Note: About a week after this story was written, the EEOC filed a lawsuit against a Texas television station because it allegedly failed to consider qualifications when it rejected a 42-year-old female applicant for a position as a weather person. This lawsuit completely contradicts the EEOC’s decision in the case below and raises questions about what the EEOC’s position is with respect to qualifications.
A recent decision by the EEOC raises questions about whether the secrecy surrounding the EEOC’s handling of discrimination complaints hides serious procedural irregularities and basic unfairness.
EEOC spokeswoman Kimberly Smith-Brown has said that federal law “prohibits EEOC employees from confirming or denying the existence of charge filings, investigations or administrative resolutions. The only time information about a specific case becomes public is if EEOC files a lawsuit against the employer, which is usually a last resort.” This means that complaints and documents associated with the EEOC’s adjudication of complaints are secret – except in the rare instance when the EEOC files a lawsuit or a complainant objects publicly (and someone listens) to the EEOC’s handling of her complaint.
The EEOC’s secrecy rule stands in sharp contrast to the openness of the federal court system. If a complaint is filed in federal court, it is public and so are the documents associated with the complaint, unless the judge enters an order to seal the file. That order can be challenged by the media. Public access to court records serves to insure the integrity of the court system. The EEOC’s closed door rule leaves the public in the dark about the basis for complaints, why the Administrative Law Judge ruled the way h/she did, the context for the OFO’s decision on an appeal of the ALJ’s ruling and why the EEOC chose to affirm or reject the OFO’s decision. With secrecy, the public has no way to insure the integrity of the EEOC’s handling of complaints.
Not only does secrecy fail to insure integrity at the EEOC but it clearly benefits discriminatory corporations and businesses. Their customers never find out about their illegal acts and neither do their employees, who might put two-and-two together and file their own discrimination complaints. Complainants, who are almost always individuals, may prefer to have their name remain confidential because the mere fact they filed a complaint may make it difficult for them to find new employment. However, this preference can be accommodated through the use of a pseudonym, which is a practice the EEOC already employs when it publishes a precedential decision.