ perceptions of suffering discrimination have gotten worseFor two years in a row, the EEOC has reported nearly 100,000 in new charges, approximately 2,000 of which come from Colorado.  In fiscal year 2012, the EEOC saw marked increases in the number of new gender and race charges, and a sharp spike in the number of disability-based charges since 2007.  Notably, for the first time in the EEOC’s history, retaliation now outranks all other kinds of discrimination allegations (e.g., race, gender, age, and disability) as the most frequently filed charge; retaliation charges, however, rest only “good faith beliefs” instead of a workers’ protected characteristics.  And last year, the EEOC equated its historic monetary collections from employers ($365.4 million) as evidence that it was “enforcing the [anti-discrimination] laws more effectively.”  (source: www.eeoc.gov)

Of course, employers pay money to resolve EEOC matters not out of any admission or recognition of discrimination, but to contain the staggering cost of defense, even on non-meritorious allegations.  In most cases, employers pay to resolve charges and cases not because they pose real legal risk, but because the cost of defending against the risk exceeds the risk itself.   Particularly with the proliferation of Employment Practices Liability Insurance (EPLI) since CRA 1991, employers and their EPLI carriers now mostly resolve matters below the anticipated cost of defense, instead of fighting when they’re right.  Thus, the charging and litigation processes for discrimination matters now rarely involve any truth-seeking; it is simply too expensive.   On the contrary, these processes have become a wealth redistribution system where employers pay EPLI carriers to pay defense firms to pay trial lawyers to pay employees in settlement of discrimination claims.  And, nothing changes in the quest for greater workplace inclusiveness except money changing hands.    

This geologic pace of progress should cause alarm and prompt conscientious legislators consider how to promote opportunity for all Coloradans.  But instead of relying on more sticks in the form enhanced damages penalties, we should challenge ourselves and our legislators to develop more innovative solutions toward ensuring that our workplaces are as inclusive as our communities.  The BUSINESS case for workplace inclusiveness—i.e., fully inclusive decision-making enables businesses to make products MORE people buy and deliver services that meet MORE people’s needs—is incredibly compelling, and can change hearts and minds where increased regulation and litigation have failed.

Fiscal Impact: Overstretching Colorado’s Thin Administrative and Judicial Resources

At the February 14, 2013, HB-1136’s proponents brushed off the notion that this Bill could further stretch CCRD’s and Colorado district courts’ already thin resources.  Experience teaches, however, that in states providing remedies equal to or greater than those available under federal law, the federal system becomes increasingly irrelevant and the enforcement burden shifts to states.  In California, for example, most Plaintiff-side attorneys bypass the federal system entirely, filing charges with the bankrupted skeleton state agency and overwhelmed California courts. For the past four years, the EEOC’s Denver Field Office has taken in approximately 2,000 new charges each year.  Since Plaintiff’s attorneys think that the CADA, CCRD, and Colorado state courts can yield more favorable results for them, where do the proponents of HB-1136 think these 2,000 new charge filings each year will go? 

That question—i.e., the fiscal impact of newfound reliance on Colorado’s civil anti-discrimination enforcement scheme, CCRD and our courts—deserves more attention than HB-1136’s proponents have apparently given it.  In fact, following passage of the CRA 1991, the number of EEOC charges mushroomed, causing the EEOC to implement Priority Charging Handling Procedures in 1995, namely, an intake triaging scheme whereby most charges get processed, but certainly not “investigated.”  Instead of issuing a “reasonable cause” or “no reasonable cause” determination either way (which could fuel or finish a future lawsuit), the EEOC stopped issuing “no reasonable cause” determinations entirely.  As one Plaintiff’s attorney advised me (curiously while I was at the EEOC), the EEOC is just a “speedbump” on the road to seeking real damages in civil litigation.  Ultimately, CCRD must either seek additional allocations to manage the inevitable increase in its workload or implement processes that reduce it to an administrative “speedbump” en route to Colorado district court.  

Employer Education: Putting Money behind Lip Service

HB-1136 calls for CCRD to appoint a volunteer sub-commission to research and provide training for small employers, activities funded only through donations, grants and gifts, not real budgetary allocations.  This provision pays lip service to the value of affordable employer compliance education without providing the financial means to do so reliably.  Before Colorado’s small employers are saddled with the risks and costs of HB-1136, CCRD must have the resources to develop and implement a consistent compliance education program for them, instead of volunteers scrambling for donated resources.  If HB-1136’s sponsors truly care about employer compliance, then they must put some money, even a little, where their mouths are. 

