Serial No. 105-78


Printed for the use of the Committee on Education

and the Workforce

Table of Contents *

opening statement of the honorable harris fawell, chairman,

subcommittee on Employer-employee relations, committee on education and the workforce, u.s. house of representatives *

opening statement of the honorable Donald Payne, Ranking member, subcommittee on Employer-employee relations, committee on education and the workforce, u.s. house of representatives *





Society for Human Resource Management (SHRM) Policy Statement - see appendix K *

appendix a - written statement of the honorable harris fawell, chairman, subcommittee on Employer-employee relations, committee on education and the workforce, u.s. house of representatives *

appendix b - written statement of the honorable donald payne, ranking member, subcommittee on Employer-employee relations, committee on education and the workforce, u.s. house of representatives *

appendix c - written statement of the honorable newt gingrich, speaker of the house of representatives *

appendix d - written STATEMENT OF the HONorable PAUL IGASAKI, ACTING CHAIRMAN OF THE Equal employment opportunity commission *










Tuesday, March 3, 1998



The subcommittee met, pursuant to call, at 10:08 a.m., in Room 2175, Rayburn House Office Building, the Honorable Harris Fawell [chairman of the subcommittee] presiding.

Present: Representatives Fawell, Knollenberg, Petri, Ballenger, Payne, McCarthy, Tierney.

Also Present: Representatives Scott and Mink.

Staff Present: Kevin Talley, Staff Director; Mark Rodgers, Workforce Policy Coordinator; David Frank, Professional Staff Member; Gary Visscher, Workforce Policy Counsel; Rob Green, Professional Staff Member; Lauren Fuller, Professional Staff Member; Susan Firth, Budget Analyst; Jay Diskey, Communications Director; Bill McCarthy, Press Secretary; Marjorie Wasson, Staff Assistant; Leslie Field, Media Assistant; Gail Weiss, Minority Staff Director; Brian Kennedy, Minority Labor Counsel/Coordinator; Peter Rutledge, Senior Minority Legislative Associate; Patricia Crawford, Minority Legislative Associate; Maria Cuprill, Minority Legislative Associate; Shannon McNulty, Minority Staff Assistant.


opening statement of the honorable harris fawell, chairman, subcommittee on Employer-employee relations, committee on education and the workforce, u.s. house of representatives

Chairman Fawell. The Employer-Employee Relations Subcommittee will come to order. We welcome the Speaker, who has graced our premises.

Today we will undertake a further review of the Equal Employment Opportunities Commission, the Nation's leading civil rights enforcement agency. It is vital that the EEOC function in a fair and efficient and professional manner. At our hearing in October, we heard concerns raised by individual victims of discrimination, civil rights lawyers, and small-business people that the EEOC is not giving sufficient priority to the investigation of individual charges of discrimination in terms of staffing or resources.

At today's hearing we would like to focus on ways the EEOC can be improved and particular ways in which the EEOC can better address its backlog of approximately 65,000 cases in a fair and effective manner. We shall hear the insights of a distinguished group that will include Speaker Newt Gingrich, acting EEOC Chairman, Paul Igasaki, and several former members of the Commission.

The President has sought a 15 percent increase in funding for the EEOC in 1999. The President's budget calls for an increase of $37 million to enhance three primary areas: one, alternative dispute resolution; two, in the charge processing and investigation process; and three, in technology.

I am pleased that the EEOC has chosen to emphasize these areas in its budget request. These reflect priorities highlighted in previous committee hearings and communications. I am particularly pleased that the bulk of any new money will go towards reducing the backlog and improving the investigative process. I look forward to Chairman Igasaki expanding on these plans in his testimony today.

I understand that the Commission does need additional resources, although I note that in the last fiscal year's budget, the EEOC received just $4 million less than what the administration requested. I do plan to support a significant increase in funding for the EEOC in 1999, provided any new money goes to helping actual victims of discrimination by addressing primarily case backlog through such avenues as improvements in the intake and investigation process and increased alternative dispute resolution. It should not go to initiatives, that I believe create new cases where no individuals have alleged discrimination, such as the use of employment testers, or perhaps in the area of Commissioner's charges, or to litigating cases that seek to push the legal envelope in areas that are high profile.

I believe the Commission serves a necessary and important function in our society, protecting the rights of victims of discrimination. Chairman Goodling and I have publicly sought to protect the funding level of the Commission in the past. Moreover, enforcement of nondiscrimination laws is as important now as ever, and, in fact, I think most of them, in light of the Supreme Court's restrictions placed upon affirmative action.

The key question is the way in which the EEOC chooses to allocate its resources. We are concerned that the investigation of individual charges of discrimination are often given a low priority in terms of staffing and resources in comparison to litigation. The average case load of pending cases is 70 cases per investigator. By contrast, the average litigation case load per attorney in the district offices is a mere 1.4 cases.

I practiced law 30 years before coming to Congress, and 1.4 cases is not an overload at all. In order to increase the efficiency of the charge investigation process, Commission lawyers must become involved on a formal basis early in the process. Lawyers, I think, should assume a supervisory role over charge processing to ensure the quality of evaluation of the merits of charges and the quality of investigation.

This early legal oversight should also allow for better evaluation of which charges actually merit litigating. Enhanced supervision should be coupled with clear performance standards for evaluating the effectiveness of the investigative and the intake staff.

The EEOC's charge processing can also be enhanced through greater use of alternative dispute resolution, an idea that I am pleased to see being adopted in the Commission's budget request. But the details of the plan are important. In order for it to be effective, any voluntary mediation program has to be confidential, has to be independent, and should be professional. Thus, new mediators to be employed under the EEOC's expanded program cannot be members of the EEOC investigative staff, nor should they be college or law students, which is the case, I am told, in some instances.

Furthermore, until the 65,000-case backlog is reduced and those basic and real discrimination complaints receive justice, the EEOC should not be out trying to create new cases through initiatives such as employment testers Its recent decision to start using employment testers undermines the Commission's credibility. The Government should not sanction applicants' misrepresentation of their credentials to prospective employers, causing innocent businesses to waste resources interviewing candidates not actually interested in real employment. Nor should the Government engage in what might be called entrapment. The efficacy of testers is based on the faulty premise that two individuals' credentials, applications, and interviews can be truly equal. At a time when the EEOC's resources, however, remain scarce, they should not be diverted to an endeavor the legitimacy of which has been left in doubt by the courts.

In sum, although I believe the EEOC goes off on inappropriate directions at times, I am convinced that it continues to serve a very vital mission. And, for that reason, I will support the full 15 percent increase requested by the Commission and endeavor to get the support of our leadership for such funding, provided certain changes are made to improve its operations. These reforms include: improvements to the investigative and intake process, including greater supervision of the process by lawyers; a significant reduction in the backlog of cases and the length of time for case processing; a more appropriate allocation of resources to charge processing vis-a-vis litigation; expanded use of alternative dispute resolution; clarification of the criteria for litigation by the EEOC; and the agreement by the EEOC not to use its scarce resources for employment testers. I look forward to the testimony of the witnesses for comments on these ideas and for recommendations of additional ways to make the EEOC a more effective guardian of American civil rights.

[The statement of Mr. Fawell follows:]

written statement of the honorable harris fawell, chairman, subcommittee on Employer-employee relations, committee on education and the workforce, u.s. house of representatives - see appendix a


Chairman Fawell. At this time I would recognize the gentleman from New Jersey, Mr. Payne.


opening statement of the honorable Donald Payne, Ranking member, subcommittee on Employer-employee relations, committee on education and the workforce, u.s. house of representatives


Mr. Payne. Thank you very much Mr. Chairman. I am thankful for calling this very important hearing this morning and also welcome the Speaker taking time out of his very busy schedule to appear before our subcommittee. I am certainly glad that we are going to have an opportunity to have what I am hopeful will be a constructive dialogue on this very important issue.

The Equal Employment Opportunity Commission, the EEOC, is a vital component in our Nation's effort to extend equal opportunity to all of our citizens. The Federal Fair Employment Agency, in existence since 1965, was given the critical responsibilities of enforcing Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, national origin, sex, age, or religion.

In addition to that, its enforcement jurisdiction includes the Age Discrimination and Employment Act; the Equal Pay Act; sections 501 and 504 of the Rehabilitation Act, which prohibits discrimination against individuals with disabilities in the Federal Government; sections of the Civil Rights Act of 1991; and Title I of the Americans With Disabilities Act, which prohibits discrimination against people with disabilities in the private sector and State and local governments.

I think that the current administration in Congress has an obligation to set forth the clear statement of its policy and strategy to protect the rights of equal employment opportunity. There have been several recent highly publicized settlements for discrimination from corporations like Denny's and Texaco, to name but a few, in ongoing disputes where discrimination is widespread. Especially at such a pivotal point in our country's history, it is vitally important that we pursue these cases.

With technological advancements moving our planet into leaps and bounds beyond the limits of our imagination and in a rapidly expanding global marketplace, people expect access to fully integrated, discrimination-free and harassment-free work settings. Overwhelmed by an ever-increasing demand for services and limited resources to meet this demand, the Agency, under the 12 years of Republican rule, has relinquished its congressional mandate to attack broad institutional patterns and practices of employment discrimination.

In the area of systematic discrimination, the Agency had chosen to almost entirely expand its scarce resources to exclusively litigate individual complaints at the expense of what I think are more important class action suits. One of the long-standing criticisms that this policy was supposed to address is that the resources of the Agency should be directed to helping as many people as it can by reaching and having full investigation of each and every charge that comes before it. However, this approach, by treating all cases as being equal, did not permit the EEOC to emphasize important cases, undermining its ability to address discrimination and prevented the Agency from prioritizing resources.

The direction taken by the Agency under the helm of the then Chairman Clarence Thomas reflected the ideology of the administration in power at that time. With the challenges to affirmative action programs, I see us returning to a time when whole groups of people will be categorically denied entrance to our Nation's institutions of higher learning, circumstances already evolving in the California university system.

At the University of California at Berkeley Law School, African American enrollment fell from 26 students in 1996 to 1 in the fall of 1997, and the Hispanic enrollment has dropped by 50 percent. A number of States, as well as municipalities, such as Houston, have taken the lead from California and have mounted challenges to programs that were proactively aimed at correcting past discrimination. It is perverse to think that in a time and place where we allow this trend to occur, where discrimination in housing, obtaining credit, and, of course, unemployment remains commonplace, that a strong and articulate civil rights policy and vigorous civil rights enforcement are no longer necessary.

Ladies and gentlemen, discrimination still exists. That is what makes the EEOC even more critical in the continuing war we wage on discrimination. I am gravely concerned that the EEOC is already underequipped to enforce hard fought civil rights laws for which some of our Nation's greatest heroes sacrificed their lives. I commend the President for acknowledging this fact by seeking a 15 percent increase in the Agency's budget, and I appreciate my colleagues supporting that. We are already shutting the doors of opportunity to minority Americans.

For this reason, if no other, the role of the EEOC to ensure that racism, sexism, and bigotry are not a basis for employment decisions is as critical as it has ever been. To the extent the Agency does not succeed, the promise of equal opportunity without regard to race, color, creed, or sex will be as hollow tomorrow as it was many, many years ago when I was born.

Again, Mr. Chairman, this is an excellent opportunity to have a constructive discussion about the future direction of EEOC. I look forward to our hearing and the testimony of the witnesses on this very important issue. The Agency has a vital role in protecting and preserving civil rights laws because they are integral to preserving the rights of all Americans. Thank you.


Chairman Fawell. And I thank the gentleman for his statement.

[The statement of Mr. Payne follows:]

written statement of the honorable donald payne, ranking member, subcommittee on Employer-employee relations, committee on education and the workforce, u.s. house of representatives - see appendix b


Chairman Fawell. As indicated, our first panel is one man, and one very important man, the Speaker Newt Gingrich.

We very much appreciate your coming to this hearing, Mr. Speaker, and expressing the concerns that you have in regard to the enforcement of civil rights, and all the various acts under the EEOC. We are happy that you have a deep concern and interest. And we are more than willing to listen to whatever comments and thoughts that you may have that will enable our subsequent panel to have even a better discussion about the concerns that we all have about this extremely important area.

The chair does now recognize the Speaker.




Speaker Gingrich. Thank you, Chairman Fawell, and Mr. Payne and members of the committee. I think that this is a very important hearing on the future direction of the Equal Employment Opportunity Commission.

You know, in addition to demeaning the human condition, discrimination is profoundly un-American. It is contrary to the principle first inscribed in the Declaration of Independence, "All men are created equal, endowed by their Creator with the inalienable right of life, liberty, and the pursuit of happiness." These are the words that precede the founding of the United States. Thus, to treat someone else differently due to race, color or gender is an offense against not merely the individual, not merely the State, but, in fact, our Creator.

Yes, it took America time to completely live up to these first principles. We are humans, yet fortunate to be blessed with the best continuing experiment in self-government the world has ever seen. We have progressed and continue to do so. Yet we must work to guarantee that discrimination can never be tolerated.

It is vital that the EEOC, the Nation's leading civil rights enforcement agency, function in a fair, efficient and professional manner. If the Commission can demonstrate that it can do this, we will support additional funding for it. Support for increased funding will be contingent on its being properly targeted to helping actual victims of discrimination and not to litigating cases that seek to break new legal ground. The typical case of discrimination may seem mundane to EEOC lawyers, but it is vitally important to the individual victim.

Until the 65,000-case backlog is reduced and those real Americans receive justice, the EEOC should not be trying to create new cases through initiatives such as testers. Unfortunately, this committee heard testimony last October from individual victims of discrimination, civil rights lawyers, and small businessmen that the EEOC gives the investigation of individual charges of discrimination low priority in terms of staffing and resources, while litigation, especially high-profile cases, has more than ample staffing and funding. This is a shocking situation.

While every office should be allowed certain latitude in assessing its Commission priorities, continually putting individuals on the back burner sends a horrific signal. Indeed, it could be said that the EEOC is in effect discriminating against individuals who happen to be only a single victim. That attitude, intentional or not, cannot be justified. For the individual awaiting resolution, justice delayed is justice denied. It must change if the EEOC is to be entrusted with the budget increase.

The average number of cases investigated and completed per investigator is 28.2, and the average case load of pending cases is 70 cases per investigator. By sharp contrast, the average litigation case load per attorney in the district offices is 1.4 cases, a workload which calls into question the very meaning of the word. This allocation of resources leads to questions about EEOC priorities. Lawyers must become more involved in the supervision of the intake and investigation process and less focused on litigation.

Thus, any new money for EEOC must go to addressing the 65,000-case backlog through such avenues as improvements in the investigative process and increased alternative dispute resolution. It should not go to initiatives that create new cases where no individual has alleged discrimination, such as employment testers or Commissioner's charges.

While the backlog is down from the record 1995 level of 103,000 cases, justice delayed is still unacceptable. At the same time, we must ensure that any backlog reduction by the EEOC does not result in a sacrificing of fairness. There should be no case dumping. Should these concerns be addressed, we will support the President's increased funding request, 15 percent of $37 million, for the Commission.

Is every Commissioner's charge frivolous and unworthy of support? Of course not. But again, there are many obvious individuals out there who have suffered apparent discrimination. Why go out seeking discrimination haphazardly when it can be said that it is sitting on your doorstep. Increased funding should be given in return for reform such as: one, improvements to investigative and intake processes, including greater supervision of the process; two, a significant reduction to the backlog of cases and the length of time for case processing; three, appropriate allocation of resources between intake, investigation and litigation; four, clarification of the criteria for litigation by the EEOC; five, expanded use of alternative dispute resolution; and six, an agreement by the EEOC not to use its scarce resources for employment testers.

