PAUL M. IGASAKI,
Chairman
Chair, Priority Charge Handling Task Force
PAUL STEVEN MILLER,
Commissioner
Chair, Litigation Task Force
March 1998
The ChallengeBuilding the Team to Achieve Success
A Tool for Improvement: The Local Enforcement Plan
Fine-Tuning the Charge Process
Legislative/Investigative Collaboration
Maximizing Agency Resources
Headquarters Support and Technical AssistanceHeadquarters Support of NEP Case Development
Delegation of ADA Litigation Authority
Intervention
Coordination Among Offices
Role of Headquarters Systemic Units
Field Structure and Staffing
Training
Technology
The Commission's LEP PolicyThe Current LEPs
Implementation of New LEPs
Commissioner Charges and Directed Investigations
Strategic Outreach Under the LEPs
IntroductionIntake
Case Categorization and NEP/LEP Intake Issues
Dismissals at Intake
The Sharing of Case File Information
The Identification and Investigation of A Charges
On-Site Investigations
The Investigation of B Charges
Determination Counseling
Pre-Determination, Settlements, Conciliation and ADR
Relationship with the Private Bar
Investigator/Attorney CollaborationThe Roles of District Directors and Regional Attorneys
Administrative Decision-Making
Administrative Obstacles to Field Office Efficiency
Legal Unit Support to Area and Local Offices
Techniques for Facilitating Case Development
Report of the Priority Charge Handling and Litigation Task Forces
The Commission has made substantial progress in many areas since implementation of the Priority Charge Handling Procedures (PCHP) in 1995 and the National Enforcement Plan (NEP) in 1996. Field offices have reduced the charge inventory by more than 40%, victims of discrimination are recovering more benefits as a result of Commission enforcement efforts, and the number of cases in the agency's docket that challenge the most serious violations is increasing.
The challenge facing the Commission is how it can build on its recent successes by creating an enforcement program that has the maximum impact on workplace discrimination within the confines of its budget. This report offers recommendations for improvement in four critical areas.
On February 12, 1997, then Chairman Gilbert F. Casellas asked then Vice Chair Paul M. Igasaki to lead a Task Force to assess the implementation of the agency's Priority Charge Handling Procedures (PCHP) and Commissioner Paul Steven Miller to lead a Task Force to assess the agency's litigation program.
Chairman Casellas specifically requested that Vice Chair Igasaki's Task Force look at the effectiveness of the charge processing changes which had been adopted by the Commission in April 1995. He also stated that he was particularly interested in knowing whether PCHP was meeting the goals of the Commission, and asked the Task Force to develop recommendations for any "mid-course corrections" which may further advance effective civil rights law enforcement.
Chairman Casellas asked Commissioner Miller's Task Force to assess the agency's litigation program with particular attention to the most effective approaches to identifying, investigating and litigating egregious cases of employment discrimination, and how best to implement and attain the agency's National Enforcement Plan/Local Enforcement Plan (NEP/LEP) goals.
While Alternative Dispute Resolution (ADR) is becoming an increasingly important part of the Commission's enforcement program, Chairman Casellas stated that it was beyond the scope of the Task Forces. As a result, EEOC's ADR program is not assessed in this report. Because the program was relatively new, it was too early to do an assessment.
The PCHP system and NEP/LEP framework were developed some two and a half years ago to respond to operational challenges faced by the EEOC at that time. The Task Forces are also operating in the spirit and aspirations of the National Performance Review (NPR). The Commission's core challenge, stretching limited resources to cover the growing problem of employment discrimination, is particularly suited to this approach.
The initial deliberations of each Task Force resulted in independent conclusions that it was impossible to separate the issues affecting charge handling and litigation in the EEOC. An examination of either component of the agency's work requires an examination of the other. Indeed, the original Charge Processing Task Force (CPTF) Report that recommended the changes that we are now assessing emphasized the importance of viewing the system as integrated, and required close cooperation between the investigative and legal staffs. It made sense, therefore, for the two Task Forces to set a collaborative tone and work together to deliver a consistent message.
The recommendations of this joint Task Force report serve both to answer inquiries as to how priority charge handling and litigation are being implemented by the Commission and suggest how together these functions might be improved. These recommendations were developed with significant internal staff and external stakeholder input. (See Appendix D, Stakeholder Input to Task Forces.) It is hoped that these approaches might add to the reforms adopted some three years ago and will move the EEOC closer to the goals of a balanced and strategic enforcement program.
The Equal Employment Opportunity Commission was created by Title VII of the Civil Rights Act of 1964 (Title VII). As originally designed, the Commission's primary responsibility was to receive and investigate charges of unlawful employment practices, and to attempt to conciliate the dispute if the investigation revealed reasonable cause to believe the charge of discrimination was true. The Commission did not have the authority to enforce its determinations in court if conciliation failed. In 1966, the Commission began opening field offices which were tasked with conducting most of the agency's charge investigations and conciliations. By the end of 1971, the Commission had seven regional offices that oversaw 27 district offices. Because the agency did not have the authority to judicially enforce its administrative findings of discrimination, many employers did not take the Commission's voluntary conciliation process seriously.
By April 1970, in response to an aging charge inventory, the Commission adopted a "Pre-Determination Settlement" procedure which permitted district offices to make conciliation efforts prior to a Commission determination regarding the merits of a charge. In further response to the charge inventory, the Commissioners, in 1972, delegated the authority to make reasonable cause determinations to the District Directors where there was already a Commission decision setting forth the agency's interpretation of the law on the point at issue. In spite of these efforts, the Commission continued to receive far more charges per year than it could investigate. During the 1970s, the Commission began to experience a substantial buildup in its case inventory. Its charge inventory went from 53,000 in June 1972, to 106,000 in June 1975 and to 130,000 in April 1977.
Although the Commission had no enforcement power prior to 1972, it did make a substantial contribution to the development of Title VII case law. Recognizing that the courts, primarily in private suits, were construing the procedural requirements as well as the substantive reach of Title VII without agency input, the Commission began the practice of filing amicus curiae briefs in important cases. The Commission shaped the development of decisional law by obtaining judicial deference to the views of the agency charged with the day-to-day administration of the statute. The Commission was thus able to influence the outcome of several important cases.
The Equal Employment Opportunity Act of 1972 amended Title VII in a number of significant ways. The most important amendments, for purposes of this discussion, were those that gave the agency authority to file lawsuits against private employers, labor unions and employment agencies, if the agency found reasonable cause to believe the Act had been violated and conciliation had failed. To carry out its new litigation authority, the Commission created five Regional Litigation Centers which were separate from the district offices. Each center had 30 to 40 attorneys. Although these Litigation Centers were responsible for litigating cases generated primarily by investigators from field offices, there was little day-to-day contact between the Commission's investigators and its trial lawyers.
From these five Litigation Centers, the agency brought cases affecting large numbers of people and policy cases, as well as individual suits seeking specific relief for an aggrieved party. These suits challenged many entrenched policies, such as the widespread practice of employers following outmoded state "protective" laws for women; airline rules restricting flight attendant positions to women; involuntary furloughs of pregnant employees, and restrictive recruiting practices designed to exclude racial minorities. The realistic possibility of litigation provided by the 1972 amendments dramatically increased the Commission's ability to conduct a credible voluntary conciliation process.
In 1977, the Commission adopted a reorganization plan that eliminated the "regional office" level of the bureaucracy and provided for its district offices to report directly to headquarters. The five regional litigation centers were disbanded and the attorneys spread among the district offices. The shifting of attorneys to field offices was designed to improve coordination between Commission attorneys and investigators and to develop better quality cases. Each district office had a Regional Attorney who supervised 11 to 15 lawyers. These attorneys were responsible to the District Directors for nonlitigation activities while their litigation duties were carried out under the direction of the General Counsel. This dual chain of command with sometimes conflicting demands on attorney time continues in a somewhat different form to this day.
As noted earlier, the agency's charge inventory mushroomed to 130,000 by 1977. To address this problem, the Commission began a program to reduce the charge inventory -- the "rapid charge process." This new procedure sought to bring charging parties and respondents together for fact finding conferences before the Commission began an investigation. The goal of these conferences was to bring about quick settlements, thereby helping to reduce the charge inventory.
As a result of the Presidential Reorganization Act of 1978, EEOC was given the additional responsibilities of enforcing the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act (EPA). In addition, the Commission was given the responsibility for coordinating federal sector employment discrimination enforcement efforts. While the Commission did receive an increase in its budget along with its increased statutory responsibilities, it continued to struggle with its substantially expanded workload.
The Commission's reorganization was completed in January 1979. There were 22 district offices that had investigative and legal units. In addition, 27 area and local offices were created that reported to the district offices. During this period, the Commission's continued efforts at charge inventory reduction brought its charge inventory down to between 30,000 and 40,000 charges. Also in 1979, the Commission introduced its Early Litigation Identification program under which attorneys and investigators teamed up to identify likely litigation vehicles. This represented a swing in the direction of a more proactive approach to the development of Commission litigation.
