The Appearance of the Right to be Free from Unlawful Discrimination in the U.S. Workplace

Studiu publicat în volumul In Honorem Flavius Antoniu Baias. Aparența în drept, tomul I, Ed. Hamangiu, București, 2021, p. 820-859.

Introduction

The Civil Rights Act of 1964 („CRA”) was passed to eliminate racial, ethnic, religious, gender and national origin discrimination^[1]. The law was passed during a period of great racial protest, violence, and civil rights activism demanding social justice and that the country commit itself to principles of equality^[2]. David Benjamin Oppenheimer, Kennedy, King, Shuttlesworth and Walker: The Events Leading to the Introduction of the Civil Rights Act of 1964, 29 U.S.F. L. REV. 645, 662-63 (1995). 

The CRA sought to protect citizens from discrimination in the workplace because of race, color, creed, sex, or national origin using a federal enforcement agency, the Equal Employment Opportunity Commission („EEOC”). Employment law protection is found in 42 U.S.C. §2000(e) et. seq. 

The U.S. federal government and courts have undermined the legislative promise of a workplace free from discrimination. The law of employment discrimination is not being enforced for the benefit of the individual worker without significant financial means to engage in a prolonged private lawsuit. This analysis of this systemic failure is supported by extensive empirical legal and related social science research, decades of statistical data, years of comprehensive Congressional testimony, and EEOC reports and data. The majority of this study reveals a long and complex history of U.S. failure to protect American workers from unlawful employment discrimination. In documenting how the average employee has been ignored due to poorly enforced laws, there is a contradiction. This systemic failure of the law does not render the law worthless. 

After a thorough exposure of systemic failure in Civil Rights law, this paper shows how societal adaptation shows that all is not lost. Key actors involved in this dysfunctional model have adapted to promote the right to be free from unlawful workplace discrimination. The U.S. business community, employee legal counsel, and some government players recognized and adapted to this appearance of law. 

The chimera of the right to be free from unlawful discrimination sits alongside an overall corporate orientation supporting the fundamental protections afforded under these discrimination laws.^[3] To avoid costly legal disputes, public embarrassment, social strife, additional regulation, and for profitable human capital management, more employers are seeking to comply with employment discrimination laws^[4]. 

Under the U.S. federalist model, the failures of the U.S. federal courts have encouraged state governments and courts to provide an alternative forum. Employee („Plaintiff”) lawyers have voted with their feet and avoided the federal judiciary in favor of state court judges enforcing parallel state employment discrimination laws. 

Finally, we see adaptive conduct by the EEOC which has failed in its assigned role of defending individual workers. Recognizing its shortcomings caused by external factors, the EEOC introduced mediation to encourage negotiation of the lawsuit in lieu of a substandard dead end EEOC investigation followed by futile individual-financed litigation with private counsel in federal courts. This was a substantial pivot. Mediation from the EEOC, provided free of charge, provides a bridge for a confidential resolution in mediation acceptable to all. 

As a result, there are complex outcomes caused by the cross-currents of the arguably miserable quality of enforcement of workplace civil rights such as the appearance of law and mistreatment of U.S. workers attempting to challenge unlawful discrimination. Nevertheless, several quality outcomes are flowing out of this void^[5].

§1. The EEOC and the appearance of law

1.1. A short history of the passage of the Civil Rights Act of 1964 and subsequent civil rights law protecting against workplace discrimination

The history of the CRA provides context to why the law is more appearance than substance. In the U.S., race relations issues are complex. The passing of the CRA of 1964 was very contentious. It was the first law that outlawed discrimination by private actors^[6]. The CRA was a major accomplishment in the civil rights movement which was primarily focused on the advancement of Black citizens^[7]. 

