The Equal Employment Opportunity Commission (EEOC)—long tasked with protecting workers from unfair treatment—is now coming under fire for what some claim is unfair treatment perpetrated by the agency itself.
Republicans on the Senate Committee on Health, Education, Labor and Pensions issued the Minority Staff Report “EEOC: An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities, and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency.” The report, which was released on November 24, questions whether the EEOC is doing its job protecting workers from unlawful discrimination or whether it instead has gone off track, pursuing frivolous claims that waste taxpayer dollars and embarrass the agency. 
The senators behind the report aren’t the only ones questioning the tactics and motives of the nearly 50-year-old agency. Employers, too, are voicing concerns that the body created by the Civil Rights Act of 1964 is showing disturbing trends.
“Questionable cases”
The report accuses the EEOC of “pursuing many questionable cases through sometimes overly aggressive means.” It calls attention to cases in which courts have ordered the agency to pay attorney’s fees for some of the employers it has sued and also claims that courts have criticized the agency for “misuse of its authority, poor expert analysis, and pursuit of novel cases unsupported by law.”
The report goes on to note that some courts have criticized the agency for “failure to satisfy pre-litigation requirements, such as attempting to resolve discrimination disputes out of court.” The report blames P. David Lopez, the EEOC’s general counsel, for “leading an effort to prevent court review of such requirements.”
The report also complains about “a troubling lack of transparency,” noting that in the past two and a half years, the EEOC “has ignored calls from current commissioners and Congress to allow public review of significant and controversial guidance prior to its adoption.”
Mediation trouble
Michael Barnsback, an attorney with the LeClairRyan law firm in Alexandria, Virginia, is one who sees alarming signs. “The most disturbing trend that I have encountered is the EEOC’s refusal to mediate in certain cases that it prejudges based on the allegations in the charge of discrimination,” he says.
“I understand that the EEOC has started using a three-level triage system that rates charges based upon whether the allegations raise issues identified in its Strategic Enforcement Plan,” Barnsback says. “If a charge asserts a claim consistent with the priorities in the Strategic Enforcement Plan, it is not eligible for mediation. Instead, the EEOC will proceed with its investigation, even though the parties wish to explore mediation.”
Barnsback says the agency’s refusal to mediate “directly contradicts the mandate” in Title VII of the Civil Rights Act of 1964 and the agency’s own regulations.
Even though the report shines a light on various complaints, Barnsback does not expect the agency to change its practices. “The sense I have is that the EEOC feels empowered and untouchable for the next two years and will not change its behavior at all,” he says. “If anything, it will remain focused on the same efforts criticized in the report. If the repeated defeats and sanctions in federal court have not changed the EEOC’s targeted enforcement efforts, this Senate report will have no impact on the agency.”
What advice does Barnsback have for employers who think the agency is treating them unfairly? “Employers should stand up to the EEOC and fight for their rights,” he says. “Charges without merit and unsupported legal theories pursued by the EEOC should be vigorously opposed. On the other hand, charges with merit should be resolved quickly, with or without the cooperation of the EEOC.”
Common settlement terms rejected
Peter Lowe, an attorney with Brann & Isaacson in Lewiston, Maine, says he recently attended a meeting of staff from the EEOC’s New York district office and attorneys for both employers and employees. The EEOC staff spoke about their rejection of settlement agreements that include common terms such as non-disparagement, confidentiality, no-rehire clauses, and broad releases of statutory employment claims.
“The strongest criticism of EEOC’s hardline position came from the plaintiff’s bar,” Lowe says. “One seasoned practitioner declared that he found EEOC’s position on settlement agreements totally unreasonable and directly contrary to his employee clients’ desire to settle cases.”
Lowe also took note of what he called an “illuminating comment” from an EEOC lawyer who called no-rehire clauses “per se retaliation.”
“Evidently, the concept of an employer and a former employee buying their peace and agreeing to go their separate ways is foreign to some folks at EEOC,” Lowe says. “Sometimes it is crucial to negotiate an agreement that the former employee will never apply for a job at the former employer. This is a reasonable and widespread practice. Yet EEOC sees it as unacceptable and retaliatory.”
Al Vreeland, an attorney with Lehr Middlebrooks & Vreeland law firm in Birmingham, Alabama, also has noticed what he sees as the agency’s “attack on what previously have been fairly standard practices—such as requiring releases as part of severance packages and including no-rehire provisions in settlements.”
Just because a Senate committee has put out a report doesn’t mean the EEOC will change its ways, Vreeland says. “I think they will be even more aggressive in the last two years of the Obama administration—seeking to accomplish through enforcement what the administration has not been able to do legislatively.”
Senate confirmations
The Senate panel released its report the week before the Senate held confirmation votes on two EEOC nominations. Lopez was up for another four-year term as EEOC general counsel, and Charlotte Burrows was nominated for a vacant seat on the commission.
Burrows, the associate deputy attorney general at the U.S. Department of Justice, won easy confirmation by a vote of 93-2. Lopez, who was singled out for criticism in the report, also won confirmation but by a closer margin—53-43.
Thank you for this article and thank goodness someone is shining a spotlight on this. The first time we ever had to lay off an employee filed against us with the EEOC, and they helped him fabricate a claim against us. He never had to provide any proof or support for his claim, but it kept us tied up for over a year providing them with info and defending ourselves. It’s wrong! Both side should have to have proof.
This is a helpful article. The EEOC is way off base, and the pendulum must swing back to a more realistic, balanced approach. Let’s hope the EEOC can set aside arrogance and be humbled sufficiently to realize that their efforts are misguided.