Numbers EEOC Hopes You Won’t Notice


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

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

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

Data EEOC Highlights


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

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

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

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

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

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

Data EEOC Downplays

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

  • Reasonable Cause/No Reasonable Cause Determinations

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


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

  • Employment Practices Yielding EEOC Charges

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

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

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

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

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

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

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

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

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

Looking Back, Looking Ahead: The March from Here

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

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

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

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

February 24, 2016

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


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

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

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


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

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

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

EEOC Conciliation Bullying Necessitates Judicial Oversight

Conciliation in the Bewitching Season

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


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

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

The Mach Mining Conciliation Experience: Bluffing and Bullying


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

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

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

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

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

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

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

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

Figure 2

EEOC Collections FY2013

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

Conciliations: Confidentiality of Convenience

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

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

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

The Stakes for the EEOC and Employers

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

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

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

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

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

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


Recording Available: Tech Solutions to EEOC Pregnancy Accommodation Problems

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


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

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

Listen in here!

Register for this Webinar

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


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

The Tiger Remains Toothless

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

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

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

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

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

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

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

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

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

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

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

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

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

They concluded that the EEOC’s

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

Different Paths, Same Conclusion

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

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

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

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

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

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

Managerialism and the Money Metric

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

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

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

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

Figure 1


Figure 2


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

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

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

Figure 3

EEOC Collections FY2013

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

Going Further . . .

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

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

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

Recording for “The March at 50: Where Do We Go From Here?”

When: 07-30-2014 | 12:00 pm MDT


Title VII of the Civil Rights Act of 1964 (Title VII) turned 50 earlier this month.  When we measure what matters, however, this important milestone leaves little cause for celebration.  This webinar addresses the fundamental questions that the EEOC, lawyers, legislators and even civil rights advocates have apparently ignored: (1) how far have we really come?; and more importantly, what can we do BETTER to advance the March toward Equal Employment Opportunity (EEO)?  In this webinar, we also make specific policy recommendations (i.e., “sparks”) to jumpstart our progress, focusing on initiatives that have proven more effective at resolving workplace disputes than our current litigation-based enforcement model.

EEO starts in HR, and HR will continue to play a critical role in advancing our March.  We hope you enjoy this recorded webinar.

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

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


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 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 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.

IMG_0987 (768x1024)

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 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


Under the Surface of EEOC Enforcement


Earlier this week, the U.S. Equal Employment Opportunity Commission (EEOC) asked the U.S. Supreme Court (SCOTUS) to grant Mach Mining LLC’s petition for certiorari, following its Seventh Circuit victory in December, 2013, here.  In EEOC v. Mach Mining LLC, the Seventh Circuit sided with the EEOC, holding that courts lack the authority to adjudge the adequacy of the EEOC’s pre-litigation conciliation efforts.  According to the EEOC, its administrative enforcement activities (e.g., mediation, investigation, determination, and conciliation) are immune from court scrutiny under the “government deliberative process privilege,” including the question of whether the EEOC has fulfilled its four statutory “conditions precedent” prior to initiating prosecution—e.g., charge, investigation, determination, and conciliation.

While the EEOC seeks a SCOTUS ruling that its enforcement activities are shielded from court (and public) oversight, Congress has also recently raised questions about the adequacy of the EEOC’s mandatory conciliation efforts prior to initiating litigation against employers. In the context of the EEOC’s budget request, a report from the House appropriations committee expressed concern that the EEOC has not, in fact, been conciliating with employers in good faith, and demanded some accountability:

Conciliation.—The Committee is concerned with the EEOC’s pursuit of litigation absent good faith conciliation efforts. The Committee directs the EEOC to engage in such efforts before undertaking litigation and to report, no later than 90 days after enactment of this Act, on how it ensures that conciliation efforts are pursued in good faith.

May 8, 2014 House Report.

