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For workers alleging discrimination, a convoluted bureaucracy awaits

Employees who bring workplace discrimination charges to the EEOC have to navigate an organization that is chronically understaffed and underfunded.

For workers alleging discrimination, a convoluted bureaucracy awaits
[Source photo: Oleg Elkov/iStock]
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For the better part of 2019, Lisa Bowman had sounded the alarm on a male colleague’s pattern of sexual harassment. At the time, Bowman was the head of marketing at nonprofit giant United Way Worldwide, which topped Forbes’s most recent list of the largest charities in the country. Bowman says she tolerated inappropriate comments from her colleague for months, but it wasn’t until early 2019 that she reported him to HR—first on behalf of her direct reports, and then because of a personal encounter that she said “crossed the line.”

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United Way had issued clear guidance on how senior employees were supposed to handle allegations of harassment, discrimination, or retaliation—so much so that failing to report such an incident could be grounds for termination. But Bowman claims that from the moment she lodged a complaint with HR, she had a target on her back: Her next performance review was conspicuously less positive than past reviews, and some of her employees were quietly moved into roles on the team helmed by the very colleague Bowman had flagged to HR. Bowman was allegedly also pressured by then-CEO Brian Gallagher to oust a high-performing subordinate who had also complained to HR about the male colleague in question. (Bowman refused to do so.)

In January 2020, Bowman says she was abruptly let go by Gallagher, who claimed a new hire would be his “top marketing guy” going forward,” rendering her role redundant. After a futile attempt to secure a severance package that she felt was commensurate with her senior position at the company, Bowman walked away from the negotiations and filed a complaint with the Equal Employment Opportunity Commission (EEOC).

She later went public with her allegations in a HuffPost report, which also documented other charges of harassment and retaliation at the organization. (In a statement to Fast Company, a United Way spokesperson pointed to an investigation—conducted by a law firm hired by United Way and overseen by its boards—which found that “management appropriately handled the review, treatment, processing, and inquiry of the complaints of the three employees cited in news articles. There was no evidence of retaliation against these employees; and the employment decisions were based on legitimate and non-discriminatory reasons.”)

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Bowman turned to the EEOC in March 2020. After nearly 18 months and more than $50,000 in legal fees, Bowman is no closer to a resolution—or any kind of justice. “It is a process that lets the person down,” she told Fast Company. “I’ve been stuck in this for a year and half with no progress.” After filing her complaint with the EEOC, Bowman had gotten no response until December 2020, when she reached out herself and finally got ahold of the investigator assigned to her case. It turned out he was still processing cases from two years prior.

As the federal watchdog for workplace discrimination, the EEOC is typically the first line of defense for employees like Bowman alleging harassment or retaliation at the hands of their employers. A worker might seek out the EEOC to report a wide range of allegations, from race and sex discrimination to an employer refusing reasonable accommodations for a disability or pregnancy. In theory, the agency is not just a stepping stone for most individuals considering legal action; the EEOC can also be a powerful deterrent and tool for holding employers accountable. When Congress empowered the EEOC to litigate cases starting in 1972—eight years after it was created—the goal was to transform it from what many called a “toothless tiger” into an enforcement agency that could command the attention of employers. After the Americans with Disabilities Act (ADA) was passed, for example, the EEOC filed hundreds of lawsuits that helped shape how employers should interpret the ADA.

But the reality is that filing a charge with the EEOC can be a complicated and frequently futile undertaking. The process can take different forms depending on how the EEOC approaches a case and whether a worker wants to sue, but it typically begins with an inquiry and appointment for an initial interview, after which a worker can move forward with filing an official charge of discrimination. From there, the process can unfold in any number of ways: If the EEOC determines that a case is unlikely to result in a “cause determination”—agency jargon for clear evidence of discrimination—then it may be dismissed outright. That means the onus falls on the worker to take on the burden of legal action, financially and otherwise—leaving a worker who can’t afford a lawyer with few options.