Distorting CCRD’s Role

HB-1136 permits a CCRD investigator to adjudicate an attorneys’ fee award on any administrative determination of reasonable cause, thereby transforming an administrative agency into a quasi-judicial body.  Even the EEOC does not award attorneys’ fees following its administrative determinations, for good reason: attorneys’ fee requests routinely involve complex mini-hearings where the presiding judge evaluates the reasonableness of the attorneys’ rate, hours invested, overall recovery, complexity and novelty of the matter, etc.  Most CCRD investigators are not attorneys, however, nor do they have experience adjudicating the merits of an attorneys’ fee dispute.   Accordingly, HB-1136 could empower a CCRD investigator to impose $100,000 in attorneys’ fees against an employer on a $10,000 damages determination, without the procedural and evidentiary safeguards of a real judicial proceeding.   

Further, like the EEOC, CCRD’s original mandate was to help eliminate unlawful employment practices through informal means of conciliation and persuasion. See § 24-35-305, C.R.S. (2011) (CCRD’s purpose “to investigate and study the existence, character, causes, and extent of unfair or discriminatory practices as defined in parts 4 to 7 of this article and to formulate plans for the elimination thereof by educational or other means.”).  By increasing CCRD’s power to impose attorneys’ fees and punitive damages, HB-1136 distorts CCRD’s original purpose—namely, to formulate plans to help eliminate workplace discrimination—and simply establishes it as a link in the overall wealth redistributive chain.  Instead of adjudicating attorneys’ fee disputes among counsel, CCRD’s personnel could have greater positive impact by more actively reaching out to Colorado’s employer and HR communities, and becoming the trusted compliance resource they want and need.  Inclusiveness starts with employers, not lawyers. 

Forging a Full Federal Remedy for LGBT Coloradans

During the passage of the Civil Rights Act of 1964, Congress understood that in forging new frontiers in human rights, the availability of a federal remedy is fundamentally important.  By the time Congress had passed this landmark legislation in 1964, several states, including Colorado, had already proscribed discrimination on the basis of race and gender, among other protected traits.   Congress realized, however, that without the greater uniformity that federal enforcement can provide, our country’s new standards for equality of opportunity could fall prey to local prejudices or parochialism, particularly in rural communities throughout the South.

Although I wholeheartedly agree that LGBT Coloradans deserve and need greater legal protection from all forms of discrimination, the march toward full inclusiveness must begin with a strong federal remedy to set and enforce the standard for equality of opportunity.  Although HB-1136 seeks to put enforcement “teeth” in prohibiting discrimination against LGBT employees, this change would likely benefit plaintiffs in Colorado’s urban pockets, as a practical matter.  LGBT plaintiffs suffering overt discrimination in Colorado’s more rural, conservative communities, however, would not have equal access to CADA’s remedial scheme because of the same kind of local prejudices and parochialism that troubled the architects of the Civil Rights Act of 1964.   To protect LGBT Coloradans everywhere, especially those living in communities where discrimination is most likely to occur, we must push for change at the federal level first. 

*  *

Inclusiveness matters.  But as we near the 50-year mark of the Title VII of the Civil Rights Act of 1964, we must urge legislators to consider new ways to maximize opportunity for all, instead of relying on tired, ineffective enforcement schemes that benefit lawyers, not employers.  I urge you, therefore, to contact your state representative or senator, or Governor Hickenlooper’s office to share your experience as an HR professional or small employer with non-meritorious workplace discrimination allegations arising out of legitimate, non-discriminatory personnel decisions.  I’ve provided contact information below. 

Colorado House of Representatives Roster: http://www.leg.state.co.us/CLICS/CLICS2013A/directory.nsf/MIWeb?OpenForm&chamber=House    

Colorado Senate Roster: http://www.leg.state.co.us/CLICS/CLICS2013A/csl.nsf/DirectorySen?openframeset      

Governor Hickenlooper Contact:  (303) 866-2471

 

 

Effective EEOC Position Statement Storytelling on a Time/Money Budget

When: 02-20-2013 | 12:00 p.m. (MST) to 1:00 p.m. (MST)

Here is the link to the February 20, 2013 recording of this webinar.

https://global.gotowebinar.com/recordings.tmpl#shareInfo_1

What makes an EEOC Position Statement “effective”–i.e., sufficiently convincing for an EEOC Investigator to quickly conclude that the employer treated the complaining employee fairly and then, to move on to the next EEOC charge in an ever-increasing pile?  Ultimately, simply convincing the EEOC to leave you alone should be every employer’s goal.

At BIGLAW, however, EEOC Position Statements can too often resemble massive $15,000 briefs, rife with exhibits and extensive legal citations that add cost without value.  In fact, to avoid expensive “solutions” to more minor EEOC problems, employers must understand the EEOC’s Priority Charge Handling Procedures (PCHP), its Strategic Enforcement Plan, and its drive to reduce its inventory of pending charges.  Armed with this understanding, employers can realize incredible cost savings by handling the EEOC administrative process themselves, instead of farming every EEOC charge out to outside counsel.  After all, referring every EEOC matter to outside counsel may be a “process,” it is certainly not a cost-effective STRATEGY.

