By Andrew R. McIlvaine
REPRINT FROM: HUMAN RESOURCE EXECUTIVE ONLINEIs the Equal Employment Opportunity Commission's recently approved strategic plan for 2012-2016 good or bad? As with many things, it depends on whom you ask.
The plan, which maps out the EEOC's goals and strategies for the next four years, was approved by the commissioners in late February by a 4-to-1 vote.
Commissioner Constance Barker cast the sole dissenting vote, saying she was concerned the plan overemphasizes enforcement at the expense of education and outreach to prevent discrimination from occurring in the first place.
One of the agency's top priorities, as outlined in the plan, will be a focus on combating systemic discrimination, which it defines as "pattern or practice, policy or class cases in which the alleged discrimination has a broad impact on an industry, occupation, business or geographic area."
The plan also includes a number of benchmarks and performance measures designed to help the EEOC determine its success in meeting its goals. And those benchmarks -- particularly the ones having to do with systemic discrimination -- are particularly troubling, experts say.
"Systemic-litigation cases can be very high-stakes, high-profile cases that are very expensive for employers," says Christopher DeGroff, a partner at Seyfarth Shaw in Chicago and co-chair of the firm's complex discrimination litigation practice group. "I don't want to see the EEOC bringing those cases to meet some sort of internal metric."
According to the plan, the EEOC will be required to gradually increase the percentage of systemic-discrimination cases in its litigation docket beginning this year. The plan does not spell out the percentage of cases that must be based on systemic discrimination by 2016.
The agency's recent track record in litigating systemic cases is not reassuring, says Grace Speight, chair of the systemic employment litigation practice group at Morgan Lewis in Washington.
Last year, the agency was ordered to pay Cintas Corp. more than $2.6 million for legal costs and attorney fees after the company prevailed in an 11-year-old systemic-discrimination case.
In his ruling, U.S. District Judge Sean Cox accused the EEOC of pursuing a "sue first, ask questions later" strategy in which it failed to -- among other things -- properly investigate the allegations against Cintas or interview individual complainants until well after it had filed its own complaint against the company.
Earlier in the year, the EEOC was hit with a similar ruling from a federal court in Michigan that ordered it to pay $750,000 in legal costs to Peoplemark, a Kentucky-based staffing firm.
The court ruled that, in filing suit against the company, the EEOC had failed to properly investigate claims that Peoplemark's alleged policy against hiring applicants with criminal backgrounds had an adverse impact on minority applicants. It turned out that Peoplemark had no such policy and that 22 percent of the claimants with criminal backgrounds had, in fact, been hired by the company.
"The EEOC has been filing these huge, nationwide pattern-and-practice cases in which it wanted to represent a whole class of people that it hadn't really investigated, and hadn't followed all the procedures it's supposed to follow," says Speight.
The emphasis on systemic discussion will require the agency to "bring fewer individual and small-class claims of discrimination, since systemic litigation requires significantly greater resources than other types of litigation," according to the plan document.
Experts also question whether the EEOC will have sufficient resources to tackle such complex cases while, at the same time, attempting to resolve its large backlog of individual cases.
"The more effort they put into systemic cases, the less they can put into individual cases," says Leslie Silverman, a former EEOC vice chair who served as a commissioner from 2002 to 2008.
"Achieving a balance between having enough systemic cases so the EEOC is fulfilling its role and not so many that the government is prosecuting all over the place is the challenge," says Silverman, who initiated and led the EEOC's Systemic Task Force during her tenure there. She is now a partner at Proskauer's labor and employment practice in Washington.
DeGroff says he's also concerned about the agency's "Strategic Enforcement Plan" that, as outlined in the 2012-2016 document, "integrates the EEOC's investigation, conciliation and litigation responsibilities in the private and state and local government sectors."
This "integration" may undermine the impartiality of the EEOC's investigations, he says, adding that the integration is "unprecedented" in the agency's history.
"The EEOC's plan to marry the investigation stage with the litigation stage is troubling," he says. "These investigations are supposed to be impartial, but I'm concerned how impartial an investigation can be if it's being used as a launching pad for future litigation."
However, the EEOC official who oversaw the plan's development says the goal is greater efficiency and not a secret attempt to blur the lines between the agency's investigation and litigation functions or undermine outreach and education.
"If you look at the plan itself, it's clear that the EEOC desires to take an integrated, holistic approach aimed at improving the efficiency and effectiveness of our operations," says Claudia Withers, the EEOC's chief operating officer.
"While we are going to continue to use litigation authority where appropriate," she says, "we're also completely devoted to conciliation and to education and outreach to identify and prevent discrimination."
Withers also disputes DeGroff's characterization of the agency's goals for the percentage of systemic-discrimination cases in its future litigation docket as a "quota system" that may encourage the agency to file more systemic cases simply to meet those goals.
"What we are trying to do is to take a data-driven approach to enforcement," says Withers. "There is a specific performance measure in the plan that talks about fiscal year 2016 having a certain percentage of our cases be systemic-discrimination cases.
"But," she says, "there is no specific number of cases given and no suggestion that the EEOC will be looking at a specific number. If you go through the whole plan, you will see that there are a lot of baseline performance measures across the board."
The EEOC can expect to receive a lot of scrutiny as it develops those benchmarks for systemic cases, says Silverman.
"Whatever percentage they decide on, it's going to be controversial," she says.
March 21, 2012
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