The U.S. Equal Employment Opportunity Commission

IV. Background

This section presents a brief background of the EEOC's mission, its case backlog, its strategies to process charges in a timely manner, and its mediation program. The sub-section on the evolution of the EEOC mediation program is especially important since this study measures the participant satisfaction with this program.

A. The EEOC's Mission

Title VII of the Civil Rights Act of 1964 ("Title VII" or "the Act") prohibits workplace discrimination based on race, sex, national origin, color, or religion.<70> Pursuant to Title VII, the Equal Employment Opportunity Commission ("EEOC," "Commission," or "agency") was established as the federal agency responsible for the administration and enforcement of this law. The EEOC opened its doors in July 1965.<71> The EEOC investigates, conciliates, and litigates complaints of discrimination arising under the laws within its jurisdiction. This is done by 50 field offices located throughout the United States. Central to the agency's mission is the development and implementation of charge resolution programs and processes.

The EEOC investigates charges filed by individuals or initiated by a member of the EEOC. These members are referred to as Commissioners. A Chairperson is appointed from among the Commissioners. Originally, the EEOC had no power to enforce its findings. Title VII indicates that Congress intended the EEOC to quickly investigate allegations of discrimination and then to act as a conciliator between the parties to bring about a voluntary resolution of a dispute.<72>

In 1972, the Equal Employment Opportunity Act amended Title VII to allow the EEOC to file suit in federal court to enforce Title VII. This amendment also expanded the EEOC jurisdiction to include public and private educational institutions and state and local government. This law continued to rely primarily on the conciliation process to resolve charges that the agency investigated and found to be meritorious.<73>

B. The EEOC Case Backlog<74>

When Title VII was passed in 1964, Congress expected that the EEOC could investigate and then immediately conciliate meritorious cases to a voluntary resolution; this proved to be an unrealistic expectation. From its inception, the EEOC had a case inventory (3,000). By the 1970's, it was clear that the EEOC was overwhelmed with charges. In June of 1972, a backlog of 53,000 charges existed. By April 1977, that backlog had risen to 130,000.<75> This caused the EEOC to lose credibility with the parties who appeared before the agency. It was clear that something had to be done.

C. The EEOC Strategies To Timely Process Charges

1. The Administration of Chairwoman Eleanor Holmes Norton

In May 1977, EEOC Chairwoman Eleanor Holmes Norton introduced a "rapid charge processing" program. The program was designed to expedite the processing of charges by seeking quick settlement prior to full investigation. This program relied on no-fault settlement agreements with the agency in return for payment of some money or other benefit to the charging party. This strategy resulted in the expeditious processing of many cases. Also, this strategy enabled the EEOC to expend its limited resources on "pattern and practice" and systemic litigation. These cases are high profile and often result in the recovery of large monetary settlements. From a cost - benefit perspective, such litigation probably results in a larger monetary yield.<76> To the critics of the program, any charge, other than pattern and practice claims, was seen as being "for sale," i.e., subject to quick resolution, by respondent payment of what the critics considered to be a token sum of money.<77> It also appeared that individual charges were not given the same attention or importance as the pattern and practice lawsuits.

In 1979, the EEOC's responsibilities were expanded to include enforcement of discrimination charges made pursuant to the Age Discrimination in Employment Act of 1967,<78> the Equal Pay Act of 1963,<79> and Section 501 of the Rehabilitation Act of 1973.<80> Even with the significant expansion of the EEOC jurisdiction during her tenure, Chairwoman Norton's program reduced the case backlog. In FY 1981, the inventory was 49,500; this was a noteworthy accomplishment given the EEOC's increasing responsibilities.<81> She left the agency in February 1981, and was later succeeded by Clarence Thomas.<82>

2. The Administration of Chairman Clarence Thomas

Clarence Thomas was appointed as the EEOC Chair in May 1982. He served in this position until 1990. When Thomas became Chairman, he was immediately met with a Government Accounting Office (GAO) report critical of the EEOC rapid charge-processing program. The major criticism was that meritorious cases were being settled too quickly and too cheaply while non-meritorious cases were being settled for too much money. There seemed to be little relationship between the underlying culpability of the respondent and the amount of the settlement. <83>

Thomas decided it was inappropriate for the EEOC to do little or no investigation of the "garden variety" discrimination charge, while spending substantial resources on the headline-grabbing, and more financially lucrative, pattern and practice lawsuits. He believed that every person who filed a charge with the EEOC was entitled to a full investigation. Accordingly, Thomas thought the agency should move away from the claims adjuster image it had under Norton and toward that of a law enforcement agency.<84>

In December 1983, Thomas implemented a full investigation policy. All charges were to be fully investigated to a determination of "reasonable cause" to believe that there had been a violation of the law or a "no reasonable cause" determination. A full investigatory report was written at the end of each investigation.<85> The use of personnel to fully investigate every charge resulted in litigation of fewer pattern and practice cases. When Thomas left the EEOC in 1990, the case inventory was at 41,987.<86>

3. The Administration of Chairman Evan J. Kemp, Jr.

Commissioner Evan J. Kemp, Jr., replaced Thomas as Chairman in March 1990. Also in 1990, President George Bush signed the Americans with Disabilities Act (ADA) into law.<87> The EEOC responsibilities were further expanded to include the investigation of claims made under Title I of the newly enacted ADA. In 1991, the Civil Rights Act of 1991 (CRA) expanded the 1964 Act.<88> The CRA made it more attractive to sue an employer for a violation of Title VII. Under this new law, a victim of employment discrimination was entitled to recover compensatory and punitive damages.<89> Previously these monetary damages were not available and a successful litigant could obtain only backpay (less interim earnings), reinstatement or frontpay in lieu of reinstatement, and respondent payment of the employee's attorney fees and costs. Now, in addition to these remedies, a successful litigant could obtain compensatory and punitive damages. Filing of a charge with the EEOC continued to be a prerequisite to initiating a lawsuit in federal court. Thus, the EEOC again experienced a significant increase in the number of charge filings.

In addition to the rise in charges related to the ADA and the CRA of 1991, national attention to sexual harassment, focused by the Clarence Thomas - Anita Hill matter, resulted in a rise in charges of workplace sexual harassment. In 1992, 72,302 cases were filed, the largest case intake since 1985.<90> The EEOC continued to adhere to the full case investigation approach developed under Chairman Thomas. As a result, the volume of unresolved charges as well as the time that it took to resolve a case continued to increase. In 1994, the time from filing of a charge to resolution averaged 328 days.<91>

4. The Administration of Chairman Gilbert Casellas

By October 1994, the EEOC had a new chair, Gilbert Casellas, who joined the EEOC from the Air Force, where he had served as general counsel. Casellas inherited an agency that could not move its cases in a timely fashion. By the end of FY 1994, there was a backlog of 96,945 unresolved cases.<92>

Chairman Casellas was faced with the challenge of reducing the backlog. He established internal task forces to address the case-handling dilemma. The resulting taskforce reports provided the information necessary to create a new process for handling incoming charges. They were classified according to "Priority Charge Handling Procedures" (PCHP), which divided charges into three categories: (1) "A" charges are charges that, based on the opinion of the EEOC charge intake personnel,<93> were highly likely to result in an EEOC finding of "reasonable cause" to believe that the law had been violated, and involved pattern or practice or systemic issues, or were Equal Pay Act charges; (2) "B" charges were those with possible merit with the final finding contingent on the results of the investigation; and (3) "C" charges were those without merit on their face that should be dismissed outright.<94>

Concurrent with this new classification procedure, in April 1995, the EEOC voted to commit the agency to mediation as a voluntary alternative to normal charge processing. Thus, mediation became the forum for alternative dispute resolution ("ADR") that was integrated into the EEOC charge processing procedure.<95> Commissioners Paul Miller and R. Gaull Silberman headed the ADR taskforce that made the recommendations. Mediation was selected largely because of the success of a pilot program that was conducted in four field offices in 1991-1992.<96>

In addition to the PCHP, the Casellas administration introduced a National Enforcement Plan (NEP), which was fully implemented by Fiscal Year (FY) 1997. The NEP employed a three-prong approach to address the agency's mission. The prongs were: (1) the prevention of discrimination through enhanced education, technical assistance, and outreach to the employer community, charging party advocacy groups, and other stakeholders; (2) the eradication of discrimination through investigation, conciliation, and litigation of charges with significant impact; and (3) effective caseload and inventory management, including effective use of Alternative Dispute Resolution methods, to allow the Commission to focus substantial resources on those matters having the greatest impact.<97>

The Priority Charge Handling Procedures allowed the EEOC to take great strides in reducing its charge backlog. In FY 1995, immediately prior to introduction of the PCHP, the agency had a backlog of 111,345 charges. At the end of FY 1997, the inventory was reduced to 64,576 charges - a reduction of over 40%.<98> By FY 1998, this backlog had been reduced to 52,011 - a 53% reduction from the pre-PCHP backlog. The PCHP and the NEP of the Casellas administration resulted in the reduction of average charge resolution time, a reduction in the average age of the pending charge backlog, a reduction in the average caseload of the EEOC investigator, and in other qualitative improvements.<99>

5. The Administration of Chairwoman Ida Castro

On October 23, 1998, Ida L. Castro was sworn in as the Chairwoman of the EEOC. A labor and employment lawyer by training, she brought to the position a management and leadership style that emphasized results, public responsiveness, and operational efficiency. During her first year of tenure, the EEOC achieved many accomplishments, including cutting the backlog of private sector charges by 23% to a 15-year low, reducing the average charge processing time, and reforming the federal sector EEO complaint process. <100>

The agency nearly tripled the number of successful charge resolutions handled through voluntary mediations to 4,833 at year-end FY 1999, up from 1,631 in FY 1998.<101> Similarly, the program gained more acceptance among its target audience; FY 1999 saw an increase in the number of participants in the program. Eighty-one percent of charging parties (up from 68% the year before) and 36% of employers (up from 28%) accepted offers to mediate. The settlement success rate for mediated cases was 65%, significantly higher than the 50% success rate anticipated by the agency. The EEOC also met a key mediation goal of mediating cases in an average of 87 days.<102>

Chairwoman Castro promoted mediation as an excellent opportunity that offers the best of both worlds to the concerned parties since it brings the parties together and provides a forum for dialogue. She described mediation as a fair and efficient process that is not only the least costly, but also a win-win solution for parties involved.<103>

Chairwoman Castro proclaimed the mediation program as "one of our shining stars in terms of our accomplishments for fiscal year 1999."<104> The EEOC's continued commitment to, and development of, this program is supported by several facts: (1) the EEOC's budget request for FY 2001 would support the continuation of the expanded program;<105> (2) Castro's stated goal of seeking "to reverse the cuts in the mediation program and restore the overall staffing level to continue reducing the backlog of pending charges," if the EEOC's budget is increased as requested;<106> and (3) her stated goal of encouraging more employers to participate in the program.

D. The Evolution of the EEOC Mediation Program

1. The Pilot Program

Beginning February 1991, the EEOC introduced an ADR pilot mediation program as a strategy to manage its burgeoning caseload. The one-year pilot tested the use of mediation in the Philadelphia, New Orleans, Houston, and Washington field offices of the EEOC.<107> Statistical information was gathered regarding the successes and deficiencies in the program. At its conclusion, Professor Craig A. McEwen of Bowdon College evaluated the results. He found a high level of participant satisfaction with the pilot program. He concluded that mediation resolved a significant number of charges in a fair manner.<108>

2. The Mediation Program

The success of the pilot program resulted in the appointment of a mediation task force to explore the possibility of expanding the use of mediation. In 1995, the task force, under the direction of Commissioners Miller and Silberman, concluded that mediation was a viable process. The EEOC adopted a policy statement concerning ADR that included support for mediation.<109> Using its experience with the pilot program, and the A-B-C classification system as the basis for selection of cases that were deemed appropriate for mediation, the ADR program evolved into its present configuration.

By October 1996, the EEOC mediation program had expanded significantly and, by the end of FY 1997, each district office had a "viable mediation program."<110> For FY 1999, the EEOC budget was increased by $37 million, with $13 million specifically allocated for the mediation program.<111> This increased allocation was, in part, due to the initial success of the EEOC mediation program.<112> The increased funding was the result of a bipartisan effort.

3. The Structure of the Present Mediation Program

The mediation program design targets B cases<113> for possible resolution. In general, at the time a charge is filed, the charging party is advised that voluntary mediation is available and is asked whether or not he/she is willing to participate. This question is asked at the time that the case is classified upon intake. Once the intake officer classifies the charge as a B, and it is confirmed that the charging party has agreed that he/she is willing to participate in mediation, the respondent is sent the charge along with a letter that offers the respondent the opportunity to participate in mediation (Exhibit 1).

Mediation is a pre-investigation dispute resolution procedure.<114> The incentive for the respondent to participate is that, in addition to all of the inherent advantages of mediation, the respondent can postpone preparing a position statement and/or responding to an EEOC information request.<115> Where mediation is not successful, the investigation process is reinstated and the respondent is asked to submit a position statement and otherwise cooperate with the investigation. If the respondent elects to mediate, this process is kept separate from the pending, and now suspended, investigation. Thus, a "firewall" exists that ensures that any confidential information obtained in the mediation process is not disclosed to EEOC investigators. Investigators are instructed to cease any line of inquiry with a charging party, if the party begins to discuss what occurred in mediation.

4. The EEOC Mediators

The EEOC mediation program uses EEOC staff employees as mediators as well as external mediators who are either paid pursuant to an EEOC contract or serve on a pro bono basis. The EEOC provides extensive training to all mediators.

The EEOC contract mediators include, but are not limited to, mediators from the Federal Mediation and Conciliation Service (FMCS). FMCS mediators primarily have been utilized in cases far from offices where internal EEOC mediators and private contractors are unavailable. This guarantees national coverage of charges to be mediated. The external mediators come from a wide variety of backgrounds, including professional neutrals and plaintiff and employer advocates. The EEOC mediators are "experienced and trained in mediation and in the equal employment opportunity law."<116>

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