This webinar will offer participants an effective “storytelling” model for drafting EEOC Position Statements, based upon the common themes that arise in employment discrimination litigation.  This model will also teach HR practitioners how to marshal evidence around these common themes, the first step in preparing an extremely effective Position Statement without reliance on outside counsel.

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EEOC Risk Management: How to SAVE Money in 2013

When: 01-16-2012 | 12:00 p.m. (MDT)

With the EEOC’s increasing emphasis on large, class action systemic investigations and prosecutions, employers must sort out which EEOC charges pose real risk and which ones simply do not,  to avoid expensive BIGLAW “solutions” to more minor workplace people problems.  In fact, the EEOC has triaged all incoming charges since its 1995 adoption of Priority Charge Handling Procedures (PCHP), which the EEOC recently reinforced in its 2012-2016 Strategic Plan.  Understanding PCHP (and by extension, the severity of the risk) will help employers strategically decide when to refer EEOC matters to outside employment counsel and when to realize the incredible cost savings of DIY position statement preparation and ADR participation.

An application is pending for 1 Strategic credit through the Human Resources Certification Institute, www.hrci.org.

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Fewer but BIGGER: What the EEOC’s FY2012 PAR Foretells for Employers

This final installment analyzing the EEOC’s recently issued FY2012 Performance and Accountability Report (PAR) distills the important “takeaways” and “action items” for employers grappling with EEO risk. 

Expect Fewer but BIGGER Investigations and Prosecutions

The EEOC’s FY2012 PAR shows that it took in fewer charges, resolved fewer matters during the administrative process, filed fewer lawsuits, reduced its huge backlog by fewer cases and STILL extracted from employers the MOST money in its history–$365.4 million.  The EEOC pulled off this feat (i.e., less productivity yielding more money) by literally making mountains out of molehills, specifically, by transforming individual charges into large-scale, multi-plaintiff and/or systemic matters that (a) involve numerous actual and/or “phantom” class members; and (b) generate large settlements, typically exceeding seven figures.  This approach is nothing new; in fact, the EEOC took this strategy straight from the OFCCP’s playbook in the early 2000’s, switching its enforcement focus from individual disparate treatment allegations to systemic, disparate impact and/or class action matters to get the most bang with its limited resources.  And, the EEOC’s FY2012 PAR shows that it works: EEOC’s productivity has declined, while still obtaining record collections from employers. 

TRIAGE, TRIAGE, TRIAGE!

Most employers simply do not realize that the EEOC has triaged all incoming charges since 1995, when it adopted Priority Charge Handling Procedures (PCHP, in EEOC-speak).  With the passage of the Civil Rights Act of 1991 giving jury trials to employees in Title VII actions, the number of EEOC charges skyrocketed and created a giant backlog of charges. Faced with this crush of incoming charges, the EEOC wisely realized the importance of separating the wheat from the chaff early in the process (at INTAKE), to avoid the fool’s errand of investigating charges that were time-barred, jurisdictionally deficient, facially frivolous or just plain weird. Likewise, the EEOC also appreciated the importance of targeting (a) potentially meritorious and/or (b) “enforcement priority” charges early, thereby allowing the EEOC to set the stage for inevitable litigation.  Thus, at Intake, all incoming EEOC charges get stamped with an A, B, or C designation that almost invariably sets its path through the process and dictates its outcome. Notably, the EEOC’s Strategic Plan reinforces PCHP as a method to sharpen its focus on systemic matters.

Given the EEOC’s three-bucket triage approach, one would expect the cost of defense to vary accordingly.  Unfortunately for employers, BIGLAW employment practices too often offer a one-size-fits-all approach to EEOC matters.  And, it is like shooting fish in a barrel to sell more “fix” than the risk requires, given the emotional and relatively uncommon nature of EEO disputes in the employer’s limited experience.  After all, the incidence of EEO lawsuits is approximately seven per 1,000 employees.  Nevertheless, no manager or company owner has ever liked being branded as a “harasser,” “discriminator” or vindictive “retaliator,” and they’re often thirsty for vindication.  Thus, with the “commercial divorce” that is employment law, defense counsel can easily stoke emotions and drive up bills, instead of recalibrating employers’ expectations about what little the EEOC administrative can actually do for them, both practically and emotionally.

Given the FEWER BUT BIGGER focus of today’s EEOC, employers must learn to identify which EEOC charges pose real risk and which ones simply do not to avoid expensive “solutions” to minor workplace problems.  Risk evaluation also marks the first step toward proper resource allocation, which more often than not, will cut in favor of in-house preparation of Position Statements and participation in EEOC mediations. 

