The EEOC’s Surprising New Fan – The U.S. Chamber of Commerce

After years of criticism, the U.S. Chamber of Commerce  is now applauding the EEOC for focusing on “compliance assistance” rather than enforcement and litigation.

Randel K. Johnson, a senior vice president of the Chamber, “commends” the EEOC for “identifying efforts to focus resources on compliance assistance” in a letter submitted to the EEOC in connection with a draft of the EEOC’s proposed new strategic plan for 2018-2022. The Chamber is a conservative, profit-making group that lobbies the legislature and federal courts on behalf of business interests. It consistently opposes pro-labor measures.

The EEOC  is seeking comment on a draft of its proposed strategic plan until 5 p.m .ET on January 8, 2018.  To weigh in, go here or to https://www.regulations.gov/document?D=EEOC-2017-0005-0001.

In the letter, Johnson refers to the Chamber’s 2014 report to Congress in which the Chamber criticized the EEOC for  “enforcement and litigation abuses.” The Chamber’s report came at a time when the EEOC was litigating the fewest number of cases in modern history and had completely ignored a major increase in age discrimination cases during and since the Great Recession.  In 2013, the EEOC had  filed 147 lawsuits, compared to 416 in 2005.  But the Chamber’s report was an effective public relations ploy and seems to have had a big impact on the EEOC, which reduced its litigation efforts even further.  The EEOC filed only 114 lawsuits in 2016 (of which only TWO contained age discrimination claims).

The number of lawsuits filed by the EEOC in 2016 was the lowest in recent history.

The EEOC has emphasized its free mediation services in recent years, though it has not actually increased the number of mediations it conducts. It has simply decreased its litigation efforts – the EEOC would argue that is now focuses more on systemic cases that require more resources because they involve many victims and large employers. The EEOC conducted 9476 mediations in 2016, up from a low of 7,397  in 1999.  However, the EEOC has conducted around 10,000 meditations a year for the past decade. The 2016 figure represents a slight decrease from 2015, when the EEOC conducted 10,461 mediations.

Mediation is problematic in the context of employment discrimination. Employers are almost always represented by experienced, savvy employment attorneys but litigants typically have no attorney and no real understanding of the law or the damages they are owed. Many, if not most, discrimination victims have lost their jobs due to illegal discrimination. They need the money to survive. They are predisposed to accept an unrealistic settlement and they typically receive only a nominal sum. Meanwhile, employers avoid potentially catastrophic attorney fees, court costs and damages. Mediation costs nothing and is completely confidential.  Here’s the best thing – taxpayers pick up the tab. They are charged nothing by the EEOC.

The Chamber “emphasizes compliance assistance should be a key priority of the agency moving forward,” writes Johnson.

Johnson claims systemic litigation “appears to be engaging in a witch-hunt that targets employers no matter the cost. The final Strategic Plan should make clear that systemic cases should be pursued judiciously and only when there is clear evidence of systemic bias. In the vast majority of cases, the agency should place more emphasis on cooperation and conciliation and less emphasis on the end stage of enforcement – litigation.”

Unfortunately, there appear to be  no comment from pro-labor groups on the website listing comments posted so far on the EEOC draft.

Here is the gist of my comments:

  • The EEOC has yet to conduct a significant enforcement action with respect to blatantly discriminatory employment ads and ads that use internet technology to screen out older workers. For years, the EEOC has ignored overt age discrimination in hiring in Silicon Valley, despite overwhelming research and national media coverage  documenting the problem.
  • The EEOC is not above discriminating against older workers. It upheld two rulings last year by its appeals division dismissing age discrimination complaints where federal employers based hiring decisions on subjective criteria. In one case, the hiring manager testified he completely ignored the 27 candidates’ objective qualifications and selected five candidates under the age of 40 because he felt they were the best “cultural fit.” An EEOC guidance in a case involving national origin discrimination states that  hiring for “cultural fit” is discriminatory. How can it be discriminatory for national origin but not age discrimination?  Even the business community knows that hiring for cultural fit is an invitation to bias. The EEOC ignored its own policies and settled case-law. It was only by chance these cases came to light; the EEOC may have issued similar rulings in hundreds of other age discrimination cases that are shrouded in secrecy due to EEOC confidentiality rules.

The EEOC is completely unaccountable to the public.

  • The EEOC lacks any mechanism whereby an aggrieved complainant can file a complaint about ethical lapses of the EEOC and its staff.  The so-called Administrative Judges are really just attorneys and they are not required to follow the Code of Conduct for U.S. Judges. If you complain about an ethical lapse, you get an unsigned email informing you the EEOC no longer has jurisdiction in your case. Seriously! Either they think they are perfect or they don’t care what you think. The EEOC Office of Inspector General says on its website that it handles allegations of misconduct involving the EEOC and its staff but it inexplicably refuses to intervene if the misconduct involves EEOC decision-making.
  • The EEOC and its staff treat age discrimination in a begrudging and dismissive fashion, as if we are intruding upon sacred territory. It could not be more obvious that age discrimination is the EEOC’s lowest priority, despite the fact that more than 20 percent of all complaints filed with the EEOC each year involve age discrimination. In 2016, the agency filed two lawsuits with age discrimination claims; it received more than 20,000 age discrimination complaints that year. A recent law school graduate who ranked at the bottom of this/her graduating class could do a better job.
  • Research shows that older women are the main victims of age discrimination in hiring. Women get hit with both sex discrimination and age discrimination.  That’s why women are 80 percent more likely to be poor in old age. The EEOC’s abdication of its duty to effectively implement the Age Discrimination in Employment Act  contributes to the suffering of millions of older women.

If you have a few minutes, weigh in.

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