The use of employment testers, frankly, undermines the credibility of the EEOC. The Government should not sanction applicants' misrepresentation of their credentials to perspective employers. The use of testers not only causes innocent businesses to waste resources interviewing candidates not interested in actual employment, but also puts a Government agency in the business of entrapment. It assumes guilt where there has been no indication of discriminatory behavior.

In addition, there are serious concerns of fairness; for example, whether using testers would be a fair test since not even identical twins are exactly alike, and testers may be overly motivated to find discrimination.

Finally, the courts are also divided as to whether the whole concept of employment testers are even lawful. The D.C. Circuit Court of Appeals ruled that employment testers lacked standing to bring claims of discrimination. For these reasons, the use of testers must be seriously reviewed.

I am committed to working with you to ensure that the EEOC is a fair, and efficient and effective enforcer of the Nation's civil rights laws. We want to make sure that it has adequate funds to carry out its mission. We will support additional funding this year provided the resources go to ensuring that actual victims of discrimination receive more timely justice and the reforms outlined here are initiated.

Let me just close by saying, I believe it is vital that every American know that their Federal Government stands with them against discrimination. I think it is vital that we be prepared in an effective, enforceable way to provide prompt response and a true opportunity for justice in a timely manner to any American who has been a victim of discrimination.


Chairman Fawell. Well, I thank you very much. I think your statement was very, very fine.

[The statement of Speaker Gingrich follows:]

written statement of the honorable newt gingrich, speaker of the house of representatives - see appendix c


Chairman Fawell. I've noted that as we prepared for this hearing, having read all of the testimony and looking forward to discussing the matter with our second panel, that everyone does seem to be very strong in the support of the increase, and everyone has targets in regard to what the money ought to be used.

Now, there is some variation in regard to the targets, but I notice that the main emphasis is that we should zero in on alternative dispute resolution, the charge and processing, the intake and the investigation, and also in regard to technology, which Mr. Igasaki has made reference.

So it is good to know that we, I think, start with a good, positive feeling here that the EEOC is probably more important than ever because of recent Supreme Court decisions, and if anything is more important than the idea that when discrimination does occur, that there is going to be strict and fast and efficient movement. I think in this area we can make a lot of improvements, as I think Mr. Igasaki would be the first to say so. And I am very much, by the way, encouraged by everything I have heard about this man. I think he is very realistically taking a look at what we have and recognizes that there are inefficiencies, and this is what we are going to be able to discuss today.

So at this time I will recognize the Ranking Democrat of this committee, Mr. Payne, for any questions of the Speaker that he may have.


Mr. Payne. Thank you very much.

I would just like to just ask the Speaker about your statement on seeking discrimination haphazardly when you have it on your own doorstep. I take it to mean that you, and what I hear the Chairman saying, is that you agree to funding the increase based on certain criteria, one of which is not seeking new cases with testers.

I don't know specifically how it works, but I would imagine that your characterization of testers being used haphazardly isn't accurate, I suppose that testers are probably used when there is some pattern, and I don't know whether that is considered haphazard. And I just wondered if you could elaborate a little bit more on the fact that you feel, and I, too, feel that the backlogs can certainly be brought down and, hopefully, finally eliminated. But by the same token, I don't understand the disapproval of attempting to move forward to seek proof of additional new discrimination.

So if you want to elaborate on that a bit.


Speaker Gingrich. Sure. Let me make a couple of points. First of all, I believe that, as a matter of justice, we owe it to those who have filed a complaint to receive timely attention from their government. Otherwise the promise that their government will defend them against discrimination ceases to be relevant.

Second, if there are timely responses, then the Commission would get more complaints. If people thought the EEOC was a responsive and effective institution, more complaints would surface.

Third, you mentioned a pattern. If you had an effective EEOC, and you had seven complaints, let's say, from a particular firm, you wouldn't have to send out testers; you would have a pattern because you would have seven people who voluntarily walked in and said, here is discrimination.

If the country believes that the Federal Government is truly an effective defender of civil rights, individual Americans will turn to the government when there are acts of discrimination.

I think the other question in the real world, as opposed to some classroom abstract model, is that in the real world there is an enormous danger, as we found with the IRS, that once you have testers, the testers think that it is their job to prove somebody is discriminating, and you suddenly find behaviors that are very suspicious. I just think that the U.S. Government already has too much hostility towards it and too much suspicion of it for us to be sending people out, in essence, to lure people into discrimination so we can then make a case against them. This strikes me as a very dangerous pattern.

And the truth is, we don't have the level of quality control over those individuals who would be out there to make sure they weren't setting up entrapment, they weren't, in fact, going after people, and they weren't doing things to be able to come back and testify. I think it undermines the whole concept of the state as a fair and impartial institution.

On the other hand, I would just say, Mr. Payne, if there was no backlog, and if people knew that they would have a timely and rapid response, then anytime there was a significant pattern of discrimination it would show up because American citizens would be knocking on the door of the EEOC and saying, I have a complaint to file. And I think at that point you would go to court with a real series of complaints by real people who, in fact, are alleging specific behaviors.


Mr. Payne. Well, I appreciate what you said. But I think that ending discriminatory hiring practices is one of the big challenges, because if, in fact, that happens, then we don't need the EEOC. It is difficult, though. Applicants really are seldom aware of why they were or were not hired. And it seems that an agency like the EEOC has an obligation to try to at least examine alternative strategies to address the problem because of a lack of hard and fast information. I believe the whole thing should not hinge on testing or nontesting, but that there should be a responsibility to individuals. I think we can do both things at the same time.


Speaker Gingrich. If I might, Mr. Payne. If I've read the statistics correctly, we have 3-1/2 years' backlog per investigator right now. It seems to me if you and I could agree for the moment that for the next year or 2 years we will focus on individual cases, we can revisit and argue over testing at that point. But we have more than enough cases to keep us busy if we focus the resources on the cases at the present time.


Mr. Payne. Thank you very much. My time has expired. There is just one last issue that I want to raise that I raised before in this committee, but it is not in our jurisdiction, and perhaps you might assist us.

There has been a disturbing report that since the 104th Congress there has been a 75 decrease in minority employees in the House. Just in January, five long-term employees in the Legislative Resource Center were dismissed, four African-American and one Jewish person. They were told to clear out their desks. Police officers stood by them. They had to leave. They were not given any letter signed by an officer, and on and on.

If your office would be willing, I would love to have an opportunity to discuss this with you. I brought it to the attention of Mr. Thomas on the House Oversight Committee, and he sent me a letter saying it wasn't a problem. So, evidently, there is no recourse there.

I think that we set an example. We don't want to go back to the way it was when I was a kid. But at the rate we are going, with these actions not being challenged, I think that we do ourselves a disservice as the House of Representatives. I know that is not the type of House you want to have. It certainly is not consistent with what you have said. Since I have been unable to get any kind of response otherwise, I would like to ask you if you would grant me that opportunity.


Speaker Gingrich. I would be very willing to sit down and talk with you, Mr. Payne.


Chairman Fawell. I am not sure of the relevancy of that inquiry, but I thank the gentleman for his always fine comments.

The Chair recognizes the gentleman from Michigan, Mr. Knollenberg.


Mr. Knollenberg. Mr. Chairman, thank you very much. I do not have any questions for the Speaker, but I wanted to thank him for appearing here this morning. I know there are some differences, perhaps, as expressed by Mr. Payne. But again, we very much appreciate, Mr. Speaker, your presence here this morning. Thank you.


Speaker Gingrich. Thank you.


Chairman Fawell. The Chair recognizes the gentlelady, Congresswoman McCarthy.


Mrs. McCarthy. Thank you, Mr. Speaker, for being here. I appreciate your comments.

I have to tell you, I certainly have been a very naive person. Since coming to Congress, I didn't realize how bad discrimination was. And now that I am in my district constantly, I see discrimination, and I see it coming into my office with people with complaints. From the testimonies that I have read, and certainly from the information that I have received in the past week, I see that we are working very hard. And I do see it, obviously, that we are bringing the case load down, even though 65,000 is too many. But I also see, on the other hand, where testers could go in, and I think there is a way that we could probably, hopefully, work it out both ways.

My concern, too, is obviously discrimination against people with disabilities. It is only by very good fortune with his disabilities that the company my son works for has kept him and made sure that he had his job. I often wonder if his company didn't keep him, where he would have gone to work. Even though his mind is good, his body, unfortunately, is not perfect. But I wonder.

I am looking forward to the testimony and to address those questions later, because I care about the people with disabilities because I work with them constantly. And I am lucky; I am making contacts through the business world, where I am able to get people jobs. And that is probably one of the good things about being in Congress, that I can help on the local level, perhaps more so than the Federal level, unfortunately. But I enjoyed your comments, and I am hopeful that we can work together with some mutual understanding.

The bottom line is that discrimination is wrong. I am sorry it is still going on in this country, and I certainly look forward to a time when before I die that we don't have discrimination anywhere in this country. It is too good of a country. It really is. Thank you.


Chairman Fawell. I thank the gentlelady for her fine comments.

The Chair recognizes the gentleman from Wisconsin, Mr. Petri.


Mr. Petri. Thank you, Mr. Chairman.

Thank you, Mr. Speaker, for coming here and emphasizing the importance of funding for the Equal Employment Opportunity Commission in a proper way. Sometimes we in government think government is the engine of progress. I would just like to observe that the economic boom and the resultant type labor market that has occurred in the United States since you assumed the speakership has probably done more to lessen discrimination in the workplace than Federal agencies in the last few years. This is because, just as in World War II where there was a massive integration of women in the work force, minorities in the work force are in jobs they have never had before. So, too, in a tight labor market, employers are reaching out in every way to try to include people, not because they are necessarily good-hearted, but because they need to do it in order to operate their businesses. And so, this is the time when we can congratulate you a little bit on creating economic conditions that have provided opportunity for an awful lot of people in our country.

My question has to do with this: If we cut back on class-action-type work in the Equal Opportunity Commission, isn't it true that we still will have private organizations able to do that? For instance, I think the Hooters case is one that was dropped, and then a private group went forward and actually won a case of class discrimination. Certainly, the attorneys general across the United States and various other law enforcement people who are in a position to bring actions of this sort are able to do so; or should we, instead of allowing the 65,000 people who are being denied justice or being delayed, should we consider turning individual actions over to the Legal Services Corporation or some other operation instead of the EEOC if they don't want to be in that business?


Speaker Gingrich. Well, I think you raised the core question. I guess as a student of Edwards Demming and the whole concept of equality, I would ask the question of the EEOC, what is the model response to a complaint? You are an American citizen, you believe you have a complaint, you call the EEOC, and they say, what do you want? They tell you how to do it, how to file the response, whatever. You then say to them, okay, I think this is serious enough. I want to take my time. I want to risk my reputation. I file a formal complaint with the U.S. Government.

In an idealized model, how long should it take from first phone call to a complaint being filed? When a complaint is filed, how long should it take from the complaint being filed until the first hearing? We ought to have an idealized model that is per case so we then know what we are measuring against, and then you say, now we have 65,000 cases. Given our idealized model, is the idealized backlog 4,000 cases, 12,000 cases? What are we trying to get to?

I believe the number one need in America, whether it is with disabilities or it is with race or it is with sex, the number one need is for the citizen to believe that if I have a grievance and I have been discriminated against, I have a recourse to a government which is, in fact, responsive.

I think all through my career, like Mrs. McCarthy, I had case after case where people came to see me. And the truth was the Atlanta EEOC was useless. It took years to get anything done. They were normally given the runaround. It was made unpleasant. It was hard to get down there. The whole thing was not designed to be citizen-friendly.

So I would say, Mr. Petri, that just as we had a model of economic development which has been remarkably successful and has led to a very long boom, and you are right, nothing quite integrates America like prosperity because it gets everybody pulling together working in the same direction, similarly, we ought to have a model of what effective antidiscrimination behavior is, and then we ought to be able to measure the Agency against that model, and then we could tell exactly how we should be allocating resources.


Chairman Fawell. I thank the gentleman. It is not often that we have Members of the Education and Workforce Committee who are not members of the subcommittee visit with us here and come down. But I suspect that the people that are testifying today are quite a draw, especially the one person.

And the Chair is glad to recognize the gentleman from Virginia, Mr. Scott.


Mr. Scott. Thank you, Mr. Chairman. I appreciate your courtesy. I serve on this full committee, and I also serve as the Ranking Democrat on the Constitution Subcommittee on the Judiciary Committee that has the jurisdiction over civil rights matters. So this subject is obviously one that concerns me.

Mr. Speaker, I want to congratulate you on your support for trying to eliminate the backlog. I think all of us are very frustrated when someone comes into our office with a discrimination complaint. The process begins with an EEOC complaint, but often you make the complaint and you never hear anything, and it goes on and on and on, and the person is probably still on the job or still looking for a job, and until that resolution takes place, obviously, it is a very frustrating situation.


Speaker Gingrich. Would you yield on that point for just one second, because I think it is important for the record to emphasize the humanness of what you just said. The three and a half year backlog for Government is just work. A three and a half year delay for an individual person in the middle of trying to define their future is a crisis and usually leads to disappointment and to bitterness and to dropping out of the process. So I think what you just said is a very powerful point about the person who walks into your office with a real potential grievance who then finds no justice in terms of their life span and the length of time they can reasonably allocate to this particular problem.


Mr. Scott. Thank you Mr. Speaker, and, hopefully, we can work together on that in reducing that workload backlog.

If I may make a comment about the workload. We count all cases as equal. Some individual cases are fairly routine. For some major litigation class action cases, you may have five or six lawyers on one case. And then on the bankruptcy laws, when we allocate case load per judge, we separate out some of the larger cases and count those differently than the individual consumer cases. And perhaps we ought to do this as we determine how we count case load.

But the way these cases come about, and I want to get to the testing issue, is that the evidence in the case is all with the employer. The applicant for a job can never know for sure if they were discriminated against. All they know is they didn't get a job. They may suspect there was discrimination. They may know. But if you have a discreet bigot as your employment officer, you will never know whether or not discrimination was the reason you got the job or not. And that is why we need testers, Mr. Speaker, because they can develop evidence. Just as if you suspect someone was selling drugs, you send a tester out to determine whether or not you can buy drugs from that person.

If you have a discreet bigot, a person that does not acknowledge why he didn't give certain minority groups a job, without testers how do you develop the evidence, particularly in light of the fact that people are looking for jobs and not looking for lawsuits? All you know is you didn't get a job; the EEOC says, why don't you file a complaint? They say, well, maybe I didn't get the job because I didn't deserve the job. I don't want to get out there and then they can prove that my grades weren't high enough or that I am not qualified. I don't want to be embarrassed. I didn't get the job. I am looking for a job, not a lawsuit. Without a tester, how would you develop that kind of evidence?


Speaker Gingrich. Let me suggest to you that you have raised a very specific zone which I would hope this subcommittee would be exploring. If the Commission was to come in and say, again on record, we ought to operate off of systems and models, we ought to know what we are trying to accomplish and be able to work to that system and model, and if they are going to go in and say, now we have a place where we have had seven different individual complaints over the last two years that have emerged freestanding, and we think that ought to be checked, I think this is a plausible argument.

It is very different than saying, we would like to check out the real estate industry in your home county or something, and so they randomly knock on the door of businesses against which you have no complaints and in which there is no pattern. Certainly I think you can make a very good case that if you were trying to complete a case which had been begun by the complaints filed by individuals that, just as in other law enforcement, there are times, for example, where people might be wired, and we have all been reading about this, that there certainly may well be circumstances which legitimate prosecutorial tactics are used.

