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News and Insight - Republicans Tell EEOC to Refocus its Enforcement Efforts

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Location: Washington, DC

By Amanda Becker

Republicans in the House of Representatives urged the Equal Employment Opportunity Commission to focus on routine cases and set aside more aggressive initiatives.

The admonition came on Wednesday as EEOC Chair Jacqueline Berrien testified before a subcommittee of the House Committee on Education and the Workforce about the agency's enforcement strategy.

Republicans said the EEOC is taking an increasingly aggressive approach in pursuing potentially precedent-setting litigation while there is a backlog of routine matters.

The agency should "keep to a minimum ... any so-called fishing or agenda-producing efforts," subcommittee Chairman Tim Walberg of Michigan said.

Walberg said the panel's Republicans had noticed a "significant shift" in the way the EEOC enforces federal anti-discrimination statutes. He cited an agency goal to pursue so-called systemic rather than individual cases, an increasingly powerful general counsel, recent guidance on criminal background checks and recent court losses as top concerns.

The agency has sought to maximize its impact by prioritizing so-called systemic cases, which affect large groups of workers. But Walberg questioned whether such a policy would lead to the agency wasting its resources on hard-to-win cases, leaving straightforward individual claims unresolved.

In the spotlight was the dismissal last month of a case brought by the EEOC against Evans Fruit Company in Washington state. The agency had sued the company for allegedly retaliating against workers who met with agency investigators to bring sexual harassment claims. Also last month, a jury rejected an EEOC claim brought on behalf of more than a dozen women who accused Evans of sexual harassment.

Walberg questioned whether the agency's general counsel was exercising proper discretion in deciding which cases to pursue and why commissioners weren't directly involved in weighing each case.

"Why are we going after some of these?" Walberg asked.

CHARGES RESOLVED

Representative Joe Courtney of Connecticut, the panel's top Democrat, noted that the agency receives thousands of cases a year and it would be logistically impossible for the commissioners to investigate each individually. "You have to have systems in place," he said.

"As dedicated as the members of the commission are, there's no way we can consider or review 100,000 charges of discrimination," the EEOC's Berrien said.

The EEOC is a bipartisan agency with a chairman, vice chairman, three commissioners and a general counsel, all appointed by the president. It enforces the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Genetic Information Nondiscrimination Act and a portion of the Civil Rights Act.

Berrien told the panel that during the past two fiscal years the agency has resolved more charges than it received, reducing its pending case load by nearly 20 percent. She noted that its staff is smaller than it was in the 1980s or 1990s, even as its jurisdiction has expanded with the passage of new anti-discrimination statutes.

The EEOC instituted a hiring freeze last year and will furlough its workers this year as part of across-the-board cuts for government agencies, Berrien said.

Representative John Kline, a Republican from Minnesota, asked whether the EEOC plans to seek out cases that test partnership agreements in the legal and accounting professions related to retirement policies. The EEOC sued the law firm Kelley Drye & Warren over its practice of de-equitizing partners after they turned 70, saying it was age discrimination. Although that case and an earlier claim against the firm Sidley Austin were settled, questions remain about whether the agency views law firm partners as employers or employees when it comes to enforcing anti-discrimination laws.

"Given the commission's resource constraints, doesn't it make more sense to focus on truly vulnerable workers?" Kline asked.


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