Symposium | Rebuilding Enforcement

Employment: Three Strategies to Advance Equality

By Jenny R. Yang Cathy Ventrell-Monsees

Tagged DiscriminationequalityTrump Administrationworkers

If Joe Biden is elected, his Administration will need to take bold steps to advance equal employment opportunity. This comes under the purview of the U.S. Equal Employment Opportunity Commission (EEOC)—a federal agency created by a bipartisan majority in Congress as part of the landmark Civil Rights Act of 1964. The EEOC enforces the nation’s laws against workplace discrimination based on race, sex, national origin, religion, color, age, disability, and genetic information. The EEOC’s work protects everyone—men denied hire due to gender stereotypes, immigrant women sexually assaulted by their supervisors, and lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals fired because of who they are and who they love.

But the Trump Administration, rather than enforcing the nation’s anti-discrimination laws to protect workers, has unleashed a tidal wave of divisive actions that make it harder to hold employers accountable for discrimination. Trump’s appointed chair of EEOC, Janet Dhillon, has actively undercut the agency’s longstanding, bipartisan mission by starving the agency of staff and creating hurdles to effective enforcement.

Returning EEOC to its bipartisan mission of advancing opportunity can be a unifying force, rather than a divisive one. Equality in the workplace matters to all of us, and to our shared prosperity as a nation. In a new Administration, EEOC can help bring our nation together through three key strategies:

  1. Double EEOC’s budget to ensure it has the resources, staff, and a clear path to enforce existing laws.
  2. Proactively identify systemic discrimination and revamp complaint systems to better protect workers from power disparities inherent in employer-employee relationships.
  3. Inspire greater employer accountabilityand provide actionable solutions, so employers can replace discriminatory practices with new systems that harness the talents of our diverse workforce.

With the late September Senate confirmation of three new commissioners, the five-member Commission is at full strength for the first time under this Administration, with three Republicans and two Democrats. Under a Biden Administration, the President would appoint a new chair with responsibility for the agency’s operations. Republicans could maintain the majority on the Commission, potentially until July 2022, which could impact the approval of certain cases, as well as the passage of policy guidance. Nonetheless, a new chair could work to return the Commission to its tradition of bipartisanship, rebuild the agency’s staff, and overturn barriers to enforcement imposed by the current Administration.

Double the EEOC’s budget and remove hurdles to effective enforcement

The EEOC has never had enough resources to carry out its mission, but the Trump Administration has repeatedly sought to starve the agency of resources. The President’s requested budget for EEOC in 2020 was smaller than it was in 1980 (adjusted for inflation). Forty years ago, EEOC had 3,390 employees. Under its current chair, the agency’s staff has shrunk by nearly 40 percent.

Trump’s EEOC has also cut back on litigation, filing only 101 cases in fiscal year 2020, fewer than were filed two years ago. Although the pandemic has caused delays, the chair’s cuts to litigation resources and imposition of enforcement hurdles, such as new burdens to informally resolve charges of discrimination, appear to be having their intended effect.

For EEOC to lead the nation’s enforcement, Congress must at least double its budget. The EEOC’s responsibilities have grown significantly since 1965 when it opened its doors and the workforce has more than doubled since that time. EEOC must hire more investigators, litigators, and data scientists and invest in contemporary technologies and tools to better identify and examine discriminatory practices and trends.

EEOC under a Biden Administration should also roll back two programs introduced under the Trump Administration that are creating hurdles to effective enforcement. One pilot program—which EEOC’s Republican Commissioners recently voted to make permanent through a proposed regulation—would exhaust the agency’s resources by requiring a set of unnecessary procedural hurdles before filing suit against an employer. Through this effort, EEOC’s chair has sought to impose the kinds of obstacles to enforcement that the Supreme Court unanimously rejected in the 2015 Mach Mining decision, which held that the agency has broad discretion in how it informally resolves charges. For over a decade prior, employers investigated by EEOC mounted a strategy of shifting attention away from discriminatory conduct and, instead, onto whether EEOC had engaged in sufficient efforts to informally resolve the case before filing suit. Employers with no interest in resolving discrimination claims made time-consuming demands for information designed to challenge the conciliation in litigation, delaying cases for months or years, resulting sometimes in dismissal of egregious cases, including a systemic case alleging a pattern of sexual assault and harassment against female truck drivers.

