Leaving Law . . . with Contempt

After 25 years as an attorney specializing in federal Equal Employment Opportunity (EEO) litigation, I am shuttering EEO Legal Solutions, having resolved my last piece of major litigation in May 2022–i.e., a systemic race and disability discrimination matter filed in Federal[ist] court.

I’ve waited months to announce this major move, not even sure how to title this blog. As alternate titles, I considered,

  • “Death of an Ally,” [nah, too dramatic];
  • “Systemic Workplace Race Discrimination is Real, But I Cannot Help You Anymore” [meh, accurate and clear, but hurtful];
  • “Outsourcing Justice: How Judicial Overuse of Special Masters Chills Title VII Enforcement [meh, too academic, may use for upcoming law review article]; and,
  • “The Biased Bench: How Cognitive Bias Undermines Judicial Integrity” [meh, stay tuned].

I’ve also been reluctant to talk openly about the state of our Federal[ist] bench and its treatment of EEO litigants because (1) bad judges ensure silence by threatening and retaliating against attorneys with an ethical grievance for “impugning the tribunal;” and (2) I reject MAGA’s attack on and misuse of our institutions, particularly our federal courts. Should I self-immolate by flinging back the curtain on how our federal courts actually operate, particularly in EEO matters, I wondered?

As I ruminated, however, federal judge Aileen Cannon’s antics started to peel back that curtain for me. The public has started talking openly about “Trump-appointed judges” and the prospect of judicial bias, of judicial mediocrity, and of the more recent judicial trend to outsource their public duties to private Special Masters, at substantial expense to litigants. Respected legal commentators like Asha Rangappa, Andrew Weissman, Barb McQuade, and even Bill Bar [I’m being magnanimous] have exposed Cannon’s order as conspicuously biased, legally unsound, and devoid of any logical legal analysis, to the point of even questioning the credibility of FBI agents without any stated factual basis. Shocking.

These recognized experts have also questioned the need for a private Special Master paid for by one or both of the litigants. After all, adjudication of federal disputes ranks high among a federal judges’ and/or magistrates’ fundamental purposes. When our taxes support the federal judiciary, why would litigants (e.g., the DOJ, plaintiffs/defendants, and especially those exercising federal rights under a “private attorneys’ general” enforcement model) need to pay for private adjudication?

So, is Aileen Cannon the example or the exception, the norm or the aberration?

She is the norm. Over 25 years, I have encountered a few “outliers”–i.e., judges and magistrates who seem intellectually engaged in adjudicating the dispute, who issue timely orders, who follow the law, who make a point NOT to appear biased in favor of any party and/or their attorney(s), and who conduct themselves as though the general public is counting on them to care about their jobs. And ironically, one of those few was a federal judge appointed by Richard Nixon! [not kidding]

See, it SHOULD not matter WHO appointed the federal judge; twenty-five years ago, it did not matter but now, it does. Litigants, including federal law enforcement, only ask that federal judges conscientiously and expeditiously consider the facts and follow the law. Instead, the numerous “Aileen Cannons” on the federal bench seek only to clear their dockets and in civil matters, force the parties into settlement. And they accomplish this feat in several ways:

  • by treating the parties and their attorneys as though they have done something wrong by seeking judicial intervention, often showing outright contempt for them (i.e., the Great Oz charade);
  • by delaying rulings on critical matters for months, even years;
  • by issuing flagrantly problematic orders on matters within their discretion, thereby forcing the parties to incur further delay for inevitable appeals.

If you have followed Judge Cannon’s adjudication of the Trump “records dispute,” these judicial tricks should now snap into sharper focus. And it happens all the time.

And so, why am I leaving the practice of law, especially a practice area that relies heavily on our federal courts? There are two big reasons, and lots of little ones, but I’ll keep it basic:

First, I am leaving law because I doubt whether our privatized system of EEO enforcement works for the people it was ostensibly designed to help/protect–i.e., victims of workplace discrimination. As a JD/MSW, I expected to toil in broken systems, but certainly NOT in systems broken by people with lifetime tenure, perceived impunity, and large swaths of discretion routinely rubber-stamped on appeal. They possess, and often wield, great power to harm those who displease them or speak truth to power. I’m getting out of the line of fire.

