July 1, 2014
The Honorable Tim Walberg
Subcommittee on Workforce Protections
Committee on Education and the Workforce
U.S. House of Representatives
Washington, DC 20515
Dear Chairman Walberg:
Please accept this statement for the record from the Equal Employment Opportunity Commission (EEOC) in response to the June 10, 2014, hearing entitled, "The Regulatory and Enforcement Priorities of the EEOC: Examining the Concerns of Stakeholders," and concerns raised during the hearing about the agency's enforcement and regulatory priorities. There were several issues discussed during the hearing that we believe would benefit from additional information.
As you know, the EEOC is responsible for enforcing Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, the Americans with Disabilities Act of 1990, Section 501 of the Rehabilitation Act of 1973, the Civil Rights Act of 1991, the Genetic Information Nondiscrimination Act of 2008, the ADA Amendments Act of 2008, and the Lilly Ledbetter Fair Pay Act of 2009. Vested with this responsibility, the Commission is dedicated to achieving our national vision of justice and equality in the workplace by preventing, stopping, and remedying unlawful employment discrimination.
The mission of the Commission is the eradication of employment discrimination and we have made great strides over the years. However, on the eve of its 50th anniversary, it is important to note that the Commission's work is far from complete. The EEOC strives to achieve its mission through public outreach and education, development and implementation of regulations and policy guidance, public meetings, mediation, investigation and conciliation. When these steps are not successful, litigation is the enforcement step of last resort. The Commission litigates less than one quarter of one percent of the charges filed with the Agency.
EEOC Guidance on the use of Arrest and Conviction records in employment:
On April 25, 2012, the Commission, in a 4-1 bi-partisan vote, issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. The Guidance is firmly rooted in Title VII and the relevant case law and updates, consolidates, and supersedes the Commission's 1987 and 1990 policy statements on this issue, as well as the relevant discussion in the EEOC's Race and Color Discrimination Compliance Manual Chapter. The Guidance is designed to be a resource for employers, employment agencies, and unions covered by Title VII; for applicants and employees; and for EEOC enforcement staff. During the hearing there were several concerns raised about the Guidance.
I. The Guidance is so long, so vague, and so complex that small employers -- and even some sophisticated counsel -- cannot glean clear directions from it.
It is important to understand that the Guidance was written for several audiences in addition to employers. The federal courts that decide Title VII cases were an important audience. Indeed, in 2007, a federal circuit court of appeals directed the Commission to update its 1987 version of this Guidance to provide more in-depth legal analysis of criminal background exclusions. The court found that the earlier version lacked explanation and statutory analysis. See El v. Southeastern Pennsylvania Transp. Authority, 479 F.3d 232 (3d Cir. 2007). The Commission sought to rectify this in 2012. Because of the detailed nature of the Guidance the EEOC also drafted several documents that succinctly and clearly summarize the Guidance for employees, job applicants, employers and counsel:
Additionally, the EEOC has been part of the Interagency Reentry Council, a diverse set of federal agencies assembled by the U.S Attorney General, to support the federal government's efforts to increase public safety, assist those returning from prison and jail in becoming productive citizens, and save taxpayer dollars by lowering the direct and collateral costs of incarceration. One of the first products of this collaboration is an initial set of "Reentry MythBusters," designed to clarify existing federal policies that affect formerly incarcerated individuals and their families in areas such as public housing, access to benefits, parental rights, employer incentives, and more. Among others, there is a Reentry MythBuster that addresses the Title VII implications of using arrest and conviction records in employment.
Finally, the EEOC made educating the public about the Guidance a point of emphasis. This is reflected in a comprehensive report of our efforts to educate the public concerning the Guidance. A copy of that report is attached as Appendix A to this letter. Following the adoption of the updated guidance, the agency has conducted an extensive outreach effort that has reached over 80,000 people nationwide through over 900 events.
II. The Guidance effectively discourages small employers from using background checks, their only tool for preserving the safety of their workers and clients.
The Guidance recognizes employers' safety concerns, both by discussing these concerns in the background section and by including numerous hypothetical examples where safety risks justify exclusions based on an applicant's recent conviction records. Like the EEOC's Title VII guidance on this same subject first issued in 1987, this updated 2012 Guidance is based on the premise that employers can best manage the risk of crime in the workplace by screening applicants or employees in a targeted and fact-based way. The updated Guidance provides practical advice to employers on balancing workplace security with civil rights.
