Congressional Committee Report Lashes Out at the EEOC
December 11, 2014
On November 24, 2014, Senator Lamar Alexander (R-TN) and the U.S. Senate Committee on Health, Education, Labor and Pensions (H.E.L.P.) issued a scathing report, taking the Equal Employment Opportunities Commission (EEOC) to task for a laundry list of egregious tactics. The report’s title sums it up nicely: EEOC: An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities, and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency.
The Senate H.E.L.P. Committee Report doesn’t pull any punches. Inside are key findings of questionable practices and litigation failures by the EEOC. The report criticizes the agency’s sketchy litigation tactics, its practice of filing suit without a commission vote, questionable discovery requests, the lack of cooperation with defense counsel and a failure to conciliate. It points out that the EEOC has been ordered to pay sanctions and attorney’s fees ten times since 2011, and it has been “openly chastised” by the courts. The report also slams the EEOC for a lack of transparency, citing the dearth of reports from the General Counsel’s office, the practice of introducing guidance without public comment, and failure to respond to F.O.I.A. requests.
The report includes a chart listing the ten cases where the EEOC has been ordered to pay sanctions over the past four years. The list includes the Peoplemark case, which involved disparate impact claims based on the company’s background screening policies.
To sum it up, the report asserts that the EEOC’s tactics are ineffective, burdensome, and are costing taxpayers too much money.
A few of the specific complaints contained in the executive summary of the publication are as follows:
- EEOC’s Office of General Counsel frequently initiates litigation without the benefit of a commission vote. In FY 2012, only three of 122 lawsuits filed by EEOC were brought to the commission for a vote. According to a former EEOC general counsel who served from 2003 to 2005, this represents a significant departure from the previous commission.
- EEOC’s credibility is at risk. As one commissioner described, EEOC’s “reputation and credibility has … suffered from several recent lawsuits where [EEOC was] not only sanctioned, but openly chastised by the courts.”
- A federal court reprimanded EEOC for being “negligent in its discovery obligations, dilatory in cooperating with defense counsel, and somewhat cavalier in its responsibility to the United States District Court.”
- EEOC caused a small employer to spend $100,000 attempting to comply with requests for information that, according to a federal judge, “EEOC had no authority to obtain.”
- A unanimous three judge panel of the U.S. Court of Appeals for the Tenth Circuit found “[t]he EEOC continued to litigate . . . claims after it became clear there were no grounds upon which to proceed.”
- EEOC is not consistently meeting its statutory mandate to attempt to resolve discrimination disputes out of court. One court found EEOC “blatantly contravene[d] Title VII’s emphasis on resolving disputes without resort to litigation,” and another found EEOC ignored its obligation to conciliate. EEOC’s general counsel is leading the fight to prevent court review of such efforts, and the U.S. Supreme Court is reviewing the issue this term.
- Despite Office of Management and Budget best practices found in an agency bulletin and support from a majority of commissioners, EEOC does not allow the public to review or comment upon its draft guidance, even in cases of novel, significant or controversial guidance.
Lopez and Burrows Confirmed as EEOC General Counsel and EEOC Commissioner
Meanwhile, the has Senate voted 53-43 to reappoint David Lopez as EEOC general counsel and confirmed the appointment of Charlotte Burrows as an EEOC commissioner. Lopez did not have Alexander’s vote, who issued a press release saying,
“During his time as general counsel, Mr. Lopez has been chiefly responsible for the agency’s pursuit of high-profile lawsuits that have been rebuked by the courts—and taxpayers are paying the cost of these rebukes.”
Burrows replaces Commissioner Jacqueline Berrien, and joins Jenny R. Yang, Chair, Constance S. Barker, Commissioner, Chai R. Feldblum, Commissioner, and Victoria A. Lipnic, Commissioner. She joins the Commission after serving as an Associate Deputy Attorney General at the Department of Justice, and was confirmed by a vote of 93-2 for a term expiring July 1, 2019.
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