And second, I have reached a point where I have become an ineffective courtroom advocate. After 25 years, I have developed contempt for biased and disengaged judges who, because of lack of skill and/or will, perform their jobs poorly without regard for end-users and their attorneys–i.e., everyday citizens who need their help in civil disputes. I am also contemptuous of judges who eschew well-settled legal principles in favor of their own religious beliefs or personal biases. I am especially contemptuous of judges who deliberately made false representations at their confirmation hearings to obtain their jobs. And I am thoroughly contemptuous of judges and especially magistrates who outsource their jobs to private Special Masters at $385/hour at the first whiff of litigation conflict. In an ADVERSARIAL process, conflict comes with the territory. Private adjudication (a paid-for judge) creates conspicuous access to justice problems for people who rely on the federal judicial system to enforce their federal rights, namely, people unlawfully fired from their jobs because of workplace discrimination.

Despite my best efforts, this “contempt” apparently oozes out my pores, I realized. At my last hearing in federal court earlier this year, I tried to maintain a pleasant facial expression and hold my tongue, soothing myself with this internal mantra:

Remember, it’s not about being right anymore. This hearing is pure theater, the Order is already written; and she will “split the baby” (i.e., give each party something it wants, despite the law, facts, and righteousness of one party over another) to pressure settlement. Keep calm and make your record.

As I rose to the podium to preserve arguments for appeal, I vowed never to appear in court again, if I could help it. And, I left that hearing narrowly evading getting held in contempt. Contempt must ooze out my pores, I realized, Just shut up; it’s not about being right here. But as it turns out, I was absolutely right about what this federal judge would do in the already-written order, further reinforcing Merrily’s Razor of Judicial Decision-Making: the EASY and/or SAFE choice (especially one that incentivizes the parties to settle without judicial assistance) always carries the day.

I do not know what, if anything, I’m going to do next. Some folks do retire at 55, and I have enough weird little hobbies (e.g., yoga; songwriting; guitar playing; rockhounding/polishing; tap dancing; tending my various gardens; spoiling my dog, my kids, my adorable husband, in no particular order; hiking in the mountains; riding my bike; kvetching, as here; feeding my unfortunate Trump-news addiction; indulging new tattoo ambitions; finally losing that last 20 pounds of “baby weight” [my babies are 14 and 20 years]) to literally do “nothing” for while.

Initially, I had also considered getting my LCSW (licensed clinical social worker) credentials by taking a licensure exam and completing a 2,000-hour internship. There are many ways to serve the cause of Equal Opportunity outside a courtroom, especially with an MSW, I realized. Although that idea still appeals to me somewhat, I want to make sure I’ve overcome the last vestiges of “compassion fatigue” before I try to help anyone else, for everyone’s sake. After 25 years on both sides of the federal employment bar, my last experience attempting to prosecute a meritorious individual and systemic race discrimination before a Trump-appointed judge was so incredibly disappointing, eye-opening, and soul-crushing (even though I obtained a life-changing amount of money for my individual client in the ultimate settlement), I’m leaving Law altogether and taking time to regain my “sparkle.”

Stay tuned and in touch with me, however, via social media like Facebook. Although I will be disabling EEO Legal Solutions’ social media accounts (Facebook, LinkedIn) and the contact page on this website, I may still post random observations about Equal Employment Opportunity, cognitive bias, and judicial decision-making here. I’d be happy to connect with you via my personal pages; find me. I’ve already threatened to write an entire album of songs about and of interest to dogs. Yes, dogs. If you do not believe me, check out SicKophant Songs.

With love,

Merrily Archer, Works for the Dog

Rubber Stamps: Does Inventory Reduction Really Mean that the EEOC Is “Serving the Public More Efficiently?”

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. 

  FY2011 FY2012
Charge Intake 99,947 99,412
Charge Resolutions 112,499 111,139
Inventory Reduction 8,202 7,824
Inventory Levels 78,136 70,312

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.