06.23.20

Murray, Scott: Latest Partisan EEOC Action Undermines Agency’s Ability to Hold Employers Accountable for Discrimination

Recent reporting indicates that EEOC Chair Janet Dhillon unilaterally overhauled the EEOC’s conciliation process to addresses workplace harassment and discrimination—without consideration from the full EEOC

 

New pilot would make it harder for EEOC to hold employers accountable for workplace harassment and discrimination

 

Murray, Scott urge Dhillon to suspend the pilot until it is properly reviewed

 

Murray, Scott: “The pilot will weaken this critical enforcement tool by stripping discretion from field personnel and instituting additional barriers to holding employers accountable for workplace discrimination.”

  

(Washington, D.C.) – U.S. Senator Patty Murray (D-WA), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, and Congressman Bobby Scott (VA-03), Chairman of the House Committee on Education and Labor, urged Equal Employment Opportunity Commission (EEOC) Chair Janet Dhillon to halt the implementation of her partisan plan to weaken the EEOC’s ability to hold employers accountable for workplace discrimination by overhauling the conciliation process. In a letter sent to Chair Dhillon, the members highlighted that the pilot, which was initiated on May 29th and will be in place for at least six months, would impose unnecessary hurdles on those charged with investigating and addressing workplace discrimination in order to ease the burden of enforcement actions on employers.  

 

“While few details have been released, reporting indicates the pilot will weaken this critical enforcement tool by stripping discretion from field personnel and instituting additional barriers to holding employers accountable for workplace discrimination. We also were troubled to learn that the pilot did not receive consideration of the full Commission. To ensure the EEOC remains accountable, and its policies seek to further, not undermine, its mission, we request detailed information on the pilot and urge you to suspend its implementation until the Commission has had an opportunity to examine it,” wrote the lawmakers in a letter to Chairwoman Dhillon.

 

The changes to the conciliation process—a crucial tool that the EEOC uses to carry out its mission of eliminating unlawful discrimination from the workplace—would impose barriers on the ability of EEOC investigators and attorneys to carry out investigations and enforcement actions, making it harder for them to fight for better settlement outcomes for workers or initiate lawsuits when warranted.

 

Chair Dhillon unilaterally implemented this troubling pilot without the consideration of all of the other EEOC Commissioners. In their letter, the lawmakers urged EEOC to suspend the pilot until it can be properly reviewed to ensure it is necessary, in furtherance of EEOC’s mission, and consistent with the law.

 

The lawmakers noted that, “If this pilot will indeed further the agency’s mission … then it can surely withstand fair and necessary scrutiny.”

 

The full letter is below and HERE.

 

June 22, 2020

 

The Honorable Janet Dhillon

Chair

Equal Employment Opportunity Commission

131 M Street, NE

Washington, DC 20507

           

Dear Chair Dhillon:

 

We write with great concern regarding the Equal Employment Opportunity Commission’s (EEOC or Commission) six-month pilot, initiated on May 29, 2020, which modifies the agency’s longstanding approach to the conciliation process.  While few details have been released, reporting indicates the pilot will weaken this critical enforcement tool by stripping discretion from field personnel and instituting additional barriers to holding employers accountable for workplace discrimination.[1]  We also were troubled to learn the pilot did not receive consideration of the full Commission.[2]  To ensure the EEOC remains accountable, and its policies seek to further, not undermine, its mission, we request detailed information on the pilot and urge you to suspend its implementation until the Commission has had an opportunity to examine it. 

 

In the seminal case affirming the importance and breadth of EEOC’s conciliation authority under Title VII of the Civil Rights Act (Title VII), Mach Mining v. EEOC, the Supreme Court made clear that Title VII’s “conciliation provision explicitly serves a substantive mission: to ‘eliminate’ unlawful discrimination from the workplace.”[3]  The Court further explained that Title VII’s conciliation mandate requires the EEOC only “inform the employer about the specific discrimination allegation” by “describ[ing] both what the employer has done and which employees (or what class of employees) have suffered as a result,” and the agency “try to engage the employer in some form of discussion.”[4]  This latitude is so the EEOC can conduct the conciliation process in the way best suited to address the unlawful discrimination allegations brought before it. 

 

According to reporting, however, the conciliation pilot would impose additional hurdles on EEOC field investigators and attorneys that appear to serve only to ease an alleged burden on employers.[5]  If the reporting is true, the pilot could undermine the conciliation process’s substantive purpose of ending workplace discrimination, in direct conflict with the spirit and text of Title VII. 

 

If this pilot will indeed further the agency’s mission of “preventing and remedying unlawful employment discrimination and to advance equal opportunity for all in the workplace,”[6] then it can surely withstand fair and necessary scrutiny.  I therefore urge you to suspend the pilot until it receives adequate review and is determined to be necessary, in furtherance of EEOC’s mission, and consistent with Title VII.

 

To that end, we request the following information regarding the pilot no later than July 6, 2020:

 

  1. Please provide a detailed explanation, as well as any responsive written documents, of why you decided to create this pilot, including any entities within and outside of EEOC that you consulted prior to doing so.

 

  1. Please provide a detailed explanation, as well as any responsive written documents, of the pilot and how it will modify the conciliation process as it existed before this pilot.  Please include details about the scope, design, and timeline of this pilot, including any consideration of permanent implementation such as through regulation.

 

  1. Please provide a detailed explanation, as well as any responsive written documents, of why you decided not to consult with all the Commissioners in creating this pilot.

 

  1. Please provide a detailed explanation, as well as any responsive written documents, of efforts to change the conciliation process since Mach Mining and prior to the development of the pilot.  Please include details on the process for considering these proposals and why they were not implemented.

 

If you have any questions or would like to discuss compliance with this request, please contact Kathleen Borschow with the Senate Health, Education, Labor, and Pensions (HELP) Committee (Minority staff) at (202) 224-0767 or Cathy Yu with the House Committee on Education and Labor (Majority staff) at (202) 225-9721.  Please direct all official correspondence to Kathleen Borschow at Kathleen_Borschow@help.senate.gov for the Senate HELP Committee (Minority staff) and to Tylease Alli, Chief Clerk for the House Committee on Education and Labor (Majority staff) at Tylease.Alli@mail.house.gov.  Thank you for your attention to this matter, and we look forward to your response.

 

Sincerely,

 

PATTY MURRAY

Ranking Member

Senate Health, Education Labor, and Pensions Committee

 

ROBERT C. “BOBBY” SCOTT

Chair

House Committee on Education and Labor

 

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[1] EEOC Chair Alters Pre-Lawsuit Process for Resolving Bias Claims, Bloomberg Law, June 1, 2020, https://news.bloomberglaw.com/daily-labor-report/eeoc-chair-alters-pre-lawsuit-process-for-resolving-bias-claims

[2] Id.

[3] Mach Mining v. EEOC, 575 U.S. 480, 491 (2015)

[4] Id. at 494

[5] EEOC Update: The Commission Rolls Out Pilot Program On Conciliating Discrimination And Harassment Allegations, JD Supra, June 3, 2020, https://www.jdsupra.com/legalnews/eeoc-update-the-commission-rolls-out-83540/