Alexander Calls on EEOC Nominees to Say How They Would Address EEOC Practices that “Cost Taxpayers, Hurt Victims of Workplace Discrimination”

Says current EEOC is too focused on “litigating high profile lawsuits” and shows “lack of transparency with guidance issued to the public”

Posted on November 13, 2014

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“The desire to win big lawsuits has backfired. Numerous federal courts have criticized EEOC’s litigation practices, failure to attempt to resolve cases and avoid court, misuse of authority and reliance on faulty expert analysis."   –Lamar Alexander

WASHINGTON, D.C., Nov. 13 – At a hearing today on the nominations of P. David Lopez and Charlotte Burrows to serve as general counsel and member of the Equal Employment Opportunity Commission (EEOC), U.S. Senator Lamar Alexander (R-Tenn.) called on the nominees to say how they would address EEOC practices that “cost taxpayers and hurt the victims of workplace discrimination.”

Alexander called out the commission, which is charged with investigating and resolving complaints of workplace discrimination, for “litigating high profile lawsuits, some of which have been rebuked by the courts, rather than resolving its backlog of discrimination charges filed.”

The senator pointed out that EEOC currently has 70,781 unresolved discrimination charges pending and that some of EEOC’s lawsuits have been so unfounded or mismanaged that it has been required to pay attorney’s fees in ten different cases since 2011.

“The desire to win big lawsuits has backfired,” Alexander said. “Numerous federal courts have criticized EEOC’s litigation practices, failure to attempt to resolve cases and avoid court, misuse of authority and reliance on faulty expert analysis, among other complaints.”

At today’s hearing, Alexander also called for greater transparency at the commission, saying “EEOC does not allow the public to review or comment upon its draft guidance, even in cases of novel, significant or controversial guidance—yet, agencies expect people to follow guidance.”

 

Below is the full text of Alexander’s prepared remarks:

Today we are reviewing the nominations of two individuals to serve at the Equal Employment Opportunity Commission (EEOC).

The EEOC is an independent agency established by the historic Civil Rights Act of 1964 to handle complaints of workplace discrimination. 

I stood in the crowd on the National Mall and listened to Dr. Martin Luther King’s “I Have a Dream” speech in August 1963, when he called for our nation to “make real the promises of democracy.” The Civil Rights Act was to put an end to discrimination in American life, particularly in hiring, firing and promoting.

Today, employees are protected by law if they are discriminated against because of race, color, religion, sex, pregnancy, national origin, age, disability or genetic information. 

The EEOC receives complaints of discrimination and is charged with investigating them to determine whether or not they have merit, and then attempting to resolve them informally, through conciliation and mediation.

I have two primary concerns about EEOC. First, EEOC has placed too much emphasis on litigating high profile lawsuits, some of which have been rebuked by the courts, rather than resolving its backlog of discrimination charges filed by individuals. Second, EEOC has not been fully transparent in how it issues guidance to the public and in the information it shares with the public about its activities.

Regarding EEOC’s litigation strategy, costly and time-consuming litigation should be the last resort.

Last year, more than 93,000 charges of discrimination were filed with the EEOC, and  2,988 came from Tennessee residents.   

EEOC reports that it currently has 70,781 unresolved discrimination charges pending. A backlog of charges pending is nothing new for EEOC.

Given this backlog, I am disappointed that this EEOC has placed a strong emphasis on actions and lawsuits that do not address actual charges of discrimination brought to the agency by employees.

Under this administration, the EEOC has focused too heavily on headline-making lawsuits at the expense of fair and swift resolution of claims. 

The desire to win big lawsuits has backfired. Numerous federal courts have criticized EEOC’s litigation practices, failure to attempt to resolve cases and avoid court, misuse of authority and reliance on faulty expert analysis, among other complaints.

The case EEOC brought against Kaplan Higher Education Corporation received such a sharp rejection by a unanimous three-judge panel on the 6th Circuit Court of Appeals in 2014 that The Wall Street Journal named it the “Opinion of the Year.”

EEOC sued Kaplan for alleged race discrimination due to the use of credit background checks.

The court wrote, “EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.”

The court also criticized EEOC for bringing a case against Kaplan for “using the same type of background check that the EEOC itself uses.” 

Since 2011, EEOC has been ordered to pay attorney’s fees in 10 different cases.

In six cases, fees were awarded under a rare step allowed by Title VII of the Civil Rights Act, which according to the U.S. Supreme Court is reserved for cases that are “frivolous, unreasonable, or without foundation” or “continued to [be] litigate[d]” after those circumstances became present.

In the four other cases, the court awarded fees for failing to prevent the destruction of evidence, for discovery abuses, and for pursuing a case that lacked substantial justification.

To be fair, not all of these cases where EEOC was ordered to pay attorney’s fees were initiated on this general counsel's watch, but he did initiate five of them and it appears he continued to pursue four of them. 

These court losses cost taxpayers and hurt the victims of workplace discrimination whose charges are backlogged at EEOC.

The five-member commission has exercised too little restraint over the general counsel. 

In 1995, the commission gave the general counsel far more authority to bring whatever cases he wanted, with no check from the commission. 

By 2012, this practice led to only three of the 122 lawsuits filed that year coming before the commission for approval.  

The EEOC has taken some steps to increase the commission’s role in approving litigation – but more should be done to restore this check on the general counsel’s authority. 

In particular, the EEOC should immediately reconsider the strong emphasis on lawsuits which are not based on any complaint and do not even have a victim plaintiff.

In recent years, the general counsel has pursued a number of cases without complaints, such as age discrimination cases against large accounting firms (PricewaterhouseCoopers, Deloitte, and KPMG) whose partners have voluntarily adopted a mandatory retirement age.

Age discrimination is certainly a significant problem that EEOC should work to address.  But they should go about it by assisting the more than 21,000 people who complained to EEOC of age discrimination last year, rather than directing investigations at an industry they find suspect.

I am also concerned about the lack of transparency at EEOC.

The EEOC sets national workplace discrimination policy by issuing formal regulations as well as “guidance,” which are meant to help employers and employees understand how the law applies to them.

EEOC does not allow the public to review or comment upon its draft guidance, even in cases of novel, significant or controversial guidance.

This is not in compliance with the administration’s own “best practices” recommendations or the recommendations of three of the current commissioners.

I am concerned about this because agencies expect people to follow guidance.  At a hearing in June, I asked the head of the Office for Civil Rights at the Department of Education whether she expected higher education institutions to comply with the Office for Civil Rights guidance and she said yes.

So why not at least let people comment on it.

Senator Enzi also urged greater transparency on significant guidance when he was ranking member of the HELP Committee, and I share his view.

I am also concerned that EEOC has not offered any guidance on voluntary employer wellness plans to encourage healthy lifestyle choices, yet is filing lawsuits against employers who offer these plans to employees on the basis of disability discrimination. 

Wellness plans with premium discounts were specifically authorized in the health care law with strong bipartisan support—one of the few provisions of Obamacare with both Republican and Democrat buy in.

EEOC was scheduled to publish two proposed rules on wellness plans last June and invite comments on the proposals – but there has been no action.

These wellness plan lawsuits are sending a confusing message to employers - reliance on the health care law’s authorization of wellness plans does not mean you won’t get sued.  

I look forward to learning how these nominees plan to address these issues and welcome them here today.   

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