Remarks of L. Steven Platt National Employment Lawyers Association

The U.S. Equal Employment Opportunity Commission

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Meeting of September 8, 2003, Washington D.C. on Repositioning for New Realities: Securing EEOC's Continued Effectiveness

I. Introduction⁽¹⁾

The National Employment Lawyers Association (NELA) is the only professional membership organization in the country comprised of lawyers who represent employees in labor, employment, and civil rights disputes. NELA and its 67 state and local affiliates have a membership of over 3,000 attorneys who are committed to working on behalf of those who have been victims of unlawful employment discrimination. NELA strives to protect the rights of its members' clients, and regularly supports precedent-setting litigation affecting the rights of individuals in the workplace. As a group, NELA attorneys have represented thousands of individuals seeking equal employment opportunities. NELA is one of a limited number of organizations dedicated to protecting the rights of all employees who rely on the Equal Employment Opportunity Commission and the courts for protection against illegal workplace discrimination.

The EEOC and the Commissioners should be quite familiar with us. We testified before Congress in the 1990s on several occasions to support the agency’s budget requests and to make recommendations to improve the agency’s enforcement procedures. Several members of NELA’s Executive Board, as well as our general members, were selected by the EEOC to participate in the negotiated rule making process of the Older Workers Benefit Protection Act in 1994 and 1995. In 1995, we were invited to provide recommendations to the EEOC’s Task Force On Charge Processing, headed by then Vice Chairman Paul Igasaki. NELA also worked with the Commission on drafting its 1998 guidelines on sexual harassment. Most recently, we have had ongoing discussions with the Commission on due process procedures for mandatory arbitration agreements. NELA has also been prominent at the annual ABA Labor and Employment Law Section’s “Government Liaison” meetings where the leaders of various government agencies and departments discuss employment issues. In addition, many of our members have worked closely with the General Counsel’s Office, the Office of the Chief Legal Counsel, and with EEOC field offices around the country.

NELA has always been supportive of the EEOC, and we understand the difficulties the agency faces with level budgets while the workload increases. It is our intention to provide constructive ideas and approaches to assist the agency in achieving its goal of making the “agency more customer-centered, performance-driven, and results oriented,” which it is required to do under the President’s Management Agenda.

II. The Task Faced by the EEOC: How to Carry Out the Agency’s Enforcement Obligations in an Era of Level (or Really Decreased) Funding

Discrimination persists despite the best efforts of the EEOC and other law enforcement agencies over the last 40 years. Much work remains to be done. Problems persist in all areas where the EEOC is charged with enforcement responsibility and charge filings continue to go up.

1. Women are still being treated like second class citizens

It is a sad fact of American life that today, 40 years after the passage of the Equal Pay Act in 1963, the gender gap continues. Women are still paid less than men in similar jobs and they are still not breaking the glass ceiling in many top businesses.

A recent report noted that women today are paid on average, per week, 73 cents for every dollar a male makes in the same job. That means $27 less for each $100 a man earns, leaving the woman with less to spend on housing, groceries, utilities, child care and other essential goods and services.⁽²⁾

Women doctors for example, have median earnings that are more than $500 less per week than their male counterparts. Ninety-five percent of nurses are women and yet they still earn $30 less per week than their male counterparts. Women professors have a median pay that is $170 less per week than men’s. Elementary school teachers earn $70 a week less and women food service supervisors are paid $60 a week less. Even waitresses earn less than waiters, sometimes by as much as $50 a week.

It is also well documented that women still don’t have equal job opportunities. They are not breaking the glass ceiling and they often start out lower so their peak earnings potential is lower.

Sexual harassment remains a problem. While we applaud the EEOC’s successes in the Mitsubishi case and the Dial Soap case, much remains to be done.

2. Age bias complaints are rising sharply⁽³⁾

At first blush, media reports that there are record numbers of older workers in the workplace sounds like things are getting better for older workers.⁽⁴⁾ The problem with this fact is that upon closer examination, it is clear that older workers are being forced to hold down the menial jobs at low wages.

