U.S. Equal Employment Opportunity Commission
|LESLIE E. SILVERMAN
|Elizabeth Cadle||Mary Jo O'Neill|
|Barbara Dougherty||Cynthia Pierre|
|Ronald Edwards||Jack Rowe|
|Sandra Hobson||Jerome Scanlan|
|Anthony Kaminski||Sharyn Tejani|
|Gabrielle Martin||Rosa Viramontes|
|Peggy Mastroianni||Mindy Weinstein|
The Systemic Task Force was established in 2005 under the leadership of Commissioner Leslie E. Silverman. Chair Cari M. Dominguez charged the Task Force with responsibility for examining the Commission's systemic program and recommending new strategies for combating systemic discrimination. The findings and recommendations of the Task Force are presented in this Report.
The Task Force embarked on its work with the recognition that the Commission cannot effectively combat discrimination without a strong nationwide systemic program. Through interviews, focus groups and surveys of EEOC staff and external stakeholders, the Task Force gathered information and ideas regarding the Commission's current efforts at addressing systemic discrimination, the obstacles the agency faces, and the ways in which the agency more effectively could combat systemic discrimination.
The Task Force concluded that EEOC has successfully investigated, conciliated and litigated numerous systemic cases. For example, in recent years, the agency has addressed systemic sex discrimination at a large manufacturing facility and at a major Wall Street firm. It also has successfully challenged race discrimination in meat processing plants and a nationwide chain of clothing stores, as well as systemic disability discrimination at a major airline.
The Task Force, however, also found many opportunities for improvement. For example, we found that EEOC does not consistently and proactively identify systemic discrimination. Instead, the agency typically focuses on individual allegations raised in charges. There are few incentives for working on systemic cases, and the Commission's systemic efforts are neither coordinated nor consistent throughout the country. In addition, the Commission's technology framework does not support a nationwide systemic practice.
The Task Force developed numerous recommendations in order to address these and other findings. The recommendations build on the agency's past successes, capitalize on existing strengths, and maximize the effectiveness of EEOC's tools and resources. They are designed to ensure that the Commission has a coordinated, strategic and nationwide systemic program.
Section I of this Report discusses EEOC's unique role in combating systemic discrimination, the work of the Task Force, the business case for change and the principles that should guide the EEOC's systemic program in the future. Section II addresses the identification and development of systemic charges, Section III addresses the investigation of systemic charges and Section IV addresses systemic litigation. Finally, Section V lists the Task Force's recommendations.
The Task Force believes that combating systemic discrimination should be a top priority at EEOC and an intrinsic, ongoing part of the agency's daily work. Some of the Task Force's most important recommendations include:
Identifying Systemic Discrimination: Outreach
Identifying Systemic Discrimination: Office Roles
Identifying Systemic Discrimination: Expanding Charges
Identifying Systemic Discrimination: Commissioner Charges and Directed Investigations
Investigating Systemic Discrimination: Office Roles
Investigating Systemic Discrimination: Systemic Plans
Litigating Systemic Cases: National Law Firm Model
Congress created the Equal Employment Opportunity Commission in 1964, charging it with the mission of eradicating discrimination in the workplace. When the Commission received litigation authority in 1972, a new era of enforcement began, with a strong focus on identifying, investigating, and litigating cases of systemic discrimination. In the ensuing years, EEOC, while under increasing pressure to manage individual cases more efficiently, has continued its efforts to address systemic discrimination.
The Commission's Systemic Task Force was established in 2005, forty years after the Commission first opened its doors. The Task Force was charged by Chair Cari M. Dominguez with responsibility for reassessing how the Commission addresses systemic discrimination, and for recommending new strategies for enhancing the Commission's systemic program.
The Task Force, led by Commissioner Leslie E. Silverman, is comprised of fourteen additional EEOC employees from the field and headquarters including management and a bargaining unit representative.1 The Task Force convened in headquarters for two days in April and three days in August, 2005, and conducted many other subgroup meetings and teleconferences. As a result of those meetings and of numerous interviews and other fact-gathering efforts that are described below in section B, the Task Force developed recommendations that are intended to enhance and refocus the Commission's systemic efforts so that systemic work becomes a pervasive and integrated enforcement and litigation practice throughout the agency.
The Task Force has defined systemic cases as "pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location." This section of the Report provides an overview of (1) EEOC's unique role in combating systemic discrimination; (2) the work of the Task Force; (3) the business case for why change is needed; and (4) a description of the principles that must guide the Commission's new systemic program. Section II of the Report addresses the identification of systemic discrimination; Section III discusses the investigation of systemic discrimination; Section IV focuses on systemic litigation; and Section V lists the Task Force's recommendations.
When Congress passed Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., making it illegal for employers to discriminate based on race, color, sex, national origin or religion, it authorized EEOC to investigate charges of discrimination, including classwide discrimination.2 Title VII also gave EEOC Commissioners the authority to issue charges on their own initiative ("Commissioner Charges").3
Congress greatly expanded the agency's ability to address systemic discrimination when it amended Title VII in 1972.4 These amendments relaxed the standards for issuing Commissioner Charges,5 gave EEOC authority to file suit when conciliation efforts failed,6 and gave EEOC the authority to pursue pattern or practice cases.7 Congress subsequently granted EEOC authority to enforce the Age Discrimination in Employment Act of 1967 (ADEA),8 the Equal Pay Act of 1963 (EPA),9 and the Americans with Disabilities Act of 1990 (ADA).10 With that increased authority came increased responsibility for investigating and litigating systemic discrimination.
As Congress recognized, employment discrimination cannot be eradicated without a focus on its systemic manifestations.11 Thus, to effect workplace change, the Commission must have a nationwide systemic practice that proactively and strategically recognizes and addresses patterns of discrimination that have a broad impact.
Each year EEOC receives approximately 80,000 charges of discrimination. Some contain allegations of systemic discrimination against a class of applicants or employees and, in other instances, EEOC expands the scope of the investigation of individual charges to address systemic discrimination. Title VII, the ADEA, and the ADA each provide that an individual must file a charge with EEOC as a prerequisite to filing suit under the statute. Thus, EEOC serves as the national repository for virtually all formal allegations of employment discrimination brought under federal law. Congress conferred broad authority on EEOC to investigate these allegations, subpoena evidence, and seek classwide relief, all of which enable this agency to uncover, combat and eradicate systemic discrimination.
In addition to having this unique role and responsibility in combating systemic discrimination, EEOC has a unique ability to identify potential systemic cases. The agency has access to substantial data, including information on employment trends and demographic changes, that can help identify possible systemic discrimination. This data gives EEOC particular insight into areas such as hiring discrimination, where victims of discrimination often are not aware that they may have been denied employment based on unlawful criteria. Such information, combined with the Commission's ability to use either a Commissioner Charge (under Title VII or the ADA) or a Directed Investigation (under the ADEA or the EPA) where a possible victim of discrimination has not filed a charge, provides EEOC with the crucial tools needed to uncover systemic employment discrimination. 12
For several reasons, EEOC is also uniquely positioned to litigate systemic cases. First, unlike private litigants, EEOC need not meet the stringent requirements of Rule 23 of the Federal Rules of Civil Procedure in order to maintain a class suit in federal court. Second, as a practical matter, EEOC may be able to bring certain systemic cases that the private bar is not likely to handle, for example, where the monetary relief might be limited, the focus is on injunctive relief, or the victims are in underserved communities. EEOC also can file ADEA suits against state entities and obtain monetary relief, whereas private litigants are limited by sovereign immunity to obtaining only injunctive relief in such cases.13 Finally, the Task Force believes that EEOC's nationwide presence permits it to act as a large yet highly specialized law firm with a unique role in civil rights enforcement.
As noted above, the Task Force set out to determine how the Commission could do systemic work more effectively. Pursuant to the Chair's directive, the Task Force focused on the establishment and delivery of a meaningful systemic practice rather than on the sources or amount of funding that would be required, because the Task Force cannot predict what the agency's budget will be over the next several fiscal years and is not in a position to assess the needs of other Commission programs. The Task Force did, however, aim to be prudent and practical in each of its recommendations so as to make its proposed program realistic and deliverable.
In order to accomplish its mission, the Task Force:
The Task Force engaged in extensive efforts to gather relevant information, including the following:
Survey to EEOC District Directors and Regional Attorneys - The Task Force began its work by developing and disseminating a survey to the District Directors and Regional Attorneys in each of the Commission's district offices.14 Through this effort, the Task Force was able to gather information about a variety of matters, including each district's efforts at addressing systemic discrimination, the type of assistance each has received from headquarters staff in the past, and the resources and assistance needed to develop and process systemic cases.
EEOC Focus Groups - The Task Force conducted numerous focus groups with field and headquarters staff who have systemic experience, including investigators, enforcement supervisors, managers, directors, and attorneys.
External Stakeholder Meetings - The Task Force conducted meetings with external stakeholders, including a broad spectrum of plaintiff and defense attorneys specializing in EEO class action litigation, civil rights advocates, representatives of the business community, and former EEOC Commissioners.
Meetings with Academic Researchers - The Task Force conducted a focus group with academic researchers from several universities who are authorized to work with the Commission's charge or EEO-1 data 15 to conduct academic research pursuant to the Inter-Governmental Personnel Act of 1970.
Input From Other Government Agencies - The Task Force reached out to EEOC's federal, state and local partners. It conducted meetings with career and political officials at the Department of Justice and the Department of Labor. In addition, the Task Force surveyed and conducted a focus group with EEOC's state and local fair employment practice partners.
Open Forum for EEOC Employees - The Task Force solicited input from the entire EEOC staff via an email from Commissioner Silverman inviting their comments on how the Commission could best combat systemic discrimination.
A list of the many individuals and organizations that provided input to the Task Force is set forth in Appendix B.
The Task Force determined that there are compelling business reasons to change the agency's current systemic program and practices based on the past successes, best practices and shortcomings the Task Force identified. In particular, the Task Force believes the following findings compel change:
Because these abilities are scattered throughout the field and headquarters, field strengths are utilized only on an ad hoc basis, and some field offices do not take advantage of available headquarters resources, EEOC needs to shore up its strengths and improve coordination. The new systemic program, as described in the following sections of this Report, will seek to use these existing strengths to the agency's strongest advantage.
In light of the breadth and scope of these findings, the Task Force determined that the Commission's current approach for dealing with systemic discrimination is in need of fundamental change. A new systemic program also is integral to effectuating EEOC's Five-Point Plan, which Chair Dominguez adopted in 2001, and the agency's Strategic Plan, which the Commission approved, that sets forth the strategy for accomplishing the goals of the Five-Point Plan.17 The Five-Point Plan requires EEOC to use available tools and deploy resources strategically in order to have a meaningful impact on discrimination in today's workplaces. It also calls for EEOC to examine emerging workplace trends and issues and to conduct annual reviews of economic indicators, demographic trends, employer practices, and industry literature, in order to make calculated decisions about which issues merit the agency's attention. Similarly, the Strategic Plan requires that EEOC engage in high impact litigation and publicity efforts that change the workforce status of affected groups and/or improve employment policies, practices, or procedures in affected workplaces.