The Commission's efforts to control its inventory came under considerable criticism in a 1982 General Accounting Office (GAO) Report. While the rapid charge processing program had reduced the Commission's charge inventory to 76,000 charges, the program had its limitations. The crux of the GAO's criticism was that the Commission's emphasis on rapid charge processing and early settlement meant that many meritorious charges were being settled early for less than what they were worth, while many non-meritorious charges were being settled early for too much.
In response to the GAO report, in January 1983 the Commission decreased its emphasis on early case resolutions. Over the next two years it adopted three policies intended to provide appropriate relief to charging parties with meritorious claims. In December 1983, the Commission adopted a policy that shifted its focus from rapid charge processing to a case-by-case "full investigation" approach. In September 1984, the Commission adopted an enforcement policy requiring district offices to submit for litigation approval all cases in which they found reasonable cause where conciliation efforts failed. In February 1985, the Commission announced that when reasonable cause was found, it would not settle the case for less than "full relief" for the victim.
During the mid-1980s, the number of pattern and practice and other lawsuits challenging entrenched or widespread forms of discrimination that the agency had traditionally prosecuted dropped dramatically. This change in the Commission's enforcement efforts led to the charge that the agency had abdicated its civil rights enforcement leadership role.
In the early 1990s, Congress expanded the Commission's enforcement responsibilities considerably with the passage of two laws. In 1990, President Bush signed into law the Americans with Disabilities Act (ADA), which prohibits employment discrimination against individuals with disabilities. EEOC was authorized to enforce Title I of the ADA, as it applies to private employers. The Commission was also authorized to investigate charges of discrimination filed against public employers, but judicial enforcement authority for these cases was given to the Department of Justice. The next year President Bush signed the Civil Rights Act of 1991 which provided for an award of compensatory and punitive damages for individuals proving a violation of Title VII or the ADA.
Largely as a result of these increased statutory responsibilities, the Commission again experienced a dramatic increase in charge filings during the early 1990s. The Commission's charge receipts increased from 63,898 in Fiscal Year (FY) 1991 to 91,189 in FY 1994. Despite the increasing responsibilities and the rise in charge filings, Congress did not provide additional resources. As a result, enforcement staff at the agency was not able to keep up with the increased workload. The pending charge inventory, which had hovered between 30,000 and 40,000 in the early 1980s, had increased to 111,345 by the third quarter of FY 1995, when the PCHP went into effect.
A number of significant lessons can be learned from this review of the Commission's enforcement history. The agency has faced severe budgetary limitations over the past two decades. During the same period, it also experienced a decrease in staff size and increased statutory responsibilities. The agency has had periods with increased charge inventories that in some cases resulted in poorer services being provided to individual charging parties and employers. At the same time, the agency has had substantial swings in the size and quality of its litigation docket. The challenge for the current agency leadership is thus to craft an enforcement program that not only maintains charge handling at a reasonable pace but also identifies and develops cases, for settlement or litigation, that have a substantial effect on discrimination.
The reforms implemented as a result of the CPTF dramatically reduced the Commission's charge inventory. The agency's pending charge inventory fell from 111,000 in 1995, immediately following introduction of charge processing reforms, to fewer than 66,000 at the end of the first quarter of FY 1998. This represents a 40% reduction in charge inventory.
For two successive years in the recent past, the Commission operated on an essentially level budget. Because nearly 90% of the agency's budget is comprised of "fixed costs," such as salaries, benefits, and rent which are subject to mandatory cost-of-living increases as well as inflation, level funding actually represents a significant cut in terms of funds available for "discretionary" items such as litigation support and travel. As the pool of discretionary funds decreases, so does the agency's ability to invest in critical needs such as training and technology.
In light of the Commission's lean staff, the gains in inventory management noted above are even more remarkable.
The President, however, has proposed a 15% increase in the Commission's budget. The President's budget includes an increase of 13 million for mediation, 14.5 million for inventory reduction and nine and a half million for technology. This is the most significant budgetary increase the Commission has received in two decades. These additional funds would help the Commission resolve more cases through mediation, significantly reduce the agency's inventory and make possible an improved technology infrastructure. The proposed increase in agency funds will enable the agency to resolve cases more efficiently, provide better and more timely customer service, and through the use of improved technology, provide more consistent services across our 50 field offices.
The challenge facing the Task Forces is to identify what additional steps can be taken to make the Commission even more effective in balancing the agency's workload while it seeks to identify, investigate, settle, and if necessary, litigate cases that will have a significant impact on employment discrimination.
The Commission is at a critical point in its history. The agency has made substantial progress in the last three years toward becoming a more effective and flexible law enforcement agency. At the same time, it has yet to tap the full potential that can be realized if its employees work together to achieve clearly articulated goals. The PCHP, instituted in 1995, and the NEP, set out in 1996, are tools designed to provide for both the control of a burgeoning backlog and the identification of strong cases for enforcement. With these initiatives, the Commission committed itself to a proactive and strategic approach to fighting discrimination.
The collective view of the Task Forces, after wide consultation with internal and external stakeholders, is that the agency has made important progress in the past two and a half years, particularly in reducing its national charge inventory and beginning the process of transforming its docket. The enforcement flexibility that is part of the new system has resulted in a number of promising outcomes. The charge inventory is down by more than 40%, victims of discrimination are recovering more benefits, and the number of cases on the docket that involve egregious violations is increasing. Nonetheless, the enforcement program has produced uneven results and there is a need to define more clearly what counts in determining the success of the Commission's efforts. The Task Forces believe the Commission can do better and will do better if it leverages the potential of its employees by:
Throughout its history, EEOC has been challenged by the reality of ongoing, pernicious discrimination in the workplace and inadequate resources to attack the problem in a comprehensive manner. Facing up to this reality, the Commission adopted a vision of strategic enforcement that would enable it to make the most of the resources it has in fighting discrimination. This vision was set out when the Commission adopted the PCHP in 1995 and the NEP in 1996. Under the new system, offices were to process cases more quickly, zeroing in on the cases that would have the most impact on discrimination and quickly disposing of cases not likely to have merit.
Although the Commission has made real progress toward controlling its pending inventory and reorienting its enforcement efforts toward significant cases, the agency still has a way to go before the vision implicit in the new approaches is fully implemented. A few offices continue to struggle with a bloated and aging inventory. The number of strong cases producing either settlements or litigation is inadequate for some offices, and the proportion of cases involving large numbers of aggrieved individuals being developed and filed is less than was anticipated. Although there was a significant dip in the number of suits filed in FY 1996, Commission investigators had a record number of cause findings. In addition, the Commission's national litigation numbers are back up for FY 1997. The agency currently has approximately 380 cases in litigation. Likewise, the number of suits brought on behalf of large numbers of aggrieved individuals is up for FY 1997. Moreover, the Commission has achieved a significant increase in benefits collected for charging parties since the PCHP and NEP reforms.
The challenge faced by the Commission is to continue to build on its recent successes, and to leverage the talents of its employees to achieve significant enforcement successes in all of its offices. Despite a good start, the agency still needs to develop more strategic cases and continue its ongoing efforts to control the inventory of cases in the system. The budgetary increase proposed by the President will help the Commission resolve more cases through mediation and will, through technological advances, increase the agency's overall efficiency and significantly improve its customer service.
The Commission's efforts to investigate, settle, and where necessary, litigate cases are not independent segments of the Commission's enforcement program. They are overlapping, reinforcing parts of the whole. It is no more reasonable to ask which leg of a chair is necessary for it to stand upright than it is to ask which part of the Commission's enforcement program is the key ingredient to its success. The best results for charging parties will often be obtained through settlement. However, without a credible and visible litigation program, the Commission will be hindered in its efforts to settle meritorious cases in the investigative process. Moreover, because the details in Commission cases are confidential prior to filing suit, the Commission often must rely on the facts of its court cases to put a human face on the ongoing workplace discrimination its employees hear about every day. As noted by a former EEOC Commissioner, the EEOC was a "toothless tiger" before it was given litigation authority. The Commission's challenge is to use that authority strategically to have the maximum impact on workplace discrimination.
All field offices must work together to achieve their office's enforcement goals, and all headquarters staff must provide support, staffing, resources, technical assistance and oversight necessary for each field office to succeed. Moreover, with the support, coordination and encouragement of headquarters, the field offices must work together as members of a national law enforcement agency. Indeed, in performing their work in support of the agency's enforcement mission, headquarters offices also utilize support and guidance from field personnel. The same type of planning process to produce LEPs based upon the input of office stakeholders should help focus headquarters strategies. To the extent that individual offices require assistance in pursuing their LEP strategies, the Office of General Counsel (OGC) and the Office of Field Programs (OFP) should continue detailing or otherwise involving appropriate staff from other field offices in addition to offering headquarter's expertise. OGC and OFP have begun to do this. Expertise and experience must be shared between offices and within offices to maximize the agency's effectiveness. Regional strategies and collaborations are being explored by OGC and OFP as well. Strategic cooperation, involving consolidated investigations and negotiations with national employers, for example, will help provide more effective and more uniform enforcement. In general, team building among field offices will not occur without regular communication among field offices about enforcement activities and without timely information sharing and strong joint encouragement and leadership from the Commission, OGC and OFP. Improved technology, which will be possible as a result of the President's proposed budgetary increase, also can contribute to inter-office coordination and team building.
