Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan
TO: Strategic Enforcement Plan Work Group
FROM: John C. Hendrickson
Regional Attorney, Chicago District
SUBJ: Comment on the Drafting of a New Strategic Enforcement Plan
DATE: June 19, 2012
I am submitting this short statement and the attached paper to your Strategic Enforcement Plan Work Group in response to your June 6, 2012 e-mail invitation to comment. The attached paper, “One Regional Attorney’s Perspective on the Context of EEOC’s February 2012 Strategic Plan,” was delivered at the University of St. Thomas Opus School of Business Multicultural Forum on Workplace Diversity program entitled “A Time for Innovation” on March 22, 2012 at the Minneapolis Convention Center. The paper is both EEOC historical background for and the genesis of the comments which follow.
What your work group does will have an enormous impact upon whether the EEOC continues to move in the direction of strategic and effective realization of the American dream of fair play on the job memorialized in Title VII of the Civil Rights Act of 1964 and the other federal statutes we enforce. It does not appear to be a “given” that we will continue to move in that direction. We hear other voices, with increasing volume, saying that EEOC engages in “too much” litigation and that the twin supports of our litigation program—delegation of litigation authority and Regional Attorneys reporting solely to the General Counsel (“bifurcation”)—should be rescinded.
We have been down that road before, notably during the tenure of Clarence Thomas as EEOC Chairman. Then, about the only things “strategic” or “systemic” about our operations were how effective our processes were in maintaining an enormous backlog of rapidly aging charges and bottling up litigation through the processes mandated for litigation authorization and Regional Attorney reporting. Commentators did not apologize for ridiculing our enforcement efforts and stating that we as an agency were “irrelevant.”
We have become a dramatically different agency and our stakeholders, employers, and employees now take us seriously as a law enforcement agency. They take us seriously because our results compel it. Those results are the product, first, of a more recent paradigm for the development and conduct of litigation: A paradigm in which Regional Attorneys, with “boots on the ground” in their local jurisdictions, occupy a position of full legitimacy—not subservient to District Directors—with direct reporting responsibilities to “their” Presidential appointee, the General Counsel.
The results are the product, second, of the delegation of litigation authority which enables Regional Attorneys and, in appropriate cases, the General Counsel to approve and conduct litigation. This means that those with the most knowledge of potential litigation vehicles—the risks and benefits, the significance in the jurisdiction—are making the decisions about whether or not to file suit, and, if suit is filed, how to conduct the litigation. It means that litigation decisions are made with a high degree of seriousness and professionalism and accountability, free of politics, and are not embroiled in the kind of nit-picking, second-guessing, and back seat-driving which once plagued the litigation authorization process.
Those who would argue for the reversal of delegation and bifurcation carry an impossibly heavy burden. They must demonstrate that the course they propose—which must necessarily be closer to that of the Thomas years—is a better, more effective course toward realization of the mission. That is the case which those who propose such regressionary change must make. But it is a case that cannot be made.
Finally, although it is implicit in the foregoing, it should be stated explicitly that any Strategic Enforcement Plan, in addition to recognizing bifurcation and delegated litigation authority, should state that litigation itself is the bedrock of agency enforcement. If there is no expectation of litigation in the wake of discrimination, then discrimination shall surely flourish. More than that, there must be an expectation of systemic litigation which is effective.
The term “recognizing” in the preceding paragraph is used advisedly because a plan which does not formally and explicitly do away with delegation and bifurcation will, of course, leave both in place. Silence cannot constitute “repeal.” But a plan which “recognizes” delegation and bifurcation is a stronger plan because it reinvigorates them and demonstrates that this Commission in this time remains dedicated to the approaches which experience has demonstrated to be the most effective in achieving the mission.
In the end, it is all of one piece. Effective systemic litigation—which is made possible through, inter alia, Regional Attorney reporting running to the General Counsel and the delegation of litigation authority—is the way for our enforcement efforts to be genuinely strategic. A Strategic Enforcement Plan which incorporates these realities will be a step forward for the agency and the cause of civil rights on the job.