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But if the EEOC believes the case has merit, or wants more information before making a call, the next step is typically mediation or a request for further details from the employer. At that point, the investigation can proceed in a few different ways: Rather than waiting on the EEOC, workers who do have legal representation may request a right to sue letter and move forward with a lawsuit on their own. When former Google employee Chelsey Glasson decided to sue the tech giant over allegations of pregnancy discrimination, it was in part because Google was unwilling to consider a settlement. But her lawyers also knew the EEOC investigation into her claims could take months or even years to conclude. Bowman, too, could ask the EEOC to issue a right to sue letter rather than waiting for the agency to complete a full investigation of her case. But she’s optimistic that the EEOC will find cause, which would strengthen her case if she files a lawsuit.

Bowman’s experience with the EEOC, however, exemplifies a sobering reality: As of 2020, the agency is more understaffed than it has been in decades, and it’s reeling from changes that were introduced under the Trump administration. In 1980, the EEOC had a staff of 3,390; by last year, that number had been slashed by more than 40%, leaving its workforce at just 1,939 employees. After eight years of almost no change in the EEOC’s budget, Congress finally approved a $15 million increase in 2018—catalyzed in no small part by the #MeToo movement—and another bump in 2020. Still, when adjusted for inflation, the EEOC’s budget last year was smaller than its budget 40 years prior.

“The EEOC has always faced challenges,” says Cathy Ventrell-Monsees, who was a senior advisor to three former EEOC chairs. “Not enough budget. Not enough staff. An overwhelming number of charges. The system and structures they put in place were really not meant to investigate and resolve the majority of charges, in part because of the burden of the volume of charges.”

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Even lawyers find the process difficult to navigate, and many push to obtain a right to sue letter from the EEOC as soon as possible, so they can take matters into their own hands. “It’s frustrating, if I were to describe the process from the perspective of a lawyer and the clients I represent,” says employment lawyer Gary Phelan, who has guided many clients through the EEOC process. “There’s an old adage that ‘justice delayed is justice denied,’ and boy, is justice being delayed at the EEOC.”

A HISTORY OF LIMITED RESOURCES

The EEOC has faced a staggering backlog of cases for decades, virtually since its inception. In the ’90s, the agency introduced a triage system to try to mitigate the issue. EEOC staffers began to dismiss cases after the initial charge filing if they didn’t seem to have merit, rather than going through the motions of requesting more information for every case that came across their desks. But starting around 2017, according to an investigator at the EEOC who asked to remain anonymous, a change in guidance put new pressure on staffers to classify more cases as low priority and dismiss them outright—in part by limiting the number of cases they could have open at any given time. “We’ve always had staffing issues,” the investigator said. “But we had the ability to say, ‘hey, this is still a cause case.'”

“There is no cap on the number of older investigations,” EEOC spokesperson James Ryan said in a statement to Fast Company. “The EEOC has been able to make significant progress managing our pending workload of charges through a focus on inventory reduction strategies and priority charge handling procedures, technological enhancements, and front-line staff hired in fiscal years 2018 through 2020.”

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With the new protocol, however, things changed, and the emphasis seemed to shift to closing cases: In 2018, about 30% of the EEOC’s total caseload were categorized as low priority, according to internal data obtained by the Center for Public Integrity. Barely 13% of charges closed in 2018 reportedly led to a settlement or other restitution for the workers in question, a notable decrease from 18% 10 years prior. The House Appropriations Committee has, in recent years, called for greater scrutiny of the EEOC’s triage system, requesting documentation of “any formal or informal quotas.”

“More cases were getting a notice of dismissal with a right to sue following intake,” says Rachel Shonfield, president of the National Council of EEOC Locals No. 216, the union representing EEOC employees. “That means that the person has to go find an attorney—and that’s daunting or expensive. The union has been against that and continues to press the need to hire people [and] have enough resources to actually work the cases.”

