Jumpstarting the Stalled March toward EEO: Eight Sparks (and Counting!)

Eight (and Counting!) Sparks to Jumpstart the Stalled March toward Equal Employment Opportunity 

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The March toward equal employment opportunity (EEO) passed its 50-year mile marker on July 2, 2014, the 50th anniversary of the passage of Title VII of the Civil Rights Act of 1964 (Title VII).  As predicted, the EEOC staged a big celebration, without offering any insights about our progress at this milestone. Recently, the Society of Human Resources Management (SHRM) blazed on the cover of its flagship publication, HR Magazine, “Celebrating 50 Years of Progress”, touting how Title VII “changed the face of the American workplace” . . .  again without actually examining how far the March toward EEO has actually progressed.  When we measure what matters, however, Title VII’s 50th anniversary leaves little cause for celebration.

We have more work to do . . . the familiar refrain for EEOC Commissioners, employee-side trial lawyers, governmental administrators, advocates and policymakers. True enough.  But, responsible advocacy and policymaking require us to evaluate whether our work has WORKED, to any degree.  That is, instead of celebrating “progress,” we should be asking:

  • Have our methods, initiatives, approaches to eliminating workplace discrimination and fostering equal employment opportunity actually reduced discrimination against and increased opportunity for Title VII’s intended beneficiaries; AND,
  • What can we do differently, and better, to deliver on Title VII’s promises for the generations marching behind us?

Progress: Measuring What Really Matters

Money: A Poor Proxy for Progress

For at least the past two fiscal years, the EEOC has measured its efficacy by the amount of money collected from employers to resolve discrimination allegations. In both FY2012 and in FY2013, the EEOC has characterized its historic collections from employers–$365.4m and $372.1m, respectively—as evidence of “enforcing the law more effectively.”  Employer settlement payouts, however, make a poor proxy for progress, given the absence of any reasonable, logical or practical nexus between employer settlement payouts and the EEOC’s mandate to end discrimination and foster equal opportunity.

By focusing on settlement payouts as a proxy for EEO progress, the EEOC has recalibrated its entire enforcement machine around maximizing money.  EEO Legal Solutions’ survey of 780 practitioners (e.g., HR, in-house counsel, EPL adjusters) regarding their experiences in the EEOC mediation program revealed that EEOC mediators understand employers’ cost-of-defense concerns, hammering cost-of-defense as the most often invoked reason to settle EEOC disputes. Worse, this national survey also showed that EEOC mediators then regularly brandished the EEOC’s enforcement weapons (e.g., cause determinations, systemic investigations, prosecutions), certainly to scare employers into higher-than-necessary cost-of-defense settlements.  Thus, because MONEY is the metric that matters, the EEOC’s administrative enforcement methods have focused more on wealth redistribution rather than, again, advancing the mandate to reduce discrimination and promote opportunity.

Toward More Meaningful Measurements

When we focus on more meaningful measurements of progress, a troubling picture emerges: real progress toward equal employment opportunity has stalled for most of Title VII’s intended beneficiaries.  In Part I, Measuring What Matters at Title VII’s 50th Anniversary, we looked at unemployment rates among racial and ethnic groups.  We reviewed Gallup polls and federal sector employment reports. We analyzed EEOC charge receipt data and enforcement statistics.  We tapped into the databases of Catalyst.org for international EEO statistics. We also teamed up with our friends at Biddle Consulting Group in Folsom, California, analyzing the EEOC’s own EEO-1 data to measure the pace and trajectory of women and minorities toward achieving top jobs (Official/Manager), across industries.

We learned that despite earlier gains, women have not made significant strides toward greater representation in the Official/Manager ranks over the past decade; since 1998, the percentage of women holding these top jobs has hovered around 8%, graphically depicting a long flat line. Our findings comport with those reported by Catalyst.org: women make up nearly half of the workforce, but less than 10% actually reach the top.   Women of color have fared particularly poorly in achieving management jobs.

Our findings regarding “Minorities” reveal just why we cannot logically or legitimately lump everyone together in a single “Minority” group.  Although the pace appears [too] slow, Latinos have made progress toward achieving Official/Manager positions, a slight upward trajectory that we found encouraging. Equally encouraging, Asian Americans, a classification that includes people of Asian and Middle Eastern descent, have significantly narrowed the gap with Whites in attaining Official/Manager positions, showing a steady increase since 2002.  African-Americans have lost ground since 2008, however, and have fallen behind Latinos, in their march toward inclusion at the top; unemployment still hits the African-American community the hardest.  Given the historic election of President Barack Obama, and the appointment of Jacqueline Berrien, a former NAACP attorney, as Chair of the EEOC, this finding startled us, and deserves further analysis.   Fortunately, after a long battle under the Freedom of Information Act (FOIA), the EEOC has agreed to make a broader swatch of historic EEO-1 data available for academic research.