What I would object to emphatically is the fact that an innocent business with no complaint filed against it, with no record of discrimination, would have Federal Government employees coming up trying to find out whether or not they could get that business to create a complaint.


Mr. Scott. But where there is reasonable suspicion.


Speaker Gingrich. I think the committee should ask that question. Again I go back to the model. Is there a threshold effect? If there is, is it three cases, is it five cases? What is the reasonable number of cases? And what you ought to be able to say, frankly, this company now moves into a different league. This company we have really good grounds for believing there is something wrong here. I think we have to explore that concept, which is different than using testers to go out with people against whom there are no complaints and circumstances where they have no problems.

I think the U.S. Government seeking to effectively make a case where there is a consistent pattern of discrimination complaints filed is in a different role than the U.S. Government seeking to find violators in the first case.


Chairman Fawell. I thank the gentleman. As usual, he brings up fine questions.

The Chair recognizes Congressman Ballenger.


Mr. Ballenger. Thank you, Mr. Chairman.

Mr. Speaker, in your statistics here, the average number of cases investigated by an investigator is 28.2, and unbelievably the litigation case load is 1.4. In other words, the way I read it, there is 20 times more work for the investigators than there are for the lawyers. And not that I am all that against lawyers, but since I have been in Congress, I am pretty much against them as far as I can get. It seems like we have 20 times too many lawyers.

I mean, a lawyer probably costs three or four times as much at an investigator. So if you are looking at defending the method of proper allocation of proceeds or resources, it appears to me that you could fire a bunch of lawyers and generate the money that is necessary to get the investigators. In other words, if I were a businessman looking at the operation of this place right here, I would say somebody pretty well screwed up the operation to be able to come out with statistics that can be shown as that far off.

I would agree with Mr. Petri from Wisconsin. When I first came to Congress, we would get, on a regular basis in our office, maybe one or two cases in EEOC that we needed to push. But with the unemployment rate down, in my part of North Carolina down below 3 percent, if anybody is being discriminated against, there is almost nobody that ever talks about it because there are jobs available. I mean, if you get fired today, you can find one in 15 or 20 minutes just walking across the street.

I realize that that is kind of a broad statement. And I do think that somewhere along the line the investigators_I mean, I know at home it used to considered, from just discussing with people about the EEOC that some poor individual who put in his complaint couldn't expect something to happen for 2 or 3 years, then they would find out if anything was going to happen one way or the other, and they were off in left field for the rest of the time. And maybe in those days you might even have a black mark against you when filled out your application for a new job, and the person called up to find out. I think that is against the law now. You can't call up and investigate somebody's individual situation. But from your statistics and your mentioning of the Demming process, it would be rather practical, I think, for us to recommend that EEOC look into their allocation of resources.


Speaker Gingrich. Let me just say again, and Mr. Scott made a very valid point, that, in fact, if you have somebody dealing with an extraordinarily complicated case, you have a totally different allocation.

My problem again, and I think this is probably true for almost all aspects of the Federal Government, including, candidly, some aspects of the legislative branch, where we are still fairly obsolete in our own organizational structures, that there ought to be a way to look at the best law firms, the best patterns of management, the best litigators and to have again a working model for the entire system, including dispute resolution. You may want a system where the fewer the lawsuits, the better, as long as justice is being achieved in a timely manner, but you also may occasionally have a lawsuit against a very tough defendant with what you think is a very important precedent where you want to pile on the lawyers until you win the case.

I don't think we should prejudge here, but it is legitimate to say to the Agency, show us your model, tell us how you got to that model, tell us how it compares to the private sector, and tell us whether or not you are meeting your own conditions in an abstract way, as opposed to the usual bureaucratic answer that we need more money, so that we can do slowly the things we are already doing inadequately.


Chairman Fawell. The Chair would recognize the gentlelady from Hawaii.


Mrs. Mink. Thank you very much, Mr. Chairman.

Mr. Speaker, your presence here this morning drew me to this subcommittee because I serve as the Ranking Democratic Member on the Oversight and Investigations Subcommittee of this committee, and we are concerned about the output and the efforts being made by all of the agencies that deal with legislation that comes before this committee.

I am pleased to learn of your support for the additional funding which is so essential for this Agency. Because, as you said, we are all discomforted and chagrined in many instances where we are unable to tell our own constituents that their cases will be handled in a timely fashion.

But in looking at the point of the case load, I think it is important to also acknowledge that they have been working in cutting the case load from well over 110,000 in the beginning of 1993, I believe, to somewhere around 65,000, which you noted. But the 65,000 obviously is unacceptable, even though they have performed admirably over the years.

Now, I think it is also important to note that the case load increase over the period mentioned has to include a discussion of the impact of cases brought under the Americans with Disabilities Act and that a considerable number of the increase in case load has been on account of those additional cases.

So while I am also concerned about the workload and the need for additional personnel, I think we have to look very carefully if we are going to demark the process by which there is dispute resolution or prioritizing that we do not engage ourselves in the intimate distinctions of how cases ought to be handled. I think we need to give the Commission ample room and responsibility. And I believe that if there is cause for testers because of pattern and practices of certain employers, those ought not to be excluded from their case loads.

So I appreciate your comments and your presence here and calling to the attention of this committee the enormous responsibility that we have as Members of Congress to make sure that our constituents are well served by this important Agency and that it is adequately funded to do the proper job.

Thank you very much, Mr. Chairman.


Speaker Gingrich. Let me make a point, if I might, that in testimony which I believe this committee had taken earlier, there are cases where companies were in effect targeted by the Commission without any outstanding grievance, without any filing of complaint, and then, in fact, in some cases, companies who were doing a very good job of reaching out to minorities found themselves under attack by the Commission for reasons that were statistical or made no sense. So it is not as though in some of the past cases the Commission was following the trail of individually filed complaints, but, in fact, it was off creating its own trail.

Secondly, the gentlelady made a very important point here, which I agree with, about the Americans with Disabilities Act, which I was a cosponsor of and I strongly support. The principle, I think, is vital if we are going to have people have full lives and pursue happiness even if they have disabilities, which in our age we can do. We have the technology and opportunity to dramatically enhance involvement for all Americans.

That would have, in my judgment, though, actually slowed down the drive to Commissioner-created cases. Thinking through and developing the models and systems for handling disability cases as filed by individuals, looking through that whole process, is more than enough work in that zone without the Commission going off on its own to invent new work.

I would just suggest to you that whatever share of the current 65,000 backlog that is a function of the Disabilities Act is better dealt with by solving the individual cases and in that process creating new case law and creating new understandings rather than by inventing entirely new Commissioner-driven questions that have nothing to do with individuals.

So I do think the Commission has done a significant job in getting down from the peak, which was 102,000 in fiscal year 1995. But I think that we ought to, as a Congress, work with the Commission to develop a reasonable standard of expectation for anyone who files a complaint and then to see what the system is for the Commission to be able to meet that reasonable standard; and within that framework, I would strongly support the $37 million, because I really do believe we in this Congress must make an absolute commitment that people who are discriminated against have reasonable recourse from their government for protection. I think this hearing is a very important step in that direction, and I thank the committee for being so patient with me and allowing me to be here. Thank you very much.


Chairman Fawell. Let me say I thank you very much, Mr. Speaker. As usual, I know when I first talked to you about this, your reaction was, "Well, what can I do to help?" And you have helped a great deal just by being here with your very good mind of just highlighting some very sound points that I think we will be discussing further.

I think we have got a great opportunity here, and I think everybody here realizes we can do a better job with the EEOC, we can do a lot better. And that is what we are going to be exploring today. And when Congressman Scott referred to the fact that we have got unique problems in hiring, you don't know and it is difficult to determine whether or not discrimination may or may not have occurred. On the other hand, we can look at job discharges, and by and large there is a private market out there with all these damages now, punitive and compensatory, that are there, a very capable private sector that is more than willing to represent people.

So there could be, perhaps, a significant decrease in the case load if the EEOC were flexible enough to say, well, here is something where we could give a letter of right to sue, bless you, go on. And oftentimes those cases will have causes of action of a State nature in wrongful discharge, which is not even within the jurisdiction of the EEOC. So there is a lot of those cases that the very good cases could be moved on much faster, and very poor cases could be moved on much faster, given the right to sue letter, and, you know, there is hope. And then we can concentrate on the little guy and single cases that really do need help and guidance in alternative dispute resolution.

So it is exciting potential we have here, and I am delighted that Mr. Igasaki is at the helm here and I think shares all those thoughts.

So, Mr. Speaker, thank you very much. You have done a good job so far today, and we are glad to have you here.

If the second panel would please come forward. The first witness on the second panel is Paul Igasaki, Acting Chairman of the EEOC. Mr. Igasaki was Vice Chairman of the Commission from 1994 to 1997. Prior to coming to the EEOC, Mr. Igasaki was executive director of the Asian Law Caucus, a San Francisco-based civil rights organization.

Our next witness is Fred Alvarez, a partner of the northern California law firm of Wilson, Sonsini, Goodrich & Rosati. Mr. Alvarez was a Commissioner of the EEOC from 1984 to 1987. He also served as Assistant Secretary of Labor for Employment Standards from 1987 to 1989.

Next will be Cathie Shattuck, a partner of the Washington, D.C., law firm of Epstein, Becker & Green. Ms. Shattuck served as Vice Chairman of the EEOC from 1981 to 1984 and worked as the trial attorney with EEOC early in her career. Ms. Shattuck is appearing on behalf of the Society for Human Resource Management.

Following her will be Helen Norton, the Director of Legal and Public Policy for the National Partnership for Women and Families, formally the Women's Legal Defense Fund of Washington, D.C.

The next witness will be Charles A. Shanor, professor of law at Emory University in Atlanta. Mr. Shanor was general counsel of the EEOC from 1987 to 1990.

Following him will be Steven Kane, the Vice President for Corporate Affairs of Baxter Health Care Corporation of Deerfield, Illinois.

And our final witness will be David Cathcart, a partner in the Los Angeles law firm of Gibson, Dunn & Crutcher. Mr. Cathcart is chair of the American Employment Law Council and a former co-chair of the American Bar Association's Equal Employment Opportunity Committee.

The Chair does recognize and welcome the distinguished Mr. Igasaki.


STATEMENT OF the HONorable PAUL IGASAKI, ACTING CHAIRMAN OF THE Equal employment opportunity commission


Mr. Igasaki. Good morning, Mr. Chairman and members of the committee and subcommittee. Thank you for providing me with this opportunity to appear before you today to discuss the work and operations of the Equal Employment Opportunity Commission. It is a privilege and an honor to be here amongst such distinguished company.


Chairman Fawell. You might pull that microphone over to you, Mr. Igasaki, a built closer. I am not picking you up.


Mr. Igasaki. You have before you today a thoughtful panel which represents the legacy of the Equal Employment Opportunity Commission. And these are members of the bar and business that have provided input and guidance to the EEOC and to me. At least to some degree, the dialogue that the committee intends has already begun. I am confident that our collective voices and perspectives will add immeasurably to today's discussion.

I will summarize my remarks since I formally submitted a more comprehensive written statement for the record.

Amid the going debates surrounding the issue of diversity and equality and opportunity in America, today's discussion is especially timely. There could be little disagreement that discrimination in the workplace continues to be a very real and widespread problem. As the lead agency charged with responsibility for enforcing this Nation's laws prohibiting discrimination in employment, EEOC must be fully prepared and equipped to fulfill our mission of promoting equal opportunity in the workplace.

As you know, I assumed the role of Chairman of the EEOC on an acting basis in January of this year, having served as Vice Chairman since October 1994 along with former Chairman Gilbert Casellas. During this period, the Commission has sought every opportunity to hear from those whom our laws effect and to work towards identifying ways to improve Agency operations, programs and activities. Faced with the reality of very limited resources, an ever-expanding workload and serious concerns about the Agency's effectiveness, we needed new approaches. I am a firm believer in the power of open dialogue and constructive debate, knowing that no organization can achieve maximum effectiveness working unilaterally.

I led the task force that proposed the reforms that have resulted in the substantial reduction in our case load. The recommendations were based on the input of many business representatives, attorneys, and our own staff from around the country. We have also tried to review and learn from the lessons of the past EEOC administrations of both parties in designing our programs. I intend to continue this vigorous pursuit of open communication between and among all parties with whom we interact, soliciting input and ideas of how to advance principles of equal employment opportunity in the workplace. I welcome today's discussion.

Those who know the Commission's work best, including our critics, acknowledge the significant strides made by the EEOC over the past 3 years in reducing our inventory of charges by over 40 percent and in trying to resolve charges in a more efficient manner. While I am pleased by the dramatic results that we have seen in some areas in a relatively short period of time, I must acknowledge that we have a long way to go to fully realize our goal of strategic law enforcement. Changing ways in an agency that has gotten used to very different approaches is more like turning an ocean liner than a speedboat. Our reforms ask our line staff to make tough decisions at a faster pace than before.

While we have increased training and legal support of the investigative process, more is needed. While inventory reduction is large and the time needed to process a charge is decreasing, the remaining inventory results in delays in case processing that are still not acceptable. I note at this time that there is not a three and a half year waiting time. The average processing time for a case is a year, longer than what we would like, but certainly it is shorter than that figure.

The average workload or the average productivity of an investigator is 100 cases a year. While I am confident that as our reform becomes more established and our staff becomes more skilled in the new approaches we will continue to make progress, it will be difficult to continue the pace of our reforms without additional resources.

Today, as in the past, the majority of Commission resources are directed toward administrative processing of charges along with public education, technical assistance and outreach. Nevertheless, it is critical to meeting the EEOC's statutory mandate and to a viable program of administrative resolution of charges that the Commission maintain a strong and credible litigation program at all times. In order to achieve this, our present litigation program strives to maintain a docket that is well-balanced in terms of the statutes the EEOC enforces, the individuals protected under these statutes, and geographic reach.

In fiscal year 1997, the EEOC filed 298 lawsuits, over two-thirds of which were on behalf of individuals. The same ratio of lawsuits exists in the Commission's pending docket of 380 cases. These levels are lower than I would like. But we are in a period of change, of gear-shifting, as we get used to the new system of prioritization. The ratio of cases to attorney is low, but it is more like number two as opposed to one. But it is going up.

In addition, I would say that it is important to note that we have asked our attorneys to spend a substantially greater amount of time providing support and assistance to the investigative process, which is taking a considerable amount of time and makes the statistics of cases per attorney a bit misleading.

The Commission also has a responsibility to get at discrimination that goes unreported either because individuals are not able to come forward or institutionalized practices make it virtually impossible to detect discriminatory activity. Less than 10 percent of the charges we receive, for example, involve discrimination in the hiring process. In this connection, the Commission has an important investigative technique for combating illegal practices. Commissioner charges, provided for under the 1964 Civil Rights Act, are integral to the EEOC's law enforcement mission and strategies and are filed based on preliminary evidence of potential discriminatory practices, real practices affecting real people.

Likewise, since 1990, the Commission has recognized that the evidence from well-designed employer testing programs can provide useful information particularly about the absence or presence of hiring discrimination. The administration and the courts have long expressed approval of this investigative technique in areas such as housing discrimination. As you are aware, the EEOC recently awarded relatively small contracts to two organizations in order for them to educate us on the mechanics of running a tester program. Our staff worked closely with these organizations. And upon completion of the pilots, the EEOC will determine whether and how testing might otherwise fit into the effective enforcement of our laws.