The Task Force determined that in order to be effective, the Commission's new systemic program should be guided by the following principles:
With these principles in mind, the Task Force made findings and developed recommendations related to the three critical steps involved in combating systemic discrimination: identifying, investigating and litigating systemic cases.
The Task Force believes that the first critical step in strengthening and expanding the Commission's systemic program is improving the agency's ability to identify systemic discrimination. Based on that tenet, the Task Force sought to identify the methods and tools the agency currently has to identify systemic discrimination and to analyze their use and effectiveness. This section of the Report identifies the existing methods and tools; sets forth the deficiencies the Task Force found related to identifying systemic discrimination; and concludes by setting forth the Task Force's recommendations for improvement.
The primary tools and methods the agency presently has to identify and develop systemic discrimination charges are:
Charges filed by members of the public - Virtually all of EEOC's approximately 80,000 charges each year come from members of the public who visit or write to an office and allege employment discrimination. Most charges allege individual and not classwide discrimination. During Intake, or while a charge is under investigation, agency employees may consider whether it would be appropriate to address possible systemic discrimination as well.
IMS - The Commission's Information Management System (IMS) is an informational database that tracks all charges filed with EEOC and all litigation to which EEOC is a party. The IMS application itself allows users to run reports on charge and litigation data. Some field and headquarters staff also can run more sophisticated, ad hoc reports using a software tool called BRIO/Hyperion ("BRIO").
EEO Surveys - EEOC annually collects from private employers with 100 or more employees, and most federal contractors with 50 or more employees, information by job category on their employees' race, sex and national origin on the EEO-1 form. On a biennial basis, EEOC collects similar data from referral unions, which file an EEO-3 form; state and local governments, which file an EEO-4 form; elementary and secondary level school districts, which file an EEO-5 form; and institutions of higher education, which file an IPEDS report with the Department of Education that serves as the Commission's EEO-6 report.
EEO-1 Desktop - The Commission's EEO-1 Desktop program gives agency employees access to EEO-1 data submitted since 1995 and allows employees to aggregate the data by industry and geography and to run comparative analyses of establishments.
Office of Research, Information and Planning, and Research and Analytic Services - The Office of Research, Information and Planning (ORIP) staff includes social science analysts with extensive experience in using statistical and social science techniques to support investigations and analyze workforce data, including the EEO-1. Upon request from the field, ORIP analyzes data to assist offices in identifying systemic discrimination. ORIP also conducts studies on selected industries or professions. Also, ORIP has developed an internal website called the Integrated Statistical Information Site (ISIS) that provides certain reports based on IMS data, including charge trends and reports by office or industry. The field currently does not have access to ISIS. In addition to ORIP, Research and Analytic Services (RAS) in the Office of General Counsel (OGC) also has experts who assist in identifying systemic discrimination, although they primarily work on litigation.
OGCNet - OGCNet is an internal threaded email system whereby OGC attorneys in the field and headquarters can pose questions and issues about their cases and exchange information with attorneys in other offices.
Input from stakeholders, members of the public and sister agencies - An important part of any office's enforcement efforts is outreach to stakeholders and other members of the community. As part of these outreach sessions, agency employees may become aware of potentially important issues involving discrimination in their communities. EEOC can also obtain important information from other agencies, such as the Office of Federal Contract Compliance (OFCCP) at the U.S. Department of Labor and state and local Fair Employment Practice Agencies (FEPAs).
Review of publicly available information - EEOC employees learn of employment discrimination trends or issues from newspapers or other publicly-available information. This information can be used to expand the investigation of individual charges or can form the basis of a Commissioner Charge or Directed Investigation.
Commissioner Charges and Directed Investigations - Section 706(b) of Title VII, incorporated by reference by § 107(a) of the ADA, empowers Commissioners to file charges to permit investigation of employers or other covered entities identified as possible violators even where no individual has filed a charge.18 Under the ADEA and EPA, EEOC may conduct a Directed Investigation even where no individual has filed a charge. (See endnote 12.)
The Task Force discovered that agency employees are not aware of - and therefore not utilizing - all tools available to them to identify systemic discrimination. We also found that most of the agency's existing methods of identifying possible systemic discrimination are not used in an organized, consistent or calculated manner. As such, the Task Force believes that there is great room for improvement with respect to the accessibility and usefulness of existing data, efforts to obtain additional data, internal expertise and support, and incentives for identifying and developing systemic cases.
The Task Force found that the basic data available to the Commission - including charge data, EEO-1 data and U.S. Census data - is not linked, which interferes with the Commission's ability to identify possible systemic discrimination effectively. We learned that IMS data is often less accurate than EEO-1 data with respect to the proper name, location and industry of employers, because charging parties, rather than employers, provide the IMS information. The Task Force also found that most investigators cannot access nationwide IMS data from their desktops, which would be useful in determining whether there are multiple charges on the same issue and basis against a particular respondent. Also, IMS does not track certain information that may be useful in identifying systemic cases. We also found that the EEO-1 information available to investigators is not consistently current and does not allow for more sophisticated, user-friendly analyses.
When the Commission does obtain useful systemic data, it is not consistently or reliably shared between headquarters and the field or among field offices. In addition, the information that serves as the basis for EEOC's public reports on workplace trends is not shared with the field for purposes of identifying systemic discrimination.
The Task Force found that efforts to obtain workforce data beyond the existing systems are uneven. There is no strategic effort to obtain trend information through outreach to community organizations or academics. Also, there is no plan to identify proactively important economic indicators such as the growth and decline of particular segments of the workforce. Instead, those Commission field offices that have an interest in systemic discrimination drive the Commission's identification of systemic discrimination by reaching out to obtain data.
The Task Force determined that there is a wide range of expertise among Commission staff, including investigators and attorneys, with respect to identifying and developing systemic charges. There is little if any user-friendly, easily accessible guidance on the Commission's website or elsewhere providing information about how to identify or develop systemic charges. There is no network for field investigators conducting systemic work to pose questions or share information.
There are too few expert labor economists and statisticians in ORIP and RAS to conduct analyses of data proactively and in response to field requests. The experts in ORIP who provide support for systemic investigations are not in a distinct division or organizational unit within ORIP. There are no headquarters employees in OGC or the Office of Field Programs (OFP) designated to provide assistance or support related to the development of systemic charges.
Currently, Commission investigators are not encouraged through performance standards or other means to use existing data, including EEO-1 data, as part of the development of systemic charges. As discussed in Section III.B.3., many employees believe there are disincentives to identifying and developing potential systemic cases.
The Task Force found that there is little incentive to expand individual charge investigations. Several plaintiffs' attorneys informed the Task Force that some EEOC field offices sometimes discourage or even refuse to accept allegations of class discrimination in charges.
There is also little incentive to develop Commissioner Charges or Directed Investigations, which we believe are important tools in the effort to combat systemic discrimination, as many victims of discrimination do not come to EEOC because they fear retaliation, do not know about their rights, or are unaware of the discrimination (particularly where the issue is hiring). Some staff in the field mistakenly believe that proposed Commissioner Charges are subject to multiple layers of headquarters review and some believe that Commissioners are reluctant to sign proposed Commissioner Charges.
In order to better identify possible systemic discrimination, EEOC must begin by utilizing the data it routinely collects in a more comprehensive and strategic way, particularly with respect to charge data in EEOC's IMS system and data from EEO-1 Surveys.
The Task Force believes it imperative that the agency link the charge data in IMS with the employment data in the EEO-1 and other EEO Surveys so that the data in EEO-1 reports can easily and automatically be imported into IMS.19 If IMS is linked with the unique employer identifiers used in the EEO-1 form, EEOC can improve the accuracy of the data in the IMS system, decrease the amount of time necessary to enter data into IMS and more easily track and retrieve data about charges filed, particularly with respect to data on multiple charges on the same basis filed against the same employer. Recognizing the importance of this recommendation, members of the Task Force have met with staff in the Office of Information Technology (OIT) and developed system requirements for the necessary modification to IMS. (These are addressed in Section V.E. and endnote 37, infra).
The Task Force recommends that the Commission modify the informational categories in IMS, which track matters such as the type of discrimination and issues alleged in each charge. This will allow the agency to designate and track systemic investigations more accurately and collect data on issues that are of particular interest to the Commission, but not currently tracked in IMS (e.g., identifying job categories at issue). The agency should also improve the report-writing capabilities of IMS.20 In addition, the Task Force recommends that the agency enhance the IMS reports that are planned for the ISIS and BRIO applications; these applications should be expanded to include more reports relevant to detecting possible systemic discrimination, such as reports that more closely identify trends. EEOC employees should be able to produce ad hoc reports based on their analytical needs.
The Task Force has several recommendations related to the EEO-1 Surveys. While we recognize that EEO-1 data alone is of limited use in revealing systemic discrimination, we believe there are ways to make the data more useful to the Commission. First, the Task Force recommends that the Commission integrate U.S. Census data into the EEO-1 Desktop, which will allow staff to construct Census-based availability estimates.
Second, the Commission should improve the internal processing of the EEO-1 Surveys by making the data available to EEOC staff on an internal website. (Currently, each office must separately update and maintain the software and data sets.)
Third, the Task Force believes that it takes too long to make EEO-1 data available to staff. The Task Force recommends that the Commission expedite the delivery of this data so as to make it available to staff by the end of each calendar year.
Fourth, we recommend enhancements to the reports generated by the EEO-1 Desktop. This application allows employees to easily retrieve EEO-1 Surveys submitted by employers and to run certain analyses of EEO-1 data. The Task Force found that the EEO-1 Desktop is a very useful tool; however, the Task Force recommends enhancements with respect to the system's analytic capabilities and the reports it generates.
Fifth, the Task Force suggests incorporating a geographical information system (GIS) component into the EEO-1 Desktop. This would allow users who want to compare establishments or populations in a certain geographic area to select the desired area using a map rather than merely a list of counties. The Task Force learned that the Department of Justice has access to a GIS system and finds it user friendly and valuable in helping to identify possible discrimination.
The Task Force believes that the Commission should give field staff greater access to relevant data, and additional tools with which to analyze the data, in order to increase their effectiveness at identifying systemic discrimination. We therefore recommend that the Commission give relevant staff in the field greater direct access to IMS data and report-writing software (including BRIO and ISIS) so that they can search and generate reports using nationwide charge data. In addition, the Task Force recommends that investigators and attorneys experienced in working with EEO-1 data (and relevant supervisors and managers) be given access to SAS, a statistical software package, and SAS-based EEO-1 data sets to allow them to conduct more sophisticated analyses of data.
The Task Force believes that field offices and headquarters staff should use outreach opportunities with national and local community based organizations, workers, academic researchers, and the plaintiffs' bar to identify possible systemic discrimination. The Task Force also recommends that the field collaborate with their FEPA partners to identify possible systemic discrimination via joint outreach endeavors, efforts to encourage FEPAs to inform EEOC about possible systemic discrimination they become aware of, and other appropriate means. The Task Force further encourages coordination between the Commission and its sister agencies at the federal level, particularly the Department of Justice, the Office of the Solicitor at the Department of Labor, and OFCCP.