On February 22, 2012, the Commissioners of the U.S. Equal Employment Opportunity Commission approved the agency’s Strategic Plan for Fiscal Years 2012-2016. Congress requires Executive departments and agencies to adopt such strategic plans every four years to direct their work and to lay the foundation for their more detailed annual plans. In its news release announcing the adoption of the Plan, the EEOC said, “The Strategic Plan establishes a framework for achieving the EEOC’s mission to stop and remedy unlawful employment discrimination, so that the nation might soon realize the Commission’s vision of justice and equality in the workplace.”
My assignment here is to say something meaningful about “innovative anti-discrimination strategies at the EEOC.” I approach that subject cautiously because I know too well that eyes begin to glaze over when talk turns to strategic plans and that what is described as “innovative” may often amount to merely new window dressing on more of the same.
But there are times when new and innovative strategies—game changing methodologies or approaches—actually emerge. Consider the changes in how we communicate and interact wrought by electronic data processing and the digital transmission of knowledge. Consider the changes in how our economy operates compelled by the changes from agriculture to manufacturing to service and information bases. Consider the change in how our institutions—and we ourselves—relate to the education, accommodation, and employment of minorities and women brought about by the civil rights movement which emerged in the 1960’s and the Civil Rights Act of 1964.
I am not here to argue that the EEOC’s Strategic Plan adopted in February will have the same impact as these “macro” changes or that it is as new and as innovative a way for this country to approach discrimination as the truly ground breaking change in federal law memorialized in the 1964 act. I will suggest, however, that our Strategic Plan viewed in the context of where we at the EEOC have been and where we have been attempting to go is both innovative and significant enough to be legitimately considered strategic.
Let me do that by describing, from my perspective, where we have been and where I and many other agency veterans have aspired to go. I joined the EEOC as a Trial Attorney in the Chicago District Office in January 1981 on the last day of the Carter Administration and just before Ronald Reagan was sworn in as president.
It is fair to say that, at that time, what went on in EEOC Headquarters in Washington and the policies and practices favored by particular Presidential appointees were not of overwhelming interest to Trial Attorneys in the field offices around the country. For most of us, Washington was a very long way away. We believed we were constrained by the Civil Rights Act of 1964 and the other federal statutes prohibiting employment discrimination, as well as applicable federal regulations. In terms of what governed our work, those were what really mattered to us. Those were our marching orders. We were focused almost entirely upon the litigation of our cases in the federal district courts and, to the extent we had the time, upon providing legal assistance and counsel to Enforcement staff who conducted the administrative investigations of charges of discrimination filed with the agency.
We believed that the investigation and development of charges which provided an opportunity to challenge employment discrimination against multiple members of the classes protected by the Civil Rights Act of 1964 was a good thing, and, in the Chicago District, it was recognized and supported. For example, one of the first cases assigned to me was a multiple victim class case challenging race discrimination in hiring for entry level factory jobs at a Chicago assembly plant. That case had grown out of an investigation of a charge of discrimination filed by a lone African-American employee who had been denied, he alleged, a promotion because of his race.
Soon thereafter, I began work on a similar case on behalf of classes of Blacks and Hispanics who appeared to have been discriminated against, again in hiring, on the basis of their race or national origin at a suburban manufacturer of sophisticated telecommunications equipment. That case, also a class case, was developed through the investigation of an individual charge filed by a Filipino employee who alleged that the employer discharged him because of his national origin and, also, discriminated broadly in hiring on the basis of race and national origin.
As the months and years wore on, I and other attorneys in the Chicago District continued to develop and litigate class cases, as did numerous members of the private bar. Class litigation was perceived to be an efficient and effective means of securing civil rights generally. There was for us in the Chicago District Office a certain ease in pursuing class cases. First, the Equal Employment Opportunity Commission has never been subject to Rule 23 of the Federal Rules of Civil Procedure (the “class action” rule requiring “numerosity,” “commonality,” and “typicality”). From a procedural and workload standpoint, this was an enormous benefit to us in pursuing multiple victim, or class, cases. Second, in the 80’s, my predecessor as Regional Attorney was steadfast in his conviction that employment discrimination was most effectively challenged on a class basis.
