New Professional Member Special>>> Save $15 and receive a SHRM tote bag
Many HR pros are surprised to learn that legal protection from retaliation isn’t always guaranteed for them.
Save $15 on a Professional Membership and Receive a FREE Tote Bag.
Get the HR education you need without travel expenses or time out of the office.
We don't just visit a city, we take it over. Join us in NOLA -- June 18 - 21, 2017.
How will you be treated by the EEOC? That may depend on three factors: location, location, location.
Dave Quint is a patient man. As the HR director at JRN Inc. in Columbia, Tenn.—the second-largest KFC franchisee in the country, with 152 stores and 3,500 workers—Quint believes in second and even third chances for employees. But after being barbecued by an investigator from the Equal Employment Opportunity Commission (EEOC), he’s having second thoughts.
Quint’s problems began when he fired a worker for poor performance. “We gave her a clean slate four times, moving her from one location to another,” he recalls. But when the employee failed to improve, “I told the district manager to let her go. He did, and she filed a discrimination charge.”
The EEOC investigator, who works in an office that experts say is notorious for devoting too much attention to questionable claims, sent Quint a letter listing 20 separate requests for information. “It was a total waste of time,” says Quint of the estimated 50 hours it took him to collect the documentation and prepare a response.
Quint does not object to the EEOC or its mission; in fact, he says, he’s eager to address real discrimination issues quickly. But he’s fed up with the time-draining wild goose chases he has experienced with some of the EEOC offices within his company’s 10-state territory.
While Quint is burdened by overzealous investigators in one region, in another region, plaintiffs’ attorney Kent Spriggs can’t even get in the door. “I had a client who went to the Miami office and was told he wouldn’t be able to file a charge without affidavits from five others who also said they were discriminated against based on race,” says Spriggs, of the law firm Spriggs and Davis PA in Tallahassee, Fla.
Pam Farr, former vice president of human resources at Marriott Lodging, one of the largest employers in the United States, has had a bird’s-eye view of the EEOC’s nationwide inconsistency. “Some offices tried harder than others,” says Farr. “For a company interested in resolving discrimination issues promptly and fairly, some [EEOC offices] were easier to work with.”
Jeff Norris, president of the Equal Employment Advisory Council (EEAC) in Washington, D.C., hears similar comments from employers. “We’re hearing complaints about poor training and poor controls in some regions; in other instances, employers are very happy with their treatment. The stories are inconsistent because treatment is different—region to region and investigator to investigator,” says Norris, whose organization helps employer members comply with EEO and affirmative action obligations.
As pointed as it is, such criticism still may understate the actual degree of discontent employers experience.
“Employers are afraid to say what they think,” says Quint, who holds the SPHR certification. “They’re already putting up with a lot of crap from the EEOC, and they don’t want to leave themselves open to someone who’s vindictive.”
Companies do not like to talk about their dissatisfaction with the EEOC, agrees Ann Willson, SPHR, principal at Human Resource Directions, a consulting firm in Raleigh, N.C. However, Willson provides a different reason for such reticence: “They don’t want their employees to read or hear they’re trying to tamp down on discrimination claims.”
Of course, some differences among the various EEOC offices should be expected. They serve different working populations and employers all over the country, ranging from heavy manufacturing to retail services. (See “Where EEOC Offices Are Located,” right.)
Still, there’s reason to suspect that, whether you’re a claimant or an employer, the EEOC is not as effective at preventing and resolving discrimination claims as it suggests—and that inconsistency across the regions is a major reason.
When Cari M. Dominguez took over as chair of the EEOC two years ago, the former HR executive (she previously served as a partner in the recruiting firm of Heidrick & Struggles, and as director of executive programs at BankAmerica) traveled widely, listening to comments and criticisms of the agency. It quickly became clear to her that changes were necessary if the agency was to become more efficient, cost-effective and better managed.
Dominguez asked the National Academy of Public Administration (NAPA), an independent, congressionally chartered organization, to take an in-depth look at the EEOC’s administrative structure.
After “speaking with managers, employees, employers and claimants’ advocates, it became clear to us that the lack of consistency was affecting performance,” says Myra Shiplett, staff director of the NAPA panel, who previously held numerous high-level HR positions within the federal government.
