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Meeting of March 20, 2013 - Development of a Quality Control Plan for Private Sector Investigations and Conciliations

Written Testimony of Elizabeth Kristen
Legal Aid Society-Employment Law Center

Good morning.  I am very pleased to be here today to discuss the important issue of improving EEOC's intake, investigation and conciliation processes for low-wage, immigrant and underrepresented workers.

As you may know, our organization, the Legal Aid Society-Employment Law Center (Legal Aid) was founded in 1916 and is the oldest legal aid organization in the West. Beginning in the 1970s, we began focusing our efforts on eradicating employment discrimination and other employment barriers facing the working poor. We recognize that affording people the opportunity to obtain employment, provide for their families and work with dignity is a critical aspect of ensuring the economic stability of working families. Through our six program areas: Community Legal Services, Disability Rights, Gender Equity & LGBT Rights, National Origin, Immigration and Language Rights, Racial Equality, and WageHelp, we serve thousands of low-wage workers throughout California (and nationally) to vindicate their employment rights.

Among other employment issues we address (such as wage theft and family medical leave), we advise workers regarding retaliation and employment discrimination and harassment on all of the bases within the jurisdiction of the EEOC-race, color, sex, pregnancy, disability, religion, national origin, age, and equal pay.

Through our Community Legal Services Program, we provide in-person advice and counseling to low-wage workers in the Bay Area, Fresno and Orange County. We also offer telephone advice and counseling through our clinic and our many helplines (such as the Work & Family helpline which responded to more than 1500 calls last year from Californians with questions about their rights regarding pregnancy and family care leave). We represent workers in administrative proceedings such as filing charges with the EEOC (and our State agency the Department of Fair Employment and Housing (DFEH)). We also represent workers in EEOC and DFEH mediations, investigations and conciliations. We litigate cases in state and federal court on both an individual and class basis at the trial level and on appeal. We also participate as amici in employment cases before the U.S. Supreme Court, the Courts of Appeals and the California Supreme Court. Finally, we conduct community education and outreach by providing trainings to community-based organizations and unions. Our website also provides informational materials in English, Spanish, Chinese, and American Sign Language.

The recent economic downturn has had a devastating effect on low-wage workers. Many of our most vulnerable workers: those with limited English proficiency, those who are undocumented, those with disabilities, and those who are pregnant are bearing the brunt of increased discrimination and harassment. Because of the broad scope of our representation and our special expertise in addressing the concerns of low-wage workers, we are keenly interested in the efficient and quality functioning of our federal civil rights agencies such as the EEOC. Without vigorous and effective EEOC enforcement, many low-wage workers' claims will fall through the cracks because their cases are extremely unlikely to be advanced by the private bar. Our nation's treatment of the most vulnerable workers among us is a bellwether for our economy and the EEOC must be a leader in advancing the rights of these workers.

Based on our experience over the past four decades, we offered a number of suggestions for quality and efficiency improvements in the EEOC's intake, investigation and conciliation process.

Intake

The EEOC intake process provides a critical role in combating employment discrimination. However, many, if not most, low-wage workers face tremendous hurdles in accessing the EEOC's intake services.

1. Geographic Distribution of EEOC Offices.

Despite the size of the state of California, the EEOC has concentrated three of its field offices in the Bay Area. Rural California is woefully underserved by the EEOC. We propose that the EEOC consolidate its Oakland office with its San Francisco office and utilize the savings in office efficiency to open a new office in Sacramento or the northern Central Valley. If the EEOC is not able to open a new office, it should utilize its existing approach of sending teams to Reno to develop a systematic approach for outreach and on-site intake in rural California.

2. Intake Hours.

While we applaud the EEOC's commitment to in-person intake hours (something that our State Agency has unfortunately eliminated altogether), we are concerned about the limited hours available. In the San Francisco office, intake hours are Tuesday-Thursday 8:30 a.m. - 3:00 p.m. Many low-wage workers cannot take time off during the day to go to the EEOC office. Moreover, we have heard of some workers who have traveled long distances to reach the EEOC San Francisco office, only to be turned away because they arrived after 3:00. We propose that the EEOC offer extended intake hours at least one day a week to accommodate those workers who are unable to make it to the office during business hours. The EEOC should consider offering local office telephone intake as well.

