The Equal Employment Opportunity Commission recently released its Performance and Accountability Report showing the number of discrimination charges filed, settled and litigated and how much money businesses had to pay as a result of the EEOC’s efforts. These are fine metrics but something has been nagging at me since I read the report.
Why don’t employment discrimination agencies (like the EEOC) consider it a “win” when the agency investigates and finds “no cause” to believe that discrimination occurred? Isn’t this the biggest win of all? Businesses were acting lawfully! I’m not asking the agency to give compliant companies a pat on the back – that would be like applauding parents who take care of their kids or people who don’t stab their neighbors. But, when the agencies don’t internally celebrate findings of compliance, it creates a new challenge.
The agencies seem increasingly reluctant to issue “no cause” findings – even when there is no evidence of discrimination. Instead, agencies seek some sort of a “win/win” settlement by asking the company to: “just write a letter of recommendation” or “just pay a few weeks of severance” or “just” do some small thing in exchange for the employee settling or withdrawing the charge. Then the agency can close its file, count it in the “win” column, and move on to the next of the thousands of cases. The “sell” to the business is that it can stop paying fees to defend against the charge.
This is not a win-win. This is the employee and the agency winning and the business losing. The company paid thousands of dollars to attorneys, consumed valuable staff time responding to the charge, and worried that their business and reputation were being unfairly attacked. A wrongfully accused business deserves a “no cause” finding.
The more agencies reward complainants who file meritless charges with nuisance settlements, the more employees come to believe that they should get “something” just for filing a charge. It is the employment law equivalent of kids’ sports today – everyone who shows up gets a trophy.
When everyone gets a trophy, more people want to play. More meritless charges take valuable agency resources away from true discrimination victims – and waste money that businesses might otherwise use to grow and hire more workers. Agencies must not fall into the habit of trying to get every complainant “something.” This would be easier if “no cause” findings were treated as the valuable metric that they are – the measure of the success of many past years of education, outreach and enforcement by the agencies.