Sign-On Letter to the Equal Employment Opportunity Commission on the National Academy of Public Administration study

Cari M. Dominguez
Chair
Equal Employment Opportunity Commission

Re: Comments on the National Academy of Public Administration study

Dear Chairwoman Dominguez,

We, the undersigned members of the Leadership Conference on Civil Rights (LCCR), appreciate the opportunity to comment on the February 2003 report released by the National Academy of Public Administration (NAPA). LCCR is a diverse coalition of more than 180 national organizations representing a broad constituency, including persons of color, women, children, labor unions, individuals with disabilities, older Americans, major religious groups, and gays and lesbians. As members of LCCR, we have a shared commitment to advancing equal opportunity in employment and ensuring that all Americans are treated fairly in the workplace. For this reason, we believe strongly in the Equal Employment Opportunity Commission's mission to eliminate unlawful employment practices and to uphold fundamental principles of equality and justice.

I. Introduction and Background

In July 1964, President Lyndon B. Johnson signed the Civil Rights Act of 1964 (1964 Act) - a landmark law, fueled by the civil rights movement of the 1950s and 1960s, signifying this nation's collective commitment to eradicating persistent discrimination throughout American society. The Equal Employment Opportunity Commission (EEOC or Commission) was created as part of Title VII of the 1964 Act - Title VII prohibits employment discrimination based on race, sex, color, religion, and national origin.

The EEOC's primary mission was to receive and investigate charges of illegal employment practices, determine whether there was reasonable cause to believe the charge, and take steps to remedy violations of the law.[1] One year after the 1964 Act became law, the EEOC was open for business.

In its first year, the Commission received almost 9000 charges, more than 4 times the initial projections. In the years that followed, the Commission's work and enforcement powers expanded: new employment discrimination laws were passed and added to EEOC's enforcement responsibilities, including the Age Discrimination in Employment Act in 1967, the Pregnancy Discrimination Act in 1978, and the Americans with Disabilities Act in 1990; the Commission was given litigation authority to ensure compliance with the law; and the Commission began issuing extensive policy guidance and statements explaining what the law requires. In FY 2002, the EEOC handled more than 84,000 charges. The majority of the claims it received involved allegations of sex and/or race discrimination -30.2% and 35.4% respectively in FY02; the fastest growing claims are age discrimination complaints, undoubtedly reflecting an aging United States population, and allegations of discrimination against people with disabilities. There also has been an upsurge of religious discrimination claims, in particular by Muslims and Sikhs.

While the core mission of the EEOC remains the same today as it was at its inception, the enforcement challenges it faces are ever-changing. In 1965, many of the illegal employment practices examined by the Commission were visible and longstanding, such as segregated ""help-wanted"" ads that were divided into jobs for men and jobs for women. Today the Commission must tackle not only the visible practices, but also subtler forms of discrimination that, although hidden from plain view, continue to deny equal employment opportunity to far too many. Despite significant progress over more than three decades, employment discrimination persists. Women and people of color continue to battle stereotypes and biases that limit their job opportunities and, as a result, they are still underrepresented in management and senior positions, as well as non-traditional or higher-paying occupations. Discriminatory pay practices relegate many female and minority workers to jobs with lower wages, with Latino and African American workers often occupying the lowest paid positions. The refusal of employers to provide reasonable accommodation for a religious practice, in the absence of an undue hardship, places workers in the untenable position of having to choose between their livelihood and their faith. The types of complaints received by the Commission has remained stable in some areas and grown in others. For example, over the last decade, pregnancy discrimination complaints have increased by almost 40%-up from 3385 in FY1992 to 4714 in FY2002. Thus, it is critical that the Commission continues to demonstrate its commitment to eliminating unlawful employment discrimination, in particular, by preserving the structure, tools, and resources essential to making that commitment real.