To ensure consistent ongoing attention to how all the pieces of the Commission's national enforcement strategy are fitting together, the Task Forces are recommending the creation of a national enforcement strategy group. This group, with representatives from various offices, will help develop national approaches to implement the NEP with input from substantive issue work teams involving the agency's best experts from the field and headquarters. Before the revised LEPs are approved, OGC and OFP must ensure that NEP coverage is balanced nationwide and negotiate changes where necessary. Once the LEPs are in place, OGC and OFP should use the substantive issue work groups to further develop national and regional strategies on issues of overlapping interest. In some instances, law development and associated enforcement strategies should be developed on a federal circuit court basis. The LEPs and associated strategic documents, once approved by the Commission, will provide the connection between field enforcement and the NEP. In this way, Commission resources will be better coordinated and team building will naturally occur around discreet issues.
Although a number of the Commission's field offices have produced significant litigation results in the last two years, others have dockets that do not approach the national goals set out in the NEP or the local goals set out in their LEPs. For some offices, a number of significant cases are currently being developed and are expected to be filed or settled in the coming months. For others, there is a need for renewed emphasis on identifying NEP/LEP charges and expediting their investigations. Both Task Forces agree that the Commission must strategically apply its limited resources to cases where it will have the greatest effect on discrimination. The availability of private counsel normally mitigates against Commission involvement in a private suit. However, there will be strategic situations where it will be appropriate for the Commission to intervene to represent the public interest, to seek relief for other parties who do not have counsel, to develop the record, to ensure adequate systemic relief or to affect the development of the law. To ensure that the Commission's resources are used wisely, it is essential that all Regional Attorneys continue to carefully follow the intervention standards set forth in the Regional Attorney's Deskbook. In addition, the General Counsel should continue to ensure that these standards are followed in all cases in which the Commission intervenes.
The new charge handling procedures and the NEP/LEPs ask Commission staff to prioritize cases that can raise complex factual and legal issues. If staff are to meet these higher expectations, the Commission must provide adequate training and support to enable its employees to succeed. The Task Forces applaud the increased emphasis on training that this Administration has provided, and offer a number of recommendations for how the Commission's training resources should be prioritized and leveraged with other training resources outside the agency to have the greatest impact on the development of skills that will translate into improved enforcement. Training necessary to accomplish LEP objectives should be spelled out in individual office training plans, and should guide national planning efforts. More practical examples of how case prioritization is to be applied to specific case situations should help in strengthening the current system. Training is largely an individual office's responsibility and must include regular updates by appropriate existing staff and the use of volunteers from outside the agency as well.
The experience and resources available in each of the Commission's offices and the external environments faced by each office vary dramatically. The Task Forces accordingly have recognized the importance of establishing goals that are tailored to the circumstances of each office, but that can be measured in a consistent and useful manner. The Task Forces believe that all of the Commission's offices can and should optimize their outcomes by setting realistic enforcement goals in the LEPs and being held responsible for achieving these goals.
As originally conceived, the LEP was to provide a tool for understanding local office directions and assessing progress. Practically, however, the format and scope of the current LEPs vary so much from office to office that they do not yet provide a reliable means to assess outcomes or provide support. The Task Forces believe that more carefully focused, succinct and uniformly organized LEPs can provide the cornerstone of an effective national enforcement program. The documents should be approached as "contracts" or agreements between each field office and the Commission that set out realistic goals tailored to the unique resources of each office and the community it serves. District Directors and Regional Attorneys must be jointly responsible for achieving goals set forth in the LEPs. The LEPs of all field offices, when taken as a whole, must set forth a comprehensive national law enforcement program.
In developing their LEPs, many of the Commission's field offices have not adequately tapped the resources of their local stakeholder communities, including historically under-served groups, to identify discrimination issues in their jurisdiction. Offices must develop these critical relationships if the Commission is to be an effective civil rights enforcement agency serving the nation as a whole. Developing these relationships will require ongoing discussions and responsiveness on the part of field leadership and may not produce immediate results. But this outreach is both required by the agency's statute and by the need for effective relationships with its "customers." What happens informally often will matter more than what is done in response to formal requests for training or speaking opportunities. Moreover, the Commission must use media effectively to explain to the public the purposes of litigation and other enforcement efforts. Office LEPs should specify how outreach will be used to accomplish LEP objectives and overcome barriers that have caused some groups to be under-represented in that office's enforcement activities.
In many offices, the PCHP has facilitated a marked reduction in the average caseload per investigator. This progress should enable field investigative resources to be focused on developing significant cause cases addressing issues identified in the NEP and the reconfigured LEPs. Due to the continuing high volume of charges and lean staffing, however, investigator caseloads are still too high in most offices. This report includes a number of recommendations designed to build upon the successes offices have achieved in beginning to reduce their inventories. It is important that inventory control be viewed as an ongoing process and not a one-shot project to be done when the caseload has led to unacceptable delays in the processing of charges. The entire team must be pursuing the same unified goal of a strategic case process that dismisses the non-meritorious cases as soon as possible and develops the strongest ones with the same efficiency. The agency also needs to standardize definitions so that there can be coordination between offices, appropriate support provided and common inputs collected in a national database.
The President's proposed budget for FY 1999 includes 14.5 million dollars for inventory reduction. This budgetary increase, along with the other increases included in the Administration's proposals, will provide the staff needed to greatly reduce the agency's inventory and improve our customer service.
After the NEP and PCHP were implemented, there was a temporary decrease in the number of cases settled or litigated. While some decrease might be expected with a new program, the importance of a consistent enforcement program and the size of the reduction caused concern. Even as many offices made significant progress in reducing their charge inventories, the development of strong cases appears to have been neglected by some offices. The Task Forces believe that the Commission cannot afford to trade off inventory management for development of significant cases for resolution through litigation or settlement. Nor can it focus only on the development of significant cases to the exclusion of efficient case processing. Both functions are critical to the success of the agency, and field offices must balance the emphasis placed on each function, just as they must balance staffing resources between attorneys, paralegals, investigators, administrative and support staffs.
The distinctions between "enforcement" and "legal" units that historically have separated the investigatory process from the court process in this agency are no longer meaningful and inhibit effective charge processing and litigation. All staff in field investigative and legal units are devoted to the Commission's enforcement mission. Each office must recognize that a successful enforcement program necessarily includes a successful litigation program as well as an efficient charge processing system. In fact, well-publicized and appropriate litigation or settlements send an enforcement message that should deter other violations, raise the credibility of the entire office, and enhance its ability to investigate and conciliate other significant cases. Based upon the recommendations of the earlier CPTF, increased involvement from attorneys in a collaborative charge handling approach has improved the process in most offices. Recognizing the artificial distinction between "charge processing" and "litigation development," the two Task Forces have worked together to create a unified report that addresses the entire enforcement process from intake to appellate decisions. For the recommendations in this report to bear fruit, it is essential that the Commission, OGC and OFP work closely together in overseeing the report's implementation.
In sum, the Task Forces believe that the budgetary constraints under which the Commission has been forced to operate over the past 20 years has adversely affected the effectiveness of our agency's enforcement program, including our ability to process charges timely and efficiently. The implementation of the PCHP has led to a dramatic decrease in charge inventory and to a more strategic law enforcement program. Continued improvements in charge processing, customer service and in our strategic enforcement program will be limited if the Commission does not receive a significant budget increase. The budget increase proposed by President Clinton will allow the Commission to make significant improvements in all areas of its work.
In an era of budgetary constraints and an expanded workload, the Commission must be as strategic, effective and efficient as possible if it is to succeed. The agency must work to overcome the structural, operational and cultural barriers outlined in this report. Historically, divisions between investigative and legal units have been both structural and "cultural." Prior to implementation of the PCHP, the NEP and the LEPs, there was often considerable pressure on investigators to focus on case closure at the expense of cause case development and litigation. In addition, approximately 85% of the agency's litigation docket consisted of cases based on individual charges. While individual cases should be part of a diversified docket, the limited scope of these charges meant that they could not be developed into cases that would advance the law, affect broad discriminatory patterns or practices or provide relief in cases involving large numbers of people. The effort to develop a strategic, focused enforcement program also was hindered by the fact that the Commission has 24 district and 26 area, local and field offices, operating in a semi-autonomous fashion.