As a former EEOC litigator (1997 – 2000) and longtime EEO defense attorney who successfully battles the EEOC, I worry that Congress’s budgetary control now stands as the ONLY means to hold the EEOC accountable for (1) the pain it unnecessarily inflicts upon employers; (2) more meaningful and realistic measurements of progress toward EEO; and (3) “law enforcement” that looks an awful lot like advocacy.  After all, the EEOC refuses to disclose any information about its investigations, decision-making processes, negotiations, and conciliation efforts.  In fact, even getting the EEOC to adhere to its own statutory disclosure obligations under the Freedom of Information Act (FOIA) involves much struggle, here. And now, the Seventh Circuit has slammed shut a possible judicial window into these super-secret EEOC administrative processes. But for Congress’s control of the EEOC’s purse strings, do employers have any recourse from an abusive administrative agency that measures its “efficacy” in the amount of money it collects from them?

The Dangers and Damages Occur Below the Surface

In addition to “government deliberative process privilege,” the EEOC also relies heavily on the statutory confidentiality built to Title VII of the Civil Rights Act of 1964 (“Title VII”) to resist disclosing any information about its administrative charge handling unless and until the matter becomes public with the filing of a lawsuit.  See § 706(b) of Title VII, 42 U.S.C. §2000e-5(b).  The combined effect of statutory confidentiality and “government deliberative process privilege” is an administrative process that occurs in secret, again, unless and until the EEOC (or the Charging Party) initiates a lawsuit in U.S. District Court.   Most charges, the EEOC would surely agree, never see the light of a courtroom; on the contrary, for most EEOC-related disputes, the real action (e.g., mediation, investigation, determination, conciliation) occurs below this surface of confidentiality and government deliberative process, like a dangerous iceberg.

Consider, for example, the monetary burden on employers.  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.”   According to the EEOC’s FY2013 Performance and Accountability Report (PAR), however, litigation accounted for only $39m of this historic take, whereas the EEOC’s Mediation (ADR) and Enforcement (e.g., investigator settlements, conciliations) programs took in the most money, as depicted in Figure 1.   Thus, employers feel the real financial impact of the EEOC’s enforcement activities in these confidential/privileged administrative processes, where questionable investigations, unfounded reasonable cause determinations, and perfunctory conciliations never reach the surface and public light.  How can an agency of the federal government inflict this much pain, with such little transparency?

Figure 1

EEOC Collections FY2013

 If Mediations, Then [a fortiori] Conciliations

Earlier this month, we released the results of our year-long survey of practitioners (e.g., HR, attorneys, EPL adjusters) regarding their experiences in EEOC mediations, ultimately hitting 780 responses.  Notably, we recently learned of other organizations that are using online surveys and social media to explore what happens to Respondents (e.g., employers, school districts) in these secret, administrative processes. Given how fiercely the EEOC and other federal agencies resist scrutiny, surveys and social media may be the only way to peek behind this iron curtain of carefully guarded secrecy.   We have other projects planned; please stay tuned.

Our EEOC mediation survey probed whether EEOC mediators made (or did not make) specific representations to employers in the mediation process; we then tested these representations against published EEOC information, including enforcement statistics.  Over 80% of practitioners reported that EEOC mediators emphasized the cost-of-defense when encouraging them to settle regardless of charge merits, here.  What impact, therefore, would threats of EEOC enforcement activity have on employers’ cost-of-defense expectations and by extension, settlement deliberations?

In fact, over 70% of practitioners reported mediator threats of reasonable cause determinations and prosecutions.  Worse, over 60% reported that EEOC mediators even raised the specter of expensive, lengthy systemic investigations if the matter did not get resolved.  After presenting these findings, we highlighted how improbable those outcomes were under the EEOC’s own Priority Charging Handling Procedures (PCHP) and published enforcement statistics.

Our ultimate conclusion shocked some, angered others, and resonated with MOST practitioners who have represented employers in EEOC mediations over the past few years:  EEOC mediators stress cost-of-defense, and then brandish  the EEOC’s enforcement powers (e.g., cause determinations, systemic investigations and prosecutions) to drive up employer settlement payouts.   For that reason alone, EEOC mediations are not “neutral” or a “wonderful opportunity to settle,” as the EEOC would have employers believe.  On the contrary, our findings expose EEOC mediations as a vehicle to ratchet up the one measurement that the EEOC counts as progress—i.e., employer settlement money.  We have questioned (and will continue to question) whether (a) wielding federal enforcement weapons to effectuate private settlements is a responsible use of governmental power; and (b) this accuse-and-settle enforcement scheme has actually worked to foster equal employment opportunity, here.