The Task Force recommends that ORIP enhance its efforts at analyzing data for the purpose of identifying systemic discrimination. ORIP should focus on the "big picture" from national and regional perspectives. Among other things, ORIP should examine nationwide and regional charge data, EEO-1 data, Census data and other data sources.
In addition, ORIP should work closely with the field to learn about local issues and concerns and to obtain information about particular charges of interest. ORIP also should identify local academicians who periodically are willing to discuss research on local economic trends with field offices. To facilitate collaboration between ORIP and the field, the Task Force recommends that each district designate a person who can serve as the primary point of contact for ORIP on issues related to the identification of systemic discrimination.
The Task Force further recommends that ORIP gear formal studies towards identifying systemic discrimination for possible enforcement action. In order to determine relevant topics for these studies, ORIP staff should consult with the field, appropriate headquarters offices and stakeholders.
As discussed more fully in Section III.C.8., the Task Force believes that the Commission will need to hire additional staff to enable ORIP to meet the needs of the Commission's new systemic program. We recommend that some of the new staff should be placed in the field.
We further believe that performance standards for the ORIP employees who support the field's systemic program should reflect these responsibilities.
The Task Force believes that it is crucial that the Commission provide pertinent information about possible systemic discrimination to field employees. Thus, the Task Force makes the following recommendations:
Information collected and analyzed about possible systemic discrimination is useful only if it is shared with front line staff in a user-friendly format. To that end, the Task Force recommends that ORIP prepare succinct reports tailored for particular districts or regions. These reports, which should be used for enforcement purposes, should include data on economic trends, demographic shifts, and nationwide themes and patterns. ORIP should also identify bases, issues, industries or employers of interest.
The Task Force believes that some of the issues, bases, industries and/or employers of interest ORIP identifies, in consultation with OFP and OGC, should be flagged in the IMS system, so that investigators and other field staff can be alerted as early as the Intake stage and follow up as appropriate.
The Commission should encourage each district to designate its own priority systemic issues.21 This will allow investigators and other Intake staff to identify certain types of issues at the earliest stage. Because these are likely to be regional or local concerns, the Task Force believes it would be beneficial for districts to share these priorities with their FEPA partners.
The Task Force believes that EEOC should focus on systemic discrimination wherever it occurs. This national approach will require greater coordination and cooperation between offices in the field, between the field and headquarters, and among offices within headquarters. In particular, because systemic discrimination frequently crosses the jurisdictional boundaries of the EEOC's districts, the districts should share information and ideas related to identifying systemic discrimination, including their systemic priority issues lists, with other districts and with headquarters. Each district should identify an employee responsible for coordinating with ORIP, OFP and OGC on identifying systemic discrimination. The Task Force recognizes that this recommendation puts added responsibility on the field at every level - from Intake personnel to the District Directors - and, as such, that implementing it will require resources, support and encouragement from all of headquarters.
As discussed more fully in Section III, the Task Force recommends that each district develop a Systemic Plan which outlines the district's strategy for identifying and investigating systemic discrimination.
The Task Force recommends that the Commission develop expertise among staff in identifying systemic discrimination. We further believe that the Commission should create an internal website that includes materials related to the identification and development of systemic charges, such as guidelines and sample documents, and create an electronic bulletin board or listserv to foster communication. (See fuller discussion of these issues in Sections III.C.5., 6.)
The Task Force recommends that the Commission reaffirm its policy that individuals may allege class discrimination in charges and ensure that staff are aware of this position. While districts have the responsibility to determine when to expand an investigation to address class issues, individuals (and third parties) have the right to file class charges if they so desire.
The Task Force further recommends that management in headquarters and the field encourage expanding the investigation of individual charges and investigating class allegations in charges, where appropriate.
Because most potential systemic cases are (or should be) designated as A-1 charges, the Commission should reaffirm the principle that A-1 cases should not be sent to the mediation program without the concurrence of the Regional Attorney.
In order to be proactive in identifying systemic discrimination, the Task Force believes that EEOC also should use the data it collects through IMS and EEO-1 Surveys and the data it reviews from the U.S. Census and other sources to pursue possible discrimination via Commissioner Charges and Directed Investigations where there is no appropriate charge with which to pursue the issue. The development of Commissioner Charges and Directed Investigations ordinarily should be based on the thorough consideration of factors such as current economic conditions, demographic data, relevant labor markets, industry data, underserved areas or populations and charge data. We believe that Commissioner Charges and Directed Investigations should be a regular part of EEOC's systemic enforcement efforts.
The Task Force recommends that the Commission issue a memorandum explaining the procedures for initiating and investigating Commissioner Charges, as set forth in PCHP.22 The Task Force also suggests that the Commission clarify the type of evidence and information that should be included in a Commissioner Charge proposal. The Task Force believes that the following information should be included in each proposal:
Further, the Task Force recommends that OGC legal staff and employees in ORIP and OFP be designated to serve as contact people for field offices developing Commissioner Charges. These employees should be available if a field office wishes to seek headquarters assistance or guidance in researching or preparing a proposal (this should involve assisting the field, not performing oversight).23 They also should facilitate communication between Commissioners and the field, if requested.
In addition, the Task Force recommends that when new Commissioners arrive, the agency educate them on the Commissioner Charge process. Commissioners should be encouraged to work closely with a field office when they have an idea for a Commissioner Charge that they would like the field to pursue (to ensure that the field office supports the proposed investigation) and when they are reviewing a field proposal.24 Commissioners also should be encouraged to have realistic expectations regarding the amount of evidence available for a Commissioner Charge25 and to recognize that early closure of an investigation may be appropriate where the evidence does not support the allegations.
Because the Task Force found that the Commissioner Charge approval process has been hampered by delays in recent years, we believe that Commissioners' Offices should be urged to respond to proposed Commissioner Charges in a timely manner, and that the Office of the Executive Secretariat should ensure that the Commissioners follow the review process.
Finally, to encourage offices to propose Commissioner Charges aimed at routing out systemic discrimination, the Task Force recommends that, for an initial two-year period, the Commission provide incentives to District Directors and Regional Attorneys for submitting systemic Commissioner Charges that are approved by a Commissioner.26 The issue of incentives for addressing systemic discrimination is addressed more fully in Section III.C.4.
The Task Force recommends that the Commission encourage District Directors and their designees to initiate Directed Investigations when they have sufficient indication of systemic discrimination under the ADEA or the EPA. The Task Force recommends that the Commission promote the use of Directed Investigations as part of the agency's overall effort at combating systemic discrimination and issue a memorandum explaining the procedures for initiating a Directed Investigation.
In addition, the Task Force suggests that the employees designated in OGC, OFP and ORIP to assist field staff in preparing or investigating Commissioner Charges also be available to the field for questions or assistance regarding Directed Investigations in systemic cases.
The Task Force reviewed the history of the agency's efforts at combating discrimination through the investigation of systemic charges. As discussed in Appendix C, beginning in about 1979, each district office had a separate systemic unit comprised of approximately four to six systemic investigators who were responsible for developing, investigating and conciliating Commissioner Charges in their districts. OFP had extensive oversight over the field's systemic program. The systemic units were phased out in the mid to late 1990s, following the Commission's adoption of PCHP.
Since that time, districts have investigated systemic discrimination using a variety of organizational approaches. For example, in some offices, one or two experienced systemic investigators typically investigate all of the systemic charges. Other offices pull together a team of investigators to investigate each systemic case; in some offices, attorneys are also assigned to the investigative team. Some offices treat systemic charges in the same manner as other charges.
As discussed in Appendix C, there is also a small complement of systemic investigators working with attorneys in OGC's Systemic Litigation Services (see also endnote 35).
This Section addresses the Task Force's findings regarding what has worked and what has not worked in EEOC's investigation of systemic charges and recommends reforms to the process to maximize the efficient use of resources and improve effectiveness.
The Task Force found some instances of successful systemic investigations, most of which involved close coordination between the enforcement and legal staff. Many of these successful systemic investigations resulted in significant litigation (see Section IV.B. of this Report). We also found a few instances in which systemic investigations culminated in conciliation agreements that the Respondents agreed to publicize. For example, the Commission conciliated a case against a nationwide chain of hair salons involving alleged race discrimination in hiring, promotion and termination; the case settled for $3.5 million, and the company agreed to put in place several measures designed to prevent discrimination in the future. The Commission also publicly conciliated a Commissioner's Charge involving a high-end restaurant chain's alleged failure to recruit and hire women for food server positions; the employer agreed to pay $500,000 in relief and voluntarily implemented changes in its employment practices, which included mandatory hiring discrimination training and more effective applicant tracking and record-keeping systems.
The Task Force learned that, although there have been a few instances in which districts have partnered with one another to conduct a systemic investigation, this is a rare occurrence. (One recent example of successful partnering occurred in the investigation of Abercrombie & Fitch, where two districts worked together to investigate and settle (through a consent decree) allegations of discrimination against Black, Hispanic, Asian and female applicants and employees.)
The Systemic Task Force identified the following areas for improvement with respect to the Commission's efforts to investigate systemic discrimination.
The Task Force found that the Commission does not have a strategic, coordinated approach to investigating systemic discrimination nationwide. Also, EEOC districts rarely collaborate with each other on systemic investigations. In addition, the Task Force found that in cases where there are indications of class or broad systemic discrimination, many EEOC employees are reluctant to expand an investigation beyond the individual charging party, the named facility and/or the particular EEOC office's geographical boundaries, for a variety of reasons.
The Task Force found that the Commission does not investigate systemic discrimination consistently throughout the country. While some districts pursue these cases vigorously, other offices focus on different priorities, and some offices simply lack the necessary staff, expertise or experience to pursue systemic investigations.
The Task Force learned that many employees believe that investigating systemic discrimination is not a Commission priority. District Directors have not had goals related to addressing systemic discrimination since approximately 1994. Many people reported that efforts to achieve office goals in other areas, such as outreach and inventory management, make it difficult to devote necessary resources to systemic cases. In response to the Task Force's survey to District Directors and Regional Attorneys, over 90% of the district offices stated that workload constraints prevented their district from devoting staff time to systemic cases. One hundred percent stated that an adjustment to office goals would be helpful in assisting their districts in pursuing systemic investigations.
Similarly, many employees told the Task Force that there are not adequate incentives for developing or investigating systemic cases. In fact, many employees felt that there are disincentives for doing this type of work, because it interferes with achieving inventory management goals. Eighty-five percent of the District Directors and Regional Attorneys who responded to the Task Force's survey identified "lack of incentives" as an obstacle in developing large systemic cases. The vast majority of the Commission employees with whom the Task Force conferred expressed the desire to perform more work on systemic cases, but indicated they believe the Commission's current priorities and incentives discourage such work.
Many employees advised the Task Force that in order to carry out a vigorous systemic program, the field would need additional staff, particularly investigators (especially those with systemic expertise). In addition, the Task Force learned that some of the Commission's best systemic investigators have moved to management or mediation positions in order to obtain a promotion beyond the GS-12 level, thereby further depleting the number of seasoned systemic investigators.