3. Understaffing and Retention.

We are seriously concerned about the drastically reduced enforcement staff at the San Francisco office. We understand that since 2009, the number of investigators has decreased from 16 to 6. Given the crushing backlog with respect to investigations, the decreased staffing at the San Francisco office should be remedied immediately. Moreover, the EEOC must solve its longstanding retention problem for investigators at the San Francisco District Office.

4. Language Access.

California and the Bay Area are made up of a vibrant mix of immigrants from many cultures who speak a variety of languages. In the Bay Area, there are a tremendous number of low-wage workers who speak Spanish, Cantonese, Mandarin, Vietnamese, Tagalog, and other languages. However, the San Francisco EEOC office does not have a single investigator who speaks Cantonese, Mandarin, Vietnamese, or Tagalog. Even the number of Spanish-speaking investigators (we understand there are three of them) is insufficient to the needs of California. The EEOC must hire additional bilingual investigators and pay special attention to increasing the language skills available at the San Francisco office and the cultural and racial diversity of the investigators.

5. Sexual Orientation and Gender Identity.

As the EEOC has recognized that sexual orientation discrimination is sex discrimination and that transgender and gender nonconforming individuals also are protected by Title VII, we want to ensure that members of the lesbian, gay, bisexual, and transgender (LGBT) community know that their charges are welcome at the EEOC. While we were pleased to see that the EEOC updated its website to clarify that charges alleging gender non-conformity discrimination and harassment will be accepted by the EEOC, the EEOC must immediately train its intake staff to ensure that members of the LGBT community can readily and easily file their charges with the EEOC. The Agency needs to conduct more outreach and education to the LGBT community.

6. Support for Undocumented Victims of Employment Discrimination.

Some of our most vulnerable workers are undocumented. While, as a law enforcement agency, the EEOC has the authority to provide certifications in support of U visas for undocumented victims of certain forms of employment discrimination (such as victims of sexual assault on the job), the EEOC has not adopted a uniform and swift procedure for processing these certifications. For example, my office represents a woman who was repeatedly raped at work. Although she filed a charge with the EEOC in 2009 and sought a U visa certification, the EEOC failed to issue the certification and still today no such visa certification has been issued.

In addition, the EEOC is extremely unwilling to provide the necessary certification in T visa cases. The EEOC is not willing to fill out the Form I-914B in T visa cases. In fact, they only (reluctantly) provide a written declaration (not a Form I-914B) despite the fact that the Department of Homeland Security strongly encourages agencies to fill out form I-914 B. T visas are critical to our clients because, it is easier to obtain California (under SB 1569) and federal public benefits in T visa cases than in U visa cases. Additionally, the client can obtain public benefits more quickly. There are also fewer applications, and the adjudication is faster. Finally, there is greater protection for derivative/family members including parents and siblings of adults where there is imminent danger of retaliation. The EEOC should implement a policy of completing the Form 914B for T visa cases.

The EEOC must identify a national point person for ensuring that requests for U and T visa certifications are processed in a timely manner. EEOC enforcement and legal staff should prioritize these U and T visa certifications and issue them swiftly. We believe that the position of Immigrant Workers' Team Leader position held by Lucy Rosas is critical and should be continued. Moreover, EEOC investigators and legal staff should be required to contact her whenever there are immigrant worker issues or cases involving U or T visa issues so that she can help expedite the process, and there is uniformity in handling these cases.