The CRA was brought to Congress under the administration of President John F. Kennedy and catapulted forward by Whites attacking Black citizens. John F. Kennedy, Special Message to the Congress on Civil Rights and Job Opportunities – June 19, 1963, 1963 Pub. Papers 483, 483 (1963) („[T]he events in Birminghamand elsewhere have so increased the cries for equality that no city or State or legislative body canprudently choose to ignore them”). Kennedy was assassinated prior to its passage. Kennedy’s assassination was one of many contextual societal events that caused the American people’s concern over the mistreatment of black citizens to ripen into the CRA. The law was enacted at a time when the nation was outraged by the Klu Klux Klan murder of young black girls in a church bombing in Birmingham, Alabama. Many parts of the nation were already outraged by the treatment of Black civil rights marchers by Southern police officers and state officials. 

The CRA was opposed by many Southerners; their political leaders sought to prevent the passage of this law^[8]. The opponents to the CRA employment law protections argued that it was an unconstitutional intrusion into private employment relationships^[9]. The American South’s long existing opposition to the rights of its Black citizens, and historically successful frustration of civil rights law, was overtaken by the televised events in the nationwide Civil Rights movement. The „Southern Filibuster”, a Southern dominated racist political alliance that prevented civil rights law passage in the U.S. Senate, was politically defeated in Congress to accomplish this passage.^[10] In retrospect, many legal scholars see the CRA as a „half loaf” whereas more was, and is, needed to address racial justice issues flowing from slavery and the unique problems of race in America. Id. at 231. 

While the CRA addresses a range of areas, this analysis focuses on Title VII of the CRA which covers workplace discrimination. Most of the discussion focuses on a timeframe after 1972, when the EEOC was first empowered to enforce Title VII^[11]. 

1.2. Additional protected classifications

Title VII prohibits employers with fifteen or more employees, labor unions and employment agencies from discriminating against an individual on the basis of race, color, sex, religion, or national origin. This protection includes hiring, discharge, compensation; and the terms, conditions, or privileges of employment^[12]. The responsibility for the investigation of age discrimination cases under the Age Discrimination in Employment Act of 1967 („ADEA”) was transferred from the Department of Labor („DOL”) to the EEOC in July of 1979^[13]. In 1990, when disability discrimination was outlawed by the American With Disabilities Act („ADA”), the EEOC was assigned this law for enforcement^[14]. Other employment discrimination laws were added to the EEOC’s workload including The Pregnancy Discrimination Act of 1978 (PDA) which amended Title VII to clarify that discrimination based on pregnancy, childbirth, or related medical conditions constitutes sex discrimination and requires employers to treat women affected by pregnancy and pregnancy-related medical conditions the same as any other employees with temporary disabilities with respect to terms and conditions of employment, including health benefits; The Equal Pay Act of 1963 (included in the Fair Labor Standards Act) (EPA), as amended, prohibits sex discrimination in the payment of wages to men and women performing substantially equal work in the same establishment; and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), prohibits employment discrimination based on an applicant’s or employee’s genetic information (including family medical history). 

1.3. Dead on arrival – the failure of the EEOC to serve the individual employee alleging unlawful discrimination

The CRA delegated powers to the EEOC under an administrative law model where all Title VII disputes must first be submitted to the EEOC. This initial case filing, the EEOC investigation, and the overall treatment of individual employees alleging discrimination is a frustrating and usually nonproductive experience. If an individual aggrieved worker is counting on protection from the EEOC, they have been, and in the future will usually be, sadly disappointed. 

1.3.1. The EEOC charge and federal court filing procedures

1.3.1.1. EEOC procedure for filing a charge or complaint

Title VII provides that a claim of unlawful workplace discrimination can be vindicated by the employee, who is denominated as the Charging Party („CP”). There are two steps for an employee alleging unlawful employment discrimination. First, the employee files a Charge of Discrimination („Charge”). The second step is litigation in federal court. 

There is a mandatory requirement that a Charge must be filed within a limited timeframe or else the cause of action is extinguished^[15]. The EEOC then investigates the merits of the Charge. Congress incorporated the investigatory powers of the National Labor Relations Board („NLRB”) into the CRA^[16]. Title VII gives the EEOC „access to, for the purposes of examination, the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the Charge under investigation”^[17]. The EEOC is empowered to go to court on behalf of the employee^[18]. In practice, the EEOC engages in a superficial investigation, seldom subpoenaing documents or engaging in a deep dive investigation of the case facts. 