Nevertheless, if employers encounter exaggeration and bullying in the EEOC’s mediation process, what fate must befall them in the EEOC’s conciliation process?  Unfortunately, even experienced practitioners often misuse these terms interchangeably: unlike mediation, conciliation occurs after the EEOC has issued a reasonable cause determination to believe that a statutory violation has occurred and after the EEOC has technically taken a position adverse to the employer; by contrast, the EEOC takes an ostensible “neutral” stance in mediation, although our survey casts doubt on that representation too.

Based on our EEOC mediation survey (as well as my own experiences WITH and AGAINST the EEOC), I envision a conciliation process fraught with threats of prosecution, paired with cost-of-defense monetary demands far exceeding six figures, take it or leave it.  And, the EEOC has offered clues that this vision of the conciliation process may be accurate.  In its 2012 PAR, the EEOC credited the close collaboration between EEOC’s Legal and Enforcement Units for the record amount of employer settlement monies “obtained” in the conciliation process:

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

 FY2012 EEOC PAR, “Enforcing the Law More Effectively,” here.  As most practitioners quickly discover, the EEOC exercises its prosecutorial discretion through the General Counsel (Legal), not the Commission (Enforcement), such that the presence of an EEOC Trial Attorney in the conciliation process would certainly signal an intent to prosecute—i.e., the intended effect.  Under these circumstances, most employers would opt to settle in the still-confidential conciliation process rather than face a long EEOC prosecution, suffocating defense fees, and a brand-bashing EEOC press release.

Indeed, Congress needs to probe FURTHER the EEOC’s conciliation efforts, focusing on not only matters that reach the surface of litigation, but more importantly, on those conciliation negotiations that remain hidden below the surface of governmental deliberative process privilege and confidentiality.   If the courts cannot (or will not) provide this appropriate oversight and check on the EEOC’s use of executive power, then employers have nowhere to turn but Congress.  Dig deeper . . .

The EEOC Exposed: Does the Emperor Have Clothes?

The Obama EEOC has behaved more like an advocacy group than a federal law enforcement agency.  EEOC Commissioner Chai Feldblum has publicly stated that the EEOC’s job is to interpret the anti-discrimination laws entrusted to its enforcement, which raises some fundamental “separation of powers” and “checks-n-balances” questions about our tripartite system of government.  In effect, this EEOC’s “interpretive” law enforcement bent is like a cop pulling you over and saying

Under my novel, untested and possibly incorrect view of the law, you have just violated the law.  Now, you can pay $500K to prove me wrong, or you can settle for $250K now.

The EEOC possesses tremendous enforcement powers (e.g., to issue subpoenas, to investigate, to render determinations, to conciliate, to prosecute, to demand injunctive relief) that inflict pain on employers, even though it may be advancing novel legal theories and junk statistical methods.  In EEOC v. Kaplan (credit reports), the EEOC’s investigation, conciliation, and prosecution proceeded based on a statistical analysis that a federal judge, once the case reached the surface of litigation, tossed out as inherently unreliable.  Likewise, in EEOC v. Freeman (criminal background checks), a federal judge also tossed out the EEOC’s statistical analysis for “egregious errors” and extreme “academic dishonesty.” Read more here.  The employers in Kaplan and Freeman likely spent millions in non-recoverable defense fees fending off these EEOC incursions, incursions that were not grounded in competent facts and legal precedent.

In an EEOC prosecution that I defended a few years ago under the Americans with Disabilities Act (ADA), EEOC v. Picture People, I set out to prove that the EEOC conducted absolutely no investigation whatsoever into the essential functions of a retail sales position at the nucleus of its five-year campaign against a photography retailer.  An inevitable discovery dispute ensued after I issued a 30(b)(6) deposition notice to the EEOC—e.g., government deliberative process, burden to the government.  After a lengthy hearing, the U.S. magistrate judge ordered the EEOC to answer “contention interrogatories” about the investigative evidence undergirding its Determination that a deaf/mute person was “qualified” to perform a high-octane retail sales position requiring strong verbal communication skills.  The EEOC’s responses reveal an alarmingly perfunctory and partisan “investigation” that failed to take into account even the most basic employer prerogatives built into the ADA.  The EEOC’s prosecution ultimately failed—e.g., dismissed on summary judgment, affirmed en banc at the 10th Circuit.  This employer, however, endured five years of EEOC litigation, six figures in attorneys’ fees, and governmental “brand-bashing” at an incalculable cost, based on an incompetent (or simply arrogant) EEOC investigation and erroneous interpretation of the ADA.

