The U.S. Equal Employment Opportunity Commission

Meeting of September 8, 2003, Washington D.C. on Repositioning for New Realities: Securing EEOC's Continued Effectiveness

Remarks of Jeffrey A. Norris
President, Equal Employment Advisory Council

Madam Chair, Madam Vice-Chair, Commissioner Silverman, Commissioner Miller, and colleagues: On behalf of the Equal Employment Advisory Council (EEAC), I appreciate the opportunity to appear before the Commission to offer our recommendations on what steps the EEOC might initiate to better enable it to achieve its statutory mandate of eliminating unlawful employment discrimination.

Introduction

EEAC is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership comprises a broad segment of the business community and includes over 330 of the nation's largest private sector corporations. EEAC's members are firmly committed to the principles of nondiscrimination and equal employment opportunity, and its directors and officers include many of industry's leading experts in the field.

All of EEAC's members are employers subject to the laws enforced by the EEOC. As occasional respondents to EEOC charges of discrimination, EEAC member companies thus have a strong interest in ensuring proper resolution of discrimination claims in a timely and efficient manner.

EEAC's testimony today will center on a single overarching theme: namely, that the most direct route to accomplishing EEOC's mandate and the greatest service EEOC can provide for both charging parties and respondents is to establish an administrative process for the prompt and fair resolution of employment discrimination claims. As obvious as this statement is, its significance sometimes gets overlooked in the Commission's periodic efforts to enact broad policy pronouncements or test the outer reaches of the laws it enforces. The filing of a discrimination charge even an individual charge is indicative of an ailing work environment. Invariably employees are for some reason dissatisfied, and as a consequence employers are unproductive. As the Commission well knows, the vast majority of these charges can and should be resolved quickly and amicably, preferably by the parties themselves.

EEOC's responsibility, first and foremost, should be to facilitate and encourage such resolutions within the framework of laws and regulations it enforces. There undoubtedly will be situations in which litigation is appropriate. Nevertheless, we believe that the key to accomplishing the EEOC's statutory mission lies in establishing an administrative charge resolution process that fosters early resolution and utilizes the agency's investigative resources to target non-frivolous cases in which there exist strong indicators of potential discrimination.

This recommendation can be accomplished in a number of ways, including:

We believe that all of these recommendations are consistent with the Chair's Five-Point Plan and, if implemented, will better enable the Commission to differentiate between charges that are ripe for early resolution and those that require more detailed investigation. We urge the Commission to consider our recommendations as it embarks upon developing a strategy for reorganizing the EEOC.

Conduct A Careful Review of Potential Charges at Intake

A thorough review of potential charges at the intake stage of the investigative process is critical to conserving the agency's limited resources by ensuring that only viable claims of discrimination are accepted for processing. As a primary customer service function, intake provides the EEOC with the opportunity to identify and narrow issues, advise potential charging parties of their legal rights and responsibilities and the scope of the laws EEOC enforces, and, most importantly, determine whether a potential charge is legally viable and ought to be accepted for processing. Intake officers therefore must be sufficiently trained and equipped to answer a number of key threshold questions, such as:

If the individual either lacks legal standing or otherwise is barred from filing a charge, or if the EEOC lacks jurisdiction over the claim, the potential charging party should be so advised. If the individual insists on filing the charge notwithstanding its legal deficiencies, the charge should be categorized as a "C"../ charge and immediately dismissed. Intake officers must be capable of distinguishing between frivolous claims and arguably meritorious allegations in order properly advise the potential charging parties and determine whether to dismiss a charge that an individual insists be filed.

Even legally sufficient charges will not always warrant agency investigation and are suitable for dismissal at the intake stage. For instance, where an individual claims to have been treated less favorably than "similarly situated" persons not of his or her protected class, but offers evidence or information during intake indicating that the comparators are not, in fact, "similarly situated," the individual should be advised that there is little likelihood that a reasonable cause determination will be reached. If the individual nevertheless insists on filing the charge, it should be categorized as a "C" charge and promptly dismissed.