If, however, the EEOC charge itself carries systemic risk (i.e., involves a neutral policy or practice that adversely screens out or impacts a protected group) or the EEOC begins demanding excessive information, then employers should involve employment counsel who understand how to defend a huge EEOC incursion.  From my experience and observation, most “seasoned” employment defense practitioners have still never wrangled, let alone observed, this species of legal claim.  In fact, at my last boutique gig, my colleagues razzed me about my obsession with EEOC systemic discrimination by making a drinking game out of it, but never bothered to learn the basics of this growing area of EEO law. 

Fight  When You’re Right with Lean Litigation

When the EEOC invests time and resources training its prosecutorial discretion on an employer, it will inevitably demand seven-figures in the “conciliation process,” after it has (predictably) issued a Determination of Reasonable Cause.  In fact, the EEOC’s FY2012 PAR specifically credits the collaboration between its investigators and Trial Attorneys in the conciliation process for its historic monetary recoveries, which smacks of “cost of defense” bullying.  But, once employers understand the EEOC’s objectives and tactics, they can more strategically decide when and how to fight back.  After all, if the EEOC is going to demand seven figure settlements, five-figure defense fees are a little bit easier to swallow. 

With lean litigation practices, employers can still afford to push back when the EEOC advances positions at odds with precedent and its own enforcement guidance.  “Lean litigation” uses technology to streamline workflow, minimizes the legal “entourage” billing on a matter, collaborates closely with employer’s in-house counsel and HR team to “in-source” administrative work, strategically employs experts, etc.  And it works, yielding favorable employer outcomes below the costs of defense and settlement. 

Appreciate that Money is the Metric that Matters

The EEOC’s FY2012 PAR directly equates its historic collections from employers with its overall “efficacy,” openly claiming that these settlements show what a good job it has done fulfilling its mandate, namely, the elimination of unlawful employment practices through informal efforts of “conference, conciliation and persuasion.” Section 706(b), 42 U.S.C. §2000e-5(b).  Leaving aside the inherent absurdity of this proposition, employers must appreciate that the EEOC will continue to tout money exacted from employers as proof that discrimination pollutes the American workplace and that the EEOC is “effective” at addressing it.  Thus, given the EEOC’s emphasis on money, employers will likely see in FY2013

  • More Predetermination Interviews (PDI’s) in which EEOC investigators actively attempt to settle the charge for monetary benefits.  Often in these conversations, EEOC investigators tell employers that they are leaning toward “going cause,” but that they would be willing to work out a resolution with the Charging Party to avoid that unfortunate outcome.  Most (too many) employers fold. 
  • More interaction with EEOC Trial Attorneys in the administrative process, particularly in conciliation.
  • More charges in which the employer is invited to participate in the EEOC’s ADR program.
  • More systemic, multi-plaintiff investigations and prosecutions.
  • More EEOC press releases hyping large settlements from employers.
  • More perfunctory closures of individual charges alleging disparate treatment.
  • More EEOC emphasis on identifying other Charging Parties allegedly affected by the same practice—i.e., more charge mushrooming.
  • More EEOC subpoenas and subpoena enforcement actions, among many others. 

HR leaders and in-house employment counsel can help their organizations realize tremendous cost-savings with basic triage and resource allocation principles, thereby reserving tight legal budgets for the truly heavy stuff like EEOC systemic or multi-plaintiff investigations or prosecutions.  Otherwise, the EEOC’s emphasis on high-dollar settlements really begin to cost employers in a currency as valuable as money, namely, the right to select and retain employees they choose.

Rubber Stamps: Does Inventory Reduction Really Mean that the EEOC Is “Serving the Public More Efficiently?”

In Part I of this series examining the EEOC’s recently issued Performance and Accountability Report (PAR), EEO Legal Solutions questioned whether the EEOC’s historic collections from employer settlements ($365.4 million) really meant that it was enforcing the law more “effectively.”  After all, employers settle EEOC charges and lawsuits for numerous reasons, the most prominent of which is the staggering cost of defense.  More pointedly, employers often settle EEOC charges and prosecutions not because they pose real risk on the merits, but rather because the cost of defending the risk exceeds the risk itself. 

The EEOC has also touted another metric as evidence of its good work in FY2012, namely, the reduction in its pending Charge Inventory, which ostensibly shows that it is “serving the public more efficiently.”  According to the EEOC FY2012 PAR,

Most notably, the pending inventory of private sector charges was reduced by 7,824 charges over the FY 2011 level, bringing the level to 70,312, which reflects the second consecutive year of significant reduction in inventory since FY 2002. These results were achieved despite having received 99,412 charges . A total of 111,139 charges were resolved in FY 2012 .