7. Pressuring Charging Parties to Request Immediate Right to Sue Letters.

In some instances, investigators have pressured charging parties to request immediate right to sue letters rather than initiating an investigation. We understand that there are two reasons for such pressure. First, there is a tremendous backlog and investigations are taking 18-24 months to even begin. Second, investigators' and supervisors' work performance is being assessed by how many cases are closed. We understand that there are even monetary bonuses associated with case closure numbers. In one of our cases, a charging party with a very strong sexual harassment claim was told by an investigator to ask for her right to sue letter. When she came to our Workers' Rights Clinic, we identified her case as one that involved egregious sexual harassment and assault. We contacted the District Director and asked him to rescind the right to sue and open an investigation. While he did so, we were able to resolve the case before the EEOC even began its investigation.

Investigators should be trained that as a default, they should accept all charges for investigation. We have a number of suggestions for triaging cases and for changing performance measures for investigators.

8. Cross-filing with DFEH. Because there are a number of provisions of California law that are more protective than federal law, but over which the EEOC does not have jurisdiction, there is not a clear way to ensure that these claims are preserved in an EEOC filing. For example, if a client has a pregnancy claim that would be covered by the federal pregnancy law, as well as a claim covered by our more protective state pregnancy law, if the client files only with the EEOC, it is not clear that her state claims are preserved, even with automatic cross-filing. The EEOC and DFEH should work together to address this problem and develop a protocol to ensure that state claims are preserved when the charging party files with the EEOC.

Investigations

The EEOC's investigative process lies at the heart of its mission and many of its investigators are smart, hard working public servants who are deeply committed to the agency's mission. Yet the investigators are overwhelmed with cases and the system is clogged with old cases. Investigators are required to wear many hats, serving as intake officers, investigators, fact finders, and conciliators. The performance measures that the Agency uses for investigators overemphasize closing cases at the expense of prioritizing meritorious cases. While we believe that there is tremendous room for improvement, the EEOC investigators are far more trained, skilled and competent than most of their DFEH counterparts. For many types of cases, we actually prefer to file with the EEOC.

1. Failure to Appropriately Triage Cases.

While we understand that under EEOC's strategic plan, certain cases are to be prioritized, our experience is that all of our cases are put "in line" and an investigation does not even begin for 18-24 months. By the time the investigation starts, the case has grown stale and EEOC has lost an opportunity to quickly move to investigate allegations of discrimination, harassment and retaliation and enforce the law. While we understand that the EEOC has a priority charge handling procedure (PCHP) system, that procedure appears to only be used to close weak cases.

In one of our individual disability cases, we filed the charge in 2008 and the investigation was not completed until 2011. Although we repeatedly followed up with the investigator, she indicated that our case was "in line" and not at the top of her priority list and would not move the case forward. Even when we told her that our client had cancer, the case did not move quickly. That case is still pending at the EEOC in 2013 and thus has been with the Agency for five years.

The EEOC must reinvigorate its case grading system and ensure that its "A" case grade means that the case will move swiftly into investigation. "A" cases should be immediately assigned to investigators and one person nationally should be assigned to track the time it takes to move "A" cases from intake to conclusion of the investigation. We recognize that not all investigations will take the same amount of time. However, most "A" case investigations should be completed within three months. Moreover, the EEOC should move towards better identification of "C" cases and create a unit to work to review and close them.

2. Lack of Knowledge Regarding Certain Types of Claims.

Some investigators are not knowledgeable about the legal principles underlying certain types of claims such as disability discrimination. In one instance, my office was unable to convince the investigator regarding the correct application of the ADA to our client's case and the case was closed "no cause." Similarly, some investigators refuse to investigate incidents of harassment that occurred earlier than 300 days before the filing of the charge, despite the Supreme Court's continuing violations doctrine. It might be beneficial for certain investigators to specialize in some of the more complex areas of law. This specialized expertise is particularly important in an office that has high turnover such as San Francisco.

3. Reassignment of Cases to Investigators.

Because of the staffing and turnover problems, cases are often reassigned multiple times. This reassignment is inefficient and frustrating for charging parties. Files have even been misplaced because of reassignments. The EEOC should retain its investigators and rarely reassigns cases.