Any governmental effort to resist transparency must be opposed in a free society. Experience teaches me that under this cloak of governmental deliberative process privilege and confidentiality lie legitimate opportunities to critique the EEOC’s competency and long-term efficacy, just based on the litigation that has recently reached the surface. In Picture People, the EEOC resisted transparency to conceal an incompetent investigation; in Kaplan, the EEOC cited government deliberative process to hide, among other botches, the reality that it engaged in the same hiring practice (i.e., credit scores) for which it was prosecuting this employer.  In fact, two extremely well-respected legal academics, Margo Schlanger of University of Michigan School of Law and Pauline Kim of Washington University School of Law, have recently published their longitudinal analysis of the EEOC’s litigation program, ultimately questioning its value as a tool to reform the workplace, here. If the EEOC’s litigation program—i.e., the cornerstone of our entire EEO enforcement model—is just another ineffective, bureaucratic burden, then all stakeholders (but particularly employers) should start asking fair cost-benefit questions about an administrative process so shrouded in secrecy.

Now that some courts have abdicated any oversight role in holding the EEOC accountable, only Congress’ “power of the purse” can pry open a window into the EEOC’s treatment of employers.  Given the EEOC’s resounding court defeats “above the surface,” employers must demand and/or find ways to CREATE more transparency into the EEOC’s super-secret administrative processes, or continue PAYING the consequences.

Merrily S. Archer, Esq., M.S.W., May 29, 2014

Recording Available! Building Model Workplaces for LGBTQ Employees

When: 06-25-2014 | 12:00 pm MDT


Here is the link to the FREE recorded webinar, Beyond Compliance: Building Model Workplaces for GLBTQ Employees featuring Courtney Gray of Colorado’s GLBT Center and Brent Houchin, Senior Employee Relations Manager at Denver Health.  This webinar received amazing participant reviews!


In celebration of LGBTQ Awareness Month, EEO Legal Solutions is teaming up with Brent Houchin, Senior Employee Relations Specialist at Denver Health, and Courtney Gray, Transgender Programs Manager at the GLBT Center of Colorado, for this FREE, interactive 90-minute webinar on June 25, 2014 at 12:00 p.m. (MDT).   We’ll address basic legal compliance–e.g., discrimination/harassment prevention, FMLA compliance, reasonable accommodations, and benefit administration—to help employers get it right before violations (and heartache) occur.

But we have higher aspirations than mere legal compliance; rather, we aim to furnish employers with the tools they need to build model workplaces for LGBTQ employees.  Most employers now understand that building model workplaces for LGBTQ employees boils down to attracting and retaining top talent.  Thus, this webinar will sensitize employers to common workplace problems facing GLBTQ employees and offer practical preventive solutions. We’ll also discuss “best practices” for supporting transitioning and transgender employees, who too often find that coming out means losing their job.   Finally, in hopes of further breaking down communication barriers, this webinar will include a moderated Q & A session for substantive questions.

Register for this Webinar

Of Course EEOC Mediations Are (or Should Be) Different!


In response Fox Rothschild’s republication of our EEOC Mediation Survey, a handful of practitioners weighed in: (a) one claimed that EEOC mediations are just like private ones;  (b) a contract EEOC mediator insisted he would never make the misrepresentations specifically identified in our survey; and (c) another practitioner reported he has had only positive experiences with his local EEOC mediators, here.

The first point—i.e., EEOC mediation are just like private mediations—merits a more substantive response, below.  As for the other two, the sheer volume of responses (780) and strength of the findings (e.g., over 70% of reporting threats of “reasonable cause” determinations and prosecutions) account for one-off, individual experiences.  That is, we designed a quick survey to elicit the feedback of numerous practitioners, not just the vocal ones, and to draw statistically supportable conclusions, not just report our opinions and personal experiences.  We’re delighted that some practitioners have reported good experiences, but the whole point of a survey is to develop an understanding broader than anecdotes.