Has Our Work . . . WORKED?

When we evaluate measurements of progress that actually matter–e.g., unemployment, advancement, international leadership–responsible policymaking requires us to wonder whether our WORK (i.e., the current enforcement scheme) has actually worked (i.e., delivered the desired results).  Data shows that while this enforcement scheme may not have delivered the desired results (i.e., increased opportunity, decreased discrimination), it produced the intended one—namely, a full wealth redistribution loop between employers, insurance carriers, defense attorneys, and employee-side lawyers in which little changes except money changing hands.   Indeed, under our current enforcement model—i.e., EEOC administrative enforcement and prosecutions, and private civil litigation under the Civil Rights Act of 1991 (CRA 1991)—money counts as progress, while actual progress toward equal employment opportunity has stalled.

CRA 1991, like analogous enforcement schemes in several states such as California and Colorado, significantly increased the remedies available to employees accusing employers of workplace discrimination—e.g., compensatory/punitive damages, attorneys’ fees, jury trials.   In pressing for CRA 1991’s passage now nearly 25 years ago, trial lawyer groups lobbied stakeholders and Congress with this pledge:

Make employment discrimination disputes ‘worth it’ for us to prosecute by ratcheting up the available remedies against employers, and employers will stop discriminating and then equal employment opportunity will flourish. 

After its passage, CRA 1991’s punitive, litigation-based model (i.e., the stick) initially worked.  Smart employers, appreciating the significant risk and expense of discrimination disputes, started constructing internal HR infrastructure designed to prevent and defend against them.  A highly profitable cottage industry of HR and AA consultants, employment law boutiques, national workplace defense firms, and training vendors sprung up around the risk of discrimination disputes.  Most employers got the message, and took affirmative steps to protect themselves from the sting of CRA 1991’s enhanced damages and skewed attorneys’ fee awards.

And, of course, where there is risk, the insurance industry provides a remedy: over the past 25 years, Employment Practices Liability Insurance (EPLI) has proliferated among employers, largely out of sheer necessity.  Without EPLI, most employers simply cannot afford the suffocating expense of non-recoverable defense fees, let alone the risk of an adverse judgment with the automatic order to pay plaintiff’s attorneys’ fees—i.e., amounts often exceeding six figures. By design, EPLI took the sting out of CRA 1991’s stick, covering defense costs, settlements and judgments.  As a result, employers now treat allegations of intentional discrimination like any other insured (and unavoidable) business risk, which effectively eliminates incentives to modify behavior and rehabilitate workplaces.  Because of EPLI, CRA 1991 no longer stings.

Besides, EEO disputes arising out of legitimate everyday personnel actions have become so pervasive, many employers now legitimately wonder whether they really can prevent them.  After all, discrimination is difficult to prove, but easy to allege, and the allegation itself (untrue as it may be) immediately triggers a cost-of-defense conversation that many employers have cynically characterized as “extortion”—i.e., I need to pay this terminated employee and her attorney $35K to settle EEOC allegations because I cannot afford the non-recoverable cost of proving that I did NOT discriminate in the first place???  At that point, the EEO dispute ends in the usual way:  with a check from the employer’s EPLI carrier to the employee’s attorney.  Money changed hands, but nothing really changed.

The more we evaluate CRA 1991’s efficacy at this historic milestone, the clearer it becomes that this enforcement model no longer works, by itself or at an acceptable pace, to advance the March toward real equal employment opportunity.  In fact, as a self-loathing lawyer myself, I fear that with CRA 1991 and similar state schemes like Colorado’s HB-1136, we entrusted the March to lawyers, and lawyers have done what lawyers often do: find a way to make money on a problem without actually solving it.

Eight Sparks (and Counting) to Jumpstart Our March

Ending discrimination and securing equal employment opportunity for the generations marching behind us should become our singular purpose as we pass this historic milestone in July, 2014.  Thus far, our methods have centered on legal processes and “solutions”—i.e., CRA 1991, analogous state remedial enhancements, and other legislation that creates new workplace claims for private litigation enforcement.  These legislative schemes come from attorneys for the benefit of attorneys, and are deeply rooted in institutionalized myopia; after all, as famed psychologist Abraham Maslow once observed, “He who is good with a hammer thinks everything is a nail.”  At EEO Legal Solutions, however, not all the solutions are “legal,” the natural byproduct of our faith in the SUPERIORITY of multicultural and multidisciplinary approaches to problems.   The sparks that will jumpstart our March will come from many sources, places, and disciplines.