The Task Forces commend the leadership in OGC and OFP for recently taking steps to build bridges across offices in litigating cases and developing enforcement strategies. OGC and OFP also have held regional meetings to address case development and litigation issues. These promising first steps should form the basis for routine partnering, strategizing, and information sharing throughout headquarters and the field. Similarly, the Appellate Services section of OGC and the Policy Development Committee created by the Office of Legal Counsel (OLC) are examples of Commission offices functioning effectively as part of a strategic law enforcement agency.
The ability of the Commission's employees to work together is of paramount importance if the Commission is to be a more effective enforcement agency. Team building encompasses the premise that Commission employees work together, regardless of their job classification, to achieve a common goal -- enforcement of the civil rights statutes which Congress has entrusted to the Commission. Team building was addressed earlier in the original Charge Processing Task Force Report:
The relationship between headquarters and the field, among field offices, and between legal and enforcement staffs must be improved so that communication is encouraged, and second-guessing and fault-finding are replaced by a culture of working together toward common goals. (CPTF Report at 3)
Strategic utilization of legal and enforcement unit staff is both envisioned and required in the Commission's NEP, as well as in the LEPs.
There have been important improvements in teamwork on a number of levels since the PCHP and the NEP were issued. However, in some offices, there still exists a culture where finger-pointing is the response to concerns about office enforcement results. When Task Force members visited field offices as part of our information gathering, we heard from some staff that the investigations unit was to blame for the lack of litigation because investigators need training and continue to focus primarily on resolutions, or that legal does not adequately support the investigation of cause cases and does not respect the work of investigators. For our enforcement program to be successful, it is essential that District Directors, Regional Attorneys, and leaders throughout the agency build a culture where there is joint ownership of the enforcement process from intake to litigation, and joint accountability for results. There is no magic recipe for making an office function as a team, but clearly a good place to start is with District Directors and Regional Attorneys working well together in overseeing the enforcement program in each office. In addition, both District Directors and Regional Attorneys must have an investment in the success of the case processing and litigation programs.
Given the variations among office resources and cultures, the recommendations in this section are designed to provide OGC and OFP and individual offices the flexibility to adopt and implement those techniques which will best allow them to meet the Commission's goal of fostering and improving relationships among staffs while developing cause cases and litigation that support the NEP and the LEPs. Not all recommendations will fit each situation, but all should be considered. Headquarters managers should provide whatever support is necessary to facilitate the accomplishment of this goal.
In the past two decades, the Commission has lacked the resources necessary to become a technologically up-to-date, service oriented law enforcement agency. The PCHP procedural reforms have brought down our inventory dramatically and we have taken the first steps in making needed agency reforms. The additional funds sought by the Administration for FY 1999 will enable the Commission to make even more significant advances in reducing our inventory, providing better customer service, and in developing a more strategic, technically sophisticated law enforcement program.
Headquarters should play a supportive role in assisting the field offices in accomplishing the agency's enforcement mission. In addition, headquarters offices should better coordinate information and reporting requests to the field by first ensuring that the benefit derived from the requested information justifies the expenditure of staff time. Headquarters, while exercising a necessary element of oversight and supervision, must approach the field offices as "customers," and provide that level of service required to enhance the overall effectiveness of the Commission. Headquarters offices have increased the customer service orientation of their work with field offices in recent years. To bring about even further improvements in this area, the Task Forces recommend that each headquarters office develop a Field Support Plan that will describe that office's approach for enhancing the level of service provided to field staff. In developing these plans, headquarters offices should consult broadly with field staff who use their services to identify and implement strategies for improving the responsiveness and accountability of headquarters staffs to our employees in the field. Once the plans are operational, field staff should be asked to evaluate periodically the quality of service they are receiving from headquarters offices.
In order to monitor the effectiveness of the NEP and the LEPs, the Task Forces recommend the creation of a national enforcement strategy group with representation from Commissioners' staffs, OGC, OFP, OLC and field personnel to discuss major policy cases that are under investigation or in litigation. This group should meet regularly to examine the national program, and to develop strategies for effective NEP implementation, recommending adjustments where necessary, filling gaps in the national enforcement effort, and facilitating interoffice collaboration and support. The national enforcement strategy group, which might appropriately be co-chaired by the General Counsel and Director of OFP, would be chiefly responsible for the coordination and support of legal and investigative enforcement units on nationwide class and other multi-jurisdictional class or Commissioner charges would provide guidance on the kinds of cases that need to be developed based on a sound analysis of precedent in the federal judicial circuits and input from stakeholder groups.
Subsidiary cluster groups should be formed with membership from a range of field and headquarters offices to develop statute-specific strategies to address particular discriminatory practices, law development, or implications of significant court decisions. These clusters should include investigative and legal enforcement staffs. Each cluster group should designate a member from the field to represent them on the national enforcement strategy group. By helping field offices implement strong LEPs with realistic goals and timetables, the cluster groups and the national enforcement strategy group will strengthen the efforts of the Commission, OGC and OFP in developing a comprehensive enforcement model for the agency.
OGC and OFP have already begun to work in conjunction with field offices in a number of ways that take advantage of the expertise residing among field and headquarters personnel. Some offices have begun to explore how field personnel in particular geographic regions can work together to enhance their overall effectiveness. For example, staff from OGC and OFP met with the leadership of the Los Angeles, San Francisco and Seattle District Offices (all operating in the Ninth Circuit) to explore how they might more effectively focus on NEP/LEP charges, and to share ideas and techniques for maintaining a manageable charge inventory. OGC and OFP also have coordinated the redeployment of field office staff to work on issues related to case development and litigation.
A continuing issue that requires attention is streamlining the administrative procedures concerning travel and procurement of litigation-related services. Investigative and litigation expenses often arise in response to events beyond the control of the field office (e.g., depositions and other discovery), and must be handled expeditiously and with a minimum of paperwork burden on the staff. Investigative and legal unit staffs should be allowed to devote as much time as possible to enforcement activities rather than administrative procedures or reporting requirements. There currently is a Commission Technology Work Group, made up of field and headquarters staff, that has proposed the purchase of software programs that will dramatically reduce the paperwork and time involved in processing travel and procurement documents. FY 1998 funds and the additional funding for technology proposed by the Administration for EEOC's FY 1999 budget will allow the Commission to make these and other much needed reforms. The Task Forces recommend that OGC, OFP and the Office of Financial Resource Management (OFRM), with field representation, explore additional ways to simplify, streamline, and improve administrative procedures. This group should work with and build upon the work already done by the National Partnership Council Customer Services Work Group, with respect to their recommendations to streamline and improve our travel and procurement procedures.
It should be easy for staff throughout the Commission to tap into the expertise of existing Commission employees in other offices. A helpful start would be to develop and widely distribute directories which provide information about Commission employees concerning their expertise in various legal and technical areas, such as large class investigations or depositions of medical experts. Similarly, the field would benefit from a user-friendly guide explaining the organization and responsibilities of each of the headquarters offices, particularly in light of the recent reorganization. This guide should include sufficient information so that employees needing assistance from headquarters would know whom to contact.
RECOMMENDATIONS
All headquarters offices responsible for assisting field office staff should develop Field Support Plans to enhance responsiveness and accountability to the field. In addition, OGC and OFP should develop a joint work plan detailing how their offices will provide enhanced support to the field in the implementation of the LEPs.
Using the reconfigured LEPs as the critical building blocks for the Commission's national enforcement strategy, a national enforcement strategy group, composed of senior headquarters and field personnel and co-chaired by the General Counsel and the Director of the Office of Field Programs, should meet regularly to examine the enforcement program and to develop strategies for monitoring NEP/LEP implementation, recommending adjustments where necessary, filling in gaps in the national enforcement effort, and facilitating inter-office collaboration and support.
OGC and OFP should form cluster groups including representation from field and headquarters investigative and legal staffs to develop statute-specific strategies to address particular discriminatory practices, law development, or implications of significant court decisions. Each cluster group should designate a member from the field to serve on the national enforcement strategy group.
OGC, OFP, OFRM, and the Office of Human Resources (OHR) should consult with field representatives to explore simplified and streamlined administrative processes.
OHR should develop directories providing information on Commission employees and their areas of expertise. An updated guide explaining the reorganized structure of headquarters offices would also be useful.
The Commission's Office of Research, Information and Planning (ORIP) and, to a lesser degree, the Research and Analytical Services (RAS) division of OGC, both located in headquarters, provide the field offices with expert support services which are particularly helpful in the review of cases involving large numbers of people with regard to data bases, statistical analysis, census information, availability studies, and areas related to industrial psychology and labor economics. While ORIP and RAS can provide valuable pre-litigation and litigation support, the Commission is seeing more cases requiring experts in the field of medicine, financial/accounting and industry-specific areas.