While the Commission has many employees throughout the country who have strong skills and broad experience in developing and working on systemic cases, a significant portion of the agency's workforce does not have the requisite expertise. The Task Force learned that many employees do not know how to use the primary tools and resources that are critically important in systemic cases, including EEO-1 Desktop, EEOSTAT, EXCEL, and Census data. Very few employees have access to or know how to use BRIO (software that analyzes charge data from IMS) or SAS (software that conducts sophisticated analyses of data). Investigators who work on systemic cases do not have access to, or training in, CaseSoft, which is litigation management software that attorneys sometimes use in class cases.
Many employees lack expertise in substantive matters including: identifying possible systemic discrimination (at Intake, during an investigation or based on data analysis); determining what evidence is needed in a systemic case; analyzing statistical data (including how and when to seek expert assistance); and applying the correct legal standards. Many employees need to develop skills in practical areas such as: working with electronic information; managing the multitude of documents or computerized records that are typically needed in systemic cases; tracking and communicating with large numbers of witnesses or aggrieved persons; and conciliating large systemic cases.
Many individuals advised the Task Force that not every investigator is particularly suited for, or interested in, working on systemic cases, and that it would be best to develop expertise in staff who have strong analytical and organizational skills, an aptitude for statistics, and an interest in working on systemic cases.
The Task Force also found that the agency does not have user-friendly, easily accessible tools and guides for helping employees develop or investigate systemic charges. There is little if any information related to systemic work on the Commission's internal website (InSite). Moreover, finding information on that website can be difficult. The Task Force found that staff working on systemic cases want the opportunity to communicate electronically with one another using a bulletin board or listserv.
The Task Force found that there are too few research and technical experts in headquarters to provide sufficient guidance and support for the field's systemic investigations (there are currently three experts in ORIP who perform this function), and the need for this type of assistance will expand greatly if the Commission adopts the Task Force's recommendations. Moreover, the experts do not have the requisite access to necessary journals, subscription services, studies and technological tools.
Since approximately 1997, the headquarters systemic investigations unit has been part of OGC (see Appendix C). For a number of years, the unit has focused on cases designed to develop the law rather than large class cases. Members of the public do not file charges with headquarters, so there is no stream of charges from which the unit can develop systemic investigations.
Although most of the individuals who spoke with the Task Force about the headquarters systemic unit focused on whether there should be a headquarters litigation unit (see discussion in Section IV.B.2. of this Report), some people specifically addressed the investigations function. Some spoke in favor of having an investigations unit in headquarters. However, most people advocated eliminating the investigation function from headquarters. Many suggested that a separate national systemic investigative office was not necessary because the field can perform this work as well, or better. Several commented on the difficulty of developing investigations from headquarters because only the field is connected to the pipeline of charges. Some felt that systemic work should be done in the field because field employees are more knowledgeable about local trends and issues, have closer ties to local community groups, and have more opportunity to learn about discrimination through Intake and the investigation of other charges.
The Commission does not have an entity at headquarters or elsewhere specifically responsible for reviewing the agency's effectiveness in identifying or investigating systemic cases. Both the field and headquarters have important roles to play in maintaining an effective systemic practice, and within headquarters, there are multiple offices that must contribute to the success of the program (particularly ORIP, OFP and OGC). No one office currently has responsibility for looking at the totality of the program and evaluating its effectiveness. Past headquarters efforts at overseeing the systemic program in the field were criticized widely as ineffective and highly burdensome.
The Task Force believes that all EEOC districts throughout the country should investigate systemic cases, because combating systemic discrimination is such an essential part of the Commission's responsibilities. We considered but rejected the suggestion that systemic investigations be conducted by only a few select offices that have been particularly successful in this area. We believe that combating systemic discrimination must be every district's practice.
Systemic discrimination occurs nationwide and the Commission should be investigating it nationwide.
However, the Task Force recognizes that not every office currently has the staff, expertise or experience to investigate systemic cases successfully on its own. Therefore, as discussed more fully below, we recommend that the Commission strongly encourage partnering and mentoring in order to ensure that systemic cases are investigated effectively throughout the country, and to promote the development of expertise.
In order to ensure a coordinated, strategic, effective agency-wide approach to identifying and investigating systemic discrimination, the Task Force recommends that each district develop a Systemic Plan. The District Director and the Regional Attorney for each district should jointly prepare the Plan and update it annually (or more often, if necessary). As discussed more fully below, districts should submit Plans to OFP and OGC who should review the Plans and ultimately negotiate an annual Plan with each district.
Together, the plans should reflect a coordinated, national approach to combating systemic discrimination. As discussed below, this will require coordination between districts and sharing of resources between offices. Thus, while the Task Force envisions a Systemic Plan for each district, the Plans should be interdependent.
The Task Force believes that the Systemic Plan should address two critical issues. First, it should describe the specific steps that each district will take to identify and investigate systemic discrimination. The Plan may address the investigation of existing charges and/or the development of Commissioner Charges or Directed Investigations. While the Plan should be as detailed and specific as possible, it should also be flexible enough to allow a district to change course if necessary. For example, if, after investigating a charge in accordance with a Systemic Plan, an office determines that it is unlikely that the respondent violated the law, the office should exercise appropriate judgment and dismiss the charge and then, in consultation with OFP and OGC, promptly modify the Plan to address other possible systemic discrimination.
Second, the Plan should describe how the identification and investigation of systemic discrimination will be accomplished, taking into consideration the district's strengths and resources. As indicated above, the Task Force believes that some districts can perform systemic work on their own with current staff, while others cannot because they lack resources or staff with the necessary skills and expertise. In light of this, and in order to ensure that the Commission is effectively addressing systemic discrimination nationwide, the Task Force recommends that the Commission encourage districts to collaborate with other offices and/or with particular staff members in other districts who have systemic expertise. In constructing approaches to accomplishing this work, the Task Force foresees a variety of possibilities, including offices with significant systemic experience partnering with other offices to jointly identify and investigate systemic discrimination,27 or select staff (investigators, attorneys, supervisors, etc.) who have specific expertise working on systemic charges with another office (e.g., as a team member, team leader, or mentor).28 In determining which approach to adopt, the Task Force recommends that districts take advantage of their existing resources and strengths district-wide (including all offices that are a part of that district) and address gaps. We make no recommendation as to how staff working on systemic cases within a particular district should be structured (i.e., whether there should be designated systemic teams or units, dedicated systemic investigators or hybrid teams, etc.); we believe that districts should determine the structure that will work best for them, in accordance with their Systemic Plan.
Regardless of the approach adopted, the Task Force believes that there must be close coordination between legal and enforcement staff throughout the identification and investigation of systemic cases.
The Task Force recommends that OFP, OGC and ORIP assist districts in formulating their Systemic Plans by identifying potential partner offices and specific field or headquarters employees with relevant expertise. As discussed in Section II, headquarters staff should also work with districts to identify possible systemic discrimination to be addressed as part of the Systemic Plan.
Once proposed Plans are submitted, OFP and OGC should consult with ORIP and the advisory committee discussed in subsection C.12. below. In reviewing the Plans, OFP and OGC should ensure that each Plan is appropriate for the particular district, and that the Commission as a whole is addressing systemic discrimination in an effective and strategic way (this includes, among other things, ensuring that the systemic program addresses discrimination nationwide, and addresses diverse bases and issues).
Ultimately, OFP, OGC and each district should negotiate a Systemic Plan that is tailored for that district and contributes to the Commission's overall efforts to combat systemic discrimination nationwide. The final plans should be reviewed and approved by the Director of the Office of Field Programs and the General Counsel (or the General Counsel's designee). The Task Force believes that the Plans must require results, and that they may require adjustments to other office goals (see Section III.C.4. below). We recommend that District Directors and Regional Attorneys be evaluated on their success in effectively identifying, investigating and conciliating systemic cases, consistent with their Systemic Plan (see endnote 30, infra).
Having a sufficient number of staff with the necessary expertise is critical to the success of the systemic program. We believe that it is especially important to ensure that the offices that partner with less experienced offices have sufficient staff to continue to perform their own systemic work.
In addition, the Task Force recommends that the Commission create and fill at least five GS-13 lead systemic investigator positions.29 To accomplish this, we recommend that offices that believe they have qualified employees submit justification memoranda requesting the position for their offices, and that OFP select from among district applicants. We believe that these positions should be filled with incumbent staff, who, based on their demonstrated expertise and quality work on systemic cases, could serve as mentors and team leaders on systemic investigations both within and outside of their districts. Creation of this position will allow the Commission to retain highly skilled staff in a critical role and will enhance a culture of excellence at the Commission.
The Task Force recommends that the Commission create incentives through evaluations and other means to encourage the field to successfully identify and investigate systemic cases, in accordance with the district's Systemic Plan.30 Thus, the effective development and investigation of systemic cases should be included as one of the expected results in the leadership element of the District Directors' performance plans.31 In addition, the Task Force recommends that the Commission create incentives to encourage the field to successfully contribute to the Commission's national program of combating systemic discrimination, through partnering, mentoring or other methods and to develop expertise among staff in the identification and investigation of systemic discrimination.
In order to make it possible for districts to devote the resources necessary for systemic case investigations, the Task Force believes that the Commission may need to make adjustments in some offices, such as reducing a district's outreach or production goals, "backing out" a certain percentage of staff time (such as 10% or 15%) or transferring cases from one district to another if additional staff resources are not available or expected. These adjustments also should be offered to offices that are willing to partner with, or provide staff resources to, other offices. The Task Force recommends that the districts and OFP address these types of adjustments during the negotiation of each office's Systemic Plan. (See Section IV.C.4. regarding incentives for systemic litigation.)
Finally, the Task Force believes that effective work on systemic cases, including effective partnering and mentoring, should be recognized as part of the Commission's awards programs and any incentive pay plans.
The Task Force believes that the Commission should continue to enhance systemic expertise among staff, including expertise in technological, substantive and practical matters as discussed in Section III.B.5. supra, using a variety of approaches. EEOC should use partnering and mentoring opportunities to pair employees who have performed high quality work on systemic cases with less experienced staff to work together on specific systemic investigations as a training and development tool. Although there are numerous employees at the Commission who are very skilled at identifying or investigating systemic cases, their skills are often underutilized. Employees with less expertise - especially those with strong analytical and organizational skills, an aptitude for statistics, and a strong interest in this area - could benefit greatly by working on systemic cases with their more experienced peers.
EEOC should develop systemic expertise through formal training sessions, such as the training program on class case development and litigation that the Commission conducted successfully several years ago. Staff with practical experience in developing and litigating systemic cases should serve as trainers.
EEOC should use informal, case-based training in field offices. This would be particularly useful once an office begins working on a particular systemic case.
EEOC should promote the development of expertise through self-education and e-learning. The Commission should make available articles, books, videos and other materials that employees can use to develop their own knowledge and skills. (See also Section III.C.6. below, regarding the development and posting of materials.) Also, the Commission should improve its internal website (InSite), particularly the search function, to make it easier to find relevant materials.
EEOC should provide training on CaseSoft, the litigation support software used by Commission attorneys, to some field investigators and other enforcement staff working on systemic charges, and make the software available on their desktops.