A second pilot program takes the dramatic step of shuttling nearly all charges against employers to mediation. Historically, EEOC has not mediated what it considers to be “systemic cases,” such as a pattern of sexual assault of migrant workers, to ensure reform of discriminatory practices. Although portrayed as a means to resolve more charges faster, this program fails to address the fundamental power and information imbalance between employees and employers. At the mediation stage, workers often do not have access to an attorney, information about the employer’s practices, or knowledge of other employees impacted. Although mediation can provide some benefits, such as monetary relief for an individual, this new effort to send systemic matters through mediation undermines EEOC’s ability to make lasting policy and programmatic changes to protect workers from widespread discrimination. The chair’s strategies to undermine robust enforcement by creating unnecessary hurdles are key areas for reversal.

Protect Workers From Retaliation and Root Out Systemic Discrimination

The COVID-19 pandemic has heightened the power imbalance between employers and employees because workers are increasingly fearful of organizing or of facing reprimand for raising concerns in an unstable job market. EEOC must better protect individual workers who come forward from retaliation and allocate more resources to rooting out systemic discrimination.

Currently, the primary means of enforcement is for individuals to file charges with EEOC or a state or local agency. But the #MeToo Movement brought national attention to a broken complaint system. Two-thirds of workers who came forward to file a sexual harassment charge reported experiencing retaliation, with 64 percent reporting that they lost their job. Researchers estimate that 99.8 percent of workers facing sexual harassment do not file a complaint due to concerns of retaliation or harm to their career.

It is vitally important for workers to feel safe enough to come forward to report discrimination. Althoughwe might expect more workers to file charges with EEOC due to the current heightened attention to sexual harassment and race discrimination, the number of EEOC charges has dropped precipitously under this chair’s leadership, to just 72,675 in FY 2019—the lowest in over 25 years—compared to 91,503 charges filed just three years before in FY 2016.

In addition to better protecting workers who come forward, EEOC must also invest more resources in proactively identifying patterns of discrimination. Under Democratic- and prior Republican-led commissions, the agency has recognized that it cannot effectively combat discrimination without a strong nationwide systemic enforcement program.That changed under the Trump Administration’s chair and general counsel. Since their appointments in 2019, EEOC has prioritized the filing of single-victim cases and minimized the filing of systemic lawsuits.In fiscal year 2020, systemic filings made up only three percent of all of EEOC’s discrimination lawsuits, compared to an average of nearly 23 percent in fiscal years 2013-2016.

Systemic investigations tackle policies and practices with a broad impact on an employer, industry, or geographic area, and protect individual employees from retaliation, providing safety in numbers. When EEOC files systemic cases, this can prompt greater attention by other employers—enabling EEOC to strategically leverage its resources to help more people.

To build a more robust enforcement program under a Biden Administration, worker organizations have a critical role to play in assisting government agencies in understanding where systemic problems lie through collaborative enforcement efforts.Rather than placing the primary burden of enforcement on individual vulnerable workers filing charges, a revitalized enforcement program should place a greater responsibility on entities with the most information and power to address discrimination. Under this model, community-based organizations, unions, and workers’ centers can partner with government agencies to identify problematic practices and document patterns of violations to help the government better protect workers. Employers also have a critical role to play in providing greater transparency about their employment processes and should be encouraged to actively audit and evaluate them to root out discrimination.

Under a new administration, EEOC can play a powerful role in addressing systemic hiring discrimination, particularly as employers rehire for jobs lost during the pandemic. A vast body of research shows that many long-standing hiring processes are biased. Practices, such as subjective resume review and unstructured interviews, enable stereotypical views and inaccurate assumptions to influence decisions. Hiring discrimination can be very difficult to detect as applicants typically have no knowledge about why they were not selected.

