Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘mistakes’

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.

11 Scrooge Approved Employee Motivation Ideas You Should Never Use

Monday, December 24th, 2012

What is the #1 way to increase motivation in the workplace? Well, we have our pet motivational theories and ideas, but we wanted to explore some of the horrible, terrible, Scrooge-approved ideas that are still floating around in the year 2012.

But back to the bad ideas. We gathered some stories from around the internet and our own personal experiences, and compiled a list of 11 Scrooge-Approved Employee Motivation Ideas You Should Never Use.

11. Be thankful you have a job

Love this one, because it’s super motivating and also a veiled threat! One employee who works at a bank relayed this story:

My employer had a manager’s meeting this afternoon. One of the things they went over was trying to get us to be more motivated. They handed out a sheet of paper and one of the bullets/topics they went over was that “We should be thankful that we have jobs and that we work here (bank) due to the economy.”

Alright! Now, anyone who is not extra motivated and working really hard to show how much you deserve this rare and elusive job, please show yourself out the door.

10. Giving orders to the minions

The days of top-down, military style management where the managers bark out orders to the workers is long gone. Or is it? There are still plenty of industries that operate this way, using micromanagement and threats to get employees in line. To these leaders, an intrinsically motivated and highly productive workforce seems idealistic and naive. Here’s a real-life quote from a retail worker:

As someone who works in a giant retail store full of dozens of managers, the managers who cooperate with me see the greatest amount of productivity from me. I’ll work way harder than what is expected of me because I enjoy feeling productive. The managers who want to build up a wall where they don’t have to cooperate with me and simply give orders…I’ll literally trick them into thinking I’ve done a lot of work by manipulating their system and then I take triple cig breaks and just sit around all day…

9. Criticize and abuse

Your employees don’t need encouragement. No one likes to be praised or told they’re good at what they do. Just keep pointing out the mistakes, making people feel bad about their work, and offering no support or constructive feedback. That’ll do the trick!

One employee writes (hilariously):

A truly Machiavellian master can abuse and personally insult people into having something to prove, driving them to work harder. While an increase in workforce intelligence is not guaranteed, your victims will move faster and try to be perfect out of sheer fear. It helps if you maintain the image of omniscience and practice walking up behind people when they’re not looking.

I’ve had bosses like that. I did not know it wasn’t normal until I got a job where the management wasn’t a reincarnation of Vlad the Impaler.

8. Blaming your lazy employees for not being motivated

Maybe you think your employees are useless. You try so hard to motivate them and nothing works – they’re just lazy, lazy employees! Here’s one manager’s response to how he tried to motivate employees:

In the end, [none of my motivation techniques] worked for an extended period of time and I got tired of trying to motivate people. I have always had a great work ethic and an ability to increase my own efficiency pretty drastically, which is how I ended up managing, but I finally gave up, did the work myself, and waited for the rare times on the big jobs where my guys realized what lazy pieces of crap they were for watching me do ten times the work they were doing and stepped up for a day to help out. I have no interest in managing people ever again. If I couldn’t do it with my efficiency-oriented mind and pretty much unlimited freedom to reward in any way I wanted then I know it’s just something I can’t do. I suspect I would have gotten better results with the rod than the carrot. Motivation through fear may not be ideal but I doubt those type of managers are doing the work themselves.

Wow. I think he pretty much nailed it when he said, “I know it’s just something I can’t do.” Blaming your employees for not being motivated or productive, and just doing the work yourself or giving up is not the solution.

7. Financial incentives

Financial motivation can be both a good and a bad employee motivation technique. It all depends on the approach. Since we’re focusing on the bad in this post, let’s see how the wrong approach to compensation incentives can backfire. The pros at Vision Link Advisory Group say this:

Most companies are disappointed in the results they get from their incentive plans because they use them in one or more of the following ways:

“Carrot and Stick” approach to motivation
Means of changing behavior
Getting people to do things they don’t want to do
Motivating people to “do the right thing”
6. The Peter Principle

The Peter Principle is commonly phrased, “Employees tend to rise to their level of incompetence.” Does your company suffer from this phenomenon? Writer Oliver Thereaux says on his blog post “Why Most Managers Suck”:

Of course…any company with a hierarchy [is prone to the Peter Principle]. The main reason is that “promotion” in our industrial society, generally means “You’re really good and experienced at your job? Now stop doing it and start managing a bunch of people”.

