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EEOC Control Principles Won’t Enhance Consistency, EEO expert says 
 

5/14/2013  By Allen Smith 
 
 
 

Vague quality control principles issued by the U.S. Equal Employment Opportunity Commission (EEOC) on May 10, 2013, are unlikely to bring about much-needed consistency in EEO enforcement, according to Rae Vann, general counsel at the Equal Employment Advisory Council, an employer association that focuses on companies’ EEO obligations.

The EEOC’s 2012-16 strategic plan requires the commission to approve a new quality control plan. Existing quality control criteria do not note whether charges were properly reassessed on a timely basis, nor how efficient and timely investigations have been. They also do not take into consideration what the investigations actually consisted of or whether the investigators correctly applied the law to the facts of the charge.

But Vann is unimpressed by the agency’s action response so far. The recent set of quality control principles, which  are still in the draft phase, are “not as detailed as we hoped,” Vann told SHRM Online, describing the drafting as “just a paperwork exercise.”

Draft Principles

The draft principles define a “quality investigation” as one in which the commission:

Identifies the bases, issues and relevant allegations of the alleged unlawful employment action in a charge.

Conducts an investigation consistent with itsPriority Charge Handling Procedures.

Applies the law to the facts to determine if there is reasonable cause to believe that unlawful employment discrimination has occurred.

Communicates with the charging party and the respondent to obtain sufficient information to make its determination.

These principles do not get to the heart of what concerns employers, though, according to Vann. She had hoped for a substantive document that could serve as “a road map to conciliation.”

Meeting on Quality Control

Vann was tapped by the agency to participate in a March 20, 2013, commission meeting on quality control for agency investigations and conciliations. She said it was “very helpful” to hear the agency’s field staff investigators share their wish that enforcement among area offices across the nation be more consistent.

Vann learned at the meeting that some EEOC offices release position statements without first notifying employers they will do that, while others first provide employers with notice.

An EEOC notice about the commission meeting noted that employers in the private sector, such as Vann, “urged the commission to ensure that investigative and conciliation procedures, including whether to make certain disclosures, be applied consistently throughout the agency in every district and field office.”

But even the release suggested that the agency was reluctant to require much uniformity in enforcement, stating, “EEOC staff counseled that while consistency is important, it must be balanced against the need for flexibility in the field, taking into account office resources, investigator caseload and the specific needs of each investigation.”

Vann also expressed disappointment that there wasn’t much in the principles relating to expedited mediation and post-cause mediation.

Suggested Quality Control Factors

In a March 1, 2013, letter to the EEOC, she suggested instead the following as factors EEOC offices could uniformly apply to determine the quality of a charge investigation:

The duration of the investigation from start to finish.

If the processing time exceeded 120 days, whether there was a reasonable explanation for the delay.

Whether the investigator reassessed and appropriately recategorized the charge as the investigation progressed.

Whether the investigator performed an accurate legal assessment (i.e., whether there was sufficient evidence to support the investigator’s determination).

In the case of a reasonable cause determination, whether all the elements of a prima-faciecase have been established.

Whether the employer offered a legitimate, nondiscriminatory reason and/or the investigation revealed evidence of pretext.

Whether the letter of determination adequately explained the basis for the reasonable cause

Whether the employer offered a legitimate, nondiscriminatory reason and/or the investigation revealed evidence of pretext.

Conciliation

All too often, conciliation is merely a gleam in the employer’s eye, quickly extinguished by EEOC staff, she suggested.

“The often cursory treatment of conciliation by some field staff falls short of satisfying the agency’s statutory conciliation obligation, and undermines the concept of voluntary settlement as the preferred means of resolving discrimination charges,” Vann wrote. 

“We thus strongly recommend that the EEOC offer in-depth training to its investigative staff on proper conciliation techniques, and put into place a system of checks and balances to ensure that good-faith conciliation efforts are, in fact, undertaken with respect to every meritorious charge.”

Rather than take such suggestions seriously, the draft principles “seem inadequate,” she concluded in a May 13, 2013, interview. And, she suggested, the agency has not provided enough time for there to be meaningful input from the public on the draft principles.

Comments on the draft principles for the EEOC’s quality control plan are due by 5 p.m. Eastern time on May 24, 2013, at strategic.plan@eeoc.gov.

Allen Smith, J.D., is manager of workplace law content for SHRM. Follow him on Twitter @SHRMlegaleditor.