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The E.E.O.C. Is Short of Will and Cash

July 1, 2001

The E.E.O.C. Is Short of Will and Cash


WASHINGTON -- With headquarters in an unimpressive modern building in the middle of the northwest quadrant of the capital, where it is surrounded by small businesses and lobbyists' offices, the Equal Employment Opportunity Commission seems far removed from the marble columns and sway of the White House and Capitol just a few miles away.

Although the agency's mission of fighting discrimination in the workplace is central to a nation founded on the principle of equality, the E.E.O.C. has spent most of its 37-year history out of sight and of mind, and typifying the worst of government bureaucracy.

While it has become a much better-managed organization in the last eight years, the E.E.O.C. has many critics. They say it lacks the political will and the wherewithal to aggressively pursue all companies guilty of blatant discrimination and harassment.

Within weeks, a new commission chairman is expected to be confirmed by the Senate for a five-year term. President Bush has nominated Cari M. Dominguez, a workplace consultant who served in the Labor Department during the administration of Mr. Bush's father. Ms. Dominguez will replace Ida L. Castro, the chairwoman appointed by President Bill Clinton in 1998.

But President Bush's commitment to the agency is unclear, and most people who follow the agency expect the new administration to continue the pattern of previous ones, Democratic and Republican alike, in considering it a low priority. Without larger budgets and greater political influence, the new chairwoman may have as much trouble as her predecessors in transforming the agency into a powerful force.

Although it does manage to process the tens of thousands of complaints it receives each year, the agency seems passive, unable to develop a dynamic master plan to root out the worst cases of discrimination. Its enforcement efforts often seem haphazard and uncoordinated, critics say, and it is noticeably absent in many lawsuits accusing the nation's most powerful companies of widespread discrimination.

It did not join a lawsuit filed in mid-June, for example, by six female employees against Wal-Mart Stores, accusing the company of engaging in widespread discrimination against women. The suit seeks class- action status for an estimated 700,000 women -- former and current employees -- in what could be the largest discrimination lawsuit ever brought against a private employer in the United States. The company denies the allegations.

Throughout corporate America, complaints of discrimination and harassment remain stubbornly high, despite the decade-long economic boom that forced many employers to scramble for workers. Some 80,000 individual complaints are made annually to the commission, a number that has held steady in recent years. A growing proportion are accusations of harassment of women and minorities: factory floors where some men feel free to expose themselves and work places where supervisors don Ku Klux Klan hoods or fellow employees hang nooses. Claims of retaliation by employers against workers who have complained of discrimination have nearly tripled in the last decade, to about 22,000 a year.

"There are thousands of establishments that appear to be discriminating," said Alfred W. Blumrosen, a professor at the Rutgers School of Law in Newark, who was an official at the agency in its early years and has maintained ties there. With a Ford Foundation grant, Mr. Blumrosen is analyzing the agency's own data, without identifying specific companies, to determine the breadth of discrimination in the United States. He plans to release his results this fall.

Through much of its history, the E.E.O.C. has been plagued by a lack of resources and a combination of internal politics and inefficiencies that have prevented it from accomplishing much more than isolated victories. While it has recently taken stands on some controversial issues -- it has sought to prohibit employers from using genetic testing on employees and to force companies to cover the cost of prescription contraceptives -- its critics say it is too cognizant of how the political winds are blowing to pursue its mission aggressively.

"There is not a huge national will to have the agency be more effective," said John Rowe, a district office director in Chicago who has worked for the E.E.O.C. for nearly 30 years. "It shows itself not only in the want of resources and want of political appetite for radical change but also down in the trenches. It's unwise to upset anybody too much."

Since the agency gets little respect, morale has chronically suffered. Without the money to hire more lawyers and investigators or to buy computers, the agency fell further and further behind in the 1980's into much of the 1990's.

Some people hope that the new leadership can reinvigorate the agency, not least because they have better relations with corporate America. "I still want the E.E.O.C. to be a powerful player," able to work with companies and take vigorous enforcement action when necessary, said Lynn Martin, a labor secretary in the first Bush administration. But she added that now would be time for "a good look-see" at the agency.

While civil rights advocates generally praise the commitment of the new nominee, Ms. Dominguez, to ending discrimination, much of her ability to make a difference will depend on support from the White House. "Unless you have a direct line in there, you are not going to get much accomplished," said Gilbert F. Casellas, who was chairman of the agency for three years during the Clinton administration.

There is a danger that the president will not support Ms. Dominguez if she stakes out positions that are too assertive. Mr. Bush has already undercut the positions of some members of his cabinet, notably Christie Whitman, administrator of the Environmental Protection Agency, who had to back down on her support for cutting power-plant emissions.

