New Enforcement Strategies to Address Discrimination in the Changing Workplace

The Enforcement Climate in the 1990s

During the 1990s, the Commission revisited the proper balance between an individualized versus a systemic approach to law enforcement. EEOC's incoming charge workload exploded following the enactment of the ADA, the OWBPA, and the Civil Rights Act of 1991. Moreover, increasing efforts to control government spending resulted in budgetary constraints at a time when the rate of new charges was increasing. Receipts grew from about 59,000 in FY 1989 to an all time high of approximately 91,000 in FY 1994. Charge filing has continued at these high levels.

To address the mounting workload, the Commission moved away from the full investigation approach begun in the 1980s to a more strategic and systemic approach. Accordingly, in 1995, EEOC adopted a new system priority charge handling which prioritized incoming charges into three categories according to the likelihood that discrimination occurred. The system expedited dismissal of charges over which the agency had no jurisdiction, and allowed early dismissal of those charges which were self-defeating or unsupported. By the end of FY 1999, EEOC's new system had reduced its pending inventory of unresolved charges to a little more than 40,000 a reduction of 64 percent from a projected inventory of about 111,000 charges in FY 1995. The inventory's age also was greatly reduced in that 60 percent of the pending charges were less than 180 days old.

National Enforcement Plan

Another major enforcement strategy was initiated in 1996 when the Commission adopted its National Enforcement Plan (NEP). Although the general principles in the NEP were not new to the agency, the NEP nevertheless crystallized and clearly articulated a three-pronged approach to enforcing the agency's anti-discrimination laws. The NEP's first tactic was to deter discrimination through outreach and education. Second, EEOC would promote the voluntary resolution of disputes when possible. Last, only when voluntary resolution failed, EEOC would engage in strong enforcement, including litigation where appropriate. Field offices established Local Enforcement Plans (LEPs) setting forth outreach and enforcement priorities in each local jurisdiction.

Litigation under the NEP emphasized developing cases that would have the greatest impact on eliminating discrimination. Litigation procedures were streamlined by delegating to EEOC's General Counsel and re-delegating to Regional Attorneys authority to approve litigation decisions previously reserved only for the full Commission. This strategy proved effective in obtaining full and timely redress for complainants alleging discriminatory practices. From FY l996 through FY 1999, EEOC obtained nearly $800 million in monetary benefits for charging parties through administrative and litigation settlements. A record $307.4 million was obtained in FY 1999 alone.

Comprehensive Enforcement Program

While the priority charge handling process and the NEP succeeded in helping EEOC manage its workload and resources more effectively, the Commission took further steps to forge a more cohesive, strategic approach to enforcement of EEOC's laws. In 1999, EEOC adopted the Comprehensive Enforcement Program (CEP) as the Commission's strategy to maximize effective implementation of the Commission's policies stated in the NEP and spelled out in field offices' LEPs. Specifically, the CEP links and integrates every phase of EEOC's work in the private sector program, from outreach to taking and developing charges of discrimination, investigation, and final resolution through a variety of functions. Examples of the key elements necessary to implement the CEP include strengthening the relationship between the enforcement investigators and the legal staff and increasing EEOC's presence in under-served communities. As the CEP approach is implemented nationwide, the Commission will effectively move to the next level of employment civil rights enforcement.

Alternative Dispute Resolution

EEOC's final enforcement strategy during the 1990s involved implementing an alternative dispute resolution (ADR) program. Specifically, EEOC adopted a new policy that utilized mediation methods, in addition to existing conciliation and settlement processes, to encourage the quick, voluntary resolution of charges. This strategy also has proved effective. Offered on a pilot basis in 1997, this program was expanded nationwide in 1999. In its first year of nationwide operation, EEOC resolved 4,833 charges through voluntary mediation. Moreover, 65 percent of the charges entering mediation were successfully settled, and charges in mediation were resolved in an average of 90 days. Since its inception, EEOC's mediation program has won the endorsement of a broad range of the agency's stakeholders, including business and labor advocates, civil rights groups, and representatives of the employer and plaintiffs bars.

Next: Redoubling Efforts in Education, Outreach and Technical Assistance