At one time, the EEOC was seen as an opponent of big business, a champion of powerless workers who were denied equal rights in the workplace.
Not so much today.
Is it a coincidence that the EEOC recently got its first big budget increase in years and was applauded by U.S. Chamber of Commerce – no friend to workers – for focusing on “compliance assistance” rather than enforcement and litigation?
In the past decade, the EEOC has quietly shifted its emphasis away from litigation to “compliance” through education, training and mediation.
Bloomberg recently reported that Janet Dhillon, the nominee to chair the EEOC, and Sharon Fast Gustafson, the nominee to serve as EEOC general counsel, hope to focus more energy on conciliation and mediation in the years ahead. Since the pie is only so big, this means the EEOC will focus even less energy on litigation, which has been declining for years.
One can see why the EEOC’s new focus benefits the EEOC, which has endured withering criticism in recent years from members of the U.S. Congress and the federal courts for filing lawsuits against large employers. It is unlikely that anyone in Congress or the federal courts will mourn or even notice the EEOC’s absence. Yet, the EEOC’s shift in focus is not likely to address systemic and/or intentional discrimination by employers.
The EEOC acknowledges that it is responsible for “enforcing” the nation’s employment discrimination laws. The dictionary definition of enforcement is “the act of compelling observance of or compliance with a law, rule, or obligation.” Mediation does not compel compliance with the law except in the sense that it is a free and painless exit strategy for companies that have engaged in illegal discrimination.
The EEOC’s mediation program, which began in the 1990’s, allows discriminators to avoid the expense, notoriety and potentially catastrophic risk of a court proceeding. Mediation is confidential so employees back home and the general public are kept in the dark. And it’s free.
The EEOC quotes several “satisfied customers” on its web page – all employers. The agency says discrimination victims also give mediation a thumb’s up. However, this claim should be viewed in context.
As this blog has noted in the past, mediation works far better for employers than victims. Many (if not most) discrimination victims have no legal counsel, no clue about the real “value” of their case, and are willing to settle for the equivalent of small change because they’ve lost their job and something is better than nothing. Moreover, the alternative to mediation is the federal court system, where judges with lifetime tenure treat discrimination victims with thinly disguised disdain and overwhelmingly favor employers in their rulings. (To some extent, the EEOC’s shift away from litigation is a byproduct of a U.S. federal court system that is antiquated, inefficient and unfriendly to workers.)
It would be great if the EEOC’s new focus led to greater compliance with the nation’s civil rights laws … but there is no evidence that it will.
On its web site, the EEOC advertises “no cost outreach and education programs” to public and private sector employers.It is implied that employers would not discriminate if they had knowledge of U.S. discrimination laws. In fact, many employers – and all large employers – have professional human relations departments and legal staffs that are well versed in the law. They discriminate for a reason. Texas Roadhouse hires young wait staff to portray a fresh image and Google recruits recent graduates who are willing (and able) to devote all of their waking hours to Google.
Clearly, Texas Roadhouse and Google, with teams of highly paid attorneys on staff, know U.S. discrimination laws.
In recent months, the EEOC began offering “in depth” and on-site training “tailored to an employer’s needs” for a low-cost fee. This can’t hurt, of course, but there are private providers who already do this work. And it’s one thing to train workers to get along in a diverse workforce but it’s quite another to go after systemic, intentional and damaging age discrimination in hiring, which most adversely affects women.
Meanwhile, the EEOC refused a request to release the curriculum of its training program, stating the information is only available to paying customers (employers).