“Approaches to mediation, cooperation between investigators and lawyers, training, and staff morale all differ in the various offices,” Shiplett says. “Over time, each office has developed its own style and techniques for dealing with their bases. Most decisions are episodic. You don’t have systemic thinking and planning that you normally see in the best-managed organizations.
“Some district directors are outstanding, some average and some not very good at all,” sums up Shiplett. She estimates that between 15 percent and 25 percent of the districts are “troubled.”
None of this is news to Dominguez. Though she expresses pride at the EEOC’s many accomplishments (in recent years the agency has cut the backlog of charges by 5 percent and reduced average charge processing time by roughly 15 percent), she knows its shortcomings and does not deny that inconsistencies exist. Fixing things will take time, she says; it took the agency almost 40 years to get into this mess, and it will take her three to five years to turn it around.
“We’re aware that we have performance issues,” she says. “Little by little we’re putting new people in positions in the field. The legacy I leave will be the choices I make in leadership positions.”
The EEOC has two roughly parallel structures for handling claims: One side of the house investigates and mediates claims; the other handles litigation. This division exists in each regional office and extends up to the very top of the organization.
In the local EEOC offices, enforcement staffers—who are not usually lawyers—receive charges and investigate them to determine their validity. They also conduct mediation, conciliation and outreach.
Their counterparts on the litigation side file suits on behalf of plaintiffs and sometimes get involved in negotiating settlements.
Investigators and other enforcement personnel report to the regional director, who has overall responsibility for the performance of the regional office. Regional directors report to the agency’s five commissioners, who are appointed by the president and confirmed by the Senate.
By contrast, litigation staffers report to the regional counsel, who works with the regional director but reports directly to the EEOC’s general counsel in Washington. The general counsel—like the agency’s commissioners—is appointed by the president, although for a slightly shorter term.
HR’s main contact usually occurs with enforcement investigators—either in the conciliation or mediation process, or in responding to inquiries and requests. Until recently, the litigators worked separately, entering the picture only when Washington authorized them to launch formal legal action. Now, in most districts, those attorneys also consult with investigators and advise them on relevant legal matters as they investigate a case.
Experts agree that the best-managed offices feature cooperative relationships between investigators and lawyers. Regional directors with legal backgrounds are a plus.
“Lawyers seem to have an easier time taking direction from other lawyers,” says Cathie A. Shattuck, former vice chair of the EEOC, currently an attorney at Epstein, Becker and Green, in Washington, D.C. “It’s no accident that most of the top-performing regions are headed by directors who previously were regional attorneys.”
Investigating the Investigators
Though EEOC investigators throughout the country share similar job descriptions, investigators are not identical. In some regions, they’re known for their tenacity; in others, they’re perceived as less aggressive.
“Either we’re providing stellar statements that don’t leave any questions, or there may not be a lot of in-depth investigating going on” at one particular EEOC office, says Greg Davis, an employment attorney at Seyfarth Shaw in Chicago. “It doesn’t mean they’re rubber-stamping the employer’s position; it may mean they’re not looking into charges in as much detail as other regional offices that ask more follow-up questions.”
“I find inconsistency with respect to their requests for information,” says Steve Hymowitz, former chair of the American Bar Association’s Committee on Employee Rights and Responsibilities and an attorney with Kieswetter, Wise, Kaplan, Schwimmer & Prather in Memphis. “Some are more aggressive in their pursuit of subpoenas.”
In some regions, investigators spend time in the field checking out complaints; in others, they’re glued to their desks. When Davis polled his Seyfarth Shaw colleagues across the country, some reported regions where on-site reviews are rare. In others, they say investigators are frequently in the field.
“I’ve had good [investigators] and bad ones,” Davis says. “A bumbling investigator can mean that we’re mired down in irrelevant document requests and procedures, whereas someone who knows more may dismiss an unmeritorious case quickly.”
Davis says one Detroit law firm has had such negative experience that it won’t cooperate with investigators until EEOC attorneys enter the case.
“If I have an inexperienced investigator, I like to get legal involved as early as possible,” says Hymowitz. “It eliminates dealing with irrelevant issues. Investigators have improved over the years, but asking lay investigators to determine complex legal issues is a stretch. A lay investigator is working from a procedures manual and has little discretion in departing from the manual. Lawyers understand litigation risks and have more discretion in resolving the issues.”
