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Promise Fulfilled?

The Equal Employment Opportunity Commission faces budgetary and staffing challenges, in addition to a reorganization effort aimed at thinning management layers at field offices while placing a greater emphasis on investigations, mediation, litigation, outreach and other front-line work. At age 40, is the EEOC living up to its mission?

Tuesday, May 16, 2006
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On July 2, 1965 -- one year after the passage of the Civil Rights Act of 1964 -- the Equal Employment Opportunity Commission began its work with a staff of 100 employees and a backlog of 1,000 cases.

Things haven't eased up since. While the American workplace has evolved over the past four decades, the issue of equal employment opportunity for all has grown more complex, challenging and, at times, controversial. What began as an agency that focused primarily on racial discrimination in the workplace has broadened to encompass an ever-expanding notion of diversity and a wide range of discrimination issues including age, gender, sexual orientation, religion, nation of origin and more.

Meanwhile, the EEOC is working to keep up with technological changes impacting the workplace while also stepping up efforts to be more proactive and customer-focused.

"The commission can no longer serve solely as the 'job police,' " said EEOC Chair Cari Dominguez in comments at Langston University in Langston, Okla., marking the 40th anniversary of EEOC. "Instead, we are striving to build partnerships to prevent discrimination while taking on higher impact cases that lead to significant change for a broad swath of the workforce."

Dominguez went on to say the agency is now in "the customer-service business" and "is making a fundamental shift by taking a balanced approach [to equal employment through equal efforts in] proactive prevention, outreach and education, and proficient resolution . . . ."

Yet, the agency faces budgetary and staffing challenges. In January, the EEOC launched a reorganization effort aimed at thinning management layers at field offices while placing a greater emphasis on investigations, mediation, litigation, outreach and other front-line work. It also is piloting a nationwide call center designed to reduce call backlogs and the time field workers were tied up on the phone.

The changes come when the EEOC budget faces a proposed $4.2 million cut that would reduce the number of full-time jobs by 19. Since 2001, the EEOC has lost more than 575 employees, representing about 20 percent of the 2,300-employee workforce. The reductions have some in Congress and critics arguing the agency is stretched too thin.

And, as the EEOC reaches middle age, questions remain as to whether it has fulfilled its promise -- and whether the agency currently goes about business in the most efficient and equitable ways possible.

"Many of the clients I represent believe that, in a lot of circumstances, the field is not a level playing field, but a tilted playing field," says Sheryl Willert, a lawyer who represents management with the Seattle firm of Williams, Kastner & Gibbs.

"Often, the EEOC approaches its investigation with a view that, if there is a complaint, there is, in fact, a basis for that complaint, instead of going through a legitimate investigation."

Crisis of Confidence?

Willert says the perception that EEOC investigators often give management short shrift during discrimination investigations creates a "crisis of confidence" about the agency.

Case in point -- Willert cites a recent instance in which discrimination was alleged against one of her clients. A determination of probable cause was made without anyone from management being interviewed, she says.

"There are a lot of claims that are outstanding for months," Willert says. "I think it would be helpful if there was a more rapid investigative method and a requirement that both sides of the equation are treated in identical fashion. I think, by and large, people in the agency try to do that, but it doesn't always happen."

According to EEOC senior public affairs specialist David Grinberg, the agency doesn't take sides when it comes to charges of discrimination, and tries to resolve complaints in a timely manner.

"The EEOC is a neutral fact-finder -- similar to a referee in sports; we call them as we see them,'' says Grinberg. "We provide ample opportunity to get both the employees' and the employers' viewpoints. In 60 percent of the cases, we find no reasonable cause."

So why do some businesses have the perception that the EEOC favors those leveling the charges?

"The simple fact is that employers don't like to be investigated for charges of discrimination," Grinberg says. "It takes time away from their business. That is why the EEOC is trying to be proactive and reach out to employers to increase voluntary compliance so it doesn't get to the point that charges come to the EEOC."

Grinberg stresses that the EEOC has dramatically improved efficiency and effectiveness in the last decade. For instance, in 1996, the agency faced a backlog of 111,000 cases and it took more than a year to process a private-sector charge. Today, that backlog has been reduced by 70 percent to what Grinberg characterized as a "manageable" 30,000 cases. Charges take on average 180 days to process, while those going through mediation take an average 80 days.

Meanwhile, others argue it's the workers who face obstacles, such as negative effects on work atmosphere and retaliation discrimination, when the EEOC is involved. Those filing charges of discrimination face the biggest challenges, says Myrtle Bell, an associate professor of human resource management at the University of Texas and author of Diversity in Organizations.

In Bell's view, the odds are stacked in management's favor because of the difficulty of finding solid proof of discrimination or harassment. She points to the fact that only a small fraction of the 80,000 charges filed annually end up in litigation.

