Thoughts About the EEOC’s New Direction

For an employee advocate, there is something vaguely troubling about the EEOC’s 2015 performance report.

For one thing, the agency touts as an achievement that it provided 3,700 “no-cost” educational training and outreach events to business. But why are taxpayers essentially offering any free training to business?  Employers have a legal obligation to follow U.S. law. Isn’t this the cost of doing business?

As an attorney, I have to pay each year to take legal education programs so that I can keep abreast of the law and renew my law license. Can’t Walmart and Microsoft afford a few bucks to learn how to conform to the nation’s discrimination laws.

More importantly, the EEOC brags that it secured a record $356.6 million for victims of discrimination in private, state and local government, and federal workplaces through mediation, conciliation and settlements.  This amount compares to $65.3 million recovered through litigation and $105.7 million for federal employees and applicants.  It’s pretty clear where the EEOC’s focus is these days –  conciliation and mediation. It’s hard to know what the EEOC’s $356.6 million in conciliation and mediation settlements really signifies without knowing how many cases were settled, the details of the complaints and the settlements. But it’s fair to ask what is the cost of  this new focus on settlements.

A settlement can be more like a pat on the hand than a visit to the woodshed.  The worst case scenario is that employers are permitted to  partnershipworm their way out of serious discrimination liability through free EEOC-sponsored dispute resolution, by paying modest recompense to their victims and agreeing to follow the law for the life of the settlement agreement.  Best of all they can avoid paying court costs and attorney fees associated with litigation. Is this  the best way  to deter discrimination in employment?

It’s not hard to understand the EEOC’s focus on settlements, given the hostility of federal courts to discrimination claims  (and the EEOC) and the drum beat of criticism by federal legislators who are beholden to big business for campaign contributions. But is it a good thing?

The EEOC is required by law to engage in conciliation or to “permit” employers to voluntarily comply with discrimination laws before the EEOC files a lawsuit. A unanimous U.S. Supreme Court earlier this year held that federal courts may conduct a “narrow” review of whether the EEOC met its statutory obligation with respect to conciliation.  The Court in the case of Mach Mining v. EEOC overturned a ruling by the U.S. Court of Appeals for the 7th Circuit that held courts lack  the authority to second-guess the EEOC’s conciliation efforts. It would not be surprising if this ruling has emboldened employers to demand more acquiesence from the EEOC.

It’s not hard to understand why the victim would buy into a settlement. Poor and middle-class Americans cannot afford legal counsel and federal discrimination law is a hopeless morass as a result of federal court decisions. One retired federal judge says the courts have essentially “gutted” Title VII of the Civil Rights Act.  Moreover, federal courts dismiss employment discrimination cases at a far higher rate than other business cases. A discrimination victim cannot be blamed for taking a pittance rather than spending years  before hostile federal court judges, at great personal and financial expense, only to end up with the same pittance or nothing.

You might say, “Well at least the victim got something.”  But this kind of thinking makes us all complicit in our broken system of workplace justice

The EEOC states that it achieved “record success” in its conciliation of private-sector charges, with 44 percent of conciliations successfully resolved and 64 percent of systemic investigations resulting in voluntary resolutions. The agency states these “achievements” helped EEOC better manage its charge workload, leading to a 6 percent increase in charge resolutions, even as workers filed more charges of discrimination compared to fiscal year 2014.

Approximately 4,000 fewer charges filed with the EEOC in FY 2015 compared to FY 2013 (93,727 charges) and  10,000 fewer charges compared to FY 2011 (99,947 charges). The economy has certainly improved and but are workplaces becoming any fairer?   Or have Americans lost faith that our system of justice will do anything about unfairness in the workplace?

The EEOC resolved 92,641 charges and received 89,385 charges in fiscal year 2015.

In FY 2015, the agency filed only 142 merits lawsuits, which is a  slight increase from the 133 lawsuits filed in FY 2014 and FY 2012 (122 merits lawsuits) but a sharp decline compared to the number of suits filed in past years (250 or more).