That conviction did not, however, appear to be widely shared in EEOC Headquarters during those years. Indeed, on more than one occasion, I heard of our office being described as “out of control” by Headquarters staff precisely because of our orientation toward class cases. At that time, Washington’s focus was on doing individual cases—cases involving one victim of one event of discrimination by one employer. The individual approach was favored by EEOC Headquarters so strongly that, announced or not, we understood it to be a matter of nationwide agency policy.
All this meant that across the field charges were routinely processed and litigation was conducted without significant attention to the issue of whether the experience of the charging party was an “outlier” at an otherwise non-discriminatory employer or, instead, the tip of a proverbial iceberg beneath which existed widespread and egregious discrimination. There were district offices which continued to litigate class cases, and they did so for many of the same reasons we did so in Chicago. But all of us understood that the policy trend emanating from Washington was in another direction.
Of course, that policy or focus was never announced as the step backward that we took it to be. Inside any bureaucracy, the real policy may be telegraphed so as to encourage something quite different than the stated policy and so that it appears to have no fingerprints. For example, the “full investigations” policy announced shortly after I joined the Commission supposedly required every charge to be fully investigated without regard to apparent merit when filed. This meant that resources were dedicated to the processing of meritless charges at the expense of more thorough investigation of meritorious charges which could support challenges to discrimination on a class wide basis.2
The process controlling Regional Attorneys’ securing Commission authority to file suit in particular cases, especially class cases, grew ever more complex and burdensome and was plagued by endless nit-picking. The process was eating the product.3
At one point, the agency’s tilt was embodied in a directive which required Regional Attorneys to submit recommendations to the Commissioners not to litigate cases in which there had been a finding of reasonable cause and a failure of conciliation but which the lawyers did not believe worthy of litigation. Field recommendations against litigation were, of course, routinely endorsed by the Commissioners, and the suits were not filed. After all, how much sense would it make to file lawsuits which the agency’s own attorneys said should not be filed? But there were a lot of taxpayer resources dedicated to a negative process which added no value and which soaked up resources which could have been devoted to combating egregious discrimination.4
The era which I have described did not go on forever, and in the Chicago and certain other districts the dedication of the attorneys carrying the Commission’s flag into the federal district courts not only limited the damage but in many cases earned terrific results. The attorneys and Enforcement staff in the field and others who supported them in the Office of General Counsel and elsewhere did a lot of good work, securing many millions in monetary relief and injunctive relief which benefitted thousands.
Related to that, once litigation was approved, attorneys in the field conducted that litigation without inference from the Chairs and Commissioners appointed by the President. In my years at the agency I have never experienced political or other pressure from a Presidential appointee to limit or get rid of a case. If someone’s ox were being gored—and I’m sure it happened—the folks in Washington got those phone calls, not me.
But despite all the good that was done—and there was plenty of that—EEOC institutionally could have done more nationally. If there were one thing being in this business teaches, it is that employment discrimination is more often than not discrimination which has an impact not merely upon a single individual but, rather, upon a class. It is usually not the product of a single rogue middle manager making bad decisions, but, rather, the product of the employer’s methodology of managing—or failing to manage—human capital.
We find for example that if one woman complains of sexual harassment there are usually others who have endured it as well—sexual predators do not limit themselves to one victim and then magically mend their ways. If there is one African-American who has been denied a job because of a racially biased hiring official, there are likely many others as well, waiting only to be identified. If there is a rule or test which appears to mandate the termination of employees with disabilities or those of a certain age, or to preclude the hiring of women, the one who files a charge of discrimination with the EEOC is likely but one among many with legitimate claims.
