U.S. Commission on Civil Rights

Funding Federal Civil Rights Enforcement: 2000 and Beyond

Chapter 2

U.S. Equal Employment Opportunity Commission

Congress created the U.S. Equal Employment Opportunity Commission (EEOC) with the passage of the Civil Rights Act of 1964.[1] EEOC's jurisdiction covers all government employers, including federal, state, and local entities and their subunits; private employers; employment agencies; educational institutions; and labor organizations. Its enforcement responsibilities arise from the Equal Pay Act of 1963;[2] Title VII of the Civil Rights Act of 1964,[3] as amended by the Equal Employment Opportunity Act of 1972;[4] the Age Discrimination in Employment Act of 1967;[5] the Americans with Disabilities Act of 1990;[6] Section 504 of the Rehabilitation Act of 1973;[7] and the Civil Rights Act of 1991.[8]

ENFORCEMENT AUTHORITY

Originally, EEOC was authorized only to investigate and conciliate complaints of employment discrimination based on race, color, religion, sex, and national origin. If EEOC's conciliation efforts failed, the charging party was obligated to file a private suit to obtain relief. Later, the Equal Employment Opportunity Act of 1972 gave EEOC power to file suit in federal court. The 1972 amendments also authorized EEOC to commence pattern or practice suits against private employers. Further, the act lowered the coverage threshold under Title VII for employers and unions from 25 to 15 employees or members.

EEOC's responsibilities increased in the late 1970s, when enforcement authority for the Equal Pay Act of 1963 and the Age Discrimination in Employment Act of 1967 was transferred from the Department of Labor to EEOC. During that time, enforcement duties regarding the employment practices of the federal government also were transferred to EEOC from the former Civil Service Commission.[9]

In the 1990s, EEOC's responsibilities increased yet again with the passage of the Americans with Disabilities Act of 1990 (ADA) and the Civil Rights Act of 1991 (CRA of 1991). Title I of the ADA[10] took effect on July 26, 1992, and prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, fringe benefits, job training, and other terms, conditions, and privileges of employment.[11] In addition to the added responsibility of investigating complaints under the ADA, the law also requires EEOC to conduct technical assistance, outreach, and education for individuals and employers affected by the law.

The CRA of 1991 expanded the coverage and relief of Title VII and overturned several Supreme Court decisions that had limited the scope of federal laws addressing employment discrimination. The CRA of 1991 broadened the jurisdiction of EEOC by applying equal employment opportunity coverage to persons employed extraterritorially and to persons serving on the staffs of or appointed by state and local elected officials, as well as Senate and presidential staff. The law also made clear that the EEOC administrative process is the means for resolving such claims.[12] The act also amended Title VII to expand the relief available to complainants, allowing for the recovery of compensatory and punitive damages. The CRA of 1991 also requires EEOC to carry out educational and outreach activities and to establish a Technical Assistance Training Institute.

Under Executive Order 12067 EEOC has responsibility for developing and implementing policies to maximize effort, promote efficiency, and eliminate conflict and duplication among the various agencies in the federal government responsible for implementation and enforcement of EEOC legislation. Further, EEOC has the authority to issue, amend, or rescind suitable procedural regulations to implement Title VII.[13]

Finally, EEOC is responsible for the annual review and approval of the equal employment opportunity plans, including affirmative employment components, of each department and agency of the federal government.[14] EEOC reviews and evaluates the operations of all agency equal employment opportunity programs and provides guidance to such agencies.[15]

ENFORCEMENT PROCEDURES

EEOC enforces federal prohibitions against employment discrimination through investigation, conciliation, mediation, litigation, outreach, education, and technical assistance. EEOC's Office of Field Programs oversees the field offices that carry out most of EEOC's enforcement activities. The field offices receive and investigate complaints of discrimination and issue determinations of cause or no cause. If EEOC determines that there is reasonable cause to believe that discrimination has occurred, it will encourage the employer to voluntarily cease the unlawful employment practice through conciliation or other means.[16] If EEOC's efforts to obtain voluntary compliance fail, it may bring a civil action against any respondent named in a charge,[17] and if successful, may seek a variety of remedies, including hiring, promotion, reinstatement, benefit restoration, backpay, front pay, damages, and other affirmative relief.

EEOC's Office of Federal Operations enforces civil rights laws covering federal sector employment. After discrimination complaints are investigated initially within each agency's internal EEO process, complainants can elect to have a hearing before an EEOC administrative judge. EEOC handles any appeals from final determinations of the federal agencies upon request of the complainant.

BUDGET ANALYSIS

Budgets

The passage of new legislation and the expansion of existing civil rights statutes over the last decade have increased EEOC s responsibilities and, consequently, its workload. The agency's funding and staffing levels have not increased in accordance with this rising workload. Funding requests decreased between FY 1996 and FY 1998 (see table 2.1). In fact, after adjusting for inflation, the FY 1998 request was lower than the FY 1994 request by almost 3 percent (see table 2.2 and figure 2.1). In addition, the FY 1998 request was lower, in actual dollars, than the FY 1997 request by more than $20 million. Every year since FY 1999 the President has requested increased funding for EEOC (see table 2.1).

In the past seven years, Congress met the President's request only once (see table 2.1). In FY 1999, the Congressional appropriation matched the request of $279 million. However, in FY 2000 Congress again funded the agency by an amount that was substantially lower than that requested. The FY 2000 appropriation was 10 percent below the President's request for that year. Further, in real terms, the FY 2000 appropriation represented a 1.6 percent reduction in spending power compared with the previous year.

FIGURE 2.1
EEOC Funding History (in constant 1994 dollars)

Note: Estimates based on table 2.1.