The number of age bias complaints is rising. A recent article using EEOC statistics, noted that age discrimination complaints have jumped from 14,141 in 1999 to 19,921 in 2002, a 41% increase. During the same period, charges for all other types of discrimination rose by 2%.⁽⁵⁾

To keep their jobs and to remain competitive, many older workers find that it is necessary to cultivate a more youthful appearance. One reporter noted that the current job market is causing older workers to show up to interviews with gym bags, while others fight discrimination with a knife.⁽⁶⁾ There are reports of people going to plastic surgeons to remove the bags under their eyes, to give themselves a fuller head of hair and to erase age spots. Others are resorting to coloring their hair or going to tanning salons. These cosmetic changes once considered the exclusive province of the wealthy or the vain, are now becoming a job necessity.⁽⁷⁾

With the aging of the baby boom generation, the EEOC’s age discrimination workload is going to increase dramatically over the next 10-15 years. This is also something that the EEOC should consider when determining what to do about specific District or Area Offices. Some areas of the country like Milwaukee, are not all that diverse, but the number of age discrimination complaints being filed by senior executives and managers there has been rising sharply over the last two years.

3. Race discrimination is still rampant

As noted above, discrimination charges for all other types discrimination, continue to rise also. Despite the fact that it has now been 40 years since Dr. Martin Luther King delivered his “I have a dream” speech on the steps of the Lincoln Memorial, the dream remains largely unfulfilled.

A good case study is the state of Indiana. The state is basically rural and not very diverse. The Indianapolis Star recently reported that while African-Americans make up 8% of the state’s population, one in every four still lives in poverty, and they account for 60% of the state’s homicide victims, 40% of the prison population, and 12% of the high school dropouts.⁽⁸⁾

The national numbers are not much better. Consider the following statistics complied by The Statistical Abstract of the United States, published in 2002:

Race discrimination cases will remain an important area of responsibility for the EEOC in the coming years.

4. The number of federal complaints is rising

The number of lawsuits filed in federal court between September 2001, and September 2002, increased by 10%. Civil rights lawsuits continue to be the largest single percentage of cases filed in federal courts. They account for one out of every 11.4 civil cases and one out of every nine federal question lawsuits filed. In the last fiscal year, there were 73 EEO class actions filed in federal court, one of the most common class action type lawsuits filed in federal court.⁽¹⁰⁾

The Second, Fifth, Seventh and Eighth Circuits which represent only four of the thirteen Federal Circuit Courts of Appeal, accounted last year for more than half of the published EEO opinions of interest to employment law practitioners. These areas include the states of New York, Vermont and Connecticut (Second), Texas, Louisiana and Mississippi (Fifth), Wisconsin, Illinois and Indiana (Seventh), and Arkansas, Minnesota, Missouri, North Dakota, South Dakota and Nebraska (Eighth). The EEOC needs to be aware of which Circuits are having the greatest impact when deciding what to do about the various Field Offices. Downsizing offices in an influential and prolific Circuit could have far-ranging legal consequences.

5. What about the field offices?

Due to the responsiveness of the Commission over the past decade, the quality of the EEOC Field Offices is now better than it has been in many years. Our membership tells us that great strides have been made in the Baltimore, Houston, Los Angeles, Milwaukee, and San Francisco offices. These offices now join the group of offices that have traditionally been good and that remain good to this day such as the Chicago, Detroit, New York, Newark, Oakland, Phoenix and Washington, D.C. offices to name a few.

Obviously, not all offices operate at the same level and there have been problems with several of them, but we know that EEOC headquarters is aware of the problem offices and is working to fix them. Whatever problems our members have experienced, we do not think that an adequate case has been made for sweeping reforms to be made with the field office structure. Where there are problems, often the problems start with the senior management of those offices. This is a concern for us because the EEOC’s emphasis on outreach, while well intended and sincere, will not solve problems where the problem offices are.

While this is not the place to lobby for changes to a specific office or two, we thought it might be appropriate to illustrate as an example, the kinds of problems our membership has when they have had problems.

One of our affiliate officers is now in his fourth term as the Chair of a local Fair Employment Practices Agency (FEPA) in a state. He has headed up a plaintiff’s stakeholder group in this particular state for the last two years now. This EEOC office is located in one of the most diverse regions of the country and its charge filing load should be increasing at the dramatic rate of increase that the FEPA is experiencing, but it is not. There are reasons for this.