"[An employee] is so unlikely to get a decision in [his or her] favor," Bell says. "Most of the cases brought to the EEOC are not deemed meritorious. Most people just go away because they don't have the data to back up their claims. Unless there's an e-mail or something [to document the offense], it is pretty hard to prove something happened."

Still, "If there were no EEOC, things would be a lot worse than they are now," says Bell. "Without [it], many issues would not have been addressed in terms of hiring practices. By the same token, there aren't enough EEOC employees to watch and control the workplace. The case has to be made that diversity is the right thing to do because there aren't enough 'police' to make them do it and not enough fear of lawsuits to make them do it."

In other words, employers must assume responsibility to make sure their workplace provides equal opportunity without discrimination, Bell says.

"That means everyone in the organization should know that without diversity, the organization will be disadvantaged in a lot of ways," Bell says. "Because the U.S. population is growing increasingly diverse, the potential employee and customer bases are also increasingly diverse. Diversity covers race, sex, age, sexual orientation, work and family issues, physical and mental disability, and religion, and if an organization is excluding people as prospective employees or treating customers unfairly, it will suffer the consequences."

Point in fact, in 2005, the EEOC received nearly 80,000 charges. It completed 7,908 cases through the voluntary National Mediation Program, with the average resolution time of 80 days. And, of course, cases ended up in litigation as well. EEOC filed 383 lawsuits in 2005, including 139 suits involving multiple aggrieved parties or victims. The agency resolved 347 lawsuits, including 33 cases involving multiple parties.

All told, the commission recovered nearly $380 million in monetary relief for charging parties through enforcement, litigation and mediation. In 2004, the commission recovered a record $420 million for discrimination victims.

Increased Complexity

No one disputes that the EEOC's mission has grown far more complex since the agency's early days. The organization now grapples with issues that wouldn't have been predicted 40 years ago. One key question, for instance, is what constitutes a job applicant. With millions of resumes sailing through cyberspace, the answer is no longer clear-cut.

In 2000, the Office of Management and Budget mandated that the EEOC consider whether its Uniform Guidelines on Employee Selection Procedures should be changed in light of increased Internet use. During the first phase of the process, EEOC met with job recruiters, software developers and proprietors of Web sites to learn the capabilities of new technologies in terms of employers reaching far more job seekers and job seekers able to contact many more employers than in the past.

The EEOC is further evaluating the differences between Internet recruiting and traditional recruiting to determine if new technology is in any way putting certain applicants or groups at a disadvantage when it comes to applying for a job. The agency is determining how companies are developing technology to meet both compliance and diversity goals. Currently, the EEOC is also looking into the policy ramifications of the technologies. Grinberg says specific proposed guidelines are expected soon.

But for all the technology and change, many of the racial discrimination cases coming before the agency are not that different from cases that spawned its creation 40 years ago.

Consider the 2005 settlement between the EEOC and Consolidated Freightways Corp., one of the largest freight transportation companies in North America. In the case, the commission alleged that 12 black dockworkers were subjected to a racially hostile work environment that included racial intimidation, assaults, threats of physical harm and the display of "hanging nooses" and racially offensive graffiti. It was alleged that Consolidated knew of the incidents, but did nothing to stop them and disciplined one of the employees who complained. The court settlement requires Consolidated to pay $2.75 million to the former employees.

"We still see egregious cases of racial discrimination," Grinberg says. "Some people say we have evolved to the point that there is racial harmony in the workplace, but we see that it is still not the case in some workplaces."

Bell, author of Diversity in Organizations, says blatant racism still occurs in the American workplace for several reasons. The most obvious? There are workers who are racist or sexist who are allowed to behave egregiously without reprimand or reproach. In other instances, says Bell, people are simply ignorant or unaware of the negative effects of their behavior.

The number of cases that the EEOC handles involving charges of racial discrimination have remained relatively stable since 1992, with those types of cases comprising 35 percent to 40 percent of the agency's total caseload in any given year.

Other types of charges -- including sex, age and national-origin discrimination -- have also remained consistent in that time period. The largest percentage gain has been seen in religious discrimination, with the number of cases doubling between 1993 and 2005.

Cases of blatant discrimination were even more common when Stephen Paskoff worked as a field investigator and then trial attorney for the EEOC in 1974. The very existence of the agency, Paskoff says, has had considerable influence on the American workplace.

"The threat of enforcement through the EEOC and private lawyers had a tremendous impact on changing the way workplaces were organized and helped eradicate some of the vestiges of discrimination," says Paskoff, founder and president of ELI (Employment Learning Innovations Inc.), an Atlanta-based firm offering fair employment training.