EEOC should form strategic partnerships with outside agencies and groups to increase training opportunities and maximize Commission resources, such as possible joint training initiatives with the Department of Justice, the Department of Labor, OFCCP and FEPAs related to systemic discrimination. The Commission should also partner with private organizations, such as the American Bar Association, the National Employment Lawyers Association and the Impact Fund, to provide joint training or to make arrangements for EEOC employees to attend their class discrimination training programs. (The Task Force believes that outside training and conferences can be very valuable not only because they provide formal training, but also because they can allow employees who already have expertise to network with others who perform the same kind of work and share experiences, which helps bolster confidence and morale.)
To facilitate the sharing of expertise among staff, EEOC should create an electronic bulletin board or listserv which would allow investigators and attorneys working on systemic charges to communicate with their peers regarding systemic cases and generate awareness of and interest in systemic cases for new and inexperienced investigators and attorneys.
The Task Force believes that in addition to providing training and development opportunities to field staff, EEOC should also offer such opportunities to the headquarters staff who focus on systemic discrimination issues, including the experts in ORIP and OGC.
The Task Force recommends that EEOC collect and create materials related to combating systemic discrimination, and post them on an internal website devoted to systemic issues. Such materials should include:
The Task Force recommends that the Commission eliminate the headquarters systemic investigation function.32 We believe EEOC should conduct systemic investigations in the field, not in headquarters.
Upon request from the field, or consistent with Systemic Plans, headquarters employees should provide substantive assistance and guidance during systemic investigations, particularly with respect to reviewing and analyzing evidence and conducting statistical analyses. Headquarters employees should also help with investigative planning and strategy, drafting requests for information and case management. We believe that the research and technical experts in ORIP should be primarily responsible for providing this type of assistance during the systemic identification and investigation stages.
In order to provide substantive assistance on systemic investigations and help the field in identifying systemic discrimination through analyses of data and other methods (see Section II, supra), the Task Force believes that the Commission will need to hire several additional experts in ORIP. The most immediate needs are for two labor economists, two social scientists, one industrial psychologist and one research assistant. We further believe that at least some of this additional staff should be located in the field, not in headquarters, so that they can work more closely with field staff. In addition, we recommend that ORIP create a distinct division containing all of the systemic support functions.
The Task Force also recommends that other resources be provided to ORIP (and RAS), including greater access to necessary journals and online subscriptions and enhanced technological tools, including the latest version of the SAS software (SAS-9) as well as periodic appropriate upgrades and updates of these tools. (We recommend that the agency provide access to many of these resources, including access to subscriptions such as Hoovers.com, to field staff as well.)
The Task Force recognizes that in addition to the experts in ORIP, there are also experts working in RAS in OGC. The experts in ORIP provide substantive assistance on investigations, while the experts in RAS work primarily on cases in litigation.33 At various times in the past, all of the Commission's experts worked together in one division, but since 1994, the experts have been divided between two headquarters offices.
The Task Force considered whether the Commission should continue to keep the expert functions separate. Employees stated that when the experts all were located in the same department, they spent virtually all of their time on litigation matters, due to the demand for this type of assistance and the court-imposed deadlines, and had little time to assist on investigations. Because of time constraints and strategic advantages to having separate experts for investigations and litigation, the Task Force recommends that the Commission retain the current structure, and continue to have experts devoted primarily to assisting in investigations and others devoted to litigation.
Appropriate OGC and Office of Legal Counsel (OLC) headquarters staff also should provide assistance to the field during systemic investigations, upon request or as part of a district's Systemic Plan. OGC headquarters attorneys are available to provide substantive guidance to field attorneys regarding systemic investigations. In addition, OLC attorneys are available to provide substantive guidance to field investigators and attorneys regarding legal issues during the development of systemic charges.
The Task Force believes that headquarters staff in OFP, OGC and ORIP should assist the field in partnering, coordination, and other operational and logistical matters related to systemic charges. Support of the field's systemic program should be a vital part of the activities of these offices.
Headquarters staff in OFP and OGC should assist the field in establishing partnerships among offices and should identify employees in the field and headquarters who have expertise in relevant areas and can assist districts on particular systemic investigations.
Headquarters staff also should help with inter-office coordination on systemic claims. For example, when a district intends to investigate discrimination outside of its geographic boundaries, headquarters staff should work with the office to ensure coordination and avoid duplication of effort by multiple districts. OFP and ORIP also should work together to identify instances when more than one office is investigating similar claims against the same respondent and communicate this information to the field. Where appropriate, OFP should assist the field in coordinating the investigations or facilitate the transfer of related charges from one office to another in order to maximize efficiency.
The staff in RAS and ORIP should assist the field in identifying outside vendors and experts when necessary for investigations, including vendors able to perform data entry or database management, or persons with expertise beyond that available in-house.
Headquarters library staff should continue to assist the field in conducting research, particularly with respect to locating individuals and finding information about businesses or industries. This may require redeploying other headquarters staff to the library.
Finally, headquarters staff should assist the field by enhancing technology in support of systemic investigations; facilitating the creation of materials, such as systemic manuals and guides for investigators; posting systemic materials on an internal website; facilitating communication between employees working on systemic investigations; and providing, or coordinating, training to field staff designed to enhance expertise in systemic cases.
The Task Force recommends that the Commission work more closely with its sister agencies to combat systemic discrimination. The Task Force met with high level officials in the Civil Rights Division of the Department of Justice, and in the Solicitor's Office and OFCCP at the Department of Labor, all of whom expressed interest in working together to address systemic discrimination.
Where it appears that a state or local government has engaged in systemic discrimination in violation of Title VII or the ADA, the Task Force recommends that the Commission make an increased effort to communicate and coordinate with the Department of Justice. We also suggest that OGC and/or OFP designate an employee responsible for coordinating with the Department of Justice on an ongoing basis, particularly with respect to systemic cases.
The Task Force recommends that the Commission also coordinate more closely with the Solicitor's Office and OFCCP at the Department of Labor. We understand that the Commission and OFCCP are working collaboratively on at least one systemic investigation at the present time, and we believe that both agencies will benefit from this cooperative approach.
The Task Force also recommends that the Commission expand efforts to partner with FEPAs on systemic investigations. In many instances, it will be beneficial to share information or conduct joint investigations in systemic cases.
The Task Force believes that it is critical that the Commission create a Committee of Advisors for Systemic Enforcement ("CASE") responsible for helping to ensure that the agency combats systemic discrimination effectively. CASE should not perform an oversight function or create an additional layer of approval or management for the field. Rather, CASE should be a useful source of assistance and support. Specifically, CASE should be responsible for:
We recommend that CASE be comprised of a cross-section of no more than nine staff members from both the field and headquarters including: a District Director, a Regional Attorney, a Mentor or Lead Investigator, a Trial Attorney, and personnel from ORIP, OGC, and OFP. The composition of the committee could change over time.34 We recommend that CASE select a leader and determine how it will assign tasks among its members.
CASE members should be selected based upon their systemic enforcement experience and expertise. In performing their work, they should consult with Commissioners and their staffs, field offices, headquarters offices, stakeholders, academics and FEPA leadership, as appropriate. Headquarters offices (e.g., OFP, ORIP, OGC, OIT) and field offices should provide information to the group as needed.
The Task Force believes that as a complement to its enforcement efforts, the Commission should use outreach opportunities to educate employers and other members of the public about systemic discrimination, including trends and issues the agency has identified. This could include outreach focused on a particular geographic region, industry or size of employer. (See related discussion in Section IV.C.8. of this Report.)
Virtually all of the Commission's systemic litigation is initiated and prosecuted by attorneys in field offices. Litigation is almost always handled by the office in which the underlying charge arose. Some offices have more systemic expertise and experience than others.
In addition to the systemic activity in the field, in headquarters OGC houses a small unit called Systemic Litigation Services (SLS), which has both investigative and legal staff.35 (The agency's past headquarters systemic efforts and organizational structure are discussed in Appendix C of this Report). SLS changed its focus in approximately the late 1990s from litigating systemic cases to searching for issue-oriented cases for possible development from the charge stage forward.
This section addresses the Task Force's findings related to the agency's systemic litigation efforts and recommends changes to enhance the agency's effectiveness and use of resources.
The Task Force found numerous instances of successful systemic litigation. Systemic cases resolved by the field legal units during the past few years include: Carl Buddig & Co. (discrimination against African Americans in hiring and women in assignment at a meat processor with four plants); Rent-A-Center, Inc. (sex discrimination against women in hire, discharge, and terms and conditions of employment at the nation's largest rent-to-own business); Dial Corporation (sexual harassment of female employees at an Illinois production facility of a major manufacturer of soap products); Northwest Airlines, Inc. (disability discrimination action challenging airline's policy of excluding individuals with insulin-dependent diabetes and those taking anti-seizure medications from equipment service employee and aircraft cleaner positions); and Morgan Stanley & Co., Inc. (sex discrimination against female professional employees of a global financial services firm in promotion opportunities, compensation, and terms, conditions, and privileges of employment). In addition, legal units have worked together effectively on a number of systemic as well as other cases. For example, offices partnered effectively on litigation against Wal-Mart Stores, Inc. (coordinated resolution of 13 pending ADA lawsuits).
With respect to the Commission's systemic litigation practice, the Task Force found areas for improvement with respect to: how attorneys are assigned to systemic lawsuits; the role of headquarters; incentives; enhancing expertise; paralegal staffing; and prefiling issues.
The Task Force found that in staffing systemic cases, the Commission does not sufficiently capitalize on the strengths and expertise of its staff nationwide but rather tends to have the staff in the office where the charge originated handle the litigation. Participation by staff with relevant expertise from other offices has been on an ad hoc rather than formalized basis. EEOC staff and outside attorneys, including some of the leading employment discrimination attorneys in the country, recommended to the Task Force that the Commission staff systemic cases based on experience, skills and interest. They suggested that as Commission attorneys develop expertise in a substantive or technical area, the Commission should turn to those attorneys to assist in, or even lead, the prosecution of other cases that require similar expertise, regardless of the geographic location of their offices. Some defense attorneys from national law firms noted that, based on their experience in litigating cases against the Commission, the Commission often was disadvantaged by its failure to staff cases with attorneys who have specialized experience.
Defense attorneys explained to the Task Force that when it comes to staffing large cases, their firms no longer simply turn to the originating office and the originating partner. Instead, staffing is determined by the needs of the case. Representatives from one firm stated that they have a national assignment partner who is responsible for staffing the firm's large class cases.
The lawyers we spoke with stated that their firms typically staff large cases with, for example, an attorney who has substantive expertise in the relevant area of law, an attorney with expertise on the particular industry, an attorney with extensive experience in statistics and database management, and several less experienced attorneys (in addition to paralegals). Although the attorneys often will be located in different cities, these law firms found that the expertise they bring to the case more than makes up for the physical distance and that current technology allows them to work together very effectively. Attorneys we spoke with stressed that the move to staff large suits based on the needs of the case did not happen overnight, but required significant changes in their firms' culture, expectations and incentives.
The Task Force considered whether the Commission should maintain the headquarters systemic unit (SLS) or eliminate it. In considering this question, the Task Force looked at the history of the systemic program particularly in headquarters and considered input from a variety of sources, including staff in headquarters and the field as well as external stakeholders.
