EEOC proposed regulation would impede its ability to combat workplace discrimination

As our nation undergoes an historic reckoning with structural racism, a pandemic that has left many out of work and vulnerable, and a 3-year-old #MeToo Movement that has emboldened many women to come forward with complaints of sexual harassment, the Equal Employment Opportunity Commission (EEOC), our government’s chief anti-discrimination enforcement agency, has chosen to create new avenues for employers to escape accountability for discrimination.

The EEOC is the bipartisan federal agency charged with enforcing the workplace anti-discrimination laws. Created by the historic 1964 Civil Rights Act, it has remained steadfast in its commitment to its mission, regardless of which political party was in charge of the executive and legislative branches. Unlike other federal agencies, whose agendas can shift depending on who occupies the White House, the EEOC has avoided capture by politics – until now.

The EEOC held a public hearing this week on a hastily-proposed rule unilaterally put forward by the agency’s Trump-installed chair, Janet Dhillon, that is designed to impede the agency’s ability to file lawsuits against employers found to have violated the anti-discrimination laws.

Having served as the EEOC’s General Counsel for 2 terms, this attack on the agency’s litigation authority is deeply distressing. During my tenure, the EEOC brought lawsuits that helped make critical progress against on-the-job bias. This includes the EEOC’s $240 million jury verdict on behalf of 32 intellectually disabled workers subject to discriminatory harassment and abuse, an 8-1 Supreme Court decision upholding an employer’s obligation to provide religious accommodation, and a consent decree settling allegations against a car manufacturer of systemic racial hiring discrimination for over $1.6 million, as well as jobs and policy changes. These victories represent just a fraction of the gains achieved by the EEOC on behalf of American workers in the nearly 50 years that it has been litigating such cases.

Chair Dhillon’s proposed rule imperils the agency’s ability to secure such wins in the future. It is a gift to the business interests she spent her career representing before joining the Trump administration.

When the EEOC was created in 1964 by Title VII – the section of the Civil Rights Act dealing with on-the-job discrimination – in it had the authority only to investigate and, if necessary, attempt to “conciliate,” or settle, cases where it concluded discrimination had occurred, but it did not have authority to take unrepentant employers to court if they refused. As a result, the agency was often derisively called a “toothless tiger.” In 1972, Congress remedied this limitation by granting the agency the authority to bring litigation, while also installing a procedural stopgap: it required that, where the EEOC concludes that an employer has violated the law, the agency first must engage in “informal methods of conference, conciliation, and persuasion” before it files a lawsuit. These “presuit” requirements created an appropriate balance between litigation – which can take years and consumes vast judicial resources – and “conciliation,” where the employer voluntarily agrees to remedy its discriminatory practices and give relief to wronged employees.

Throughout the 2000s, though, employers – and the lawyers who represent them – sought to tip this balance firmly in their favor. They mounted a coordinated strategy of defending against discrimination claims in court by challenging the sufficiency the agency’s presuit procedures, including its efforts at conciliation. In essence, employers sought to shift attention away from their own alleged discriminatory conduct and, instead, to whether the EEOC had done enough to resolve the case informally before filing suit.

This strategy succeeded in throwing sand in the gears of many EEOC cases, delaying them for months and even years before courts ever got to considering the merits of the agency’s discrimination claims. In some instances, employers even won dismissals of cases alleging egregious discrimination due to “failure to conciliate.” They also gummed up the conciliation process itself, as gamesmanship ruled the day: employers with no interest in resolving discrimination claims by actually changing their practices and fairly compensating workers consumed months, if not years of agency resources by making repeated, time-consuming demands for information about the basis for the agency’s findings – efforts designed more to build a record to challenge the conciliation in litigation than to get to “yes.”

But in 2015, the Supreme Court unanimously rejected these tactics, reaffirming the EEOC’s litigation authority. In Mach Mining LLC v. EEOC, the agency alleged discrimination against dozens of women who had been denied traditionally-male mining and coal production positions. The issue before the Court, though, was Mach Mining’s defense that the EEOC had not tried hard enough to conciliate before filing suit. The company enumerated numerous procedural hoops that the agency had not jumped through – such as full identification of all potential victims of the discriminatory practices. Notably, one of the business groups that filed a “friend of the court” brief in support of Mach Mining was the Retail Litigation Center, a group that Chair Dhillon herself co-founded and on whose board she sat.

The Court ruled in the EEOC’s favor. Citing the plain text (‘the law Congress wrote”) of the 1964 Civil Rights Act, the Court refused to engraft the prelitigation procedural “code of conduct” urged by Mach Mining finding such a high hurdle “conflicts with the latitude Title VII gives the Commission to pursue voluntary compliance with the law’s commands.” The justices agreed that a court could review the EEOC’s conciliation efforts, but that review was limited to assessing whether the agency had given the employer “a chance to discuss and rectify a specified discriminatory practice.”

The agency successfully resolved the case for $4.25 million in backpay, agreed-upon reforms by the company that would assure fairer hiring practices going forward, and hiring nearly three dozen women wrongfully denied employment. As General Counsel during this time, I can safely say this outcome – which vindicated women’s rights to enter high-paying, historically male jobs and helped send a message to other employers that might deny that right – would not have occurred had the Supreme Court adopted the business community’s urged interpretation of the agency’s presuit obligations.

Unable to convince even one Supreme Court justice to adopt its view of the law, for the past five years the U.S. Chamber of Commerce and other pro-business lobbyists have sought to overrule Mach Mining, through legislation or otherwise. Chair Dhillon’s proposed rule would do just that. After announcing in late May that the agency was launching a 6-month “pilot program” of Chair Dhillon’s own creation that imposed precisely the sort of procedural “code of conduct” on the EEOC rejected by the Supreme Court, the chair now seeks to make those requirements permanent. Only after the EEOC’s sole Democrat, Commissioner Charlotte Burrows, insisted on the meeting did the chair accede to make the agency’s consideration of the rule open to the public.

This proposed rule is the latest example of the Trump administration’s favoritism of business interests over workers’ right to equal opportunity, and its preference for executive prerogative over the congressional and judicial branches. At the EEOC, conciliation unquestionably is central to the agency’s administration of justice, and is capable of delivering outstanding results for workers. But that mechanism need not, and must not, undermine the agency’s broad mission to eradicate discrimination through litigation, if necessary. At a moment when there is an urgent need for vigilant civil rights enforcement, the last thing we should be doing is disempowering the very agency charged with fulfilling that mission.

David Lopez served as general counsel of the EEOC in the Obama administration and is dean at Rutgers Law-Newark.