The Equal Employment Opportunity Commission has approved a plan that will redeploy field office staff, reduce costs and decrease the number of district offices from 23 to 15. The plan -approved July 8 – is causing concern among employment lawyers across the country.

According to the agency, the “repositioning” plan will enhance its enforcement presence by reducing layers of management in the district and field offices and realigning staff members to front-line jobs. The agency also said the plan would not eliminate offices and reduce staff.

The purpose of the plan is to “operate more efficiently and more effectively serve the needs of the people who come to the EEOC,” according to an EEOC spokesperson. It involves “de-layering the management structure and shifting the staff to where we need it to investigate, mediate and litigate cases.”

But the plan has met with some internal opposition. One EEOC commissioner, Stuart Ishimaru – who voted against the plan – said he believes the changes will “decrease the EEOC’s presence in local communities [and] lead to inferior litigation.”

Employment attorneys are concerned the changes will make it more difficult to resolve EEOC matters because they expect some experienced attorneys with whom they have established relationships will have their position changed and no longer play a lead role in case resolution and litigation.

The EEOC announced the proposal to the public on May 10 and scheduled a May 16 commission meeting to deliberate and vote on the measure. After the meeting was announced, Democrats in Congress, members of the National Employment Lawyers Association, a plaintiffs’ group, and others wrote letters expressing their concerns about the proposal and the fact that public comment hadn’t been requested.

As the May 16 meeting was about to begin, EEOC Chair Cari M. Dominguez announced that it would be postponed to a later date. After a public forum and comment period, the commission approved the plan on July 8.
What the Proposal Says

Prior to the new plan, the EEOC was structured in four tiers of offices: district, field, area and local. Nearly half of the offices, 23 out of 51, are top tier district offices, which manage the other offices within their jurisdiction.

Under the restructuring plan, the number of district offices will be reduced from 23 to 15.

Eight district offices – Baltimore, Cleveland, Denver, Detroit, New Orleans, San Antonio, Seattle and Tampa, Fla. – will be reconfigured as field offices, one step lower in the hierarchy. A ninth field office that already exists in Washington, D.C. will remain.

All former district offices will report to the remaining 15 district offices.

The new structure maintains the 15 existing area offices and 14 local offices, with two new ones in Las Vegas and Mobile, Ala. According to the EEOC, the new locations were chosen due to an increasing volume of charge activity in those areas.

All current offices will remain open and all staff members will keep their jobs, the agency said.

According to the EEOC, the offices being “repositioned” were chosen based on workload.

“If a district office [has] the same workload as a local office, you have extra management staff,” the EEOC spokesperson said.

The spokesperson said that district offices reclassified as field offices will have fewer staffers maintaining management roles, but those individuals will stay at the same salary grade level.

For example, in a district office reclassified as a field office, the regional attorney will become a supervisory trial attorney, reporting to another district office, he said.

The agency claims the restructuring will also lead to:

• Long-term cost savings, including lower overhead due to a “flattened” management structure;

• More effective communication, due to fewer district office directors reporting to EEOC headquarters; and

• District directors and regional attorneys being responsible for larger areas and workloads, leading to greater leadership “commensurate with their executive rank.”

But lawyers complain that the EEOC’s method of choosing which offices to reclassify was flawed.

For example, Bloomfield Hills, Mich. attorney Kathy Bogas noted that different offices have different ways of deciding whether to pursue certain charges.

Washington, D.C. plaintiffs’ attorney David Cashdan, who practices with Kane & Seltzer, agreed.

“Case load may be down, but that doesn’t mean an office needs less staff,” he said, noting that an office might still have more charges it investigates.

In response to comments on the proposal, the EEOC made a few changes to the plan. For example, some counties will be moved to the jurisdiction of other EEOC offices. In addition, each state and local fair employment practice agency (FEPA) will have a relationship with only one EEOC district office for administration of its contact and review of cases.
EEOC Downgrade?