Several individuals advised the Task Force that headquarters has played and should continue to play an important role in litigating cases, and several recommended that additional resources be provided to the unit. Some suggested that the unit continue to focus primarily on issue-oriented "law reform" cases and leave most of the large class cases to the field.
However, the vast majority of individuals who provided input to the Task Force felt that there was not a need for a headquarters systemic litigation unit and that the work should be performed in the field. There were a variety of reasons given, including the following:
The Task Force found that headquarters staff in OGC provide support to the field systemic litigation program in several ways. For example, OGC reviews recommendations to file suit in most systemic cases. Upon request, OGC staff also provide substantive and technical advice on systemic cases. In addition, OGC helps facilitate coordination and partnering among offices. However, the Task Force found that particularly with respect to technology-related issues, the field is not necessarily aware of the level of assistance that OGC is willing and able to provide.
Upon request, and to the extent that limited resources allow, experts in OGC's RAS serve as consulting or testifying experts in systemic suits and assist Commission attorneys in identifying and working with external experts. The Task Force believes that particularly in their role as consulting experts on cases in litigation, RAS staff are an invaluable resource because they often provide faster and more objective advice than outside experts. In addition, use of RAS staff saves the agency hundreds of thousands of dollars each year in expert services costs. Current and past RAS staff have degrees in psychology, statistics and economics, which have been the major areas of expertise needed in Commission suits. However, RAS has lost over half its staff since the early 1990s and is severely understaffed.
The vast majority of comments we received regarding incentives focused on the need to encourage the identification and investigation of systemic cases. We generally found that OGC values and encourages systemic litigation, and that legal units endeavor to develop these types of cases. However, while we found that some offices have sought out partnerships with other offices in litigating systemic cases, there are no specific incentives designed to encourage this, and to some extent, the current system - which tracks the number of suits filed per office - may actually discourage collaboration between offices.
The Task Force found that although there are many attorneys and paralegals who have significant systemic expertise and experience, many others do not. We believe that many employees on the Commission's legal staff need training and development in the areas addressed in Section III.B.5. of this Report, as well as in areas particularly useful in systemic litigation (including electronic discovery, expert issues, and large case management). We also found a need for development with respect to technology. We learned that some attorneys and paralegals do not have experience using CaseSoft (litigation management software that may be very useful in class cases), and are not familiar with the other types of litigation support software that may be critical in large systemic cases.
The Task Force believes that OGCNet, the shared email account for attorneys, is a very valuable tool in allowing attorneys in OGC, including trial attorneys in the field, to share information and expertise. We found that it would be more useful if users could search for information more easily.
The Task Force found that because systemic suits involve voluminous documentation that must be organized and analyzed as well as large numbers of potential claimants who must be identified and interviewed, skilled paralegals can do much of the work as effectively as attorneys. The Task Force learned that some plaintiffs' firms that litigate employment discrimination class actions employ twice as many paralegals as attorneys. However, the Commission's legal units average only one paralegal for every 3-4 attorneys, and many of these paralegals spend the bulk of their time (some almost all of their time) preparing responses to Freedom of Information Act requests. As a consequence, EEOC attorneys working on systemic cases spend a great deal of time doing tasks that skilled paralegals could perform. Moreover, legal units may be losing paralegals in the field because they cannot progress past the GS-11 level, which is lower than the top grade for investigators and mediators.
The Task Force found that because of the large amount of work involved in preparing a systemic case for trial, plaintiffs' attorneys can improve their litigation position substantially by doing as much of this work as possible prior to filing suit and the consequent imposition of court deadlines. This can include matters such as company and industry research, identifying and contacting potential claimants, and retaining experts to assist in the evaluation of statistical and other evidence. Leading plaintiffs' attorneys explained to the Task Force that they ordinarily engage in substantial prefiling work, including the retention of experts, in order to be fully prepared to proceed expeditiously with discovery and expert work once a lawsuit is filed.
The Task Force considered the input provided regarding the Commission's systemic litigation efforts and has the following recommendations:
The Task Force believes that the Commission should staff systemic cases more like a national law firm. Specifically, we believe that the Commission should follow the lead of the private sector and routinely staff systemic suits based on the needs of the suit, independent of the office where the case was developed. Thus, in preparing to file a systemic lawsuit, the Commission should evaluate the types of expertise needed on the case and choose individual staff members to assign to the case accordingly. Therefore a particular case could have a lead counsel from one office and be staffed primarily by attorneys from other offices. (Although the Task Force recommends this needs-based approach, we anticipate that for both practical and cost reasons, some attorneys from the office that developed a systemic suit will likely have significant roles in the litigation.) This strategy will allow the litigation program to capitalize on the individual experiences and expertise of Commission attorneys; facilitate greater collaboration and communication among the legal units, as well as between OGC headquarters staff and the field; and enhance the expertise of Commission attorneys nationwide.
The Task Force recommends that the Commission eliminate the headquarters systemic litigation function. We believe that systemic litigation should be conducted solely by the legal units in the field, with support from headquarters.36
As discussed above, OGC already provides support to the field's systemic litigation program in several ways. The Task Force recommends that OGC continue to provide this support and enhance its assistance as discussed below:
OGC headquarters staff should encourage and facilitate communication among offices developing or litigating systemic cases involving related industries or jobs; similar legal, discovery, proof or procedural issues; or other matters in which offices may benefit from an exchange of information.
To help facilitate the staffing of systemic cases based on expertise, OGC headquarters staff should have primary responsibility for identifying EEOC attorneys and paralegals who have systemic or other specialized expertise. In particular, we recommend that OGC identify attorneys who have experience litigating large or systemic cases; attorneys and paralegals with experience in statistics, electronic discovery, database creation and use, and document management; and attorneys with experience in "niche" substantive areas such as ADEA benefits or BFOQ issues, ADA coverage issues, EPA proof issues, and testing. Where appropriate in a particular case, OGC also should identify attorneys or paralegals with knowledge about the relevant industry, employer or jobs. OGC then will be able to work with the field to identify particular attorneys or paralegals who can be on the litigation team for a given systemic case (including which attorney can take a lead role), as well as additional attorneys who could provide guidance on discrete legal or technical issues. Through discussions with legal unit management in the developing office and the offices where such other employees are assigned, decisions can be made on how systemic cases should be staffed.
OGC also should share information with the field on an ongoing basis regarding systemic cases in litigation. We suggest that OGC track all systemic cases from filing through resolution and provide regular (at least quarterly) written reports to all district offices and appropriate headquarters offices on the issues involved in these cases and their status, so that other employees can be aware of the pending systemic cases and contact particular offices for additional information if necessary.
As noted above, OGC already has staff available to provide substantive advice on systemic cases in litigation (or investigation) upon request from the field. OGC should continue to provide this assistance and, where appropriate, should enhance its assistance by identifying other staff members in headquarters or the field who can give additional or specialized advice.
OGC also should assist the field on matters such as identifying, selecting and working with consulting and testifying experts; coordinating with RAS staff, including assisting in obtaining litigation support services through EEOC's interagency agreement with the Department of Justice; and processing procurement requests requiring headquarters approval.
In addition, upon request, OGC headquarters staff should provide assistance and advice on discovery and trial matters involving electronic information, and the use of computers and other technology in litigation. To the extent resources allow, this headquarters assistance should include performing direct litigation support services for the field. Again, much of this assistance is already provided or available. However, the Task Force would like to see this headquarters capability enhanced and publicized to OGC field staff. OGC staff should be available to work with the field to:
The Task Force recommends that RAS be authorized to hire a labor economist or statistician and a research assistant. (We understand that RAS already is in the process of hiring an industrial psychologist with expertise to analyze employer tests; this position recently became vacant and filling this position is crucial.) As more systemic suits are filed, this unit should be given authority to fill additional positions, including labor economists and statisticians, and an individual with a strong accounting or actuarial background and expertise in business valuation.
While the Commission gathers considerable information during investigations, we believe that there are occasions when additional work can and should be done after conciliation failure and the final decision to litigate, but before suit is filed. Necessary litigation support funds should be provided as appropriate.
The Task Force believes that the Commission must encourage its employees to invest in finding, investigating, conciliating and litigating systemic cases. To that end, the Task Force recommends that the effective development and litigation of systemic cases be included as one of the expected results in the operational efficiency and effectiveness element of the Regional Attorneys' performance plans. The Commission must also encourage legal units to contribute to the agency's national program of combating systemic discrimination through partnering, mentoring and other methods.
The Task Force notes that OGC and the Commission may need to modify expectations regarding the number of suits filed each year. Given the Commission's limited resources, the establishment of an agency-wide systemic program is likely to result in an increase in the number of large lawsuits filed by the Commission and a consequent decrease in the number of lawsuits filed overall. However, we believe that shifting some resources away from individual or small class cases to larger systemic cases will allow the Commission to become more strategic and more effective at accomplishing its mission, while using its limited resources more efficiently.
Finally, the Task Force recommends that effective work on systemic cases, including effective partnering and mentoring, be recognized as part of the Commission's awards programs and any incentive pay plans.
We believe that attorney and paralegal expertise in systemic cases should be enhanced in many of the same areas that are relevant to identifying and investigating systemic discrimination, which are addressed in Section III.B.5. of this Report. The Commission should also enhance expertise in areas unique to litigation, including technology-related matters (e.g., CaseSoft software, electronic discovery, electronic trials) and complex litigation issues. As discussed in Section III.B.5., we believe that training and development opportunities should be pursued in a variety of ways, including opportunities for staff to partner with others who have more expertise, formal and informal training sessions, self-education, and partnerships with outside agencies and groups (such as the Department of Justice, the Office of the Solicitor at the Department of Labor, the National Employment Lawyers Association and the Impact Fund).
The Task Force believes that the Commission must increase the number of paralegals it employs and move toward a more efficient paralegal to attorney ratio. Therefore, we recommend hiring additional staff for paralegal positions. We also recommend that the Commission explore other options, such as intra-office details, reassignments and "hybrid" paralegal positions. In addition, the Commission should provide funds to contract for temporary paralegal (and clerical) assistance as needed.
The Task Force also recommends that the Commission create a new GS-12 systemic litigation analyst position in a number of our field legal units. We believe that these positions should be filled with individuals who, based on their demonstrated expertise and quality work on systemic cases, will perform high level litigation support work on systemic cases both within and outside of their districts. Creation of this position will allow the Commission to retain highly skilled staff in a critical role and will enhance a culture of excellence at the Commission.
EEOC should ensure that the agency's technology supports a nationwide systemic litigation practice. The Task Force believes that the Commission must invest in certain technological enhancements in support of the national law firm approach, including software and hardware that will allow attorneys in multiple offices to communicate, collaborate and share information effectively. In particular, this requires ensuring that attorneys in different offices who work together on a case have access to a common share drive. Similarly, the agency should ensure that litigation support software can be used by attorneys in multiple offices. Because the CaseSoft software that the Commission currently has cannot be used effectively across offices, we recommend that the Commission either invest in the hardware necessary to allow this functionality (i.e., Citrix servers), or purchase different, browser-based litigation support software that could serve this purpose more effectively. The Task Force recommends that in making these types of decisions, OIT consider all options and consult fully with affected staff.