Indeed, an increasing number of businesses have explicitly adopted the principles laid out in the guidance. According to a recent survey of 600 employers (provided as Appendix B), a year ago just 32 percent of respondents said they had adopted the principles contained in the 2012 EEOC guidance. This year, 88 percent report they have done so. Moreover, 64 percent of the surveyed companies report that they perform individualized assessments for candidates who have conviction records, as recommended by the guidance. Finally, in the wake of the issuance of the updated guidance, several companies and jurisdictions have adopted so-called "ban-the-box" policies, delaying the consideration of criminal records until later in the employment process, a policy recommended by the EEOC guidance.
III. Adding insult to injury, EEOC denied the public an opportunity to comment on its radical change in policy.
The EEOC did not deny the public an opportunity to comment. The Commission held public meetings in November 2008 and July 2011 on the use of criminal history information in employment decisions at which witnesses representing employers, individuals with criminal records, and other federal agencies testified. The Commission held the hearing record open and established a process for receiving input. The Commission received and reviewed approximately 300 public comments that responded to topics discussed during the July 2011 meeting. Prominent organizational commenters included the NAACP, the U.S. Chamber of Commerce, the Society for Human Resources Management, the Leadership Conference on Civil and Human Rights, the American Insurance Association, the Retail Industry Leaders Association, the Public Defender Service for the District of Columbia, the National Association of Professional Background Screeners, and the D.C. Prisoners' Project. Throughout the process of drafting the Guidance, individual Commissioners and staff met with representatives from various stakeholder groups to obtain more focused feedback on discrete and complex issues such as the U.S. Chamber of Commerce, SHRM, HR Policy Association, College and University Professional Association for Human Resources, the National Employment Law Project, and the Equal Employment Advisory Council. Additionally, a letter from Ms. Lucia Bone, who testified at the Committee's June 10th hearing about her sister's tragic murder, was included in this record.
The Guidance is not a radical change in policy. Since at least 1969, the Commission has received, investigated, and resolved discrimination charges involving criminal records exclusions, and federal courts have analyzed the civil rights law as applied to criminal record exclusions since the 1970s. In 1987, when Justice Clarence Thomas was chair, the EEOC first issued guidance saying that criminal background checks, like other hiring requirements that exclude people, should relate to the job. The EEOC, following court precedent at the time, listed three factors that employers should consider during the screening process: the nature of the offense, when it occurred and the nature of the job. The EEOC did not stretch the law in 1987; it simply followed the law and continued to do so in its 2006 Race and Color Discrimination Compliance Manual Chapter and in its 2012 Guidance.
IV. Conflict between Title VII and State Law
Title VII is a federal law, that specifically provides that state and local laws or regulations are preempted by Title VII if they "purport to require or permit the doing of any act which would be an unlawful employment practice" under Title VII. 42 U.S.C. § 2000e-7. Therefore, Title VII itself requires the preemption of contrary state laws, not the Commission. Indeed, the U.S. District Court for the Southern District of Ohio last year held that Title VII, pursuant to § 2000e-7, may preempt a state law requiring background checks and the termination of long-term, successful employees due to remote and minor convictions. Waldon v. Cincinnati Public Schools, 941 F. Supp. 2d 884, 890 (S.D. Ohio 2013) ("Moreover, the Court cannot conclude that Defendant was compelled to implement the policy, when it saw that nine of the ten it was terminating were African-American. . . . Title VII trumps state mandates, and Defendant could have raised questions with the state board of education regarding the stark disparity it confronted."). The Court Order in Waldon is attached as Appendix C to this letter.