At present, the employee contacts the EEOC about their claim of discrimination either by visiting the EEOC office, calling by phone, or submitting an online claim^[19]. Because of the Covid-19 pandemic, the EEOC website states that it is only accepting Charges via their online filing portal^[20]. The EEOC collects an intake form asking about the alleged unlawful employment practices and then later may elect to prepare the Charge of Discrimination („Charge”)^[21]. 

The EEOC website explains its enforcement role as having the authority to investigate Charges of discrimination against employers and fairly and accurately assess the allegations in the Charge and make a finding^[22]. According to the EEOC, if it finds that discrimination has occurred, the EEOC will try to settle the Charge with the employer, a process known as „conciliation”^[23]. The EEOC states, „If we aren’t successful, we have the authority to file a lawsuit to protect the rights of individuals and the interests of the public and litigate a small percentage of these cases”^[24]. The devil is in the details and the issues are whether there is a fair filing procedure, Charge assessment, or EEOC’s willingness to fight in court for the individual employee. 

1.3.1.2. Investigation

If the EEOC Office decides the Charge should be investigated, an investigator is assigned to contact the CP to gather the employee’s evidence. It is possible that the case will be treated as a „systemic” case involving class litigation; but this is uncommon. Usually, the investigator contacts the employer to obtain that employer’s evidence and a written position statement. The investigator will request certain evidence which is usually a standard request based on the nature of the Charge^[25]. The employer will then provide a response. Once the employer responds, the investigator will provide the employer position statement to the CP to review and rebut. The investigator may follow up with additional questions or request additional evidence. Usually, the investigator does not interview any witnesses identified by the CP or take statements under oath from the employer. While some „field” or „on-site” investigations may involve more detailed face-to-face questioning, most cases are conducted by written document review. These investigations can take up to a year or more to complete. The investigator is overwhelmed with their ever-growing caseloads and cannot move the investigation on in a timely manner. This scenario gives an appearance of law when in reality it is a delayed process with little investigation. 

Other U.S. federal agencies provide higher quality investigations. For example, the National Labor Relations Board („NLRB”), which oversees union-management relations, engages in a rigorous investigation where employers are interviewed concerning the allegations and affidavits are often taken under oath^[26]. The NRLB sets time targets for the completion of investigations from 7 to 14 weeks^[27]. 

There are usually many facts and circumstances involved in an employment discrimination case causing these cases to more complex than many legal disputes. EEOC investigators seldom find „Reasonable Cause” to believe that the law was violated^[28]. Because the EEOC investigator spends little time in field investigation actually interviewing witnesses, but rather reviews written position statements submitted by expert employment law counsel battling an unrepresented worker on the other side, the CP usually does not get the EEOC to support the Charge. When this author represented employers, regardless of the conduct of his client, he was able to prepare a position statement and provide selective evidence so that the EEOC would dismiss the case.

The EEOC office will prepare a final finding. If the EEOC does not find reasonable cause for the Charge, the CP will receive a form noting that the Charge investigation file is being closed for one of the following reasons:

1.3.2. The EEOC right to sue letter and federal court filing

After filing the Charge with the EEOC, the CP can elect to skip the EEOC investigation stage and file a lawsuit with private counsel or unrepresented („pro se”) in U.S. Federal District Court^[29]. Often the CP wants to prosecute the case with their own counsel without investigation. Also, the EEOC may refuse to investigate the case and closes the file. Under any of these tactical choices, the CP must obtain a „Right to Sue” „(RTS”) letter from the EEOC; this RTS letter is a prerequisite to filing suit under these statutes investigated by the EEOC.^[30] Either at the beginning of the case, or later after a full investigation, regardless of the merits of the case, most EEOC investigations end with the issuance of a RTS letter. The RTS letter advises the CP that they have ninety days to file a lawsuit in court^[31]. Finding a lawyer to investigate, draft a complaint and file a lawsuit within 90 days is difficult for most CPs.^[32] In addition, the EEOC determination is usually not admissible under the Federal Rules of Evidence in a subsequent de novo federal court proceeding. 

