The EEOC has many problems in receiving timely charges of discrimination, retaliation, or harassment, investigating the charges, conciliating the charges, and keeping the parties informed. Its procedures need a thorough re-thinking and updating. This blog entry has common-sense suggestions that will help the Commission be more efficient, and will help both charging parties and respondents.
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The EEOC has extremely important tasks in receiving charges on time, avoiding keeping potential charging parties “on hold” for month after month after month, drafting charges that capture what people are complaining about and do not inadvertently drop important claims, giving useful notice to employers, and investigating the charges. The EEOC is not performing these tasks well, in part because it insists on serving as a gatekeeper and does a poor job of it, does not have effective procedures, allows local offices to follow procedures that serve no one well, stiff-arms the charging parties and their counsel in the investigation, and causes problems for both sides in its conciliation efforts. Some common-sense changes would work far better for the Commission, the charging parties, and employers, and would redirect the Commission’s resources to more productive activities. Here are my ideas of common-sense solutions to longstanding problems.
- Make it easy for people to file timely charges of discrimination, and eliminate the present procedures that can consume months of waiting before charging parties are allowed to file charges, sometimes resulting in the loss of all their rights because the Commission fails to hurry its slow processes in order to meet the charge-filing deadlines.
- Make it easy for employers to know what the charge is about, stopping the EEOC’s practice of concealing the specifics and making charges vague and general. There are more direct remedies for retaliation and destruction of documents, and employers do need better notice of the problems involved in the charge.
- Put a fill-in form on the EEOC website, allowing people to sign and file charges electronically and immediately, and serving the charges upon employers immediately. They can always be amended later, and the amendments promptly served. This will also eliminate the claim-killing problems that arise when the EEOC staff incorrectly draft the charges, leaving out harassment claims, promotion claims, or retaliation claims. The IRS does it for taxes, and the NLRB does it for unfair labor practice charges. Here is the NLRB example; go to http://www.nlrb.gov/resources/forms for a library of on-line forms:
- The Commission can do it too, and everyone will benefit: employees can meet their deadlines with accurate charges, the EEOC can do quality control afterwards without endangering the timeliness of the charge, the EEOC can save time filling out forms and stop making mistakes when doing so, and employers can get faster notice and a better idea of what the charge is about.
- In the on-line filing system, the Commission can lead charging parties to preserve their rights by asking questions, the same way tax preparation software does, and filling out the charge based on answers. The software should insert the State and local FEPAs automatically, and allow for more than one because coverage remedies may differ from one FEPA to another. (Example: The New York State Human Rights Law provides for compensatory damages but no punitive damages, but the New York City law provides for punitive damages as well.) Insert a place where the charging party can identify counsel, and have the software ensure that counsel are always notified of events.
- In any re-writings of charges, train staff so that they stop dropping claims by mistake, neglect, and inadvertence.
- Put facts into the charges, and end the practice of replacing facts with uninformative boilerplate.
- Allow charging parties to submit changes of address and changes of counsel online.
- Do not hurt the agency’s credibility.
- Stop taking the respondent’s words as golden and burning incense in front of it. This tells employers and employees alike that the Commission does not care about the facts. Only a real, questioning, examination of facts will restore credibility.
- Train the Commission’s staff in critical thinking, give them performance standards, and eliminate those who cannot perform. Fifty years of experience has shown that sweeping performance problems under the rug does not work.
- Stop premature kick-outs of properly-filed charges shortly after they are received. Same-day kick-outs should be barred. There is no excuse for the Commission utterly failing to perform its duties. Position statements should be required for all charges alleging problems over which the Commission has jurisdiction.
- Help the EEOC do more with fewer resources. The EEOC cannot do it all, and pretending it can do so just wastes time and resources.
- Use the information available, instead of turning up the Commission’s nose at the available help. The greatest source of information with which to evaluate the position statement is the charging party and her or his counsel.
- Charging parties and their counsel need to be given copies of respondents’ position statements and all their attachments, and invited to submit responses.
- The position statements need to be served on the charging party and counsel as soon as they are received, ending the absurd practice in some offices of providing them only after the Commission receives a file-stamped copy of the court Complaint.
- The Commission should end the absurd practice in some offices of having staff members paraphrase the position statements, or re-write them. It burns up staff time and is not nearly as useful as providing the actual documents.
- Those responses should be a great help to the Commission in focusing its investigation. Its offices should be required to follow up on the responses, instead of ignoring them, accepting the employer’s word as golden, lighting incense, and bowing a ritual three times before the employer’s position statements.
- The responses should be provided to the employer for its comments. Again, the employer is in the best position to respond. If the employee’s rebuttal has something wrong, the employer is in the best position to explain where it went wrong and to provide documents showing that its view of events is the correct one.
- More than one cycle may be needed. The important point is that the Commission needs the parties to inform the Commission as to a lot of the facts, and the responses will allow a narrowing of the dispute.
- The Commission should again become a national agency, instead of the present system of 50-odd principalities making up their own standards and procedures. The Commission’s pendulum of control tends to get stuck at the extremes, and the present system of letting every office do what it wants has not worked at all well. The myth of “local conditions” cannot justify local variations in access to documents or charge processing. Many employers are covered by more than one office, and there needs to be a uniform nationwide set of standards and procedures.
- The Commission should make it easy to contact every staff member. It should have an online directory of names, titles, locations, mailing addresses, telephone numbers, and e-mail addresses. Agencies like the State Department do this as a matter of routine. I went onto www.state.gov and searched for “Telephone Directory” and this led me to the following screen shot of http://www.state.gov/documents/organization/112065.pdf:
- The Chamber of Commerce issued a report in 2014, if memory serves, on the EEOC’s conciliation efforts, and found major problems. The study is not–or is no longer–available on its web site. I know and respect the authors of the study, Randel K. “Randy” Johnson of the Chamber of Commerce and Camille Olson of Seyfarth Shaw, and believe the study is a fair description of very real problems in the EEOC’s conciliation efforts. Plaintiffs’ attorneys have also experienced major problems in the EEOC’s conciliation, stemming from failures to consider the facts showing strengths or weaknesses of the case and consequent unrealistically low or unrealistically high demands. The Commission clearly has major problems in its conciliation efforts. Those need to be tackled seriously. With the Supreme Court’s decision in Mach Mining, LLC v. EEOC, __ U.S.__, 135 S.Ct. 1645 (2015), requiring limited judicial review of conciliation efforts in cases where the employer makes an adequate showing of a problem, agency credibility is at stake. The Commission should think about creating an internal appeal procedure to the Commission whenever a respondent thinks conciliation staff have done it wrong. That will take Commission time, but provide an invaluable insight, show the Commission which offices need retraining, and will reduce the number of matters to be reviewed by the courts.
- See also my blog, “Why Does the EEOC Make Mistakes? Part 1: Keeping a Fair Perspective.”
E-mail me for an Adobe Acrobat print of this blog entry: [email protected].
Richard T. Seymour
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