There also appears to be little hope that the commission will receive larger budgets under Mr. Bush. The slight increase requested for the coming year translates into a de facto cut because so much of the agency's budget represents salaries for its 2,800 employees and payments for the space it occupies in 50 field offices and 24 district offices across the country. Those costs are rising faster than the size of the budget.

Although it still has miles to go, the agency is more efficient than it used to be. Chronically short of staff and laboring under a policy of Clarence Thomas, its chairman from 1982 to 1990, to fully investigate each and every complaint, the agency was drowning in a backlog through the early 1990's.

Under Mr. Casellas and Ms. Castro, it extricated itself from the piles of complaints clogging its system.

"This agency is a viable enforcement agency," said Nancy Kreiter, the director of research at Women Employed, a nonprofit group in Chicago that evaluates the commission and, in recent years, has been chosen by the agency to monitor its settlements. "It was not eight years ago."

The agency has begun to prioritize complaints and now tosses out as many as one-fifth as having little merit. "The gunshot wound and the paper cut should never be treated the same," Mr. Casellas said. The number of unresolved claims has been slashed to 41,000 from a peak of 111,000 in 1995. The average filing is now resolved within six months.

The agency, whose responsibilities expanded significantly under the Americans with Disabilities Act of 1990, was also able to free resources by better managing its operations. "When we came in," said Paul M. Igasaki, the vice chairman, referring to his arrival with Mr. Casellas and another commissioner in 1994, "there were enough inefficiencies to wring out."

An influx of about $60 million, in addition to its usual budget, in the last three years of the Clinton administration allowed the agency to play some desperately needed catch-up. Ms. Castro hired more lawyers and investigators and made investments to upgrade the computer system. When she arrived, some offices around the country had no e-mail or access to the Internet. She was also able to spend money on formal, in- house job training for employees.

The agency also came up with some creative ways to stretch its resources. One initiative, in particular, has won universal praise: a voluntary mediation program overseen by the agency. Some 23,000 employment discrimination cases have gone through such mediation in the last two and a half years, and, for the most part, employers and employees alike have been extremely satisfied with the process.

"We think the program ought to be expanded," said Jeffrey A. Norris, the president of the Equal Employment Advisory Council, a nonprofit group in Washington with 350 member companies that seeks to influence employment law and policy through courts and regulators.

The agency also brought some lawsuits that garnered headlines and won applause from civil rights advocates. In June 1998, the Mitsubishi Motor Manufacturing Company of America agreed to pay $34 million to hundreds of women to settle a suit over accusations of sexual harassment at its plant in Normal, Ill. The previous year, the E.E.O.C. reached a $63.5 million agreement with Publix Super Markets in a sex-discrimination suit and a $13 million settlement with Martin Marietta over allegations of age discrimination.

The agency says it has won more money for aggrieved employees in recent years from settlements and other agreements with employers. That reached a peak of about $250 million in the latest fiscal year -- not including $50 million awarded by courts.

"The results have been pretty much, if I may say so, astonishing," said Ms. Castro. Many would agree.

But money remains crucial to the E.E.O.C.'s ability to keep functioning at such a level, especially in maintaining its computer systems and developing innovative programs. "Without the resources, I would not have been able to accomplish half of what was done," Ms. Castro said.

A few years ago, for example, when Congress refused to provide additional money, the agency had to cut back on the mediation program. It still has not fully taken off. And when the agency began experimenting to check employers' hiring processes by sending out test applicants, Congress reacted by refusing to allocate any money for such a tool.

The agency also faces challenges quite distinct from its level of resources. One is internal politics. It is a bipartisan agency, and the chairman, who is appointed by the president, serves with four other commissioners, Republicans and Democrats, in staggered terms. When Ms. Castro leaves -- her term expires in 2002 -- the new agency head will inherit two Democratic commissioners, Mr. Igasaki and Paul Steven Miller; the other two seats are now empty. The president also appoints a general counsel, who is in charge of litigation efforts and who has sometimes viewed his or her position as independent of the other commissioners. (That position has been vacant since December.) Regional offices, meanwhile, have had varying degrees of autonomy.

There is "a history of quiet warfare between the general counsel and the chair and the field offices that continues to this day," said Mr. Rowe of the Chicago office.

Critics say field offices vary in quality. Some, like New York and Chicago, have a strong litigation effort, while others seem less active in bringing lawsuits. Some may have other strengths, like Baltimore with its mediation program. But the consensus is that there is a decidedly mixed enforcement effort that lets many employers escape close scrutiny.