Further, our survey did not intend to measure “satisfaction,” on the rationale that participants could simultaneously report satisfaction and evidence of mediator deception.  For that reason, we asked only whether EEOC mediators made a specific representation, and then juxtaposed those findings against published EEOC information.

Three Ways EEOC Mediations Are (or Should Be) Different from Other EEO Mediations

Unlike Private Mediators (or Magistrate Judges), EEOC Mediators Represent a Federal Agency that Wields Broad Enforcement Authority and Prosecutorial Discretion

Our survey revealed that EEOC mediators regularly threaten employers with “reasonable cause” determinations (73.7%), prosecutions (70%), and even systemic investigations (61%).  We then tested these representations against the EEOC’s own Priority Charge Handling Procedures (PCHP), and clarified that if any of these enforcement outcomes were LIKELY, the EEOC would not have routed the charge to the ADR program in the first place.  We also compared these representations to the EEOC’s own enforcement data, noting a considerable gap between their reported frequency and REALITY.

Unlike a private mediator (or even a judge), the EEOC was entrusted with numerous enforcement powers—e.g., to investigate, to issue subpoenas, to render determinations, and to prosecute employers.  Most of these activities occur below the surface, out of public view and under the heavy armor of “government deliberative process” privilege and statutory confidentiality, which the EEOC cites to resist judicial scrutiny of its administrative processes (e.g., mediation, investigation, conciliation).  These processes, however, possess tremendous power, by themselves, to inflict terrible financial pain and inconvenience on employers, even before actual PROOF of an EEO violation in court. Thus, our finding that EEOC mediators regularly brandish these powers (disingenuously, in reality) to encourage employer settlement payouts raises legitimate questions about (a) the objectivity of the process; and (b) the responsible use of governmental power.   The EEOC I served under Clinton would not have allowed Field personnel to get this close to the ethics fence.

Unlike Private Mediators (or even Magistrate Judges), EEOC Mediators Represent a Federal Agency that Measures Its “Efficacy” by Its Employer Collections

Different kinds of mediators come with different motivations.  Private mediators whom I have worked with over a long litigation career get paid by the hour and so, they seem motivated to help the parties get a deal done no matter how long it takes.  Magistrate judge mediators make their same government salary while they’re juggling five other matters in addition to your mediation, and so, they seem motivated to make your case (and you) go away as quickly as possible.  Our study ultimately asked this question: if (a) the EEOC equates efficacy with employer settlement payouts; and (b) the ADR program historically generates more settlement payouts than any other EEOC program, what would EEOC mediators say to make employers pay?

Our study suggests that EEOC mediators may be neutral toward the parties and the dispute, but certainly not toward OUTCOME, unlike any other mediation context.  On the contrary, if success is ultimately measured in dollars, EEOC mediators are inherently allied with Charging Party’s counsel, whose primary motivation is to maximize monetary payouts.   Perhaps for that reason, employers and practitioners who show up to EEOC mediations empty-handed or with small purses often encounter the barb that they are not negotiating in “good faith.”  In fact, EEOC mediations differ substantially than other kinds of mediation because at the outset, the mediator shares the underlying motivations of one of the parties.

Unlike Private Mediators (or even Magistrate Judges), MOST EEOC Mediators are Not Lawyers

Our study showed that EEOC mediators often forecast gloomy litigation outcomes and juror preferences.  Unlike private mediators or magistrate judges, most EEOC mediators are not lawyers; rather, most of them are longtime EEOC investigators who got promoted into their positions when the ADR program launched in the late 1990’s.  Thus, unlike the sage insights of battle-hardened judges and former litigators, most EEOC mediators mimic the “pro-wrestler speak” of trial lawyers.

Fancying itself an advocacy agency, the EEOC frequently forgets the important concomitant duties of balance and fairness that accompany prosecutorial discretion and governmental deliberative process privilege.  To suggest, therefore, that EEOC mediations are just like any other mediation (a) misses the point of our survey; and (b) ignores the public duties (e.g., fairness, balance) that temper governmental power.

