In my last post, I discussed the EEOC’s pursuit of systemic
harassment cases and noted that they almost always settle with the entry of a
consent order. Today, I want to
take a closer look at some of those consent orders and consider whether the
EEOC is missing an opportunity to pursue positive structural changes in some
workplaces that need them.
As part of a recent project, I reviewed the consent orders
that were publicly available in EEOC pattern or practice of harassment
cases. The consent order recently
entered in EEOC v. Corrections Corp. is a fairly typical one. The highlights of that consent order
include:
(1) monetary relief in the amount of $1.3 million;
(2) enjoining the employer from maintaining a hostile work
environment or retaliating against an employee complaining of a hostile work
environment;
(3) requiring the employer to maintain policies and
practices that help assure a work environment free from sexual harassment of
their employees, including maintaining a 1-800 number for reporting complaints;
(4) requiring the employer to retain a training consultant
to provide consultation and training on sexual harassment for 3 years. This consultant must provide one live
training session (at least 90 minutes, plus at least 15 minutes for Q&A)
annually for the first 3 years, after which time the defendant may use a
videotape of the training session;
(5) requiring HR and managerial staff to be provided 2 hours
of training on prevention of harassment and retaliation;
(6) requiring the employer to maintain a written policy
concerning sexual harassment, which must meet certain identified minimum
criteria;
(7) requiring the employer to assign outside investigators
to investigate any complaints of harassment; and
(8) requiring the employer to self-report to the EEOC its
compliance with the consent order.
Most of the consent orders that I researched in systemic
harassment cases likewise focused on monetary relief, changes to written
policies and handbooks, similar mandatory harassment training requirements, and
self-reporting.
The Corrections Corp. consent order also appears to be
generally consistent with the EEOC’s overall approach to consent orders in sex
discrimination cases. A study by
The WAGE Project examined a total of 160 consent decrees (or EEOC summaries of unavailable
consent decrees) in sex discrimination cases. Of those, 96% contained some form of monetary award, 57%
contained employee training requirements, and 56% contained compliance reporting
requirements. Only 21% required
the appointment of a monitor. Less
than 3% contained provisions allowing the EEOC to conduct interviews with
employees in the future. I discuss a potential problem with this approach after the jump.
There are good reasons to doubt the effectiveness of the
EEOC’s approach. Professor Susan
Bisom-Rapp and others have extensively researched the effectiveness of
mandatory harassment training programs.
Professor Bisom-Rapp argues that, when poorly implemented, mandatory harassment
training programs are ineffective and even counterproductive. They can give the appearance of legal
compliance without actually accomplishing any real change in the work
environment. They can also lead to
employee backlash. See, e.g.,
Susan Bisom-Rapp, An Ounce of Prevention is a Poor Substitute for a Pound of
Cure, 22 Berkeley J. Emp. & Lab. L. 1, 31-38, 44-45 (2001).
What I find curious about the EEOC’s approach is that, in
the past, the EEOC has been more ambitious about obtaining meaningful prospective
relief that will lead to structural change in workplaces. In both EEOC v. Mitsubishi and EEOC v.
Dial (mentioned in my last post), the EEOC required the appointment of an
independent monitoring panel as part of the consent order. The panel consisted of one member
appointed by the employer, one by the EEOC, and a chairperson agreed to by the
parties. The employer compensated
the panel members at rates agreed to by the parties and the panel members. The panel conducted periodic reviews
and reported to the EEOC.
Importantly, the panel was allowed to gain information about the
problems in the workplace over time and to make recommended proposals for
change. The employers were
required to adopt the panel’s recommendations, subject to an objection and
resolution procedure. This allowed
for solutions to be developed and implemented that were uniquely tailored to
the problems observed in each employer’s workplace. In addition, the employer in Dial was also required to
permit the EEOC to conduct periodic follow-up interviews with employees. EEOC Regional Attorney for the Chicago
District Office John Hendrickson has touted the positive results in the
Mitsubishi case, and has specifically noted the importance of the “sleeves-up, in-the-trenches work of the Consent Decree monitors”
in accomplishing substantial change in the workplace. See Selected
Materials on “Multiple Plaintiffs and Class Actions in Sexual Harassment
Matters,” PLI Order No. 8483 (June 2006). And the Mitsubishi and Dial
consent orders represent just a few examples of potential prospective solutions
that could be incorporated into consent orders. Other examples might include requiring employers to
collaborate with industrial psychologists or organizational consultants and
implement their recommendations.
