Looking back with EEOC’s former chairman

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The Equal Employment Opportunity Commission is undergoing a change in leadership and makeup as the Biden administration takes over. Federal Drive with Tom Temin checked in with the former chairman, and a commissioner through 2022, Janet Dhillon.

Interview transcript:

Tom Temin: Ms. Dhillon, good to have you on.

Janet Dhillon: Thank you for having me.

Tom Temin: First of all, my question is, I asked this a lot of boards and panels like this, you have a commission that is made up of Democratically appointed and Republican appointed people, is everything you do partisan or do you like talk to each other and most of the work you tend to just be routine and not everybody’s at each other’s throats?

Janet Dhillon: We are certainly not at each other’s throats. We do talk to one another on a regular basis. Obviously, we bring different experiences and perspectives to our jobs. that’s by design in any kind of commission or board. But we agree far more than we disagree. In fact, I was looking back recently over votes that we have taken and made publicly available since November of 2019, and over two thirds of the time we vote unanimously. So I think that gives you a good indication that we agree far more often than we disagree.

Tom Temin: It’s fair to say that at this point in history, how to apply civil rights laws and regulations is a pretty well established, I don’t know, science or art. Correct?

Janet Dhillon: I think that’s fair to say. The statutes that we enforce went into effect beginning in 1964. So there’s a good body of case law, as well and a good history of regulatory actions. So I think that we’ve been able to clearly communicate our expectations to the employer community.

Tom Temin: And I wanted to ask you about a recent rules that became final from the EEOC, and that is the conciliation rule. And in reading it, it was really extraordinary to me that it’s something that was actually embedded in the original legislation back in the 1960s. The idea of a preference for conciliation, and now that you seem to be bringing that whole idea up to date. Tell us what’s in there.

Janet Dhillon: Well, the commission recently took action to update the procedures around how we conduct conciliation. The last time the procedures were addressed substantively was in 1977. As you know, the EEOC is required by statute to attempt to conciliate or resolve claims of discrimination in those situations where the commission has found reasonable cause to believe that discrimination has occurred. But in looking at our conciliation track record, we discovered that we weren’t being as successful as at least I hoped we could be. In about a third of the cases, employers who received a reasonable cause finding simply refuse to engage and participate in conciliation. And in more than half of the cases where we actually did conciliation, we weren’t successful. And that was a concern, because as you noted, Congress requires the EEOC to conciliate in these cases. So the purpose of the new rule was to attempt to improve the effectiveness of the conciliation process by bringing a bit more structure and predictability into the process. So the rule lays out the type of information that the EEOC will share with an employer before going into the conciliation process, and also requires that the EEOC give employers at least 14 days to respond to a conciliation proposal. And the hope is that providing more structure and more predictability will lead to an improvement or increase in the number of cases that we’re able to successfully resolve through conciliation.

Tom Temin: And does this conciliation use have the potential perhaps to maybe lighten the load on the commission itself if more cases can get resolved before they have to be decided by the final commission?

Janet Dhillon: Well, that is certainly the hope. But I think what certainly was driving my interest in this issue is that if we can resolve cases by conciliation that gets relief to the harmed parties sooner, and it also gives the employer notice that they’ve made a mistake and that they need to correct maybe a practice or a policy so that it doesn’t discriminate against another employee down the road.

Tom Temin: And while you were in the chairs chair, you pointed to some transparency measures that the EEOC made. Describe some of those for us.

Janet Dhillon: increasing transparency into the commission’s operations was a high priority of mine when I became chair. So I took a number of steps. First, as I indicated earlier, I instituted the practice of posting votes that the commission took. That’s the first time in the agency’s history that this happened. And so now, everyone month we post to our website the matters on which the commission voted and how each commissioner voted on those matters. And I thought that that was important transparency into the operation of the commission. I also published my priorities for 2020. And I did that because I thought it was important both for the EEOC employees as well as the public to understand what I felt was important and what I wanted the agency to be focused on in the upcoming year. We took some other steps as well. And I say we because it was a collective effort. We created a searchable index, again, on our websites that will allow people to easily access sub-regulatory guidance and technical assistance documents that the agency has issued over the years. There’s a lot of valuable information contained in those documents and very practical guidance about employees rights and employers responsibilities. And I wanted to make sure that that information was easily accessible. We also published detailed explanations of two portions of the agency’s operations that I thought were perhaps not as clearly understood as they should be. One how our commission or charge process works, and then how our systemic litigation program and systemic investigation program works. I found I was getting a lot of questions about those two aspects of the commission’s operations. And then finally, in December, we launched a very exciting tool called EEOC Explore, which is an interactive data query and mapping tool. And it brings together the data that the EEOC collects from private employers, and it allows users to access this data and to compare data trends across a variety of categories. It really, I think, is a game changer in terms of the way that we make our data accessible to the public.

Tom Temin: And in looking at the data that the EEOC has generated as the commission, what are some of the trends you’ve noticed in the last few years with respect to the types of cases, the quality of the cases, that have been submitted? And what do you expect to see continuing in terms of trends?

Janet Dhillon: Well, I think in terms of trends, in terms of the kinds of charges that we’re receiving, we’re definitely seeing an increase in retaliation cases, which I think is very unfortunate. If you look back to 1997, for example, about 22% of the charges that we received contain some allegation of retaliation. We fast forward to fiscal year 2019, and that’s increased to almost 54%. So that’s a pretty stunning increase, and it’s troubling, and it’s something I think that the commission and all of the commissioners are very focused on.

Tom Temin: And what about the case loads and backlogs? What are the trends of those been for the operation of the commission itself, your own kind of docket?

Janet Dhillon: Well, the trends have been very interesting and a bit counterintuitive. So looking over the past four years during the Trump administration, we actually had an increase in the number of lawsuits that the EEOC filed and the amount of recovery to victims of discrimination through that litigation. So for example, over the past four years, the EEOC filed 620 what we call merit suits against employers. But interestingly, when compared to the prior four years of the Obama administration, during that four year period, they filed 492 suits. So actually, the pace of litigation increased in the Trump administration as to the recoveries generated by that litigation. So during the four years of the Trump administration we recovered $241 million for victims of discrimination through our litigation efforts, versus about $179 million during the preceding four years. I’m not sure people would have necessarily expected litigation program to grow, but it did. In addition, just looking at our most recent fiscal year, so fiscal year 2020, we’ve recovered over $535 million for victims of discrimination, which is the highest in the agency’s history. And of that $106 million was recovered through litigation in that single year, which is the highest since 2004. So we came off 2020 with some very strong results, delivering a lot of recovery to victims of discrimination.

Tom Temin: Janet Dhillon is a member of the Equal Employment Opportunity Commission, formerly the chair. Thanks so much for joining me.

Janet Dhillon: Thank you Tom for having me.

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