Significant financial resources are required for development of some NEP cases while still in the investigative stage. These could involve retaining court reporter services to record depositions of key witnesses, an expert to create a computer database, a copying service to copy extensive files, or a medical expert in an ADA case. The Task Forces believe that within resource constraints field offices should be given the necessary funds to develop complex NEP cases at the investigative stage.
Historically, field offices have lacked the funding needed to retain outside experts during the pre-litigation investigative or conciliation stages. The ADA has raised this need to a new level given the threshold diagnostic issues which are often present. With the availability of compensatory damages under the Civil Rights Act of 1991, the economic status of employers becomes important to litigation assessments as well as assessments of what, if any, relief could reasonably be expected through settlement. Finally, industry-specific experts may be needed to address issues involving such matters as job qualifications, available accommodations, and industry policies and practices. To the extent that the field staff can access expertise in these areas prior to litigation, unnecessary expenses of discovery and more extensive expert fees may be avoided.
RECOMMENDATION
Pre-litigation expenditures for such things as medical experts, depositions, and statistical analyses are legitimate, and can save time and money in processing LEP charges and avoid unnecessary litigation expenses. In the past, district offices were allocated budgets for systemic case support. We recommend the development of a similar budget for LEP case support, particularly for complex and ADA cases.
An important principle of reinventing government has been the empowerment of staff at the lowest appropriate level coupled with the elimination of unnecessary layers of review. Consistent with this principle, the Commission used the NEP to delegate to the General Counsel the authority to file litigation in all but the most significant cases. Subsequently, OGC redelegated a large portion of that authority to the Regional Attorneys. The Task Forces believe that the delegation of litigation authority was appropriate and has been exercised prudently by the General Counsel and the Regional Attorneys.
The General Counsel did not redelegate litigation authority for cases arising under the ADA. Although there are good reasons to monitor closely the development of the law under the ADA, the Task Forces believe that novel issues under the ADA will continue to be reviewed by the full Commission under the "developing area of law" category that was not delegated by the Commission to the General Counsel. To the extent that Regional Attorneys wish to bring ADA cases in established areas of law for reasons apparent in the LEPs, the Task Forces do not believe such cases need to be submitted to OGC for approval. After five years of experience with the ADA, it is time for OGC to permit Regional Attorneys to exercise their discretion in this area. Requiring offices to prepare presentation memoranda for each ADA case is an unnecessary hurdle that diverts field resources from other enforcement activities. If problems arise, they can be addressed on an office-by-office basis.
RECOMMENDATION
The General Counsel should consider redelegating to all Regional Attorneys the authority to litigate ADA cases consistent with the authority they have been delegated to litigate cases under the other statutes the Commission enforces.
One tool that the Commission uses to ensure the nationwide strategic development of cases in support of its NEP and LEPs is its statutory authorization to intervene in civil actions that are of "general public importance." Recently, the Commission's intervention in several civil actions has come under criticism. Some have questioned whether the EEOC's resources should be spent on cases that already have the benefit of plaintiff's counsel. Others have accused the agency of having insufficient meritorious projects of its own, thereby having to "piggyback" on other parties' litigation.
In reality, the Commission has filed only a small number of interventions. During the past five years, the Commission has approved no more than 30 interventions. At the beginning of June 1997, only seven of the nearly 350 Commission lawsuits were based on interventions. The Commission's intervention decisions in these cases have generally been well-considered and necessary to advance the public interest. Some high profile private lawsuits have been initiated only when it became known that EEOC was engaged in a major investigation. Finally, while private suits often are resolved by confidential settlements, the Commission as a matter of policy makes its settlements public so that the case has the greatest educational value for the public.
The Commission's ability to intervene in a private action is far more restricted than its decision to file a direct suit, both as a matter of law and agency policy. Under Title VII and the ADA, the Commission is required to seek the court's permission to intervene, and must support its request with a certification by the General Counsel that the "case is of general public importance." Pursuant to the Federal Rules of Civil Procedure, the court is to determine whether the intervention will "unduly delay or prejudice the adjudication of the rights of the original parties," and it has broad discretion in making the decision. Similar standards are applied to interventions under the ADEA. Since at least 1980, OGC has had written guidance which sets out the policy factors which would be considered by the agency if a Regional Attorney recommended intervention in a case.
More recently, in 1992, the EEOC set forth standards for Commission intervention in private actions, recognizing the inherent difficulty in articulating precise parameters for such determinations. See Regional Attorney Deskbook at Vol. I, Section VI, p. 30. These standards define "general public importance" as requiring at a minimum legitimate reason to believe that the Commission's presence will make a positive contribution to the litigation, and that the underlying merits of the case present significant issues which are generally broader than the personal claims of an individual aggrieved party, or that some other special circumstances exist to support the General Counsel's assertions that Commission participation is in the public interest.
Moreover, given the Commission's limited resources, decisions to intervene will continue to be very carefully considered. Only where the Commission's involvement adds some unique value to the issues presented in a particular case will the Commission intervene where private counsel is present. Under the NEP, the Commission delegated to the General Counsel the authority to file suit, except in cases which involve major expenditures, address novel legal issues, or appear controversial. Because any proposed intervention would, by its very nature, fall within at least one of these exceptions, the Commission, not the General Counsel, will make the decision on whether to intervene in a particular case. As part of the review process, the Commission will apply to its litigation authorization decision the same intervention criteria adopted by the OGC in its Regional Attorney Deskbook.
While these standards should continue to guide our intervention determinations, the Commission must further acknowledge that the environment of civil rights litigation has changed. EEOC's enforcement efforts coexist, especially in the litigation area, with the considerable efforts of the private bar. Litigation of employment cases by the private bar has grown significantly since the advent of the Civil Rights Act of 1991. The availability of compensatory and punitive damages has resulted in an influx of private counsel into an area of practice in which many have little prior experience. The work of the EEOC arguably is more crucial than ever before in this changing landscape. The Commission's role as the lead civil rights agency charged with advancing the rights of individuals in the workplace is markedly different from that of the numerous private attorneys now entering this arena. While the primary interest of private attorneys is to advance the cause of their individual clients, the EEOC must ensure that its litigation actions also advance the interest of the public at large.
In addition to establishing criteria that encompass the foregoing considerations, the General Counsel should provide specific guidance to the field on the relationship between private counsel and the EEOC in intervention actions. This could perhaps best be done by the creation of model agreements between Commission attorneys and private counsel containing standard language to be required, unless special defined circumstances exist, before intervention is authorized.
RECOMMENDATION
The Task Forces recommend that the General Counsel review, and if necessary, revise the intervention standards to further explain the standards to be applied and to encompass consideration of the Commission's strategic objectives. The Task Forces further recommend the General Counsel devise model agreements between Commission attorneys and private counsel containing standard language that, unless special defined circumstances exist, would be entered into prior to the Commission's intervention.
The commitment of the EEOC to pursue a strategic enforcement program means that it must seek to leverage its resources in the most effective way. The growth in the scale and complexity of the American economy and the resulting impact on private employers reinforces the need for improved coordination and cooperation between and among the Commission's field offices.
Two steps can be taken by headquarters to advance the development of alliances among field offices. First, OGC and OFP should expeditiously distribute information regarding offices' priorities and accomplishments, including successful models of interoffice coordination and special expertise. Second, the Chairman, through the Awards Program and other incentive systems, should recognize offices that have demonstrated the value of interoffice coordination in achieving our mission.
Offices have also varied in the amount and types of litigation programs they have had over the years. Some offices have consistently had high volume programs, with a good mix of class and smaller cases. Others have had periods of large or significant cases and other periods of smaller cases. Lastly, some offices have had a consistent history of having smaller cases to the exclusion of large or significant cases, and a small number have had few cases of any kind.
With the introduction of the NEP, the LEPs and the PCHP, it is essential that a district office's litigation docket include cases with significant impact. However, there are resource issues which have to be addressed so that offices with very limited litigation programs can develop litigation dockets with a good mix of cases that have individual claimants, cases involving a large number of people and significant policy cases.
Field managers have developed informal networks to supplement their often meager resources. The Task Forces recommend that OGC and OFP augment this informal "back channel" system by encouraging headquarters to routinely provide field offices with information to facilitate interoffice communication and cooperation. At a minimum, this information should include each of the LEPs, and a national docket arrayed by office including all commissioner charges, ADEA and EPA directed investigations, and other major investigations. With the development of a uniform format for the LEPs as recommended in the next section, it should become relatively easy to ascertain which offices have identified common enforcement objectives or are pursuing common targets. Of course, all offices should develop a diversified docket so that all of their constituencies are protected and served.
Another method of bridging the gap is to recognize the current informal system of "lead offices" for geographic or issue expertise purposes. This would encourage offices with good track records to serve as mentors to offices which do not have the same level of experience. In addition, this same approach could be used in situations where offices with similar experience but different amounts of resources could work together in developing or trying certain cases. As offices gain experience in litigating complex cases, there may be less need for offices to support each other in this manner. However, until all offices gain the needed experience, the Commission should continue this informal system of resource management.
