Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘Job training’

Why Does the EEOC Make Mistakes (Part I)

Monday, March 16th, 2015

Over the years, the U.S. Equal Employment Opportunity Commission has been routinely criticized by charging parties, plaintiffs’ attorneys, respondents, and attorneys for respondents, as to virtually every aspect of the Commission’s activities including the filing,Richard Seymour investigation, and conciliation of charges, and the Commission’s litigation.

The courts have added their voices to the criticisms by charging parties and their counsel, with numerous courts coming to the rescue of charging parties by holding that the EEOC’s interim charge-processing steps are not jurisdictional prerequisites to a private suit and echoing the early words of the Fifth Circuit:

“Significantly, under EEOC regulations, a right to demand and receive such a notice accrues sixty days after the charge is filed regardless of any act or omission by the EEOC. Were this regulation not written, we would read it into the Act lest a claimant’s statutory right to sue in federal court become subject to such fortuitous variables as workload, mistakes, or possible lack of diligence of EEOC personnel.”

Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1140 (5th Cir. 1971) (footnotes omitted). The period for requesting a notice of right to sue was later expanded, of course, to 180 days. 29 C.F.R. § 1628(a).

The courts have also echoed some of the concerns raised by respondents and their counsel, and have sometimes added teeth to the criticisms by sanctioning the EEOC for perceived failures in investigation, conciliation, and litigation. E.g., E.E.O.C. v. CRST Van Expedited, Inc., 2013 WL 3984478, 119 Fair Empl.Prac.Cas. (BNA) 739 (N.D.Iowa Aug. 1, 2013) (No. 07-CV-95-LRR), awarding $4,694,442.14 in defendant’s attorneys’ fees and costs against the EEOC for perceived failures of conciliation and for litigation missteps.

Some employers are using the courts’ criticisms in an effort to tie up the Commission’s enforcement efforts in red-tape preliminaries that could require more effort than the litigation they are trying to stave off. The Courts of Appeals are split as to whether respondents have an affirmative defense for the EEOC’s failure to conciliate reasonably, and the issue is now before the U.S. Supreme Court in Mach Mining, LLC, v. E.E.O.C., No. 13-1019 (scheduled for conference on June 19, 2014). Both sides have agreed that the Supreme Court should take the case and resolve this question, and we will shortly find out whether the Court will grant review. The Seventh Circuit had decided that courts could not enquire into the reasonableness of the EEOC’s conciliation efforts. E.E.O.C. v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013). The Commission’s response to the petition for certiorari, however, shows at pp. 3-4 the degree to which allowing such inquiries will stymie the EEOC’s enforcement efforts:

2. In 2008, a woman who had unsuccessfully applied for a mining position with petitioner filed a charge of unlawful employment discrimination with the Commission. . . . She contended that petitioner, which had never hired a woman for a mining position, refused to hire her based on her gender. . . . The Commission investigated the charge, found reasonable cause to believe petitioner had discriminated against a class of women who applied for mining-related jobs, and invited petitioner to conciliate. . . . From late 2010 to late 2011, the Commission attempted conciliation with petitioner, but no agreement was reached. . . .

The Commission then filed this lawsuit, contending that petitioner engaged in a pattern or practice of unlawful employment discrimination and used employment practices that had a disparate impact on female applicants. . . . In its answer, petitioner asserted a failure-to-conciliate affirmative defense, contending that the complaint should be dismissed because the Commission had failed to expend sufficient efforts on conciliation. . . . The Commission responded that Title VII includes no such failure-to-conciliate affirmative defense, and it moved for partial summary judgment on that basis. . . . In the meantime, petitioner submitted “extensive discovery requests”—including more than 600 requests for admissions of fact—that “s(ought) information about the EEOC’s investigation and conciliation efforts.” . . . . Petitioner also “slowed discovery on the merits” by objecting to the Commission’s merits-related discovery requests on “failure to conciliate” grounds. . . .

(Emphasis supplied.)  The petition, response, and reply can all be downloaded fromhttp://www.scotusblog.com/case-files/cases/mach-mining-v-equal-employment-opportunity-commission/. (ScotusBlog, www.scotusblog.com, is an extraordinarily useful website.) The text of the response makes a compelling case why there is no judicially-enforceable duty to conciliate; a later blog posting will address that question.

In the face of all these criticisms, fair-minded persons need to pause and consider how all these perceived problems came to exist.