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Paskoff says he has seen the commission assume varying roles through the years, ranging from being a "force of massive social change to an organization more focused on individual rights and remedies." Currently, he believes that the shift is toward making a broader impact, as is evidenced by the restructuring plan that calls for more outreach, training and greater accessibility for employers and employees alike.

And he believes the EEOC has gotten much more efficient in resolving complaints through mediation and negotiation.

"Thirty years ago, the EEOC seemed to take the stance, 'We're not going to deal with you; we'll fight you every step of the way.' Now there seems to be more of a cooperative link," Paskoff says.

Turning Points, Challenges

Teresa Tracy, a lawyer who represents management for the Los Angeles firm of Baker Hostetler, also sees a more cooperative EEOC today than the agency of the past that resorted to more "in your face" tactics. In its earlier days, the agency was more confrontational and focused on enforcement through litigation, she and other agency spokespeople say. Today, the emphasis is more on prevention or settling through mediation.

The shift, she says, was first apparent after the passage of the Americans with Disabilities Act in 1990. At that point, the EEOC shifted its focus to helping employers come into compliance rather than taking a hard-line enforcement role, she says.

"In relatively short order, the EEOC got out a set of rules and regulations, and questions and answers, designed to bring employers up to speed before they had to comply with the law," Tracy says. "That helped a lot. Even if some companies did not like all the provisions of the law, they at least had a better idea of what was expected."

Another turning point came in 1991 when accusations of sexual harassment hit home during the Clarence Thomas Supreme Court confirmation hearings. Thomas was accused by Anita Hill of inappropriate sexual conduct while they were working at the EEOC.

"It showed that even the EEOC was not immune to that," Tracy says. "I think every employer, whether it is the EEOC, a big corporation or a mom-and-pop on the corner, is faced with many of the same issues. It is a problem of human interaction. Inappropriate behavior can be modified, but not completely eliminated."

Tracy anticipates new challenges down the road as an increasingly diverse workforce brings with it mounting issues around culture, language, religion and custom.

And, of course, as the massive baby boomer generation moves toward traditional retirement age -- but without the traditional views or intentions toward retirement -- a slew of age-related issues will emerge as central to EEOC's mission.

"A large number of baby boomers are planning, for whatever reason, to work well beyond traditional retirement age," Tracy says. "That is going to create a whole host of retirement issues, and friction with younger workers looking for promotion opportunities."

The EEOC, says Grinberg, is preparing for issues that will move to the forefront in coming years. For instance, it is closely monitoring if the aging baby boomer generation will have a significant impact on charge-filing numbers. The EEOC is stepping up efforts in regards to outreach, education and technical-assistance efforts to inform employers about their respective rights and responsibilities under the Age Discrimination and Employment Act.

As the EEOC grapples with those fresh challenges, the emphasis will continue to shift toward a more proactive outreach role. One of the key outreach efforts is the Youth@Work Initiative aimed at ending widespread discrimination and harassment of teens in the workplace. The program was launched after the EEOC determined that many teens were not aware of their rights on the job.

Building Bridges

In her comments marking the 40th anniversary, Dominguez spoke of increased cooperation with employers.

"The creation of our agency and passage of the Civil Rights Act 40 years ago was only a first step -- and a good one. The struggle to fully achieve its objectives continues. Supreme Court Justice Thurgood Marshall once said "the law can push open doors and tear down walls, but it cannot build bridges. That job belongs to you and me."

Yet the lingering question is if that spirit of cooperation can exist when the threat of enforcement -- and litigation -- looms when dealing with the EEOC.

From the perspective of a human resource executive, many experts say the EEOC in general shows increased willingness to work cooperatively on education, training and prevention. In 2004, the EEOC held more than 5,000 training and outreach events, involving more than 350,000 people nationwide.

Still, enforcement remains a key role. Tracy compares the EEOC to a local police department -- where officers are involved in education and outreach, but still have guns strapped on their waists.

"The bottom line is the EEOC is an arm of the federal government that is charged with enforcing laws so employers always need to be concerned when they come knocking," Tracy says. "And when you look at the statistics in terms of litigation the EEOC has been involved in, it gives any employer pause."

In Bell's view, human resource professionals should grasp the outreached hand of EEOC and work toward compliance and education.

"I think so many people in HR are afraid of the EEOC and see it as the enemy," Bell says. "The fact of the matter is they are friends to organizations that do things the way they should be done. The work they do, at some point or another, protects all of us from discrimination ... ."

While Bell remains optimistic about some of EEOC's outreach efforts, she believes there will always be a need for the commission's enforcement role. "I've been watching this long enough to know that the market is not going to resolve all these issues alone," she says. "There will always be a need for an organization such as EEOC. The reality is if they took the cops off the road, people would speed more."

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