Ryan said there was “no emphasis on dismissing charges without adequate investigation under these procedures. Rather, the EEOC’s priority charge handling procedures, including effective pre-charge counseling, ensure that individuals make informed decisions about whether to file a charge of discrimination and allows the EEOC to better understand the charge and strategically use our resources.”

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Another source of frustration for workers was the EEOC’s intake system, which allowed them to file an inquiry online but made it almost impossible to schedule an actual appointment with the agency. If an appointment wasn’t scheduled within 90 days, the inquiry would automatically be closed. “Think about that: You’re an employee and you just faced some discrimination, whether you lost your job or were harassed,” Ventrell-Monsees says. “You’re traumatized in that moment, and you seek help. You do the inquiry, and it says now fill out an appointment. And it’s blocked out, no availability for months out.”

“We recognize that appointments are frequently booked in advance,” Ryan said. “As the agency continues to hire and onboard new investigators through the end of this fiscal year, we expect to continue to add appointments to calendars in offices where there are shortages and better meet the needs of the public.”

Since 2018, the EEOC has actually received fewer charge filings than it did 14 years ago—which Ventrell-Monsees believes is no coincidence. “I don’t think anyone would believe there’s less discrimination in 2020,” she says. “I believe that one of the reasons for the decline in charge filings is that the EEOC’s online system is too cumbersome. Instead of making it easier to file charges, the EEOC has imposed layers of more process. That could be changed. The EEOC could allow lawyers to file charges online; they could allow charging parties to file charges online.”

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Under Janet Dhillon—who was Donald Trump’s pick for EEOC chair and stepped into the role in 2019—some of these existing shortcomings seem to have been exacerbated, according to a recent report by The Nation. (Dhillon has now been replaced as EEOC chair by Charlotte Burrows, but she will remain one of five commissioners at the EEOC until the end of her term in July 2022.) Despite a slight budget increase in 2018 and 2020, Dhillon reportedly made little investment in hiring. “Each of the four years of the Trump administration, the White House proposed cuts to the EEOC budget,” Shonfield says. “Even though we avoided these budget cuts, we were still bleeding staff.”

Many of the decisions Dhillon made as chair—introducing multiple pilot programs with little input from even fellow commissioners, for example—indicated a reluctance to litigate, according to The Nation. Dhillon even altered how the agency determines when to litigate cases: EEOC lawyers and general counsel usually had the authority to make that call on their own, but Dhillon insisted that every potential case be taken to a commission vote. The EEOC only pursues litigation in a handful of cases, but even so, it was a much less frequent occurrence in 2020 than in years prior; the agency only filed 93 cases (as compared to 144 and 199 in 2019 and 2018, respectively).

But it’s not just bureaucratic challenges that have ensnared the EEOC. In a twist of irony, the very agency tasked with rooting out workplace discrimination is facing its own such allegations: A USA Today investigation earlier this year documented claims of discrimination on the basis of race, disability, and sexual orientation. Several allegations indicate that the purported atmosphere at the EEOC didn’t just make a difficult job even harder for staffers who were the targets of discrimination; it reportedly also influenced which cases were prioritized for deeper investigation.

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Some former EEOC staffers claimed they were discouraged from even investigating discrimination complaints from Black workers—because those cases were so unlikely to reach a satisfactory resolution. “We take any allegation of workplace misconduct seriously and will investigate each one thoroughly and take disciplinary actions when appropriate,” Burrows said in a statement provided by the EEOC.

As for the agency’s approach to complaints from Black workers, Ryan said the EEOC “takes all charges of race discrimination against Black/African American employees seriously and carefully considers each case.”

The future of the EEOC

An agency like the EEOC is ostensibly designed to protect the most vulnerable workers—those who can’t afford to hire a lawyer or pursue legal action without its assistance. “We exist to be able to investigate and potentially find relief for people who are not in a financial place to put up thousands for an attorney up front,” the EEOC investigator says. “We get the attorney drafted charges where people are represented. And then we get the cases where somebody comes in off the street and says, ‘the worst thing in life has happened to me.'” 

