Any lawyer who has defended an employer sued by the EEOC knows that sometimes – not always – it can be a real challenge, facing an unrelenting assault by a government agency that seems bent on destruction. Sure, you might run into a private practice plaintiff’s lawyer who is uncivil, who is unwilling to discuss reasonable settlement terms, and whose mission in life is to ratchet up attorneys’ fees and/or drive the employer into bankruptcy. That’s offensive, of course, and one can only hope that (to turn a phrase on its head) time wounds all heels. (Yes, I know there are defense lawyers who also fall into this category as well. It is equally disappointing).
But in my opinion you wouldn’t and shouldn’t expect that sort of conduct from EEOC lawyers – representatives of the federal government paid for with our tax dollars. One expects effective advocates for their position, but the reasonableness factor can occasionally get lost when an EEOC representative goes into “true believer” mode and views the employer (and the employer’s lawyer) as a part of the evil empire.
First, there is the fact that EEOC investigations can take years. Mostly, there is little activity from the agency but that is interspersed with bouts of high energy demands of “we want it NOW or we will subpoena you.” This is due in part to incredibly over worked investigators, who may have over 100 pending charges to work though at any one time. I have a lot of respect for the vast majority of EEOC investigators, and the EEOC recently has done a better job of reducing its backlog, but both the plaintiffs’ and defense bar find the time it takes to get a decision from the agency most troubling.
Second, there’s the secretive conciliation process. I have had “reasonable cause” determinations from the EEOC in which the findings bear no resemblance to the documented facts presented by the employer during the investigation. Or, a case in which the investigator repeatedly disregarded well settled legal standards that required dismissal of the charge. Then, the Commission’s demand to settle the case is $100,000 or more. All of this, of course, costs an employer money in defense costs, and the Commission is not required to explain itself or its position at any point in the process.
Now, a handful of bills introduced in Congress see to create a more transparent EEOC.
- R. 4959 addresses the issue before the Supreme Court this term in Mach Mining LLC v. EEOC, and would amend Title VII to permit court review of the EEOC’s actions to see whether the Commission engaged “good faith” pre-suit conciliation efforts with employers to settle discrimination charges. H.R. 4959 would also make the EEOC disclose on its website the details of every lawsuit it files, including how individual EEOC commissioners voted on whether to sue, and the details of all cases where a court awarded attorneys’ fees or imposed sanctions against the Commission. For example, the EEOC was severely criticized for its conduct by the Fourth Circuit in EEOC v. Propak Logistics, Inc., 746 F.3d 145 (4th Cir. 2014), with the court upholding dismissal of the case on the equitable doctrine of laches, and ordering the EEOC to pay the employer’s attorneys’ fees.
- R. 5422 would require that EEOC Commissioners approve or reject the Agency’s filing of any lawsuit involving multiple plaintiffs (systemic discrimination “pattern or practice” cases) by majority vote. The Bill would prevent the Commissioners from delegating responsibility for deciding whether to sue to the EEOC’s general counsel.
- R. 5423 would create a safe harbor for employers, insulating them from Title VII liability if they are following other federal, state or local laws that compel criminal or credit background checks. Addressing criminal background checks is a high priority for the current EEOC. A recent case from Maryland, EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013), granted summary judgment in favor an employer in such a case. The Fourth Circuit will hear oral argument on the EEOC’s appeal on October 29.
No action is expected on these Bills before Congress adjourns, and they have been criticized as Republican grandstanding before the mid-term elections. But the Bills do raise valid points, and may suggest that more concerted efforts will be made to “rein in” the EEOC in the next Congress.