New England Biz Law Update
With a new chair in office and a new general counsel recently taking the helm, the Equal Employment Opportunity Commission plans to pursue class actions, and to continue its restructuring plan and functioning as a “national law firm,” with district offices across the country coordinating work on cases as much as possible.
In a letter to her colleagues at the start of her term, Chairwoman Naomi C. Earp indicated that a “broad based outreach, business and community group partnerships and litigation as effective strategies” in an effort to make the best use of the “limited resources” of the Commission.
Here’s a detailed look at the agency’s major plans for 2007 and a status report on some ongoing EEOC issues:
Systemic initiative
Both Earp and the agency’s new general counsel, Ronald Cooper, have voiced their support for a major new “systemic initiative” that will focus on major class action litigation, including disparate treatment, disparate impact, and pattern and practice discrimination cases, according to Cynthia Pierre, the EEOC’s director of field management programs.
Washington, D.C. management attorney Barbara Berish Brown said she is already seeing the effects of the program in practice.
“We’re seeing a much more aggressive effort by a number of offices to broaden investigations that might have been single terminations in the past,” she said, adding that investigators might ask about terminations at multiple locations even if the complainants worked at only one or two offices of the company.
“Or, if two or three people worked in one department, they’ll make information requests about the whole facility,” said Brown, who practices with Paul Hastings.
As part of the systemic program, the EEOC plans to train a broader base of staff to handle class actions.
“Over the past decade, as our staff has shrunk, we have had fewer and fewer resources to devote to class litigation and investigation,” Pierre said. “The staff we had who were trained in this area were promoted up into management, leaving us with a dearth of [people] that have these skills.”
One key component of the program involves offices around the country working together on these cases.
Some plaintiffs’ employment lawyers question whether the agency will actually have enough funds to meet these goals, especially given the expensive and time-consuming nature of litigating large national class actions.
“The real issue is whether, when push comes to shove, they really will have the bodies in place in these various offices to pursue systemic cases, because it requires a substantial amount of person power to do these cases and a certain expertise,” said Washington, D.C. attorney David Cashdan, treasurer of the National Employment Lawyers Association, a plaintiffs’ group.
Atlanta attorney Janet Hill, immediate past president of NELA, noted that there are only two attorneys in the Atlanta office, and while it’s “a nice theory to say they could partner with other offices, that presumes the people in the other offices don’t already have enough to do.”
Restructuring
A year ago, the EEOC implemented a plan to redeploy field office staff, reduce costs and decrease the number of district offices.
This “repositioning” plan was intended to enhance the EEOC’s enforcement presence by reducing layers of management in the district and field offices and realigning staff members to front-line jobs.
The plan met with both internal and external opposition from those who feared it would reduce the number of experienced attorneys capable of handling the cases that come into district offices every day.
Agency staffers insist no positions were lost, and that any reduction in staff wasn’t attributable to the restructuring. They also claim the changes have allowed the agency to focus on claims in underserved areas, with new offices in Mobile, Ala., and Las Vegas.
“There has been a huge amount of attrition government-wide,” said EEOC spokesperson David Grinberg, “so it’s not just something we’re seeing here. There may be a bigger impact here because we’re a small agency, but it’s a big problem across agencies.”
Complaints about the district office changes still persist. In July 2006, Sen. Barbara Mikulski, D-Md., proposed, among other things, that the Baltimore office be restored. The EEOC budget for 2007 is still pending.
The next step in the process involves headquarters “repositioning,” which might involve reallocating some national headquarters positions to field offices.
Earp, who served as vice-chair of the Commission when the repositioning plan was approved, said in her letter to staff, “At this time, I plan to proceed with repositioning …. [and] … anticipate working with some members of the field realignment group and with headquarters employees to determine how best to proceed.”
In conjunction with this repositioning and the goal of working across offices on major cases, EEOC staff said the agency is responding to a public expectation that it should function like a “national law firm.”
“From the beginning, people have expected us to operate on a national law firm model, with a centralized plan at headquarters, instead of having 15 separate offices pursuing litigation in a vacuum,” said Justine Lisser, an attorney in the EEOC’s Office of Communications. She added that the agency hopes to build on the large law firm experience of its new general counsel, who practiced in the Washington office of Steptoe & Johnson for 34 years.
Race discrimination claims
Nearly every speech Earp has made since her term began has highlighted her desire to focus on race discrimination claims in the coming year.
In her opening letter, she said, “I plan to focus on race and color issues; specifically, enhancing the Commission’s efforts regarding race and color-based merit factor cases and cause findings. I anticipate that race and color issues will also arise in the context of the Commission’s renewed focus on systemic litigation.”
Cashdan noted that Earp has been voicing her surprise for quite some time that there haven’t been as many race charges as she would expect coming from certain offices.
