The EEOC’s Ten-Year Consent Decree: Headlines over Headway

Last week, the EEOC issued a press release bragging that it had obtained a TEN-YEAR Consent Decree against Muskegan River Youth Home, a secure residential treatment program that provides services to severely troubled boys and girls.  Does it make sense for the EEOC to put a small, social services employer under its thumb for TEN YEARS?  Read on . . .

Unlike a regular settlement, a Consent Decree keeps the action “alive” in U.S. District Court so that the EEOC can monitor compliance with its tired trifecta of “injunctive relief” (e.g., training, posting, reporting).   If an employer fails to follow through, a Consent Decree allows the EEOC to renew its enforcement activities without initiating new proceedings.    Consent Decrees, unlike settlements, keep an employer on the EEOC’s radar for a period of years, and by logical extension, require an on-going investment from both the EEOC and the judiciary.

The EEOC typically insists upon Consent Decrees as a condition of settlement, ranging from two to five years in duration.   It can, however, settle cases without Consent Decrees:  as an EEOC Trial Attorney myself under the Clinton Administration, I occasionally resolved litigation without Consent Decrees, particularly when facts developed in the defense’s favor during discovery.   Nevertheless,  I cannot recall a prior scenario in which the EEOC insisted upon TEN YEARS to achieve its mandate, namely, the use of “conference, conciliation, and persuasion for elimination of unlawful practices.” 42 U.S.C. 2000e-5(a).     Even if another example does exist, this ten-year Consent Decree against Muskegan, however, smacks of EEOC bullying.   In fact, the EEOC’s apparent need for TEN YEARS to bring this small employer into compliance also raises questions about the efficacy of the only “tricks” it has–training, posting, reporting—in its overall enforcement scheme.

Muskegan: Bad Policies from Good Places

Muskegan is a small employer with approximately fifty direct care staff members that work with kids ages 10-17 who have histories of substance abuse, sex offenses, probation violations, foster placement failures, to name just a few.   In other words, Muskegan strives to rehabilitate the toughest of tough kids.   From the description on its website, Muskegan looks very much like a residential placement of last resort . . . before prison.  Given my own experiences in the social work trenches, I have no doubt that Muskegan’s counselors routinely face violence breaking up fights, conducting searches, restraining violent outbursts, among many other daily scenarios.    Perhaps for that reason, Muskegan adopted a policy requiring pregnant staff members to obtain certification from their physicians of their ability to continue working in this work environment, and involuntarily placing on leave those employees unable to provide such certification.

No doubt, from an EEO perspective, the policy stinks.  It’s hyper self-protective, paternalistic, and illegal . . .  and could easily have been identified as such before implementation.   Unfortunately, most employers Muskegan’s size lack access to specialized counsel who (a) can ensure compliance with the morass of intersecting, conflicting and constantly changing workplace laws, and (b) know when the EEOC seeks to impose more burdens than it, the law, and the Courts typically require.

This stinky policy, however, surely stems from Muskegan’s desire to protect its pregnant staff members from the risks and realities of this inherently dangerous position.  Many employers in the helping sector characteristically do the wrong thing for the right reason.  Although Muskegan could have more appropriately legally insulated itself from these risks, years of working and representing do-good employers like Muskegan teach me that BAD POLICIES can still come from GOOD PLACES.   Muskegan meant well, but the road to Hell is paved . . . enough said.

More importantly, do-good employers like Muskegan (particularly non-profit helping organizations) typically freak in a maelstrom of guilt, shock and shame when they realize that an inherently protective policy offends EEO principles.  The last thing helping agencies want to do is something as misanthropic as discrimination, and the certain horror of that realization partially explains its self-flagellating submission to far more EEOC oversight than a federal court would have ever ordered.  The EEOC is (or should be) well aware that even if it had fully prevailed on all of its claims (which seems unlikely), no court would have ordered an employer to submit to additional EEOC oversight for TEN YEARS.   Muskegan fell on its sword, and the EEOC took advantage.  From a behavioral change perspective, the fact that Muskegan was willing to submit to a TEN YEAR Consent Decree shows why a two year Consent Decree would have worked just as well.

EEOC Overkill

Most EEOC Consent Decrees range from TWO to FIVE years for obvious practical reasons. First, the EEOC must use its meager resources to monitor past Consent Decrees, instead of investigating and prosecuting new violations.   In my own experience at the EEOC, EEOC Trial Attorneys and their paralegals (if they’re lucky enough to have them) simply do not have time to chase past violations; after all, their work has been done—i.e., using “conference, conciliation, and persuasion for elimination of unlawful practices.” 42 U.S.C. 2000e-5(a).   And, because there is no performance metric that rewards them with ferreting out Consent Decree violations, there is likewise no incentive to monitor compliance with past cases;  after all, the EEOC is all about “making its numbers.”  Secondly, Consent Decrees, unlike settlements, require a federal court to keep the action alive, which unnecessarily adds to our already-overworked judiciary.

But more fundamentally, one question keeps nagging at me: if the EEOC’s standard panacea  of injunctive relief (training, posting, reporting) really works, why would it take TEN YEARS to bring an otherwise conscientious employer into compliance?  After all, the EEOC’s mandate simply requires eliminating unlawful employment practices through conference, conciliation and persuasion, which the Consent Decree itself accomplished.

In fact, it does NOT take TEN years to show an employer the error of its ways, to modify its policy, to train management staff on the policy, and to monitor an employer’s compliance with these remedial mandates.  Indeed, the posting requirement itself, in which the employer must notify its employees of the EEOC spanking,  is theoretically designed to rootle out violations, and thereby helps ensure that the employer remains rehabilitated.   Further, most social service organizations like Muskegan have limited resources, such that the cost of compliance over TEN YEARS is unduly burdensome, maybe to the point of cutting into program funds. Yet, almost paradoxically, the EEOC’s demand for TEN YEARS to rehabilitate an employer like Muskegan makes me wonder how effective the EEOC thinks it is (or has been) in eliminating workplace discrimination over all these years.

Ultimately, the EEOC’s TEN YEAR Consent Decree against Muskegan was not necessary, but necessity was never the point in the first place.  The EEOC’s TEN YEAR Consent Decree was designed to make headlines, not headway.  Employers, the vast majority of which share the EEOC’s vision for an inclusive American workplace, should demand more balanced treatment from an agency like the EEOC that wields prosecutorial discretion and oversees a public warchest.