Big Mistakes Workers Make When They File Discrimination Claims

By Bryan A. Chapman, Esquire

Workplace discrimination is commonplace.  Federal statutes protect workers from discrimination based on their race, sex, national origin, religion, age, and disability.  The Equal Employment Opportunity Commission (EEOC) was created in 1965 to enforce the federal laws against workplace discrimination.  Unfortunately, for the past several decades, the EEOC has been ineffective in protecting workers from discrimination due to inadequate funding from Congress.

The EEOC is unable to investigate an increasing number of the discrimination claims it receives.  These claims are eventually dismissed by EEOC without being investigated.  Workers receive a “Right-to-Sue” letter that instructs them to file a discrimination lawsuit in federal court within 90 days.  The vast majority of workers who receive “Right-to-Sue” letter simply give up.

Even if EEOC is no longer an effective enforcer of federal workplace discrimination laws, the ever increasing number of EEOC claims signal to the Congress that workplace discrimination continues to be a major problem.  One can only hope that the growing number of EEOC claims will eventually lead to reform of the federal workplace discrimination laws.

In the meantime, workers who file discrimination claims with the EEOC have to be well prepared and strategic if they want to succeed.  Workers need sound legal advice prior to filing a claim.  The outcome of any discrimination claim depends on specific workplace discrimination laws and how they are applied to the facts of a particular case.  Workers have to convince EEOC that their claims are legally sound and worthy of being investigated.  When EEOC investigates claims, the intrusive nature of these investigations can convince employers to settle the claims.

Most workers who file discrimination claims are simply unprepared.

I. Unrealistic Expectations

Workers who file discrimination claims with the Equal Employment Opportunity Commission (EEOC) are generally unaware of their chances of success.  Many have the misguided belief that because their claim seems morally justified they will win.

Most workers are familiar with accident claims where fault is immediately determined, based on who caused the accident, and the only issue is the settlement amount.  Accident claims are settled quickly because insurance companies find it profitable to do so.  Insurance companies know that no one wants to get into an accident.

Insurance companies also insure employers against discrimination claims.  Employers and their insurers generally want discrimination claims to drag on for as long as possible.  They know that as time passes workers: 1) get frustrated and give up, 2) accept smaller settlements, or 3) have their claims dismissed.  Furthermore, this practice discourages other workers from pursuing discrimination claims.

Insurance companies hire private law firms to defend the employers they insure.  These law firms usually specialized in defending employers against discrimination claims.  These law firms generally apply a “scorched earth” approach.  All discrimination claims are vigorously contested and all allegations are denied.  And, the workers are portrayed as bad or incompetent employees.  Litigation can drag on for years and become extremely expensive.  As a result, only 3% of workers who file discrimination claims with EEOC receive a favorable decision from the agency.  And, workers who file discrimination claims in federal court win only 1% of the time.

II. Failure To Consult An Experienced Attorney

Most workers who file discrimination claims with EEOC do so without consulting an experienced attorney.  These workers believe that EEOC will champion their cases against their employers, which is simply not the case.

Workers need sound legal advice prior to filing a discrimination claim.  There are many employment actions that employers can take against workers that seem unfair but do not violate federal workplace discrimination laws.  For instance, employment-at-will allows employers to terminate workers at any time and for any reason.

Before filing a discrimination claim, workers need to know whether or not they have legally valid discrimination claims.  If workers have legally valid discrimination claims, they need effective strategies that allow their claims to succeed.

Most workers may be aware of federal statutes that prohibit discrimination in the workplace based on race, sex, national origin, religion, age, and disability.  But, they are unaware of the hundreds of court decisions that actually govern what does and does not constitute workplace discrimination when applied to the facts of their cases.  Filing a workplace discrimination claim without first obtaining sound legal advice is like coming to a gunfight blindfolded.

III. Expecting the Employer to Adopt Their Point Of View

Many loyal workers file discrimination claims with EEOC because they feel they are being harassed by a supervisor.  In many cases, they are unable to sleep at night and are fearful of being fired.