He then shares a quote from an architect at a small tech company who, when asked about the structure of his organization, said “Everybody codes here, except for the accountant and the CEO. The latter used to code, but he was so bad at it, we made him in charge of everything else.”

Promoting employees up the ladder is a well-known employee motivation theory. But, as the poor guy in #4 will testify, not everyone is cut out to be a manager! Managing is hard…but doesn’t have to be if you’re focused on the right things.

5. Overtime

No matter how much overtime you pay your employees, eventually your tired workforce will get burned out and become completely unmotivated. Expecting your employees to work insane hours, not take vacations, and deal with constant stress is a recipe for poor production and high turnover. One young man asks for advice about helping his dad:

My father is working at a company that is requiring him to work overtime almost every day. He gets home and then they call him back. They keep threatening him that if he doesn’t do it then they will find someone who can (meaning firing him). He doesn’t have a problem with getting paid or anything like that and he’s definitely willing to work some overtime but they are just expecting him to work way too many hours.

4. Bad goals and annual reviews

Employees are not motivated by the notion that their hard work will make company owners and executives rich, organizational change consultant Paul Levesque writes on Entrepreneur. Are your employees aligned around an ultimate outcome or goal that makes them feel proud to work at your company? When individual goals, management goals, and company goals are not in alignment, you’ll see groups and individuals working against each other. Couple bad goals with rewarding effort vs. outcomes for a truly demotivating good time.

3. Convoluted mission statements

Example: It is the mission of ABC Car Gadgets to provide personal vehicle owners and enthusiasts with the vehicle related products and knowledge that fulfill their wants and needs at the right price. Our friendly, professional staff will help inspire, educate and problem solve for our customers.

That’s a great statement and, if true, the customer will be happy and the company will make money. However it’s quite a mouthful and not something you can easily repeat or rally around. No one gets up in the morning and says to themselves, “Today I’m going to provide personal vehicle owners and enthusiasts with the vehicle related products and knowledge that fulfills their wants and needs at the right price . . . Hooray!”

2. Flexibility and other gimmicks

Or as we like to say, “Flexibility is the new F word.” No matter which way you slice it, flexible work programs fail. Why is that? Because managers hate “managing flexibility” (oxymoron!) and employees are wary of when, how, and if they should even use flexibility options.

Here’s a recent example of the failure of flexibility programs at Bank of America. We predicted the fall of this program when it began seven years ago. Now, we know there are many factors that play into B of A’s decision to cut flexbility and remote work programs. But our take is quite simple: programs focused on flexibility will always, always fail because they aren’t focused on results.

1. Ignoring intrinsic motivation

All of the above to say this…if you find yourself banging your head against the wall with employee motivation programs, gimmicks, rewards, incentives, perks, benefits, raises, promotions, all without success, then maybe you’re ignoring the basics. Those of you who have read Drive by Daniel Pink are aware of his endorsement of Results-Only Work Environment. In this TED Talk, Pink talks in detail about what actually motivates us and how most businesses don’t act in accordance with what the science tells us about intrinsic motivation.

This post was originally posted on ROWE on December 23, 2012. Reprinted with Permission.

About the Author: Jody Thompson is a co-founder of CultureRx and creator of the Results-Only Work Environment (ROWE). Her first book, Why Work Sucks and How to Fix It, was named “The Year’s Best Book on Work-Life Balance” by Business Week. Cali and Jody (the co-founders of ROWE) have been featured on the covers of BusinessWeek, Workforce Management Magazine, HR Magazine, Hybrid Mom Magazine, as well as in the New York Times, TIME Magazine, USA Today, and on Good Morning America, CNBC and CNN.

Cali & Jody are nationally recognized keynote speakers and have presented to numerous Fortune 500 companies and prominent trade associations. Cali & Jody created ROWE based on the belief that the traditional solution of flexible schedules is not the answer to managing life’s many twists and turns. Bottom line? Work sucks. So they’re on a mission to fix it. Today, Cali & Jody are leading a global movement to forever change the way we work and live.

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