Photo courtesy of Reuters
The quality of the Equal Employment Opportunity Commission (EEOC), the federal watchdog for workplace discrimination, has severely diminished since 2017, in virtually all facets – employment, lawsuits, leadership, success, and more. With the EEOC standing as the first line of defense for employees looking to file lawsuits on the basis of harassment and/or retaliation, the agency’s health and wellbeing is a necessity. Employees can turn to the EEOC for an incredibly wide variety of allegations – race discrimination, sex discrimination, reasonable accommodation for a disability refusal, reasonable accommodation for pregnancy refusal – amongst others. Over time, however, the reality of EEOC’s understaffed, underfunded, and unsuccessful operations have bubbled up to the surface to unveil several alarming practices. But how has it gotten to this point?
Background and History
Within years of the EEOC’s establishment it had already turned into what most called a “toothless tiger.” A first culture-shift took place in 1972, 8 years after its founding, when Congress empowered it to litigate cases. The EEOC subsequently became an effective deterrent as it held employers accountable, especially following the passing of the Americans with Disabilities Act (ADA). Although the EEOC filed hundreds of lawsuits regarding how to interpret the ADA, which effectively constructed our understanding of the law, every charge filed since has been made subject to a complicated and incredibly lengthy process.
Regardless of how the EEOC approaches the case or whether the employee even wants to sue, the process of filing a charge with the agency always begins with an inquiry and an initial interview appointment. Once these two first steps have been met, the employee can choose to file an official charge of discrimination. From that point, the process diverges: the EEOC can either deem it unlikely to result in a “cause determination” (not enough evidence of discrimination) and dismiss it, or it can take it to the next step. In the event of the former, the employee has to find another way to receive legal representation; in the event of the latter, the next step is mediation if the EEOC believes the case has merit or a request for further details from the employer if the agency desires more information before making a concrete decision. For those employees who have legal representation and do not want to wait on the EEOC, they are able to request a right to sue letter and continue on with the investigation on their own from this point.
The process is complicated to begin with, and repercussions were sure to follow shortly after the agency began litigating. Given this foundation, it was no surprise that the agency became prone to the following issues.
Worsening Case Backlog
Almost immediately after its inception, the agency was already facing a backlog issue. The agency attempted to address this by introducing a triage system in the 1990s, however staffers simply began dismissing cases immediately after the initial charge filing if they did not seem to have merit rather than requesting more information. Even now, however, investigators are still processing cases from several years prior.
Deceptive Caseload Categorization Protocol
Fast-forward to 2017, with the backlog continually worsening over the years, the EEOC issued a change in guidance that essentially pressured staffers into classifying the majority of the cases that passed to their desk as low priority and dismissing them outright. Within a year, the numbers spoke for themselves: according to the Center for Public Integrity, about 30% of the agency’s total caseload was categorized as low priority and only 13% of charges closed led to a settlement or other restitution. Subsequently, the House Appropriations Committee began calling for more oversight on the EEOC’s triage system, citing a lack of documentation of formal or informal quotas as the driving force behind this inaction.
Higher Costs for Employees
More and more caseloads began getting a notice of dismissal with a right to sue directly following intake. This meant that the employee was forced to find an attorney on their own. Financially, but also emotionally, this took a great toll on individuals who had hoped that the EEOC would be their saving grace.
Long Waiting Times for Appointments
The manner in which the EEOC set up its intake system made it so employees could file an inquiry online, but then were unable to follow up with an in-person interview – a necessary step in the process. The caveat was that, if they could not schedule an appointment within 90 days, their inquiry would automatically be closed. As such, many employees never even get the chance to move along in the process and, as a result, the EEOC now files less charges than it did 14 years ago.
One of the worst exacerbates of the situation was Janet Dhillon, who was Trump’s pick for chair and assumed the role in 2019. Amongst others, the most important repercussions coming out of her tenure was a lack of action to increase investment in hiring and a distinct reluctance to litigate – both of which were clear to the agency’s staffers from day 1.
Continuous Understaffing and Underfunding
According to last year’s numbers, the EEOC is the most understaffed it has been in decades; for reference, it only had 1,939 employees in 2020 compared to 3,390 in 1980 – a 40% decrease.
Its budget is also smaller than it was 40 years ago; and this is despite the fact that Congress approved a 15% increase in 2018 in the face of the #MeToo Movement followed by another increase last year.
Pervasive Workplace Discrimination
Perhaps most important, and outright ironic, is that the EEOC is facing multiple discrimination claims on the basis of race, disability, and sexual orientation. Staffers who spoke out, most notably in an investigation launched by USA Today earlier this year, explained that the agency practiced two, concurrent forms of discrimination: it made jobs harder for those staffers who were targets of discrimination and it influenced which cases would be prioritized for further investigation in a discriminatory manner as well.
As can be seen, the EEOC has been plagued by the majority of these problems since it was first established. The staffers know this – as senior advisor to 3 former EEOC chairs Cathy Ventrell-Monsees once said “the EEOC has always faced challenges: Not enough budget. Not enough staff. An overwhelming number of charges. The system and structures they put in place were really not meant to investigate and resolve the majority of charges, in part because of the burden of the volume of charges.” The lawyers know this – as employment lawyer Gary Phelan puts it, “if I were to describe the process from the perspective of a lawyer and the clients I represent there’s an old adage that ‘justice delayed is justice denied,’ and boy, is justice being delayed at the EEOC.” The Biden administration knows it too, especially following in the steps of the Trump administration. The Biden administration has already nixed a conciliation rule imposed during the Trump era that would have made the investigation even longer for both EEOC staffers and employees. It also replaced Dhillon with Charlotte A Burrows at the beginning of this year – who has been vocal about moving away from the process of closing cases with minor investigation. The EEOC union has also recommended that a dedicated intake unit be created in order to give investigators more time to focus on other aspects of the process. Additionally, if the EEOC hops on the remote work bandwagon, perhaps it may be able to overcome its chronic understaffing once and for all.
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