Under the new enforcement procedures, which emphasize "fuller" investigations before initiating settlement negotiations, virtually no fact-finding conferences are being conducted by most district offices visited. Fact-finding conferences are face-to-face meetings between a charging party and a respondent with EEOC serving as a moderator/mediator. The purpose of these meetings is to achieve a quick negotiated settlement agreement which resolves the discrimination charge before the EEOC has committed its limited resources to fully investigate the charge and establish whether there is a reasonable cause to believe that any of the anti-discrimination statutes have been violated. While not appropriate in every instance, Commission staff interviewed noted that fact-finding conferences were useful, in some instances, in resolving charges of discrimination. Legal units, while faced with a potentially expanded litigation caseload as a result of the new enforcement policy, are severely hampered in their efforts by inadequate resources and litigation support services. Legal unit attorneys, who uniformly expressed a willingness to handle the increased caseload resulting from the recent emphasis on litigating charges in which cause is found and conciliation efforts have failed, strongly urged that additional litigation support personnel and resources accompany this increase in litigation or the effective prosecution of discrimination complaints will be seriously threatened. Moreover, attorneys suggested that there was an insensitivity or unfamiliarity at headquarters with the resource requirements of litigators. Both the expert witness procurement process and the subpoena enforcement review process were decried by virtually every attorney as being unduly multi-layered and cumbersome. Expert witnesses are essential to employment discrimination litigation because they perform, for example, the important analyses of work-force statistics which are fundamental to proving classwide discrimination. The procurement process, most of which occurs at headquarters, may be delayed from six months to a year. In some cases, the witnesses were approved after they were needed at trial. Lastly, lawyers complained that the subpoena review process was unnecessarily multi-layered. A recalcitrant employer unwilling to voluntarily supply documentation to EEOC investigators can stop an investigation in its tracks. To obtain this information, the EEOC may issue a subpoena. To obtain compliance with this administrative subpoena, it is sometimes necessary to initiate a judicial enforcement proceeding. The General Counsel's Office at headquarters must approve the initiation of such an action. Attorneys complained of the unreasonable paperwork burden that they must undertake in requesting this action and of the inordinate delays (in some instances, several months) in obtaining approval. Such delays may give charging parties the impression that the Commission is merely "sitting on" their complaints. Attorneys felt that the pro cess demonstrated unnecessary oversight of routine litigation that they were competent to handle. RECOMMENDATIONS EEOC POLICIES 1. The Acting General Counsel should immediately rescind his oral directive to regional attorneys that they not refer proposed consent decrees which contain goals and timetables to headquarters for approval. 2. The Acting General Counsel should also exercise the responsibility accorded to him by Title VII of the Civil Rights Act of 1964 by enforcing existing consent decrees which contain goals and timetables, until such time as the courts have ruled that this remedy is inappropriate or no longer permissible. 3. The Commission should make clear to compliance staff as well as to the employer community and the general public that the EEOC will enforce the law as it exists and that it will continue to seek goals and timetables and other forms of prospective relief, where necessary, to remedy the effects of discrimination. 4. The Commission should conduct its policymaking openly and consistent with the requirements of the Administrative Procedure Act and the Sunshine Act. 5. The EEOC should rescind its apparent policy or practice of seeking remedies only for identified victims of discrimination and utilize all available remedies including prospective and formula relief where appropriate, insofar as such relief is permissible under court precedent. 6. The EEOC should make clear that the "reasonable cause" standard to determine whether the agency believes that a charging party has suffered discrimination, requires that quantum of evidence sufficient to state a prima facie case of discrimination, and to rebut, at least in part, a respondent's explanation for its actions. The standard does not require an amount of evidence sufficient to "win" a case if brought to trial. 7. The Commission should make clear to district office staff that whenever full relief is sought, they must pursue and seek to obtain all make-whole relief, including back pay and retroactive seniority. 8. The EEOC should continue to utilize the adverse impact theory to attack systemic discrimination in accordance with Griggs v. Duke Power and the Uniform Guidelines on Employee Selection Procedures. ADMINISTRATIVE AND PERSONNEL PRACTICES 1. The EEOC and the Office of Personnel Management (OPM) should restore the equal employment opportunity specialists (EOSS) in the intake units to a maximum level of GS-11 and the intake supervisors should be upgraded to the GS-13 level. These changes would ensure that a charging party is provided adequate information during the intake process and would promote quality work in perfecting the case file, which is the basis for the administrative processing of the charge. 2. The EEOC should issue a directive to district office staff stating that the charges in investigation at the EEOC, particularly those over 300 days old, should not be closed prematurely. Moreover, a comprehensive audit should be conducted with the intention of reopening cases which were investigated poorly. 3. The Commission should provide adequate travel funds for onsite investigations, in accordance with its emphasis on thorough and quality investigations. 4. The Commission should provide more formalized, on-going training opportunities for all EOSS in the intake units, as well as for investigators in the rapid and extended charge processing units, focusing on both discrimination law and investigative techniques. 5. The Commission should provide adequate staffing to the State and Local Program, as well as staff training, in order to better and more closely monitor and evaluate the work of the Fair Employment Practices Agencies (FEPAS) and cases submitted for substantial weight reviews. 6. The Commission should make available to field offices additional full-time-equivalent (FTE) positions, to be reserved for investigative and legal units and for support staff in those units, in order to enhance the agency's enforcement activities. Whenever FTE slots become available from headquarters, through attrition, those FTE slots should be transferred to field offices. 7. The Commission should undertake immediate efforts to streamline both the expert witness procurement process and the administrative subpoena enforcement process, with a view toward eliminating inordinate delays and unnecessary layers of review. CONTENTS II. The Equal Employment Opportunity Commission: Its Mission III. Implementation and impact of recent policies. A. EEOC's new enforcement policy. B. Policy on remedies and relief... D. Rapid charge processing units E. Extended charge processing units. Appendix F: EEOC's Statement of Enforcement Policy and Policy Statement on Remedies and Relief for Individual Victims of Unlawful Discrimination. Appendix G: Washington Post Article on Goals and Timetables...... Appendix I: Consent Decree in June Meyer et al. v. MacMillan Publishing Co.. |