It is hard to believe but the U.S. Chamber of Commerce has accused the U.S. Equal Employment Opportunity Commission (EEOC) of overreaching in enforcing our nation’s employment discrimination laws. Hard to believe because the opposite is true.
Due to budget and staff cuts, the EEOC is litigating the fewest number of cases in modern history –148 in 2013 compared to 314 in 2009 and 416 in 2005. The EEOC has practically ignored the epidemic of age discrimination that has persisted since the start of the Great Recession in 2007. The EEOC received 21,396 complaints of age discrimination in 2013 but filed only seven lawsuits that year with claims under the Age Discrimination in Employment Act.
All of this makes it supremely ironic that the Chamber, which describes itself as “Standing Up for American Enterprise,” is urging the Congress to treat the EEOC as if it is a rogue agency that is bent on crushing the last vestiges of free enterprise in America.
A conservative profit-making group, the Chamber has been highly effective in lobbying the courts and the legislature to defeat pro-labor measures. The Chamber boasts that it filed briefs in a record 22 cases during the Supreme Court’s 2012–2013 term and that the Chamber’s position prevailed in 18—or 81%—of those cases.
In a 25-page report, the Chamber makes the following allegations:
- The EEOC’s compliance strategy prioritizes punishment and litigation over education and cooperation.
- The EEOC assumes employers are bad actors regardless of their efforts to comply with the law.
- The EEOC’s investigative tactics amount to “bullying,” including overly burdensome requests for information and sweeping subpoenas.
One of the examples cited by the Chamber as overreaching could just as easily be cited as under-reaching. According to the Chamber: “EEOC investigators propose large settlement figures, only to dismiss the case entirely upon rejection of the offer, making the whole basis of the original settlement offer intellectually dishonest and turning a supposedly neutral investigation into nothing more than a “shakedown.” But why doesn’t the EEOC pursue charges that merit large settlement requests? Maybe it’s because the Chamber has succeeded in torpedoing EEOC budget increases?
Much of the EEOC’s criticism focuses on an EEOC 2012 guidance encouraging employers to tread carefully when using criminal background checks in employment so as to avoid discriminating against African-American males. And this is offensive to the Chamber and its members?
The Chamber supports its thesis by citing opinions that are highly critical of the EEOC by conservative federal judges, including a somewhat notorious case in which a federal judge dismissed a class action sex discrimination lawsuit against a national trucking company and then slapped the EEOC with onerous punitive damages. See EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012).
The Chamber’s report, called “A Review of Enforcement and Litigation Strategy during the Obama Administration—A Misuse of Authority,” was issued last week prior to a meeting of the House Subcommittee on Workforce Protections.