Some say the skill, quality and attitudes of the EEOC’s lawyers also vary greatly from one region to the next.
“The best lawyers are good; some are phenomenally bad. It varies from region to region,” Spriggs says. “The difference is in their aggressiveness.”
Charles Mishkind, senior principal at Miller, Canfield, Paddock and Stone PLC in Ann Arbor, Mich., says the skill of the EEOC lawyers in the region influences how he reacts to a case. “I’ve had cases in some regions that I don’t take too seriously. But not, for example, in Chicago. That office is effective, brings challenging and novel cases. When you deal with them, you give it your full attention.”
Other employers’ lawyers cite both the New York and Chicago districts for their reasonableness in seeking conciliation.
Such reasonableness, however, is not universal.
Davis cites a recent Florida case (EEOC v. Asplundh Tree Expert Co, 2003) where, after a three-year investigation, the Miami district office gave the employer 16 days to accept a conciliation agreement, disregarded a request from its recently hired lawyer for an extension, then went to the press to reveal the details of the plaintiffs’ claim.
The court concluded that the EEOC acted in a “grossly arbitrary manner and engaged in unreasonable conduct in failing to fulfill its statutory requirement to conciliate the matter.”
“You’d like to think they’re impartial,” says Davis, “but they’re not.”
Money as a Measure
The EEOC gauges each region’s effectiveness in part by the amount of money its enforcement and litigation units get from employers. The agency uses this and other measurements to win support from Congress for its funding requests.
The EEOC counts any form of settlement, consent or mediation agreement that yields money for a charging party. As a result, in some but not all regions, employers report they’re “encouraged” to settle claims before the EEOC even investigates them.
How? During the intake phase, the agency categorizes all charges according to their merit. Potentially strong cases—which make up 39 percent of charges, according to the NAPA study—go into the “A” pile and are investigated aggressively. Charges that lack merit—about 2 percent of all charges—are designated with a “C” and are closed immediately
Charges that fall in the middle—“B” charges—are the most common and are earmarked for potential mediation or conciliation before they’re investigated and before any finding of discrimination has been made, according to the NAPA report.
“They don’t care about the merits; they’re looking for a cash settlement that they can add to the pot,” Quint says. “It bothers me no end when the EEOC asks me to mediate with someone who’s stolen, lied or caused us major problems.”
Janet Bashen, CEO of Bashen Consulting in Houston, an agency that handles EEO and other investigations for Fortune 1,000 companies, urges her clients to resist what she considers pressure tactics to settle. “Why would you mediate when the agency has already labeled the claim as not a good one to pursue?” she asks.
Alan Estroff, director of employment law for the Mountain States Employers Council (MSEC) in Denver, takes a different view. “For the employer it’s a business judgment—a way to spend a few thousand dollars to make something go away. It’s more cost-effective than dragging things out.”
Estroff’s logic appears to win out most of the time. In 2001, EEOC litigators won more than $50 million from employers at trial, but enforcement staffers won nearly five times that amount in pre-litigation settlements.
If employers feel pressure to settle, many attorneys believe that EEOC litigators face similar pressures. Settlements, they claim, are easier to negotiate as the fiscal year winds down and as agency attorneys weigh the advantages of adding cash settlements—even ones that are smaller than expected—to their revenue column. Meanwhile, rumors abound about monetary regional quotas that are imposed on both investigative and litigation units, say numerous sources. “It’s the measure of success, even if it’s not said aloud,” Quint says.
Rumors are part of the problem, says Dominguez. “You’ve heard that mediation is about ‘bring your checkbooks,’ but 20 percent of our mediations don’t involve the transfer of money. They deal with an apology or some other non-monetary resolution.”
Speedy Really Isn’t
Another important metric for the agency is the time that it takes to process a charge—to dismiss it or issue a finding of probable cause.
For a number of years, the EEOC has sought to reduce this processing time. Backlogs are shrinking as the agency approaches its goal of 180 days for charge resolution.