We intend to build on this work for years to come, especially as we near CRA 1991’s 25th anniversary in November, 2016.  We urge practitioners from a variety of fields to contemplate other “sparks”, both within their organizations and the global business village, to stimulate progress toward EEO on the ground (e.g., workplaces, schools, arts/cultural/sports organizations), where it matters most.   Some sparks may never fully catch fire or light the path.  But we must be willing to experiment with (and evaluate) a variety of initiatives, instead of blindly adhering to a legal enforcement model that stopped working a while ago.

1.  Measure What Matters

Start here.  In evaluating the efficacy of any intervention to address a measurable social problem like inequitable employment opportunity, we start by visualizing success, as Dr. King did in his landmark “I Have a Dream” speech in August, 1963.  Once fulfilled, what does the dream of equal employment opportunity look like? Title VII’s architects and proponents certainly never dreamed that employer monetary payouts would one day measure our progress.  Instead, they likely dreamed about (a) the advancement of minorities/women toward top jobs, especially in government; (b) comparable unemployment rates among racial groups; (c) improved perceptions of racial equality/opportunity in the workplace; and (d) maybe even EEO leadership among other industrialized nations, to name only a few desired (and measurable) outcomes.

Stakeholders (e.g., employers AND civil rights advocates) must demand that the EEOC stop counting employer payouts as progress and start providing more meaningful, accurate benchmarks.  After all, the EEOC controls a mountain of EEO-1 data from which academics and researchers can draw valuable conclusions about our progress toward equal employment opportunity.  When we measure and focus our attention, efforts, research and resources on what matters (e.g., unemployment, advancement, leadership), desired outcomes will follow.

2.  Focus on the Fixes, Not the Fights and Factions

Title VII’s passage ended one chapter of a civil rights struggle that bore many hallmarks of battle and cultural warfare.  Growing up in St. Louis, Missouri in the late 1960’s and 1970’s, the language of battle and of fighting for civil rights became deeply entrenched in my psyche too.  These ideas guided my legal and social work studies at Washington University in St. Louis, and regrettably, followed me to the EEOC in 1997 as a young (surely insufferable) EEOC Trial Attorney, eager to rid the world of its “isms”.

Once at the EEOC, however, I quickly realized that this rhetoric of “battle,” “fighting,” and “changing hearts and minds through litigation” often just masks, in the most Machiavellian sense, baser impulses like ego and greed.  Today, very few civil rights “gladiators”—i.e., attorneys willing to champion EEO cases without a guaranteed payday—actually remain, a reality that became disturbingly apparent during the passage of Colorado’s HB-1136 in 2013.  Since CRA 1991, trial and employee-side lawyers have made EEO about money, under the guise of “fighting for civil rights.”  After all, if these “gladiators” cared as much about EEO and civil rights as money, then their willingness to prosecute these claims would not have depended so dearly on CRA 1991’s and HB-1136’s passage.

No civil rights movement has ever succeeded without allies.  Photographs from the March in August, 1963 depict people of all colors, ages, religions, sizes, gender, etc. coming together for the singular purpose of leveling the playing field for future generations.  Today, however, CRA 1991’s highly adversarial victim/villain model squanders opportunities to build on shared values among the employer and civil rights communities, particularly among HR, AA/EEO, and recruiting professionals.

Rampant “tribalism” among civil rights villages and academic researchers has become another great obstacle in the March.  Unlike the unity of 50 years ago, today’s civil rights movement has Balkanized into discrete factions, each “fighting” for the rights of minorities that look, think and act just like themselves, without building bridges between them. Academics have also proven notoriously tribal, eschewing input from other disciplines, as well as the business community where real reform takes place.  Meanwhile, other well-meaning civil rights advocates have become so focused on this concept of an on-going FIGHT that they have completely neglected the FIX—i.e., ways to measure and promote equal opportunity.  The path forward requires greater collaboration among businesses, attorneys, governmental agencies, academics, and civil rights leaders, and a unified focus on the fixes, not just fights and factions.

3.  Demand that the EEOC, As A Federal Law Enforcement Agency, Provide Accurate and Complete Information to Stakeholders

EEO Legal Solutions has long criticized the EEOC’s longstanding press policy of releasing information only about its new lawsuit filings, settlements, and occasional wins. By releasing information only about its successes and new filings, the EEOC paints an extremely distorted portrait of the actual enforcement landscape. In our CRA 1991 climate, employers must parse through varying iterations of EEO law, further complicating everyday personnel decisions.  Can employers trust the EEOC to tell them the full truth about the success or failure of its various enforcement initiatives, prosecutions, or legal interpretations?  Further, even for EEOC supporters, the idea of a federal enforcement agency telling stakeholders only what it wants them to know should conjure up the word “propaganda.”    As a law enforcement agency, the EEOC has an obligation to provide an accurate depiction of the actual legal landscape: when it wins, loses, and gets sanctioned.