"It certainly seems that Silicon Valley, the high-technology industry, has gotten a pass," said Michael Selmi, a law professor at George Washington University and a frequent critic of the agency.

The E.E.O.C. has gotten "very, very few charges" from employees in the technology industry, said Mr. Igasaki, the vice chairman. But the agency is concerned about the possibility of discrimination in that area, he said.

The decision by Mr. Casellas to delegate more authority to the local level has also led to a wide variety of interpretations of the agency's mission. The offices "have had a free hand in setting their own agendas and courses," said Reginald E. Jones, a commissioner from 1996 to 2000 and now a lawyer at Ogletree, Deakins, Nash, Smoak & Stewart in Washington. In some cases, he said, one office will pursue a different strategy than another on the same issue.

Mr. Igasaki agreed that this was a problem. "We need to be clear with the field on what is delegated and what is not," he said.

Coordination among regions also remains weak. The Chicago office, for instance, reached an agreement with the Ford Motor Company over complaints of sexual harassment at two area plants; in the deal, the company agreed to pay $7.5 million to the employees who said they were harassed. But several similar complaints about some of the company's Michigan plants have not been litigated by the Detroit office, which has taken action against Ford in other matters.

Yet the Norfolk, Va., office did sue Ford earlier this year over similar accusations at a truck assembly plant there. In that case, which is still pending, Ford said its investigation of the complaints could not find anyone who might have been responsible for any harassment. The company has said it takes complaints of sexual harassment very seriously and is aggressively educating its employees on the issue.

In its defense, the agency points to a few examples of different offices working closely together on cases, including a 1997 disability discrimination suit brought by the San Francisco and Cleveland offices against the United Parcel Service. That case, which involves drivers with vision in one eye, is still pending. U.P.S. says it does not believe that this is a matter of discrimination, but of the safety of the driving public.

The commissioners acknowledge that more needs to be done to coordinate efforts. "These are very, very hard institutional issues to work through," said Mr. Miller, the commissioner.

Even when an issue is a clear priority, like protecting disabled employees, enforcement efforts often appear piecemeal.

The commission has sued Wal- Mart 16 times, most recently in June, because of complaints that the company was violating the rights of disabled employees. Only a handful of those cases have been resolved. The E.E.O.C. says it does not know at this point if the claims of discrimination at different stores reflect some companywide policy.

Wal-Mart says it has a strict policy against discrimination of any kind. Critics also say the agency has often failed to use its full power to attack the most systemic cases of discrimination. While the agency collects information from employers that can show discrimination patterns, it does not often use the data to file suits or to warn companies that they may be discriminating. The political sensitivity over quotas has made the E.E.O.C. and other agencies "cautious about numerical guides and standards," said Professor Blumrosen, despite what he believes is their legal authority to pursue cases on that basis.

The agency also remains backward in its use of technology to look at data. While it expects to upgrade its computer system soon, for now most people outside of headquarters cannot easily look up a specific company and see all the different discrimination complaints brought against it. "We use the data we have," Ms. Castro said. "We don't use it to the maximum extent."

While the E.E.O.C. has been aggressive in bringing lawsuits on behalf of some people who might not bring them, like mentally retarded employees and illegal immigrants, it has been hesitant to use its resources to go after what may be the very worst offenders, critics say. When accusations surfaced of sex discrimination at Wal-Mart, for example, three private law firms joined forces with three nonprofit legal groups to come up with the resources to pursue the case and spent more than a year gathering evidence.

The E.E.O.C. has also stayed on the sidelines of other high-profile cases, like a lawsuit against Xerox contending racial discrimination or the recent suit accusing Microsoft of racial and sexual bias. The agency says it may at times defer to private lawyers or work with them on cases involving the public interest.

The companies involved in these lawsuits deny the accusations.

The agency says it tries to represent individuals as well as pursue suits that may have larger impact. About a third of the cases it is choosing involve groups of people or accusations of systemic discrimination.

Critics also say the agency does not adequately follow up on remedies for discrimination once it has reached an agreement with an employer to do so. While the agency monitors repeated complaints, it typically does not initiate reviews. It did take Wal-Mart to court recently, accusing it of violating a settlement; Wal-Mart said it has made a good- faith effort to comply.

With limited resources, some people at the agency say choices must be made. "There is a point at which you have to say Ānext case,' " Mr. Rowe said.

Without greater support from both Republicans and Democrats, the E.E.O.C. may be destined to struggle along in this state. In many eyes, that appears likely.

"It seems that continual neglect is the preferred policy," said Professor Selmi of George Washington. 

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