affect the abilities of both the agency and employers to fulfill the objectives of the nation's equal employment laws. The following comments are made both in recognition of EEOC's accomplishments and the continuing need to improve the substance and enforcement of equal employment opportunity laws. Reorganization Plan No. 1 as Implemented The attempt, through Executive Order 12067, to provide a more unified and coherent structure to combat job discrimination by authorizing EEOC to develop uniform standards, guidelines, policies and procedures among the various federal agencies is a significant step forward. Although it is too early to evaluate EEOC's performance under the Executive Order, it clearly provides an opportunity to eliminate the duplication, inconsistency and confusion that have characterized the federal equal employment effort in the past. The possibility of successful use of the Order will be enhanced if EEOC restricts its role to coordinating, rather than directing, other Federal agencies with equal employment enforcement responsibilities. By doing so, EEOC will not only satisfy the intent of Congress, but in addition, benefit from the experience of agencies with expertise in areas outside its primary responsibilities.1/ In the event agreement between agencies as to certain policies or procedures cannot be reached despite "good faith efforts, resolution of disputes is entrusted to the Executive Office of the President. This should ensure that the wide range of equal employment objectives are reconciled from the broadest and most objective perspective. 1. In its final form, Executive Order 12067 follows closely As "...the plan assigns to the EEOC the function There is one concern that we hope EEOC will address upon the transfer of equal pay and age discrimination functions from the Department of Labor. It is essential that recognition be given to the difference in procedural provisions under the Equal Pay and Age Discrimination Acts and comparable provisions of Title VII. We urge that any modification of non-statutory procedures, policies or regulations under the Equal Pay and Age Discrimination Acts, or any clarification of ambiguities as to those matters, be published for public comment prior to adoption. The EEOC's Rapid Charge Processing System From the outset EEAC has supported EEOC's efforts to streamline, simplify and improve its procedures for processing employment discrimination charges. The rapid charge processing system has already demonstrated that it is a major improvement in such procedures. By emphasizing the screening function of the intake process, as well as generally regarding all charges as narrow in scope, the Commission has greatly enhanced the possibility of earlier settlements. Similarly, notification of a respondent employer within 10 days of precisely what is involved in the charge of discrimination is a much needed correction of past policy. Also, the fact-finding conference has been a useful tool in resolving cases. The initial success of the new charge processing system, as evidenced in Chair Norton's testimony before this Committee, has helped establish a more credible relationship between the EEOC and both employers and employees. Although the Commission's revised case processing system has been criticized by some groups for disregarding class action suits and investigations of systemic discrimination, such compliants ignore the importance of rapid resolution of new charges and elimination of the case backlog. 2/ By demonstrating its administrative capability in fairly and efficiently resolving both old and new complaints, the EEOC has better served the interest of the individuals it was created to serve. Implicit in its approach in this area is the recognition that neither EEOC nor any combination of government agencies can monitor all personnel transactions. The rapid case handling procedures encourage voluntary compliance and have thus stimulated employer acceptance of the transfer of coordinating responsibilities to EEOC. 2. F.Supp. In Hall v. EEOC, a right of action against the EEOC, the court recognized EEOC's New Standards on Systemic Much criticism has been leveled at the Commission for failing to allocate more of its resources and efforts to systemic discrimination. However, in her testimony before this Committee, Chair Norton indicated that the EEOC shortly will shift its concentration to systemic discrimination cases as soon as it is administratively possible to do so. As part of this new emphasis, the Commission, on March 13, 1978, published six criteria to be used in the initial screening of systemic targets. We are concerned about both the change in priorities and the six criteria. We recognize the theoretical attraction for channeling a major portion of EEOC's funds into systemic discrimination cases. Arguably this policy would conserve agency resources by compelling compliance by the largest companies. However, experience under the "track system," which seems to differ little from the new guidelines with respect to criteria for selection of target companies, demonstrates that the policy does not work as