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Does the EEOC Need to Re-Focus?

June 5, 2017 Legal Team

A hearing was held on May 23rd by the House Education and the Workforce Subcommittee on Workforce Protections to discuss the “need for more responsible regulatory & enforcement policies” by the EEOC (Equal Employment Opportunity Commission). The EEOC is a government agency that investigates charges of workplace discrimination and works to uphold civil rights laws. However, many are criticizing the operations of the agency for various reasons.

Subcommittee Chairman Bradley Byrne (R-AL) expressed concern at the hearing over the EEOC’s “flawed enforcement efforts under the Obama administration.” He stated, “At the end of 2016, the EEOC had more than 73,000 unresolved cases,” a statistic which he called, “unacceptable”.

Rae Vann, Vice President and General Counsel for the Equal Employment Advisory Council disagreed with the EEOC’s “self-imposed pressure to ‘fish’ for large, class-based claims”. She states their strategy is based on “the assumption that widespread workplace discrimination is present in every district and region – and at every company – across the country.” To address the problem, she believes “Rather than focusing on increasing its systematic litigation docket, the EEOC should do more on the front end to ensure that all discrimination charges it receives are properly categorized, investigated, and resolved.”

However, this does not mean that all in attendance were in agreement. Todd A. Cox, Director of Policy NAACP Legal Defense and Education Fund, Inc. disagreed with Vann’s position. He states, “Our country cannot hope to rid the workplace of employment discrimination on an individual case-by-case basis. Moreover, many of these cases would never be prosecuted by the private bar or civil rights organizations with limited resources, especially when the discrimination is occurring in underserved communities or the likelihood of obtaining significant monetary relief is minimal. An emphasis on systemic enforcement makes perfect sense strategically because it allows the EEOC to address and remedy workplace discrimination on a large scale.”

The size of cases picked up for investigation was not the only issues that attendees of the hearing took issue with. Lisa Ponder, Vice President and Global Human Resources Director for MWH Constructors questioned the accuracy of pay gap data. She raised the issue that the gap is based not on gender, but rather on years of experience. The ratio of males in the industry from the baby boomer generation greatly outweighs the number of females in that generation. Female engineers from the baby boomer generation make up roughly 5% of the industry compared to about 20% of the millennial generation. Without a proportionate number of males and females from the same generation (same years of experience) Ponder alleges that there is no way to accurately interpret whether a gender pay gap truly exists. She also expressed the concern that this leads to a “false narrative that could discourage women from pursuing a career in the science, technology, engineering, and math fields.”

Camille Olson, a labor and employment attorney who testified on behalf of the US Chamber of Commerce questioned how the new data would even be realistically utilized. “Despite the excessive burden imposed on employers, the EEOC failed to articulate a clear benefit associated with its proposed collection….In addition to the problems inherent in the data that the EEOC proposes to collect, its proposed statistical approach will also be unhelpful in identifying discrimination.” Additionally, she expressed concerns about potential privacy violations in collecting the pay data, citing that in the “hands of the wrong people”, the information from the reports could cause “significant harm to EEO-1 responders and subject employees to potential violation of their privacy”. She said the “EEOC has failed to articulate a clear benefit associated with its proposed collection” and that it would be “unhelpful in identifying discrimination”.

California’s wrongful termination laws.

In spite of the aforementioned grievances, not everything discussed at the meeting was a criticism of the agency. Cox did commend the EEOC for the great impact and effort that has been made to eliminate workplace discrimination, spotlighting the guidance on consideration of arrest and convictions in employment.

“The EEOC’s work on the guidance is not only commendable, it is also consistent with the growing national and bipartisan consensus that we need to rethink our criminal reentry systems to ensure that millions of Americans who have a criminal record, but who have paid their debt to society and are qualified for work, are not unjustly denied the opportunity to reintegrate back into society by the misuse of criminal background checks,” Cox said. “To allow the presence of an arrest or conviction record to bar an individual from meaningful employment forever, would deny to millions that most powerful and important American opportunity—a second chance.”