Moreover, the 2012 Guidance makes clear that schools can exclude an individual based on a criminal record pursuant to state law when doing so would be consistent with Title VII:
"Example 11: State Law Exclusion Is Job Related and Consistent with Business Necessity. Elijah, who is African American, applies for a position as an office assistant at Pre-School, which is in a state that imposes criminal record restrictions on school employees. Pre-School, which employs twenty-five full- and part-time employees, uses all of its workers to help with the children. Pre-School performs a background check and learns that Elijah pled guilty to charges of indecent exposure two years ago. After being rejected for the position because of his conviction, Elijah files a Title VII disparate impact charge based on race to challenge Pre-School's policy. The EEOC conducts an investigation and finds that the policy has a disparate impact and that the exclusion is job related for the position in question and consistent with business necessity because it addresses serious safety risks of employment in a position involving regular contact with children. As a result, the EEOC would not find reasonable cause to believe that discrimination occurred."
V. Ms. Lucia Bone, of C.A.U.S.E., testified to her sister's rape and murder at the hand of a service worker contracted by a large, local department store that neglected to conduct or require a criminal background check. If they had done so, they would have learned that he was twice convicted of sex offenses and then on parole. Ms. Bone testified that, "by discouraging background checks," the EEOC is knowingly risking the safety of people like her sister in the interests of reemploying ex-offenders.
Mr. Chairman, the EEOC is united with the Committee in our commitment to a safe working environment for employers, workers and customers. The EEOC offers our sincere sympathy to the tragedy suffered by Ms. Bone in the death of her sister, Sue Weaver. The department store and/or its contractor could have conducted a full criminal background check of the service worker. It is important to note that the guidance does not ban criminal background checks. To put it plainly, there is nothing in the guidance - either then or now - that would preclude the employer or the contractor from conducting a criminal background check on the employee.
EEOC Small Business Outreach:
The EEOC understands that we must work to prevent employment discrimination before it occurs. Investigations, conciliations and litigation are only some of the means by which the EEOC fulfills its mission and vision. In Title VII, Congress expressly required the agency to engage in education and outreach activities, including providing training and technical assistance, for those with rights and responsibilities under employment antidiscrimination laws.
Educational and outreach programs, projects, and events are also cost effective law enforcement tools because they promote understanding of the law and voluntary compliance with the law. All parties, including the American taxpayer, benefit when the workplace is free of discrimination and everyone has access to equal employment opportunity. To that end, the Commission developed a performance measure in our Strategic Plan for FY 2012-2016 that calls on the Agency to develop and increase the number of significant partnerships with organizations that represent small or new businesses.
The FY 2013 target for this measure was to increase the number of significant partnerships with organizations that represent small or new business communities (or with businesses directly) by 10 percent nationally over the 2012 baseline, or to 78 total partnerships. Concurrent with the January 2013 notification issued by the agency for the previous measure, discussions were also held in January and February 2013 with district directors and program analysts on how to maximize outreach efforts and partnership development strategies within the small and new business communities. Guidance was issued to District Offices that included approaches for identifying potential partners and outreach activities, as well as methods for reporting results. As a result, the number of partnerships increased by 10 (or 14 percent), making the current total number of significant partnerships 81 for FY 2013.
Moreover, the agency has consistently received an "A" rating from the Small Business Administration National Ombudsman for our efforts with small businesses. We have a small business outreach program precisely to connect with small businesses on this and other areas of our enforcement and to enhance our work in this area EEOC has a Small Business Task Force led by Commissioner Constance Barker. We also are a partner with the SBA through the Interagency Reentry Council and are exploring ways in which we can partner with that agency on outreach.
EEOC Conciliation Efforts:
The EEOC is statutorily required to attempt to resolve findings of discrimination through "informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5. When the evidence gathered during the investigation establishes that there is "reasonable cause" to believe that discrimination has occurred, the EEOC invites the parties to participate in conciliation discussions. During conciliation, the investigator works with the company and the charging party to develop an appropriate remedy for the discrimination.
We strongly encourage the parties to take advantage of this final opportunity to resolve the charge informally and prior to the EEOC considering the matter for litigation. Conciliation is a voluntary process. The discussions are negotiations and counter-offers may be presented. Conciliation agreements remove the uncertainty, cost and animosity surrounding litigation.
The Commission's record demonstrates that we have made significant strides in successfully conciliating cases where the EEOC has found discrimination. Conciliation is one of our most effective tools to resolve discrimination cases before filing litigation.