But critics say the pressure in some districts to quickly process cases encourages investigators to push paper, rather than investigate in depth. Plaintiffs’ lawyers argue that their clients’ cases aren’t getting a thorough review. Employers say haste in some districts leads to faulty findings of cause. Others report that investigators feel pressure to find discrimination and to reduce the time for processing claims.
Either way, plaintiffs’ lawyers contend that six months is far too long for a charging party to wait. “What’s speedy to the EEOC is an eternity to someone who’s out of work,” says Dick Rutherford, an employment attorney in Raleigh, N.C., who represents both workers and employers. “Even when the process produces a result for a claimant, it’s not timely.”
Seeking the Limelight
Another way the agency measures success is by counting the number of big-name class action cases it processes; those numbers vary from one region to the next.
“In some regions, investigators are content to look into individual claims,” says Hymowitz. “In others, the goal is splashy class action suits.”
From the EEOC perspective, class actions are a cost-effective method of deterrence because they help the agency spread the word about the potential public disgrace wayward employers face. But while public revelations may embarrass the few companies caught discriminating, the victories ring hollow for some claimants because they see little personal benefit.
“If the name of the game is ‘Let’s get publicity and make everyone think there’s big money to be paid,’ that’s the wrong game,” Rutherford says. “Who’s being served by the system if you’re not benefiting the average claimant? In class action cases, a large amount of money is collected and publicized with a big splash. They’re great for the lawyers, but, in the end, individuals don’t really get very much.”
For example, in October 2002, Foot Locker entered a consent decree for a group of former workers. The amount of the settlement—$3.5 million—looked sizable. But, on average, each of the 765 members of the class received only about $4,000 per person.
Meanwhile, as the EEOC extols its accomplishments, workers’ advocates aren’t happy. They argue that the agency still takes too long to investigate and resolve complaints, that it lets too many actionable cases slip through the cracks. They say that even when complainants win, they’re not adequately compensated, and that inconsistent administration of the laws by regional offices denies workers their right to equal justice wherever they may work.
Employers contend they’re being harassed by meritless complaints that eat up staff time and cost too much to defend. They say they’re doing a good job of handling discrimination problems, that they have sound policies, adequate training and good internal mechanisms for resolving disputes.
Though most employers won’t admit it publicly, having a streamlined EEOC that is more cohesive and accessible is not a priority for them. Sure, they would like to have frivolous complaints disposed of sooner and favor pilot programs that empower them to resolve more disputes in-house. But many employers say they’re wary about changing a system that, while full of hassles, regularly hands them victories.
“If you’re in Nirvana, why complain?” says plaintiffs’ lawyer Spriggs.
As a result, many attorneys and employers believe that HR will continue to face the time-consuming administrative details of responding to complaints, and collecting and preparing documentation for questionable claims.
In September, Dominguez convened an open-door powwow at EEOC headquarters so the agency’s five commissioners could hear comments and recommendations on the NAPA report. They got an earful from EEOC managers and lawyers, and from external stakeholders—including the Society for Human Resource Management.
The agency’s proposals for a national call center and online filing of complaints received mixed reviews—some employers and lawyers expressed concern about the potential cookie-cutter approach to processing claims. Other commentators thought centralizing the flow of information to the public and potential claimants might increase efficiency and uniformity.
EEOC directors and attorneys tended to resist major structural and procedural changes outlined in the 190-page NAPA report, while outside stakeholders—employer, worker and civil rights organizations—raised concerns with the current state of affairs, but counseled caution before making wholesale changes.
Now, as the talking continues in a fiscal environment where funding increases for the EEOC must take a backseat to the war on terrorism and reconstruction in Iraq and Afghanistan, it’s unlikely that Congress will heed calls for increased dollars, says Dominguez. As a result, the EEOC’s strategy likely will be to cut administrative costs and to introduce improvements gradually. One cost-cutting option outlined in the NAPA report—and under consideration by the EEOC—is to close and consolidate some offices.
Dave Quint and other frustrated employers can probably suggest which offices should be shuttered first.
Robert J. Grossman, a contributing editor of HR Magazine, is a lawyer and a professor of management studies at Marist College in Poughkeepsie, N.Y.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Your session has expired. Please log in again before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
Choose from dozens of free webcasts on the most timely HR topics.
SHRM’s HR Vendor Directory contains over 3,200 companies