But does the EEOC’s inventory reduction necessarily mean that it has served the public more efficiently over the past year? 

A Quick Look Back to FY2011: More Efficient in FY2012?

Before examining whether charge inventory reduction signifies greater efficiency (or whether such results could be achieved through less service to the public), a quick comparison to FY2011’s PAR shows pretty sluggish EEOC performance over the past year, which the FY2012 PAR does not substantively address. 

  FY2011 FY2012
Charge Intake 99,947 99,412
Charge Resolutions 112,499 111,139
Inventory Reduction 8,202 7,824
Inventory Levels 78,136 70,312

In fact, in FY2012, the EEOC took in fewer charges than the previous year for the first time since 2005.  With the passage of the ADA Amendments Act of 2008, EEOC charges have steadily increased, not decreased.  And despite taking in fewer charges, the EEOC reduced its pending inventory by nearly 400 (378) fewer charges in FY2012 (7,824) than in FY2011 (8,202). Logic dictates that with fewer charges coming in during FY2012, the EEOC should have been able to catch up, and actually top its inventory reduction record set just the year before.  The EEOC also resolved 1,360 fewer charges in FY2012 than FY2011, which establishes that the EEOC is not necessarily reducing its inventory through resolutions, but mere dismissals.  Thus, according to the EEOC’s own statistics, the EEOC is apparently becoming less efficient over time.

Paradoxically, the EEOC credited its outreach efforts for FY2011’s historic intake of charges, claiming that employees must have become more aware of their federally protected rights.  Does the fact that 532 fewer workers filed EEOC charges in FY2012 than in FY2011 show that workers have become less aware of their rights? Or, could it show that employers have become more compliant, such that there are fewer “violations” about which to file charges?  Either interpretation seems reasonable. 

More Perfunctory/More Discriminating

Having served the EEOC in Denver under the Clinton Administration (1997-2000), I admittedly have an extremely jaundiced view of the EEOC’s intake, investigative, and conciliation processes.  Since the EEOC’s adoption of Priority Charge Handling Procedures (PCHP) in 1995, its actual review/investigative processes have become increasingly perfunctory, haphazard and discriminating, with a vast majority of charges relegated to the “B” classification wasteland in which an EEOC investigator does very little except send out notices. 

Unfortunately, the EEOC’s administrative process is confidential by statute; the EEOC’s “thought processes” are even more carefully guarded under a fortress of “governmental deliberative process” privilege.   And so, talking publicly about the EEOC’s conduct in a specific investigation poses risk to Charging Parties, employers, and their counsel, and is, therefore, taboo.  But attorneys on both sides of the employment/EEO bar have voiced concerns more recently about

  • EEOC intake investigators telling employees (even those represented by counsel) that they did not have “a case” and refusing to docket charges, thereby explaining the FY2012 reduction in charge receipts;
  • EEOC investigators, upon initial contact to employees several months after charge filing, stating that EEOC will not investigate charges without evidence of a violation;
  • EEOC investigators dismissing charges within two weeks after Intake;
  • EEOC investigators bullying employers into settlements on non-meritorious charges with threats of systemic investigations;
  • EEOC personnel “losing” files in the transfer between ADR and Enforcement Units;
  • EEOC Trial Attorneys participating actively in the investigation, which casts considerable doubt upon the investigation’s objectivity;
  • EEOC Trial Attorneys pushing seven-figure settlements in conciliation under the threat of governmental prosecution.

In reality, the EEOC faces no downside risk for issuing perfunctory dismissals and ridiculous cause determinations, retreating quickly to the comfort of the governmental deliberative process privilege when challenged.  The EEOC could, therefore, erect additional barriers in the charging, investigative, and conciliation processes that render it less efficient and effective at addressing the public’s employment discrimination concerns, while enabling it to reduce its inventory precipitously.  For example (and as commonly occurs), EEOC investigators could simply dismiss charges, particularly ones filed pro se, with a quick rubber “unable to determine” stamp, thereby reducing inventory while offering no service to the public, efficient or otherwise.  Likewise (and as commonly occurs), the EEOC could issue a perfunctory “reasonable cause” determination, forcing an employer into a settlement discussion while refusing to explain the rationale underlying the ostensible violation.  Particularly in this regard, the EEOC’s suggestion that inventory reduction is synonymous with efficient/effective public service should prompt a much-deserved eye roll from EEO practitioners. 

Ultimately, at the EEOC, “making numbers” is critically important.  Employers should pay attention, therefore, to what the EEOC counts as its “successes,” whether in terms of dollars collected in settlements, reduction of the pending charge inventory, number of reasonable cause determinations, and now more importantly, the number of pending systemic and class action investigations and civil prosecutions.  These “metrics that matter” drive and explain the EEOC’s objectives, and by extension, behavior. Only by understanding these “metrics that matter” can employers anticipate how prevent, address and intelligently allocate resources toward containing workplace EEO risk in FY2013. 

