Written Testimony of Nancy Modesitt, University of Baltimore School of Law

Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan

The Equal Employment Opportunity Commission (EEOC) has struggled to be a meaningful force in eradicating employment discrimination since its inception. The primary reasons for this are structural in nature. The EEOC was designed to react to discrimination complaints by investigating and conciliating all of the thousands of complaints filed annually. The EEOC has never been able to investigate all these complaints despite using the vast majority of its resources attempting to do so. The devotion of resources to managing and investigating the huge volume of complaints prevents the EEOC from taking more effective steps to eliminate discrimination.

I recommend a reinvention of the EEOC by making significant changes to the EEOC's organization and responsibilities. I advocate five fundamental changes. First, the EEOC should no longer be required to accept and investigate all complaints of discrimination. Instead, it should only investigate and litigate significant claims of discrimination. There are two phases to this change. First, the EEOC should directly press Congress to amend the EEOC's enabling statute to eliminate the requirement that it accept all charges and issue right to sue letters. Second, in lieu of this processing function, the EEOC should identify its enforcement priorities clearly. These priorities include items such as what types of discrimination are most crucial to address in a given time frame. For instance, following the passage of a new anti-discrimination statute, the EEOC should be active in locating and either litigating or supporting cases that have potential to develop the law in a manner favorable to employees. Similarly, the EEOC should identify crucial legal issues in litigation where the EEOC's input, in the form of amicus briefs, can help direct development of the law in the direction sought by the agency.

Second, the threat of EEOC litigation must be given greater force by allowing the EEOC to collect attorneys' fees and fines from employers when it prevails in litigation. Again, this will require amendments to the current statutory system to be made by Congress.

Third, because its mediation program has been quite effective, the EEOC should partner with the federal courts to provide mediation in employment discrimination cases filed in federal court. Federal courts have seen a decrease in the number of employment discrimination cases filed. However, employment discrimination claims remain quite numerous in the federal courts, and it is quite possible that with the cessation of the EEOC's role as a charge-processing entity, the numbers will increase. Furthermore, the EEOC's mediation program has been quite effective in obtaining redress for employees, and rather than losing this along with the end of the charge-processing functions, it would be advisable to provide the opportunity to parties in federal court in employment discrimination cases.

Fourth, the EEOC should increase its information-gathering and analysis activities to better understand and combat current trends in employment discrimination. The EEOC obtains some information from large employers about their employees. The EEOC could use information obtained from employers to identify industries where certain types of discrimination appear to be occurring and target enforcement efforts in those areas.

Finally, the EEOC needs to expand its discrimination prevention programs by providing significantly more information and training to employers to assist them in complying with federal laws. This means revamping the EEOC's website to make model policies and FAQs about preventing discrimination in the workplace readily available to employers. The EEOC should also expand its training programs to include providing training at a small cost or for free to small employers. This would require Congressional assistance in the form of revisions to the statute creating the current training system.