The Equal Employment Opportunity Commission (EEOC) is charged with enforcing the laws that protect the country’s workers from discrimination and harassment. But last year, the number of workplace sexual harassment cases that it resolved dropped, as did the amount of money recovered for victims. At the same time, the backlog of charges that haven’t been resolved increased after it had fallen between 2011 and 2012.
What’s behind these declines? In short: the budget games Congress has been playing over the past few years. And that spells trouble for the victims of harassment.
The EEOC itself points mostly to a shuttered federal government last year. “I think that probably the biggest factor was the government shutdown,” Mindy Weinstein, acting director of the Washington field office, told ThinkProgress. “We were closed for about three weeks at the beginning of the fiscal year, so we definitely lost some time and we weren’t doing all of the things we normally would do.” Even after the agency’s employees returned after the shutdown ended, there was extra work to catch up on, from reviewing documents that had piled up to rescheduling interviews to responding to emails. “I’m sure that there were some lingering effects of it in the weeks and maybe even months that followed,” she added.
Some experts agree that this took a big bite out of the agency’s work. “The lower dollar amounts recovered may very well be tied to the deep cuts the EEOC experienced as a result of the government shutdown and sequestration,” said Fatima Goss Graves, vice president for education and employment at the National Women’s Law Center. “The cuts are not abstract — it means fewer investigations, fewer resources devoted to the enforcement of the civil rights laws.”
But there is reason to think that constrained resources are a larger problem for the agency. Sexual harassment cases are particularly plentiful, indicating that the problem is extremely widespread. At a recent hearing, two witnesses from the EEOC indicated that “if they wanted to, they could fill their docket with nothing but sexual harassment cases,” Graves said. But even with such a huge volume, the resources aren’t there to go after every case. “There is no question that the EEOC doesn’t have the right amount of resources to do its job,” she said. After the automatic budget cuts from sequestration, “their budget has been so cut so much to the bone that after staff, they barely had funds for litigating expenses.”
In light of scarce resources to address a huge problem, the agency has in recent years made choices on where to focus. In an enforcement plan adopted in December of 2012, it targeted six strategic areas, and in the case of sexual harassment decided to focus on big, systemic cases. “The commissioners felt that the way to have the most impact was to focus on those cases that are broader in nature and hopefully try to have a greater impact that way,” Weinstein said. “It’s a way for us to prioritize our work when we have limited resources and make sure we’re having an impact.” It’s also focused on outreach to employers so they are aware of their responsibilities. This focus is backed up in the data: as a report from law firm Littler notes, in 2014, “The agency continued to achieve a high level of results in its systemic investigations.”
But sexual harassment is more often than not experienced by isolated individuals, not a practice that ripples throughout an entire company. “There are cases where harassment is an endemic and chronic condition for women at a whole worksite or facility,” said Jennifer Reisch, legal director at Equal Rights Advocates. “But otherwise sexual harassment claims and cases do tend to be more individual cases as opposed to, for example, pay discrimination or promotion discrimination cases.”
That means a focus on larger cases can end up leaving a lot of women out. “On the one hand, I applaud the EEOC’s commitment to or renewed commitment to bringing the systemic cases that it has brought,” she said. “It’s especially important in light of the limitations on class actions that private sector plaintiffs face in the wake of Dukes v. Walmart.” That Supreme Court case severely restricted class action lawsuits, but not for an agency like the EEOC.
Still, the focus may be shortchanging some women. “It comes down to where does that leave women in terms of access to justice,” she said. It may be hard for individual women, particularly those without many resources or in precarious situations, to get justice without the EEOC’s help. “It’s very hard for most low-wage women or even mid-income women to find an attorney…who is willing to represent them on essentially a contingency basis,” she said. “Most workers are not going to be able to afford to pay an hourly retainer.”
“Thousands of women who face sexual harassment and violations of other legal rights can’t really count on the government agencies that are charged with enforcing all of these laws to take their cases,” she concluded.
The EEOC disputes that this is a huge problem. “I don’t think that is a particular worry,” Weinstein said. “I think a lot of private lawyers, in my experience, take harassment charges of all types, including one-on-one cases.” She pointed out that another of its six strategic priorities is charges filed by immigrant, migrant, and other vulnerable workers, which includes sexual harassment. “It’s not like we’re not doing individual charges.”
But Reisch argues that the rising backlog is disconcerting. “The backlog is increasing even though the number of charges has actually stayed the same or gone down, which is really indicative I think of an agency resource issue,” she said. “There’s a tremendous need out there for assistance and representation for women who can’t afford to pay private attorneys to represent them and may not even know where to look.”
Victims can take solace in other agency approaches. With a new task force and strategic enforcement plan, the EEOC plans to work with certain industries to raise awareness around harassment for both employers and employees. “If you just drilled down in a few industries and tried to work with industry groups to provide training and policy resources…it makes it clear you’ll have a heavy hand of enforcement in these sectors that could make a difference,” Graves said.
In the meantime, more resources could mean more justice for all victims of harassment. “We often feel like we need more resources to do our work and to really have an impact across the nation’s workplaces,” Weinstein said. “We could certainly benefit from more resources. We serve the public, and when we have more resources we can provide better customer service.”