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An Era Of EEOC Activism Ends With A Whimper

This article is more than 3 years old.

Throughout the Great Recession, the EEOC ignored gross and blatant evidence of systemic age discrimination that dumped millions of older workers into long-term unemployment.

Instead of enforcing laws on the books and addressing a massive backlog of cases, the EEOC chose to use its limited resources to engage in random acts of advocacy, at times incurring the wrath of appellate courts and members of the U.S. Congress.

The period of  EEOC activism appeared to come to a close last week when the EEOC, now chaired by Trump appointee and former corporate attorney Janet Dhillon, issued a sparse press release.

The press release announced the EEOC had issued an “opinion letter” that, upon inspection, revealed a major entrenchment for the federal agency that enforces most of the nation’s federal civil rights laws.

The EEOC acknowledges in the letter that it is a mere “creature of statute ... in performing its duties, the Commission must follow the statutory language that Congress has provided.”

The letter cites various U.S. Supreme Court and federal circuit court rulings to state the EEOC cannot file so-called “pattern and practice” lawsuits against employers for offences that are “untethered” to a concrete violation of the Title VII of the Civil Rights Act of 1964.  Pattern and practice lawsuits are roughly equivalent to class action lawsuits alleging systemic discrimination that are filed by the EEOC as the plaintiff.  

In short, the EEOC agrees it does not have “wide-ranging power to bring suit against undefined practices that it believes facilitate unlawful ‘resistance’ in some way, but may not be themselves unlawful discrimination...”

The EEOC also states it is required to attempt to settle or conciliate discrimination charges that it files against employers prior to filing a lawsuit.

The EEOC commission currently includes Dhillon and Victoria A. Lipnic, both Republicans and Democrat Charlotte A. Burrows. Two positions remain vacant.

It was clear that Burrows disagreed with the majority. She issued a series of tweets expressing “deep disappointment” with the opinion letter, which she argues “radically” rolls back civil rights.

Mixed Results

The EEOC’s activism during the Obama administration led to mixed results.

For example, the EEOC issued a “guidance” in 2012 announcing that employers’ blanket refusal to hire workers with criminal backgrounds constitutes race discrimination in violation of Title VII of the Civil Rights Act. After years of pitched litigation, a federal appeals court disagreed in 2015.

Conversely, the EEOC likely influenced the expansion of Title VII to cover gay, lesbian, bisexual and transgender individuals.

During the Obama administration, the EEOC filed several lawsuits alleging for the first time that LGBTQ workers were covered under Title VII’s prohibition against discrimination on the basis of sex. When Trump was elected, the EEOC did an about face and declared the legislative intent of Title VII precludes a finding that gender identity is protected under Title VII because the ordinary public meaning of "sex" in 1964 was biological sex , not transgender status.

After years of legal machinations, the dispute ended up in the U.S. Supreme Court which issued a landmark 6-3 ruling last June in a case involving a transgender funeral parlor worker, Bostock v. Clayton County. The majority said sexual orientation or gender identity is discrimination “because of sex” and it is prohibited by Title VII.

More recently, the EEOC sued CVS Pharmacy, Inc., claiming it violated Title VII by offering workers a severance agreement that could (but had not as yet) deter them from filing EEOC claims. The EEOC refused to engage in conciliation with CVS prior to filing the lawsuit, claiming it has broad powers to sue without engaging in conciliation and it was not required to allege the employer had actually engaged in discrimination. A federal appeals court dismissed the case, noting Title VII “does not create a broad enforcement power for the EEOC to pursue non-discriminatory employment practices that it dislikes ... ” 

Age Discrimination

While some workers benefited from the EEOC’s advocacy, older workers clearly suffered from the EEOC’s almost complete indifference to their plight.

At the start of the Great Recession, there was an unprecedented 29% increase in age discrimination complaints filed with the EEOC, indicating the turmoil of millions of older workers who were unfairly terminated from their jobs and then stuck in long-term unemployment due to epidemic age discrimination in hiring.

A total of 24,582 age discrimination complaints were filed in 2008, the highest number in the EEOC’s history, yet the agency filed only 38 lawsuits with age discrimination claims that year. The number of age discrimination complaints had dropped only slightly by 2012 and 2013, when the EEOC filed 12 and seven age discrimination lawsuits, respectively.

The Centers for Disease Control (CDC) reported the rate of suicide among women aged 60 to 64 increased by 59.7% in the aftermath of the recession and the suicide rate for men aged 55 to 59 increased by 47.8%. The CDC said the economic downturn was a possible contributing factor in the rising suicide rate.

Ironically, older workers today have less protection from invidious employment discrimination than LGBTQ workers because the Age Discrimination in Employment Act is far weaker than Title VII of the Civil Rights Act. And America is facing another recession.

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