Washington Times: Lamar Alexander: Anti-discrimination board undermining own mission

Posted on November 24, 2014

A government commission that probes workplace discrimination is chasing shaky legal cases that result in embarrassing and costly losses, a Republican senator charged Monday in a report that says the body has underperformed of late compared to during the Bush era.

Sen. Lamar Alexander of Tennessee said the Equal Employment Opportunity Commission, formed as part of civil rights reforms in the 1960s, serves an important function but is "increasingly demonstrating poor judgment and using questionable tactics" that hurt its overall mission.

While victims are reaping more funds through settlements, the EEOC recovered $341 million through litigation during the first five years of President Obama's tenure, compared to $526 million during the same period under President George W. Bush, according to the report.

The report says the commission suffered losses in court because it pursued high-impact lawsuits without performing due diligence. Specifically, it has failed to resolve cases before filing suit — 6,967 resolutions in Mr. Obama's first five years compared to 8,273 under Mr. Bush — relied on flawed expert analysis and pursued "novel cases unsupported by law," according to the report.

The EEOC said it is still reviewing the report from Mr. Alexander, who is the top Republican on the Senate Committee on Health, Employment, Labor and Pensions, and who voted against the renomination of P. David Lopez as general counsel for the commission.

An EEOC spokeswoman pointed to recent Senate testimony from Mr. Lopez, in which he said his team resolved more than 90 percent of cases that agency litigators file, "including landmark cases involving disability, pregnancy, age and religion."

The report says in one case the EEOC claimed U.S. Steel's random alcohol and drug tests on new probationary employees violated the Americans with Disabilities Act because the tests were not job-related or necessary for business.

"U.S. Steel conducted these tests on new hires who were less familiar with their working environment to ensure safety at a busy steel factory with numerous hazardous working conditions," the report says. "Yet, in EEOC's view, the company needed an individualized, reasonable suspicion of intoxication to perform such tests. The court disagreed."

The report says the EEOC did not visit the plant to investigate whether the policy was justified and suffered embarrassing media scrutiny.

Also, the EEOC has been forced to pay attorney's fees 10 times since 2011, although not all of the cases were initiated by the current administration.

Courts ordered the commission to pay the fees because it failed to produce evidence in a timely fashion or to preserve key documents in some cases.

In another case, the commission accused a company of discriminating against black applicants by refusing to hire people with a criminal record. As it turned out, the company had no such policy.

"Unfortunately, taxpayers have been left to foot the bill for some of these litigation failures," the report says. "Courts award attorney's fees only in rare cases that are considered particularly egregious."

In its statement, the agency said Mr. Lopez feels that any award of fees or sanctions against EEOC is "unacceptable."

"This is why he developed and implemented systems and procedures for attorneys across the EEOC to learn from judicial decisions, including those instances mentioned in the report, where cases filed by predecessors had sanctions and fees," the agency told The Washington Times.

The staff report found the general counsel has broad discretion over which cases are brought to the agency's five-member commission for a vote. For instance, only three of 122 lawsuits were brought to the commission for approval in fiscal 2012.

"Such broad delegation of litigation authority to the general counsel detracts from the commission's ability to perform its statutorily obligated duties and ensure prudent litigation decisions are made on behalf of EEOC," the report said.