I am convinced that we are acting in a prudent and responsible manner in order to strike a balance between litigation resources and administrative processing. Moreover, our insistence on the critical importance of attorney-investigator collaboration at all stages of our work has already helped produce more efficient and focused investigations.

Along with the Commission's enforcement and litigation reforms, I also want to make sure that anyone needing our services be treated with respect and be given accurate and prompt information. Quality customer service has been an area of concern since I started at the Commission in 1994 and was addressed in our 1995 reforms. While we have made progress in many years of customer service, there is always room for improvement. Following the October 1997 oversight hearing where specific customer service problems were noted in our Dallas district office, specific actions have been taken to remedy these unacceptable incidents. We have also established a national task force that is currently reviewing Commissionwide customer service procedures to make recommendations for enhancing EEOC services to the public.

As you can see, the Commission has begun over the past 3 years to become a more effective and efficient agency. But we are at a critical juncture in our history. I want to ensure that the Commission is firmly poised to meet the challenges of the future. For our new approaches to reach their potential in advancing equal opportunity in the workplace, the Commission will need additional resources.

As you know, our budget levels for the Commission have not kept pace with the increased enforcement and educational responsibilities assigned over the past several years. I am very pleased to hear the interest of the Speaker, and you as well, Mr. Chairman, in our initiative. I am most encouraged by the administration's call for increased funding of the EEOC.

As you are aware, the President recently announced his civil rights enforcement initiative wherein the EEOC would be provided a $37 million increase over its current budget for fiscal year 1999. This increase will allow the Agency to focus on reducing the inventory of charges and the amount of time to process them, expanding mediation opportunities, and harnessing the potential efficiencies and improved services that today's technologies can provide.

More than one-third of the processed increase will go to expanding the EEOC's mediation program. The Commission would like to be able to significantly expand the number of cases where mediation can be offered. This will require an infusion of funds to secure and prepare mediators capable of delivering a credible and quality program. Another significant portion will be dedicated to remedy past delays in modernizing the Commission's seriously antiquated information systems. The remaining amount will be allocated to further reducing the charge inventory.

I welcome the opportunity to work with you and the rest of the committee on accomplishing these critical objectives. Again, I appreciate the opportunity to participate in today's discussion. I will be happy to answer questions.

[The statement of Mr. Igasaki follows:]

written STATEMENT OF the HONorable PAUL IGASAKI, ACTING CHAIRMAN OF THE Equal employment opportunity commission - see appendix d


Chairman Fawell. And I thank you.

I did not go over the little three lights which you have before you, but the red indicates that you have hit the 5-minute mark. And if you could all strive to bring your remarks to a close there, it would be appreciated.

I thank you very much, Mr. Igasaki, for your comments. Mr. Alvarez is recognized.




Mr. Alvarez. Thank you Mr. Chairman, members of the committee. I, too, appreciate the invitation. It is an honor to be asked to come back out of private life a long way away from here to express my view on where the Commission is and where it should be going. And I congratulate the subcommittee on its willingness to examine the future of the EEOC. I won't repeat my written statement, but I will emphasize a couple of points.

I think the future is the right focus. I am glad we are past the days where we debated whether we should have an EEOC. I think all of us engage in constructive dialogue. Although we may disagree with tactical issues or maybe strategic issues, I am glad to hear that we are all here to talk about the information.

As an ex-formerly famous person, I am not here to criticize what my successors are doing. I have nothing but respect for the courage and the innovation and the imagination this group of Commissioners and current EEOC staff showed in a time of great crisis. I will tell you it was sobering to see that in one day in April, all the policies I worked on were revoked. But I am over the trauma of that, and I am here to try to help the current Commission with my thoughts, and I think they will be accepted as constructive ones.

You asked for my opinion about where we go from here. I think I have just four quick points to make to you, and I will be happy to contribute to the conversation. The question is how do we take the EEOC to the next level of public service in the fight against discrimination? I think there are four areas that are worthy of exploring. The first is, obviously, additional resources, and I am glad to hear there is a consensus for that, although we can discuss where they should be placed strategically; should they be in the field, should they be focused on the intake or elsewhere. I am glad to hear there is a consensus on that point, and I want to help in that discussion or offer whatever the committee is interested.

Secondly, from a substantive level, I think the EEOC needs to take its intake process as such to a new level. I think it needs to focus a lot more sophistication at the front door so that the EEOC prevents itself from drowning in charges that even it ultimately decides were not warranted in the first place. I think there are techniques that can be employed at the front end of the operation, in which it would take substantive control of its agenda, because no decision that the EEOC makes is more important than what work it decides to do and what work it decides not to do. And I think there is room to move that process to a much higher level.

If the Agency is, in fact, not going to help a member of the public who comes to the Agency for help, that person should be told sooner rather than later. And I encourage efforts that I know are under way at the Commission to improve the quality of that process; and I offer that as a way to help find tremendous resources and, more importantly, to more effectively implement the Agency's agenda.

Third, I would encourage the Commission to encourage alternative dispute resolution. Even as it takes the position that so-called mandatory arbitration is unlawful, or at least shouldn't be allowed to have people waive their right to a jury trial, there is still no reason why the Commission couldn't encourage responsible ADR by deferring its process to an ADR system that an employer may have that meets substantive standards of procedural fairness, much like the NLRB does in its Collyer/Speilberg approach. I would encourage the Commission to look closely at that set of policy decisions, whereby a number of matters that would otherwise have to be handled by the Commission can be deferred to a responsible and fair alternative dispute system that the employer will have developed.

And finally, I would say that with respect to the Commission-initiated activity, I recognize there is a role for Commissioner charges, directed charges under the ADA, interventions, amicus briefs. I think that is an important role for the Commission, but I also think it is important for the Commission to manage that process so that those activities don't overwhelm the resources that are otherwise necessary to deal with the public.

So I would encourage three things. I would encourage that the criteria for involvement of the Commission in those activities, Commissioner charges, interventions, be made clearly so that the people who are out there thinking that they will be safe because no charges have been filed will know what the criteria are should that occur.

Secondly, I would encourage that there be equal access to the decision as to whether this intervention or these initiations should occur so that both parties can contribute to that discussion.

And finally, I would set some sort of resource limits on how much to spend on Commission-initiated activities. That way there will not be a question that they are encroaching on serving the public who comes for aid.

Finally, my time is up, I just encourage this subcommittee to find and to fund the consensus that we all feel about the moral and political and legal failings in a society or workplace in which discrimination exists. Thank you very much.

[The statement of Mr. Alvarez follows:]


Chairman Fawell. And thank you very much for your statement. Ms. Shattuck.




Ms. Shattuck. Thank you Mr. Chairman, members of the subcommittee. I am pleased to be here today on behalf of the Society for Human Resource Management, otherwise known as SHRM. For those of you who don't know, SHRM is the world's largest human resource management association, with over 93,000 individual members; and those people are very professional, and they spend all of their time being managers.

I can tell you that back in the early days of my career, if you were going to be involved with EEOC or a civil rights enforcement agency, being a manager was the farthest thing from your mind. You needed to know what the law was, especially if you were a lawyer it was helpful, and you needed to be able to do the investigation or whatever your particular function was. Your concern wasn't budget, and it wasn't how to manage a workload. We have a lot to do, but that wasn't why we were there.

Now we have a whole new situation that has grown over the years, and the Commissioners are really faced with a big challenge, and we tried to identify some of those challenges and make some suggestions as to what we think might be helpful to the Commission.

The Commissioners themselves, first of all, need to be much more involved, we believe, in the process of the operation of the Commission in terms of setting goals and priorities. This goes through the whole idea of intake, obviously charge processing, setting the priorities for how it will handle cases, setting what kind of expectations that the Speaker was talking about this morning, what its real goals are and what its objectives are; also with respect to budget, how it is going to allocate its funds. There is never going to be enough money to do everything that you want to do. We know that as managers. The SHRM members would like to offer their assistance and their experience to the committee or to the Commission if it can help with any of the models that it has developed for good management of programs and resources. We don't have all the answers, but we are willing to share.

In addition to that, I would like to focus just briefly this morning on alternative dispute resolution, because we as managers in the human resource field have learned over the years how to resolve employee disputes. As a result of that, we have developed a lot of different techniques, but the employee internal grievance system is probably the most well known and most used.

It seems to me that the EEOC could do a lot for itself if it would inquire of people who file charges of discrimination as to whether or not they took advantage of the internal grievance procedure at their employer before coming to the EEOC, and if not, have the EEOC go back to that employer, say, what kind of systems do you have? Do you have a hearing? Is there an opportunity for everybody to present all the information so everybody understands what has been going on? And would you be willing to make this available even though maybe the time is passed under your own internal procedures to make this work? If so, the EEOC could say, fine, we will take the charge of discrimination, so they are filed in plenty of time to avoid statute of limitations problems, but we will hold our investigation and processing in abeyance for, I don't care, 20 days, 30 days, whatever is a fair thing to see if it can't be resolved. And if the parties come back, if the individual comes back to the Commission and says, my problem has been solved, EEOC ought to say, fine, thank you, go and do well. And we will get on with our work.

Second thing is with respect to ADR, we do not believe that the mediators should be employees of the Commission because the goals and enforcement strategies and responsibilities of the Commission by statute are sometimes at variance with the interests of individuals who are bringing complaints to the Commission. We feel that it would be a much better expenditure to use outside mediators, whether it is the American Arbitration Association or other institutions that are designed to actually provide mediators.

And we would suggest that mediation be available with respect to all charges of discrimination. That includes the ones that are excluded at this time as being identified by the Commission as litigation possibilities or potential or worthy; and that mediation be available at all times during the administrative process, even up to and before a lawsuit is filed by the Commission; and that everybody be kept mindful of the fact that they have an opportunity to go into mediation before litigation occurs. And thirdly, with respect to this, that if an individual wants to come in and get a right to sue letter early, and go directly to court, that in order to get that right to sue letter, that individual and his or her attorney should have to first at least offer the employer the opportunity to go through mediation and try to resolve it.

The civil litigation explosion in the civil rights area is just phenomenal. You heard about that at the last hearing. We think this could do a lot to help with that and also perhaps let people get on with their lives, which is something companies, managers and employees want to do.

Thank you. I will be happy to answer any questions you may have.


Chairman Fawell. Well, I thank you. I did not realize that litigation-worthy cases are not eligible for alternative dispute resolution.


Ms. Shattuck. That is according to some information we received from Commission documents.


Chairman Fawell. Eventually I would like to know why that should be. It would seem to me that maybe there is a good reason for that.

[The statement of Ms. Shattuck follows:]



Chairman Fawell. The Chair recognizes Ms. Norton.




Ms. Norton. Mr. Chairman, members of the committee, thank you for the opportunity to testify today on this very important topic. For over a quarter century, the National Partnership for Women & Families, formally known as the Women's Legal Defense Fund, has played a leading role in monitoring EEOC's enforcement performance as part of our efforts to ensure that American workers are free from discrimination and harassment. Our work in this area is driven by our recognition that the EEOC's effectiveness in enforcing antidiscrimination laws determines in large part the extend to which those guarantees will have any real impact on the lives of American workers and their families.

Because the EEOC is the Federal agency charged with giving life to our Nation's promise of equal employment opportunity, any analysis of its performance should focus on the Agency's progress in achieving its primary mission: to identify, stop, and deter job discrimination.

To accomplish this mission, we believe that the Commission must draw upon the full range of available tools as part of a comprehensive enforcement strategy. Along with processing individual complaints and engaging in public education, outreach, and technical assistance to employers and workers, this means that the EEOC's work must include a substantial commitment to addressing the systemic discrimination that still limits job opportunities for large numbers of women and minorities and older workers within entire institutions or industries. A commitment to confronting such far-ranging bias requires the use of techniques that effectively identify and challenge practices that harm large numbers of American workers. Yet the EEOC has recently come under fire from some critics for using certain enforcement tools expressly provided the Commission by Congress, tools such as intervention, Commissioner's charges, and even the use of litigation generally.

In my view, these attacks are fundamentally misguided, and they fail to appreciate the compelling need for the EEOC to use the full range of available and effective enforcement techniques to fulfill its mission. For example, intervention is a specific litigation technique that allows for the pooling of public and private resources and expertise in appropriate cases. Moreover, the government's strategic intervention, for example, in cases like Mitsubishi Motors, helps educate the public about serious charges of harassment and other forms of discrimination, again encouraging voluntary efforts by other employers that help deter future civil rights violations.

By intervening, the EEOC may also be providing representation to workers who are not otherwise represented in the privately-generated litigation and ensuring that the public interest in addressing injunctive relief and preventive change is fully addressed in any settlement.

Finally, the Commission's role as leader in the field of EEOC enforcement requires that it help develop civil rights jurisprudence through the strategic litigation of key legal issues.

The strategic use of Commissioner's charges offers yet another example of the tool that bolsters the EEOC's work as a law enforcement agency. To identify and eradicate discrimination of all types, the EEOC must be able to draw upon information in addition to that provided by individual complainants who walk through the EEOC's doors. Many victims never contact the Agency themselves because they fear retaliation by their employers or because they don't understand their rights.

Consider, for example, the EEOC's recent settlement of sexual harassment charges at the Houston Astrodome. In that case, approximately 25 Hispanic women were pressured to sleep with their supervisor in order to keep their jobs or were otherwise sexually assaulted by him. As minimum-wage and immigrant workers, many of whom didn't realize their right to be free from sexual harassment, they feared or didn't know to contact the EEOC themselves. Information provided the Commission by a local news agency triggered a Commissioner's charge, which in turn generated investigation and settlement.

In the same vein, the EEOC's strategic use of employment testers is an extremely valuable tool in uncovering hiring and pay discrimination, again because the victims of such discrimination rarely realize that they have been treated unfairly because they don't know how others have been treated. When carefully designed and implemented, testing provides a proactive means of detecting and challenging barriers to fair hiring and pay in entry-level jobs.

Testing effectiveness has been recognized by other enforcement agencies for years, and the EEOC itself first announced plans to boost its law enforcement through testers under the Bush administration in 1990. Testing has primarily been used as a research and education tool, allowing civil rights advocates, enforcement agencies, employers and the public to understand how and to what extent discrimination operates. It can also be used to investigate allegations of job discrimination, to monitor compliance with consent decrees or other orders of injunctive relief, and to help employers develop nondiscriminatory hiring practices. In short, testing is a powerful addition to the Agency's powerful enforcement tools that enables it to identify and address serious discrimination that might otherwise go undiscovered.

Over the last few years, the EEOC has taken several significant steps to improve its operational efficiency. Together, these changes have helped reduce the Agency's considerable backlog. However, the outstanding backlog continues to be a source of concern, and further backlog reduction will require significant additional resources. At the same time, our remaining performance concerns must be addressed.

For example, as part of a commitment to improve customer service, the Commission should provide materials and guidance that enable potential charging parties to reach a sound decision about whether to file a claim. It should also develop systems for counseling and communicating with charging parties throughout the process and offer attorney referrals to those who wish to pursue litigation. And, of course, significant investment in staff at the intake and investigation phase, together with greater and earlier coordination with legal staff, will improve the quality of decision-making in the triage process.

And while we firmly support a strategic litigation docket as articulated in the EEOC's National Enforcement Plan, we remain concerned about the Agency's relatively low levels of litigation as well as by gaps in actual implementation of the plan.

