Outten & Golden: Empowering Employees in the Workplace

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Suggestions to the EEOC for Charge Intake and Processing

Tuesday, May 26th, 2015

Richard Seymour[Editor’s Note: The following is taken from Rick Seymour’s April 23, 2015 Comments to the EEOC on Charge Processing. It lists suggestions for improving EEOC practices in intake of charges. Changes to Mr. Seymour’s original article have been made to improve blog formatting and ease of access.]

Suggestions for Charge Intake and Processing

1. Make it easy for people to file timely charges of discrimination. Put a fillable form on the EEOC website, allow people to sign and file charges electronically and immediately, and serve the charges upon employers immediately. They can always be amended later, and the amendments promptly served. The IRS does it for taxes, and the NLRB does it for unfair labor practice charges. The Commission can do it too.

2. You can lead charging parties to preserve their rights by asking questions, the same way tax preparation software does, and filling out the charge based on answers. Insert the State and local FEPAs automatically, and allow for more than one because coverage remedies differ.

3. Insert a place where the charging party can identify counsel, and have the software ensure that counsel are always notified of events.

4. In any re-writings of charges, train staff so that they stop dropping claims by mistake, neglect, and inadvertence.

5. Put facts into the charges, and end the practice of replacing facts with uninformative boilerplate.

6. Allow charging parties to submit changes of address and changes of counsel online.

7. Do not hurt the agency’s credibility.

  • Stop taking the respondent’s words as golden and incense in front of it. This tells employers and employees alike that the Commission does not care about their facts. Only a real, questioning, examination of facts will restore credibility.
  • Train the Commission’s staff in critical thinking, give them performance standards, and eliminate those who cannot perform.
  • Stop premature kick-outs of charges shortly after they are received. Same-day kick-outs should be barred.

8. Help the agency do more with fewer resources. The agency cannot do it all, and trying to do so just wastes time and resources.

  • Use the information available, instead of turning up the agency’s nose at the available help. The greatest source of information with which to evaluate the position statement is the charging party and her or his counsel.
  • Charging parties and their counsel need to be given copies of respondents’ position statements and all their attachments, and invited to submit responses.
  • The position statements need to be served on the charging party and counsel as soon as they are received, ending the absurd practice in some offices of providing them only after the commission receives a file-stamped copy of the court Complaint.
  • The Commission should end the absurd practice in some offices of having staff members paraphrase the position statements, or re-write them. It burns up staff time and is not nearly as useful as providing the actual documents.
  • Those responses should be a great help to the Commission in focusing its investigation. Its offices should be required to follow up on the responses, instead of ignoring them and accepting the employer’s word as golden.
  • The responses should be provided to the employer for its comments.
  • More than one cycle may be needed. The important point is the Commission [uses] the parties to inform itself as to a lot of the facts, and the responses will allow a narrowing of the dispute.

9. The Commission should again become a national agency, instead of the present system of 50-odd principalities making up their own standards and procedures. The Commission’s pendulum of control tends to get stuck at the extremes, and the present system of letting every office do what it wants has not worked very well.

10. The commission should make it easy to contact every staff member. It should have an online directory of names, titles, locations, mailing addresses, telephone numbers, and e-mail addresses. Agencies like the State Department do this as a matter of routine. I went to www.state.gov and searched for “Telephone Directory” and this led me to [a PDF “Organizational Directory” which lists telephone numbers for many of the staff].

11. Whatever the outcome of Mach Mining, the Commission has major problems in its conciliation efforts. Those need to be tackled seriously. Again, agency credibility is at stake. Think about creating an internal appeal procedure to the Commission whenever a respondent thinks conciliation staff have done it wrong. That will take the commission time, but provide an invaluable insight and, in the event the Commission loses Mach Mining, will reduce the number of matters to be reviewed by the courts. [Ed. Note: The Seventh Circuit’s Mach Mining decision from April 29, 2015 can be found here.]

Reprinted with permission.

About the author: The author’s name is Rick Seymour. Richard Seymour graduated from Harvard Law School in 1968, and has worked in civil rights and employee rights ever since. In the 36 years since leaving the U.S. Commission on Civil Rights in 1969, he has spent more than 90% of his time representing plaintiffs in class actions.

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