The District Director was supposed to start having regular stakeholder meetings with this group, but to date he has only held two meetings, the last one of which was held over a year ago.

At the last meeting held with this District Director, our members raised concerns about several issues. One issue raised was the fact that employers were only agreeing to mediation in about 39% of the cases while employees were agreeing to it at an 85% rate. The Director said he would assign a Program Analyst to review the situation but to date, they have not heard back from either the District Director or the Program Analyst.

The also told this District Director that intake personnel were increasingly becoming unwilling to accept charges drafted by attorneys. The intake personnel were telling the lawyers that they had to assess the credibility of the charging party’s witnesses before they would accept the charge and process it. The Director said that to correct the problem he would accept all attorney-drafted charges for the next 90 days. Unfortunately, that didn’t turn out to be the case.

Our people also expressed concern over the fact that charge filings had increased from fiscal year 2001, to fiscal year 2002. There were 700 more charges filed in that one-year period. They asked what was being done to eliminate the growing backlog of unresolved cases and expressed concern that investigations not be terminated just to get the inventory down. They didn’t get an answer to these questions.

The point of this example is that this is the kind of problem our people report having when they have problems with a specific field office. More often than not, it is a personnel-related problem, not a systemic one.

6. “Cause” findings are down while charge filings are up - why?

We also know from our work with various state and local FEPAs that in the last two fiscal years, the percentage of “cause” findings has gone down dramatically at the EEOC. The national percentage of cause findings back in the mid-1990s was at about 3%. Offices in different locations had different results. At one time the low was .7% in Puerto Rico, to a high of 16% in Wisconsin. The national average grew to as high as 7% by the end of the decade. Now the cause findings have gone back down again to the 3% range. Why is this? Is this a sign that the field office structure needs to be overhauled?

Probably it is the result of level funding which, in effect, has steadily decreased the EEOC’s budget while the EEOC’s workload continues to increase. We feel that when local field office staffs are pushed to get the inventory down, the easiest way to do this is to administratively close files at the end of the fiscal year by issuing “no cause” findings or no findings at all but giving the complainants right to sue letters. As we indicated in the beginning of this statement, civil rights violations persist or in some areas they are increasing. It makes no sense that charge filings are up, but cause findings are down. If the field offices are significantly downsized, we fear that the percentage of cause findings will decrease even further which could be used as an excuse to cut the EEOC’s budget in future years.

The NAPA Report’s Proposals and the Effect They May Have on the EEOC’s Ability to Adhere to its Enforcement Obligations

A Summary of NAPA’s Proposed Changes as NELA Sees Them

We appreciate the fact that we were given a copy of a letter from Philip M. Burgess, the President and Chief Executive of the National Academy of Public Administration or NAPA.⁽¹¹⁾ In his letter Mr. Burgess says that it was not the intent of the NAPA report to suggest the closing of 41 of 51 EEOC Offices but rather that the report has set forth criteria to be used in determining which offices should be closed. “The actual number that would be closed would depend on what factors are used and how they are weighted, issues that go beyond the scope of our report,” he said. On the issue of establishing a national call center, he admits that the report does recommend this step, but that the report, “makes no mention of displacing EEOC employees if a national call center is implemented. It simply says the EEOC should explore a call center solution that uses proven Federal and private sector call center strategies.”⁽¹²⁾ Nevertheless, we feel that the factors the report suggests be used might still result in the following:

• under the report’s recommendations, up to 50 field offices could have their staffs reduced by as much as 80% with some staff assigned to limited function “satellite” offices and mobile vans
• 85% of investigators and attorneys assigned to the field offices would telecommute at least two days a week and would share office space when they were at the office
• many employees would not work in any office but would perform their jobs entirely out of their homes
• a significant number of charges would be filed by e-mail or by placing a telephone call to an 800 number or national call center

Mr. Burgess’ disclaimers notwithstanding, it is not unreasonable to think that the above model will have a severe, negative impact on the law enforcement program because of the following:

• The close coordination between investigators, attorneys and supervisors will suffer since it will be difficult for staff to meet face-to-face with access to the voluminous document files investigations normally generate especially in complex cases. This will likely set in motion a vicious cycle
• Serious delays in investigations will result which will cause an increase in inventory and processing time, which will in turn cause an increase in complaints, which will cause more time being devoted to responding to the complaints which will reduce the amount of time that can be devoted to the development of significant cases
• In cities where the EEOC closes offices, a number that could be as high as 40 (and there is nothing in the NAPA report that cautions against closing that many), the level of service will decline because investigators will have to travel from offices hundreds of miles away; it is very likely that the expense and inconvenience of travel will result in fewer in-person interviews with charging parties and fewer if any on-site investigations, and this will impede the development of significant cases
• significant re-work of charges will be likely when an investigator is assigned to a charge taken by a national call center or submitted by e-mail. This will occur when investigators realize that a claim or cause of action is missing, or that an improper claim has been included, and it will take more investigator time to figure out how to prioritize these claims as A, B, or C charges. It may also diminish the opportunity for the EEOC to seek a preliminary injunction

There are also many who fear that if some of the suggestions of the NAPA Report are adopted, that the progress made over the last eight or so years could be lost. NAPA’s proposed changes to the law enforcement program need to be given thorough and deliberate consideration and all stake holders need to be consulted, not just the external stake holders. The EEOC’s staff is probably in the best position to know from experience which changes are likely to be successful and they need to be fully consulted as well.

As the immediate past President of NELA, I know from personal experience that if EEOC staff does not like, does not buy into and or does not agree with changes directed from above, no amount of prodding, cajoling and threatening with make those changes work.

2. NELA’s concerns on certain specific issues

1. Eliminating or downsizing field offices will have a detrimental effect on the National Enforcement Plan

   The NAPA Report seems to suggest that the EEOC downsize or significantly reduce staff in as many as 40 offices nation-wide, leaving 10 “lead” offices supplemented by “satellite” i.e., limited service offices and mobile units. It suggests that professional staff work from home offices or telecommute at least 40% of their time. Reducing staff levels significantly will reduce the effectiveness of the people who remain.

   Reducing the number of offices will certainly reduce the level of service provided in some cases to areas that have always traditionally been well served by the EEOC. We urge you to consider the kind of message it sends and the implications of withdrawing coverage or significantly reducing the level of coverage in areas that have always traditionally been served.

   Revising the field legal staff structure to eliminate attorneys in some of the 23 offices to create a small number of larger regional legal units could severely harm the agency’s National Enforcement Plan (NEP). One of the factors that has contributed most to the EEOC’s most dramatic successes under the Priority Charge Handling Procedures or PCHP was the decision to place trial attorneys in 26 out of 50 Commission offices that had previously been without lawyers on staff. We have seen this first hand in several Area Offices. Aggressive EEO lawyers seem to empower staff and help give focus to cases that might otherwise go unnoticed or undeveloped. We believe that attorneys must remain in all offices, but we recognize that it may not be possible to have a full complement of attorneys in all 23 District Offices.

   It is worth considering whether it would make sense to move legal personnel around so that instead of serving in a regional legal center, they spend part of their time in a District Office and part of their time in an Area Office. Also, if a particular attorney shows ability in a specific substantive law area, you might consider bringing that person in from out of town to help try a specific case. You might also think about sending some of your best Regional Attorneys on temporary assignment to offices that have not done well in the past, to help bring about positive change. This would allow you to improve the functioning of your less effective offices without harming morale. Quite the contrary, you might find that this boosts morale.

   Telework or working out of home offices can adversely impact the NEP, which depends on frequent interaction between attorneys, paralegals, investigators, and supervisors, all of whom need access to voluminous paper files maintained in the office. If most of the investigators and attorneys are only in the office during half the work week, interaction will be infrequent and that will likely cause the NEP to suffer.

   We understand that the EEOC’s Regional Attorneys unanimously sent a letter to Chairwoman Dominguez indicating that they did not believe telework was appropriate for attorneys in legal units. That causes us great concern.

   The PCHP and NEP need offices where investigators and attorneys work together. If downsizing means reducing the amount of staff/attorney interactions, we believe the NEP will suffer.

