EEOC in Transition

EEOC in Transition | Human Resource Executive Online Internal issues challenge the government's workplace civil-rights watchdog, but systemic anti-discrimination litigation forges on. The 43-year-old agency is working to become more relevant, to communicate better and to hold itself accountable.

Monday, September 1, 2008
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The Equal Employment Opportunity Commission, the federal agency charged with ensuring that the nation's employers obey civil-rights laws, is in transition mode, reorganizing itself to make greater use of its resources in its drive to eradicate workplace discrimination.

"We are finding new ways of doing the same work," says Chief Operating Officer Anthony J. (Tony) Kaminski, pointing to internal structural changes, enhanced technology and, particularly, its "one law firm" approach to prosecuting workplace-bias cases on a larger scale rather than one individual plaintiff at a time.

The 43-year-old agency, he says, is working to become more relevant in the civil-rights community, to communicate better in-house and with stakeholders, and to hold each other accountable. The bottom line is a more efficient and effective organization.

Not everyone shares Kaminski's optimism. While some observers praise the systemic-litigation initiative and the professionals who man the front lines, others claim agency morale is low, dampened by staff shortages resulting in an increased workload, a mounting backlog of cases and public criticism of agency human resource management operations. Funding is also an issue.

Some also worry about the agency's profile on Capitol Hill. In late June, the U.S. Senate finally filled a nearly two-year vacancy on the five-commissioner governing body by confirming President Bush's nomination of attorney Constance Barker. But another vacancy looms with Vice Chair Leslie Silverman's imminent departure.

That leaves two Democrats, Stuart J. Ishimaru and Christine M. Griffin, working with Republican Chairwoman Naomi C. Earp and the newly-confirmed Barker, a situation that seems to discourage far-reaching policy decisions before a new president enters the White House and puts his own stamp on the agency.

And there are tensions at the top: Shortly before Barker's confirmation, an attempt by Earp to modify the agency's 2007-2012 strategic plan was rejected by all three other commissioners.

"This was a slap in the face for the chair, to go down with a public defeat like that," says Gabrielle Martin, president of the National Council of EEOC Locals No. 216, of the American Federation of Government Employees, based in Denver.

But commission watcher, Judge Gary Gilbert, says such tensions are to be expected when an agency strives to achieve goals without having the necessary resources.

"The commission is possibly the most poorly funded federal agency there is," says Gilbert, who was chief administrative judge in the EEOC's Baltimore District Office and whose service on internal committees gives him broad insight into the organization.

"Any time you have an agency where you're trying to do the impossible -- impossible because of the lack of adequate funds -- dissention among the ranks is not unusual," Gilbert says.

"Disappointed and Frustrated"

Over the past two years, several disparate issues have combined to create edginess among staff and prompt congressional rebuke. A 2006 restructuring of regional offices upset employees and a pilot program outsourcing the agency's national call-in center, which handles thousands of discrimination inquiries every month, fueled the unrest. These actions led Sen. Barbara Mikulski, D-Md., an appropriations subcommittee chair, to declare last year that she was "disappointed and frustrated" with the agency's leadership.

"They cut the number of frontline staff who investigate claims, they privatized work that should only be done by federal employees, they reduced the number of district offices from 23 to 15, they decreased the number of attorneys and lost legal expertise, and they bureaucratically reduced staff by 575 employees since 2001 -- a 20-percent reduction," Mikulski complained.

Last December, the commission brought the call-in center back in-house, using temporary employees during a troubled three-month break-in period. The agency subsequently hired 61 permanent staffers to handle calls in 15 offices across the country.

While commission staff generally applauds the call-in center repatriation, there are complaints that, while the facility now fields up to 85,000 calls per month, there aren't enough regional office people to handle the cases.

"We are not putting resources into the people who actually do the intake interview and investigate the charges. The system gets bogged down," says the AFGE's Martin, an attorney. Her claim appears to be supported by Earp's disclosure to Congress in April that the 2007 financial-year inventory of private-sector charges rose 35 percent to 54,970. Earp said the backlog would likely rise to 67,000 cases in 2008 and to 75,000 cases in 2009.

Critical GAO Report

The agency's woes are not just on the front line. Authorities charged with auditing the commission's human capital management are not impressed.

In June, the Government Accountability Office concluded that the commission's actions to address future workforce requirements "do not fully address leading principles for effective strategic workforce planning." The EEOC's efforts to "develop, communicate and implement a strategic human capital plan are incomplete" and critical skills necessary to achieve the agency's current and future program goals "have not been assessed and current strategies to address gaps and sustain critical skills are not based on identified skill gaps," the GAO said.

The GAO report echoed criticism from the agency's own inspector general, who, in late 2007, said it was "imperative that senior-level management place greater emphasis on the human capital condition at EEOC and take steps to ensure that a vision of the agency's future workforce is in place."

These negative reports haven't helped staff morale, says Martin. "The overall mood is very low as people see another report that says the EEOC leadership is not doing what it needs to be doing," she says, noting employees still feel their work is important, "but they are unhappy about the conditions."

COO Kaminski sees employee reaction differently: "My understanding is that [workers'] biggest concern would be the under-staffing. I think they interpreted [the reports] as, 'Yes, this is another reason why we need more people . ... You hear that throughout the agency, and I don't disagree."

Kaminski rejects the HRM criticism, particularly the GAO's audit, which he says originally was directed at the regional office realignment and the call-center situation. "They switched [direction], and we were surprised by where they were heading with some of this stuff."