Finally, the Commission must develop personal appraisal systems that hold staff accountable for their performance in furthering the Agency's mission. In recent years, the Commission has wisely dropped its practice of evaluating performance based in large part on expected case closures, a system that encourages staff members to close meritorious cases and abandon complex issues in order to reduce the backlog at all costs. The Agency has yet to replace the system with one that creates effective incentives for improved customer service, development of quality enforcement priority cases, and attention to systemic discrimination issues.

This brings me, finally, to the President's request for an increase in EEOC funding. The need to invest in the number and quality of EEOC staff is particularly acute. Obviously, if we expect the Agency to operate at a quality level, we need to invest adequately in its personnel, both to ensure sufficient numbers of staff members and to ensure that they receive the training and skills and development essential for high performance. Bringing the Agency into the late 20th century through investments in computer technology will further increase the efficiency of the Agency personnel. For all these reasons, we strongly support the President's proposal for an increase in EEOC funding.

We feel equally strongly, however, that Congress should not handcuff the Agency by linking funding increases to restrictions on its ability to use specific enforcement tools such as those discussed earlier. Barring or limiting the use of these valuable techniques would only undermine the Commission's ability to achieve its critically important law enforcement activities.

Thank you.


Chairman Fawell. And I thank you very much for your statement.

[The statement of Ms. Norton follows:]



Chairman Fawell. Professor Shanor.




Mr. Shanor. I will not repeat my written testimony, but instead simply make a few comments based upon my experience both as a teacher of discrimination law and as someone that has worked over the years in a wide variety of capacities representing plaintiffs, representing defendants, serving as an expert witness, doing appellate work, and so on, including 3 years as general counsel at the EEOC.

I have only five points I would like to address. First, the issue of resources. I am all in favor of giving the Agency more resources if the Agency makes a commitment to utilize those resources well. It is clear that the Agency is swamped in a large number of cases that need investigation and that need to be dealt with professionally in a high-quality manner. That takes money.

On the other hand, if the Agency's commitment is to simply terminate charges, that doesn't require money. It is very easy to take large numbers of cases, categorize them as C cases, and send them out of the Agency. That doesn't require money. I am, incidentally, aware that relatively few cases are currently being characterized as C cases at the Agency and, therefore, not quickly disposed of.

The second point of concern is intake and investigation. Intake is critical. It ought to be beefed up with the use of lawyers, and education of charging parties. I am personally in favor of Congress providing an opportunity to directly bypass the Agency with respect to individuals who do have legal representation and simply want to move on with the litigation process.

Thirdly, with respect to reallocation of resources, I think the Agency has for many years tried to utilize lawyers not only in litigation capacities, but also in other capacities within the Agency. I think that that needs to accelerate, in part because of the fact that litigation by private-sector attorneys has taken over a very large chunk of the market, if you will, in connection with litigation of employment discrimination claims, and, if anything, those resources ought to be further reallocated internally within the Agency as necessary.

I do believe, however, that there is a role for the EEOC to engage in some litigation simply as a necessary component of law enforcement where conciliation simply is not possible in connection with a particular case. If the Agency doesn't have litigation as a tool, then some might simply not accept the credibility of its law enforcement efforts.

Fourthly, I support the use of ADR, not only voluntary ADR, not only ADR when the Agency is engaged in trying to resolve cases informally, but I support the use of predispute or mandatory alternative dispute resolution, including arbitration. I would point out to the committee members that the Supreme Court has just yesterday granted cert in a case from the Fourth Circuit which, hopefully, will provide some guidance on the availability of so-called predispute or mandatory ADR under the statutes. And I would hope that the Commission would move off of its anti or negative position on this issue towards helping to play a leading role in establishing minimum standards for mandatory dispute resolution and utilizing such deferral techniques as other witnesses have talked about.

Lastly, the issue of testers. Whether or not the committee decides to limit or restrict the EEOC's funding contingent upon terminating tester programs is, of course, a decision for the committee and for Congress. My own view is that the use of employment testers, however "well-designed" it may be, is simply a choice of either bad employment testing or worse employment testing. There is no such thing as a testing program that is not inherently flawed. Testers have incentives; those testers trying to show discrimination have incentives that are simply not the same as incentives to attempt to get jobs with particular employers or get referred by particular employment agencies. It doesn't work, hasn't worked, it won't work.

Thank you.


Chairman Fawell. Well, I thank you very much. I have read your entire statement, as I have done all, and I much appreciate the comments that you have expressed. And I appreciate all of the statements that have been given to us.

[The statement of Mr. Shanor follows:]



Chairman Fawell. Mr. Kane.




Mr. Kane. Mr. Chairman, thank you for inviting me to testify. My name is Steve Kane. I am currently the Vice President of Corporate Affairs for Baxter Health Care Corporation. In a former role there, I was Vice President of Employer Relations and associate general counsel. Baxter is a $7 billion medical products company. We employ about 40,000 individuals.

In my testimony today, I would like to make four points. First, it is in the public interest for the EEOC to address discrimination as completely as possible. Not only does this mean at the level closest to the controversy, but it is always coincident with the quickest time possible, hopefully, first by the employer, as Ms. Shattuck mentioned, if not then by the EEOC. The last choice is by the Federal judiciary. I believe that this will result in not only the time limits being shortened, but also in better disposition of cases on the merits of those cases.

Charging parties who have not had their claims resolved may speak to private counsel to champion their disputes if they can. The cases that are most attractive to plaintiffs' counsel are those with the most money at stake. Individuals with cash flow difficulties may not be able to retain counsel. They are expected to make advance payment for litigation costs. As a result, lower-paid individuals may wind up with no effective remedy to pursue their legitimate claims if the EEOC is overburdened.

Old cases are harder to resolve fairly. The outcome may turn solely on the basis of which side can produce the most witnesses who remember anything about the relevant facts.

The solution is for the Commission to be able to make a determination promptly on the merits of the charge. When the EEOC issues a right to sue letter rather than resolving the matter through settlement, everybody loses. Litigation clearly represents a loss for employers, employees and an overcrowded Federal docket. I believe that the country would best be served if single-plaintiff discrimination cases were barred from Federal courts to be adjudicated only through some form of ADR. At a minimum, I believe ADR should precede litigation.

My second point is that progressive employers want discrimination issues resolved expeditiously. A few weeks ago, the special assistant to Chairman Igasaki called me and informed me that the Chairman would be in Chicago at the beginning of February, and he was wondering if I could pull together a meeting of major Chicago employers to have a dialogue with Mr. Igasaki. A dozen individuals attended the meeting, and collectively we represented some 700,000 employees. Companies represented were companies like American Airlines, Amoco, Bank of America, and McDonald's. Employer representatives were extremely pleased that Mr. Igasaki and others from the EEOC would take time to come speak with us. We thought this displayed a very refreshing attitude.

The business consensus at this meeting was that the backlog of pending cases at the EEOC was not beneficial. We believe issues need to be addressed as soon as solutions can be determined. Where there are legal contests, ADR has often been embraced as a means to deal with the essential elements of a controversy and then move on.

Thirdly, I believe that due to the changes in the employment landscape over the last 34 years, the EEOC must continue to find innovative ways to prioritize its efforts and carry out its mandates. When the EEOC was originally founded, its scope was significantly narrower than it is today. Yet the range of protections has expanded greatly without commensurate resources.

In addition, the 1991 amendments to the Civil Rights Act greatly broaden options for restitution. As a result, private litigation has mushroomed, developing case law answers to many cases left previously unsettled. Because of this, I personally believe that the necessity for litigation by the EEOC is limited to a few select areas, and only if it addresses systemic patterns of discrimination. The EEOC needs to prioritize ruthlessly, continuing to innovate as it has recently. It has done a great job, we think, in reducing the backlog, and the Chicago office has been very creative.

I believe if the claimant has retained an attorney, the EEOC's involvement should be limited to fact-finding or exploring settlement. Once an individual has chosen to pursue his or her claim in another forum, the EEOC should waive its jurisdiction.

Fourthly, the EEOC needs additional funding targeted to address these matters. The employers and employees in the country's overburdened judiciary system would benefit from additional funding to targeted areas such as fact-finding, ADR, and this will maximize widescale benefit.

The EEOC must ensure it has the necessary competencies to fulfill its mission. This starts with the carefully selected and well-trained staff, using recognition mechanisms for those who execute their duties expertly.

The Commission must continually update its processes to be as effective as possible. It needs adequate databases and systems to ensure that its professionals have the tools to make decisions consistently across the country. The employers for whom I work do not support additional funding for litigation.

In conclusion, thank you.


Chairman Fawell. I thank you very much for your testimony.

[The statement of Mr. Kane follows:]




Chairman Fawell. Mr. Cathcart.




Mr. Cathcart. Thank you Mr. Chairman. I join with the congratulations and appreciation that all of us, I think, have been expressing here for the committee's interest in this very important subject.

I would also like to acknowledge, as many others have, the contributions that I think have been made to the public interest and to the work of the Commission by former Commissioner Casellas, Acting Chairman Paul Igasaki, and Commissioner Paul Miller. I believe they have been instrumental in leading the reforms which have achieved the substantial reduction in inventory of charges that have been discussed today and have in a substantial way earned all of us the right to have the opportunity to consider the Commission's operations in the nonpartisan fashion that I think is characterizing today's discussions.

We have all had our list of points. I am going to identify seven so that we can move on to the discussion that I know, Mr. Chairman, you wish us to participate in.

First of all, I join in what I believe is a consensus of all witnesses that additional funding is appropriate if appropriately linked to Commission case for its wise utilization and to congressional oversight.

In that regard, I want to report to the committee, as I did in my written statement, that the American Bar Association House of Delegates this last month adopted a resolution that originated in the Committee on Equal Employment Opportunity Law on a bipartisan basis and was forwarded by the Section of Labor and Employment Law on this subject. The House of Delegates has itself resolved that the ABA urges the EEOC and the Congress to provide resources sufficient to enable the Equal Employment Opportunity Commission to carry out its congressionally-mandated duties to enforce laws prohibiting discrimination efficiently, and fairly and effectively.

Secondly, beyond funding, I think it is essential that the ambitious program for upgrading information systems to current standards be carried forward decisively. With respect to that subject, I would suggest that instead of focusing on hardware or specific software, that the appropriate starting point is function, what is that system supposed to allow the Commission and its staff to do?

And I would also suggest that the Commission, I think, would find, as many law firms across the country have found, that there is a need to retain outside consulting services in order to supplement the Commission's own internal resources in making those decisions. I think it would make sense for the Congress to expect outside consultants to be utilized for their views, their recommendations to be made available to the Congress, and for a plan to be developed so that these resources, which I suspect will not soon be made again available, will be used effectively and efficiently in a definite real time frame so that these systems can be put in place.

Third, I believe it is vital that lawyers, the Commission's own lawyers, not only be supported in their own professional functioning in a variety of ways, including professional development of their own effectiveness, but also that they be assigned responsibility for specific cases at and after the intake.

The Commission has a tradition in which, in my opinion, lawyers are not effectively utilized at all stages of the process from intake forward in a uniform and appropriate manner. I believe the Commission is different in this respect from law firms representing plaintiffs' unions and employers, and that it is appropriate for a discussion of this subject to be pursued thoroughly, because now, it seems to me, is an appropriate opportunity for this step of reform to be taken. This would include, I think, lawyer participation in the assignment of priorities; also lawyer participation in creating investigative plans; and tracking and accountability of counsel as well as investigators as those go forward.

I would only mention that, in my last four points, I do support early screening and deadlines for processing as a fourth item.

Fifth, I think deferral to alternative dispute resolution is appropriate; and that includes both mediation and predispute arbitration agreements meeting acceptable standards of fairness.

Sixth, I think that due process is appropriate for the Commission's own decisions to litigate, and I think the appropriate example here is the intervention decision, which I think can be made the subject of published standards, published opportunities for submissions by all parties to current litigation on the appropriate questions that ought to guide the Commissioners in their decision.

And seventh, I support the view expressed by some others here today that testers are an experiment that this Agency cannot presently afford, in my opinion, and may never wisely be able to utilize. I share the view that it should be with the greatest reluctance that any Federal agency considers the use of representatives who are paid to lie to the public, particularly in the circumstances that have been discussed here. I think there are tools with respect to subpoenas or with respect to documents of witnesses and with respect to Commissioner charge processes, which are the appropriate and preferred method. Thank you.


Chairman Fawell. Well, thank you. You have given us a lot to chew on here.

[The statement of Mr. Cathcart follows:]



Chairman Fawell. I hardly know where to begin with the questioning, but I will start in the litigation area. And I am going to read in more particular fashion a portion of the testimony of Professor Shanor, which kind of caught my fancy as an attorney. I did practice for 30 years before I came to Congress. But Professor Shanor states, and I quote, that "Congress, by adding compensatory and punitive damages to the remedies available to plaintiffs, created a huge market for litigating individual and class intentional discrimination cases. EEOC should respond to the existence of this market by consciously shifting its resources from litigation to intake, investigation and conciliation of charges."

I don't read with that to mean there is no place for the Commissioner's charges, or the intervention, or the unique cases and so forth and so on. But my question, which I would appreciate it being discussed here, is can't the EEOC recognize that this is so? Especially, I think as Professor Shanor went on to say in regard to job discharges, which are mixed with other causes of action at the State level, wrongful discharge and so forth and so on, that the market is there. It would seem to me that if the EEOC can blend with that and recognize that. Again, if you have attorneys taking part in an investigatory stage as a law firm, so that they are guiding and saying that you need to prove this case, this is what we need to have, and this is the evidence and so forth and so on, then it would be recognized that there is a very good case and probably it won't want to go to alternative dispute resolution. But where we know the private market can help us out, why keep it? Why not try to utilize for the benefit of all that private market? That is what I would like to be discussed.

Perhaps I will start with Professor Shanor, since he was the one that gave the words I read. But any of you that would want to reply, please do so.


Mr. Shanor. I guess I could start the discussion, and that is that the legal landscape has clearly changed dramatically since 1991. That doesn't mean there is no role for litigation at the EEOC. There clearly is. On the other hand, the EEOC needs to recognize that there probably is less need for litigation than there once was, and that there would be even less if the Commission were to run with establishing standards of fairness with respect to alternative dispute resolution in conjunction with very selected use of its litigation resources.


Chairman Fawell. Mr. Igasaki, I would like to have your reaction to that.


Mr. Igasaki. I think it is true that the Civil Rights Act did change the environment, and we have recognized that. Since it has been true for a long time, even back when the Commission was saying it was hoping to do so, we couldn't represent everybody with a potentially strong discrimination case. We recognize that. And we have utilized the private bar more than we have ever done before. Our offices have been instructed to develop attorney referral lists, and when there are cases that can be best handled by the private bar, they often are.

I would say, though, that there are many cases where the interests would not necessarily be fully served by representation in the private bar or where a particular case may be an important case, yet may not have in it the potential profit for the private lawyer that we might feel necessitates litigation. We could find a number of cases, both one-on-one and class cases, where people have looked for attorneys, haven't been able to find them, and come before us anyway, and we may represent them and be able to prevail on the case.

So I think the point of involving the private bar is very real. I think it is something that takes place. It is something we can consider. But, at the same time, I think there are many cases that we can represent best the interests of the party, and in many cases there aren't attorneys available.


Chairman Fawell. Mr. Cathcart or Mr. Alvarez or Ms. Shattuck, I guess we have got a whole bunch of lawyers there, so any of you. But can we have some friendly criticizing here? Do you think the EEOC is jumping on this? We all tend to safeguard our jurisdiction, I think, in need of a bureaucracy. But are we moving ahead and recognizing that the 1991 civil rights amendments did change the area here? You can recognize a good case pretty quickly, it would seem to me, but how are we doing it?


