Virginia Employment Law Blog
A few days ago I posted a short link to an excellent
analysis of the EEOC’s recent Fiscal Year 2012 Performance and Accountability
Report. The first segment of the analysis was highly skeptical of the EEOC’s
claim that its increased settlement collections were evidence of more
successful enforcement of federal employment discrimination laws. Today, we
look at the second segment, which takes aim at the EEOC’s proclamation that the
reduction in its case backlog is an indicator that it is serving the public
more efficiently.
While the EEOC took in fewer charges this year than in any
year since 2005, it actually managed to reduce the case inventory by less than
in the previous year. Additionally, the Commission resolved around 1,000 fewer
charges in 2012 than in 2011, meaning the EEOC may simply have been reducing
charges through dismissals rather than successful resolutions. This isn’t to
say that dismissals are necessarily the wrong outcome for many charges, but
simply that less cases doesn’t always mean the EEOC is better at its job.
The article’s author (a former attorney for the EEOC) noted
concern with how the Commission’s intake procedure has become more haphazard
and perfunctory. She specifically cited a number of policies as perhaps being
behind the reduction in charges during 2012- with none of the policies being
those indicative of the agency actually performing its functions more
efficiently. Specifically, EEOC investigators often tell employees they do not
have a case, or refuse to investigate further without hard evidence of a
violation. Additionally, many investigators have been dismissing cases within a
couple weeks of filing after only a cursory examination into the facts of the
case.
The author expresses concern that the EEOC has been
dismissing pro se complaints out of
hand in order to reduce inventory, and on the opposite end of the spectrum, has
been quickly issuing “reasonable cause” determinations that force employers into
costly settlement procedures before significant facts have been given time to
come to light. In general, it seems important to be critical of metrics that
ostensibly claim success, given that the underlying policies that allow those
numbers to be reached may not be the policies that actually best serve the
public.
As with any organization, the EEOC takes it’s
“numbers” very seriously. Understanding the policies behind the numbers can
help both employers and employees predict how the agency will react, and the
ways in which to best handle any potential litigation. Further, agencies always
run the risk of being disingenuous when they attempt to reduce complex legal
issues to simple statistics.