In Part I of this series examining the EEOC’s recently issued Performance and Accountability Report (PAR), EEO Legal Solutions questioned whether the EEOC’s historic collections from employer settlements ($365.4 million) really meant that it was enforcing the law more “effectively.” After all, employers settle EEOC charges and lawsuits for numerous reasons, the most prominent of which is the staggering cost of defense. More pointedly, employers often settle EEOC charges and prosecutions not because they pose real risk on the merits, but rather because the cost of defending the risk exceeds the risk itself.
The EEOC has also touted another metric as evidence of its good work in FY2012, namely, the reduction in its pending Charge Inventory, which ostensibly shows that it is “serving the public more efficiently.” According to the EEOC FY2012 PAR,
Most notably, the pending inventory of private sector charges was reduced by 7,824 charges over the FY 2011 level, bringing the level to 70,312, which reflects the second consecutive year of significant reduction in inventory since FY 2002. These results were achieved despite having received 99,412 charges . A total of 111,139 charges were resolved in FY 2012 .
But does the EEOC’s inventory reduction necessarily mean that it has served the public more efficiently over the past year?
A Quick Look Back to FY2011: More Efficient in FY2012?
Before examining whether charge inventory reduction signifies greater efficiency (or whether such results could be achieved through less service to the public), a quick comparison to FY2011’s PAR shows pretty sluggish EEOC performance over the past year, which the FY2012 PAR does not substantively address.
In fact, in FY2012, the EEOC took in fewer charges than the previous year for the first time since 2005. With the passage of the ADA Amendments Act of 2008, EEOC charges have steadily increased, not decreased. And despite taking in fewer charges, the EEOC reduced its pending inventory by nearly 400 (378) fewer charges in FY2012 (7,824) than in FY2011 (8,202). Logic dictates that with fewer charges coming in during FY2012, the EEOC should have been able to catch up, and actually top its inventory reduction record set just the year before. The EEOC also resolved 1,360 fewer charges in FY2012 than FY2011, which establishes that the EEOC is not necessarily reducing its inventory through resolutions, but mere dismissals. Thus, according to the EEOC’s own statistics, the EEOC is apparently becoming less efficient over time.
Paradoxically, the EEOC credited its outreach efforts for FY2011’s historic intake of charges, claiming that employees must have become more aware of their federally protected rights. Does the fact that 532 fewer workers filed EEOC charges in FY2012 than in FY2011 show that workers have become less aware of their rights? Or, could it show that employers have become more compliant, such that there are fewer “violations” about which to file charges? Either interpretation seems reasonable.
More Perfunctory/More Discriminating
Having served the EEOC in Denver under the Clinton Administration (1997-2000), I admittedly have an extremely jaundiced view of the EEOC’s intake, investigative, and conciliation processes. Since the EEOC’s adoption of Priority Charge Handling Procedures (PCHP) in 1995, its actual review/investigative processes have become increasingly perfunctory, haphazard and discriminating, with a vast majority of charges relegated to the “B” classification wasteland in which an EEOC investigator does very little except send out notices.
Unfortunately, the EEOC’s administrative process is confidential by statute; the EEOC’s “thought processes” are even more carefully guarded under a fortress of “governmental deliberative process” privilege. And so, talking publicly about the EEOC’s conduct in a specific investigation poses risk to Charging Parties, employers, and their counsel, and is, therefore, taboo. But attorneys on both sides of the employment/EEO bar have voiced concerns more recently about
- EEOC intake investigators telling employees (even those represented by counsel) that they did not have “a case” and refusing to docket charges, thereby explaining the FY2012 reduction in charge receipts;
- EEOC investigators, upon initial contact to employees several months after charge filing, stating that EEOC will not investigate charges without evidence of a violation;
- EEOC investigators dismissing charges within two weeks after Intake;
- EEOC investigators bullying employers into settlements on non-meritorious charges with threats of systemic investigations;
- EEOC personnel “losing” files in the transfer between ADR and Enforcement Units;
- EEOC Trial Attorneys participating actively in the investigation, which casts considerable doubt upon the investigation’s objectivity;
- EEOC Trial Attorneys pushing seven-figure settlements in conciliation under the threat of governmental prosecution.
In reality, the EEOC faces no downside risk for issuing perfunctory dismissals and ridiculous cause determinations, retreating quickly to the comfort of the governmental deliberative process privilege when challenged. The EEOC could, therefore, erect additional barriers in the charging, investigative, and conciliation processes that render it less efficient and effective at addressing the public’s employment discrimination concerns, while enabling it to reduce its inventory precipitously. For example (and as commonly occurs), EEOC investigators could simply dismiss charges, particularly ones filed pro se, with a quick rubber “unable to determine” stamp, thereby reducing inventory while offering no service to the public, efficient or otherwise. Likewise (and as commonly occurs), the EEOC could issue a perfunctory “reasonable cause” determination, forcing an employer into a settlement discussion while refusing to explain the rationale underlying the ostensible violation. Particularly in this regard, the EEOC’s suggestion that inventory reduction is synonymous with efficient/effective public service should prompt a much-deserved eye roll from EEO practitioners.
Ultimately, at the EEOC, “making numbers” is critically important. Employers should pay attention, therefore, to what the EEOC counts as its “successes,” whether in terms of dollars collected in settlements, reduction of the pending charge inventory, number of reasonable cause determinations, and now more importantly, the number of pending systemic and class action investigations and civil prosecutions. These “metrics that matter” drive and explain the EEOC’s objectives, and by extension, behavior. Only by understanding these “metrics that matter” can employers anticipate how prevent, address and intelligently allocate resources toward containing workplace EEO risk in FY2013.