Ms. Shattuck. The EEOC does have specific interests that it has to represent as meeting the government, and those may diverge from the individual who brought the complaint. I think that is what Mr. Igasaki was referring to, at least in part. The problem is that if the EEOC sees an issue that it feels it must enforce, that it knows would never be part of resolving an individual's claim if he or she went to court on their own, the EEOC then wants to hang onto that case.


Chairman Fawell. Can you give me an example, though?


Ms. Shattuck. An individual may have, in fact, been discriminated against, say, in a promotion. All right? The solution is they go into court, and probably if the facts are really good, that case will settle. That individual will settle his or her claim. They will get back pay, promotion, training, whatever is involved. That is as far as it goes with the individual.

But the EEOC may have an interest in going beyond that to assure that individuals, in fact, are given the opportunity to compete equally for a promotion and training and be looking for injunctive relief that goes way beyond what that individual, in fact, is complaining about. And that is the problem with having the EEOC represent individuals.


Chairman Fawell. Couldn't they intervene, though, if they wanted to do that?


Ms. Shattuck. Well, they could intervene, right, but it is a very difficult situation for the Agency to be in.


Chairman Fawell. I noticed also that, and my time is fast running out here, that I think it was you, Ms. Shattuck, who also testified that the practice is for EEOC to accept every charge filed in practical effect, even the class C. I mean, it just takes everything. And indeed there are very few cases that are even classified as class C. So we are taking in cases that, basically speaking, and we have to go through all the processing of that, burdening the staff with something that we all probably know isn't anything that is going to fly. So I see at the one end is the class C triage taking an awful lot of work that perhaps it would be best to give the straight answer to the person and give them the right to sue if they feel they have got a cause of action.


Ms. Shattuck. Right. One of the problems, Mr. Chairman, is that by statute, the way it reads is the Commission accepts every charge that is filed with it, and so the Commission either has to say, okay, we will do that, and really put authority at the intake stage so the person who takes the charge can automatically stamp it with a right to sue notice and it is out the door, or it will go through a process to a certain degree.

Those cases are a very small part, around 10 percent, of the Commission's workload, and we still have a lot of cases that probably don't have a lot of merit. But if you don't put the money into the intake so that they can really be looked at when the people come in and complain, they are going to end up in category B, and they are going to sit there for a while and then probably be dismissed.


Chairman Fawell. We hope we can address that, too. Mr. Cathcart, do you have a comment on that?


Mr. Cathcart. I think additional staff resources at the intake can be made perfectly compatible with the statutory requirement of accepting all charges filed. I think the statute has always required, in my opinion, that any person legally entitled to work in the United States have the opportunity to fill out that one-page piece of paper and leave it on the counter. I think one of our witnesses today suggested, and I agree, that more could be done to provide standardized guidance at that stage for the individual who is seeking to file a charge, video techniques and so forth, allow lots of tools.

After that charge is filed, then it seems to me early screening of the type Mr. Alvarez talked about, which I support as well, can effectively front-end load the assignment of priorities. And then I think secondly, the assignment of charges to investigators and lawyers as teams, with the lawyers responsible for identifying a basic, simple investigative plan for the individual charge and responding to deadlines that are built into the system, tracked with, I think, what we all hope is the new computer system, ought to be moving charges to a point where they may be ready for mediation, other ADR work, even though they are not completely driven to the point of cause or no cause finding. That is not a lot of work.

Respondents know that they have an obligation to provide statements of position, or inferences may be drawn that are not in their favor. And the National Labor Relations Board for decades has efficiently had a system for collecting or even taking statements where that is appropriate. That provides a database and, I think, help in resolving these matters before litigation decisions are made. And then when the litigation decision is made, I think there is an opportunity to publish the criteria, presumably injunctive relief, which may have very important public consequences, but may not be an economically attractive kind of lawsuit for a private counsel to undertake compared with something involving employment termination, for example, which may promise a larger verdict. That may be a category in which the Commission may be effective. There may be public interests of other sorts.

I don't see the Commission yet moving there. And I think some of these other steps of the intake and mid-course investigative phases would be where I would urge that the effort be made.


Chairman Fawell. Yes. And the whole system would improve, I think. I know, as an attorney, you want to do your trial work and get the big cases and don't want to be necessarily in administration. But the analogy you gave of good law firm, you have somebody overseeing the investigators, you try to have a system whereby you can recognize the value of the case, although I know that private practice law is not analogous to the EEOC.

Well, I have strayed over my time limit, and I would recognize my colleague from New Jersey, Mr. Payne, for questions.


Mr. Payne. Thank you very much, Mr. Chairman.

Ms. Shattuck, in your testimony you indicated that workers should be required to participate in a mediation system that is unilaterally developed and controlled by the employer as a condition of being able to file a civil rights suit. Were you serious about that contention, or did I hear you correctly?


Ms. Shattuck. I didn't say in order to file a lawsuit. I said that if the system that was designed by the employer met certain criteria established by the Commission for due process and fairness, because a lot of these systems that are set up by employers use outside mediators that are chosen from a panel of arbitrators or mediators that are not the creature of the employer or a union or the employee.

There are techniques that a lot of companies are using today, very modern techniques, and do not require that an employee simply be captive to an employer or his boss, for example. There are employee committees in some organizations, for example, that sit and listen to facts, that are chosen by employee groups, and there will be management representatives, and they will discuss the facts. Some of these systems are very, very equitable and pro-individual, a lot of due process. It seems to me that the Commission ought to open its mind up to the fact that perhaps these could be very, very effective ways of getting people's problems resolved.

And, you know, the objective here, I think, is equal employment opportunity, and that means the opportunity to be employed. The bottom line there is a job, which is what everybody that comes to the Commission to complain about is concerned about. That is what we would like to see; that some modern techniques be used here.


Mr. Payne. The question in a lot of instances is the system set up by the employer many times are not necessarily set up in the best interest of the employee.


Ms. Shattuck. Right. But if the Commission were to public issue criteria by which it would say this would be a good system to use, it would have basic fairness in it, a lot of employers would try to do that.


Mr. Payne. Exactly.


Ms. Shattuck. It is a lot less time-consuming to get the problem solved when it arises than it is 2 or 3 years later in court somewhere. I mean, it is a reality.


Mr. Igasaki. I just wanted to mention that I think it is right that there are many situations in which employer mediation programs would be useful, and we certainly encourage that. I think the sad truth is we still have a delay in handling cases, and most of the people in the business know how long it is going to take even though we are trying to prioritize and some cases do have the fast track. Most of them do have to wait for a period of time. Most companies have the ability to start a mediation process and go through that mediation process with ample time before we get to a case to move forward with it.

So while we fully support companies using internal mediation programs, I don't think it is necessarily required for us to sanction those programs. We don't really see us being in the business of licensing programs with employers. We do have difficulties with mandatory arbitration situations because they are not voluntary, and we don't want to see people giving up their statutory rights without that voluntary feature. But beyond that, we simply support internal corporate mediation programs, and I believe they have ample time under the current situation to pursue those cases before we get to them.


Mr. Payne. Thank you. I just wonder again, Ms. Shattuck, you know in these cases should the employees in these cases should have the same right of discovery or same rights of access to remedies?


Ms. Shattuck. There are certain programs that do have that feature, oddly enough. There are actually some like that. There are some that allow for an employee to have representatives represent him or her, that allow access to certain kinds of records and documents. Not all of them are that way, but certainly some of them are.

But I guess maybe we ought to, even before we get to what would be an ideal kind of system, is if the EEOC were to even ask some of these employees whether or not they complained about their treatment or their employer, before they came to EEOC. There are a lot of employers who have techniques and methods already set up that don't require a formal grievance procedure. If you walk into an EEOC office of a big company these days and you have got a grievance, and it makes any sense at all, it will be fully investigated, first of all, and a lot of those EEOC offices act totally independently.


Mr. Payne. Well, I guess that people have had a little more difficult experience than what you are talking about, the readiness of the employer to have an open system where the employee is on the same level as the employer, and I think that in many instances the reason that many employees don't go is that they are certainly intimidated. It is sort of like being judge and jury and prosecutor and policeman and all the rest.

Let me just quickly, since my time is rapidly expiring, ask Ms. Norton about what she thinks about mandatory arbitration? Ms. Norton, do you support it?


Ms. Norton. I firmly support the EEOC's position in this matter, which is that predispute mandatory arbitration is fundamentally inconsistent with federal antidiscrimination law. In fact, I think that predispute mandatory arbitration undermines the major victories of the civil rights battles over the past years. The Civil Right Acts was all about making sure that victims of discrimination had a right to go to Federal court with their claims. In 1991 Congress made it clear that victims of intentional discrimination had the right to go to a jury of their peers with their claims. Predispute mandatory arbitration strips folks of these very legal protections as a condition of employment, and I agree with the EEOC that that is just wrong.


Mr. Payne. What would you describe as the characteristics of an appropriate mediation system?


Ms. Norton. Well, having just denounced mandatory arbitration, let me say that I am at the same time very much in support of voluntary alternative dispute resolution mechanisms, and voluntary postdispute mediation, I think, can be a very valuable and important tool for resolving these complaints.

I think the safeguards certainly have to include, first and foremost, that the agreement to enter into ADR is voluntary; second, that all of the remedies that would be available under statutory law would be available to a victim in the process; that full information would be provided to folks who aren't represented to make sure that they can make informed decisions about resolving these disputes. To the extent that they are ADR processes that happen in advance of litigation or EEOC enforcement, I think the discussions have to be kept confidential so that if the negotiations break down, neither party is compromised by disclosures that were made during that process. And again, I think that if employers build truly fair and voluntary systems, employees will use them.


Mr. Payne. Mr. Chairman, do you agree generally with that.


Mr. Igasaki. I do agree. I think it is important for us to look at mediation as a very important tool. Probably the best control on good mediation programs is for us to know that if it fails, either party can take it into regular system. I think that makes the mediation program by its very nature have to be objective. And certainly in terms of our staffed programs that we are pursuing now, and certainly anything else we put together, we make an absolute rule that the information in that system be shielded from other enforcement processes of the EEOC. We want to guarantee that our mediation program is truly objective, and we haven't any complaints about that today.


Mr. Payne. Thank you very much.

Just, Mr. Alvarez, you talked about how the cases should be handled or moved in an expeditious manner. Do you have any fear that if the emphasis is primarily on quantitativeness, as we have been hearing about the number of cases per attorney, that we could have just the reverse happen, that you would get shoddy work because you have got to rush, sort of like we are seeing in HMOs for the elderly down in Florida where physicians just say, you have got to see eight every 45 minutes, and you can only do one test per every nine? I mean, the balance, that is what I am concerned about, quantitative as opposed to qualitative.


Mr. Alvarez. Mr. Payne, I think that is an excellent point, and it is one that I am not so concerned about because I know EEOC employees. I was one for a few years. I worked at the NLRB, which was heavily driven by numbers and time targets. If you understand that the basic EEOC and NLRB employee is committed to what they are doing, that they are there to produce justice for people who make claims, and then you build a model based on the best of the employees, which I think do predominate in the agencies, using statistical techniques, time targets, in a way to drive the public service don't offend me, and they give me some concern, but I think that can be moderated through reasonable management techniques. So I am not so concerned about it. I think it is a danger.

I guess I would suggest that the NLRB is a place, where an area that we look to for techniques. The NLRB has gone to a priority charge processing system. And even though I am not a believer in a structured priority processing system, I think every charge should get its own priority. But even if you were to go to a priority processing system, I would encourage the subcommittee to look at the experience of the NLRB that has time targets for its A, B and C cases, in which the A cases go in 45 days, the B cases go in 11 weeks, and the C cases go in 14 weeks. So they use those time targets to drive the decision so that you don't pile up a bunch of B charges or C charges language.

So I think these techniques are usable if you trust, as I do, the basic values and commitment of people who work at the EEOC and NLRB.


Mr. Payne. Mr. Cathcart, you were at NLRB. Do you conclude that?


Mr. Cathcart. Congressman Payne, I was not an employee of the NLRB, although I did work and occasionally still do work with National Labor Relations Board matters and, in fact, serve on an advisory committee to the current Board's Chairman. So I do have some experience.

Yes, sir, I do agree that the wise use of deadlines and time targets can be very helpful. I also agree that there is ample evidence that the staff of the Commission are deeply concerned with the issue of not losing sight of the quality or integrity of an individual investigation. I don't think that is where the current problem is. I think it is a matter of balance. And I think your comments on this record in that regard are very helpful because I think we all share a commitment to balance in this area.


Chairman Fawell. I thank you.

The Chair recognizes Congressman Ballenger.


Mr. Ballenger. Let me apologize to you folks for not being here the whole time, but, as you might gather, we have meetings going on all over the place.

Mr. Igasaki, I am just reading a statistic that comes out of one of the reports given to us before we came to the meeting here, and it said, "Nationwide, EEOC made a determination of cause in only 3.3 percent of its cases and found no cause in 58 percent, the balance of the cases resolved administratively without the determination or withdrawn."

I am basically a businessman myself. So I am trying to figure out how long it would take if only 3.3 percent of the cases were found with cause. I am not a lawyer, so I don't know the system that works, but you all mentioned mandatory arbitration and mediation and so forth and so on. How much of the work that EEOC does actually goes to the point where you need a lawyer?


Mr. Igasaki. You mean how many cases actually go to court?


Mr. Ballenger. I guess that is what I mean, yeah.


Mr. Igasaki. Because we are talking about cases that we actually file. The current figure, I believe, is 289 over the last year. It is going up. Those are the cases we file. However, a fair number of cases where we find cause we don't take because of resource issues, and people go outside and get attorneys in many cases in that category as well. So I am not sure exactly what that figure is, but a good number of the cause findings people do get private attorneys as well. In many cases we refer them to private attorneys.


Mr. Ballenger. Mr. Kane, if I may, you are a businessman, and you represent a large corporation and so forth. And surely, goodness and mercy, you have had been through many of these. I mean, if you have got 40,000 people working there, you must have substantial numbers of EEOC charges, unless you are just the white knight who never did anything wrong.


Mr. Kane. I would not use the word "substantial."


Mr. Ballenger. Let me ask you the question. Have you ever run into this tester thing? How do you feel about that?


Mr. Kane. This is a very interesting subject. First of all, we have not run into that, to my knowledge. I understand the EEOC's issue, which is, if, in fact, most of the charges they receive are from currently employed or previously employed people with regard to a given employer, how do they deal with the employers who don't hire protected classes, minorities, females, those over 40, et cetera? It is a vexing problem.

I guess my basic take on this would be that clearly for employers who are covered by Federal contractor regulations, which is a vast number of employers, those employers have other people in the government who are concerned about their discrimination records, primarily the OFCCP, Department of Labor, and I think if nothing else, to use the common term, that the OFCCP would keep those employers pretty honest.

I do think that the EEOC has an opportunity through looking at EEO-1 reports that are filed by many employers, I don't know what percentage of the employers, to look at the basic makeup of a work force and have a sense of whether the minority or female makeup is out of balance with the general population. I think in those circumstances where they may see that there is some imbalance, are the kinds of situations that they may want to try to explore further.

The issue is whether or not the tester program is the appropriate vehicle to do that. I think that in the housing situation it may be a very effective vehicle because every renter who owns a property wants to rent his or her apartment to somebody. I am not sure that the situation is quite the same in the employment context, but there are many, many applicants for every job, and whether someone is hired or not turns on some very small nuances sometimes and is not just based on a resume. If that were true, you wouldn't send thousands of recruiters out to college campuses to interview hundreds of people and decide on the one or two or three that they want to make an offer to.


