Posted on November 24, 2014
By Mary Kissel
Sen. Lamar Alexander’s office performed a public service Monday by releasing an easy-to-read, 23-page staff report on the Obama-era Equal Employment Opportunity Commission’s abuse of private employers. Even a cursory review is shocking.
The report from the Tennessee Republican confirms that General Counsel P. David Lopez has made a mockery of the antidiscrimination agency’s five-member bipartisan commission. In 2010 he sent only five cases to the commissioners for review before suing; in 2011, seven; in 2012, just three. Compare that with the lawsuits the agency filed in each of those years: 250, 261 and 122, respectively. Why have a bipartisan commission if its members are rarely consulted? Oh, and Mr. Lopez hasn’t bothered to file an annual report since 2010.
Then there’s the EEOC’s conduct behind closed doors. By law the agency is supposed to conciliate disputes first and sue as a last resort, but in many cases the agency’s lawyers don’t bother with the former. In EEOC v. Bloomberg, a pregnancy discrimination case, a New York district court found the agency “spurned any efforts to conciliate.” In EEOC v. CVS, a case concerning severance practices, the agency didn’t even attempt to conciliate before filing a lawsuit. Mr. Lopez contends the EEOC’s conciliations shouldn’t be subject to judicial review—in contravention of 50 years of legal precedent. The Supreme Court will consider his theory in EEOC v. Mach Mining this term.
Mr. Alexander’s staff also provides some startling examples of how the EEOC intimidates employers. In 2013’s EEOC v. HomeNurse, a magistrate judge ruled that the “EEOC’s highly inappropriate search and seizure operation, its failure to follow its own regulations, its foot-dragging, its errors in communication which caused unnecessary expense for [HomeNurse], its demand for access to documents already in its possession, and its dogged pursuit of an investigation where it had no aggrieved person constitute a misuse of its authority as an administrative agency.” Big companies are in the EEOC’s cross-hairs, too. The report notes the EEOC has investigated Deloitte for four years for age discrimination “without a single complainant to date.”
Mr. Alexander’s report is full of other egregious examples of government abuse. If the lame-duck Senate votes on Mr. Lopez’s renomination for another four-year term—which sources tell me may happen as soon as Dec. 2—no one will be able to say that they weren’t aware of his dubious legal record.