The Failure of the EEOC

[O]ne hundred years of delay have passed since President Lincoln freed the slaves, yet their heirs, their grandsons, are not fully free. They are not yet free from the bonds of injustice. And this nation, for all its hopes and all its boasts, will not be fully free until all of its citizens are free. Now the time has come for this nation to fulfill its promise. The events of Birmingham and elsewhere have so increased the cries for equality that no city or state or legislative body can prudently ignore them. We face, therefore, a moral crisis as a country and as a people. It cannot be met with repressive police action. It cannot be left to increased demonstrations on the streets. It cannot be quieted by token moves or talk. It is a time to act in Congress, in your state and local legislative body and, above all, in all of our daily lives. Next week I will ask the Congress of the United States to act, to make a commitment it has not fully made in this century to the proposition that race has no place in American life or law.

~John F. Kennedy

On the 22nd of November 1963 John F. Kennedy was called home to the kingdom of God via an assassin’s bullet. 

The work that was championed by him would continue with Lyndon B. Johnson, though LBJ was in moderate opposition to Civil Rights, he urged congress to pass new Civil Rights legislation in 1964 which included protections from workplace discrimination based on an individual’s race, color, national origin, religion, sex, age, disability, sexual orientation, gender identity, genetic information, and retaliation for reporting, participating in, and/or opposing a discriminatory practice.

In June of 1965, one year later, the EEOC was established and opened with a  2.25 million dollar budget and close to 100 employees tasked with legally enforcing Civil Rights, in particular Title VII.

Since 1980 funding for EEOC enforcement has increased but staff has decreased, going from an enacted $124,562,000 in 1980 to $389,500,000 in the 2020 budget and from an annual staff of 3,390 to 1,939 in the same time period.

Staffing has reached an all time low of around 1,900 Full Time employees.

Instead of an increase of staff to handle caseloads people’s salaries have fattened over time.

Charges filed by the EEOC have gone down overall but are being counterbalanced by an increase in cases of retaliation at the workplace.

Only about 3% of cases are resolved with a finding of probable cause. In 2017, the average wait time to resolve a private sector complaint was about 295 days so lots of cases end up languishing.

The EEOC has failed so much in actually gaining victories even within the cases they take to a court of law. They intentionally curate which cases they take to court so that those cases can garner attention, publicity, and create big wins, but the day-to-day person who’s not bringing a case against some huge corporation or where their case isn’t going to set precedent or change workplace culture, much less attention is paid to it with a lot of cases just sitting in legal purgatory.

What’s Happening on the Ground

Due to the EEOC’s failure employer’s are finding work-arounds to avoid potential workplace discrimination cases, mainly Mandatory Arbitration Agreements, MAAs & Employment Practice Liability Insurance, EPLI. 

MAAs limit employees’ ability upon hiring to file lawsuits against employers in public courts by contractually obligating them to work things out directly through arbitration with an employer. As you could imagine, most of the time the promise of a job can be leveraged against employees who just wanted to have a job and not sign their right to due process away.

EPLI is insurance providing employers coverage for court cost and legal counsel, covering the business against claims of wrongful termination, discrimination, sexual harassment, and retaliation. Instead of creating a welcoming and equitable environment, buying insurance is an easy way to cover yourself from liability.

While the Arbitration agreements obligate employees to participate in mediation, even if they file suit because they may feel like mediation isn’t enough and want to seek public courts for a resolution, employers are also covered by insurance and any financial strain a lawsuit would bring.

When employees do bring claims, the employer’s legal counsel, in their defense, often use Schwapp v. Town of Avon during summary judgement to get cases dismissed before they even get off the ground. 

Summary judgement is a way for judges to determine whether a case merits going through trial because it may not qualify for violation of a statute in the first place.

The case set a precedent for plaintiffs in providing evidence that their employer, in discriminating, created a consistently hostile environment. The Court’s decision, quoting Van Zant v. KLM Royal Dutch Airlines a gender discrimination suit itself, stated that:

There was even pushback recently during the Trump Administration in enforcing an Obama-era EEOC rule that collects detailed pay data from employers. This data collection is to ensure businesses comply and don’t have a pattern of paying a particular gender less, also known as the “Gender Pay Gap.” The EEOC is there to monitor this data to be sure companies are in compliance with the law.  Many businesses’ refuse to comply because they claim added financial cost in order to implement that data collection. 

With decades and decades of decline of the EEOC through declining staff, coupled with business’ coming up with their own failsafes for protecting themselves from workplace discrimination claims, it seems as if it was, as Kennedy said, another “token” institution that was created to give the illusion that workplace discrimination could be legislated away.

Another hundred years will pass and hopefully the EEOC will take on a new strategy for enforcing Civil Rights Law otherwise we may progress even more towards employers being the sole arbiters for justice sullying Kennedy’s notion that race has no place in American life or law.