Ultimately, given the EEOC’s focus on employer settlement payouts as the measure of its efficacy, we question whether the EEOC’s programs, processes, burdens and initiatives have WORKED to actually deliver equal employment opportunity based on far more meaningful measurements of progress.   We’re trying to further the march toward EEO by asking, What can we do differently (better) to improve access to top jobs, equalize the burdens of unemployment, become an international leader in the benefits of multiculturalism, level the playing field in the federal sector, etc.?  At this historic milestone (i.e., Title VII’s 50th on 7/2/14), it is not enough to say “We have much work to do,” a clear EEOC talking point.  Rather, responsible policy-making requires us to evaluate whether past interventions have proven effective and to develop positive approaches based on programs that have actually worked.

Please stay tuned for “Seven Sparks to Jumpstart the March Toward Equal Employment Opportunity”, which we plan to publish in the coming weeks.

Merrily S. Archer, Esq., M.S.W., May 26, 2014

Five Employer Takeaways from the EEOC Mediation Survey

What You Don’t Know Can Cost You


In late 2013, EEO Legal Solutions released the then-available results of its EEOC Mediation Survey, which Bloomberg BNA republished in January, 2014.  Other media outlets also picked up our preliminary findings, and even tried to elicit a response from the EEOC.   After four months, the EEOC finally responded to other media inquiries.   It denied any knowledge of our findings, despite published documentary proof that EEOC Commissioner Chai Feldblum requested (and we provided) survey data charts in January, 2014.   Since then, the response rate increased to 779, bringing the overall picture about common EEOC mediator tactics into sharper focus.

We had hoped, however, for 1,000 responses from an evenly distributed cross-section of the United States to look for regional variations, if any, from national averages.  Nevertheless, because of widely varying response rates by state, we simply cannot differentiate between EEOC District Offices with any statistical firepower.   With recent revelations about the poor quality of EEOC statistical analyses undergirding systemic investigations and prosecutions, prudence and fairness dictate more conservative treatment of data.

In our earlier publication about the EEOC mediation process, we detailed the impetus for this survey, central research questions, survey methodology, question design, and response-gathering process, here.     In this Final Report, we get right to the point and post the pictures: what can employers learn from the mediation survey?

EEOC Mediators Exploit Employers’ Cost-of-Defense Conundrum

As reflected in Figure 1, over 80% reported that an EEOC mediator referenced the cost of defense when encouraging employers to settle.  The cost of defense undoubtedly now drives employers’ settlement deliberations more than any other factor.  Discrimination is, after all, difficult to prove but easy to allege, and the allegation itself exposes employers to an average cost of $70K in non-recoverable defense fees.  Without EPL Insurance, most employers can no longer afford to fight to prove themselves RIGHT, an unwelcome byproduct of an EEO enforcement scheme that benefits lawyers at the expense of employers. Employers are stuck, and our survey shows that EEOC mediators know it.

According to the EEOC’s 2013 Performance and Accountability Report (PAR), the EEOC collected another historic amount of money from employers ($372.1 million) last year, a feat it touts under the heading “Enforcing the Law More Effectively.”  The FY2013 PAR also makes clear that its ADR program is the EEOC’s biggest cash cow, accounting for nearly half of its collections.  Nowhere, however, does the EEOC mention the cost-of-defense conversation its personnel initiate with employers as soon as the allegation is made, regardless of merit.  Accordingly, the EEOC’s use of employer settlement money as ostensible evidence of “enforcing the law more effectively” seems like a poor proxy for progress toward equal opportunity.

Figure 1


 EEOC Mediators Forecast Gloomy Litigation Outcomes

EEOC Mediators often mimic the standard settlement tripe of NTLA/NELA attorneys to capitalize on employer insecurities about juries, such as “your summary judgment motion will fail” (Figure 2), “juries dislike employers” (Figure 3), and “a jury won’t like/believe your witnesses or documents” (Figure 4).   In fact, most EEOC mediators are former investigators, not attorneys, and have extremely limited experience divining the preferences of future jurors.  Besides, juries don’t hate employers; rather, they hate liars and lawyers, often failing to distinguish between the two.