Just as attorney collaboration with investigators has enhanced our enforcement results at the office level, increased collaboration among field offices enhances the effectiveness of the overall enforcement program. Recently, OGC and OFP tapped expertise in particular field offices to bolster the resources of another office in pursuing a particular case. This type of creative partnering is a good way to build capacity in offices with fewer resources or less experience, and promotes interoffice familiarity and cooperation which can lead to more opportunities for joint projects and informal consulting. Given that our attorney and investigator staffing levels vary from office to office, both in terms of numbers and experience, it is important to "share the wealth" of our top litigators and investigators so that staff in other offices may learn from them and benefit from their expertise.
Office directors should facilitate details for employees for purposes of staff development and interoffice understanding and collaboration. One way to accomplish this would be to designate certain slots as "rotational slots" when they are filled, so that the people hired would be on a planned rotation through different offices. Given the budgetary implications of extended details, this recommendation makes particular sense in the headquarters, Washington Field Office, and Baltimore District Office areas.
RECOMMENDATIONS
OGC and OFP should distribute a regular publication highlighting office priorities, expertise, and accomplishments, including successful models of inter-office collaboration.
The Chairman, through the Awards Program and other incentives, should recognize offices and employees that have demonstrated the value of inter-office coordination to the success of the agency's mission.
OGC and OFP should share information (e.g., LEPs, litigation docket, Commissioner Charge docket) that will enable field offices to understand what the key case development and litigation initiatives are for each of our district offices.
OGC and OFP should continue innovative sharing of staff and office expertise (e.g., lead office concept, rotational slots) among our offices.
Through details and other methods of sharing staff expertise, OGC and OFP should continue their efforts to provide expertise to offices that may lack the staff depth to pursue particular cases through details and other shared reporting arrangements.
After the reorganization of the old Office of Program Operations, the systemic investigations unit was placed under the direction of the Office of General Counsel along with the systemic litigation unit. With much of the Commission's class investigations and litigation currently being developed by field offices pursuant to their LEPs, it is important for the systemic units within OGC at headquarters to articulate how they plan to supplement the systemic work of the field offices. These units at headquarters could be used, for example, to fill gaps in the NEP that the revised LEPs have not addressed sufficiently. Just as the field investigative and legal staffs are being asked to work collaboratively to develop LEPs as contracts to guide their work, it is time for the systemic headquarters units to develop a joint Systemic Enforcement Plan that will set out the enforcement objectives of these units. The Systemic Enforcement Plan should be modeled on the revised LEPs, including sections on outreach and case development. As with the field LEPs, the Systemic Enforcement Plan should be an operational blueprint for the enforcement objectives for the systemic units and should set forth specified results for which they are accountable.
RECOMMENDATION
The systemic units in headquarters/OGC shall jointly develop for submission to the Commission a Systemic Enforcement Plan to establish priorities and goals similar to what is required of field offices in their LEPs.
Field offices' staffing levels must be taken into consideration in setting realistic goals for LEPs. Those characteristics include the number of investigators, the number of attorneys, the availability of attorneys to area and local offices, the support staff available to investigative and legal enforcement units, and the experience and skill levels of personnel across the board. However, the Task Forces believe that every field office can and should have an effective investigative and legal enforcement program that includes a well balanced litigation docket, even within the constraints of existing resources.
While the Administration has proposed an increase in field staff to help reduce the Commission's charge inventory, many of our field offices will experience staff shortages in a number of key areas such as support staff, paralegals and attorneys. In making future staffing decisions, headquarters should take attorney/investigator ratios into account, recognizing that a balance between investigators, attorneys, paralegals and support staff will lead to a more effective enforcement program. Experience has demonstrated that it is significantly more difficult to develop a successful litigation program with only a handful of attorneys in a district office. While some of our most severely understaffed legal units recently received authority to hire new attorneys, the need for a "critical mass" of trial attorneys should continue to guide future staffing decisions. It is important to recognize that a viable litigation program fosters employer interest in mediation and other non-adjudicatory means of case resolution. It should also be recognized that attorneys play an integral part in case identification and charge development in many field offices. There needs to be a sufficient number of attorneys in EEOC's field offices to provide guidance to field investigators while conducting a viable litigation program.
RECOMMENDATION
To the extent practicable, the agency should continue to prioritize filling field positions over headquarters, considering attorney/investigator ratios, along with a recognition that a balance between investigators, attorneys, paralegals, and support staff will promote a more effective enforcement program.
In FY 1997, the agency was able to commit approximately $1.6 million to training, the largest sum dedicated to this function in many years. The Task Forces applaud this initiative, and recommend that training remain a priority for the foreseeable future. Given this substantial commitment, it is imperative to leverage this investment in employee productivity and morale, and in agency efficiency. The Task Forces also commend OHR's Training and Employee Development Team (TEDT) for the exceptional training programs they have presented.
Currently, employees prepare their own Individual Development Plans (IDPs) and seek training opportunities that are useful to their work. Supervisory approval of these plans is based on whether the training will make the employee more proficient in his or her job.
Since the LEPs prioritize strategic enforcement activities, the Task Forces believe that training should continue to be designed to enhance the enforcement capabilities of Commission staff. When IDPs are approved and training is provided for employees, training which clearly advances the enforcement objectives articulated in the NEPs and LEPs should be given priority. In that way, the Commission can assure that its limited resources are being used to achieve its core objectives.
Training priorities should be based on commonly identified needs, both agency-wide and within individual district offices, the nexus between the NEP/LEPs and the proposed training program, and the extent to which the priorities contribute to the development of skills necessary for our strategic approach to developing significant cases. Accordingly, we suggest that, beginning with the next funding cycle, the vast majority of training opportunities be funded only to the extent that they demonstrably improve the quality of the agency's enforcement activities, whether investigative or legal. To be most effective, these plans should be approached on a multi-year basis.
In determining how to most efficiently provide training, it is essential that the Commission assess the cost effectiveness of different approaches. Local training programs generally cost less than regional or national programs, and may be more easily tailored to individual office needs. Local training programs are portable, can be presented at convenient times thereby minimizing disruptions in workflow, and can be used repeatedly for new groups of employees or as refresher or advanced courses for employees who already possess familiarity with the subject matter. A number of field offices have developed their own successful local staff training programs, at times in tandem with local stakeholders such as regional ABA/EEOCliaison committee members or NELA chapters. The Task Forces recommend that information about these programs be shared by OFP with other offices as Creative Strategies. (See Appendix C.)
Locally sponsored training programs capitalize on the expertise of the Commission's own personnel. For example, in-house programs on subjects such as interviewing techniques, and gathering relevant evidence can be delivered by experienced investigators and lawyers. Legal staff should provide regular updates on the statutes enforced by the Commission for investigators and other field personnel. This has the added benefit, in the context of changing law and LEP needs, for regular discussion of substantive law and the cases the office needs to develop. Finally, local training programs reemphasize that regardless of headquarters funding, each district office should provide ongoing training opportunities for agency employees.
The Commission has produced a number of highly successful national training programs. While more costly than local efforts, these programs foster cross pollination of ideas, and informal discussions of programs and initiatives that work to further the agency's mission of eradicating discrimination in the workplace. ( See Appendix C, Creative Strategies, for examples of successful national training programs.) Regional meetings are particularly effective for courses on substantive issues, since the material can be modified to reflect the development of the law in a particular judicial circuit.
Because the Commission's training needs far exceed available resources, the agency must be both strategic and creative in developing training opportunities for its employees. The Administration's budget proposal for FY 1999 calls for an increase in the number of investigators to help with inventory reduction, an increase in technology expenditures and the expansion of EEOC's mediation program. Each of these additions to the Commission's enforcement program will require the Commission to develop substantial training programs to ensure that we will be optimizing our resources.
Task Force members consulted with a number of outside stakeholders including members of the ABA's EEO Liaison Committee, litigating attorneys with civil rights groups, employee organizations, the defense bar, and with EEOC headquarters and field staff on ways to enhance training programs without incurring substantial costs. Many of these stakeholder groups offered to work with the agency to help provide effective training for our staff. The Task Forces appreciate the offer of outside groups to assist in training, and believe that exploring these joint training opportunities is in the best interest of the Commission.
EEOC's sister agencies can be excellent sources of low or no-cost training. The Federal Bureau of Investigation Training Academy and the Federal Law Enforcement Training Center in the past have provided training on interviewing techniques and case analysis. The Executive Office for U.S. Attorneys at the Department of Justice has been an excellent source of training in trial skills and case management. Both the Federal Mediation and Conciliation Service and the Department of the Air Force are well known for the quality of their ADR programs. Some agencies might grant access to their programs in exchange for access to Commission programs.