Some workers believe that it will be their word against the word of an unpopular supervisor.  They may actually believe that the employer will adopt their point of view once the supervisor’s alleged misdeeds are exposed.

Unfortunately, employers turn discrimination claims over to private law firms.  These law firms vigorously defend employers regardless of whether or not workplace discrimination has occurred.  All discrimination claims are contested and all allegations are denied.  These lawyers investigate workers and portray them as bad or incompetent employees.  Some workers become paralyzed with fear and believe that they are going to be eventually fired.  An experience attorney can calm client’s fears by preparing them for these personal attacks.

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Overview Of Federal Sector EEO Complaint Process

Source: Equal Employment Opportunity Commission

If you are a federal employee or job applicant, the law protects you from discrimination because of your race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. The law also protects you from retaliation if you oppose employment discrimination, file a complaint of discrimination, or participate in the EEO complaint process (even if the complaint is not yours.)

There are also federal laws and regulations and Executive Orders(which are not enforced by EEOC) that prohibit discrimination on bases such as sexual orientation, marital status, parental status, or political affiliation.

If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency’s EEO Office. You can contact an EEO Counselor by calling the office responsible for the agency’s EEO complaints program.

EEO Counselor

The first step is to contact an EEO Counselor at the agency where you work or where you applied for a job. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred.

In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program.

If you do not settle the dispute during counseling or through ADR, you can file a formal discrimination complaint against the agency with the agency’s EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file.

Filing A Formal Complaint

Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late).

If the agency doesn’t dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation.

When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred.

Agency Issues A Decision (Final Action)

If you ask the agency to issue a decision and no discrimination is found, or if you disagree with some part of the decision, you can appeal the decision to EEOC or challenge it in federal district court.

Requesting A Hearing

If you want to ask for a hearing, you must make your request in writing or via the EEOC Public Portal located at https://publicportal.eeoc.gov/ where you can also upload hearing requests, and manage your personal and representative information within 30 days from the day you receive the notice from the agency about your hearing rights. If you request a hearing, an EEOC Administrative Judge will conduct the hearing, make a decision, and order relief if discrimination is found.

Once the agency receives the Administrative Judge’s decision, the agency will issue what is called a final order which will tell you whether the agency agrees with the Administrative Judge and if it will grant any relief the judge ordered. The agency will have 40 days to issue the final order. It will also contain information about your right to appeal to EEOC, your right to file a civil action in federal district court, and the deadline for filing both an appeal and a civil action.

Filing An Appeal Of The Agency’s Final Order

You have the right to appeal an agency’s final order (including a final order dismissing your complaint) to EEOC Office of Federal Operations. You must file your appeal no later than 30 days after you receive the final order. You may file your appeal using the EEOC’s Public Portal located at https://publicportal.eeoc.gov/ where you can also upload selected documents, and manage your personal and representative information.

EEOC appellate attorneys will review the entire file, including the agency’s investigation, the decision of the Administrative Judge, the transcript of what was said at the hearing (if there was a hearing), and any appeal statements.

If the agency disagrees with any part of the Administrative Judge’s decision, it must appeal to EEOC.

Request For Reconsideration Of The Appeal Decision

If you do not agree with the EEOC’s decision on your appeal, you can ask for a reconsideration of that decision. A request for reconsideration is only granted if you can show that the decision is based on a mistake about the facts of the case or the law applied to the facts. You must ask for reconsideration no later than 30 days after you receive our decision on your appeal.

Once EEOC has issued a decision on the appeal, the agency also has the right to ask EEOC to reconsider that decision.

Once we have made a decision on your request for reconsideration, the decision is final.

Filing A Lawsuit

You must go through the administrative complaint process before you can file a lawsuit. There are several different points during the process; however, when you will have the opportunity to quit the process and file a lawsuit in court, including:

  • After 180 days have passed from the day you filed your complaint, if the agency has not issued a decision and no appeal has been filed
  • Within 90 days from the day you receive the agency’s decision on your complaint, so long as no appeal has been filed
  • After the 180 days from the day you filed your appeal if the EEOC has not issued a decision, or
  • Within 90 days from the day you receive the EEOC’s decision on your appeal.