It is with this history and background in mind that we have reviewed the NAPA report and its recommendations. We commend your efforts to undertake an assessment of the Commission, and we are mindful of the EEOC's need to function efficiently and to evaluate consistently its structure and performance. The LCCR believes that the EEOC's primary role - to enforce employment discrimination laws and help individuals vindicate their rights - is as vital today as it was in 1964. For this reason, we strongly believe that any changes to the EEOC's structure or organization must not detract from these fundamental enforcement responsibilities. The recommendations put forward in the NAPA report raise a number of concerns, and we have detailed below our comments on several recommendations that we understand may be most imminent. Most importantly, we caution against implementing changes without comprehensive analysis of their potential impact, significant outreach to stakeholders, Congressional oversight, and full opportunity for formal public comment on specific proposals.

II. Comments on NAPA Recommendations

A. NAPA recommendations regarding changes to EEOC structure and mission.

The NAPA report includes several recommendations that would alter significantly the structure and operations of the EEOC.

1) The National Call Center.

The NAPA report recommends that the EEOC ""establish a nationwide, toll-free National Call Center staffed by individuals who have been thoroughly trained in responding to questions about EEOC's mission and services and in taking charges over the phone.""[2] While we support efforts to make the EEOC more efficient, we believe it is crucial to ensure that any proposed changes do not harm the ability of claimants to vindicate their rights.

Ensuring Fairness to Individual Claimants. We are concerned that the national call center, as proposed, would erect obstacles to individuals seeking to file their claims. The NAPA proposal seems to envision all phone calls being routed to one central location where staff will handle initial intake and screening of claims, as well as general requests for information. While providing basic information, such as background on what the EEOC does, might lend itself to a generic call center format, the more technical process of receiving and analyzing legal claims does not. Currently, clients meet with local intake staff to discuss their potential claims and to understand their rights. Because, from the perspective of individual claimants, these are not routine filings, one-on-one meetings often provide the best forum for the type of nuanced services required in employment discrimination claims. Clients need time to fully explain their complaint and the intake person needs time to adequately assess the complaint. In contrast, call centers frequently operate with strict time limits, thus staff answering calls might not be able to delve fully into the intricacies of the complaint. If claims intake is delegated exclusively to a call center, we are concerned that time pressures and insufficient technical expertise will lead to premature dismissals of complaints and discourage many potential claimants from filing valid charges. Additionally, limited English proficiency (LEP) persons are best served when they have face to face contact with a field office staff person. Not only are the issues complex, but language barriers also present an obstacle that the use of a call center may exacerbate.

Ensuring Access to Appropriate Technical Expertise. We also are troubled by the possible privatization of the service provided by the national call center. The public deserves cost effective, high quality services, which is why we support retaining competent and knowledgeable in-house staff who are capable of providing effective assistance to the public. We are concerned that the EEOC is considering replacing highly qualified staff with private contractors with limited expertise in these complex issues. We believe that the intake process is best handled by staff with significant expertise who can consult with higher level staff when questions arise, as the current structure permits. This type of expert assistance is critical to ensuring that individuals can make informed decisions about how to proceed on potential claims and preserve their rights.

Efficiency. Although the call center recommendation has been proposed in the name of efficiency, the proposal actually could have the opposite effect. When services are privatized, costs often increase, quality often declines, and new bureaucratic structures often are created, thereby adding new administrative layers and undercutting efficiency goals. Additionally, using recently hired or inexperienced staff to provide information about the EEOC and to conduct intake on complex employment discrimination claims might result in more calls being directed to field offices. This also would undermine, rather than enhance, efficiency.

All of these concerns lead us to conclude that a call center format, if pursued, should be limited to dissemination of general information and not claims processing. Even in this role, at a minimum, the proposal should be piloted extensively before any move toward full-scale implementation. Only then can a determination be made as to whether these concerns can be resolved in a way that permits claimants to continue vindicating their rights in a manner that they find not only efficient but also fair.

2) Closing Offices and Reducing ""Brick and Mortar"" Costs.