2. b. Money spent on “outreach” instead of enforcement also undermines the EEOC’s mission

   Over the past few years, we have seen a steady decrease in the amount of full time employees devoted to investigations and litigation. Not only has there been a freeze on hiring for those jobs, but there has also been a decrease in the amount of time such staff has available to devote to enforcement since they are required to spend more time on outreach.

   We note with concern that in the EEOC’s fiscal year 2004 budget already sent to the Hill, that you have asked for a decrease of $8.6 million for enforcement (page 15) while at the same time you project an increase in the inventory of 10% for the next year (page 25). If this trend continues, your inventory will increase by 50% in the next four years and instead of spending money needed to respond to this increase through investigation, mediation, and enforcement, you will be spending money on “outreach.” We agree that you should focus on how the money is spent because it is unlikely that you will get any significant increases in your budget in the near future but if scare resources need to be allocated, the agency must keep in mind that it is the central authority designated by Congress to enforce the civil rights laws. That is the agency’s mission, first and foremost and that needs to be kept in mind when determining how the dollars are to be spent.

3. c. Where is the evidence that the EEOC has a financial crisis that requires radical restructuring?

   Certainly it has been true for many years that the EEOC has not been properly funded. We have seen the agency go from fiscal crisis to fiscal crisis for many years now. Obviously spending has to be controlled. However, the restructuring if there is to be restructuring has to be based on something concrete. Annual rent increases is cited as a primary basis for the need to reorganize the agency’s field offices. However, the numbers don’t appear to add up. If the decreases that are cited are accomplished by paring the rents, that won’t save a significant amount of money. Rent currently accounts for only $1.8 million (NAPA page 31), which amounts to only ½ % of the agency’s annual budget. If it is true that 85% of the agency’s budget involves personnel while 11% involves rental costs, how can anyone argue that reducing rental expense even by as much as half, would save the agency any significant money?

   The NAPA Report also cautions that closing offices could result in additional travel costs for investigators and mediators and that this could offset the savings. Also there would be additional costs if the agency relies heavily on telecommuting and working at home offices to reduce office space (e.g. computers, extra phone lines, fax/copies, cars, etc.) A budget analysis needs to be done to determine whether the downsizing would in fact, result in significant savings.

   Before taking the radical step of downsizing, consideration should be given to other means of achieving cost savings. For example, “contract” mediators should be eliminated. Reducing the amount of office space rented is a good idea as is the idea of moving to cheaper office space. However, we do not support the merging of the four pairs of EEOC offices that are within commuting distance of eachother because in almost every instance both parts of the pairs are offices that have excellent track records. This is also true for other offices that are not considered pairs per se, but that are geographically close to each other.

   For example, some offices that are close to eachother geographically are located in entirely different legal jurisdictions. The Baltimore Office is close to the Washington, D.C. Office but the Baltimore Office is in the Fourth Circuit, and the Washington, D.C. Office is in the D.C. Circuit. There is a world of difference between the U.S. Court of Appeals for the D.C. Circuit and the Fourth Circuit. The agency needs an effective and visible presence in a place like Baltimore because the courts in the Fourth Circuit need to see that there are legitimate civil rights complaints being filed in that jurisdiction.

   Milwaukee and Minneapolis is another example. The Minneapolis Area Office is in the Eighth Circuit while Milwaukee is in the Seventh Circuit. While the offices may be somewhat close geographically, does it make sense to have the Minneapolis Office answering to Milwaukee? There are different concerns in each of those two jurisdictions.

   Similarly the New York City and the Newark EEOC Offices while a mere car ride away are also in completely different jurisdictions. The New York Office is in the Second Circuit while the Newark Office is in the Third Circuit. Does it make sense to merge those two when they are in different jurisdictions, especially since both also have a long history of successes?

   We note that in the EEOC’s fiscal year 2004 budget, you have asked for an increase of $23 million or 63% for outreach (page 15). Wouldn’t that money be better spent covering some of the rent increases in areas where office rent is locked in?

   In short, we do not feel that a case has been made yet, that would justify closing any of these offices.