The EEOC’s FY2012 PAR (Part 1): The Money Metric

Reading between the lines of the EEOC’s FY2012 Performance and Accountability Report (PAR)

Part 1, Employer Money: The New Metric that Matters

On November 16, 2012, the EEOC released its Performance and Accountability Report (PAR) under the new Strategic Plan adopted on February 22, 2012.  The following Monday, November 19, 2012, the EEOC predictably issued a press release touting its “successes” in fiscal year 2012 (FY2012), which ended on September 30, 2012.  As a former EEOC Trial Attorney under the Clinton Administration and BIGLAW defense attorney for 12 years, this report telegraphed a very different message about the EEOC’s enforcement agenda than the carefully chosen words committed to paper.  This post is one of three addressing the “subtext” of the EEOC’s PAR.

At EEOC Field Offices across the country, “making numbers” each fiscal year is extremely important—only things that can be counted count.  During my era (1997-2000), the metric that mattered was the number of “cause determinations”, which ostensibly showcased the rampant discrimination still polluting the American workplace.  To that end, the EEOC’s District Director kept careful tabs on his office’s progress on achieving a pre-determined number of “cause determinations”—after all, his bonus depended on it.  As Q4 of the fiscal year approached, the pressure to “make” those numbers intensified: I can even still hear the District Director booming at August all-staff meetings “Go out there and find cause!”  Of course, cause determinations then flowed, and each year, we would later learn  that our office had “made its numbers,” and everyone was happy—everyone, except employers left wondering how they must now manage the risk and cost of a frivolous lawsuit bearing the EEOC’s stamp of approval.   

Exacting Employer Money as Evidence of EFFICACY?

Instead of “reasonable cause” determinations, the EEOC has more recently hyped the amount of MONEY it has exacted from employers as evidence that it is “enforcing the law more effectively.”  The EEOC’s 2012 PAR itself directly equates “enforcing the law more effectively” with its historic collections ($365.4 million) for FY2012.  The underlying assumption—i.e., the EEOC is more effective because employers have paid historic amounts to resolve their EEOC matters—distorts reality. 

Employers settle EEOC matters for numerous reasons completely unrelated to the merits of any given charge or the threat of EEOC action, the MOST IMPORTANT of which is the staggering cost of defense.  Because of the cost of defense, employers have convinced themselves that they can no longer afford to fight when they’re right. Accordingly, they very often seek to resolve EEOC matters as quickly and early in the process as possible, generally not because the matter poses real risk, but rather because the cost of defending the risk exceeds the risk itself.

For example, as reported in Bloomberg’s (BNA) Daily Labor Report on July 1, 2010, Petco retail stores  settled an ADA lawsuit with the EEOC’s Denver office for $145,000 to a profoundly deaf dog groomer while vehemently denying any wrongdoing whatsoever.  As Petco’s attorney from boutique giant Littler Mendelson explained, Petco settled only because “EEOC litigation is expensive.”  Meanwhile, in the same timeframe, the EEOC’s Denver office filed a strikingly similar ADA case against retailer Picture People involving a profoundly deaf employee that was completely dismissed on the merits in court and on appeal.

Considering EEOC’s 2009 Petco and Picture People cases side-by-side, one must wonder whether the EEOC was truly more “effective” in Petco than in the Picture People matter.  If the EEOC’s underlying objective is inherently redistributive, namely, to extract money from employers and redistribute it to employees, then the EEOC was surely more “effective” in EEOC v. Petco.  The EEOC’s original mandate, however, was the elimination of unlawful employment practices through the informal efforts of “conference, conciliation and persuasion.” Section 706(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(b).

Meeting Money Metrics with Bullying

According to the EEOC’s PAR,

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.

“Conciliations” occur only after the EEOC has issued a reasonable cause determination against the employer—i.e., the EEOC’s notice to the employer that its action, according to the EEOC, has violated federal anti-discrimination laws.  In fact, the legal provisions vesting the EEOC with enforcement authority require it to “conciliate” any charge in good faith before initiating any action against the employer in federal court.  If an EEOC Trial Attorney was involved in charge development and actually wants to prosecute the lawsuit, however, the EEOC will take incredibly hard, if not outright draconian, positions in the conciliation process, in tacit hopes that conciliation will fail.  As previously discussed HERE, if the EEOC’s demands in recent Consent Decrees (i.e., arising from EEOC settlement of a lawsuit) are any indication, then the EEOC has probably been seeking far more in conciliation than a court would even impose on an employer after a violation were proven. 

