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HELP Committee minority report ‘incomplete and inaccurate in crucial respects,’ EEOC says

December 8th, 2014  |  Pamela Wolf

In the wake of a scathing minority staff report recently released by Senator Lamar Alexander (R-Tenn.), the EEOC has replied by letter to the senior Republican on the Senate Health, Education, Labor and Pensions (HELP) Committee, calling the report “incomplete and inaccurate in crucial respects.” Among other things, the report criticized what it called the agency’s “litigation missteps” that “are costing taxpayers millions.” The title of the report alone, “EEOC: An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency,” speaks volumes.

Litigation program. Presumably in response to the concerns expressed in the report that the agency “is pursuing many questionable cases through sometimes overly aggressive means—and, as a result, has suffered significant court losses that are embarrassing to the agency and costly to taxpayers,” the EEOC letter, signed by Todd A. Cox, Director, Office of Communications and Legislative Affairs, makes this point: “It is difficult for an agency to enforce a statute effectively by filing only suits it is certain to win (if that were even possible). It is also difficult to avoid filing suits that a court may decide years later were, or became at some point, frivolous or without foundation (the standard set by the Supreme Court for an award of attorney fees to a prevailing defendant in a Title VII action).

Cox continued on to explain that as a matter of process, the civil rights agency “performs a careful multilevel review of every suit it files” and noted the inevitability that in some cases, the evidence will come out differently than expected. “Regardless, EEOC’s success rate in litigation has consistently been over 90 percent, including more than 93 percent this past fiscal year,” Cox wrote. “By any reasonable metric, this public record shows a successful program in ensuring fairness for victims of unlawful discrimination and deterring future misconduct.”

The letter underscores that EEOC’s many successes, including a series of large settlements obtained through the agency’s litigation program that ranged between $700,000 and $20 million. Cox also pointed to what he called the EEOC’s “enormously successful trial program,” which obtained verdicts in favor of the Commission in nine out of 10 jury trials during FY 2013, noting that the agency has won 11 of its last 16 jury trials, including FY 2013 to the present. He also underscored the agency’s successes at the appellate level.

Only losses documented. “Despite this record, the report lists only our losses and only acknowledges a single successful court victory or settlement obtained by the Commission—our victory before the U.S. Court of Appeals for the Seventh Circuit in Mach Mining,” wrote Cox. “However, even here the report criticizes the EEOC and takes issue with the court’s ruling. Further, the report presents no comparative evidence, or benchmark of any kind, indicating that the agency’s performance has significantly declined in this Administration. Indeed, the facts demonstrate otherwise.”

Delegated authority. In response to what the report at least implied was the misuse of the General Counsel’s delegated authority, Cox said, “The General Counsel has scrupulously followed the delegation criteria. This includes submitting for a vote high-profile matters involving felony conviction screens, credit screens, partnership agreements, language policies, and wellness programs.” He also observed that the report did not identify even one law suit filed under the General Counsel’s delegated authority that the Commissioners believed should have been submitted to them under the established criteria. According to Cox, many of the cases criticized in the report, i.e.Kaplan, Freeman, and Peoplemark, were in fact authorized by the Commission. “Of the 48 cases that have been submitted to the Commission from FY2011-FY2014, only one has been rejected by the Commission and one was withdrawn by the General Counsel following a tie vote,” Cox noted.

The EEOC letter also addressed, among other things, the decrease in the number of cases submitted to the Commission for approval, as noted in the report. “The report fails to acknowledge the significant impact of the 2008 decision of former General Counsel Cooper, who served from 2006-2008, to discontinue sending all ADA cases to the Commission for approval, following the enactment of the ADA Amendments Act (ADAAA),” Cox explained.

Specifically regarding the report’s reference to a statement of former EEOC General Counsel Eric Dreiband (2003-2005) that the number of cases submitted by General Counsel Lopez for a vote in the years 2010-2012 represent a “serious departure” from Dreiband’s practice during his tenure, Cox pointed out that “the vast majority of cases submitted to the Commission for approval by Mr. Dreiband were individual ADA suits submitted pursuant to an informal agreement by the General Counsel’s office following three important 1999 Supreme Court decisions on the ADA.” After the expansion of ADA coverage through the ADAAA, Cooper issued a memo that discontinued the practice of submitting all ADA suits for a Commission vote “because the practice was in conflict with the goals of effective and efficient government,” according to Cox. “This resulted in a significant decline in the number of cases submitted to the Commission under the delegation of authority,” he wrote, pointing to FY 2009, the year following Cooper’s decision and before Lopez’s arrival, in which only two out of 281 cases were submitted for a vote to the Commission.

Directed investigations and Commissioner charges. The EEOC official also had a few things to say about the report’s criticism of the agency’s pursuit of cases when no charge has been filed or no individual has raised discrimination allegations. “It is important to note that Congress purposely gave the EEOC authority under Title VII and the Fair Labor Standards Act (under which age discrimination and Equal Pay Act suits are brought by the agency) to initiate investigations of discrimination on its own,” Cox explained. “Congress did so understanding that there would be situations when victims of discrimination were unable to come forward because they did not know they might be victims or unwilling to come forward because they feared reprisal. Use of these practices was endorsed by the Commission under the previous administration in its 2006 Systemic Task Force Report and recently reaffirmed by the Commission in its 2012 Strategic Enforcement Plan.” Cox also pointed out that of the more than 100 systemic cases filed since 2010, only 12 were predicated on a charge that was filed by someone other than the aggrieved party.