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.
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.
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