Mr. Ballenger. I run a manufacturing plant down in North Carolina, and the population there is probably 12 percent black, and this is back 30 years, and maybe the rest white. And then we had a great influx of Vietnamese in the 1970s and early 1980s. And so, in my manufacturing plant at the present time, I would say we are 30 percent black, 30 percent white, maybe a little bit bigger, because I have 45 percent Vietnamese. But in the last 5 years, and I don't know how this would work, and I would love to have somebody give me an interpretation, our Hispanic population has gone from below zero to up to where it is, about 3 or 4 percent, yet I don't have any Hispanics working in my plant.

Am I discriminating because although I have large numbers of blacks and large numbers of Vietnamese working there, I don't have any Hispanics, even though the population would show that there are large numbers of Hispanics in the area?


Mr. Kane. I can't speak to your particular situation. I do think that there are still set issues that juries have to examine, but I would suspect that if you don't have any of the population that is represented generally in the local area that I would look very closely to see why that might not be true.


Mr. Igasaki. Congressman, a number of my associates here are talking about using the EEO-1 forms as a way of seeing hiring discrimination, but it is precisely a situation where there is an imbalance in the work force and where there may not be discrimination that we don't want to go on the way of just using the EEO-1 statistics alone as a screen. If we have some other information, then we will look at the EEO-1 statistics to support the case.

But our testing experiment, and it is an experiment, to determine whether there is a usefulness for us to utilize testers, and we will see whether that works out or not, would turn more on the practice of the hiring. And if, for example, an employer doesn't discriminate or treat people differently in the hiring process, the mere disparity alone would not justify a case, because the idea of employment testing, which there are very many variables in employment situations, certainly this experiment is designed to allow us to learn the complexities of that and make sure that we don't create situations where we are forcing someone to discriminate or give evidence in a negative way. We want to see how it works, and it would turn more on the issue of discrimination as opposed to a sheer imbalance. That is the whole point of using testers at that level, and that is why we are examining it as a pilot project.


Mr. Ballenger. I would like to ask Mr. Cathcart one thing. Again realizing that I come from a different viewpoint than some of the folks up here, do you find that testing to some extent, and I am not a lawyer - but I have heard over and over and over again the word "entrapment," - the whole idea of testing, you automatically are going in to get somebody to give you the wrong answers so that you can go on from there. Is that not entrapment?


Mr. Cathcart. I believe that the practical effect of testers, so-called, in an employment application setting would be an entrapment. That is my concern about it, Congressman. I do understand the concern the Commission has with respect to rejected applicants that has been spoken to by Mr. Kane and others here. I also understand that there may be patterns emerging in which an employer may apparently, by various measures, including statistical measures, not be participating appropriately in the workplace. Thirty plus years of case law teaches us standards in that area.

I do not think that the only choice is between simply relying on a snapshot of the employer's employment in an EEO-1 report on the one hand and on the other hand testers. There are many other tools. They include the real complaints of real persons. They include clusters of the same types of complaints about an employer. They include a review which the Commission is authorized to make, even without a charge of discrimination, supported by subpoena power of the flow of hiring decisions over a course of time. Employers are obliged under, I believe, the Age Discrimination Employment Act to maintain job applications for a period of time. Those can be compared with the decisions that an employer makes in hiring or electing not to hire individuals. The individuals who have made those decisions can be interviewed if necessary under subpoena in an investigative stage.

So I believe that there certainly are situations where the Commission would rightly move in to an employer and ask pointed questions about the hiring process here that would go well beyond looking at an EEO-1 report. But I do not believe that testing is an appropriate tool, first because, as I have said, I believe in practice it would amount to entrapment. There would not be the quality controls that people of common sense would wish, in my opinion. And I also believe it would ultimately provide information that would not be useful in litigation even if it were admitted, because I believe two applicants are not the same.


Mr. Ballenger. Let me just say that as an employer who has to deal with this when I go home on the weekends, I sit down with the people who are running my company, and you really get to the point where it appears to most people down there that the only safe people that you can fire nowadays are white males. The basic thing is you are likely to get sued on any of the other ones. Even for cause you still have to go through the EEOC, which cost a blue mint from what I am told. Thank God I don't have to do it. But just the idea that you have to defend yourself in cases like that means that you might never fire anybody except white males because the likelihood of them winning in that case is less than average.

Thank you, Mr. Chairman.


Chairman Fawell. Thank you. Mr. Tierney.


Mr. Tierney. Mr. Chairman, if it is all right with the Chair, I indicated to Mr. Scott that I would be happy to allow him to go first because he was here much before I was, and as a matter of courtesy, if everyone else is in agreement.


Chairman Fawell. That is fine. The Chair recognizes Mr. Scott.


Mr. Scott. Thank you, Mr. Chairman. Mr. Alvarez, you were on the EEOC?


Mr. Alvarez. From 1984 to 1987.


Mr. Scott. And during that time, did the Commission have any Commission-initiated charges?


Mr. Alvarez. Yes, I believe we did.


Mr. Scott. And why did you do that? What good did those charges do?


Mr. Alvarez. Well, they were part of our statutory responsibility, they are part of the statutory scheme, and are one of the legitimate techniques that the Congress gave the EEOC, thus it was one we exercised.


Mr. Scott. Can you give us some examples of why they were a good idea?


Mr. Alvarez. Well, I can't remember specifically very much about the ones that I signed, but they all involved situations where the trace or indication of discrimination was presented to Commission staff, and Commission staff investigated and determined that there was something there to look into and presented proposals to Commissioners to conduct those investigations.


Mr. Scott. Now, someone who doesn't get a job doesn't have any more information about why they didn't get a job from one employer who is discriminating and another employer where they just didn't make the cut. All they have gotten is a letter saying, you didn't get the job.

How does a complaint that is valid look different from a complaint that is not valid for purposes of prioritizing? I would imagine that the complaint says, I didn't get a job, and I think I have been discriminated against.

Ms. Norton, can you make a comment on how you could possibly have a different-looking complaint for the purposes of priority?


Ms. Norton. I think that what we have to recognize is that even if there is a significant increase in the EEOC's budget, it is unlikely to ever have the sort of funding that is going to enable it to fully investigate each and every one of the 80,000 charges that it receives each year, so it has got to make some priority decisions. It has got to make some decisions about whether or not it is going to go after practices that harm large numbers of women, minorities, people with disabilities, older workers. At the very beginning, at the intake stage, it is tough to really have the information necessary to figure out which charges you want to investigate and which charges you don't.

I certainly agree that it is important to invest in the number and the quality of the EEOC's investigative staff to help them make quality decisions. I think it is important to give potential charging parties information about statute of limitations, jurisdictional limits, things like that, so they can make accurate decisions about whether or not to file a charge. But once they do file a charge, and I think it is important to emphasize that they should have a right to file a charge, that folks who want to file a charge shouldn't be discouraged from doing so, that it is then incumbent on the Commission to make some intelligent decisions about which cases are worth investing in. And one of the things they have to take a look at is its systemic impact on discrimination in this country.


Mr. Scott. How do Commissioner's charges fit into that overall scheme?


Ms. Norton. Part of the problem is that if you only take information from the folks who come through your doors, you are missing a big chunk of information from discrimination in this country. Lots of victims of discrimination never come to the EEOC because they are very fearful, and legitimately so, over retaliation by their employers. Others, as we have discussed in the hiring context and also in the entry-level pay context, don't know that they may have been the victims of discrimination.

Commissioner's charges allows the Commission to use information from sources other than victims, for example tips from nonvictim employees, whistleblowers, tips from customers who look around and see something is not right, tips from news organizations, and use that as a law enforcement technique to examine possible discrimination. And I think the use of testers is fully consistent with that commitment.

I think we have to remember that the EEOC is a law enforcement agency, just as the police department not only investigates crimes when victims report crimes, they also act on tips, they maintain a visible presence in the community to deter violations, and when appropriate they use undercover techniques to identify criminal activity that otherwise would go undiscovered. I think testing is fully consistent with the EEOC's mission as a law enforcement agency in the employment context, as it has been so in the housing context, as it is so in the criminal context and other law enforcement situations.


Mr. Scott. Is there a problem with limiting the testing to those areas where there is some degree of probable cause?


Ms. Norton. I think that is one way testing can be used. Certainly one way it can be used very profitably is following up on reports of discrimination or, as folks suggested, following up on EEO-1 forms that may be indicating troubling statistical situations. I think that is one very helpful way in which testing can be used.


Mr. Scott. And what barriers are there for private lawyers taking these cases?


Ms. Norton. I think it is important to realize that post-1991, there are more private attorneys available to take these cases, but there are major gaps in the private bar's ability to handle discrimination claims. I emphasize two in particular. One are claims brought by low-wage workers, who, because they are low-wage workers, as Mr. Kane emphasized, probably will have little in the way of back pay or damages available to them, so there is very little incentive for a private attorney to take that case. And in light of the declining funding for the Legal Services Corporation, there is not going to be government legal service lawyers to take that low-wage worker's case as well. So low-wage workers are not fully served by the private bar.

Second, class cases, large class or complex cases, are the sort of cases that very few private attorneys or organizations have the expertise or resources to bring. And again, that is a role for the Commission to appropriately take leadership in.


Mr. Scott. Mr. Igasaki, do you want to comment on any of those questions that I asked?


Mr. Igasaki. Yes. In terms of Commissioner charge cases, the instances that Ms. Norton described are good ones. One may be a situation, for example, where we hear about in one case that there had been a situation that appeared to be discriminatory, and the investigation uncovers a practice affecting many people, especially in a situation, for example, of sexual harassment, where people are very reluctant to come forward. That may be an appropriate case to pursue as a Commissioner charge.

An example is the Mitsubishi Motors case, which we reviewed a case involving 27, 29 individuals, and they went off to their private attorneys to pursue their cause, which largely would have involved damages. But we were concerned that the investigation uncovered ultimately what was more like 300 women and others who were affected by the discrimination, and the cause of the initial group would not have been fully dealing with violations experienced by the others.

Similarly, there are going to be situations where, for example, a human resources staff person may come forward and have their own claim that tells us about practices in their company of things that as a law enforcement agency we can't ignore, racial tracking, for example, or some other kind of racial coding or prohibitive technique.

So I think the Commissioner charges are something that we do pursue. One thing I would mention about the Commissioner charges as well is that, frankly, the Commissioners are very conservative about it. Our name goes on these charges, so we are very reluctant to move forward without adequate evidence. And speaking for my colleagues, I think each of us is more cautious in those cases than we would be in cases which come before us in other ways, because we know it is our name and our credibility that goes with that charge. I think every Commissioner that has served has found the usefulness for them, and I think they are an important part of our tools.


Mr. Scott. Thank you, Mr. Chairman.


Chairman Fawell. The Chair recognizes Mr. Tierney.


Mr. Tierney. Thank you, Mr. Chairman.


Mr. Igasaki, let me ask you that there is an approximately 65,000 case load backlog at the present time?


Mr. Igasaki. Right.


Mr. Tierney. Can you estimate for us what impact the increase in funds requested in this year's budget might have on that?


Mr. Igasaki. Yes. We believe that if we can implement the changes that are contemplated by the 15 percent increase, that we can reduce that backlog by the year 2000 to roughly 28,000 cases. The important thing to note about the number of cases in the inventory, I know the popular term is "backlog," but that is the total number of cases that we have before us. So when we say 65,000, that is a long backlog, but, in fact, that is our inventory. So 28,000 gets us closer to rational level. It should never go down to zero because we are always working on something, because that is the goal, to get the case load to 28,000 by the year 2000.


Mr. Tierney. So some cases may be a little bit stale, but most of them are in progress?


Mr. Igasaki. Yes.


Mr. Tierney. There was a note in some of the background materials here that 20 percent of your workload currently consists of ADA-related cases.


Mr. Igasaki. I think it is even a little higher than that at this point.


Mr. Tierney. Has there been any contemplation toward setting up a separate enforcement provision for ADA separate from your Agency to talk about doing that, to address just that area of cases with some expertise and expedition?


Mr. Igasaki. I haven't actually heard that proposal, but I think it is an important area for us to remain active in. The ADA is a relatively new law. One of the reasons the high number of cases in that area exists is because it is a law that requires a lot of case definition. Because of that there are a lot of cases coming through the doors. We have developed a growing expertise in this area, and I think would be an area that is probably best suited for us to continue and focus our efforts on.

It is interesting that in this area many of the cases that have the most profound impact on the law are individual cases involving only one complainant. Some of them are just pointing out to me that a recent ADA case, like those you hear in the newspapers, the big class action cases, the cases involving many victims and millions of dollars of damages. But two-thirds of our cases are not in that area at all. Two-thirds of our cases are individuals with serious real injuries.

An example of how our new prioritized system is working involves a case involving a deaf man, denied a job at a restaurant because of that. He filed a charge with the EEOC on September 6, 1996. The investigation was completed December 31, 1996, and a lawsuit has been filed on April 16, 1997. The case was settled for back pay and emotional distress, and the company promised not to discriminate in the future.

That is what we hope the EEOC is headed towards, situations where cases can come in quickly, the facts are strong, we didn't see a reason to wait, and we moved forward beyond what the full enforcement approach would have taken us if we took everything in line when it came in. We think it is very important for us to jump on the cases while evidence is fresh. We realize we can't do that in every case, but that is the whole goal, to prioritize the system that we have now.


Mr. Tierney. In that ADA area, what educational efforts, sort of preemptive actions, might be taken, or Mr. Cathcart, if you have opinion on that, for businesses? Before they get into a violation situation, what is the Agency able to do that might effectively reduce the future cases coming in and still effectively deal with the situation?


Mr. Cathcart. I think there is much that a properly funded agency could do and a properly staffed agency could do. I agree with the Chairman's view that it is appropriate for this Commission to continue to have this area of responsibility. I think there are some very important efficiencies in that.

I do believe that the opportunities for technical advice to employers have not been fully developed by the Agency over time, and I think the reason largely is resource scarcity, Congressman, particularly with respect to varying forms of reasonable accommodation. It seems to me that although one of the burdens of disability is that it often strikes or afflicts an individual in unusual or unique ways, there are common themes. And it seems to me that communication and technical advice could be very helpful, particularly for small employers who don't have the resources that a large corporation might have. I think this is an area where many of us on the employer side are expectant and waiting and hopeful that, particularly under the kind of leadership and attitudes that have been displayed by Chairman Igasaki and Commissioner Miller and some of the current Commission leadership, that we may see some progress in that area.


Mr. Tierney. Thank you.

With respect to this contemplated tester situation, Ms. Norton, do you have any ideas of what might be an appropriate threshold that has to be met before the Agency would embark on a program of testers with respect to any particular company?


Ms. Norton. Well, as I understand it, right now the EEOC has engaged in contracts for a very modest amount of money, a total of $200,000, which, as I understand it, is less than one-tenth of 1 percent of the Agency's annual budget. And the idea behind these pilot projects is to figure out how testing can be used to further the Agency enforcement mission.

We have talked about a number of different strategies, as Mr. Scott mentioned, using testing to follow up on either reports or tips of discrimination or to follow up on troubling developments in an EEO-1 form.

Another way that testing can be used is really as a research and public education tool to help educate employers and civil rights groups and enforcement agencies about which industries discrimination may be occurring in, how it occurs, at what point in the hiring process do barriers to employment develop, and how companies voluntarily can develop hiring practices that don't discriminate.