4.  Provide Affordable (or FREE) Compliance Resources

Unlike other administrations, the Obama EEOC has devoted few, if any, resources to providing FREE (or affordable) training to employers.  The EEOC’s upcoming 2014 Excel Conference in San Diego, California, costs well over $1,300, excluding airfare, fees that most strapped corporate training budgets simply cannot bear.  The EEOC offers no FREE webinars for employers, even though technology makes webinars affordable for hosts (i.e., less than $10,000) and easily accessible for participants.   And, the EEOC has done a poor job partnering with local HR, chamber and business organizations on compliance programming, even though most employers welcome guidance, more here.  Thus, employers obtain most of their information about EEO compliance from Biglaw marketing departments.  We, and other organizations like Biddle Consulting Group Institute (BCGi), strive to fill this informational gap through FREE, skill-based webinar programming, but the EEOC can, and should, fulfill this important role, as it has done in the past.  After all, modeling HR and EEO excellent outcomes actually works better than prosecuting discriminatory ones.

5.  Partner with Employers on the Development of an Ombudsman Program

Trial and employee-side lawyers often retort that CRA 1991’s privatized litigation model is all we have; what else is there?, assuming the question rhetorical.  In reality, the U.S. Department of Labor (DOL) has proven far more successful at partnering with employers on initiatives that incentivize positive employment outcomes instead of simply prosecuting bad ones.  In the Affirmative Action arena, each administration has used its “power of the purse” (i.e., the carrot) to require employers wanting or having federal contracts to monitor its applicant flow, prepare reports, and submit to affirmative action audits of its hiring practices, as in Executive Order 11246.  Indeed, the Obama administration has contemplated using its power to award government contracts to prohibit discrimination against Gay, Lesbian, Bisexual, and Transgender (GLBT) employees, absent the votes to secure actual legislation. This executive “purse power” (i.e., linking EEO outcomes to incentives like government contracts) has far more power to reform the workplace than the prospect of litigation, where an insurance company pays the bill and assumes the risk anyway.

The DOL has also created far more effective liaisons with other agencies and volunteers to address specific workplace concerns.  As one example, to promote reemployment after military deployment, the DOL has united with the Department of Defense and retired military and community volunteers to spearhead an Ombudsman program as part of Employer Support of the Guard and Reserve (ESGR).  ESGR’s sole function is to intervene quickly in and resolve workplace disputes potentially arising under the Uniformed Service Employment and Reemployment Rights Act (USERRA).  This ombudsman approach actively seeks to preserve employment by quickly acquainting employers with clear, accessible, and affordable compliance resources on USERRA’s requirements.  If, however, the volunteer ombudsman cannot resolve the dispute, the aggrieved employee may file a charge with VETS of the DOL, which will conduct a substantive investigation and provide relief.  And, compared to EEO-based litigation, USERRA disputes in federal court are extremely rare.  Under this collaborative, ombudsman approach, everyone wins: the employee keeps her job and/or has access to meaningful redress in the DOL, while the employer avoids the staggering cost of litigation.

These more collaborative enforcement models have long existed within the DOL and its sub-agencies (e.g., OSHA, OFCCP), and show promise for the quick, cost-effective resolution of workplace EEO disputes without litigation, and with a focus on reinstatement and job preservation.  Under our CRA 1991 model, reinstatement seldom enters the settlement equation for one reason only: trial and employee-side “gladiators” cannot take a contingency fee on reinstatement, thereby reducing virtually every EEO dispute to a cold-cash transaction where nothing changes except money changing hands.  Likewise, given the EEOC’s emphasis on MONEY as the measure of its success and our progress, large monetary settlements count more than employee reinstatements, a measurement that the EEOC does not even track.  Our methods for ensuring equal employment opportunity should be inherently employment preserving. 

6.  Invest in Inclusiveness and Start Young

By the time the next generation reaches the workforce, it is already too late: the opportunity to convince a young girl with a disability, an immigrant, a homeless kid, a gang member, a transgender teen, or learning-challenged tough guy that they BELONG at the PowerTable has long passed.  For that reason, we must invest in opportunities to promote inclusiveness at all levels.   And, we must start young.