We did do more nationally during the Clinton administration when task forces were organized to address the charge backlog which had been metastasizing and crippling our administrative charge processing and, also, to reform the burdensome litigation approval process. Both were artifacts of the by now largely discredited individual approaches of the 1980’s. Those tasks forces yielded the Priority Charge Handling Procedure and a new National Enforcement Plan.
The PCHP and NEP enabled us to much more efficiently investigate meritorious changes and to expand our docket of class cases. By providing for the delegation of litigation authority to the General Counsel and Regional Attorneys they brought common sense and modernity to the litigation approval process—a process which had grown out of control and elevated the so-called “presentation memorandum” to iconic status. This change alone ended the dedication of enormous agency resources to an entirely internal bureaucratic process which, with years of experience behind them, many seemed to recognize did not add value and appeared to be a manifestation of an institutional hostility toward litigation.
In the Chicago District, the impact of the changes—and our long term dedication to class litigation—were visible in our results in a long line of class cases. Exemplars are $34 million in EEOC v. Mitsubishi and $10 million in EEOC v. The Dial Corporation for sex discrimination. $27.5 million in EEOC v. Sidley & Austin and $8 million in EEOC v. Allied Signal for age discrimination. Almost $2 million each in EEOC v. Ingersoll and EEOC v. Apollo Colors for race discrimination.
The Minneapolis Area Office, which became part of the Chicago District in the 2006 “repositioning” of the agency, also had a history of class litigation prior to our coming together. It had obtained a $35 million settlement in an age discrimination case against IDS Financial Services, $1.3 million in a sexual harassment case against Management Resources International, and $1.9 million in a same sex sexual harassment case against Long Prairie Packing Company. In an especially noteworthy matter, the Minneapolis Area Office obtained $72,000 from Holiday Inn Express on behalf of undocumented Mexican immigrants who had been reported to Immigration in retaliation for complaining about discriminatory terms and conditions of employment.
These cases and many like them were resolved by consent decrees which had real teeth; and in addition to monetary relief, they provided for substantial and carefully tailored non-monetary injunctive relief and did not include overly broad exculpatory non-admissions clauses.
At the EEOC, we have name for the phenomena we have been challenging in these kinds of cases. We call it systemic discrimination. It is discrimination which impacts, by employer conduct, policy or rule, multiple individuals interacting with particular employers, and, in some cases, may be so widespread as to infect operations on a region- or industry-wide basis. It is the kind of discrimination which individual one-on-one challenges cannot alone successfully combat.
The innovative strategy now memorialized in the February 2012 Strategic Plan builds upon our Systemic Initiative of 2006 and assures that going forward all of us at EEOC nationwide are going to be on the same page in terms of investigating and litigating charges of systemic discrimination.
It may be argued that, in view of the historical context I have been at such pains to share, we are merely going to be doing what we in Chicago and certain other districts have always done, when it was in favor and when it was not. There is a certain truth to that as illustrated by our recent work in EEOC v. Supervalu, EEOC v. Sears Roebuck, EEOC v. Roadway, EEOC v. DHL, EEOC v. Yellow Freight/YRC, EEOC v. CRST, and EEOC v. Minnesota Department of Corrections, EEOC v. Golden’n’Plump—all cases brought to combat systemic discrimination.
However, what is significant about the 2012 Strategic Plan is that it shuts the door on any notion that what we are about is something other than civil rights law enforcement or that limited, individualized approaches to civil rights law enforcement are good enough, possibly even preferred. No one should doubt the significance of the fact that all of this is articulated in public and in writing in one of the agency’s most important current governing documents.
Having said this ought not, however, obscure the fact that the 2012 Strategic Plan also includes two other worthy objectives. Strategic Objective II is to prevent employment discrimination through education and outreach. Strategic Objective III is to deliver excellent service through effective systems, updated technology, and a skilled and diverse workforce. Those strategic objectives are beyond the limited scope of this paper, but they do warrant explicit reference. After all, even the most dedicated Title VII litigator would be hard pressed to argue that a successful lawsuit is more effective than if the discrimination had been prevented and never occurred at all. Similarly, the more the agency’s services adhere to a standard of excellence, the more effective they will surely be.