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Do Companies Try to Settle Harassment Claims Out of Court?

by Ruth Mayhew; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA; Updated March 11, 2019

Do Companies Try to Settle Harassment Claims Out of Court?

Harassment lawsuits are costly, so out-of-court settlements save employers the time and expense of defending their employment practices. The U.S. Equal Employment Opportunity Commission, the agency that enforces employment laws, reports 26,699 charges of workplace harassment during fiscal year 2018. Approximately 7 percent of those claims were settled, and the EEOC recovered more than $134 million in damages, much of it through out-of-court settlements on behalf of employees who filed harassment claims. Out-of-court settlements often are more attractive to employers than gambling with a potentially sympathetic jury.

Early Stage Settlement

When an employee files an initial complaint about workplace harassment, it’s rare that the company is thinking about settlement at this point, unless there have been similar incidents in which the company has been cited or sued for harassment claims found to have merit. At this point, in addition to considering settling claims, the company should also consider organizational changes and mandatory leadership and employee training to eliminate unlawful workplace behavior and unfair employment practices.

Workplace Harassment Investigations

A human resources department staffer, outside consultant or a lawyer typically investigates workplace harassment claims. The person assigned to the investigation must know what constitutes workplace harassment vis-à-vis a thorough understanding of employment laws, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the National Labor Relations Act and the Taft-Hartley Act. Throughout the fact-finding process, with correct application of statutory law and knowledge of past practices, settlement may be part of the discussion among decision makers in the company.

Investigative Process and Goals

The goal of every workplace investigation is to determine whether the harassment occurred, and if so, to what extent the employer is liable. During the course of an investigation, it might become clear that settling the harassment claim is a wise move – particularly if the investigator discovers evidence of egregious conduct that would make any jury decide in the employee’s favor. But if the investigation reveals that the company’s employment practices are defensible, the organization may decide that settlement is premature.

Impending Litigation Outside of EEOC Activity

Some harassment claims that the EEOC investigates are found to have merit, and even though an employee files a charge of discrimination with the EEOC, she can move forward with legal representation and seek redress through the courts. An employee has to file a charge of discrimination with the EEOC first, but she doesn’t have to wait until the agency completes its investigation to file a lawsuit – she can request a right-to-sue letter from the EEOC if she wants to move forward with litigation. In some instances, employees immediately retain legal counsel with the desire to press forward with litigation as quickly as possible.

The decision concerning whether to file a lawsuit before the EEOC has finished investigating the claim is up to the employee and her legal counsel, if any, and in some cases, whether the employer’s actions were especially egregious. Once a formal lawsuit is filed and the discovery process is underway to uncover details about the employee’s claim, the company’s investigative approach and past practices, the cost of litigation compels some employers to consider out-of-court settlement before the trial begins.

Costs to Settle a Claim

The cost to settle a harassment claim out of court can be far lower than damages that a court might award. Small businesses that lose harassment lawsuits could be liable for upwards of $50,000 in damages – and larger organizations, up to $300,000. In addition, depending on how the employer postures its case, a jury could award much higher amounts for punitive damages – some headlines report jury awards in the millions of dollars. In addition, employers consider the intangible costs of fighting a harassment suit instead of settling it.

Settling harassment claims can save the organization from bad publicity, which can lead to business losses, plummeting employee morale and a sullied reputation in the business community.

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How Does an EEOC Complaint Hurt an Employer?

by Cam Merritt; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA

Updated March 1, 2019

When the federal Equal Employment Opportunity Commission (EEOC) receives a complaint that an employer illegally discriminated against its workers, that employer may be in for a rough ride. The ensuing months can bring time-consuming official requests for information, intrusive investigations, large legal bills, negative publicity and, if the complaint is upheld, expensive damages.