But what if the conciliation process proceeds based on the EEOC’s faulty or mistaken view of what the law really requires or means, the perceived strength of the case, and/or the merits of the employer’s defenses?  In those relatively common scenarios, employers literally get bullied into EEOC conciliations . . . again, to avoid the certain and staggering attorney defense fees.  With the elimination of the “conceptual barriers” between investigators and attorneys (more about that later), the EEOC is in a prime position to aim (and surely threaten to aim) its prosecutorial discretion and public warchest at an employer that will not surrender to its view of the law or case in the conciliation process. In fact, EEOC Trial Attorneys now routinely participate in conciliations, thereby “encouraging” employers to enter into cost of defense settlements just to contain their financial exposure. To suggest, therefore, that the amount of money obtained by the EEOC in the conciliation process demonstrates its enforcement success seems almost disingenuous when placed in its proper “on-the-ground” context.

Toward More Meaningful Measurements of EFFICACY

Instead of monetary collections from employers, perhaps a more meaningful way to adjudge whether the EEOC has been “effective” could focus on how it has enforced the laws entrusted to it.  This measurement must surely take into account the number of times federal trial and appellate courts have sided with or rejected the EEOC’s interpretations of the law.  In fact, the EEOC does not report on its losses, as well as the number of times federal courts chastise or sanction its personnel for advancing legal interpretations at odds with judicial precedent, which creates an incredibly skewed view of its “success.”  Instead, employers must rely on other resources like this Blog for information about the EEOC’s actual success rate in court, which is surprisingly low. 

Likewise, technological advances in communications, research capabilities, and social media could theoretically allow the EEOC and/or the GAO to survey Charging Parties, HR professionals, in-house counsel, small employers, etc. to ascertain how effective the EEOC’s constituency believes it has enforced applicable laws, guided them through the process, and/or sought to resolve the workplace issue through informal efforts of conference, conciliation, and persuasion.   The results would likely shock, and open a healthy discussion about more effective methods to ensure that our workplaces are as inclusive and diverse as our communities. 

For employers, the bottom line is that the EEOC wants your money, and that core dynamic will infect every interaction employers have with the EEOC. Just like District Directors once prevailed upon investigators to “go out and find cause” to achieve predetermined performance metrics, EEOC investigators and attorneys now understand that the amount of money they collect will be the metric that matters in their own evaluations, raises, bonuses and awards.  As a basic tenet of HR performance management (if not human behavior), if management tells employees to fulfill any quota (e.g., closures to reduce inventory, target dollar amount obtained, number of cause determinations, and 2,000 annual billable hours), they will find ways, some legitimate and some not, to achieve it.  Accordingly, employers can expect far more aggressive settlement efforts from investigators and attorneys than perhaps they have previously experienced.  Unfortunately, given the staggering costs of defense, many employers will continue to choose settlement instead of standing their ground with the EEOC. 

Please stay tuned for future blogs in this vein.  In Part 2 of this series addressing the EEOC’s recent PAR, we will consider whether reducing the EEOC’s huge “inventory” (i.e., freakish backlog of cases) really means that it is serving the public more “efficiently.” 

The EEOC’s Ten-Year Consent Decree: Headlines over Headway

Last week, the EEOC issued a press release bragging that it had obtained a TEN-YEAR Consent Decree against Muskegan River Youth Home, a secure residential treatment program that provides services to severely troubled boys and girls.  http://www.eeoc.gov//eeoc/newsroom/release/11-7-12a.cfm.  Does it make sense for the EEOC to put a small, social services employer under its thumb for TEN YEARS?  Read on . . .

Unlike a regular settlement, a Consent Decree keeps the action “alive” in U.S. District Court so that the EEOC can monitor compliance with its tired trifecta of “injunctive relief” (e.g., training, posting, reporting).   If an employer fails to follow through, a Consent Decree allows the EEOC to renew its enforcement activities without initiating new proceedings.    Consent Decrees, unlike settlements, keep an employer on the EEOC’s radar for a period of years, and by logical extension, require an on-going investment from both the EEOC and the judiciary.

The EEOC typically insists upon Consent Decrees as a condition of settlement, ranging from two to five years in duration.   It can, however, settle cases without Consent Decrees:  as an EEOC Trial Attorney myself under the Clinton Administration, I occasionally resolved litigation without Consent Decrees, particularly when facts developed in the defense’s favor during discovery.   Nevertheless,  I cannot recall a prior scenario in which the EEOC insisted upon TEN YEARS to achieve its mandate, namely, the use of “conference, conciliation, and persuasion for elimination of unlawful practices.” 42 U.S.C. 2000e-5(a).     Even if another example does exist, this ten-year Consent Decree against Muskegan, however, smacks of EEOC bullying.   In fact, the EEOC’s apparent need for TEN YEARS to bring this small employer into compliance also raises questions about the efficacy of the only “tricks” it has–training, posting, reporting—in its overall enforcement scheme.