Many lawyers believe that the restructuring plan will lessen the effectiveness of the agency.

They consider the “repositioning” to be a “downgrade.”

EEOC Commissioner Ishimaru agreed.

“This [will] downgrade eight of our offices, causing them to lose district and regional attorneys,” he said.

Here’s a look at some concerns attorneys have about the plan:

• Realignment of districts will be unworkable.

The realignment of what states and parts of states fall under which district office’s jurisdiction has provoked a great deal of confusion and concern among plaintiffs’ attorneys.

In some instances, Hill said, the geographic distance between the district office and a field office it supervises could make litigation more difficult.

For example, “the Detroit office will now be under Indianapolis and litigation strategies are going to have to come out of Indianapolis. It is going to be difficult to get the approval from the district office in a different state,” she said. “It’s hard for me to see how this streamlines.”

Diane Soubly, a management lawyer in Bingham Farms, Mich., agreed.

“I fail to see how people in an office in Indianapolis are going to be the best people to determine whether a situation should march to litigation,” she said.

The fact that some of the changes cause states and parts of states to be represented by district offices outside of their federal circuit might also make the rearrangement more complicated.

Cashdan said, “It’s not beyond the capabilities of any attorney to know two circuits, but there’s a practical value in terms of efficiency and expertise of letting attorneys focus on one circuit.”

Lawyers also worry that moving EEOC people from one position to another could compromise investigations.

“They are saying nobody is going to lose their jobs, but what happens to people who don’t want to change jobs?” wondered Hill, a partner with Hill & Beasley. “What happens to people who may be offered a position as an investigator [on the front line] who don’t want to move or don’t feel they have the skill set to be an investigator?”

In general, Soubly, who practices with Vercruysse Murray & Calzone, complained it will be detrimental if strong EEOC attorneys are taken out of high level positions and don’t want to remain in a “diminished role.”

“We are [likely to lose] really good people that employers counsel have worked with throughout the country,” she predicted.

• Communicating about litigation will be more difficult.

Despite the agency’s contention, lawyers are afraid that the increased responsibility placed on attorneys in management roles will reduce the actual time spent fighting discrimination, especially in cases “the plaintiffs’ bar generally doesn’t have the resources to bring,” such as race or national origin discrimination cases, said Hill.

Bogas, who is a partner with Eisenberg & Bogas, added that communication about litigation will become more difficult if EEOC lawyers in one state are forced to represent claimants in another state, where they are less likely to have strong relationships with the employers.

“Contacts and rapport established with the biggest employers will be lost [in Michigan] when we no longer have a regional attorney,” she claimed.

Atlanta, Ga., management attorney Glenn Patton said this problem will make it more difficult for in-house counsel for businesses to resolve issues with EEOC lawyers.

For example, according to Bogas, “If there’s an issue, how can a regional attorney in Indiana call the general counsel of Ford Motor Company in Michigan to get it fixed before a big blowout problem exists,” when they don’t have a relationship with that attorney.

Soubly said this issue would have an impact on all employers, especially larger ones, including the biggest automakers.

• Will investigations change?

Attorneys question whether the new structure will leave enough manpower to allow complete investigation of claims. They say this is especially important because private attorneys rely heavily on the EEOC’s investigations.

“If we can’t rely on the EEOC to ferret out the weaker cases,” it will make the job of plaintiffs’ lawyers more difficult, said Hill.

This might also force employers to step up their discovery, said Soubly.

“What that will mean is it will drive up discovery costs, there won’t be early resolution of cases because there is not enough supervision, and with less management, investigators will do a less able job,” she said.

However, Patton, who practices with Alston & Bird, said that investigations of employers could be more intensive if the EEOC defers to state agencies for investigations more often.

“If the trend becomes that the EEOC is better organized and better able to coordinate filings and delegate more responsibility to state agencies that have more time to investigate, that could be a negative for employers,” Patton said.

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