The EEOC Ground Work

The EEOC investigates complaints of discrimination based on race, color, national origin, religion, sex, age and disability. In general, only employers with 15 or more employees are subject to EEOC oversight. Any employee can file an EEOC complaint, not just those who have been victims of discrimination.

Inspection Procedure

Regardless of whether an EEOC complaint has merit, the employer is going to have to invest time, effort and sometimes money to deal with it. When a worker files a complaint, the EEOC notifies the employer and asks it for a “statement of position,” in which it offers its side of the story. The EEOC follows up with a formal request for the employer to supply documents and other information relevant to the case, such as copies of company human resources policies and personnel files.

EEOC staff may also visit the workplace, something that the agency itself acknowledges can be disruptive to company operations. While on site, the staff may ask the employer to make employees available for interviews. The employer can say no, but the EEOC can still contact them away from work – without the employer’s knowledge or permission.

A Typical Investigation Proceedings

All of this activity so far is simply fact-finding; the EEOC will use the information it turns up to determine whether the complaint merits further action. If so, it moves on to a formal investigation, which will chew up more time and money. The investigators have the authority to subpoena company documents, prohibit the employer from destroying any documents of any kind without permission and compel employees to provide statements.

The EEOC says the typical investigation lasts six months. If the employer doesn’t have an attorney involved in the case by now, it needs one to advise management of its rights and responsibilities. Robin Shea, a partner at the national employment law firm Constangy Brooks & Smith, says employers operating without a lawyer can turn even a seemingly trivial complaint into a major investigation by unintentionally admitting that a violation occurred or providing too much information.

Mediation or Costly Litigation

An employer may be able to avoid a formal EEOC investigation by agreeing to try to resolve the matter through mediation or by settling the complaint. Doing so will probably bind the employer to changing its policies and procedures, and the employer may have to compensate employees who complained. But the employer doesn’t have to admit any guilt or liability, and any agreements can remain confidential.

If the employer declines to mediate, or if the EEOC concludes that the case is too serious for mediation, the EEOC may sue the employer. Even if the EEOC decides not to sue – or take any action – the employees who filed the complaint reserve the right to sue. Regardless of whether the EEOC or the worker does the suing, litigation means not only considerable legal expense for the employer, but also bad publicity.

Penalties and Indemnifications

Penalties for an EEOC complaint – whether resolved through mediation, settlement or litigation – start with providing relief for workers who suffered discrimination. That includes paying workers’ back wages, reinstating them or even promoting them, depending on the nature of the complaint. Employers can be ordered to pay complainants’ legal and court costs. Things get worse if the case goes to trial and the employer loses.

The court can award compensatory and punitive damages to the employees who filed the complaint. Such damages are capped at $50,000 per person when the defendant is an employer with 15 to 100 employees; $100,000 for employers with 101 to 200 employees; $200,000 for 201 to 300 employees; and $300,000 for more than 300 workers. However, in cases of age discrimination and of sex discrimination in pay, the damages are limited to an amount equal to the complaining employees’ lost wages.

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MORE AND MORE WORKPLACE DISCRIMINATION CASES ARE CLOSED BEFORE THEY’RE EVEN INVESTIGATED.

INJUSTICE AT WORK

Published — June 14, 2019

Rep. Alexandria Ocasio-Cortez, D-N.Y., speaks at an event in support of the Paycheck Fairness Act. The legislation, which passed the House but has yet to come up for a vote in the Senate, aims to address unequal pay for women. (AP Photo/J. Scott Applewhite)

It’s a problem that starts with Congress.

This story was published in partnership with Vox.

INTRODUCTION

It’s a classic Washington catch-22: For years, Congress has chastised the agency that investigates workplace discrimination for its unwieldy backlog of unresolved cases while giving it little to no extra money to address the problem.

In turn, officials at the U.S. Equal Employment Opportunity Commission have found a workaround: Close more cases without investigating them.