In addition to identifying and resolving threshold jurisdictional issues, intake officers also must have a working general knowledge of a broad range of other laws and issues that often are related to, but different from, those over which the EEOC has jurisdiction to investigate. For instance, an individual may seek to file a charge of discrimination with the EEOC claiming a denial of FMLA leave for outpatient dental surgery. In the absence of additional facts or allegations suggesting a violation of one or more of the laws enforced by the EEOC a claim, for example, that other similarly situated males routinely are granted leave for similar reasons the individual should be advised by the intake officer that the agency is without jurisdiction to investigate, and should be directed to the appropriate agency for assistance.

Accordingly, one way that charge resolution can be streamlined is to tighten the intake stage so that inappropriate claims never enter the administrative process in the first place.

Ensure Proper Classification Under Priority Charge Handling Procedures

While the 1995 Priority Charge Handling Procedures have been highly successful in reducing the EEOC's backlogged charge inventory, enabling it to focus on the more viable discrimination claims, EEAC members report that the agency has been somewhat inconsistent in applying the standards used to determine which cases warrant further investigation.

Under the Priority Charge Handling Procedures, charges filed with the Commission are to be classified into one of three EEOC-defined charge "categories":

In its March 1998 Priority Charge Handling Task Force Report, the EEOC concluded, "[Charge Data System] data indicate that C charges are not routinely dismissed at intake." The agency's second quarter charge statistics for FY2003 suggest that misclassification of C charges at intake continues to be a problem.

At the end of the second quarter of FY2003, for instance, the agency reported resolving 40,066 charges. Of those, no reasonable cause was found in 64.2% of the cases, another 17.5% were administratively closed, and 13.4% were either settled or withdrawn with benefits. Thus, no more than 4.8% of the charges investigated by the agency through the first two quarters of FY2003 actually resulted in a finding of reasonable cause. While the percentage of "C"../ charge intake dismissals is not readily apparent on its face, we have assumed, based on the EEOC's procedural regulations and administrative guidance1, that such charges are classified as administrative closures, since they are disposed of without any investigation.

Thus, while the agency classified less than one-fifth of all charges as "C" charges up front, it ultimately dismissed an overwhelmingly large percentage of those it believed to be "A" or "B" charges. This strongly suggests that a large proportion of nonmeritorious charges are being retained at intake for full investigation, either as "A" charges or "B" charges, when they ought to have been classified and disposed of at intake as "C" charges.

Indeed, our members report that a significant number of clearly meritless, i.e. "C", charges nevertheless are fully investigated by the agency, only to be dismissed with a no reasonable cause finding. In our view, precious agency resources are being wasted investigating "B" charges that ought to have been classified at intake as "C"../ charges under the established definition and dismissed accordingly. As the 1998 Task Force report recommended, we believe that the agency should place greater emphasis on dismissing true C charges at the intake stage, reemphasizing to the field the most effective use of the Priority Charge Handling Procedures.

Perform Post-Intake Assessment of Arguably Meritorious Charges Prior to Investigation

A detailed pre-investigative analysis of charges not suitable for dismissal on their

face could significantly reduce the number of charges investigated that ultimately result in no cause findings and, more importantly, enable the agency to focus its limited resources on investigating meritorious discrimination claims. While the implementation in 1995 of the Priority Charge Handling Procedures has improved the agency's ability to focus on meritorious, i.e. Category A or B, charges, we believe more can be done at the pre-investigation stage to dis tinguish between those charges that warrant further investigation and those that do not.

Implement Pre-Investigative Screening Processes

In order to maximize the likelihood that only arguably meritorious charges are referred for investigation, we recommend that the EEOC develop a post-intake merit assessment process, focusing primarily on B charges, that would enable the agency to dismiss charges at the pre-investigative stage where further investigation is not likely to result in a reasonable cause determination.