For a select group of cases, the systemic, class action cases, the EEOC does not issue a RTS Letter; but instead will elect to take the case to federal court and represent the employee. 

1.3.3. EEOC historical challenges

Overworked, underfunded, and occupying a political quagmire – the EEOC was never enabled to accomplish its mission

The EEOC promise of an investigation of a Charge is not backed by reality. The EEOC has never been able to effectively investigate all Charges filed. Soon after the creation of the EEOC, it was referred to as a „poor, enfeebled thing” incapable of satisfying its mission because it was burdened with an unexpected caseload and understaffed^[33]. These same problems continue to this day. In critiquing EEOC effectiveness, context is important. As discussed above, certain regions of the U.S. were hostile to the EEOC and civil rights^[34]. This division is still evident throughout our society today.

The EEOC was reorganized in prior efforts to address its internal challenges^[35]. Congress has investigated performance issues related to case handling inefficiencies and complaints by those facing EEOC regulation. Scholars and practitioners with their client advocacy-related issues, have written on EEOC failures for over thirty years. Often the EEOC is used as a punching bag by those attempting to portray the EEOC’s legitimate efforts to protect the right to be free from invidious discrimination as being out of touch with workplace issues, lacking common sense, or engaging in „political correctness”^[36]. More than frequently, these criticisms flow from deeper social issues embedded in the U.S. where certain interest groups are regulated by laws they don’t like. Thus, the EEOC must navigate within this permanent political turbulence. 

Retrospectively, and to its credit, the EEOC was often correct in taking positions that the mainstream business community and legal community sought to undermine under the general rubric of „political correctness”. Concepts that were less cognizable in two to three decades ago, such as implicit bias, the definition and scope of sexual harassment, disability discrimination and accommodation, and LGBTQ rights, are now mainstream legal theories first nurtured earlier by EEOC „theory building”.

While framed from a management employment lawyer perspective, Kilberg fairly observed decades ago that the EEOC investigation is subpar compared to other federal agencies. He observed over twenty-five years ago that:

…the EEOC can clean its own house, streamline its charge intake procedures, improve the quality of its factual investigations, in part by attending to the competence of its investigative staff and in part by assuring that investigations are supervised by carefully selected EEOC trial attorneys, and keep an eye out for those matters that suggest discriminatory animus while letting the others pass. By adopting the prevailing practice of other enforcement agencies in requiring that investigations be designed and supervised by competent attorneys, the EEOC will invigorate its legal staff. An invigorated staff of trial attorneys can know that the matters they pursue are worth the pursuit^[37]. 

Kilberg’s critique that the EEOC does not conduct effective Intake or subsequent Charge investigation is still relevant today^[38]. 

While overwhelmed with Charges from its inception, changes in the law placed additional workload demands on the EEOC. These new areas of protection, such as the ADEA and ADA, in 1991 Congress amended the CRA to provide for additional legal remedies („1991 Amendments”)^[39]. Previously, a plaintiff who prevailed in Title VII litigation could obtain backpay and payment of attorneys’ fees and costs by the employer. This was known as a „make whole” remedy. After working through the actual costs involved, many persons discriminated against found it made more sense to find another job and move on rather than sue for reinstatement to a company and get their backpay plus interest on the backpay, reduced by any interim earnings. After the 1991 Amendments, the prevailing plaintiff could obtain a trial by jury, award of attorneys’ fees and costs, backpay, additional compensatory damages for pain and suffering, and punitive damages where malice or reckless indifference to one’s rights are established.^[40] Thus, even if the worker found new employment, there was still a financial incentive to vindicate one’s rights.

While the EEOC was still unable to timely investigate its Charge inventory, it was assigned additional cases. The spike in Charge filings were caused by the 1991 Amendments, the passage of the ADA, effective in 1992, and the new focus on sexual harassment in the workplace due to the televised national Supreme Court hearings concerning the confirmation of Supreme Court Justice Clarence Thomas^[41].