Figure 2


Figure 3


Figure 4


EEOC Mediators Overstate the Risk of Reasonable Cause Determinations, Systemic Investigations, and Prosecutions

Given the suffocating cost of defense, the possibility of future EEOC enforcement activity would weigh heavily on any employer’s settlement deliberations.   Survey results show that EEOC mediators regularly threaten EEOC cause determinations (Figure 5), EEOC prosecutions (Figure 6), and even systemic investigations (Figure 7), which go on years and cost employers millions, more here.   When faced with these enforcement possibilities, most reasonable employers would pay more to settle, again, to avoid anticipated defense costs.

These mediator representations are, however, complete nonsense.  First, as EEOC mediators know, if any of those enforcement actions were likely under the EEOC’s 1995 Priority Charge Handling Procedures (PCHP), the EEOC would not have routed the charge to the ADR Unit in the first place; only charges designated as “B” (lower priority) are eligible for ADR.  In fact, at an EEOC hearing on March 20, 2013, EEOC Commissioner Victoria Lipnic suggested that the EEOC tell employers about the charge’s PCHP designation to take the “gamesmanship” out of EEOC enforcement.  EEOC field personnel immediately opposed her idea, citing the timeworn government deliberative process privilege:  if employers knew, they argued, that the EEOC classified the charge as a “B”, and that, by extension, the EEOC was unlikely to devote its limited resources to an actual “investigation,” employers would be less likely to settle. 

Second, the EEOC’s own enforcement statistics completely belie EEOC mediator threats of enforcement activity.  In FY2013, the EEOC issued Reasonable Cause determinations in only 3.6% of charges, down from 3.8% in FY2012.  Likewise, the number of EEOC-initiated civil lawsuits has fallen dramatically in recent years, as the EEOC focuses more on larger, systemic investigations and prosecutions.  Perhaps for this reason, the fact that over 60% of employers reported threats of an EEOC systemic investigation is particularly alarming.

Figure 5


Figure 6


Figure 7


HR is Under-utilized

Approximately one-third of survey participants had not participated in any EEOC mediation over the past two years, and nearly 50% were HR practitioners (Figure 8); by contrast, only 5% of attorneys in law firms and 7% of in-house reported not having any mediation over the past two years.  Our survey suggests, therefore, that most employers still treat EEOC mediations like serious legal problems that require lawyer “superpowers” and the corresponding expense.

Not so fast: as “B” charges, EEOC mediations are comparatively low risk.  Under PCHP, “B” charges are “handled,” not “investigated.”  In fact, the presence of counsel for the Charging Party is the single biggest determinant of whether an EEOC charge will advance beyond the EEOC administrative process or will languish, and then fizzle, just like the overwhelming majority of “B” charges heaped on the EEOC’s “Inventory” each year.   And to the EEOC, reducing its Inventory (by “handling” but not investigating “B” charges) shows that it is “serving the public more efficiently.”  Ironically, NTLA/NELA attorneys and I find common ground re the utter uselessness of this administrative process.

In some cases, it makes sense to pit lawyer against lawyer in an EEOC mediation, particularly if the EEOC administrative process seems like just a speed-bump en route to real litigation.  But for most EEOC mediations, employers can realize incredible cost savings by sending well-trained HR professionals instead.   Under this “coaching” mediation model, attorneys remain instantly available to advise and intervene, if necessary, using the wide variety of media that modern technology makes possible (e.g., cell phone, text messaging, and email).   Ultimately, this “coaching-from-the-sidelines” approach spares employers of the considerable unnecessary expense of non-productive attorney appearance time, particularly those long intervals when the mediator confers with the other party.

Further, today’s HR professionals often possess the interpersonal, emotional intelligence (EQ) skills that (a) attorneys often lack; and (b) work extremely well in informal mediation settings.  EQ skills, which are not taught or honed in law schools or law firms, quell the rancor that fuels workplace disputes and prevents cost-effective resolutions. For an angry, allegedly aggrieved employee, the presence of defense counsel often signifies warfare, sets a counterproductive tone, and interferes with resolution.  Smart attorneys—i.e., the skilled, not just the billed—know when to get out of the way.