This pre-investigation assessment might involve, for instance, a desk review of the charge of discrimination and the respondent's position statement, along with any documentary evidence submitted by the charging party at the time the charge was filed. Based on an assessment of that information, the agency could make a determination as to whether or not further investigation is likely to result in a finding of reasonable cause. If not, the charge could be dismissed without further investigation.

EEAC appreciates that the Commission already recognizes the importance and value of the three recommendations just outlined - conducting a careful review of potential charges at intake, careful categorization, and further pre-investigative screening. The issue is not so much one of recognition as it is implementation EEAC members routinely report the inconsistent application of these procedures in the field. While some offices have commendable processes and properly trained personnel in place, others do not. If the EEOC established the goal of ensuring a nationwide practice of thorough and deliberate review, categorization, and screening for each charge filed, the EEOC could expedite the resolution of the vast majority of workplace disputes and redirect its resources to other critical program areas, such as outreach, mediation and staff training. Formally Adopt and Expand Use of Pre -Investigative ADR Referral Program

EEAC commends the EEOC on its efforts to expand the use of mediation and other forms of Alternative Dispute Resolution (ADR) as part of the charge resolution process. We have staunchly supported the EEOC's mediation program since its beginning. We are particularly pleased with the implementation of a "pilot" ADR referral program, under which the agency defers processing of a discrimination charge for up to 60 days in order to permit the dispute to be resolved through the employer's internal dispute resolution program.

The ADR referral program gives parties an opportunity to amicably resolve their disputes quickly and informally using established, internal dispute resolution procedures. For the EEOC, the pilot referral program is a "win-win"../ proposition: successful resolution of an external charge through the referral process enables the agency to close the case without investigation and thus preserve its investigative resources. If, on the other hand, referral is unsuccessful, the agency retains its ability to fully investigate the charge as it would any other not subject to or eligible for ADR.

We encourage the EEOC to make the ADR referral program a regular part of its charge resolution procedures.

Maximize Use of Good Faith Conciliation, Reserving Litigation as a Last Resort

It has been the experience of many EEAC members that the EEOC has not consistently used post-cause conciliation as a means of resolving discrimination charges, despite its statutory duty to do so. We believe that improvements in the agency's conciliation efforts will enable the agency to settle, on mutually beneficial terms, far more cases than it now is capable of resolving at the post-cause stage.

In addition, it will refocus the EEOC's efforts on voluntary compliance, thus preserving resources that otherwise would be used to assess the "litigation-worthiness" of a charge and/or to pursue costly and time-consuming litigation with respect to that charge. Finally, it will improve the agency's reputation among the respondent community for fairness and even-handedness, and will afford charging parties many of whom will be unwilling or unable to pursue private litigation an opportunity to have their claims addressed on terms that are favorable to them.

When first enacted, Title VII gave the EEOC authority to prevent and correct alleged employment discrimination only through investigations and "informal methods of conference, conciliation and persuasion."../ 42 U.S.C. 2000e-5(b). In 1972, Title VII was amended, giving the EEOC the right to sue respondents believed to have engaged in unlawful discrimination in its own name, both on behalf of alleged victims and in the public interest. P.L. 92-261 (1972).

While Title VII, as amended, authorizes the EEOC to pursue civil action against a respondent believed to have engaged in unlawful discrimination, it may do so only after it has satisfied its statutory duty to "endeavor to eliminate [the] alleged unlawful employment practice through informal methods of conference, conciliation and persuasion" as a precondition to initiating a public enforcement action. 42 U.S.C. 2000e-5(b). Indeed, Congress "selected cooperation and voluntary compliance as the preferred means for achieving the goal of equality of employment opportunities." Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 368 (1977).