4. Pressure on Investigators to Close Cases at the End of the Fiscal Year.

Almost like clockwork, in the months of August and September, we hear from investigators about case investigations that had lain dormant for months. Investigators call or email us and insist on making appointments with our clients in order to close their cases before the end of September. The process appears haphazard and numbers driven and is quite frustrating.

If the EEOC eliminates case closures as a performance measure, the pressure to close cases by the end of the fiscal year will lessen. The EEOC should adopt metrics for investigators that actually measure what the EEOC's mission and strategic plan encompass. For example, if the EEOC is prioritizing systemic cases, then investigators should be encouraged to spend their time on systemic investigations and performance measures should reflect that priority.

5. Failure to Protect Witnesses.

In workforces where retaliation is a real and reasonable fear, the investigator may only speak to management witnesses. In one of our cases, two current employee witnesses were willing to speak to the investigator to corroborate complainant's racial harassment claims, but only if their names were not revealed to the employer. The investigator declined. The EEOC should implement a policy for granting anonymity to witnesses who wish to remain anonymous for fear of retaliation.

6. Failure to Protect Charging Parties.

In some workforces, charging parties legitimately fear retaliation for reporting discrimination and harassment to the EEOC. The EEOC must be prepared to move quickly, including seeking emergency relief from the Courts, to protect vulnerable charging parties. Conciliations

The conciliation process is the culmination of years worth of investigation and investigators generally "run the show" during the conciliation process. However, investigators' ability to actually negotiate a settlement during this process is quite limited.

1. The Absence of a Neutral.

While we understand that conciliation is required, it is generally ineffective for settlement because of the absence of a neutral. The conciliation process should be changed to involve a neutral who can facilitate meaningful settlement discussions.

2. EEOC Fails to Seek Full Value for Cases.

In our experience, the EEOC undervalues cases at the conciliation stage. For example, the EEOC often uses the Title VII damage caps as a measure of all damages for a charging party regardless of whether additional damages are available. Moreover, the EEOC will not seek back pay for undocumented workers despite the fact that these damages are available to those who are undocumented. The EEOC should train its investigators in how to assess damages and seek full value for cases that are in the conciliation process.

3. Conciliation Takes too Long.

It takes the EEOC a long time to schedule conciliation conferences. Moreover, in a number of cases, the EEOC has failed to complete conciliation conferences to its satisfaction and has "re-opened" conciliation. The EEOC should train its investigators in how to conduct conciliation quickly and correctly the first time.

Other Issues

1. EEOC Files are Difficult to Access.

Although we request our clients' EEOC filed promptly after the right-to-sue letter issues, it takes the EEOC a long time to provide the file. Given the short 90-day window we have within which to file suit, we need the EEOC to provide files more promptly. The EEOC should provide the file within 14 days of request.

2. Review of DFEH Findings.

The EEOC process for review of DFEH findings is little more than a rubber stamp process. In addition, in one case when we asked the EEOC to review DFEH findings, DFEH sent the file to EEOC, without keeping a copy. EEOC said they never received it. No one had a copy of the file. In cases where the complainant has specifically identified causes of action that were not investigated by DFEH, EEOC should automatically review the DFEH's findings and conduct the necessary further investigations. The EEOC also should include as a part of their "review" procedure a request that DFEH retain a copy of the file when it forwards it to EEOC.

3. TAPS.

The EEOC's Technical Assistance education conference for employers is effective and well attended. However, it only occurs once a year and there is no similar conference for employees. The EEOC should enhance and expand its public education efforts for employees, especially the most vulnerable workers.

4. ADR.

In the past, the EEOC's ADR unit was accepting and resolving a number of our cases. In recent years, however, very few of our cases are moving into ADR. The EEOC should reinvigorate its ADR efforts, especially for "B" charges.

Conclusion

The EEOC plays a critical role in vigorously enforcing our nation's civil rights laws. We are pleased that the Commission is focusing on improving quality in the areas of intake, investigation and conciliation.

Thank you for the opportunity to testify today.