So why hasn’t the EEOC been pursuing more creative and
effective prospective relief, tailored to the individual circumstances and
problems of each employer? Why is
the EEOC placing so much emphasis on obtaining large monetary settlements for
the individual claimants? After
all, as one court recently reminded us, “[T]he EEOC’s ability to secure enforcement of Title
VII on behalf of the public is primarily served through its ability to secure
injunctive relief, not bootstrapping individual damage claims into the EEOC’s
enforcement action.” See EEOC v. Burlington Med. Supplies, Inc., 536 F. Supp. 2d 647, 659
(E.D. Va. 2008).
Perhaps the EEOC is emphasizing monetary relief in these
cases because of a belief that large monetary settlements will deter tolerance
of harassment in other workplaces.
There seems to be little empirical support for that position, and in
fact there may be at least some reason to doubt it. See Michael Selmi,
The Price of Discrimination: The
Nature of Class Action Employment Discrimination Litigation and Its Effects, 81
Tex. L. Rev. 1249, 1305 (2003) (arguing that the filing and settlement of large
class action discrimination suits has had little, if any, deterrent effect). If anything, news of large monetary
settlements might give other employers an incentive to adopt some cosmetic
changes – like mandatory harassment training and changes to written policies –
that will give the appearance of legal compliance while having very limited
effectiveness in actually changing behavior. The relative deterrent effects of monetary damages and prospective
injunctive relief, however, are certainly worthy of further study.
Perhaps employers are just unwilling to agree to more
intrusive prospective measures (or unwilling to agree to pay for them). It is essentially impossible for us to
determine what positions the parties are taking during the negotiations leading
up to these consent orders. But it
seems unlikely that the EEOC can get employers to agree only to annual standard
harassment training sessions, when it was previously able to implement much more
comprehensive programs in the Mitsubishi and Dial consent orders. In any event, employers’ resistance to
such programs might be tempered if the EEOC changed its focus and emphasized
the importance of meaningful prospective measures in negotiations, rather than
just focusing on the relative size of the monetary payments. Individual claimants with strong claims
for monetary damages could intervene in the EEOC’s enforcement action to
protect their own pecuniary interests – as they often do, and as 3 of the 21 claimants
did in Corrections Corp.
In any event, it seems to me that when negotiating consent orders in cases like Corrections Corp., the EEOC would do well to keep in mind the words of the Burlington court. The EEOC does the most public good by spurring actual structural changes in workplaces through effective injunctive remedies, not by simply maximizing the monetary payment it can extract from the employer.
-Jason Bent
https://lawprofessors.typepad.com/laborprof_blog/2009/10/why-isnt-the-eeoc-pursuing-better-consent-orders.html
This is a great post, Jason. I would suspect that there are several reasons that the EEOC isn't getting that concession in consent orders, all of which relate to resources and political climate.
One reason is related to the way that the EEOC tracks its performance. It primarily has measured performance almost purely quantitatively: how many charges processed, cases litigated, cases won, cases settled, employees affected, dollars recovered. It has been criticized for this quantitative approach by the National Association of Public Administration, which did a study a few years ago to assess the EEOC's performance. But numbers are easier to track and measure than qualitative standards--and with few resources, that's what the EEOC has done. Additionally, that seems, from what I can tell, that prior administrations required of the agency.
Monitoring the employer may be expensive as well. Agency resources would have to be expended even where the employer paid for an outside monitor because ultimately the agency would have to be able to determine whether the employer was complying.
I think another reason is that there was little political will in the executive branch generally to have monitoring, at least under the prior administration, and probably the prior several. Privatization and self-reporting were thought to be the best/most efficient governance strategies. So there may have been little push to have the EEOC get the concession.
Related to that, the EEOC and Title VII are seen as remedial and not regulatory. Monitors are regulatory.
Finally, I doubt that in the current climate most employers would agree to monitoring unless they were really committed to change--which is going to depend a lot on the circumstances of the discrimination. Nancy Levit's article on Megacases sort of digs into this a bit. But some considerations might be that upper level leadership might realize that it doesn't have effective control on the ground and wants the outside help. Additionally, the company may need the good press that the fact of an outside monitor would demonstrate.
And ultimately, I don't think many courts would order monitoring in the current climate (and that's ultimately the stick you use to settle--would a court order something worse) unless the underlying situation was particularly egregious. Perhaps it was bad enough in the corrections case, but there's that underlying hesitation to act as a super-personnel board for private employers. So what incentive would an employer have to agree to such an invasive measure?
Posted by: Marcia | Oct 22, 2009 7:44:49 PM