More Brainstorming, Less Blamestorming

Does EEOC General Counsel David Lopez Really Belong “Under the Bus”?


On January 27, 2014, EEOC Commissioner Constance Barker delivered the keynote at ACI’s Employment Practices Liability Insurance seminar before an audience teeming with defense lawyers and EPL carriers.  According to the Seyfarth Shaw’s description of her speech, Commissioner Barker acknowledged that the Obama Administration has used its executive, regulatory powers to make new law, given that the gridlock in Congress makes worker-friendly legislation difficult to pass.  She forecasted that because of “too much delegation of litigation decision-making” in the hands of EEOC General Counsel David Lopez, employers can expect more aggressive, extensive litigation in 2014.  She suggested that EEOC Commissioners should enjoy a greater role in deciding which cases the EEOC pursues in litigation, as though the GC (and the EEOC Legal Units) bear the fault and shame exclusively for the EEOC’s recent litigation debacles.  She then suggested that the EEOC’s Strategic Enforcement Program (SEP) will govern the regulatory efforts of EEOC personnel in the Field.  And finally, she predicted that litigation (and specifically, systemic litigation) will take precedence over discrimination prevention efforts.

Commissioner Barker’s comments reveal one of the EEOC’s historic institutional dysfunctions—i.e., the tension between EEOC Commissioners and the GC, all of whom are presidentially appointed upon Senate confirmation.  As a former EEOC Trial Attorney (1997-2000), I interpret her comments as an effort to deflect blame away from herself, Enforcement, and other Commissioners for the EEOC’s recent litigation failures in ADA and systemic matters.  But, these EEOC litigation failures simply reflect the iceberg’s tip of its bureaucratic defects—e.g., a legalish “enforcement” agenda, a warped measurement of efficacy, and an exploitative mediation and conciliation process that the Commissioners theoretically control on the Enforcement side of the EEOC house.  Remember that a long tortured Enforcement investigation necessarily preceded these litigation failures, which likely cost the employer MORE than the USDC litigation itself.

In last two Performance and Accountability Reports (PAR), the EEOC has equated its historic collections from employers as “enforcing the law more effectively.”  Employer MONEY has become the new “metric that matters” at the EEOC, and now drives the behavior of its personnel in the ADR (mediation) and Enforcement (investigation/conciliation) units.  Even though the Commissioners publicly peddle the SEP, its PAR’s still define success by how much money the EEOC has exacted from employers on behalf of “victims”, regardless of charge merit.  As our EEOC Mediation Study revealed, because money means “success”, EEOC personnel routinely exploit employers’ cost-of-defense conundrum, even threatening the use of EEOC enforcement powers to increase settlement payouts to employees and their attorneys.  Money changing hands, however, is no substitute for real EEO change.  

Particularly in this regard, the EEOC’s Enforcement and ADR Units inflict far more financial pain on employers than the Legal Unit in USDC litigation.  In FY2013, for example, the EEOC again collected a record amount of money, $371.1 million, from employers, broken down in Figure 1, below.  Collections resulting from verdicts and settlements in litigation made up only a very small part of the EEOC’s overall take in FY2013; by contrast, over 80% of dollars collected from employers came from Enforcement (i.e., typically during “conciliation,” after a finding of Reasonable Cause) and/or Mediation.

Figure 1

EEOC Money FY2013

More concerning, the EEOC’s administrative processes (e.g., Enforcement and ADR) occur under the carefully guarded cloak of confidentiality and “government deliberative process privilege,” which permits the EEOC strenuously to resist any judicial inquiry into its conduct.  Under the Freedom of Information Act (FOIA), the EEOC mechanically refuses to release charge information even to Respondent-Employers, unless and until a lawsuit already makes the allegations a matter of public record; even then, EEOC FOIA personnel redact any information that could invite scrutiny or criticism as “government deliberative process,” such as the basis for the Determination, the quality of the investigation, and the sufficiency of its conciliation efforts.  In peeking behind this EEOC’s iron curtain of confidentiality and “deliberative process,” however, our EEOC Mediation Study showed that EEOC personnel in the field seemed far more motivated by the “money metric” than some SEP cooked up by EEOC Commissioners in an ivory tower called “Headquarters.”  In reality, EEOC-initiated litigation marks the first opportunity to shine a spotlight on an otherwise confidential regulatory process, such that the EEOC’s litigation failures in systemic and ADA matters are just the first visible symptoms of more pervasive problems.   

Deflecting Instead of Doing

EEOC Barker then seemingly complains that because the EEOC’s prosecutorial discretion rests with the GC and not the Commissioners, litigation will continue to take precedence over EEOC prevention and compliance efforts.  This statement struck a dissonant (okay, disingenuous) chord: if the EEOC Commissioners sincerely bemoaned the likely increase in litigation, one would hope that they would take reasonable steps to mitigate its impact by investing MORE in EEOC compliance and prevention efforts.  After all, the Enforcement (i.e., Commissioners) side of the EEOC controls prevention programs and outreach. 

In various public outlets, we have suggested some cheap AND easy compliance programs that the EEOC COULD launch if it truly valued problem prevention–e.g., webinars, a YouTube training library, affordable Excel programming, publication of wins and losses so that employers have an ACCURATE view of the enforcement landscape.  These programs would fall squarely within the budgetary and organizational province of EEOC Commissioners, not its GC.  Given that the EEOC Commissioners have emphasized employer money as the measure of its success, however, it seems reasonable to question their commitment helping employers prevent EEO violations. Prevent works, but apparently, it does not PAY.  Likewise, ensuring that the EEOC maintains the credibility of its allegedly impartial ADR program also lies at the feet of EEOC Commissioners, not its GC.  And, defining meaningful measurements of success toward EEO (i.e., not employer payouts) is an inherently policy-related EEOC Commissioner function.  In this historic year, therefore, we would urge the EEOC’s Commissioners to stop deflecting blame for EEOC litigation failures, to recommit to improving EEOC’s problems directly within their control, and to start investing in collaborative efforts with employers to fulfill Title VII’s objectives.  After all, CRA 1991’s litigation-based enforcement approach has not worked well to secure equal employment opportunity anyway.