With respect to the EEOC's pre-suit obligations, we successfully conciliated 1,437 cases in FY 2013. In the last three years, the EEOC improved its conciliation results significantly, with successful conciliations now at a rate of 41% of all cases that are conciliated, up from 31% in FY 2011. This means that more and more often, employers are coming to the table after an investigation where we conclude that there is reason to believe that employment discrimination occurred, and are agreeing to resolve those complaints voluntarily without the need for protracted litigation.
Voluntary resolution through conciliation can enable the company charged with discrimination to move forward with improved workplace policies and practices in compliance with the law. In conciliation or settlement discussions, the EEOC seeks targeted, equitable relief that remedies the discrimination and ensures that discrimination will not recur. The EEOC's overarching objective in its conciliation efforts is to ensure compliance with the law and to carry out the public interest in stopping and remedying discrimination.
Even before conciliation efforts take place, approximately 14,000 charges annually are settled with EEOC or in private settlements. Litigation is the last resort and represents less than 0.5 percent of all charges filed and around 5 percent of charges where the commission has issued a cause finding. The following chart shows our efforts to resolve discrimination charges at various stages of the process:
|FY 2009||FY 2010||FY 2011||FY 2012||FY 2013|
|Withdrawals with benefits||4,892||5,391||5,689||5,438||5,497|
|Successful Conciliations (All Conciliations)||1,240 of
|Litigation filed||281 suits||250 suits||261 suits||122 suits||131 suits|
Unlike the investigation, conciliation, and mediation functions, the Commission litigates in the public spotlight, allowing the Agency to further its law enforcement mission through public education and deterrence. This also means the public is able to evaluate these efforts, both the successes and the losses. This was discussed by the Chamber of Commerce in its report entitled, A Review of Enforcement and Litigation Strategy during the Obama Administration - A Misuse of Authority, released in conjunction with the hearing.
By any reasonable measure, the public record shows the EEOC's litigation program is successful and has undoubtedly had an enormous impact on equality of employment opportunity in the American workplace. The Commission has consistently secured monetary and non-monetary remedies, such as policy changes and training, in at least 90 percent of the cases litigated for many years. These include major recent systemic successes across the spectrum of statutes, such as:
In the event that a case is not settled, the Commission has had an enormously successful trial program, with verdicts for the Commission in 9 out of 10 jury trials during FY 2013, and a trial success rate well above 50% for the last four years. Among these recent trials was the $240 million jury verdict against Henry's Turkeys, the second largest verdict ever achieved under the federal anti-discrimination statutes along with other major trial victories involving age discrimination, sex harassment, and racial harassment. It would be difficult to underestimate the law enforcement and public education value of these cases in local communities and across the Nation.
The EEOC's Appellate Services Division also has a longstanding record of success in the courts of appeals, including in such recent cases as EEOC v. Ford Motor, 2014 WL 1584674 (6th Cir. Apr. 22, 2014) (telework as an accommodation); EEOC v. Baltimore County, 747 F.3d 267 (4th Cir. 2014) (agreeing with EEOC's contention that pension system treated older new-hires less favorably because of their age by requiring them to make larger contributions than younger new-hires); EEOC v. Mach Mining, 738 F.3d 171 (7th Cir. 2013) (unreviewability of conciliation efforts), cert petition pending; EEOC v. Houston Funding, 717 F.3d 425 (5th Cir. 2013) (discrimination on the basis of lactation is sex and pregnancy discrimination); and EEOC v. Boh Brothers Const. Co., 731 F.3d 444 (5th Cir. 2013) (gender stereotyping evidence can support same-sex harassment claim; reinstating jury verdict for EEOC) en banc; EEOC v. United Airlines, 693 F.3d 760 (7th Cir. 2012) (transfer accommodation of qualified individuals is mandatory absent undue hardship), cert petition denied; EEOC v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012) (pattern-or-practice hiring claim may be pursued under section 706), cert petition denied. Rather than addressing the full spectrum of the EEOC's litigation outcomes, Ms. Camille Olson's criticisms on behalf of the U.S. Chamber of Commerce are based on misleading and highly selective anecdotes.
Investigation and Conciliation
In testimony by Ms. Olson on behalf of the Chamber of Commerce, there are a number of misstatements about EEOC's failure to fulfill its statutory duty to investigate, conciliate and litigate cases. Ms. Olson greatly exaggerates our loss rate and, as noted above, focuses on a few Commission litigation losses without giving consideration to the Agency's litigation record as a whole. The losses we have had over the past few years are but a small part of the full story of the EEOC's highly successful litigation program.
Ms. Olson states that many EEOC cases have been adjudged "frivolous, unreasonable and without foundation." However, in the only specific example she gives of attorney's fees being awarded against the agency, she incorrectly states that an award of $4.7 million in EEOC v. CRST, a case filed by the Commission in FY 2007, was issued by the Eighth Circuit Court of Appeals. In fact, that award was issued by the district court and is currently on appeal to the Eighth Circuit. This single fee award constitutes the bulk of the $5.6 million in attorney's fees Ms. Olson cites in her testimony. The EEOC acknowledges the seriousness of any attorney's fees award against the agency, but such awards unfortunately are one of the risks involved in the agency's exercise of its responsibility to develop the law in areas where private litigants do not have the financial incentives to pursue claims involving primarily public interest issues.
In EEOC v. CRST, the district court dismissed the EEOC's sexual harassment class case and held that the Agency must, at least in non pattern-or-practice class cases, identify and conciliate for each claimant in the administrative process before seeking relief for them in litigation. This ruling departed greatly from prior settled law governing the EEOC's pre-suit administrative prerequisites and was, thus, unforeseen at the time the case was filed. A divided panel of the 8th Circuit upheld much of the lower court decision, but revived two individual claims and thus set aside the fees as defendant was not a prevailing party. After remand to the district court, the EEOC and defendant entered into a settlement of the remaining claim and defendant then filed a new petition for fees which the district court granted. We strongly believe the case cannot meet the standard for granting fees because the merits ruling is based on a newly established principle of law and there is a strong dissenting opinion. We remain optimistic that the 8th Circuit will rule in our favor and reverse the fees.
Ms. Olson cites the CRST decision as an example of EEOC's ongoing problem of poor quality investigations and conciliations and its failure to address this problem. It should be noted that the Commission filed the CRST lawsuit in 2007; conciliation was conducted and failed in 2006. The only other fee case she mentions is EEOC v. Peoplemark, which was filed in 2008. The EEOC dismissed that case voluntarily after the court refused to allow an extension of the discovery schedule for EEOC's expert to complete the expert report. The district court awarded defendant over $750,000 in fees and a divided panel of the Sixth Circuit affirmed the fee award. These two cases, which were investigated and conciliated many years ago, provide weak evidence of a current problem with EEOC's fulfillment of its administrative responsibilities.
Ms. Olson alludes to EEOC v. Bloomberg, a case filed in 2008, in support of her argument. This case was one of the few district courts to adopt the CRST conciliation ruling, and is still in litigation. Ms. Olson fails to note that almost every other district court to consider it has rejected the CRST conciliation standard. In EEOC v. Cintas, approved by the General Counsel in 2005, a class sex (female) failure to hire case, the district court dismissed the EEOC's suit relying in part on CRST's ruling that EEOC must identify and conciliate for all claimants prior to filing suit. We appealed the case to the Sixth Circuit, which reversed the lower court entirely, and the Supreme Court denied certiorari. Additionally, the Seventh Circuit recently held in EEOC v. Mach Mining, that judicial review of conciliations is not permitted under the plain language of Title VII. The petition for certiorari is pending with the Supreme Court.
Delegation of Litigation Authority
Ms. Olson complains that too many cases have been initiated without Commission authorization. Delegation of litigation authority to the General Counsel was first established by a unanimous Commission under the Agency's 1996 National Enforcement Plan (NEP). Delegation makes sense because the EEOC's General Counsel, like the Commissioners themselves, is appointed by the President of the United States and confirmed by the Senate. Moreover, the EEOC's General Counsel is charged by statute with the conduct of litigation. Delegation serves to reduce delay while freeing up the Commission to focus on policy issues. The Commission reaffirmed this delegation in the 2012 Strategic Enforcement Plan (SEP). Under the SEP, the Commission has provided specific criteria where Commission approval is required for litigation, including the requirement that at least one case from each office be submitted each year. Additionally the Office of General Counsel and other offices must submit quarterly reports assessing the delegated authority and the Commission convenes a quarterly meeting to assess how delegation is working. In the past five years, the Commission has disapproved only one case for litigation, and the General Counsel withdrew his recommendation to litigate one other case. In FY 2013, the Commission approved 15 of 16 cases presented for authorization. These facts provide little support for Ms. Olson's view that delegation of litigation authority is somehow improper or inappropriate.
The EEOC's litigation record confirms there is simply no demonstrable difference between the success in Commission approved cases and those delegated to the General Counsel. The Commission is generally successful regardless of the level of approval but has also lost cases approved by the Commission or the General Counsel. For example, the Agency won 9 out of 10 jury trials in FY 2013 - all of these cases were delegated to the General Counsel. Simply put, Ms. Olson makes no attempt to construct an empirically-based argument that additional Commission review would have any effect on the outcome of EEOC litigation.
The history of the review process for Americans with Disabilities Act (ADA) litigation demonstrates the flaws of Ms. Olson's arguments. In 1999, following a trilogy of Supreme Court decisions limiting coverage under the ADA, the General Counsel agreed to depart from the delegation of authority set forth in the NEP and to send all ADA cases to the Commission. The delay resulting from the additional layers of review by the Commissioners and their staffs of otherwise uncontroversial cases created a disincentive to develop these cases and the numbers declined accordingly. Yet, in FY 2009 when then-General Counsel Ronald Cooper stopped sending ADA cases to the Commission and returned to the delegation originally set forth in the 1996 NEP, the number of cases enforcing the ADA increased significantly without any change in quality or success. Due in part to the streamlined litigation approval process, during the first years of the Americans with Disabilities Act Amendments Act (ADAAA), the Commission has been able to dramatically increase its enforcement of the ADA on behalf of discrimination victims, including those with impairments often difficult to cover prior to the ADAAA, such as diabetes, cancer, epilepsy, and some intellectual disabilities.
In criticizing the delegation of authority to the General Counsel, Ms. Olson refers to the Kaplan and Freeman cases, involving the use of credit and conviction record checks in employment. It is true that both cases were dismissed by the district courts which rejected EEOC's expert reports. However, both cases were approved by the Commission - Freeman in 2009 and Kaplan in 2010. The Freeman case is pending appeal to the 4th Circuit. The Peoplemark case, which also involved conviction records and was filed in 2008, was also approved by the Commission. Ms. Olson criticizes the filings of Dollar General and BMW, two pending Commission disparate impact cases involving criminal background checks. Both of these cases were approved by the Commission in 2012 and filed in 2013.
Ms. Olson also makes reference to 15 different offices authorizing litigation. However, all litigation must be submitted to the Office of General Counsel for approval. Thus the General Counsel has controls in place for review of all delegated litigation authority. These decisions are not made by 15 different managers in the field. As part of the review process, OGC examines the conciliation efforts in the case and, on occasion, will return cases to the field for further conciliation if it appears those efforts will further the Commission's enforcement efforts.
Finally, Ms. Olson states that 75 to 80 cases were approved by the Commission during the years 2000 to 2005. However, public information available on the EEOC's external website shows that her figures are incorrect. The Commission indeed approved 73 cases in FY 2001, but only approved 51 to 58 cases from FY 2002 to 2005. During this same period, the Agency filed 431 lawsuits in FY 2001 and 332 to 383 in FY 2002 to 2005. These figures must be placed in perspective to have meaning. The Agency filed many more cases in those years than it has in more recent years. Moreover, during the FY 2000-2005 period cited by Ms. Olson, the General Counsel was sending all ADA cases to the Commission solely based on the Supreme Court rulings sharply limiting the definition of disability. These two factors led to a large number of cases submitted to the Commission for approval during this time period. As previously mentioned, the General Counsel changed this procedure in FY 2009, after the ADAAA was enacted. In that year and in later years, the number of cases sent to the Commission decreased substantially. This explains Ms. Olson's observation that the General Counsel submitted more cases to the Commission in years past. And while Ms. Olson observed that the Commission only authorized 15 cases from FY 2010 to 2012, she fails to mention that in FY 2013, the first year after the SEP was enacted, the Commission authorized 15 cases for litigation.
Appellate and Amicus Program
As noted above, the Appellate Services Division has been a critical and highly successful part of the Commission's direct litigation efforts since the Agency opened its doors. In addition to handling appeals in Commission cases, Appellate Services files amicus curiae briefs on behalf of the Commission, and the ability to present the Commission's views in private cases is one of the EEOC's most important legal enforcement tools. By way of background, it is important to note that the Commission's amicus participation and the positions advanced in court are authorized by the full Commission. For the dozen cases cited by the Chamber that were decided in FY 2013, participation was unanimously approved in eight cases, and in three others participation was approved by three out of four Commissioners, and in one participation was approved by three out of five Commissioners. We disagree with the Chamber's standards for measuring the success of the Commission's amicus efforts, and have several observations to offer about the Chamber's conclusions about the cases decided in FY 2013.
First, it is important to realize that the private cases in which the Commission files briefs are cases in which there will be an appeal and a decision from an appellate court whether the EEOC participates in the case or not, and thus we participate as amicus curiae in some cases which we, as an enforcement agency, might not have brought, or appealed, in the first instance. We choose to weigh in on specific legal issues that may not be dispositive in the case simply because we want courts to be aware of the Commission's view of the proper analysis of that particular legal issue. Thus, some cases where the outcome is not favorable for the plaintiff nevertheless represent successes to us because the court agreed with our position on one of the issues we addressed. For example, although the Chamber counts the decision in McKinley v. Skyline Chili, Inc., 2013 WL 5811647 (6th Cir. Oct. 29, 2013) as a "loss" for the Commission, we consider it a partial victory because the court of appeals agreed with the Commission's view that the plaintiff's complaint to Human Resources could constitute protected opposition under the anti-retaliation provisions of Title VII and the ADEA. Advocating an expansive interpretation of what constitutes protected conduct for purposes of the anti-retaliation provisions is obviously of the highest priority to the Commission because enforcement depends, for the most part, on people being willing to come to the enforcement agencies to complain about discrimination; thus this "win" was quite significant to our overall program efforts.
Second, we would emphasize that persuading courts we are right about the procedural arguments we advance is just as important, and just as much a priority, as persuading them to accept our arguments about substantive interpretations of the statutes we enforce or the governing legal standards that should be applied to claims brought by victims of discrimination. Thus, we would not separate out the three cases in FY 2013 in which we persuaded the courts on procedural points as did the Chamber, and it is not at all clear to us why the Chamber has made that distinction. One of these decisions is a case that addressed both procedural and substantive points of concern to the Commission. See Mandel v. M&Q Packaging, 706 F.3d 157 (3d Cir. 2013) (court agreed with EEOC that under National Railroad Passenger Corp. v. Morgan, all acts of harassment should have been considered; that an affidavit attached to an EEOC charge contains admissible facts that should have been considered by the court; and that the welcomeness question should have gone to the jury). In Ellis v. Ethicon, 529 Fed. Appx. 310 (3d Cir. 2013), which the Chamber discounts as addressing a "procedural" issue, the court of appeals decided a significant question about appropriate remedies in an ADA case, which is a substantive, not a procedural question. There, the court held that reinstatement can be an appropriate remedy despite an ADA plaintiff's failure to mitigate her damages by seeking comparable employment after termination. Finally, although it is probably accurate to describe the result in Boaz v. FedEx Customer Info. Sys., Inc., 725 F3d. 603 (6th Cir. 2013), as addressing a procedural issue, because the court held that an employment contract cannot shorten the statute of limitations under the Equal Pay Act, the Commission is as proud of its success on that procedural point as it is of persuading the courts on substantive interpretations. It has long been a Commission priority to file briefs that will ensure individuals are not unfairly denied the opportunity to litigate their claims in court because of procedural technicalities, particularly erroneous applications of limitations rules.
Confining our survey to the decisions reported in FY 2013 then, the Commission would say it had a 50% success rate rather than the 80% failure rate the Chamber ascribes to our efforts. Our math is a little different from the Chamber's because we did not file a brief in DR Horton v. NLRB in the Fifth Circuit, and thus the total number of decisions is twelve rather than thirteen, and counting the "procedural" and partial "wins" together with the two substantive "wins" the Chamber notes, means that we had prevailing arguments in six of the twelve cases in which we participated.
More significantly, we think the Chamber's emphasis on a single year's decisions provides an unhelpful and not particularly representative snapshot of the Commission's amicus program. We have surveyed the decisions in cases in which we participated as amicus curiae since FY 2009, and have found that in the 97 cases that culminated in decisions, the courts adopted EEOC's positions in 62, which represents a success rate of 64%. In thinking about the overall success of the amicus program, it is crucial to remember that the Commission advances the same legal interpretations in courts all over the country, and the same argument may be persuasive to one circuit and not to another. Thus the rejection of a particular position by one court in one year really cannot be a referendum on the success of the program or the soundness of the EEOC's interpretations of the statutes it enforces. While one might be tempted to think the Supreme Court's rejection of EEOC interpretations reflects the final word about the correct reading of the statutes, so that the Court's opinions in FY 2013 in Vance v. Ball State and University of Texas Southwestern Medical Center v. Nassar could be read as more significant rejections of Commission views, it is important to keep even those losses in perspective. Over the last thirty years, there have been a huge number of Supreme Court decisions that deferred to and/or unanimously endorsed EEOC interpretations of the laws it enforces, particularly in the areas of sexual harassment and retaliation, as well as all of the procedural questions that have reached the Supreme Court. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Harris v. Forklift Systems, 507 U.S. 959 (1993); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Ellerth v. Burlington Industries, 524 U.S. 951 (1998); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Crawford v. Metropolitan Government of Nashville, 555 U.S. 271 (2009); Thompson v. North American Stainles, 131 S.Ct. 863 (2011).
On the other hand, in the cases in which the Court has rejected Commission views, in virtually every case, there has been an immediate or subsequent legislative override of the Court's interpretation of the statutes EEOC enforces. Thus, Congress enacted the Pregnancy Discrimination Act after the Court rejected the Commission's interpretation of the scope of the prohibition on sex discrimination in General Electric Co. v. Gilbert, 429 U.S. 125 (1976). Congress enacted various provisions of the Civil Rights Act of 1991 in direct response to the Court's rejection of Commission interpretations of the law (some of which were not presented in amicus curiae briefs filed by the Government) in, for example, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989). Congress rejected the Court's reading of the ADEA's prohibition of discrimination in fringe benefits in Public Employees Retirement system of Ohio v. Betts, 492 U.S. 158 (1989) and codified the EEOC's equal cost/equal benefit rule in the Older Workers Benefit Protection Act. Congress rejected the Court's view of the time for filing a pay discrimination claim in Ledbetter v. Goodyear tire & Rubber, 550 U.S. 618 (2007), and codified the EEOC's preferred rule when it enacted the Lily Ledbetter Fair Pay Act in 2009. Although the Court rejected the Commission's interpretation of the definition of disability under the ADA in a trilogy of cases, Sutton v. United Air Lines, 527 U.S. 471 (1999), Murphy v. UPS, 527 U.S. 516 (1999), and Albertson's v. Kirkingburg, 527 U.S. 555 (1999), Congress enacted amendments in 2008 restoring the original intent of the coverage provisions and codified the very "mitigating measures" rule the Commission had advocated in those cases.
Our point is simply that a one-year snapshot does not give a meaningful picture of the EEOC's amicus enforcement efforts, and that a focus on whether particular courts of appeals have accepted or rejected Commission positions does not tell the most important part of the story if one is interested in whether the Commission advocates enforcement views consistent with the intent of Congress in enacting the anti-discrimination statutes.
We all understand that 50 years in the eyes of history is a significant but brief window of the progress that the EEOC has made in achieving our goal of achieving equal opportunity in our nation's places of work. By many indicators, that movement has been seismic and our progress evident. As we noted previously, the EEOC's mission to eradicate discrimination from our nation's workplaces has not yet been realized. Until then, the Commission will continue to prevent, stop and remedy unlawful employment discrimination.
We appreciate the opportunity to comment on our efforts and to provide additional information on the EEOC's enforcement and regulatory priorities for the hearing record. We look forward to continuing to work with Congress to ensure the nation's workplaces are free of discrimination.
Todd A. Cox, Director
Office of Communications
and Legislative Affairs
cc: The Honorable Joe Courtney