4. Where is the evidence that a national call center would improve the EEOC’s law enforcement program?

   A major impetus, it seems, behind the suggestion of a national call center is the frustration some members of the public have expressed with the EEOC’s phone system. Rather than diverting scare resources from the enforcement program to creating a call center, why can’t you simply hold District Directors accountable for their responsiveness to callers? Is there evidence that the EEOC would be more effective as a law enforcement agency by devoting scare resources in this way? I am attaching a recent chart from the EEOC showing the EEOC’s statistics on enforcement. It seems from these numbers that the amount of enforcement went up when staffing levels and coverage increased in the late 1990s and now it seems to be slipping back to former levels. These numbers argue against significant downsizing at the field office level.

   One of the factors that has contributed to the successes of the PCHP is the focus on sophisticated counseling during intake, and this is best done by investigators familiar with local issues. The NAPA Report at appendix D, says that “staff turnover is a major issue for all call centers, ranging from 22-25% per year.” Other estimates place the number as high as 30%. Agency personnel estimate that it takes as long as a year for people to be knowledgeable enough to do charge intake. With a 25-30% turnover ratio, a national call center would be turning over as much as 1/4 to 1/3 of its staff every year. This would endanger the rights of potential claimants and it would result in calls being forwarded to the District and Area Offices more frequently, negating savings, and efficiencies.

   The Department of Labor’s experience with call centers is that 75% ⁽¹³⁾ of all calls wind up being forwarded to the field offices anyway. If the EEOC experienced similar results, a national call center would subject potential claimants to yet another layer of bureaucracy. This would make the task of handling intake much harder because by the time the potential claimants get to the local office, assuming they are not discouraged by that time from filing charges, they are more likely to be upset or irate.

   In addition, the NAPA Report does not explain how much the call center would cost or how much it would save. A cost analysis has to be done and it should include an estimate of additional resources that would be expended to deal with upset callers routed through the center to local offices, and rework that would have to be done at the local level. This analysis should also include the additional resources that will be expended when the staff in the call center contact the investigator for detailed information about a pending charge and then relay it back to the requestor.

   Other problems are posed, potentially, if the call center function is contracted out. If it is contracted out, who will be doing the work? Who will be staffing the call center? Some businesses are already outsourcing customer service calls to call centers located in foreign jurisdictions where the people speak English. The most popular countries for this are countries that are members of the British Commonwealth such as India in Asia, and countries in the Caribbean Sea region. Aside from the message that outsourcing the calling function overseas would send, how effective could such calling centers be if it takes about a year of full time training for EEOC personnel to be able to properly do intake? What would these people be retained to do? What limits, if any, would be placed on them? What kinds of quality controls would be in place? Would the national call center be used to replace the calling function at local offices or would it be used to supplement them?

   We have a different idea. If you decide that a central calling function is a good thing, then we suggest that you not outsource it but instead that you staff it with EEOC personnel. With today’s technology, 800 numbers can be routed by computers. Suppose you set this up by linking all of the EEOC offices nationwide so that calls would go to the areas that were less busy, but in each instance, trained and experienced EEOC personnel would answer the calls. For example, if someone called the New York Office and their lines were busy, maybe the call would be routed to the Phoenix Office. Calls to Los Angeles could get routed to San Diego or Oakland. This could be staffed by using a process similar to the “officer of the day” approach now being taken in your offices across the country. Personnel would be assigned for a day or a week to do intake and they would handle all the calls routed to them, regardless of where the calls came from. That would allow you to staff the calling function while not taking too much away from these individuals’ ability to work on investigations. Maybe they would be able to do both, simultaneously if the call volume is spread out properly. We would feel a lot more comfortable with experienced EEOC personnel taking these calls than we would with you outsourcing this function.

Conclusion

In conclusion, NELA is supportive of the EEOC and wants to see the EEOC succeed in its mission as the agency most responsible for the enforcement of civil rights laws. We recognize that some change is always inevitable, but we urge the Commission to be deliberate and thorough as it explores the alternatives. Steps must be taken to insure that if the agency’s structure is changed, what results is not so disruptive and diffuse that it makes the agency ineffective. We also think that agency staff needs to be consulted on these changes in addition to the stakeholders to garner support from within. If the staff understands the changes and feels that its input has been listened to, you will create an atmosphere where there is a greater likelihood of success.