EEOC should promote and expand access to the Virtual Private Network (VPN), which will further support inter-office work and allow employees to access the network from remote locations, while providing the necessary level of security.
In addition, EEOC should consider purchasing additional software for large litigation cases, such as Concordance, Summation or Ringtail, to enhance information-sharing and effectiveness.
We recommend that OGCNet be enhanced further to allow information to be stored and retrieved by topic. We also recommend that the system be enhanced to allow for emails with daily digests and indexes of new emails.
The Task Force believes that information about significant cases in litigation can help deter future discrimination and help educate employers and employees about their rights and responsibilities under the laws enforced by the Commission. Several management-side attorneys and organizations indicated that articles in trade magazines and similar media outlets are far more likely to inform and influence employers than articles in the mainstream media. Therefore, the Task Force recommends that in addition to issuing press releases to mainstream media regarding the resolution of systemic cases, as EEOC routinely does, the agency also should target the trade press where appropriate. In addition, the Task Force recommends that the Commission educate employers about systemic cases through Technical Assistance Programs throughout the country. We also recommend that the Commission conduct outreach to employees and advocacy groups and provide information about the Commission's systemic litigation cases.
Set forth below is a comprehensive list of the Systemic Task Force's recommendations that are addressed in Sections II, III and IV of this Report. This list also includes a more detailed description of the recommended technological changes. To the extent that recommendations relate to specific sections of the Report, the recommendations include a reference to the appropriate sections.
Commissioner Leslie E. Silverman would like to thank all of the members of the Systemic Task Force for their dedication, enthusiasm and hard work. The members are:
These individuals eagerly agreed to take on a challenging task, and through their extraordinary efforts, our Task Force was able to develop a comprehensive and innovative set of recommendations.
In particular, Commissioner Silverman must gratefully acknowledge Mindy Weinstein's incredible contribution and unflagging devotion to this project.
The Systemic Task Force gratefully acknowledges the input and assistance we received from many individuals, including EEOC staff; sister agencies at the federal, state and local level; and external stakeholders, including attorneys, advocacy organizations, management associations, and academics.
The Task Force sent a survey to each District Director and Regional Attorney at the Commission, soliciting their input and ideas on the Commission's systemic program. Each district submitted a response to the survey, and we are grateful to each of the District Directors, Regional Attorneys and other staff who participated in completing the survey responses.
The following current and former EEOC employees provided additional input to the Task Force (these individuals are listed according to the current name of their offices):
We also wish to acknowledge that several employees communicated with Commissioner Silverman but wanted to remain anonymous.
In addition to EEOC staff who provided input to the Task Force, we also wish to thank the numerous additional individuals who assisted the Task Force in completing its work, including Michael Dougherty, Jeanne Goldberg, Crystal Grant, Peter Gray, Robin Gregory, Colleen Hampton, Lyn McDermott, Kathleen Oram, Joyce Randle, Richard Roscio, Tom Schlageter and former EEOC interns Katherine Goodwin, Jordan Eichenberg, and Nina Paul.
Representatives of the following sister agencies provided valuable input to the Task Force:
U.S. Department of Justice -- Civil Rights Division/Employment Litigation Section
U.S. Department of Labor -- Office of the Solicitor General and Office of Federal Contract Compliance Programs
Fair Employment Practice Agencies:
The Task Force also thanks the following individuals for their valuable input:
EEOC began combating systemic discrimination as early as 1965, when the agency first opened its doors. Under Title VII of the Civil Rights Act of 1964, the Commission had authority to investigate and resolve class allegations through charges filed by members of the public or through Commissioner Charges. However, as originally enacted, Title VII did not grant the Commission the authority to file suits; rather, the Commission could only refer cases to the Department of Justice, which had authority to intervene in private suits and to file pattern or practice suits. Also, the initial standard for filing a Commissioner Charge was high: a Commissioner first had to have "reasonable cause to believe a violation of [Title VII] ha[d] occurred."38
In 1972, Congress amended Title VII and granted the Commission enhanced enforcement authority. The 1972 amendments made it easier for Commissioners to file Commissioner Charges, gave the agency litigation authority, and transferred the authority to pursue "pattern or practice" cases under Section 707 of Title VII from the Department of Justice to EEOC. In 1973, the Commission created task forces in headquarters to conduct nationwide systemic investigations of four of the country's largest employers - General Electric, General Motors, Ford and Sears.39 These task forces operated under the auspices of the National Programs Division within the Office of General Counsel.
The following year, the Commission created the first systemic program in the field when it established "707 units" in Regional Litigation Centers. These units were responsible for addressing "pattern or practice" discrimination under Section 707 of Title VII through the development of Commissioner's Charges, the expansion of individual charges to address systemic issues, the investigation of class charges, and litigation. Most of the cases involved facilities located within each Litigation Center's geographical region, but many involved regional or nationwide cases against employers that had headquarters offices within the region.
The National Programs Division and the Regional Litigation Centers were staffed by attorneys, investigators, and in some instances individuals skilled in the use of computers and statistical analysis. The Commission initiated a large number of systemic investigations under both programs, and ultimately there were not sufficient resources to handle this work. By the mid- to late-1970s, there was a backlog of Commissioner Charges and other "707" cases under investigation and many felt that the Commission should give greater consideration to the scope of these cases, the required resources, and the expected processing times.
In 1977, the Commission created a new systemic program as part of a major agency reorganization led by Chairwoman Eleanor Holmes Norton. The changes went into effect between 1977 and 1979. In the field, the Commission began by creating three "model offices," each of which included a dedicated systemic unit responsible for investigating pattern or practice charges. By 1979, the agency implemented a permanent restructuring in the field and designated twenty-two offices as district offices with investigation units, a systemic investigation unit and a legal unit. The systemic units, which typically were staffed with four to five investigators, focused on developing and investigating new Commissioner Charges within the geographic boundary of the district office. In addition to Commissioner Charges, field offices continued to conduct class investigations outside of the systemic units, through the expansion of individual charges and the investigation of class charges. The district office legal units litigated charges within their district's jurisdiction, including systemic cases, where conciliation efforts failed.
As part of the 1977 reorganization, the Commission also created a new headquarters unit focusing on systemic issues, the Office of Systemic Programs (OSP). OSP consisted of a field contact unit and three divisions -- Investigation, Litigation Enforcement, and Technical Services. The field contact unit was responsible for overseeing the work performed by the field systemic units, including: reviewing charge proposals, investigative reports, decisions and settlement agreements; providing assistance and training to the field units; and overseeing the quantity and quality of the field's systemic work and the systemic budget. OSP's Investigation division developed and investigated Commissioner Charges, focusing on large regional or national cases, and they also completed the investigation of almost all of the pending "707" charges and Commissioners Charges that had not been resolved by the Regional Litigation Centers. The Litigation division in OSP prosecuted cases developed by the Investigations unit. The Technical Services division provided analytical and technical assistance to the field and headquarters, including data analysis and assistance with identifying possible systemic discrimination.
OSP oversaw all field and headquarters Commissioner Charge systemic investigations. The Director of OSP, who gained the additional title of Associate General Counsel in 1980, reported to the Executive Director of the Commission regarding administrative management matters and to the General Counsel regarding litigation.
In 1982, the Commission abolished the Office of Systemic Programs and transferred the majority of its functions to the Office of Program Operations (OPO), which was a precursor to the current Office of Field Programs. OPO maintained Investigations and Litigation divisions and the field contact and oversight unit, which was renamed the Field Contact and Legal Standards Division (FCLSD). OSP's Technical Services division was transferred to a newly-created Office of Program Research where it was renamed the Research and Analytic Services Division.
Change came again in 1985, when the Commission shifted the Litigation Division from OPO to the Office of General Counsel and renamed the unit Systemic Litigation Services. In 1986, the Research and Analytic Services Division was transferred from the Office of Program Research to the Office of General Counsel (where it dropped the reference to "Division" and became known as Research and Analytic Services, or RAS).
The Investigations Division and the Field Contact and Legal Standards Division remained in OPO and merged with a third division there, called Special Services Staff/Program Development and Coordination Division; together, they became part of a new organization called Systemic Investigation and Individual Compliance Program (SIICP), in OPO. The SIICP staff continued to develop and investigate Commissioner Charges and review and approve field proposed Commissioner Charges, decisions, and settlements. They also reviewed and edited quarterly reports on all Commissioner Charges.
In approximately 1994, SIICP was pared down from three divisions to two divisions - Investigations and the Field Contact and Legal Standards Division (FCLSD) -and was renamed the Systemic Investigation and Review Program (SIRP). As in the past, the Investigations Division was responsible for developing and investigating Commissioner Charges, particularly cases that were regional or national in scope, and cases that were complex, novel or sensitive. FCLSD consisted of attorneys and program analysts who oversaw the systemic program in district offices; their function was to ensure consistency and high quality in the Commission's processing of systemic charges and to coordinate between the field and Commissioners with respect to Commissioner Charges.
Beginning at around the same time, some experts in RAS moved to OPO's Program Research and Surveys Division to support investigations. This portion of OPO was subsequently moved into what is now called the Office of Research, Information and Planning, and the unit was formally charged with responsibility for providing expert assistance in investigations.
Meanwhile, throughout this period, the field offices continued to maintain their own systemic investigative units, and District Directors were evaluated on their efforts at identifying and investigating Commissioner Charges.
The systemic program changed substantially again in the mid-1990s, in accordance with the recommendations of an agency task force that reviewed the Commission's charge processing procedures. In April 1995, Chairman Gilbert Casellas issued a directive that eliminated headquarters oversight of the field's systemic program. He further announced that field offices could submit requests for Commissioner Charges directly to the Commission and should investigate Commissioner Charges as they do other charges. Two months later, the Commission adopted the Priority Charge Handling Procedures (PCHP), which, among other things, codified new guidelines for initiating and processing Commissioner Charges. PCHP affirmed the principles in the April 1995 directives, clarified that field offices should determine the scope and limitations of recommended Commissioner Charges, and set forth guidelines regarding the content of Commissioner Charge proposals.
In accordance with these changes, the Commission eliminated the Field Contact and Legal Standards Division in the Office of Field Programs. In 1997, the Commission formally transferred the Investigations division to the Office of General Counsel.
Following the adoption of PCHP, headquarters stopped evaluating District Directors on the effectiveness of their district's systemic program. Over time, district offices eliminated the specialized systemic units in the field. Nonetheless, the field has continued to develop systemic cases, usually by investigating class charges or expanding individual charges to address systemic issues. However, the number of Commissioner Charges submitted by the field has declined drastically.
The Office of General Counsel continues to have a systemic unit composed of attorneys from Systemic Litigation Services (SLS), as well as a small complement of investigators from the former SIRP, paralegals and support staff. There has been virtually no hiring since the early 1990s. Beginning in approximately the late 1990s, the focus of the unit shifted from large class systemic cases to attempting to cultivate cases that could develop the law in particular areas. In 2001, the remaining systemic investigators physically moved into the Office of General Counsel and began working closely with the SLS attorneys, under the supervision of Assistant General Counsels. The unit's primary work has involved investigating charges filed by individuals or third parties, and recently, the unit intervened in a large class suit.