Muskegan: Bad Policies from Good Places

Muskegan is a small employer with approximately fifty direct care staff members that work with kids ages 10-17 who have histories of substance abuse, sex offenses, probation violations, foster placement failures, to name just a few.   In other words, Muskegan strives to rehabilitate the toughest of tough kids.   From the description on its website, Muskegan looks very much like a residential placement of last resort . . . before prison.  Given my own experiences in the social work trenches, I have no doubt that Muskegan’s counselors routinely face violence breaking up fights, conducting searches, restraining violent outbursts, among many other daily scenarios.    Perhaps for that reason, Muskegan adopted a policy requiring pregnant staff members to obtain certification from their physicians of their ability to continue working in this work environment, and involuntarily placing on leave those employees unable to provide such certification.

No doubt, from an EEO perspective, the policy stinks.  It’s hyper self-protective, paternalistic, and illegal . . .  and could easily have been identified as such before implementation.   Unfortunately, most employers Muskegan’s size lack access to specialized counsel who (a) can ensure compliance with the morass of intersecting, conflicting and constantly changing workplace laws, and (b) know when the EEOC seeks to impose more burdens than it, the law, and the Courts typically require.

This stinky policy, however, surely stems from Muskegan’s desire to protect its pregnant staff members from the risks and realities of this inherently dangerous position.  Many employers in the helping sector characteristically do the wrong thing for the right reason.  Although Muskegan could have more appropriately legally insulated itself from these risks, years of working and representing do-good employers like Muskegan teach me that BAD POLICIES can still come from GOOD PLACES.   Muskegan meant well, but the road to Hell is paved . . . enough said.

More importantly, do-good employers like Muskegan (particularly non-profit helping organizations) typically freak in a maelstrom of guilt, shock and shame when they realize that an inherently protective policy offends EEO principles.  The last thing helping agencies want to do is something as misanthropic as discrimination, and the certain horror of that realization partially explains its self-flagellating submission to far more EEOC oversight than a federal court would have ever ordered.  The EEOC is (or should be) well aware that even if it had fully prevailed on all of its claims (which seems unlikely), no court would have ordered an employer to submit to additional EEOC oversight for TEN YEARS.   Muskegan fell on its sword, and the EEOC took advantage.  From a behavioral change perspective, the fact that Muskegan was willing to submit to a TEN YEAR Consent Decree shows why a two year Consent Decree would have worked just as well.

EEOC Overkill

Most EEOC Consent Decrees range from TWO to FIVE years for obvious practical reasons. First, the EEOC must use its meager resources to monitor past Consent Decrees, instead of investigating and prosecuting new violations.   In my own experience at the EEOC, EEOC Trial Attorneys and their paralegals (if they’re lucky enough to have them) simply do not have time to chase past violations; after all, their work has been done—i.e., using “conference, conciliation, and persuasion for elimination of unlawful practices.” 42 U.S.C. 2000e-5(a).   And, because there is no performance metric that rewards them with ferreting out Consent Decree violations, there is likewise no incentive to monitor compliance with past cases;  after all, the EEOC is all about “making its numbers.”  Secondly, Consent Decrees, unlike settlements, require a federal court to keep the action alive, which unnecessarily adds to our already-overworked judiciary.

But more fundamentally, one question keeps nagging at me: if the EEOC’s standard panacea  of injunctive relief (training, posting, reporting) really works, why would it take TEN YEARS to bring an otherwise conscientious employer into compliance?  After all, the EEOC’s mandate simply requires eliminating unlawful employment practices through conference, conciliation and persuasion, which the Consent Decree itself accomplished.

In fact, it does NOT take TEN years to show an employer the error of its ways, to modify its policy, to train management staff on the policy, and to monitor an employer’s compliance with these remedial mandates.  Indeed, the posting requirement itself, in which the employer must notify its employees of the EEOC spanking,  is theoretically designed to rootle out violations, and thereby helps ensure that the employer remains rehabilitated.   Further, most social service organizations like Muskegan have limited resources, such that the cost of compliance over TEN YEARS is unduly burdensome, maybe to the point of cutting into program funds. Yet, almost paradoxically, the EEOC’s demand for TEN YEARS to rehabilitate an employer like Muskegan makes me wonder how effective the EEOC thinks it is (or has been) in eliminating workplace discrimination over all these years.

Ultimately, the EEOC’s TEN YEAR Consent Decree against Muskegan was not necessary, but necessity was never the point in the first place.  The EEOC’s TEN YEAR Consent Decree was designed to make headlines, not headway.  Employers, the vast majority of which share the EEOC’s vision for an inclusive American workplace, should demand more balanced treatment from an agency like the EEOC that wields prosecutorial discretion and oversees a public warchest.