Since 2008, the EEOC has more than doubled the share of complaints involving companies or local government agencies that it places on its lowest-priority track, effectively guaranteeing no probes, mediation or other substantive efforts on behalf of those workers. About 30 percent of cases were shunted to that category last year, according to internal data obtained by the Center for Public Integrity through a public-records request.

Only 13 percent of all complaints the EEOC closed last year ended with a settlement or other relief for the workers who filed them, down from 18 percent in 2008.

Source: U.S. Equal Employment Opportunity Commission

Chicago-based accountant Richard Nelson went to the EEOC’s office in March to file a complaint that said he needed help getting his employer to make a few accommodations for disorders including attention-deficit/hyperactivity, his right under the Americans with Disabilities Act. His case was shut before the appointment ended.

“I think they’re looking for slam dunks,” Nelson said. He was told that given the office’s small staff and the level of evidence he had in emails with his employer, the EEOC couldn’t proceed. Instead of trying to settle or mediate the matter, the agency mailed him a piece of paper telling him he could file a lawsuit, which he would have to do on his own dime.

“I don’t want to sue anybody. I just want to be treated fairly,” he said.

Since 1980, as the U.S. workforce has grown by 50 percent, Congress has kept the EEOC’s funding essentially flat — budget increases eaten away by inflation.  That’s meant more cases without the resources to handle them. Last year the EEOC took in more than twice as many complaints as it did nearly four decades earlier, with about half the staff.

Gabrielle Martin, a 30-year EEOC attorney and president of the National Council of EEOC Locals No. 216, said the agency’s decision to send more cases to the “killing fields” — closing them without investigation — is a problematic solution to budget and resources woes.

“If they don’t continue to dump cases, Congress will say, ‘Well, what did you do with the money we gave you?’” Martin said. But they can’t make the case for more funding, she said, if they appear to be succeeding without it.

The EEOC defended its handling of complaints in a statement, saying it’s gathering more information early on so people with stronger evidence can get the assistance they need. Last year, the agency put more cases into its high-priority pool than it has since creating the ranking process in 1996, nearly 26,000 in all.

But the share of workers the EEOC helped get a settlement or other relief — that 13 percent — barely budged from the previous year. And the workers deemed low priority were almost all out of luck: Of about 27,000 cases, less than half a percent got relief.

Attorney Jaz Park assists low-wage workers with discrimination claims through Chicago-Kent College of Law’s employment clinic. She said she’s noticed an increase in cases closing within a few weeks without any apparent investigation from the EEOC.

In one case, a retail employee with 21 years on the job was fired shortly after being diagnosed with a heart condition. Her employer claimed she was fired for forgetting to give a customer a receipt. “If you take the time, you see it just doesn’t add up,” Park said.

Stacy Villalobos, an attorney for Legal Aid at Work, a nonprofit that provides legal services for low-income workers, said the EEOC’s categorization “oftentimes has nothing to do with the merits of the case.” Frequently, she said, information that would prove a worker’s allegation is in the hands of the employer.

“There may be merit,” she said, “but without an investigation, you may never know.”

Source: U.S. Equal Employment Opportunity Commission

‘EMOTIONALLY DRAINING’

The EEOC requires an interview with most workers before they can file a complaint. That filters out tens of thousands of potential cases from entering its system in the first place. More than 60 percent of people who inquired about filing last year ultimately didn’t — the highest dropout rate in at least 15 years — for reasons such as discrimination laws not covering their situation or the process daunting them.

Most of the complaints deemed low priority were filed by workers who continued past this weeding-out step.

To reduce its backlog, the EEOC must close more cases than it receives each year — and with fewer investigators. The agency employed about 500 last year, 140 fewer than a decade ago. It also handles a separate load of federal employees’ complaints; that too has a backlog.

This has been wearing on the agency’s workers. In 2018, almost half of EEOC staff said in a government survey that they didn’t have the resources to do their jobs, higher than average for federal agencies. The agency had the highest percentage of staff strongly disagreeing that their workload is reasonable, as well as the highest percentage strongly agreeing that the work they do is important.