The NAPA report recommends reducing ""brick and mortar"" costs by establishing a network of lead offices and closing and relocating some field offices.[3] As a general matter, we support EEOC efforts to explore ways to decrease real estate costs, such as locating offices in lower-rent areas. We have serious reservations, however, about the potential closure of local offices and accompanying reduction in EEOC services. Specifically, we are concerned that a significant reduction in staff and availability of offices would cause substantial harm to individuals seeking to have their claims heard fully and fairly. Closing an office, for example, could make it harder for low-income clients with limited resources to travel to an office. Reducing services could make it tougher for clients with language barriers to get much-needed assistance. Eliminating offices, without ample study and public consultation, could send the wrong message to clients about the EEOC's commitment to reach out to underserved communities and reverse much of the progress the EEOC has achieved in recent years.

Although the NAPA recommendations do not propose a definitive number of offices to be closed, the options put forward suggest that a significant reduction is contemplated.[4] We believe that such a sizable restructuring is unwarranted and ill-advised. Before any restructuring takes place, we believe it is imperative that the EEOC undertake significant consultation with stakeholder communities to get an accurate assessment of how well communities currently are being served. Then, the EEOC must articulate clear, appropriate, and comprehensive criteria for making decisions about restructuring. Criteria such as information on how a local community would be served or harmed if an office was closed, or the impact of potential closures on communities with unique employment barriers-e.g., language barriers or disabilities-is essential. The EEOC must have detailed plans in place to ensure effective outreach to these communities and to ensure vigorous enforcement of the law, especially if office closures are under serious consideration in a particular jurisdiction.

Further, any proposal for closing offices also must include a cost/benefit analysis. It is not clear to what extent the NAPA recommendations will lead to actual cost savings. Closing an office might eliminate certain operational costs, but it also could mean that the cost of handling claims in a particular community would rise significantly without a local office presence, in terms of additional staffing and travel costs. The costs associated with operating an office depend on not only current caseload volume, but also on the potential demand for services in that community and the overall efficiency of the local office. Closing an office that currently operates at a very high level of efficiency could lead to higher costs in the long term. Most importantly, any assumptions about costs and potential savings must be driven by the actual needs of the local community. Thus, a cost/benefit analysis that includes a comprehensive community assessment is a crucial threshold step that must take place before any decisions are made final. Finally, there must be ample opportunity for public comment on any proposal to close or reduce the number of offices in different communities.

B. NAPA recommendations regarding the use of technology.

The NAPA report includes several recommendations that focus on using technology to increase agency productivity and make information more easily available for its customers, employees, and stakeholders. We are supportive of the EEOC's efforts to make technology upgrades generally, but the recommendations include two proposals that raise serious concerns - electronic filing and teleworking.

1) Electronic Filing.

Enabling clients to file their claims electronically raises a number of legal and technical questions. First, all claims are supposed to be signed by the charging party. Thus, some provision would be required to comply with this rule. Second, attempting to condense the current claims filing process into a mechanized electronic format creates the very same hazards posed by the national call center. An electronic, automated process, without any guidance from trained personnel, risks jeopardizing the rights of claimants because it eliminates the ""give-and-take"" essential to ensuring that claimants understand their legal options. Asking clients to file claims electronically also assumes that they have access to and skill with using a computer, which cannot be presumed for all individuals interested in filing a claim.

2) Teleworking.

As part of its recommendation to reduce the number of EEOC offices, NAPA also proposes to shift some complement of EEOC staff into ""telework"" arrangements.[5] A teleworking structure would create a network of dispersed staff who work separately from home offices rather than working collaboratively in regional offices. It is unclear how well clients will be served by this structure and it will depend in a large measure on the scope of the program design. We believe, however, that any teleworking program must be piloted in order to fully evaluate whether it is a worthwhile alternative that continues to serve complainants in the best way possible.

Beyond these two concerns, we also believe that it is prudent to weigh the potential risks and benefits associated with any proposed technology improvements. It is important to ensure that the ability of people to bring claims and to have them heard in a full and fair manner is not compromised solely for the sake of technological advancement.