As demonstrated above, since EEOC first opened its doors, the agency's systemic program has taken many forms.
1 The members of the Task Force are listed on the front cover of this Report and in Appendix A. The Task Force originally also included Bobby Simpson, a trial attorney in the Louisville Area Office, who left the Commission in July 2005.
2 Pub. L. No. 88-352, § 706(a), 78 Stat. 241, 259 (1964) (current version at 42 U.S.C. § 2000e-5(b)). See also, Parliament House Motor Hotel v. EEOC, 444 F.2d 1335, 1339 (5th Cir. 1971) (allowing EEOC to focus its investigation on Respondent's entire facility, although the charge in question alleged discrimination in only one department); Georgia Power Co. v. EEOC, 412 F.2d 462, 468 (5th Cir. 1969) (allowing EEOC to obtain data regarding all persons hired in particular departments and rejecting employer's argument that EEOC should be restricted to information regarding charging party and the person selected); Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (permitting EEOC to investigate an employer's "pattern of action" to determine whether employer engaged in race discrimination, noting that "[d]iscrimination on the basis of race is by definition class discrimination").
3 Pub. L. No. 88-352, § 706(a), 78 Stat. 241, 259 (1964) (current version at 42 U.S.C. § 2000e-5(b)).
4 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103-13 (current version at 42 U.S.C. §§ 2000e et seq.).
5 As originally enacted, Title VII provided that Commissioners could file charges only when they had "reasonable cause to believe a violation of [Title VII] has occurred." Pub. L. No. 88-352, §706(a), 78 Stat. 241, 259 (1964). Under the 1972 amendments, which remain in effect today, the "reasonable cause" requirement was eliminated, and a Commissioner Charge must meet the same requirements as a charge filed by a member of the public. 42 U.S.C. § 2000e-5(b).
6 42 U.S.C. § 2000e-5.
7 42 U.S.C. § 2000e-6.
8 29 U.S.C. § 621 et seq. (1967).
9 29 U.S.C. § 206(d) (1963).
10 42 U.S.C. § 12101 et seq. (1990).
11 See, e.g., H.R. Rep. No. 92-238 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2149-50 ("Unrelenting broad-scale action against patterns or practices of discrimination is . . . critical in combating employment discrimination. The Committee believes these powers should be exercised by the Commission as an integral and coordinated part of the overall enforcement effort.").
12 As discussed above, Commissioners have the authority to issue a Commissioner's Charge under Title VII. 42 U.S.C. § 2000e-5(b). The Commission has the same authority to pursue systemic discrimination under the ADA as it does under Title VII, because the ADA incorporates the powers, remedies and procedures set forth in Title VII. 42 U.S.C. § 12117(a). The Commission also has authority to pursue class cases under the ADEA and the EPA. Under these statutes, the Commission has authority to investigate charges filed by members of the public, initiate investigations into possible unlawful employment practices ("Directed Investigations") and conduct litigation. See 29 U.S.C. § 626 (ADEA); 29 U.S.C. §§ 209, 211 (Fair Labor Standards Act provisions authorizing investigations and enforcement under the Equal Pay Act). See also 29 C.F.R. §§ 1626.4, 1626.15 (ADEA regulations); 29 C.F.R. § 1620.30 (EPA regulations).
13 In Kimel v. Florida Board of Regents, 528 U.S. 52 (2000), the Supreme Court ruled that state governments have sovereign immunity under the Eleventh Amendment from private ADEA lawsuits for monetary relief. Kimel does not affect EEOC's ability to bring such lawsuits.
14 At the time of the survey, the Commission had twenty-three districts, and the survey was sent to the Directors and Regional Attorneys in each district. The Commission subsequently underwent a repositioning and as of January, 2006, there are fifteen districts.
15 Certain employers must submit EEO-1 survey data to the Commission annually. The EEO-1 forms contain information regarding the make-up of the employers' workforces by gender, race, national origin and job category. See § II.A.
16 PCHP established new charge processing procedures that were designed to reduce the mounting workload of charges and give priority to charges based upon the likelihood that discrimination occurred. PCHP positively impacted the systemic program in two major ways: it (1) eliminated headquarters oversight of the field systemic program; and (2) streamlined the process for submitting and processing Commissioner Charges. However, around the time that PCHP was adopted, OFP stopped evaluating District Directors on the effectiveness of their district's systemic program, and systemic units were phased out of district offices. Many employees believe that the removal of performance standards and specialized field units caused the drop in Commissioner Charges. Others employees, unaware that PCHP eliminated the headquarters oversight and review process, believe that the field is reluctant to bring Commissioner Charges because headquarters continues to have too much oversight. Finally, some employees believe that the field is reluctant to submit Commissioner Charges because Commissioners are unlikely to sign them and have unrealistically high expectations about the amount and type of evidence necessary to support the issuance of a Commissioner Charge.
17 The Five-Point Plan identifies five key elements for accomplishing the agency's mission: Proactive Prevention, Proficient Resolution, Promote and Expand Mediation/Alternative Dispute Resolution (ADR), Strategic Enforcement and Litigation, and EEOC as a Model Workplace. See EEOC, Strategic Plan for Fiscal Years 2004-2009, at http://www.eeoc.gov/abouteeoc/plan/strategic_plan_04to09.html.
18 A Commissioner Charge must meet the requirements of Section 706(b) of Title VII, which states that charges filed by persons claiming to be aggrieved or a Commissioner must be in writing under oath or affirmation and must meet the standards set out by the Commission. 42 U.S.C. § 2000e-5(b). See also 29 C.F.R. § 1601.12(a) (describing the requirements of a charge). In EEOC v. Shell Oil Co., 466 U.S. 54, 73 (1984), the Supreme Court stated that in a pattern or practice case, a Commissioner should, "[i]nsofar as he is able, … identify the groups of persons that he has reason to believe have been discriminated against, the categories of employment positions from which they have been excluded, the methods by which the discrimination may have been effected, and the periods of time in which he suspects the discrimination to have been practiced."
19 Although the discussion in this report focuses on linking IMS data with EEO-1 surveys, the Task Force recommends linkage on all of the EEO surveys (EEO-3, EEO-4, EEO-5 and EEO-6).
20 This may require purchasing report writing software, such as SAS-9, or providing training in BRIO, so that field personnel can use BRIO to prepare the necessary reports.
21 The Task Force is aware that some districts currently do this and believes that all districts would benefit from this practice.
22 Commissioner Charges can be generated by a Commissioner or a field office. A field office that generates a potential Commissioner Charge must send the proposal to the Office of the Executive Secretariat, where it is assigned to a Commissioner's Office on a rotating basis. The Commissioner can choose to sign the Charge as presented, work with the field office to modify the Charge, or decline to sign the Charge. If the Commissioner declines to sign the Charge, the proposal is sent to the other Commissioners' Offices in turn. Officially, Commissioners have 10 workdays (and one possible 5-day extension) to sign or decline to sign the Charge; however, if a Commissioner is working with the field office to modify the charge, that deadline is not observed. No office in headquarters, other than the Commissioner's Office to which the proposal is sent, reviews the Charge package sent from the field office. Under PCHP, once a Commissioner Charge is signed, the charge generally should be processed in the same manner as any other charge:
Field Offices should investigate Commissioner Charges in the same manner as individually filed charges, without headquarters supervision. Field offices can settle, decide and conciliate these charges in the same manner as other cases. Prior to a determination as to reasonable cause, the Commissioner who filed the charge may withdraw the charge with the consent of the Commission. Commissioners should be notified of the resolution of charges they have filed.
PCHP § III.C.4.c.
23 Of course, as in the past, there may also be instances when management in OFP or OGC believes that a particular district could benefit from headquarters assistance.
24 This would include, for example, encouraging informal dialogue with, and feedback to, the submitting field office.
25 Commissioners should be informed that at this stage they should not expect evidence sufficient for a reasonable cause finding or a litigation decision.
26 Offices should also be given credit for developing written Commissioner Charge recommendations based upon a Commissioner's suggestion.
27 In order to accurately track which offices and staff are working on cases that are investigated by more than one office, and to give appropriate "credit" for work completed, the agency should also modify the charge tracking system, IMS, to allow more than one office to be given credit for charges without counting the charge more than once.
28 Regardless of the approach, each office can obtain guidance and support from headquarters staff, including assistance with identifying potential systemic discrimination and analyzing data, as addressed elsewhere in this Report.
29 While we recommend five GS-13 positions as a starting point, we hope that the Commission will continue to review this as the systemic program grows.
30 The Task Force believes that "success" in investigating systemic cases should be measured with respect to effort, quality and results, with a focus on whether appropriate judgment was exercised. For example, in some cases, "success" may mean that an office appropriately investigated a case and obtained relief that changed employment practices and provided monetary recovery for a large class of aggrieved persons; in other cases, it may mean that an office appropriately developed a Commissioner Charge and then dismissed the case promptly after the evidence obtained during an investigation indicated that the employer had not violated the law. The Task Force is not recommending numerical goals.
31 Appreciating that not all investigations will yield findings of systemic discrimination, the quality of charges developed should be sufficient to result in a vigorous systemic litigation program, in accordance with the district's Systemic Plan.
32 In recommending the elimination of this headquarters function, the Task Force is in no way recommending that the employees who perform these functions be subjected to a Reduction in Force or otherwise terminated from the Commission. We believe that as appropriate, the Commission should attempt to capture the expertise of the people affected by these changes.
33 To the extent that resources are available, RAS also occasionally performs work on investigations; however, due to resource limitations, RAS experts spend the great majority of their time on litigation.
34 To the extent that bargaining unit employees participate on CASE, the Commission should, where appropriate, give the employees recognition or credit for their work on CASE.
35 At the time the Task Force began its work, SLS consisted of an Associate General Counsel, an Assistant General Counsel, five staff attorneys (one of whom is a local union president who devotes the majority of his time to those activities), three investigators, three paralegals and clerical support staff. The management staff has remained the same; however, as of the time of this Report, there are only four staff attorneys (including the union president), two investigators and two paralegals in SLS.
36 In recommending the elimination of the headquarters systemic litigation function, the Task Force is in no way recommending that the employees who perform these functions be subjected to a Reduction in Force or otherwise terminated from the Commission. We believe that as appropriate, the Commission should attempt to capture the expertise of the people affected by these changes.
37 Specifically, the Task Force recommends that Commission link the IMS data to the data from employer surveys (the EEO-1, the EEO-3, the EEO-4 and the EEO-5 forms) to allow for the following:
Also, the Task Force suggests developing a system for capturing a respondent's name and supplying a pseudo unit and/or parent number and an industry classification. This system should be structured in a manner that allows it to be utilized to update the list of employers receiving the EEO-1.
38 Pub. L. No. 88-352, § 706(a), 78 Stat. 241, 259 (1964).
39 The task forces were modeled on a task force established in 1970, which investigated allegations of race, sex and national origin discrimination against a large employer.