[Congressional Record Volume 160, Number 146 (Wednesday, December 3, 2014)]
[Senate]
[Pages S6297-S6298]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Mr. ALEXANDER. Mr. President, last week I released a staff report
that found litigation missteps at the Equal Employment Opportunity
Commission are costing taxpayers millions, while at the same time EEOC
faces a deep backlog of discrimination complaints.
The report finds that the EEOC has had a recent pattern of pursuing
questionable cases through sometimes overly aggressive means and as a
result has suffered significant court losses that are embarrassing to
the agency and costly to taxpayers.
Courts have found EEOC's litigation tactics to be so egregious they
have ordered EEOC to pay defendants' attorney's fees in 10 cases since
2011. The courts have criticized EEOC for misuse of its authority, poor
expert analysis, and pursuit of novel cases unsupported by law.
While the agency has pursued high-profile lawsuits without a
complainant, in March 2014 EEOC reported almost 71,000 unresolved
complaints of discrimination from individuals who filed charges. The
agency's litigation has recovered almost $200 million less for victims
than under the previous administration over the same timeframe.
The report finds that EEOC also has suffered from a troubling lack of
transparency. In the past 2\1/2\ years, EEOC has ignored calls from
current Commissioners and Congress to allow public review of
significant and controversial guidance prior to its adoption. Also, the
Office of General Counsel has, since 2010, failed to issue its standard
annual report, and the agency is being sued for violating the Freedom
of Information Act.
Certainly, the EEOC of today has had successful enforcement efforts
and court victories for victims of discrimination, but this report
finds the agency is increasingly demonstrating poor judgment and using
questionable tactics in pursuit of cases that are not fulfilling the
EEOC's objective of protecting employees from workplace discrimination.
The full report, ``EEOC: An Agency on the Wrong Track? Litigation
Failures, Misfocused Priorities and Lack of Transparency Raise Concerns
about Important Anti-Discrimination Agency,'' may be viewed on the HELP
Committee's website, http://www.help.senate.gov/.
[[Page S6298]]
I ask unanimous consent to have the report's executive summary and
key findings printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the U.S. Senate Committee on Health, Education, Labor and
Pensions--Ranking Member Lamar Alexander (R-TN) Minority Staff Report,
Nov. 24, 2014]
EEOC: An Agency on the Wrong Track? Litigation Failures, Misfocused
Priorities, and Lack of Transparency Raise Concerns About Important
Anti-Discrimination Agency
executive summary
The Equal Employment Opportunity Commission (EEOC) serves
an important role in our nation's workplaces. Under the
leadership of five commissioners and a general counsel, EEOC
is charged with protecting employees from discrimination at
work through enforcement of equal opportunity employment
laws. The commission investigates allegations of
discrimination and seeks to mediate cases, allowing lawsuits
to go forward if settlements are unsuccessful. The general
counsel pursues allegations of discrimination in court and
has been deputized by the commission to initiate litigation
in many instances. The commission also issues guidance to
inform the public about how it believes employers should
interpret and apply the laws.
Today's EEOC, however, is pursuing many questionable cases
through sometimes overly aggressive means--and, as a result,
has suffered significant court losses that are embarrassing
to the agency and costly to taxpayers. Courts have found
EEOC's litigation tactics to be so egregious they have
ordered EEOC to pay defendants' attorney's fees in ten cases
since 2011. The courts have criticized EEOC for misuse of its
authority, poor expert analysis, and pursuit of novel cases
unsupported by law. Several courts have openly criticized
EEOC for its failure to satisfy pre-litigation requirements,
such as attempting to resolve discrimination disputes out of
court; yet, the general counsel is leading an effort to
prevent court review of such requirements.
These court losses also have come at a significant cost to
victims of workplace discrimination. While EEOC's monetary
recoveries for victims through settlements are up, EEOC's
litigation has recovered almost $200 million less for victims
than under the previous administration over the same time
frame. In March 2014, EEOC reported almost 71,000 unresolved
complaints of discrimination from individuals who filed
charges with EEOC.
EEOC also has suffered from a troubling lack of
transparency. In the past two and a half years, EEOC has
ignored calls from current commissioners and Congress to
allow public review of significant and controversial guidance
prior to its adoption. Also, the Office of General Counsel
has, since 2010, failed to issue its standard annual report,
and the agency is being sued for violating the Freedom of
Information Act.
This staff report will first explain the background and
operation of EEOC. Next, the report will explore costly
rebukes of EEOC's recent litigation practices. The report
will also discuss the ways in which EEOC has shown a lack of
transparency.
Today's EEOC has had successful enforcement efforts and
court victories for victims of discrimination, but this
report finds the agency is increasingly demonstrating poor
judgment and using questionable tactics in pursuit of cases
that are not fulfilling the EEOC's objective of protecting
employees from workplace discrimination.
key findings
EEOC's Office of General Counsel frequently initiates
litigation without the benefit of a commission vote. In FY
2012, only three of 122 lawsuits filed by EEOC were brought
to the commission for a vote. According to a former EEOC
general counsel who served from 2003 to 2005, this represents
a significant departure from the previous commission.
EEOC has been sanctioned by courts and ordered to pay
attorney's fees ten times since 2011 for untenable litigation
and litigation strategies. (See Appendix 1.)
Monetary awards pursued in litigation for victims of
discrimination are down from previous years. In FY 2012 and
2013, EEOC recovered $44.2 million and $38.6 million,
respectively--the lowest recovery amounts in the past 16
years.
As of March 2014, EEOC had 70,781 unresolved discrimination
charges pending.
EEOC's credibility is at risk. As one commissioner
described, EEOC's ``reputation and credibility has . . .
suffered from several recent lawsuits where [EEOC was] not
only sanctioned, but openly chastised by the courts.''
A federal court reprimanded EEOC for being ``negligent in
its discovery obligations, dilatory in cooperating with
defense counsel, and somewhat cavalier in its responsibility
to the United States District Court.''
EEOC caused a small employer to spend $100,000 attempting
to comply with requests for information that, according to a
federal judge, ``EEOC had no authority to obtain.''
A unanimous three judge panel of the U.S. Court of Appeals
for the Tenth Circuit found ``[t]he EEOC continued to
litigate . . . claims after it became clear there were no
grounds upon which to proceed.''
EEOC is not consistently meeting its statutory mandate to
attempt to resolve discrimination disputes out of court. One
court found EEOC ``blatantly contravene[d] Title VII's
emphasis on resolving disputes without resort to
litigation,'' and another found EEOC ignored its obligation
to conciliate. EEOC's general counsel is leading the fight to
prevent court review of such efforts, and the U.S. Supreme
Court is reviewing the issue this term.
Successful conciliations (i.e. resolution of a case outside
of court) have decreased from 8,273 during the first five
years of the previous administration to 6,967 during the same
time period in the current administration.
Despite Office of Management and Budget best practices
found in an agency bulletin and support from a majority of
commissioners, EEOC does not allow the public to review or
comment upon its draft guidance, even in cases of novel,
significant or controversial guidance. This is especially
concerning because in two cases last year, the U.S. Supreme
Court rejected substantive positions found in EEOC guidance.
Unlike prior years, EEOC's Office of General Counsel has
only published one annual report since 2010. These reports
summarize the activities and litigation record of the Office
of General Counsel.
EEOC is being sued for failing to meet statutory deadlines
imposed by the Freedom of Information Act (FOIA) and EEOC's
own FOIA regulations.
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