First, expectations for the EEOC have always been very high. The Fourth Circuit’s view of the “public avenger” role of the EEOC after the 1972 amendments to Title VII giving it the power to sue in its own name were echoed by many courts in more prosaic opinions. Here is how the Fourth Circuit put it:

“But, unlike the individual charging party, the EEOC, when it sued, did so ‘to vindicate the public interest’ as expressed in the Congressional purpose of eliminating employment discrimination as a national evil rather than for the redress of the strictly private interests of the complaining party. Because of this significant difference, the EEOC’s suit was ‘broader (in scope) than the interests of the charging parties. It follows that the standing of the EEOC to sue under Title VII cannot be controlled or determined by the standing of the charging party to sue, limited as he is in rights to the vindication of his own individual rights. To hold otherwise, as did the District Court, would be to continue treating the sole purpose of the Title to be the correction of individual wrongs rather than of public or ‘societal’ wrongs as well as to deny to the EEOC the right to be any more than a mere proxy for the charging party rather than what Congress by the Amendments of 1972 intended, i.e., the public avenger by civil suit of any discrimination uncovered in a valid investigation and subjected to conciliation under the Act. We find no warrant whatsoever for placing such limitation on the right or standing of the EEOC to bring suit; indeed, were such limitation to be imposed, it would be in our opinion a clear nullification of the legislative intent in enacting the Amendments of 1972. . . . “

Equal Employment Opportunity Commission v. General Electric Co., 532 F.2d 359, 373 (4th Cir. 1976) (footnotes omitted; emphasis supplied).

Second, the EEOC has always been starved for resources, and the starvation has become endemic:.

President EEOC Authorized Staff When He Took the Oath of Office EEOC Authorized Staff When He Left Office Reduction from January 1981: No. Reduction from January 1981: %
Ronald Reagan January 1981:  3,696 January 1989:  3,198 498 14.1%
George H.W. Bush January 1989:  3,198 January 1993:  3,071 625 17.7%
Bill Clinton January 1993:  3,071 January 2001:  3,055 641 18.2%
George W. Bush January 2001:  3,055 January 2009:  2,556 1,140 32.3%
Barack Obama January 2009:  2,556 N.A.   Currently 2,347 1,349 38.2%

Source, EEOC Budget figures, http://www.eeoc.gov/eeoc/plan/budgetandstaffing.cfm, last visited June 8, 2014, with my calculations in the last two columns.

During this same time period, the EEOC has been given very substantial new responsibilities, including the Older Workers Benefit Protection Act of 1990, the Americans with Disabilities Act of 1990, and the Genetic Information Nondiscrimination Act of 2008.

Similarly, the EEOC’s web site shows that 93,727 charges were filed in FY 2013, compared with 72,302 in FY 1992, the earliest year with reported data. That is a 22.9% increase.

Moreover, during this period Congress has required the EEOC to devote a substantial part of its budget to help fund State and local fair employment practice agencies.

Third, the recent difficulties in financing government operations make realistic planning very difficult. Not only do agencies know whether the Office of Management and Budget will recommend budget figures for the next year comparable to those of the current year, the present dysfunction in Congress makes it impossible to tell what will be appropriated. There may be government-wide hiring freezes lasting for years. When those are lifted, agencies hire as many as possible, because they do not know when they will be able to hire again. Meanwhile, salaries and rents increase with inflation, and the training budget is among the first to be cut. The lack of professional training for attorneys, investigators, and others harms many aspects of the Commission’s operations.

Fourth, while many EEOC staff members are extremely well-skilled and dedicated, not all meet those criteria. The EEOC has never taken seriously the idea in the Civil Service Reform Act of 1978 that it should adopt truly objective and fair performance standards, train staff to meet those objective standards, and terminate staff who either cannot or will not come up to objective and fair performance standards. It has routinely refused to take action against unwilling or incompetent employees, and incoming Chairs have sometimes withdrawn pending disciplinary charges against large numbers of employees in a misguided effort to build good will, and an understandable but still mistaken effort to avoid the large amounts of management time that would have to be devoted to cleaning house.

Now consider: What private firm would have a chance of meeting its goals under these conditions: heavily increased workload, almost a 40% reduction in staff, little technology to make up the slack, no money for training, an inadequate effort to identify and get rid of poor performers, and the need to give a lot of discretion to untrained staff regardless of their performance?

It is close to a miracle that the EEOC can accomplish anything at all. Yet it has provided very useful guidance to employers, unions, and employees, and has recovered substantial amounts in resolutions of charges and in litigation.

When we criticize the agency, we need to be mindful of the difficulties under which it labors.

About the Author: 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 have spent more than 90% of my time representing plaintiffs in class actions.

President Obama’s Latest Manufacturing Push

Tuesday, October 28th, 2014

Dave JohnsonThe White House unveiled new executive actions on Monday
directing federal money toward new technologies, apprenticeship programs and competitions designed to assist small manufacturers. The idea is to make the U.S. a magnet for new jobs and investment.


The new executive action will:

  • Allow the Pentagon, NASA, and the Energy and Agriculture departments to spend $300 million to develop advanced materials and new technology for sensors and digital manufacturing.
  • Direct $100 million in Labor Department funds for apprenticeship programs aimed at advanced manufacturing.
  • Authorize the Commerce Department to spend $150 million over five years in 10 states to help manufacturers adopt and market new technologies.
  • Give manufacturers access to state-of-the-art facilities like those at national labs – to connect industry and universities on research and development and develop ‘technology testbeds’ where companies can design, prototype and test new products and processes.