Kaminski says the EEOC's 15 district directors meet in person twice annually and frequently hold conference calls; regional attorneys hold a conference call at least every other week. "There is constant communication and they share what they've been doing," he says. Among the issues reviewed are recruitment, training and what competencies are required, particularly for investigators and attorneys who are the mainstay of EEOC staff.

Executives also discuss the systemic litigation plan "to have the EEOC operate as a sort of one-law-firm model instead of having 15 offices all doing their thing," Kaminski says, adding that agency-wide communication is intended "to get some synergy going, to have attorneys from different offices work together on the same case, as though we were all in the same building."

Kaminski says the GAO is wrong about best-practice sharing; EEOC offices do share information and ideas. "This has been our mantra for the last year or two -- how do we identify the best we can do and get it out to our people?"

Outside labor lawyers who deal with the commission appear to back Kaminski.

"District offices have become more consistent in their communication and more responsive," says Ira G. Rosenstein, a partner in the New York office of Orrick, Herrington & Sutcliffe. "Matters are processed more quickly and it is much less common for matters to sit in limbo for months, as was sometimes the case in the past. Service has been generally faster and investigations have proceeded at a quicker pace."

And, says Rosenstein, if there is or was any morale problem, "I did not experience any fallout from it, but it would be hard for an outsider to really perceive that."

W. Carl Jordan, a partner in the Houston office of Vinson & Elkins, says his dealings tend to be with the EEOC's regional attorney's office in Houston. Since the restructuring, there have sometimes been "strong disagreements" over litigation issues, but the EEOC senior staff generally is "professional and reasoned in their approach," he says.

General counsel Rae Vann, of the Washington-based Equal Employment Advisory Council, which represents large private-sector employers, says employers are now sometimes "frustrated with the time it takes for the process to evolve." However, she says, the commission has "a really knowledgeable group of people who are committed and who really work hard at making a difference."

Budget Issues

In its report, the GAO made passing reference to the commission's "long-term fiscal constraints," an issue Kaminski treats cautiously. "We could always use more money," he says, noting the EEOC is an executive agency that works with the Office of Management and Budget and its funding is included in the overall White House budget request.

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The commission's projected budget for fiscal year 2009 is $342 million, up by $13 million from the current year. Kaminski says Congress is aware of how much money would be required to hire additional staff and cut the case backlog in half by 2012 because "we told them what it would take." He declines to name the figure given Congress.

Gilbert is critical of current and previous commission leadership for not demanding more money.

"The best chair the commission will ever have is the chairperson who doesn't care what the president wants them to do and doesn't care what the Congress is going to do, but goes to Capitol Hill and says, 'You say you're for civil rights -- you need to show it -- you need to vote for a budget that essentially doubles" the current figure.

Lack of money permeates the agency, Gilbert says, noting it "can't do things to attract talent, and it can't do things to train and educate the talent that it has." Inadequate funding also discourages top candidates from applying to the agency.

"If you're a talented human resource person, where do you want to work?" he says. "Even if civil rights is something you're interested in, you pay a price if you go to the EEOC because there are fewer higher-graded positions."

But Kaminski disagrees, noting the top HR person is at Senior Executive Service level and is backed by four Grade-15 managers -- "and that's not bad for a small agency." Certainly, the EEOC could use more HR personnel, he says, but claims the department hired 61 people to man the repatriated call center "in record time."

Whatever the debates about HR management, internal reorganization and funding, there's general approval of the EEOC's targeted litigation program, which was launched shortly after the internal reorganization began, but is a separate and unrelated initiative.

Historically, the agency litigates 350 to 400 cases each year, most of them individual issues and many resolved before going to trial. The systemic thrust is to go after cases it defines as "pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company or geographic location."

The end result will likely be fewer cases, but greater impact.

"We are looking to get a little more bang for the buck," Kaminski says. "You want to get the best you can with those few shots you have."

Litigation takes time to be effective and for its benefits to be appreciated, he says, but by 2009, people will understand why the EEOC went this route.

"We haven't reached our peak yet," Kaminski says. "The best is yet to come."

Employment attorney Garry G. Mathiason, of San Francisco-based Littler Mendelson, says he believes the systemic initiative has made the EEOC stronger. He says he has "absolutely, unequivocally felt the impact of the move toward collective actions," noting that his firm is seeing "more activity with the EEOC now than it ever has," which he attributes to "the more aggressive stand on the part of the [agency] in vigorously enforcing the act."

According to him, employers and HR executives are responding to the systemic litigation, among other things, by developing "a stronger preventive response" with the most visible move being toward "more careful planning with regard to the hiring process -- for example, screening and diversity in staff selection -- and layoffs or reductions in force."

He says he sees employers "planning more carefully, probably to avoid any risk of litigation ... [and] having better separation plans; there might be a little bit more money put into separation/release agreements."

Increased training is another likely response, says Mathiason. There is "a huge impact on the training process and what I see as a significant trend in favor of online training in these areas," he says.

With the economy declining, he adds, employers might be expected to curtail training to save cost, which is happening in certain areas. But in the areas of harassment, discrimination and wage-and-hour issues, those more likely targeted by a systemic-bias approach, "the training actually goes in the other direction -- up."

He also praises EEOC's educational outreach programs designed to help employers stay in compliance with the law and says he finds the organization's staff to be "professional."

Gilbert is more cautious, however. "Impact litigation is a great way to do business," he says, "but you need money to successfully litigate class suits. The idea is good, but is not going far enough."

Gilbert sees a glimmer of light ahead, though, with the forthcoming presidential election. "We have two candidates who have a fairly good record for supporting civil rights," he says, "and I don't think there is an issue confronting this county that is more important right now than civil rights."

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