Mr. Tierney. Well, in line with following up, whether it is an EEO-1 or another source of information, is there a set of standards that could be developed as to just how many complaints of what nature would be required before the Agency could embark, or would one complaint be enough, would one tip be enough?


Ms. Norton. I think that is part of what the pilot program is designed to figure out. Let me give you an example where I think one tip was enough. This was a case called Molovinski v. The Fair Employment Council. In that case a woman contacted the civil rights organization to report that when she went to an employment referral service, the male recruiter there solicited sexual favors from her in exchange for providing her referral services. She gave this information to the civil rights agency. The fair employment counsel of that agency then sent two follow-up female testers to that agency and found that they, too, had received almost identical solicitations for sexual favors from this recruiter; the agency followed that up with litigation. A jury found in favor of the harassment claims of all three women, and that jury's verdict was upheld by the D.C. Court of Appeals.

I think one instance is certainly not always going to be enough, but in egregious cases it can be enough.


Mr. Tierney. Thank you.

Thank you, Mr. Chairman.


Chairman Fawell. And I thank the gentleman.

Mr. Igasaki, I would like to ask a little more information on the mediation services which you contemplate. As I understand it right now from other testimony we have received that "no litigation-worthy case is allowed presently to go through mediation"; is that correct? And, if so, why is that possible?


Mr. Igasaki. Congressman, it is not correct. Basically the biggest bar right now for us to offer mediation in a given case is the fact that we have done this for no additional funding, so we basically have very small programs. We can't serve all cases. That is the biggest prevention from one case or another not to get served beyond mediation right now.

But beyond that, we have said that we wanted a program that avoided some of the criticisms of the past Commission programs where, if cases weren't screened in advance, heading into a situation where we wouldn't take cases either, one, if in the screening level it is clear that the case has no merit. We don't want a situation where companies feel they are being pressured into settling for something just because of the process. We screen out those cases. We also screen out cases where we believe there is a public interest for the EEOC to stay involved in this case in our enforcement mode, and that may involve a situation where there is an individual in the case who may have a particular interest, but the interests of the larger public are served.

Situations like, for example, the Mitsubishi Motor cases, cases where we see something far-reaching that requires our further involvement, for example, making sure that there is a change that is afforded in a particular factory, for example, as opposed to just leaving things the way they are. What that means is that we will mediate litigation-worthy cases, but we would keep those cases out where we think there is a reason for us to stay involved in enforcement.


Chairman Fawell. And I understand that your budget proposal does call for mediation only in regard to category B cases but not category A cases.


Mr. Igasaki. Well, at this point we are willing to take cases in what is called A-2 category, and that is a question of a case that we do think that there is cause.


Chairman Fawell. Why would you, though, want to eliminate all category A cases? Those are the cases that would be going for litigation.


Mr. Igasaki. Right. And that is why there are A-2 cases that we currently consider for mediation.


Chairman Fawell. Excuse me, I thought that the proposal did not cover mediation for any category A cases.


Mr. Igasaki. I think that that may be what we have agreed to in this new program. But the thing to bear in mind about cases is that in many cases B cases could very well, once investigation begins, become A cases. So the static designation of A does not mean that the case is strictly going to always be litigation-worthy. In fact, at this stage we have taken cases in the system that are A cases in terms of our mediation program.


Chairman Fawell. Mr. Cathcart mentioned that in effect it is correct, simply the general view of the EEOC is we are going to keep those good cases to ourselves, and we are not going to let them go into mediation, which seems to me a bit of rigidity.

Mr. Cathcart, what would you say to that?


Mr. Cathcart. Well, I have been a working lawyer all my life, Mr. Chairman, and I think having an open mind about settlement is part of litigation. I think the two go together. And therefore, it would seem to me there would be a very strong presumption that every case in the inventory at every priority would have open at every phase the possibility of resolution without a lawsuit or during a lawsuit without proceeding further. I don't believe that that should be news.

I also think that the terms of mediation before litigation or of settlement after a lawsuit is started may be subject to consideration and debate discussion among the parties. If the Commission has a public policy position it wishes to enforce or establish, that then becomes part of the stakes. So the mediation seems to me that if the Commission is a party, and if the Commission is a stakeholder of the charge because the charge hasn't been identified as having a high public interest content of some special sort, then presumably the Commission services would be sponsoring mediation among the private parties. That might include a paid mediator on the Commission's payroll. It might also include contract mediators. It might also include a Commission's preparation of a matter for mediation with some basic review. But I would hope that the Commission would reconsider its position with respect to the kinds of cases for which mediation is available.


Chairman Fawell. In effect, it seems to me that what one could conclude is that if the EEOC has a very rigid view on what is good public policy, they are not going to be mediated by any objective, which is a little bit disturbing. It would seem to me that at times the EEOC can be wrong, and they ought to be able, assuming that we have competent mediators who are objective and are not investigators and aren't college students or things of that sort, but are qualified people and really seeking justice, that it makes no sense to just simply say, we are going to take these high-profile cases, and we are not going to let anybody mediate our views on what is good and what should be pursued. We are going to take this and pursue it to the utmost. And that is where I think the EEOC gets some real bad publicity. They will have a case that hits the headlines and causes the average person to shake their head and say, why are they doing that? So I am a little bit disturbed about that.

I would hope that we could do some talking about that to make it clear that more funds in mediation means also that the views of the EEOC can be mediated by objective third parties. If it is good enough for the employee and it is good enough for the employer, it ought to be good enough for the EEOC, it seems to me.


Mr. Igasaki. The budget information that you referred to, basically we are focusing on large classes of cases in which we are going to target our mediation. Any A case, for example, that both our regional attorney and district director agree are appropriate for mediation will be mediated.

In some cases it may very well have turned out that the cases that grabbed the headlines and got people focused on a huge damage award have been mediated. There was a case that we mediated recently in which I forget the exact mediation award or amount that was agreed upon, but it was very a substantial amount. And I believe that if we vacated the case, we would have got enormous headlines for it. But we didn't feel that was proper in the case because both parties wanted a mediation, and we thought it was advantageous for us.

When we decide to take a case for all law enforcement purposes, it is not just a question of catching headlines, but it is a question of achieving the greatest justice, the greatest impact of discrimination that we can with the resources that we have, but believe there is a purpose for litigation. We don't do it that often. We look at those cases to see whether it is better served through the more traditional investigative litigation path as opposed to mediation path. Cases that are appropriate for mediation are appropriate not necessarily because of the size of the damage amount, but more on the question of the willingness of the two parties and the absence a lot of other issues of importance in terms of enforcing civil right laws. That is a judgment that we offer, but we think that we do so responsibly.


Chairman Fawell. Mr. Kane, would you like to reply to that?


Mr. Kane. I guess I would reiterate the posture that there are some cases that employers don't want to settle for some precedent-setting kind of reasons, but the vast majority of cases employers would like to settle in every context in every count because we don't think it is an effective use of resources to litigate. The threat of litigation, I think, is more important than the actual ability of litigation. I think that there ought to be an opportunity, whether it is through the auspices of the EEOC or some private types of ADR, an opportunity for both individuals and employers to believe that they have an effective method to resolve their issues short of costly and protracted litigation.


Chairman Fawell. Professor Shanor, would you like to comment?


Mr. Shanor. I agree with that view also. I think Mr. Cathcart stated it well when he said that it has a great deal to do with your position in the course of mediation as to what your overall Agency priorities are. But that should not discourage you from utilizing mediation to the greatest extent possible.


Chairman Fawell. Ms. Shattuck, you are nodding.


Ms. Shattuck. I have two things to say. First of all, SHRM does have a policy on settlements and how this process should work, and I would like that to be made part of the record, if I may. Second of all, if the goal of this is to publicize and to influence other employers to do the right things, lawsuit isn't necessary to do. If you can get a good settlement, you can publicize that without subjecting people to going to court. If the position that you want to promulgate and can get an agreement through mediation, it seems to me they accomplish the same thing, and they can publicize that instead of the resultant lawsuit.

[The information follows:]


Society for Human Resource Management (SHRM) Policy Statement - see appendix K

Chairman Fawell. All right. I would be glad talk with the Chair a bit more on this, but I would hope that the EEOC could say that the money they are asking for here is to enhance alternative dispute resolution. I realize that you cannot at this point in your own mind accept mandatory alternative dispute resolution. I think 10 years from now it will be a popular mode of avoiding all the litigious aspects of our society, but we are not quite ready for that. But you would be able to say that as a policy the EEOC, certainly if there is an agreement between the employee and employer to mediate, we shall. I would hope that would be the case because I think there is a little bit of a stumbling block here, that if we are just simply saying, no, the representative taxpayers are going to take this thing to the Supreme Court and back five times in order to be able to prove a point, which may be the most important of all, and they ought to be able to agree. So I think this is something that we probably should communicate on a bit more to make sure that we do have an understanding there.

Would anybody else like to comment on this at this point?


Mr. Payne. Well, I am somebody.


Chairman Fawell. I will give you your chance. The Chair will recognize my good friend from New Jersey.


Mr. Payne. My time expired before, so I figured I would get it in any way I can.

I think that it is just as wrong to have companies that violate the law feel that all that is going to happen is that there will be a mediation, and that will be the end.


Chairman Fawell. This would be voluntary only, though, for the employee.


Mr. Payne. Yeah, but they can still litigate. I think that it serves a useful purpose to highlight situations that need highlighting if it is felt that at some point it was the practice, or what I gather from you is that it is better if some agreement is made back there in the back room, and therefore you would publicize that settlement.

I think, though, that there is certainly, and I won't say it should be the rule, but there certainly should be cases that are taken beyond mediation for the purpose of exposure, and perhaps that in itself could be a deterrent to other employers, and as the question, as Mr. Kane said, the possibility of litigation is a good tactic in mediation.

I just think that for the EEOC to be under the constraint that mediation should be the final rule, we all know that mediation, as you have mentioned, is not binding. So I think that just as you are saying you support the 15 percent increase, I think that you are attempting to put a lot of constraints on the EEOC.

And I was shocked before when you told me my point had nothing to do with our hearing when I talked about the number of minority employees that have been terminated under the Republican leadership in the House. That was your opinion. But, I see this whole question of the fear of entrapment or the fear of testing aggressively and going after people.

But on the same token, as a policy, and I would like to see that aggressive action, but even in our current Starr hearing, this aggressiveness of taping people and almost entrapment of people without counsel is also an abuse of what I am talking about once again. You might say, what does this have to do with that? It is the business of balance. If you have a political philosophy, it should go across the entire board and not only be brought up in particular situations.

So somebody has finished.


Chairman Fawell. Well, I thank the gentleman. I thank everyone. I think it has been instructive.


Mr. Scott. Mr. Chairman, could I ask a couple of questions?


Chairman Fawell. Yes.


Mr. Scott. I appreciate your indulgence. There are a couple of points that I just want to the touch on with Professor Shanor.

You mentioned filing fees. Some people have waivers for low income and can't make the fees, but how much money were you talking about?


Mr. Shanor. Probably $50, something that could be easily applied toward the filing fee, and something, as you said, could be used in connection with low-income situations.


Mr. Scott. I think all the witnesses mentioned settlements, and when you mentioned the alternatives were voluntary, I just want to point out that some of these systems have privacy agreements which would be somewhat problematic.


Mr. Igasaki, I thought you said something about coding as one of the things you discover. What happens when you catch someone discriminating; what kind of remedies are available to the EEOC as a condition of settling a Commission charge?


Mr. Igasaki. Well, you mean settling as opposed to going to court?


Mr. Scott. Well, to resolve, however it is resolved. What kind of remedies are imposed in addition to financial penalties?


Mr. Igasaki. The most common thing is damages to injured parties. But in addition we will have things such as changes in a company rule, an agreement not to apply certain tests as being used to hire people. Depending on what the form of discrimination is, it could be an agreement to bring certain trainers into a company and provide training to managers, certain information being shared with employees; basically the gamut of all the laws that we enforce, a whole host of different things that can be agreed upon.


Mr. Scott. Sometimes the interests of the EEOC and interests of an individual litigant would be different because the individual litigant could settle a case. And I think you mentioned the Mitsubishi case in which there were 29 litigants who did recover in the case, and there were 300 others who similarly were situated. So you sometimes have a greater interest than the individual litigant.

How do you determine whether or not the person that you have caught discriminating has, in fact, stopped discriminating?


Mr. Igasaki. Well, I think it is a matter of our investigation. Certainly, once we file a lawsuit, it oftentimes occurs that a company changes its behavior. And that is a good sign. But what we not try to do, we have to investigate for what is going on at that time, but we want to see the changes reflected in a settlement agreement, if we get a settlement agreement. Say, for example, we are taking the sexual harassment situations. We have a new set of rules in sexual harassment that will be given to all employees when they start, and we want that built into the agreement, and there will be a brochure prepared.


Mr. Scott. After going through all these processes, is there any way you can measure whether or not the changes that have actually resulted, have ended discrimination against minorities, whether the companies have actually stopped harassing women? Do you try to measure whether or not these processes have had a result?


Mr. Igasaki. Well, generally speaking, if the settlement doesn't contain some agreement that we will maintain a relationship to review things, then we don't really have the ability to examine how well they are doing. But if we do have a settlement that is agreed upon before the court, then we can make sure that there are monitoring agreements, whether these things are being complied with, and evidence being submitted to show that. In those cases we will follow the compliance with the settlement.


Mr. Scott. Thank you, Mr. Chairman. You have been very gracious.


Chairman Fawell. I thank you.

Well, I think, Mr. Igasaki, we are having all these conferences, so we can discuss the matter a bit more. But I am a bit concerned that mediation could be very limited here. And I think it is awfully, awfully important that we make it clear that if the employer and employee do want to give a go towards mediation, then they ought to be able to do so. And in some of the more highly publicized cases, it might be very interesting to see what a mediator who could best represent the EEOC or an employer or employee might say, especially in some cases where there is not a discrimination finding based on statistical evidence which has necessitated an employer paying a massive amount of money while he is fighting the Treasury of the United States.

So, some of these cases I understand how EEOC would become fixed on a certain purpose of what they wanted to achieve. I know when you try cases and get involved sometimes with animosities even, but I think we have got to make sure we are way above that.

So I am concerned. I think my colleagues would be concerned, too, about any limitations that when we passed the 1991 Civil Rights Act, we emphasized using this tool. It has never been used. And as long as it is voluntary, as long as the parties have indicated that is what they want to do, I think it is something we should be looking at.

But, at any rate, this has been a very good hearing as far as I am concerned. I think all of us would say we have all learned something. I think, basically, we are all still together with the idea that this increase should be given, but a little bit differences of opinion in regard to some aspects of the targeting.

I am very, very enthused about, though, what we can do about the intake and investigation process. There are all kinds of new and exiting ideas. We didn't even get to talk about things how, according to the testimony of the Fair Employment Practices, the States can do this much cheaper and faster on the same criteria, according to some of the testimony that has been given to us. Why can the State do it better than the EEOC and for less money, and so forth and so on? So perhaps we can have some written testimony from the EEOC on that.

So there are questions we still have, but at least I am convinced a lot as a result of this hearing, and I am sure that we will be communicating.

Any of you who do feel that you would like to give us some more of your comments, please feel free to do so. Your full statements will go into the record. But if you want to add to that, please feel free to immediately add some comments that might be in response to some of the questions that haven't been fully answered today.

Thank you very much. I do appreciate all of you taking your valuable time to be here. The meeting is adjourned.

[Whereupon, at 1:15 p.m., the subcommittee was adjourned.]