Monday, November 2, 2009

Employers Under Siege by the EEOC?

Eeoclogo Not so says the EEOC.  From the National Law Journal:

Many of Burwell's clients who attended the breakfast are facing EEOC charges, some for the first time. "A lot of people had questions" for the agency, said Josephine Avery, vice president of human resources of the Motor City Casino Hotel, who attended the breakfast. It was "a good opportunity to hear what they had to say."

And what did the EEOC say? "We're not the big bad government coming after them, and we truly do want to forge a partnership [with employers], but we have to enforce these laws," said Deborah Barno, the supervisory trial attorney in the Detroit EEOC office, noting that the jobless are seeking legal redress like never before. "Our lobby is full every day, and mailed-in charges are increasing even more." The Detroit office of the EEOC alone has 2,500 complaints pending before it — 25% more than it had pending at the start of the recession in 2007.

Welcome to the world of employers under siege. Discrimination complaints from their former and current employees are flooding into the EEOC and similar state agencies. Management lawyers are getting their desperate calls. And the lawyers anticipate that, by the end of 2009, the number of claims will look even worse.

From 2007 — the recession first started in December of that year — to the end of 2008, overall claims filed with the EEOC increased by 28%, from 83,000 to 95,000. Discrimination claims jumped by 28%, and retaliation charges — what lawyers call the hottest charge these days — jumped by 22% last year, from 27,000 to 33,000 claims. The EEOC does not have numbers yet for 2009.

Clearly, the EEOC is receiving more complaints because of the economic recession, but are the EEOC regional offices pro-employee too much?  I would be interested in readers comments on their notions from both sides of the bar.


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EEOC is never pro-employee. I would love to see an instance where that might be true. I am biased. I represent more employees than employers. But, that is my view.

Posted by: Tom Crane | Nov 2, 2009 9:44:37 AM

Before the EEOC makes a determination favorable to the employee, the agency plainly is not pro-employee too much. Even if the agency wanted to be pro employee either as a policy matter or as a personal choice by EEOC personnel, the agency's limited resources prevent it from being too aggressive in investigating charges. In many cases, the investigations are inadequate. This may happen because the EEOC chooses not to devote the resources to the investigation or because the complainant has inadequately described the charge and supporting evidence. Either way, most of the time, employers are subject to less scrutiny than an agressive, well-funded, law enforcement agency should be conducting.

Of course, some cases will garner more attention and resources. When that happens, the tide shifts, and the EEOC becomes aggressive in its investigation. Still, the EEOC is not yet pro-employee at that stage. My experience has been that the investigators begin every investigation from a neutral or pro employer persepctive. Once the evidence reveals that a charge may have merit, however, the efforts on behalf of the employee's interest become increased.

When the EEOC finds probable cause that the law it enforces has been violated, the EEOC's conciliation efforts are pro-resolution. If that means that the resolution favors one side or the other, that is a collateral result. A well represented party will often get the better part of the deal. Conversely, a poorly represented party will get the worse of it.

After the EEOC decides to file a lawsuit against an employer and the attorneys at the agency become more actively involved, the agency is very much pro-employee. Is the EEOC too much pro-employee? At that point, the mission is clearly on the side of the employee. The agency lawyers must represent the AGENCY zealously. They only become too much pro-employee if they behave unethically. I doubt that happens very often.

Posted by: Greg Gordillo | Nov 2, 2009 9:44:46 AM

Well, let me assure you that there are two sides to this story. (Like Tom, I am admittedly biased towards my side, in this case for the employers.). While I agree that EEOC sometimes fails to commit resources to a charge, thereby giving a pass to the employer, the pro-employee tilt of the agency is felt most often in the treatment of employers by frontline EEOC staff. With some exceptions, EEOC investigators tend to believe employee assertions of fact and discount or disbelieve employer evidence at an alarming rate. And, yes, this is during the initial investigation. This is really not too surprising when you consider that people choose to join the agency to help discrimination victims -- it only stands to reason that there would be a pro-employee bias in that group. But as to the story in question, I am certainly willing to concede that many employers are simply unhappy to have to deal with a charge and thay wrongly believe the agency is out to get them.

Posted by: King Tower | Nov 2, 2009 4:42:07 PM

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