The Plan is quite clear in that Strategic Objective I is to “combat employment discrimination through strategic law enforcement.” The key strategy in that pursuit will be to develop and implement a new Strategic Enforcement Plan that (1) will replace the existing National Enforcement Plan, (2) establish EEOC priorities, and (3) integrate the EEOC’s investigation, conciliation and litigation responsibilities. It is fair to speculate that the new SEP when adopted will have a significant resemblance to its predecessor NEP.
Our outcome goals to assess how well we are doing at this are to “have a broad impact in reducing employment discrimination at the national and local levels” and to “remedy discriminatory practices and secure meaningful relief for victims of discrimination.” Importantly, the Plan provides that a critical measure of how well we are doing in working toward those goals will be the level of representation of systemic cases in our litigation docket. Systemic cases, as we have been discussing, are in the words of the Plan, “those that address a pattern, practice, or policy of alleged discrimination and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.”
Be cautioned, however, that individual incidents of discrimination are not going to be given a pass. The Plan provides, “Even as the EEOC gradually increases its percentage of [systemic] cases, it will continue to pursue individual cases. Strategic selection of individual cases furthers the agency’s statutory mandate of preventing unlawful employment discrimination.”
As far as what we are going to be about going forward, our litigation in the Chicago District is probably going to look a lot like it looked when I joined the agency in 1981 and as it has looked for pretty much the entire period from then to now. Beyond that, I believe we are going to be seeing substantial increases in systemic litigation in districts across the country. What may be different for all of us is that, to the extent that our dockets locally and nationally are consistent with the Strategic Plan, resources and other support necessary for systemic litigation will likely be more forthcoming and there may be an increased tolerance for the risks necessarily associated with systemic litigation.
To the extent that employers anywhere have thought that the EEOC’s past over-attention to one-on-one individual cases will continue, and will continue to mean that the cost of defending EEOC enforcement actions and paying damages may be properly understood as merely a temporary cost of doing business, they should think again. Administrative investigations and EEOC litigation under the 2012 Strategic Plan and its implementing Strategic Enforcement Plan are virtually certain to involve higher stakes, stakes of a different order of magnitude, including both dollars for distribution to class members and reforms in how business is conducted and human capital is managed compelled as matters of injunctive relief. Our vision will continue to be “justice and equality in the workplace.” Our mission is, accordingly, “to stop and remedy unlawful employment discrimination.” The 2012 Strategic Plan—shaped by a long and complex context—is our roadmap
1 This paper is based upon remarks first delivered by the author on March 22, 2012 at the University of St. Thomas Opus School of Business Multicultural Forum on Workplace Diversity program entitled “A Time for Innovation” at the Minneapolis Convention Center. The author’s remarks have not been reviewed, “vetted” or approved by the EEOC. They do not necessarily reflect the views of the EEOC, or any official of the EEOC, and they do not in any respect constitute an official or authorized statement of EEOC policy or practice.
2 Another “take” on the “full investigations” policy was that EEOC simply did not have enough resources to fully investigate every charge of discrimination and that, therefore, spreading resources evenly across the investigation of every charge of discrimination would mean that the number of investigations not being adequately investigated would actually increase. A less than generous way to phrase it might be, “Full investigation of every charge necessarily means full investigation of no charge.”
3 An oddity of this period was that the single most important “number” in Regional Attorney performance appraisals was the number of litigation recommendations (known as “presentation memoranda”) submitted to Headquarters. Not suits filed or results achieved, but presentation memoranda submitted.
4 The irony was compounded by the fact that since the sheer number of litigation recommendations (for or against) counted so heavily in Regional Attorney performance appraisals, a Regional Attorney with a lackluster litigation program could improve his or her status by submitting additional recommendations against litigation.