Inherent in the EEOC's obligation to conciliate is the requirement that it do so in good faith. As the Eleventh Circuit in EEOC v. Asplundh Tree Expert Co. recently affirmed, the agency will not fulfill its conciliation obligation and thus will be precluded from pursuing public enforcement unless it clearly explains to the respondent the basis for its reasonable cause determination, provides it with an opportunity for "voluntary compliance," and responds "in a reasonable and flexible manner to the reasonable attitudes of the employer." EEOC v. Asplundh Tree Expert Co., Nos. 02- 12386 & 02-13571 (11th Cir. August 7, 2003).

Much more needs to be done to assure that all charges in which reasonable cause has been found are subject to meaningful, good faith conciliatio n efforts. In our experience, EEOC investigators are far too quick to deem conciliation a failure based merely on a respondent's reasonable inquiries as to the basis of a finding or its efforts to negotiate additional conciliation terms.

This cursory treatment of conciliation by some of the EEOC's investigative staff falls short of satisfying the agency's statutory conciliation obligation, and undermines the concept of voluntary settlement as the preferred means of resolving discrimination charges. We thus strongly recommend that the EEOC offer in-depth training to its investigative staff on proper conciliation techniques, and put into place certain "checks"../ to ensure that good faith conciliation efforts are, in fact, undertaken with respect to every meritorious charge.

Comments on NAPA Recommendations

Establishment of a National Call Center

In its recent report, the National Academy of Public Administration (NAPA) recommended major changes to the EEOC's management and organizational structure. One recommended change of considerable interest to EEAC members is the establishment of a National Call Center for possible receipt of, and dissemination of information relating to, charges of discrimination. The National Call Center would enable potential charging parties and respondents to obtain information from skilled EEOC staff on various aspects of the charge investigation and enforcement process, including how to file a charge.

While the idea of a National Call Center is a good one conceptually, we believe that adequate staff training and development is critical to the success of such an endeavor. Since this may be a potential charging party's very first contact with the EEOC, it is important that the person communicating on behalf of the agency understand the scope (and limits) of the laws enforced by EEOC and have the skills to adequately communicate information about the agency, its function, and the charge filing process to the potential charging party.

In addition, the agency should clearly define the role of the National Call Center in relation to existing charge processing functions, such as intake. If the Call Center is intended to replace the local intake function entirely, extra effort should be made to ensure that potential charging parties have the same level of access to services as they would on the local level.

If it is to operate in cooperation with local intake offices, however, it is very important that individuals staffing these related functions all receive similar training and information on how to service the needs of prospective charging parties. The agency should also take steps to ensure that the two functions maintain seamless communication so as to maximize consistency in service delivery.

Furthermore, the EEOC should carefully consider what role, if any, Call Center representatives would play in the actual charge filing process. Will the National Call Center be responsible for drafting official Charges of Discrimination (EEOC Form 5) and ensuring that they are returned in proper form and in a timely manner? How will charges generated out of the National Call Center be assigned and who will have oversight responsibility?

Establishment of Electronic Charge Filing Procedures

In addition to the establishment of a National Call Center, the NAPA report recommends that the EEOC explore the feasibility of developing an electronic charge filing procedure through which charging parties could submit charge information electronically. EEAC member companies have expressed significant concern over the prospect of electronic file processing, noting in particular the potential that such a process offers for the filing of frivolous charges.

Such a process would enable a charge to be filed at any time of the day or week without the benefit of counseling or intervention by the EEOC. It is not difficult to imagine an individual having been upset at work for some reason returning home and in a fit of anger opening the EEOC's website and filing a charge on a whim, without regard to the appropriateness or wisdom of such an action.

EEAC member companies also expressed confidentiality and data security concerns relating to a web-based system that allows charging parties to submit charges electronically. While the EEOC could acquire a web server and web-based applications that enable charging parties confidentially to submit charges electronically, such a systems conversion would be extremely costly and time consuming to implement. However, in the event the agency determines an electronic charge filing system would be an efficient use of its resources, EEAC recommends the following process: