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EEOC mandate stalled by lack of commissioners

Posted On: Sep. 24, 2019 7:00 AM CST


The U.S. Equal Employment Opportunity Commission continues to file charges and lawsuits but is not pursuing its mandate to combat discrimination as vigorously as it could because it does not have a full complement of commissioners, experts say.

The agency, with only three commissioners in office, cannot effectively provide the strategic leadership it could with its normal complement of five, they say.

The agency is also being impacted by Trump administration policy in pulling back from filing major class action litigation, say some experts.

A union representative for EEOC employees said there is also increasing pressure within the agency to rapidly close cases without investigations, despite understaffing at the agency.

Meanwhile, the Trump administration is seeking a cutback in the EEOC’s budget.

The three current EEOC commissioners are Chair Janet Dhillon, a Republican, who was sworn in in May; Republican Victoria A. Lipnic; and Democrat Charlotte A. Burrows, who has been confirmed by the Senate for a second term.

President Trump nominated Keith Sonderling, formerly a senior policy adviser with the Department of Labor’s wage and hour division, as an EEOC commissioner in July, but his nomination is still pending in the Senate.

Tim K. Garrett, a member of Bass, Berry & Sims PLC in Nashville, Tennessee, who represents employers, said by having a commission “that is less than full, we’re not getting the most out of it. How that plays out, I don’t know, but it is important, I think, for the commission to be at its full complement.”

“It makes things more difficult; it makes things seem less legitimate, and it’s not going to enhance” the EEOC’s credibility, said Richard B. Cohen, a partner with FisherBroyles LLP in New York who represents employers.

“When there is less than a full complement of commissioners, and the workload is higher on each person’s shoulders, it’s impossible” for all its business to be dispatched promptly, said Gerald L. Maatman Jr., a partner with the labor and employment practice of Seyfarth Shaw LLP in Chicago.

Mr. Maatman said also while the agency has been filing lawsuits that involve one or two employees, “we’re not seeing systemic lawsuits being filed in any degree as in past years.

“One of the conclusions to be drawn is that the new folks in leadership positions at the EEOC have changed the direction of the litigation enforcement program away from a big case docket to a more targeted docket” involving employment decisions that impact one or two individuals, Mr. Maatman said.

James Passamano, of Sufian & Passamano LLP in Houston, who is a former EEOC senior trial attorney, said an important role of the commission is to direct the agency’s litigation strategy and act if it sees “a persistent problem of a particular type of discrimination,” across the nation.  

“If you don’t have a full commission that could see those priorities, and see where the resources of the U.S. or the commission need to be applied, you’re really losing the purpose of the commission to combat discrimination on a national level, as opposed to individual claims that  might come up,” said Mr. Passamano, who now specializes in representing health care providers.

Suzanne Bonamici, D-Oregon, chair of the House Subcommittee on Civil Rights & Human Services Protections, said in an opening statement at a hearing Thursday that the president’s fiscal year 2019 budget proposed a nearly $24 million cut to the EEOC’s budget, as well as a 13% cut to the budget of the Office of Federal Contract Compliance Programs.

“These drastic cuts send a clear message about the value, or lack thereof, this Administration places on the protection of civil rights, and that message has been reiterated through its policy decisions,” she said.

Rep. Bonamici said also, “The EEOC appears to be adopting the Administration’s lax approach to workplace discrimination. The commission has not filed any new cases of sex-based discrimination related to gender identity or sexual orientation since September 2017.

“And although it cleared the notorious case backlog, its ability to do so while employing fewer people raises serious questions about how rapidly cases are being closed.”

Rachel Shonfield, first vice president of the American Federation of Government Employees Council 216, the National Council of EEOC Locals, said, “We’re concerned about the budget cut because we’re very short staffed.”

In addition, there has been “relentless pressure” to close cases quickly “rather than investigating the cases in any substantive manner” at the agency, said Ms. Shonfield, who works in the EEOC’s Miami office.

Meanwhile, according to news reports, Ms. Dhillon testified at the House subcommittee hearing last week that the Office of Management and Budget was sent the EEOC’s enforcement guidance on sexual harassment nearly two years ago, but has not given it its final approval.

Jerome Schlichter, senior partner with Schlichter, Bogard & Denton LLP in St. Louis, who represents employees, said, “Many people are very concerned about whether the EEOC will be a strong advocate for workers and people discriminated against on the job, so we are hopeful that they will continue in that role.”

However, Richard D. Tuschman, of Richard D. Tuschman PA in Plantation, Florida, who represents employers, said, “The day-to-day operations of the EEOC are not immediately impacted by whether the EEOC has a full complement of commissioners.”

“Employers still present submission statements in the usual way, and you still deal with the same investigators and you still have onsite investigations conducted.

“The commission itself sets priorities, and they point the agency in certain long-term directions, but if you’re just doing day-to-day work, you’re not really concerned too much about the makeup of the commission,” Mr. Tuschman said.

Even without a full set of commissioners, the EEOC “is continuing to be aggressive about bringing actions,” said Paul E. Starkman, a member of law firm Clark Hill PLC in Chicago.

“They’re not as aggressive as they were under the Obama Administration, but they’re still bringing actions and taking charges, and conducting investigations,” he said. “I think the offices have picked up the slack.”

Last week’s announcements by the agency included a San Jose, California-based food producer and distributor agreeing to pay $2 million to settle an EEOC race discrimination lawsuit in which it was charged with refusing to hire non-Hispanic applicants for unskilled positions.

In addition, the Atlanta-based United Parcel Service Inc. resolved an EEOC charge without litigation by agreeing to pay $2.25 million to workers who suffered losses because they were not accommodated during their pregnancies between 2012 and 2014.

Meanwhile, most observers say it is unlikely the EEOC will change its position in favor of extending the protection of Title VII of the Civil Rights Act of 1964 to transgendered individuals despite the contrary position advocated by the Department of Justice.

“I think the EEOC is sort of wedded to that position now,” said Mr. Cohen.

The EEOC did not respond to a request for comment.