Part I: Measuring What Matters at Title VII’s 50th Anniversary
Title VII of the Civil Rights Act of 1964 (“Title VII”) will turn 50 on July 2, 2014. Over the past year, we have already observed the 50th anniversary of Dr. Martin Luther King’s March on Washington for Jobs and Freedom, as well as the assassination of John F. Kennedy, significant historic events that prompted Title VII’s passage. In his famous “I Have a Dream” speech in August, 1963, Dr. King entrusted our generation with the important task of keeping the march toward equal employment opportunity moving forward and developing new, innovative ways to deliver on Title VII’s promises.
We’re failing, not only these civil rights trailblazers, but also the kids marching behind us.
Employer Money: A Poor Proxy for Progress
In passing Title VII, Congress created the U.S. Equal Employment Opportunity Commission (EEOC) to eliminate workplace discrimination “through informal efforts of conference, conciliation and persuasion.” Nearly 25 years after its passage, trial/employment lawyers urged Congress to amend Title VII to allow for jury trials, compensatory/punitive damages, and automatic attorneys’ fees awards. They insisted that if Congress made it worth it (financially) to prosecute discrimination matters in court, they– as mini-deputized Attorneys General–would help an underfunded EEOC end discrimination and by logical extension, foster equal employment opportunity for Title VII’s beneficiaries. To learn more about CRA 1991’s brief legislative history, click here.
Since adopting CRA 1991’s “gladiator” enforcement model of Title VII, a tremendous amount of money has changed hands between employers, Employment Practice Liability (EPL) insurance carriers, trial lawyers, defense attorneys, and employees who raise allegations of workplace discrimination, harassment or retaliation (collectively, “discrimination”). In fact, for at least the past two fiscal years, the EEOC has measured its efficacy by the amount of money it has 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.”
But does the amount of money collected from employers really measure our progress toward eradicating discrimination and promoting EEO?
Of course not, and the EEOC knows better. First, a recent survey of employers regarding common statements that EEOC mediators make in its “fabulously successful” ADR Program shows that mediators emphasize cost-of-defense, not charge merits, when encouraging employers to pay more money to resolve discrimination charges. EEOC mediators even threaten [disingenuously] EEOC enforcement action (e.g., cause determinations, systemic investigations, and prosecutions) to ratchet up employer monetary payouts. Accordingly, the EEOC is well aware that cost-of-defense considerations, more than charge merit, now drive employers’ settlement deliberations. In fact, the EEOC exploits that state of affairs so that it can later equate its efficacy with the amount of money it has “secured” on behalf of “victims.”
Second, because of the proliferation of EPL insurance following CRA 1991, employers and EPL carriers now treat ostensibly intentional discrimination claims like any other unavoidable, insured business risk. Based on business (i.e., cost-of-defense) considerations alone, EPL carriers routinely pony up $25K to $50K in settlement proceeds, just to dodge suffocating defense costs. Without EPL insurance, most employers can no longer afford to fight even when they’re right given the non-recoverable nature of defense fees. By design, EPL insurance took the sting out of the stick of CRA 1991’s enhanced remedies and amplified risks. Now, money changes hands in an automatic cycle of employers, EPL carriers, defense attorneys, trial lawyers, and then lastly discrimination claimants. The amount of money changing hands, however, makes a poor proxy for progress toward equal employment opportunity.
More Meaningful Measurements
Ultimately, a candid assessment of how far we have come at this historic, 50-year milestone begins with measuring what matters. 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; (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 outcomes. We welcome your additions to this list; please join the conversation.
Looking for progress through this analytic lens, the march toward equal employment opportunity has decelerated for most of Title VII’s intended beneficiaries; African-Americans have actually lost ground in recent years.
Private Sector Progress of Women/Minorities toward Attaining Official/Manager Jobs
EEO Legal Solutions recently teamed up with Dan Kuang, PhD of Biddle Consulting Group, LLC in Folsom, California to analyze publicly available EEO-1 data from 1998-2012. The EEOC requires all employers with 100 or more employees to provide an annual “EEO-1” report regarding the gender, racial, and ethnic composition of their workforces, resulting in a large database of granular employment data across industries. Our analysis measured the pace and trajectory of women, Latinos, Asians, and African-Americans toward achieving top jobs across industries—i.e., Official/Manager positions in EEO-1 speak. How far have women/minorities come in reaching the top?
Here’s what we discovered:
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”, however, 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 find 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 steep increase since 2002. African-Americans have lost ground since 2008, however, and have fallen behind Latinos, in their march toward inclusion at the top. 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.
Improved Opportunity for African-Americans in the Federal Workforce
In a 2013 report, the EEOC has openly acknowledged that despite its greater control over federal sector discrimination issues, African-Americans still face significant obstacles in obtaining employment and advancing within the federal personnel system.
Comparable Rates of Unemployment Among Racial Groups
According to a U.S. Department of Labor, Bureau of Labor Statistics employment report issued on March 7, 2014, unemployment remains highest among African-Americans, with a sharp spike in 2010. Latinos follow in a distant second, but Whites now outrank Asian Americans in terms of overall unemployment rates. The burdens of unemployment, and of economic downturn, are not evenly shared, still hitting African-Americans the hardest.
Improved Perceptions of Workplace Fairness
The election of President Obama initially infused everyone with the hope that racial barriers (and maybe even gender, sexual orientation, and disability barriers) were starting to crumble. According to a recent Gallup poll, however, a majority of African-Americans still feel disadvantaged compared to Whites in obtaining employment. Notably, African-Americans’ confidence in equal employment opportunity has waned since 1995, shortly after the implementation on CRA 1991. Further, the EEOC continues to take in nearly 100,000 new charges of discrimination every year, which suggests that increasing numbers of employees perceive their workplaces as discriminatory.
International EEO Leadership among Modern Societies and Economies
The U.S. is ranked at 69th in the world in terms of women’s representation in national legislatures or parliaments (tied with Turkmenistan) out 188 direct election countries (as of October 31, 2011), down from 57th in November 2004. The U.S. lags behind Israel, Canada, and even South Africa in the number of female CEO’s, and behind many European nations in the number of women holding seats on boards of directors. In fact, the U.S. has fewer female Board chairs than Turkey, South Africa, and the Philippines.
Title VII’s golden anniversary provides a golden opportunity to assess whether our methods have worked to promote equal employment opportunity. Given foreseeable market responses to CRA 1991, particularly the proliferation of EPL insurance among employers, this privatized litigation enforcement model no longer works, by itself or at an acceptable pace, to fulfill Title VII’s promises. At one historical point in the march, the notion that the EEOC and “gladiator” trial/employment lawyers could reform the American workplace initially resonated with me and made me believe in a victim/villain paradigm of employment disputes that, I quickly discovered while working at the EEOC, bears little resemblance to reality. With 20 years of data to draw on, however, we must now accept that with CRA 1991, Congress entrusted the march toward equal employment opportunity to trial lawyers, and trial lawyers have done exactly what trial lawyers do–namely, find a way to profit from the problem without actually solving it.
Please stay tuned for Part II where we will address specific non-litigation based policy recommendations to jumpstart our march toward equal employment opportunity.
Merrily S. Archer, Esq., M.S.W.
March 12, 2014