C. NAPA recommendations regarding performance-based management.

The NAPA report contains a series of recommendations focused on achieving performance-based management objectives. We support the goals of many of these recommendations, including expanding the EEOC's capacity to analyze, validate, and disseminate information on best practices, and developing methods to demonstrate the impact its work has on reducing employment discrimination in the workplace. We also support the recommendation that the Office of Field Programs routinely examine a random sample of closed cases from each office, to ensure that they were adequately investigated.

D. NAPA recommendations regarding the implementation of the EEOC's restructuring plan.

The NAPA report closes with recommendations focused on implementing the EEOC restructuring plan, including developing resource estimates and providing training to staff. Before any recommendations are implemented, however, we believe there are a number of steps that must be taken. First, as noted earlier, the EEOC must articulate how all affected stakeholders will be included in the decisionmaking process. The EEOC needs to conduct extensive outreach to all stakeholders and engage in a comprehensive, participatory process, as it has done on various issues, including pay equity, low-wage earners, and national origin discrimination. Because many groups did not have the opportunity to weigh in as part of NAPA's assessment process, we urge the EEOC to hold public meetings on the proposed recommendations. As the NAPA Report Summary acknowledges, ""Successful organizational transformation depends on a well organized implementation process and a communications strategy that involves stakeholders and keeps all parties informed of the purpose, content, and timing of changes.[6] Second, we urge the Commission to submit a report to Congress outlining its future plans with regard to the NAPA recommendations. We believe that Congress has an important oversight role to play to assist the EEOC with addressing the many enforcement challenges it faces.

Finally, we would urge the Commission to consider how any potential changes will impact other reforms or changes already implemented by the EEOC over the past few years. For example, the EEOC has made significant progress in streamlining and improving the efficiency of processing claims through the adoption of priority charge handling procedures, and the EEOC's mediation program also has helped to resolve claims in an expedited manner where appropriate. Any new changes proposed by the EEOC should build on, and not undermine, these recent achievements.

III. Conclusion

For over 50 years, the work of the LCCR has reflected our longstanding, unwavering commitment to ensuring equal employment opportunity and affirming equal justice principles. Our support for the EEOC and its mission is rooted firmly in this commitment and we believe that the EEOC has a vital role to play in widening the doors of employment opportunity for all Americans. We also understand the importance of ensuring efficiency in EEOC's operations. We believe that the Commission's efficiency goals, if pursued in a thoughtful, collaborative manner, need not undermine the rights of claimants or overall enforcement. We thank you for the opportunity to submit these comments and we look forward to working with you on these critical issues.

Sincerely,

AARP
AFL-CIO
American Civil Liberties Union
American Federation of Government Employees, AFL-CIO
American Jewish Committee
Labor Council for Latin American Advancement
Lawyers' Committee for Civil Rights Under Law
Leadership Conference on Civil Rights
Mexican American Legal Defense and Educational Fund
National Asian Pacific American Legal Consortium
National Employment Lawyers Association
National Partnership for Women & Families
National Women's Law Center
NOW Legal Defense and Education Fund
9to5, National Association of Working Women
Organization of Chinese Americans
Washington Ethical Action Office / American Ethical Union
Women Employed

[1] See Equal Employment Opportunity Commission, The Story of the United States Equal Employment Opportunity Commission: Ensuring the Promise of Opportunity for 35 Years (2000).

[2] National Academy of Public Administration, Report Summary, Equal Employment Opportunity Commission: Organizing for the Future at 3 (February 2003) [hereinafter NAPA Report Summary].

[3] See NAPA Report Summary, supra note 2, at 3-7.

[4] Currently there are 51 EEOC offices across the country. The NAPA recommendations suggest several options, including the option of establishing a network of ""lead offices"" that align with the ten federal regions, possibly supplemented by an unnamed number of smaller ""intake-only"" centers. See id. at 5-6.

[5] NAPA Report Summary, supra note 2, at 2, 14.

[6] Id. at 2.