“It’s really, really emotionally draining,” said former EEOC regional attorney Charles Guerrier, who was based in Birmingham, Alabama, before leaving in 2012. He said he advised staff to make peace with not being able to help every worker. The budget was so tight, he said, that sometimes his office would run out of paper because there wasn’t money to buy more.

At the agency’s San Diego office, former district director and mediator Tom McCammon said employees regularly went into work on weekends to spend unpaid hours finishing cases. Even so, he said, sometimes so much time passed before investigators got to a case that they couldn’t reach the complainant — the phone number was dead, the home address no longer valid.

“In the meantime, cases are stacking up by the hundreds with no investigation,” said McCammon, who left in 2013. “Each one of those files is a person who had a problem.”

‘FAILURE TO PAY ATTENTION’

For years, the EEOC’s standing with Congress has fallen into the same category as an increasing number of its cases: low priority.

The agency competes with 11 others in its appropriations subcommittee, including high-profile ones like NASA and the Department of Justice, for funding from a limited pool. Hearings focused on the EEOC’s performance and needs are scheduled only once every few years, and they’re often dominated by discussions of the backlog and lawsuits against employers that members of Congress object to the agency pursuing.

Congresswoman Eleanor Holmes Norton, who headed the agency from 1977 to 1981, is one of the few members of Congress who have consistently pushed to bolster protections for employment discrimination. But as the representative for Washington, D.C., she has no vote.

Her perspective: Most lawmakers have little interest in fighting discrimination.

“Failure to pay attention to the EEOC is to leave a lot of people out in the cold,” said Norton, a Democrat. “Nothing can overcome a backlog that grows from lack of funding.”

Rep. Eleanor Holmes Norton (D-D.C.) (AP Photo/Susan Walsh)

There are some signs of a shift. Last fiscal year, after eight years of flat funding that meant the agency’s budget was effectively shrinking because of inflation, the then-Republican-controlled Congress approved a $15 million increase for the EEOC. What it took was the #MeToo movement’s viral spotlight on sexual harassment. Fifteen senators and 71 representatives, all Democrats, asked the appropriations committees to give the agency more money.

But Congress approved no increase for this year, letting some of that boost evaporate as the cost of living rose. Eighty-four members of Congress, all Democrats, have requested a $20 million boost for next year. President Donald Trump is proposing a $23.7 million cut instead.

About 25,000 complaints last year involved sex discrimination, sexual harassment or both. Race and disability discrimination each accounted for virtually the same number, though neither issue has caught Congress’ attention.

The leaders of the House and Senate subcommittees that control the EEOC’s funding did not respond to interview requests. But these panels that play an outsize role in determining what the agency can do have twice as many men as women. Of their 28 members, only four identify as African American, Hispanic or Asian American. None identify as Native American.

Together they take in far more contributions from business interests than groups representing workers — at least 27 times the amount in the latest election cycle, according to data from the Center for Responsive Politics.

That creates a challenge for the EEOC. As Victoria Lipnic, then acting chair of the agency, pointed out in her latest budget justification to Congress, “our primary stakeholder” is “the American workforce.”

Martin Luther King Jr. (center left) and other civil rights activists take part in the March on Washington for Jobs and Freedom on Aug. 28, 1963.  The march pressured John F. Kennedy’s administration to propose strong civil rights legislation and built on previous organizing efforts that opposed discrimination against black workers. (AP Photo)

A HAMSTRUNG AGENCY

Some of the limits imposed on the EEOC by lawmakers have nothing to do with money.

In December, Sen. Mike Lee, R-Utah, held the Senate back from confirming three commissioners — a vote that required unanimous consent at that point — over his objection to another term for Chai Feldblum, an Obama appointee and the EEOC’s first openly lesbian commissioner.

“The federal government should never be used as a tool to stamp out religious liberty,” he said, alleging that Feldblum would use her position to do so in the name of LGBTQ rights. (Feldblum wrote last year that she believes this is not a “winner-take-all” game and that the government should look to accommodate religious beliefs while still achieving “the compelling purpose of the law.”)