Each year, EEO Legal Solutions partners with Junior Achievement to provide a “PowerTable” experience for several young stars that shone particularly bright during its annual Business Week camp each summer.  At a local power-event in the business community, these young stars get to network with politicians and business leaders, eat dry chicken, and hear incredible entrepreneurial stories of failure and recovery.

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For everyone, the experience is powerful.  The young stars learn that if you can see it, you can BE it and that they BELONG at the PowerTable.  For the grown-ups, the PowerKids model the value of an inclusive community of leaders.  But more than anything else, the experience of just hobnobbing at a local power-event breeds more opportunity, generating even greater prospects for mentoring, networking, collaborating, and even summer jobs. This small investment in inclusiveness works, and gives economic minorities the tools they need to break through glass ceilings and other barriers en route to their goals, business or otherwise.

7.   Where Feasible, Let Technology Foster Greater Workplace Flexibility and Opportunity

For parents, flexibility means opportunity.  Still today, women assume the primary caregiving role in the family, a reality that is changing as more men opt to stay home. Thus, for many women, more flexible work arrangements over the past 25 years could have made the difference between keeping and quitting their careers.

Technology has torn down workplace walls and redefined how (and WHEN) work gets done, something the next generation of high professional already knows. Recently, a professor friend from Harvard observed, “Gone are the days of the panicked campus; these kids are writing their papers and studying for exams at the beach somewhere.” If these kids can ace their Harvard exams and papers while working at the beach, they will, no doubt, expect, demand and/or create similar flexibility in their workplaces. And for women (that is, parents) flexibility opens up a world of opportunity.

8.     Tie Progress to Profits: The Business Case

Years of representing employers have yielded many important insights, but none greater than this one: if you want to change how business thinks about business, you must make the BUSINESS (i.e., greater profitability, decreased risk/cost) case.  Civil rights gladiators, EEOC Commissioners and careerists, and policymakers overlook this obvious, but important principle of effective advocacy: to be persuasive, you must first learn the language.  As the March advances, we must make the BUSINESS, not the social justice or “karmic” case, for equal employment opportunity and inclusive decision-making.

As research clearinghouses like Catalyst.org gain strength and recognition, the business case for workplace multiculturalism and inclusive decision-making comes into sharper focus.   Organizations with inclusive and flexible policies, with excellent track records for promoting women/minorities, and with higher percentages of women/minorities in leadership positions PERFORM BETTER on several key business metrics, including profitability.  These more progressive companies understand that attracting and retaining TOP TALENT means creating a welcoming and flexible work environment for its greatest asset, its PEOPLE, to flourish.  They also understand that diverse decision-makers make encompassing, well-rounded and inclusive decisions that cover more bases and by extension, benefit and/or or appeal to more people.

Years ago, my family visited Mesa Verde National Park in southwestern Colorado, recommended for everyone’s Bucket List.  As we toured the ruins, I overheard our guide say, “You can tell that the ancient Puebloans started to interact with other cultures because their civilization then advanced so quickly.”  I blinked hard, and asked her to repeat herself.  She spoke the same words, this time suspiciously and really slowly. You just brilliantly summed up the BUSINESS CASE for multiculturalism, inclusive decision-making and equal employment opportunity, I sputtered.  The answer, or at least one of them, comes from Anthropology.

When we humans interact with other cultures (even other academic disciplines), we learn.  We grow.  We advance, on matters ranging from the sublime (i.e., That theology inspires and resonates with me!) to the mundane (i.e., I did not know chicken could taste so good!).  At the risk of sounding trite, our strength as a nation derives from our DIFFERENCES, and our uniquely American ability to marshal a wide variety of multicultural and multidisciplinary perspectives to solve our most pressing social problems, particularly the stalled march toward equal employment opportunity.

As progressive companies continue to prosper, they will serve as a positive example to other employers: if you want to remain competitive, you must (a) invest in an inclusive workforce and C-suite; (b) mentor economic minorities to pave the pathways to top jobs; and (c) use technology to retain top [parent] talent, to name just a few “sparks.” Once employers fully understand the economic benefits of equal employment opportunity (i.e., the carrot), the “stick” of privatized litigation enforcement will become obsolete.

Over the next 50 years, the march toward EEO must focus on the FIXES of the future, not the FIGHTS perpetuated by lawyers for the benefit of lawyers.  We still have a long way to go before fulfilling Dr. King’s dream and Title VII’s promises, but the path forward requires greater collaboration, less litigation.  Our progress toward equal employment opportunity depends on it.   Please join the conversation.

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

July 2, 2014

For Carly, Sophie, Ezra and Daemo

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