The Liaison Committees of the ABA Labor Section's EEO committee are comprised of management and plaintiffs' counsel who desire to strengthen their ties to EEOC staff. Many members of this organization are prominent in the EEO bar. Judicious use of these groups and their expertise can substantially further our training efforts. One district office has already tapped its local Liaison Committee for speakers to lead training on topics including "How to Assess Damages," "How to Present Medical Witnesses," and "How to Conduct Onsite Investigations."
Similar expertise is available through most state and local bar associations, which often offer low cost continuing legal education programs that would benefit all levels of Commission staff. Individual members of the plaintiffs' bar constitute a valuable training resource. They possess expertise that the agency can ill afford to ignore. Many are happy to share their talents with EEOC personnel, especially if they can obtain access to Commission programs in return.
The Task Forces strongly recommend that OGC and OFP encourage all District Directors and Regional Attorneys to work in concert with their respective liaison groups to arrange training sessions for their offices on topics of interest to lawyers, paralegals and investigators. Such programs might be delivered on a regional basis to encompass issues of concern or common interest within particular federal circuits.
The Washington Lawyers' Committee for Civil Rights and Urban Affairs has produced training programs for three state FEPAs that cover basic investigatory training and include annotated manuals. The Lawyers' Committee also has conducted many trial workshops on EEO issues. These workshops focus on the acquisition and sharpening of trial skills, and sometimes use federal judges in simulated courtroom settings.
The Task Forces recommend that the Commission explore cooperative ventures with the Lawyers' Committee and other civil rights advocacy groups such as the National Employment Lawyers' Association (NELA). Certain groups have expertise with particular issues such as immigration-related job discrimination, or particular ethnic communities that can enhance access to groups under-served by EEOC. Jointly produced courses and workshops are a productive way to strengthen the local office's ties to neighboring bar and advocacy organizations.
In 1995, the Commission approved several recommendations calling for increased cooperation between the agency and the FEPAs. As a result, the Commission has joined with the FEPAs to create a joint training committee. In addition to pooling scarce resources by sharing the expense of course development, the work of this committee should also result in EEOC and the FEPAs developing a more consistent approach on common issues. The Task Forces believe that these joint ventures hold substantial advantages by working toward common solutions, strengthening ties between respective staff, and laying the groundwork for other cooperative efforts.
This report has identified many ways in which the Commission can leverage its scarce training resources in order to develop a more efficient and productive staff. However, the Task Forces believe that each of these identified resources can in turn be strengthened by a coordinated approach that takes advantage of each opportunity. Thus, we suggest that the Commission's Revolving Fund Division, in conjunction with TEDT, consider establishing an EEOC Training Academy.
By compiling lists of training opportunities and disseminating them to Commission personnel, the Revolving Fund Division and TEDT can assist field offices in identifying quality, low cost training opportunities. These could include introductory courses for new staff, refresher courses for experienced hands, and specialized training for enforcement, legal and investigative personnel to supplement the training efforts provided by each district office. They could include low cost continuing education seminars, as well as more advanced training such as the well-received trial advocacy course developed by OGC and field legal unit staff. The Task Forces applaud the Revolving Fund Division's exploration of how to develop training courses that can be marketed to other Federal agencies, FEPAs, and the bar.
RECOMMENDATIONS
Training opportunities should reflect the objectives of the NEP and the LEPs. Priorities should be based on commonly-identified needs, both agency-wide and within individual district, area and local offices, the nexus between the proposed training and the NEP/LEPs, and the extent to which the proposed training contributes to the development of skills enhancing our enforcement mission.
The Task Forces recommend that headquarters training offices establish an EEOC Training Academy with suggested courses for all levels of employee and explore cooperative training programs with sister federal agencies and with civil rights organizations such as the Washington Lawyers' Committee for Civil Rights and Urban Affairs, the National Employment Lawyers' Association and the ABA.
Field offices, which bear the primary responsibility for training their employees, should explore and develop training opportunities with interested groups including local Liaison Committees of the ABA Labor Section's EEO Committee, state and local bar associations, local NELA chapters, and with the state FEPAs.
As the business and legal worlds adopt and adapt to new communications and information management technologies, EEOC must examine its current status and plan for the future if it wishes to remain a preeminent federal government civil rights agency.
In 1991, former Chairman Kemp initiated the development of an agency-wide Information Resources Management Plan to guide decisions regarding the acquisition and management of information resources. Task forces were charged with identifying short and long term critical information needs.
Despite some promising initial steps including installation of an electronic bulletin board system and a pilot local area network (LAN) in headquarters, the modernization program was hampered by a persistent lack of funds and inattention during the transition to the current Administration. Moreover, in the years since these needs were first identified, the pace of technological innovation has advanced so rapidly that previously identified goals and objectives have been rendered obsolete.
Under former Chairman Casellas' leadership, considerable progress has been made in the development of a comprehensive information resources management plan, and in the acquisition of information technology. Key network applications have been installed in headquarters and in many field offices, and the agency opened a homepage on the World Wide Web, providing direct public access to Commission documents and informational material. The Commission finally achieved its long term goal of acquiring a desktop computer for each employee. Unfortunately, because purchases were spread over a number of years, the desktop equipment varies in specifications and capabilities, further impeding plans to upgrade the agency to a state-of-the-art computer operating system.
Last year, the Commission established an agency-wide Technology Steering Committee (TSC) to address and determine the Agency's technology needs, long-range information management plans, and system development priorities. TSC serves as an advisory group to the Chairman on technology planning and resource allocation decisions, and functions through its subcommittees on data information needs, FEPA technology, software standardization, and the roles and training of computer specialists.
The Commission also has deployed a new Charge Data System Legal Case Management System (LCMS). This application runs on the Charge Data System (CDS) computer and is currently installed in all EEOC district offices. The major feature of LCMS is that it can be used both to manage various investigative and legal unit activities and produce reports needed to provide OGC and OFP with sufficient data required for monitoring nationwide enforcement activity. In addition to producing regular productivity reports, LCMS can also be used to create the day-to-day reports for use in the field, such as case history summaries and tickler (assignment) logs.
While allowing legal units to pull in current CDS data to avoid reentry of current charging party and respondent information, this "bridge" to the Integrated Mission System (IMS) enables administrative and legal units to correct or modify charge data, including changes in case categorization under the PCHP. It enables the field offices to store data concerning charging party allegations in a new format that structures statute, basis and issue data in a way that facilitates investigation and litigation preparation. LCMS also allows field offices to associate more than one charge to each case, overcoming an existing barrier to linking charges together to form a single case. While LCMS represents a significant improvement over the current CDS, field personnel cannot directly access the national data base, and because the agency lacks connectivity, inter-office requests for data and data analysis must be channeled through headquarters.
Despite this progress, the Task Forces' consultations with field office personnel revealed several areas of continuing concern. The continued lack of a fully integrated information system requires the field to respond to sometimes conflicting and overlapping data requests. Offices find it difficult to purchase "off-the-shelf" software for data analysis and case management because of possible incompatibility with the proposed integrated system. OIRM personnel are stretched so thin that some offices lack even rudimentary training on the limited technological resources currently at the Commission's disposal. These concerns are being addressed by TSC and its subcommittees in the coming months.
Without minimizing the substantial gains made in the past few years, the Task Forces have been concerned that the Commission's technological focus has been limited to data processing and management, with insufficient attention being devoted to identifying and deploying on-line tools that can enhance the efficiency and productivity of the Commission's employees. Perennial budget shortfalls have forced the agency into the unpalatable choice of maintaining adequate staffing levels or developing the technological infrastructure to support its enforcement activities. An infusion of funds earmarked for technology would enable the agency to complete the deployment of the local and wide area networks, install collaborative systems such as Groupwise or Lotus Notes, and complete the integration of mission data with administrative, financial and personnel information. A document management and retrieval system would permit searchable access to investigative reports, briefs, motions, and pleadings now scattered throughout our many offices, and would allow offices to work together on cases while minimizing travel expenses. These steps would enhance inter- and intra-office communication, eliminate unnecessary bureaucratic and administrative hurdles, allow for greater sharing of information and expertise, and perhaps even provide enhanced training possibilities through easily shared interactive computer modules. These productivity gains should speed charge investigations and improve the agency's ability to manage its inventory, allow for more focused case evaluation and development, and promote the essential transformation into a strategic, national law enforcement agency.
The Administration has proposed an additional nine and a half million dollars for technology for the Commission in FY 1999. This increase in funding will enable the Commission to introduce some of the much needed changes described above. The additional funding for the Commission set forth in the President's budget for FY 1999 will enable the Commission to develop a more effective NEP that provides, through technological advances, enhanced customer service and greater sharing of information among our offices.
RECOMMENDATIONS
To ensure that the Commission's technology initiatives leverage our limited staff resources, the Task Forces recommend that the TSC consult with a broad spectrum of Commission employees to gain a thorough knowledge of our work and procedures to guide the design and development of a useful technological infrastructure. The Task Forces encourage the TSC to consult with similar federal agencies that have recently installed or upgraded their computer systems.
