September 2, 2020
Written By: James M. Green
It’s that time of year again – case closure season – which runs from mid to late August through the end of September. The U.S. Equal Employment Opportunity Commission (“EEOC”) will be making its last-minute push to close as many cases as possible. Investigators – feeling the pressure of supervisors – are seemingly allowed to stalk and kill cases with impunity.
It happens around this time every single year. When I was an EEO Investigator with EEOC from 2009 – 2013, investigators were under immense pressure to close cases by September 30th. At that time, an Enforcement Manager (who has since retired), would shamelessly go door-to-door like a security system salesman and essentially beg investigators for closures. She would rummage through files on investigators’ desks, take and review files on her own, and constantly challenge investigators’ decisions to keep cases open. Eradicating workplace discrimination took a backseat to EEOC’s primary purpose in life – killing cases.
EEOC’s Current Top Priority: Mediation
Since I left, things have gotten worse. There has been a major shift in priorities in recent years. In 2013, the main focus was identifying cases suitable for litigation, especially those that involved a trendy topic or which included a large class of victims. The Commission created systemic investigator positions and teams whose sole responsibility was investigating systemic discrimination by massive corporations that expanded nationwide. Litigation was EEOC’s number one priority.
The most recently appointed (and corporate-friendly) EEOC Chair made it clear that priorities have changed. Litigation is now EEOC’s lowest priority. Currently, the Commission’s highest priority is mediation. Why? Because mediation results in the successful resolution of approximately 80% – 90% of all mediated cases. Although a fan of mediation, it’s rather unfortunate to see an important Civil Rights agency like EEOC focus primarily on the early resolution of cases.
Ignoring Procedures to Meet Closure Goals
Making matters even worse, EEOC is willing to ignore its own Priority Charge Handling Procedures to hit case closure goals. For example, our office recently received case closure notices in three separate cases where EEOC literally did no work.
Although EEOC’s own internal policies and procedures mandate Pre-Determination Interviews (“PDI’s”) of all Charging Parties before closing cases, I received the closure notices without any effort to interview my clients. EEOC did not allow my client an opportunity to participate in mediation. EEOC did not ask the company to respond to the charge. It simply closed the cases and never looked back.
EEOC Charges in September
Unless you need to beat the statute of limitations, we recommend you avoid filing charges in the month of September. Supervisors and investigators will be looking for closures, and the first place they look is at new cases walking in the door. If at all possible, hold off until October 1st to file any new EEOC charges.
If you must file a charge in September, we recommend you preserve the statute of limitations by having EEOC file an “unperfected” charge. An unperfected charge allows you to preserve the statute of limitations, while also making sure the charge isn’t caught up in case closure season. After October 1st, you can wrap everything up with an interview and sign a perfected charge.
Don’t Blame Investigators
Investigators have a very challenging job, especially with current staffing levels. They are doing everything they can to manage an unmanageable caseload. In many cases, they are often flooded with aggressive or annoying phone calls from parties on both sides seeking updates, making demands, and threatening phone calls to managers or even members of Congress.
Likewise, managers and supervisors are doing what they can to keep up. For all of them, at least the many of them that I know or have worked with, their hearts are in the right place and they really want to enforce the law and do the right thing. Unfortunately, it’s an impossible task.
What You Should Do
The sad truth is that you cannot rely on EEOC. You should not sit around and wait for EEOC to make a decision in your favor. You should seek an attorney right away, and you should seek an attorney who will be there ready to work for you well before you receive your Notice of Right to Sue from EEOC.