To better identify where to focus enforcement and to provide incentives for employers to revamp biased procedures, we propose EEOC launch a National Report Card on Employment Discrimination in America. This report card would highlight patterns of occupational segregation based on demographic data EEOC has collected from employers for over 50 years. It would also summarize the results of a national audit study of discrimination funded by EEOC. On a bipartisan basis, EEOC has recognized that audit studies, also known as employment testing, is an important strategy for rooting out hiring discrimination. Audit studies test for unequal treatment by having otherwise identical pairs of individuals, except for one key characteristic, such as race, gender, or age, apply for the same position. The results, such as who gets a callback or job, are analyzed to determine whether discrimination occurred. Similar studies have long been used to identify patterns of housing discrimination. In addition to highlighting the knowledge gained from testing research, this report card could highlight research on common hiring practices likely to create discriminatory barriers, such as inflated credential requirements or unnecessary credit or conviction screens.

As employers ramp up hiring, many are relying heavily on technologies that screen and rank thousands of online applications. It is critical that EEOC provide guidance for employers to ensure that new forms of algorithmic or artificial intelligence (AI)-driven hiring do not reinforce existing patterns of discrimination. Many algorithmic systems operate as a “black box,” creating a substantial risk of unchecked systems that may perpetuate patterns of discrimination already present in the workforce. EEOC is uniquely situated to tackle hiring discrimination since it can initiate investigations through its authority to bring Commissioner’s charges and directed investigations, which is particularly important in situations where workers are unlikely to hold critical information about recruitment and hiring screens. We recommend EEOC develop guidance to ensure algorithmic systems are designed to prevent bias, including the documentation and retention of information necessary to audit these systems and evaluate their reliability and validity such as training data, applicant information, and assessment criteria.

Promote Greater Employer Leadership, Transparency, and Accountability

Despite having anti-discrimination laws on the books for over a half century, this country has made limited progress in combatting discrimination in the workplace. Why? Because advancing equal opportunity has not been a top priority for many employers. With little chance that they will be held accountable, many organizations do not track metrics or address relevant problems proactively.

That is why EEOC began collecting pay data from employers. Doing so serves two purposes: First, used in conjunction with charges filed and other information about an employer’s practices, pay data helps EEOC more effectively focus its resources where problems are likely to exist. Second, it promotes greater accountability by employers who must conduct regular pay equity audits to ensure their processes are not causing harm.

But the Trump Administration halted implementation of EEOC’s pay data collection rule, until a federal court ordered the agency to collect pay data for 2017 and 2018. Not to be deterred, the Trump Administration’s EEOC announced that it would not be renewing its request for authorization to collect pay data after the court-required collections for 2017 and 2018. Under a Biden Administration, EEOC should build a robust collection of pay data, use the data to inform investigations, outreach, and technical assistance, and allow outside researchers to study the data to better understand trends.

In addition, as businesses make statements in support of Black Lives Matter and racial justice, EEOC could leverage this momentum to engage business leaders in adopting actionable solutions to dismantle barriers to opportunity. Similar to the EEOC Select Task Force on the Study of Harassment in the Workplace, which identified innovative and promising anti-harassment practices, a new task force on race and gender equity could lay a foundation for evidence-based solutions to advance equity in our twenty-first century workplaces.

The Path Forward

The pursuit of equity should be a unifying goal for our nation: Workplace discrimination threatens the fundamental ideals of a diverse and inclusive democracy. Under a Biden Administration, EEOC can move forward as a stronger agency—grounded by the knowledge of worker organizations and in collaboration with our nation’s employers—to emerge empowered to make transformational change and advance equality for all Americans.

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Jenny R. Yang is a senior fellow at the Urban Institute and former chair of the U.S. Equal Employment Opportunity Commission.

Cathy Ventrell-Monsees is a former senior advisor to three former EEOC chairs.

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