Over this past year, in-house counsel and EPL adjusters have expressed a rational concern.  Attorneys are necessary to advise employers during EEOC mediations, they argue, just in case the EEOC mediator starts talking smack about reasonable cause determinations, systemic investigations, prosecutions, adverse summary judgment rulings and opinionated juries.   By calling attention to and then dispelling common mediator threats, however, this survey thereby seeks to diffuse them and help all practitioners make more informed mediation decisions.   In an era of high EPL deductibles and frequent EEO disputes, HR can fulfill an important, and necessary, cost-saving role.  To view our EEOC mediation training webinar, EEOC Mediations: Getting What You Want without a Big Legal Bill, click here.

Figure 8

HR and Mediations

When Money Matters, EEOC Mediations are NOT Neutral

Employer settlement payouts make a poor proxy for progress toward EEO, even though the EEOC counts their money as evidence of “enforcing the law more effectively.”  Our study aimed to answer this central question: If the EEOC equates efficacy with employer settlement payouts, what impact, if any, would this metric-that-matters have on the behavior of personnel operating its biggest settlement machine, the ADR program?

The results speak volumes.  Behind closed doors, EEOC mediators exaggerate the risk of poor litigation outcomes and EEOC enforcement activity to ratchet up employer cost-of-defense settlement offers, regardless of charge merit.  Immediately upon the mere accusation of discrimination, employers walk into a cost-of-defense conversation where the questions of wrongdoing and EEO compliance are irrelevant. In the EEOC’s “fabulously successful” ADR program, money (and lots of it: $372.1m) changes hands between employers, EPL carriers, defense attorneys, and plaintiff’s employment lawyers, with some leftovers for allegedly aggrieved employees. But does this wealth redistribution really advance the march toward equal employment opportunity (i.e., “enforcing the law more effectively”)?

Unfortunately, no.  When we measure what MATTERS, it becomes clear that under this adversarial litigation-based model of EEO enforcement, progress toward EEO has stalled for most of Title VII’s intended beneficiaries.   In Measuring What Matters at Title VII’s 50th Anniversary, we analyzed the EEOC’s own EEO-1 data to evaluate the progress of women and minorities toward attaining top jobs, across industries; we looked at unemployment rates among gender and racial groups; we researched federal sector EEO employment trends; we pulled up Gallup polls and EEOC intake data to assess whether workers perceive workplace opportunity as more equitably distributed; and we compared the United States to other developed nations (e.g., Sweden, Israel, South Africa) re the representation of women in business and governmental leadership.  These more meaningful measurements of our progress show that our methods for securing EEO—i.e., the STICKS of an adversarial EEOC and CRA 1991’s privatized litigation-based model—no longer WORK, by themselves or at an acceptable pace, to modify employers’ behavior and by extension, reform the workplace.

When money counts as the measure of its effectiveness, EEOC mediations are not neutral; on the contrary, EEOC mediators are allied with Charging Parties and their attorneys, whose sole objective is to maximize settlement payouts.  The EEOC claims, nevertheless, that 98% of employers are satisfied with their ADR experience; until this survey, however, most employers likely did not suspect that EEOC mediators were misleading them.

The EEOC will continue sell its “fabulously successful” ADR program to employers.  At the EEOC’s March, 2013 hearing, EEOC careerist Mary Jo O’Neill, Regional Attorney in the Phoenix District Office, called the ADR program “such a wonderful opportunity to settle” and urged employers to “take more advantage of [it] than they do.”  At last year’s EEOC Excel Conference, EEOC Chair Jacqueline Berrien heavily peddled the ADR program, and not coincidentally, at this year’s Excel Conference in San Diego (for which the EEOC charges employers over $1,300), the EEOC has again devoted an entire “track” to the merits of mediation.  As long as the EEOC counts employer money as EEO progress, employers and Title VII’s intended beneficiaries will remain STUCK in an ineffective wealth redistribution loop where nothing much changes except money changing hands.

We can do better.  Stay tuned for Part II of our two-part series on Title VII’s 50th anniversary, “Seven Sparks to Jumpstart Progress toward Equal Employment Opportunity.”  Part I, “Measuring What Matters on Title VII’s 50th Anniversary,” is available here.

Merrily S. Archer, Esq., M.S.W., May 13, 2014