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So what recourse do those workers have if the EEOC can’t effectively support them in its current state—if they can’t even secure an appointment, let alone be guaranteed a thorough investigation? The EEOC process is taxing even for people like Bowman, who have some measure of financial stability. “I didn’t realize how long this process was going to take,” she says. “I didn’t realize how expensive it was going to be. [And] I don’t think I could have done it without an attorney to help connect the dots.” And yet, despite having legal representation, Bowman remains stuck: Until the EEOC completes its initial investigation, she can’t move forward with a lawsuit or other legal action.

The new administration might offer some reprieve for workers who get caught in the bureaucratic morass of the EEOC process. President Biden has already nixed a conciliation rule imposed by Trump that would have been a burden on both EEOC employees and victims of discrimination, by stretching out the investigation timeline even more. And the shift in messaging with Burrows supplanting Dhillon as EEOC chair has more of an impact than it might seem, according to Ventrell-Monsees. “Her setting the tone is important for the investigators and the field staff,” she says. “That actually goes quite a long way with them.”

Shonfield echoes this sentiment, adding that she believes the new leadership at the EEOC is keen on eventually moving away from the emphasis on closing cases with little investigation. “It’s my understanding that current leadership wants to see things change, but the problem persists on the ground,” she says.

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Ventrell-Monsees is also hopeful that the EEOC will tackle larger, systemic cases of discrimination, where she believes the agency can have more of an impact. “I think the EEOC has been more effective in attacking systemic discrimination,” she says, citing a sex discrimination lawsuit that the agency brought against Mavis Discount Tire, a New York-based tire retailer that had consistently declined to hire women into field positions across its stores. “The systemic investigations and resolutions, as well as the lawsuits, benefit multiple employees within a company, but employers also pay more attention to those cases.”

The EEOC union has already made several recommendations over the years to create a dedicated intake unit, which would free up investigators to focus on the rest of the process and likely make it a smoother experience for workers, as well. “We should not be looked at just as a checklist to get into the court system,” the EEOC investigator says. “We became an administrative process. We need to go back to being an administrative remedy.”

If one of the greatest challenges facing the EEOC is chronic understaffing, the agency might also be well served by looking at how private businesses are courting employees amid the pandemic. Many EEOC employees have repeated a refrain that is now familiar to employers across the country: They want to continue working from home, or at least have the option to do so. Shonfield and others at the union also believe it could be a key to both recruiting and retaining staff.

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“Not only does the EEOC and the government as employer need to compete with the private sector, but more and more federal agencies are announcing that they will continue to allow for expanded telework for certain duties or positions,”  says Shonfield. “If the EEOC doesn’t meet the moment, then it’s going to have a problem with recruitment and retention when we already have a staffing problem.”

Ryan said the EEOC was not planning to return to offices any earlier than October, and not without providing “adequate notice” to employees.

In the meantime, however, people like Bowman are left to pick up the pieces while they await a verdict. Since being fired in early 2020, Bowman hasn’t been able to find a new job. “I had a job offer get yanked at the last minute because of the fact that I had gone public about my situation,” she says. “I have no settlement. No unemployment or benefits. And there’s no accountability for [United Way] and what they’ve done to me.”

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Though United Way did solicit an investigation into Bowman’s allegations, along with the other claims brought by her former colleagues, it seemed to review only a fraction of the relevant documentation—and Bowman says she wasn’t even contacted over the course of the investigation. 

“In my mind, the EEOC is actually the independent third party that will examine what was submitted from both sides and has no vested interest in either side,” she says. “And because my employer went public with the fact that they conducted an internal investigation and found no wrongdoing, that positioned me as a liar—and I believe it was defamatory. So I am hopeful that the right to sue with cause letter will in fact show the reality of the situation.”

About the author

Pavithra Mohan is a staff writer for Fast Company.

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