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Friday Essay – EEOC’s Annual Report Overstates Effectiveness

November 20, 2015

By Michael G. McClory

I often think back to a question posed early in a presentation given in the 1990s by Thomas Shanks, Ph.D., the former Executive Director of the Markkula Center for Applied Ethics at Santa Clara University.  The presentation probably focused on everyday ethics, but I do not remember now.  What I do recall is this question: What impressions would a first-time visitor to this planet form about Earth from watching local television news?  Tom Shanks suggested that the visitor probably would think that Earth has lots of fires.
 
Yesterday, the EEOC released its Fiscal Year 2015 Performance and Accountability Report.  As I read the press release, the following statement leapt off of the page: “EEOC secured more than $525 million for victims of discrimination in private, state and local government, and federal workplaces.”  Wow!  That is a huge number.
 
As I moved past the sticker shock of EEOC’s number, Tom Shanks’ answer to the question popped into my head.  What impressions would a first-time visitor to this planet form about the average workplace in the United States from reading the EEOC’s Annual Report?  The answer is that a visitor probably would think that the average workplace in the United States is a dangerous and discrimination-riddled place.
 
Of course, it is not.  Just as the Earth is not on fire, the average workplace in the United States is not rife with discrimination.  Nevertheless, the EEOC’s Annual Report certainly has the same kind of perception-warping impact that local news might have on a first time visitor to Earth.
 
With all of this as background, The Bullard Edge offers three observations.
 
First, despite its brag, the EEOC did not secure $525 million for “victims” of discrimination.  EEOC extracted a huge portion of that total ($356.6 million) “through mediation, conciliation, and settlements”.  In other words, at least two thirds of the amount represents money paid so that the parties could move forward.  There is no admission of wrongdoing.  Some claims may have had merit and others undoubtedly had none.  The bottom line is that the EEOC’s settlement record is an unreliable measure of agency effectiveness.
 
Second, while the EEOC may over-reach too frequently (see here and here, for example), it is not a frivolous actor.  The US workplace is not perfect.  There is a need for a focused EEOC to pursue its mission: “Stop and remedy unlawful employment discrimination.”  The EEOC’s budgets over the past 10 years have exceeded $3.5 billion.  The agency needs to focus its efforts on facilitating compliance and should abandon its “best funded plaintiffs law firm in history” approach.
 
Third, employers need to do their part.  Though the level of it may fall short of the impression given by EEOC’s Annual Report, there is not full compliance with all laws (whether that lack of full compliance is intentional or inadvertent).  Here are five questions for employers to ask themselves.
 
  1. How well do I know the law?  Employers need to make sure they understand the laws (labor, employment and benefits) with which they must comply.
     
  2. Am I committed to complying with the law?  Compliance can be a challenge, especially where laws increase operating costs or present efficiency roadblocks.  Despite this, employers must be committed to compliance.
     
  3. Do I have appropriate and current policies?  This is an absolute challenge for employers.  The law changes all the time; sometimes the changes are significant and other times they are not.  Employers ought to regularly review their personnel policies to make sure they are current.
     
  4. Do my practices match my policies?  Employers need to periodically perform a practice audit.  They want to make certain that their practices are in line with their policies. 
     
  5. Am I providing enough training?  Training costs time and money, but it is essential to compliance.  Supervisors and managers need to know what to do when an employee complains (e.g., about a co-worker or a working condition), when an employee asks for time off, and when an employee asks about light duty, among thousands of other questions that routinely arise.  Employers should make sure that supervisors and managers are trained to handle these situations.
 
There is no reason to believe that we will see a re-focused EEOC in FY 2016.  Looking forward, EEOC reports the following: “As our new staff completes training and becomes fully productive, they, along with anticipated new hires in fiscal year 2016, will position the agency to investigate charges more effectively and more promptly.”  In other words, employers should brace for more of the same approach and prepare accordingly.
 
Best regards,
 
The Bullard Edge 

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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