Staffing and Workload

EEOC's FTE levels also have not kept up with the increase in the agency's responsibilities and workload. In FY 1998, EEOC's FTE level fell to 2,544 (see table 2.3), which was 10 percent lower than the FY 1994 FTE level of 2,932 and 24.2 percent lower than the FY 1981 FTE level of 3,358.[18] Conversely, in FY 1998, EEOC received 37,687 more complaints than it received in FY 1981,[19] an increase of 67 percent.

In FY 1999, EEOC added 49 FTEs, an amount still lower than that in FY 1994 (see figure 2.2). Further, the staffing levels requested for FY 1998 and FY 1999 were both below the actual FTE level for 1994, by 5.4 percent and 3 percent, respectively.

These declines in staffing are due to limited budget resources and come at a time when the agency's enforcement obligations have been substantially expanded because of new statutory responsibilities. From FY 1994 to FY 1999, the number of complaints EEOC received each year was dramatically higher than the annual number of complaints received from FY 1981 to FY 1992.[20] In FY 1985, EEOC received 72,002 complaints, the highest number of complaints received prior to FY 1993. Yet, in FY 1994, EEOC received an all time high of 93,915 private sector complaints. Since then, the number of complaints received has remained high (see table 2.4).

FIGURE 2.2
EEOC Staffing History

*estimate

 Source: Executive Office of the President, Office of Management and Budget, Budgets of the United States Government, 1994 2001, appendix.

As noted previously, the greatest increase in EEOC s enforcement responsibilities occurred in the early 1990s with the passage of the Civil Rights Act of 1991 and the Americans with Disabilities Act of 1990. Of the 82,428 complaints in FY 1999, 18,407, or 22 percent, were charges filed under the ADA.[21]

Although the Priority Charge Handling Procedures (PCHP), implemented in 1995, have enabled EEOC to increase the number of annual resolutions while reducing the pending inventory of charges (see tables 2.4 and 2.5), the number of cases in which EEOC reached a settlement through merit resolution (a case settled, litigated, or conciliated successfully, and conciliated unsuccessfully, as well as a complaint withdrawn with benefits) remains consistently low. In FY 1994, 15.2 percent of the total cases resolved were settled through some sort of merit resolution (see table 2.5). By FY 1996, the number of merit resolutions had decreased to 9,225, accounting for only 9.1 percent of the total number if resolutions. Although the agency experienced a slight increase in merit resolutions in FY 1999, the number of merit resolutions during the 1990s remains significantly lower than it was in the early 1980s when merit resolutions accounted for as much as 32 percent of all resolutions.[22]

Over this same period, there was a noticeable spike in the percentage of cases for which no cause determinations were issued. Between FY 1996 and FY 1999, no cause decisions made up approximately 60 percent of all cases, up from 46 percent in FY 1994. Between FY 1986 and FY 1989, no cause determinations accounted for an average of only 15 percent of all cases.[23]

Although the PCHP has helped EEOC respond to monetary and staffing restraints, as well as an increasing workload, EEOC's transformation into a viable enforcement agency has been inadequate.[24] This is to be expected in an era where agency resources do not adequately reflect its caseload or the importance of its mission. [25] As a result, charge categorization provides an immediate monetary remedy that often results in complaints being erroneously dismissed as having no reasonable cause.[26]

Workload demands for EEOC have continued to rise in the federal sector. Federal hearing and appeal receipts both steadily increased between FY 1994 and FY 1999 (see table 2.6). During this same period, cases per attorney grew, from 146 appeals in FY 1994 to 192 in FY 1998. Still, even though the productivity of hearings and appellate attorneys increased, the staffing level has not increased commensurate with the mounting workload.[27] Consequently, the pending inventory of cases in federal sector enforcement increased by 155 percent from FY 1994 to FY 1999, and the average number of cases per investigator has grown from 51 charges in FY 1990 to 77 charges in FY 1998.[28]

Overwhelming workload demands have had a negative impact on EEOC's complaint processing time. During FY 1998, the average time it took to process a private sector discrimination charge was 10.3 months, which is dramatically higher than the FY 1980 average of 3 to 6.5 months.[29] Further, it took an average of 21.5 months before federal sector charging parties had their complaints processed in FY 1998, a number that significantly increases when hearing and appellate proceedings are required.[30] 

Summary

Despite the addition of enforcement responsibilities, most notably resulting from the ADA, in terms of real spending power, EEOC's budget had not been increased until FY 1999, when Congress matched the President s request of $279 million. In real dollars, this was an increase of nearly 13.4 percent from the FY 1998 appropriation. This departure from traditional budget cuts in EEOC's spending power enabled the agency to begin rehabilitation from the devastating effects of perennial staffing and budget reductions.[31] However, just as this process of rebuilding had begun, the FY 2000 appropriation was $31 million below the requested amount for that year. More importantly, in real dollars, the FY 2000 figure is 2 percent below the FY 1999 figure. The FY 2001 request seeks to regain some ground lost in FY 2000 in the face of growing workloads.

The FY 2001 budget requests $322 million, a $41 million increase over the FY 2000 appropriation, and an additional 216 FTEs. However, EEOC projects an increase in private sector complaint receipts.[32] Therefore, additional staff will be needed to reduce the already high average private sector enforcement processing time while continuing to decrease the pending inventory of cases. More importantly, an increase in FTE levels will help make EEOC private enforcement more advantageous to complainants. The forecast for EEOC's federal sector enforcement without additional staff is grave. EEOC estimates that by FY 2001 the pending inventory of federal cases will rise to 34,565, an increase of 42 percent over the FY 1999 amount, and the pending inventory will grow to 22 months for hearings and 34 months for appeals,[33] compared with the already unacceptable FY 1999 levels. Delays in processing undermine the fairness and effectiveness of the federal enforcement system and discourage people from coming forward to seek restitution for well-founded complaints of discrimination.