Respectfully submitted on behalf of NELA

L. Steven Platt
Immediate Past President

1 This presentation for NELA is being made by L. Steven Platt who is the Immediate Past President of NELA and the current President of NELA-Illinois. Mr. Platt served on the EEOC's negotiated rule making committee and helped draft the regulations that were eventually adopted by the EEOC under the Older Workers Benefit Protection Act. Mr. Platt is the co-author of "Age Discrimination Litigation," published by James Publishing, which is now in its third printing. He is a Fellow in the College of Labor and Employment Lawyers. Mr. Platt practices in Chicago, Illinois where he is a managing partner in the law firm of Arnold and Kadjan.

2 These statistics are from the Institute for Women's Policy Research or (IWPR) in its 2002 edition.

3 Parts of this section are taken from an article written by Paula Brantner of Workplace Fairness that first appeared on its web site on August 24, 2003.

4 See "Relaxing can wait as retirees flood job market," Ron Scherer, The Christian Science Monitor, August 21, 2003. This article reports that 21 million workers age 55 and up are now in the workforce, a record number.

5 "Age bias complaints rising sharply," Harry Wessel, The Orlando Sentinel, August 17, 2003.

6 "Older workers try to look younger in tough job market," Julie Claire Diop, Newsday, August 17, 2003.

7 Id.

8 "A nation inspired, a dream unfulfilled," Tim Evans, The Indianapolis Star, August 24, 2003.

9 "By the numbers," The News Observer, August 24, 2003, quoting The Statistical Abstract of the United States (2002).

10 Seymour and Aslin, Equal Employment Law Update, BNA (2002) Copyright the American Bar Association, 2003.

11 See letter to Chairwoman Dominguez from Burgess dated April 11, 2003.

12 Id.

13 "Comments on the National Academy of Public Administration study," Leadership Conference on Civil Rights, June 20, 2003.

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Supplement - Oral Testimony on September 8, 2003

NELA wishes to express our thanks that we have been asked to participate in this proceeding. We have been active in working with the EEOC in the past and hope to continue working with the Commission in the future. We have always been supportive of the agency and we hope that our comments are taken as a discussion among friends and not seen in as adversarial.

NELA has over 4,000 members nationally, and if you consider that the average attorney has between 20 and 30 cases in litigation at any one time (which is actually a conservative estimate), NELA lawyers account for between 80,000 and 120,000 employment law cases nationally. NELA is the only law organization that works to fulfill the needs of attorneys who primarily represent employees in matters concerning their employment. We approach the EEOC’s proposed changes from a practicing lawyers’ standpoint.

As a preliminary matter, we have a few concerns. In fiscal year 2002, the EEOC had one of its best years ever. You recovered benefits of $301 million for victims of discrimination and reduced your inventory to a 31-year low. The benefits obtained by the EEOC were the second highest in Commission history. Charge processing time continues to drop even as the number of charges being filed continues to increase. ⁽¹⁾ If it isn’t broken, why fix it?

We understand that there are scare resources, and we know that basically for the last decade the agency has received level funding which means a decrease in budget while the workload has increased. The agency in the last ten years only received one real budget increase and that was used in part to buy computers and to add e-mail capability. The agency has gone from fiscal crisis to fiscal crisis, but still, you have managed to obtain these good results, so why now? Why the need to change things?

We appreciate the fact that you have shared with us the letter from Mr. Burgess of NAPA explaining that the NAPA report’s findings have been taken out of context and we agree with that. We think that a lot of what that report has suggested are just that, suggestions and not mandates. But there is cause for concern. The fact that you are considering and proposing change at the same time things seem to be going well has caused concern to the employee advocacy community as have some of the recommendations.

Another cause for concern comes from word changes in the way the Commission is defining itself. Maybe it is just a matter of perspective, but maybe it represents a fundamental shift in direction. For example, in your FY 2004 budget, you have changed the EEOC’s “Mission Statement” from “Eradicating Employment Discrimination in the Workforce” to “promoting equality of opportunity in the workforce” and, enforcing federal civil rights laws.⁽²⁾

You have changed your “vision” to becoming “the world’s preeminent civil rights agency by serving as the standard bearer for excellence in outreach.”⁽³⁾

The Commission’s “Five Point Plan” leads off with “proactive prevention” and “enforcement” has been moved down to number three on the list. This causes concern as those of us on the employee side, see the EEOC’s primary function to be, first and foremost, the enforcement of the civil rights laws. The EEOC is the only federal agency with that exclusive responsibility.