Should Congress authorize the funds recommended by the President in the budget he proposed for the Commission in FY 1999, the Task Forces recommend the continued integration of our mission and administrative systems, along with the earliest possible implementation of collaborative tools, including completion of the local and wide area networks, litigation and document management systems, and universal access to the Internet.
The Commission, by approving its NEP in 1996, established a nationwide policy for strategic enforcement. The LEP is the foundation of the Commission's strategic approach. As originally envisioned by the Commission, the LEP should set forth each district office's strategy for: (1) prioritizing local issues to be pursued through investigations or judicial enforcement; (2) maintaining a manageable inventory of charges; and (3) addressing the needs of under-served communities through outreach and education. However, due to a number of factors, the LEPs have been of limited utility as tools for strategic development of district office activities or for establishing the Commission's policy on a local level. The current LEPs vary greatly from office to office and do not serve as a reliable or effective tool for charting the strategic course for the agency's enforcement program. The LEPs as currently designed and utilized should be recast to better assist offices in establishing enforcement goals that must be realized.
The LEP as designed will act as an operational, strategic contract between a district office and headquarters that details specific goals and measurable results that the field offices must meet. The key to the agency's new approach under the PCHP and the NEP is balance, and the LEPs are intended to assist the offices to use strategic resources to pursue cases that have the greatest impact on discrimination, to efficiently reduce the inventory of weak cases, and to identify the types of outreach and education that would have the greatest impact on the agency's mission. This section sets forth recommendations on how to strengthen the LEPs and transform them into truly operational enforcement blueprints.
Under the NEP, each LEP is to contain "specific goals and objectives...tailored to reflect the legal and factual issues specific to the communities served by each office, as well as each office's resources" in the above three areas. LEPs also are to include an implementation document that "describe[s] the local office's strategy for utilizing its resources and gives] Headquarters information critical for planning, staffing, and the allocation of resources to the field." The implementation document, as initially set forth by the Commission in the NEP, was specifically required to:
"(1) prioritize and justify the issues identified in the LEPs as to severity and need for local impact, taking into account industries, constituencies and geographic areas involved;(2) identify pending charges/suits or proposed charges/suits, which fall within the local priority list and indicating those that would have the greatest impact;
(3) identify which of those current charges/suits can be pursued with available resources, as well as others that could be pursued if additional resources were available; and
(4) describe how the plan results will be achieved, including time lines."
The agency's first generation of LEPs has been in place for over one year, but it is clear that they have not consistently served the purpose intended by the Commission in the NEP. The LEPs are so different in format that they are difficult to use. In addition, some viewed the LEP as an aspirational document, while others treated it as a contract for performance.
The diminished utility of the LEPs was due in large part to the fact that this was a new approach to strategic law enforcement and headquarters did not provide sufficient guidance. Field offices were not given specific guidance regarding their length or format, and there were no benchmarks established. Some examples of the type of information that should have been included are:
Subsection (1): "Our third priority is to develop national origin harassment cases in the retail industry based on information from constituency groups that...."Subsection (2): "The case with the largest impact is a commissioner charge against XYZ Corp. involving priority issue number 1. It will probably have a large influence on the industry by establishing that a particular practice violates Title VII and will result in a change to the company's leave policy. Potential relief of $1M for 30 people."
Subsection (3): "We can pursue all the cases listed above in Subsection B, except as follows:
The legal unit cannot file suit against ABC at this time because.... We cannot develop the QRS charge this year because...."Subsection (4): We anticipate completing the charges and suits listed above in subsection B, as follows :
By third quarter:Cause findings will be issued in the following charges:
Discovery will be completed (or trial is scheduled) in the following suits....
A number of other unforeseen factors also made the LEPs more difficult to utilize for field and headquarters offices charged with assessing LEP effectiveness. First, the agency's data base needs to be modified to closely track LEP charges and suits. Second, OFP and OGC have used different formulas for reporting the amount of benefits obtained by individuals as a result of the agency's enforcement efforts. As a result, it is not possible to capture accurately the total monetary benefits recovered by LEP activity. (See Appendix B, Reports and Common Definitions Required for LEP Activity).
Another factor that has limited the effectiveness of the LEPs is that the measures used to assess office performance are not directly linked to LEP activity. Historically, the agency has measured its success simply by counting objective factors. This measurement of performance is inadequate today because: (1) the indicia largely focus on numerical assessments related to processing of the general inventory (e.g., the overall cause rate, the number of merit factor resolutions, the number of resolutions, pending inventory, number of suits filed, number of class suits), rather than on NEP/LEP activity (e.g., the development of charges/suits with NEP issues, the development of NEP/LEP charges, etc.); (2) the agency measures interim processing activities (e.g., overall cause rate, etc.) and does not include the results obtained remedying discrimination (e.g., overall back pay, number of persons receiving benefits, the value of prospective and other types of relief, changed discriminatory policies and quality of results); (3) OGC and OFP measure different things, rather than agency-wide indicia that apply to our field office investigative and legal units collectively; and (4) there is no minimum set of performance indicators that an office must meet to be deemed successful.
A major challenge for the agency is the development of better methods to assess whether we are accomplishing our mission. Measuring the reduction of inventory is important, but it must be balanced with the results obtained from the resolution of LEP cases. Ultimately, it is not the raw number of cases processed, but the effect of those cases on discrimination that is most important. We must determine how to evaluate the impact of our enforcement on changes to discriminatory practices in the agency's new era of strategic enforcement. It is the Task Forces' strong belief that defining and measuring the appropriate outcomes and results of NEP/LEP implementation are key factors that will steer us organizationally toward our mission's goals. Every EEOC office, regardless of its size, experience level, or amount of available resources, must be held responsible for producing a balanced enforcement program, which includes managing its case flow and producing effective settlements and litigation.
OGC, OFP and our field offices are now in the process of recommending revisions to the format and type of information that should be contained in the next round of LEPs. The Task Forces have carefully considered this issue after receiving considerable input from agency staff and external stakeholders. What follows are some observations and recommendations on this topic.
As a change from past practice, Commission review of the LEPs is important for both practical and symbolic reasons. It provides a clear statement of the importance placed on the LEPs, which are developed on a district by district basis. The Commissioners are able to contribute to the LEP review process based on the diversity of their geographic, professional and demographic backgrounds. Historically, it has been hard for the Commission to adequately make use of this resource, and it was under former Chairman Casellas that the involvement of Commissioners in strategizing management approaches has helped propel the Commission to greater possibilities and organizational flexibility.
While some are concerned with whether the review of the LEPs represents "operations" or "policy," nonetheless, if the Commission views the LEPs as providing the direction for the agency's enforcement program, then the Commission should take responsibility for that direction by both providing input into the development of the LEPs and reviewing them. Although it is true that the LEPs address issues vital to Commission operations, it is also true that these documents set forth a framework that will guide how local enforcement decisions will be made. To the extent that the Commission continues to vote on individual cases from individual field offices that have strategic significance, it is logical that the Commission would review the documents that will guide which individual cases make their way to the Commission. If the LEPs are to assume the heightened role contemplated in this report, it is appropriate and desirable for them to bear the stamp of Commission review.
Comments from District Directors and Regional Attorneys suggested there was a consensus on the need for more consistency in the formulation of LEPs. Opinions among the District Directors and Regional Attorneys were mixed regarding whether to modify current plans or to start over with a completely new document. It was clear, however, that maintaining the status quo was untenable. It was generally agreed that LEPs, in order to serve the Commission's original intent, must provide concrete, realistic information in a synthesized form that can easily be digested by the intended readers. OGC and OFP are currently considering modifications to the LEP format, and it is hoped that they will submit these recommendations to the Commission for review in the near future.
The Task Forces agree that there should be a uniform LEP format to make the document more useful. Some of the factors the Task Forces think should be included in the new format are:
The District Directors, in a joint memorandum to the Task Forces, state that the LEPs should contain "goals, objectives and benchmarks" and that the information included in the LEPs should "provide mechanisms for evaluating performance which will be updated and reviewed annually." The Task Forces concur with the District Directors' suggestion that LEPs can be a valuable tool for evaluating performance of our field offices on LEP-related matters.
The Task Forces agree that LEPs should be individually developed taking into account an office's strengths and weaknesses. We reject the "one size fits all" approach to the planning process. To require LEPs that compel the same level of performance in all areas would fail because of the differences in our field offices in terms of staff, demographics, resources, and other characteristics. Although discussed elsewhere in this report, it bears repeating here that the performance of field offices under their LEPs will be enhanced by improving headquarters ability to provide leadership, planning, resources and other support for the field.
The Task Forces also believe that it would greatly assist the agency at all levels to have a more accurate process for evaluating an office's performance by building into each LEP a set of indicia for success that applies not