[Congressional Record (Bound Edition), Volume 160 (2014), Part 12]
[Senate]
[Pages 16572-16573]
[From the U.S. 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/.
  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

[[Page 16573]]

     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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