well in practice as it does in theory. The "track" target companies tend to be those in the forefront in eliminating employment discrimination. They have done so as a matter of sound business policy rather than because of the coercive effect of the "track" cases, only one of which has resulted in any visible remedial result even though pending for several years at enormous cost to both the government and the companies. Broad class actions are very difficult to settle and take years to litigate. When claims of individual charging parties in need of immediate relief are subordinated to such actions, it is questionable whether the intent of Congress in enacting Title VII is being carried out. Experience demonstrates that law enforcement authorities must have a degree of discretion in prosecuting offenses but it is possible that undue emphasis on systemic cases may well be an abuse of that discretion. This will be especially true if EEOC in its efforts to emphasize systemic discrimination cases, neglects its new case processing systems and thereby prejudices the claims of individual complainants. As you may be aware, the systemic discrimination guidelines to which Chair Norton made reference were drafted for "internal guidance" only, and therefore were not issued for public comment prior to dissemination throughout EEOC and their release to the public. The importance of public assistance in the formulation of governmental policy cannot be overemphasized. We feel that if EEOC had elicited comments prior to adopting the guidelines, some of the problems discussed below might have been avoided.3/ Our main substantive criticism is that, overall, the guidelines fail to establish meaningful standards which can be applied by EEOC personnel or employers to determine whether specific employment practices qualify as systemic. Taken in their entirety, the standards also seem to provide little guidance for isolating distinguishing characteristics of target employers. Their full breadth is probably most accurately portrayed in the statement preceeding the standards which states (at pp. 1-2): These standards do not foreclose the We are also concerned because the guidelines make no allowance, and thus provide no incentive, for the many employers currently engaged in bona fide efforts to modify practices which may be vulnerable to systemic discrimination charges. As the Commission well knows, systemic employment patterns can rarely be altered instantaneously. This is particularly true for the large employers who are most likely to become targets under the new guidelines. If voluntary compliance is to remain the preferred method of Title VII enforcement, it seems reasonable that some recognition should be given in the application of the guidelines to those businesses which are making goodfaith efforts to comply, especially where significant improvements can be demonstrated.47 Proposed EEOC Revisions of Recordkeeping In addition to its comments on the EEOC's new procedures and authority under Executive Order 12067, EEAC also wishes to 3. 4. This is expressly recognized by Executive Order 12044, See, e.g., EEOC v. duPont Co., 16 FEP Cases 847, 880 express its concern about some aspects of the Commission's proposed revisions of its recordkeeping regulations. If adopted as proposed, these regulations would seriously effect EEOC's ability to execute/ properly its responsibilities and unnecessarily burden employers. Present EEOC regulations (Section 1602.14) require that personnel or employment records made or kept by an employer "shall be kept for a period of six months from the date of the making of the record or the personnel action involved, whichever occurs later."6/ Records of involuntary termination of an employee are to be kept for a period of six months from the date of termination. Under the proposed amendments, the requirements of Section 1602.14 would be expanded significantly: (a) (b) (c) Every employer subject to the regulations would Such employer would have to retain for two years The employer would have to keep a chronological These proposed changes would quadruple the amount of records which employers must retain without any demonstrable justification that can be related to the Committee's mandate to enforce Title VII.7/ 5. 6. 7. 43 F.R. 32280. The Commission's authority to require the keeping of records is limited to that set out in Section 709 (c) of Title VII. It is also questionable whether the EEOC has the authority to expand its recordkeeping requirements under Title VII. Title VII and its legislative history make clear that Congress placed rigid limits on the authority of the Commission to require employers and other regulated entities to keep business records. Indeed, it appears that EEOC's authority in this regard is even more restricted than its general limited authority to issue procedural regulations under Section 713 (a). See e.g., the comments of Representative Goodell describing the Timitations on the EEOC's recordkeeping authority. Legislative History of Titles VII and XI of Civil Rights Act of 1964 (EEOC), p. 3360 (House Debate 2-10-64, pp. 2708-27151). |