Mediation involves a disinterested third-party who guides the parties to a voluntary resolution.

Epidemic of Deaths of Middle-Aged Whites Linked to Economic Insecurity

A new study showing a stunning rise in middle-aged white mortality is a terrible indictment of national economic policies that have ignored long-term unemployment of older workers, the loss of traditional pensions, and rampant age discrimination in employment.

Two Princeton economists, Angus Deaton, who recently won the Nobel Memorial Prize in Economics,and Anne Case, have published a study  in which they document a “remarkable”  increase in mortality for whites aged 45 to 54  after a long period of decline. By contrast, the authors write, the mortality rate has continued to decline for middle-aged whites in other rich countries and also for blacks and Hispanics in the United States.*

The authors estimate that a half a million deaths of middle-aged whites would have been avoided from 1999‒2013 if the mortality rate had continued to decline at its previous (1979‒1998) rate of about two percent per year. They compare this loss  to the number of lives lost in the U.S. AIDS epidemic.

Middle-aged whites are dying in a misery-fueled “epidemic of suicides and afflictions stemming from substance abuse, alcoholic liver disease and overdoses of heroin and prescription opioids.”

The authors say the reasons for the epidemic is only “partly understood” but they point to several possible factors, including  “economic insecurity” and “widening wealth inequality.”  They specifically note the U.S. has moved primarily to defined-contribution pensions, which are subject to stock market risk, while, traditional defined benefit pensions are still the norm in Europe.  A traditional pension, along with lifetime savings and Social Security, once were the cornerstone of retirement in the United States.

In my book, Betrayed: The legalization of Age Discrimination in the Workplace,” I discuss the devastating impact of the Great Recession and chronic unemployment due to age discrimination on the health and welfare of older workers.  While ignoring these problems, I note, Congress enacted policies that encouraged the adoptionof risky defined contribution pensions – also known as 401K plans – and did nothing to stop the decline of the traditional defined benefit pensions. Studies show that  half of older Americas today are economically vulnerable due to a loss of savings in the recession, their  inability to find work as a result of age discrimination, and the lack of an employer-sponsored pension.

The authors predict more problems ahead if U.S. workers “perceive stock market risk harder to manage than earnings risk, or if they have contributed inadequately to defined-contribution plans.” [Read more…]

Feds Bear Responsibility for Age Discrimination in Hiring

Note:  A major research study was released Monday finding “robust evidence of age discrimination in hirng against older women.” – Is It Harder for Older Workers to Find Jobs? New and Improved Evidence from a Field Experiment by David Neumark, Ian Burn, and Patrick Button


Age discrimination in hiring is epidemic in the United States and much of the reason for this is directly attributed to our own federal government.

It’s almost impossible for individuals to fight age discrimination in hiring because they lack access to critical information, such as the identity of the other candidates and why the successful candidates were chosen.  A highly qualified older job applicant  may suspect age discrimination but can’t prove it. The evidence is in the hands of the employer, who has no obligation to release it unless it is demanded pursuant to court-ordered discovery in a lawsuit.  A lawsuit alleging age discrimination in hiring is almost certain to be dismissed prior to discovery if it is based solely upon speculation. It’s a vicious circle –> no information, no basis for a lawsuit -> no lawsuit, no ability to obtain information.

This is why it is incumbent upon the Equal Employment Opportunity Commission  and the U.S. Department of Labor to protect workers from arbitrary discrimination in hiring. But the EEOC and DOL have virtually ignored the problem since it became an epidemic during the Great Recession of 2008.

The EEOC filed 12 lawsuits with age discrimination claims in 2014, compared to 76 lawsuits with Title VII claims  (primarily race and sex discrimination)  and 49 lawsuits with disability claims. The EEOC filed only 7 lawsuits with age claims in 2013.