President Obama began the Advanced Manufacturing Partnership in June 2011. The administration so far has launched four manufacturing innovation institutes – “hubs” – and there are four more on the way. They have also invested nearly $1 billion for community colleges to train workers for advanced manufacturing jobs.

There is expanded investment in applied research for emerging manufacturing technologies, and a new initiative to get returning veterans into jobs in advanced manufacturing.

This blog originally appeared in Ourfuture.org on October 27, 2014. Reprinted with permission. http://ourfuture.org/20141027/president-obamas-latest-manufacturing-push

About the Author: Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.


The Great Training Wreck: Job Skills Deficits and Corporate-Backed Tech Schools

Thursday, April 5th, 2012

Roger BybeeWorker training has emerged as a major flashpoint between labor and corporate leaders, igniting conflicts over low corporate tax rates, the offshoring of jobs and the low-skilled nature of most future job growth in America.

First, corporate leaders have been insisting that a significant part of the unemployment problem is due not to the massive offshoring of jobs or lack of effective consumer demand caused by low pay, but under-skilled U.S. workers. The CEOs sometimes blame workers themselves: PIMCO investment fund founder Bill Gross has stated: “Our labor force is too expensive and poorly educated for today’s market place.”

Second, corporate leaders—although intransigent about paying higher taxes (or, quite often, any taxes) to help provide funding for education and training—seek to convert technical education into short-term retraining that benefits corporations while workers fail to learn portable skills.

This latter issue has emerged in a new law passed just before the end of the recent legislative session in Madison, when Wisconsin Republicans engineered a last-minute takeover of technical education at Milwaukee Area Technical College.

The long-term implications of the MATC takeover for working people will mean a shift from seeking skills that increase long-term opportunities to quick re-training to suit corporate needs, said Michael Rosen, president of American Federation of Teachers Local 212 at MATC and a member of Wisconsin’s Technical College Board.

“This restructuring will move MATC away from upgrading skills into training programs that will flood labor markets,” Rosen says. “It doesn’t bode well for comprehensive technical training. Our mission has been to provide industry with skills they want from their workers, but also to provide workers with skills that are portable and will build their careers.”

However, the new restructuring will take power away from a board appointed by area School Board presidents to a new entity selected by four county executives, giving power to two leaders from wealthy, conservative counties far out of proportion to the amount of funding and number of students they provide for MATC. Ozaukee and Washington counties account for only 6 percent of students, but 18 percent of funding. Milwaukee County supplies 82 percent of the funding, but accounts for nearly all MATC students.

“Two of the county executives are hardcore Republicans who don’t care about urban education at all,” Rosen asserted.


But despite the low funding that they provide, the new appointees will likely champion the view that technical education should be trimmed to fit immediate corporate priorities.

Rosen notes that even as corporate leaders complain about the shortage of skilled workers, CEOs have insisted on lower taxes that drain the funding base for technical education at both the high-school level-—where it is the most expensive component of education—and at two-year technical colleges.

Routinely using the threat of relocating jobs and capital to extort tax reductions that drain educational funding, corporate leaders have nonetheless escalated their complaints about the technical education provided in high schools and technical colleges.

“The very people complaining about the lack of tech ed have been fighting against increases in their own taxes, corporate and personal,” fumed Rosen. In Wisconsin, more than 60 percent of the corporations netting $100 million or more in revenues wind up paying no corporate income taxes, according to the Institute for Wisconsin’s Future.

But corporate leaders in Wisconsin, led by the Metropolitan Milwaukee Chamber of Commerce and helped by Republican legislators, have nonetheless blamed MATC to justify the hostile takeover.

Corporate leaders, led by Tim Sullivan, the former CEO of  Bucyrus-Erie and chair of Gov. Scott Walker’s Workforce Investment Council, has been sounding the alarm for producing more skilled labor. This revitalized technical education system would be based on the reallocation of federal dollars, not new funding from corporations, which are a primary beneficiary of a skilled workforce.

Further, corporations in Wisconsin—despite occasional shortages in skilled labor—are failing to generate jobs that require advanced skills and command family-sustaining wages. As Rosen, an economist, recently pointed out in a briefing paper:

Of the 10 fastest growing occupations in Wisconsin, 9 cannot be considered skilled labor. These include, in order of total openings: cashiers, waiters and waitresses, customer service reps, food preparers including fast food service workers, laborers, office clerks and bartenders. Only nurses, ranked number 6, can be considered a skilled labor occupation.

As America’s job crisis continues, expect future battles over the role of education to be fought across the nation. CEOs will insist that technical schools should be dedicated to enlarging the pool of narrowly-skilled workers to meet their needs (and boost their profits).

How forcefully educators and students demand a broader education that empowers citizens and provides portable skills remains to be seen.

This blog originally appeared in Working in These Times on April 4, 2012. Reprinted with permission.

About the Author: Roger Bybee is a Milwaukee-based freelance writer and progressive publicity consultant whose work has appeared in numerous national publications, including Z magazine, Dollars & Sense, Yes!, The Progressive, Multinational Monitor, The American Prospect and Foreign Policy in Focus. His e-mail address is [email protected].

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