MALDEF specifically identified six basic functional responsibilities for evaluation of the federal agencies involved: Administration, Investigation, Compliance, Enforcement, Litigation, and Research. We continue to believe that these are the critical functions for this Committee to review regarding the EEOC's enforcement capability and the new reorganization authority. Administration The importance of the leadership function cannot be overemphasized. The EEOC now has its full complement of five Commissioners. However, we do not believe that the situation has changed significantly with respect to the lack of Hispanics in the highest levels of administration of the EEOC. This concern was expressed in the hearings before the Congress on the Reorganization plan by Mr. Raul Yzaguirre, National Director of the National Council of La Raza. The testimony presented showed that out of 111 positions GS-15 to 17, only 9 were filled by Hispanics. This situation must be changed if there is to be effective participation and support from the Hispanic communities. Investigation The authority of the EEOC to investigate charges of employment discrimination is the essential role performed by This has been recognized by the Courts and by the the agency. Congress. The Staff Report on Oversight Investigation of December 1976, specifically identified this role: Investigation Once a charge has been accepted for processing, it is then investigated to determine whether there is reasonable cause to believe that the alleged violation is true. The investigation is the heart of the compliance process; it is also the most time consuming aspect of compliance efforts and the greatest bottleneck in the processing of charges. In its recent survey of pre-1974 backlogged charges, EEOC found that over 60 percent of the charges were awaiting investigation. Although we are familiar with the general charge resolution success reported by the EEOC under the new rapid charge processing methods, we have not seen any information that demonstrates substantial improvement in the number and quality of investigations. We urge this Committee to secure and evaluate this information. The importance of the investigation It saves time, effort, and to the private bar is manifold. money for both the attorney and client. Without an investigation, the private party is forced to proceed through expensive litigation to determine whether the facts are there to support the case. We believe this can and should be done by the EEOC. We note that at least two suits were brought by private parties to secure investigations (one challenged dismissal of charges under the backlog procedures in effect). The suits were dismissed for failure to state a claim upon which relief could be granted, their importance to this Committee 20 is to re-emphasize the fact that the charging parties clearly understand the need for the investigation and the responsibility of the EEOC to provide one. Stewart v. EEOC, 17 EPD $8506 (N.D. Ill. 1978) and Hall v. EEOC, 17 EPD 18492 (N.D. Cal. 1978). Conciliation The emphasis by the EEOC on pre-investigation settlement is producing an impressive rise in the number of charges settled. We are concerned that negotiations without the charging party having the benefit of an investigation may deprive the charging party of relief to which they may be entitled. The problem is that the employer, all too often, negotiates from a position of strength with an internal investigation, while the charging party is without the benefit of any investigation. Consequently, the charging party can only rely on their personal knowledge or experience to evaluate a settlement offer. Systemic Unit The current emphasis by the EEOC on individual charges of discrimination was understood by most civil rights groups as important because it would enable the Commission to more effectively allocate resources and establish priorities. Those who favored a systemic approach to employment litigation were assured that the EEOC would establish a systemic charge processing system to bring Commission-initiated pattern and practice complaints, in conjunction with the new systemic units to be located in every district office. Our observation has been that this program is in serious disarray. It has neither achieved its organizational nor substantive aims. The most serious concern is that while the EEOC seeks to grapple with the administrative hurdles, the employment rights guaranteed by Title VII are being lost. The current practice in effect is to advise a charging party seeking to file a class action charge that no class action investigations are available and that unless a charge is an individual charge, the EEOC will issue a notice of right to sue. The result is a charging party has a right to sue, but no facts to support the charge. When an attorney is requested to evaluate such a situation, the result is obvious. We recommend that the EEOC take steps to maintain the Title VII rights of parties requesting systemic relief until the EEOC is able to evaluate requests for systemic relief. Litigation The grant of litigation authority to the EEOC in 1972 raised hopes that the enforcement of Title VII would reach greater levels of effectiveness. While there have been some successes, the litigation activity represented only 6.2 percent of the cases which failed conciliation in 1976. The integration of the attorneys into the district office organization may improve this situation, but the fact that individual charges are being emphasized discourages any broad scale results from this structural improvement. The Section 707 authority for pattern and practice In a suits under Title VII which was transfered from the Department of Justice to the EEOC in 1972 provides one alternative to the lengthy charge processing system of individual suits. letter to Chairman Hawkins dated January 26, 1976, the EEOC General Counsel indicated that this Section 707 authority had been delegated to the regional litigation centers. There were a number of pattern or practice Commissioners' charges filed (77), but the number processed into litigation is not known. MALDEF views the systemic approach to litigation to be of special concern to Hispanics because of the relatively smaller number of individual Title VII charges filed by Hispanics. This factor makes a systemic evaluation of charges appropriate to determine if the equal employment problems of Hispanics can be addressed through this approach. MALDEF urges this Committee to carefully evaluate the progress made in establishing a systemic program in the EEOC that will make effective use of the Section 707 authority of the EEOC. Summary While the EEOC has made continued progress in attempting to achieve internal reorganization and prepare for effective implementation of new authority, there is a growing concern |