Here are somes things that our government can do now to deter age discrimination in hiring:

  1. The EEOC could require employers to provide age-related data, along with data on the race and gender of their employees,  in their mandatory EEO-1 Reports, which are due at the end of this month. The EEOC could use this information to identify and prosecute corporate “bad actors” who refuse to hire older workers (i.e. Silicon Valley tech companies). If the EEOC does not accept that it has the regulatory authority to require employerss to provide age  data, it could ask Congress for the authority.
  2. The federal government could stop engaging in age discrimination in hiring. Not only does this hurt older workers but it sends a terrible message to private sector employers that age discrimination in hiring is warranted, reasonable, okay and will be tolerated.
    1. U.S. Department of Labor Secretary Thomas E. Perez could withdraw his support for the “100,000 Opportunities Initiative”  by America’s top corporations to hire workers between the ages of 16 and 24. This initiative blatantly violates the terms of the ADEA, which prohibits any consideration of age in hiring (except for a few categories of workers to which this does not apply).
    2. President Barack Obama could rescind his 2010 executive order that permits federal agencies to discriminate against job applicants on the basis of age. After all, if the feds can do it, why can’t Silicon Valley?
    3. The EEOC could acknowledge that complaints about age discrimination comprise almost a quarter of all of the complaints the EEOC receives annually but only a tiny fraction of the agency’s investigatory and prosecutorial resources are devoted to the problem. Age discrimination is no less harmful than other illegal and arbitrary discrimination so why does it get such short shrift from the EEOC?

On Monday, there were  1000+ jobs on posted by employers and employment agencies seeking to hire  “recent graduates” and 1000+ jobs  advertising for a “digital native.”  Technically, it is unlawful under the ADEA to print or publish a “notice or advertisement” indicating preferences or limitations relating to age. The overwhelming majority of recent graduates and digital natives are under the age of 40.  But no one has been held to account in recent years for this widespread practice.

A law that is not enforced is an illusion.

Proven Methods to Stop Workplace Harassment

A simple but innovative strategy has had a dramatic impact on the problem of sexual harassment and violence in the tomato growing industry.

Judge Laura Safer Espinoza, Director of the Fair Food Standards Council, told an EEOC task force this week that council  participants, including McDonalds and Walmart, pledge to only buy tomatoes from growers who implement a human rights-based code of conduct that is monitored and enforced by the Council.

“This market-driven model has – in four short years of implementation – brought an end to impunity for sexual harassment and sexual violence,” said Safer Espinoza.

The U.S. Equal Employment Opportunity Commission’s (EEOC) Select Task Force on the Study of Harassment in the Workplace met in Los Angeles  to hear recommendations from experts on ways to stop workplace-based harassment. Other recommendations include:

  • Employers should empower bystanders to be part of the solution;
  • Provide multiple access points for reporting harassment;
  • Ensure prompt investigations of harassment complaints; and
  • Take swift disciplinary action when warranted.

Melissa Emmal, Deputy Director of Abused Women’s Aid in Crisis in Anchorage, Alaska, described the success her program has hade in reducing power-based personal violence with a program of bystander training called Green-Dot., ect.  “By approaching business owners as allies and offering them simple and effective strategies to make their employees and customers safer, we have greatly deepened the bench of community members actively engaged in violence prevention,” she said.

Heidi-Jane Olguin, CEO of Progressive Management Resources, underscored factors that make training productive. She stressed the need to train all employees, not just managers, every 12-18 months; utilizing live trainers; tailoring the training to the workplace; training in multiple languages when necessary; and training employees, managers, and HR professionals separately.

Other panelists stressed the importance of leadership from the top. Patti Perez, a shareholder at the law firm Ogletree Deakins and president of Puente Consulting, said companies that are truly committed to addressing these issues implement programs, not just policies.

Sophia Cheng, an organizer at Restaurant Opportunities Center of Los Angeles, said that in restaurants, “Even when managers don’t directly harass employees, it’s a management responsibility to foster a safe work environment, including clear anti-harassment policies. Management sets the tone.”

The public is invited to send suggestions on promising practices to prevent workplace harassment  to the task force via the EEOC website.

The panel is co-chaired by EEOC Commissioners Chai R. Feldblum and Victoria A. Lipnic.