Without those three commissioners, the bipartisan agency lacked a quorum, which by rule prevented it from filing higher-cost or higher-profile lawsuits against employers. In May, the Senate finally resolved that problem by confirming Chair Janet Dhillon — two years after she was nominated.

In the past two years, Lee has also introduced legislation that would strip most of the power from the National Labor Relations Board, which enforces workers’ right to organize; repeal the Davis-Bacon Act, which aims to guarantee prevailing wages for federally funded construction workers; and allow employers to give time off instead of paying overtime wages.

Reached for comment, Lee spokesman Conn Carroll said the senator was not the only elected official who had objections to Feldblum’s confirmation and that Democrats could have chosen to vote on the other nominees separately. (Commissioners are commonly approved as a group.) The spokesman said each of the employment-related bills Lee introduced, none of which passed, would “increase the freedom of workers to work.” Last election cycle, Lee received $4.5 million in contributions from business interests and $8,000 from labor groups.

Two of Lee’s bills were co-sponsored by Sen. Lamar Alexander, R-Tenn., chairman of the Senate committee that reviews labor legislation and a member of the subcommittee that handles EEOC appropriations.

Alexander has been more attentive to the EEOC, and its backlog, than most lawmakers. When the agency proposed collecting wage data by sex, race and national origin from large employers as part of a cross-agency effort to curb pay discrimination in 2016, for example, he wrote to the White House’s Office of Management and Budget to request that it squelch the idea. Among his concerns was that collecting pay data from employers — which business associations including the U.S. Chamber of Commerce opposed — would further delay the resolution of EEOC cases.

U.S. Sen. Lamar Alexander (R-Tenn.) (AP Photo/Mark Humphrey)

“The proposal is likely to worsen that backlog as the EEOC will now be sifting through the billions of pieces of new data instead of focusing on its mission of investigating complaints of discrimination in the workplace,” he wrote.

However, Ron Edwards, a former EEOC official who led the initiative, said the agency actually planned to use the extra data — which would be collected and analyzed electronically — to resolve complaints more efficiently.

Alexander also introduced the EEOC Reform Act, which would have barred the agency from collecting pay data until it reduced its backlog by about 90 percent. Though the bill was unsuccessful, he had more luck with the OMB, which in 2017 stayed the EEOC’s collection of the data. That decision was reversed this March following a lawsuit by the National Women’s Law Center and the Labor Council for Latin American Advancement. The Department of Justice has filed an appeal.

Last election cycle, Alexander received more than $7 million in contributions from business interests — 130 times what he received from labor groups. Alexander, who has said he won’t seek reelection next year, did not respond to multiple requests for comment.

Edwards, who worked at the EEOC for nearly 40 years, knew the pay information would be a powerful tool to correct discrimination — and that employers didn’t want to turn it over.

“The real crux of employment is pay,” said Edwards, who retired in 2017. “If you collect the pay data, you get a better sense of how people are being treated.”

Chad Griffin, president of the Human Rights Campaign, spoke to advocates for LGBTQ rights before a House vote on the Equality Act of 2019. The bill, which passed the House in May but has yet to come up for a vote in the Senate, would prohibit discrimination based on sexual orientation or gender identity. (AP Photo/J. Scott Applewhite)

In recent months, Democrats have introduced bills, in some cases co-sponsored by a handful of Republicans, to strengthen discrimination law enforcement, including measures to address the gender pay gap, improve protections for LGBTQ workers and prohibit non-disclosure agreements in workplace harassment cases.

None has passed.

Labor economist William Spriggs isn’t surprised by that or the funding constraints that affect workers’ chances of help at the EEOC. Congress’ treatment of employment discrimination and workers’ rights, he said, is par for the course in the U.S.

“There is a tendency in society to think of labor law as littering or something,” he said. “They don’t think of it as an actual violation.”

 

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