Outreach is important, but sometimes you achieve voluntary compliance by having a presence through enforcement. When you post notices on your web site about major conciliations or settlements like the Dial Soap case, that gets peoples’ attention. Companies are more likely to be receptive to training and outreach if they know that the EEOC is out there enforcing the law. It also lends credibility to civil rights cases in general.

Without naming names, a few years ago in an area where the local EEOC office was not performing very well, an area that is extremely densely populated and very diverse, a management lawyer who I respect, who is active in the ABA and has a good reputation, got up at an ABA function and announced that there were no more civil rights problems in his area as evidenced by the fact that the EEOC was not active and was not filing any more lawsuits. He was absolutely wrong but that underscores the need for the Commission to continue to enforce the laws. Through enforcement you can obtain your goal of voluntary compliance.

Having said that, I want to compliment you and your staff about your web site. We think your web site is nothing short of fantastic. It is easy to use and is very comprehensive and you are to be commended for this. We don’t understand why the members of SHRM do not use it more. We on the plaintiff side certainly use it and I am always telling our members to go there. Everything we need is right there on the website and I remember it in its early days when all it had, essentially was a picture of the Chairman and a few other items of note. You’ve come a long way on that score.

Decreasing or reorganizing the offices may hamper them in another way. In the early 1990s, the field offices were issuing “cause” findings in about 3% of all cases. The different offices varied of course, with it going from a high of 16% in Wisconsin, to a low of 0.7% in Puerto Rico. I told that to Ida Castro, and Chairwoman Castro said, “Oh, is it that high?” Of course she was joking.

But with hard work, this cause finding average went up nationally from 3% to a national average of 7% by the end of the decade. It has now slipped again down to about 3%. That is probably happening because of a lack of staffing and resources but that is what we are concerned about. If you reorganize offices, you may create a situation where these cause findings decrease further.

Change is hard. We know that. We do not want the Commission to think that we are resisting change just because it is change. I know how hard it is to get organizations to accept change from personal experience. If you think It is hard to get the EEOC staff to accept change, try getting 4,000 lawyers nation - wide to accept change.

But the point is, if change is to be done, it needs to be done thoughtfully.

Yet another cause for concern is the fact that in an era of scarce resources, you are proposing in your budget, on page 15, that the amount spent on outreach be doubled while not increasing the enforcement budget. That doesn’t make any sense. Again, certainly enforcement can be used to aid you attaining your goal of outreach as a strong presence by the EEOC will get the employers’ attention.

We would prefer that you look elsewhere to make cuts such as eliminating the contract mediation people. Your own statistics show on page 25, that your staff resolved 7,856 cases through mediation in FY 2002, and that you predict that they will resolve another 7,704 in FY 2003, with the contract mediators resolving only about 1,788 cases. Your people do a good job at mediating these disputes. You could save money by having them do more mediation, not less because the function is out sourced.

We also want to express strong concern about your closing some of the EEOC offices that may be close geographically to each other. Where both offices are working well, why destroy a good thing? In many cases, the close EEOC offices are both performing well.

In other cases, since we are coming at this from a practitioners’ perspective, offices that may be close geographically, are in entirely different federal appellate circuits, such as Baltimore being in the 4th Circuit, but D.C. being in the D.C. Circuit, or Newark being in the 3rd Circuit while the New York City office which is a short car ride away, is in the 2nd Circuit. This needs to be taken into consideration.

In short, we have enjoyed working with you in the past and look forward to working with you in the future, and we hope that you come to some conclusions here the enable you to maintain your role as the preeminent federal agency that enforces the civil rights laws.

1EEOC Fiscal Year 2004 Budget Request and GPRA Annual Performance Plan (hereafter "Budget"), p. 57; Shades of Gray, 3/04/03

2 Budget, p.3.

3 Id.

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This page was last modified on September 9, 2003.