1.3.4. The EEOC punts on the enforcement of individual employee rights and creates a policy of the appearance of investigation

Shortly thereafter, the EEOC openly recognized that it could not handle its caseload and adopted a new Charge filing model^[42]. Announcing a „National Enforcement Plan” („NEP”) the EEOC committed to systemic case litigation involving broad based issues, cases of new or novel law development, and cases where there was interference with access to the EEOC such as employer retaliation^[43]. Id. There was no commitment to processing the day-to-day Charges filed by the individual employee or to reducing Charge inventory by investigation and resolution. To the contrary, the EEOC committed to its classification plan to reduce any commitment to providing an investigation, albeit superficial, for every Charge. 

This Charge Intake procedure is a major procedural crossroad where legal rights die. Beginning in 1995 in the Chicago District Office and the Washington D.C. Field Office then expanding in 1998 to the entire agency, the EEOC introduced a Charge triage process under its new Priority Charge Handling Procedure („PCHP”).

Under the PCHP, cases were ranked as either „A”, „B”, or „C” at Charge Intake. Cases adjudged „C” cases are deemed for immediate closure with the issuance of a RTS letter. If the CP wants to continue to enforce their rights, the CP must find a lawyer at their own expense without the benefit of any EEOC investigation or opportunity to mediate with an EEOC mediator. In other words, their Charge was taken then subsequently dumped without any EEOC assistance. Most of the „B” cases requiring additional investigation, are initially placed in a voluntary mediation pool and then investigated if not resolved. The „A” cases, based on the initial information provided at Intake, are assigned immediately to an Enforcement Unit and investigated. If „Cause” is found, the case is elevated to a post-investigation „conciliation” stage. At this point, the Charge is either negotiated at the „conciliation” stage, litigated by the EEOC, or the „A” Charge CP with a „Cause” finding receives a RTS letter and the case is closed. This latter treatment of the „A” is telling. The weakest cases end up with an RTS letter and the strongest cases can often also end up with a similar RTS letter which is not relied upon by the Court as proof of unlawful conduct in a de novo court proceeding. 

Nielsen, et. al., noted that this classification was not performed by an attorney but a „specialist”^[44]. Nielsen addressed Charge data before and after the introduction of the triage in Chicago. She reports that a non-lawyer „specialist” decided at the time of case filing whether further EEOC investigation will „probably” result in a cause finding (an A case), may „likely” result in a cause finding (a B case), or has „uncertain merit” (a C case). The parties are not allowed to know the priority code their case receives. Initially, twenty (20) percent of EEOC Charges were classified as A cases, fifty-eight (58) percent as Bs, and twenty-two (22) percent as C cases subject to immediate dismissal. Nielsen’s team found that these classifications had no significant relationship to eventual federal case outcomes^[45]:

Table 1 shows that the only statistically significant effect that EEOC priority codes have is that B cases are more likely to obtain early settlement than other cases. The absence of significant effects holds both in models that included legal representation variables and those that did not. Moreover, the explanatory value of the model (R 2) does not change when the variables for EEOC priority codes are included^[46]. 

This highly qualified research team had access to additional case information and detailed case pleadings and discovery motions and briefs where they existed. They concluded that even with this additional case data, it was impossible for them to competently code the quality of a case. She stated:

It is important to note that we attempted in the coding of case files to construct valid measures of what can be conceived of as a latent or unmeasured variable of the „quality” of a case. …. We attempted, without success, to have coders provide a subjective rating of the strength of a case… Unlike some medical malpractice research in which medical records can be sent to medical professionals to assess, the merits of the case in employment discrimination depend on subjective assessments of job performance and the meaning of employer actions. We coded sets of documents constructed by the adversarial process of which they are a part. The relationship between those documents and a „good” or „bad” case are difficult to discern^[47].

This Charge Intake process is similarly inconsistent. In 2013 the EEOC Office of Inspector General found deficiencies in the EEOC Charge Intake procedures concerning the extent of information obtained at Intake and the process for classification of Charges in „A”, „B”, and „C” triage^[48]. The OIG report then implausibly recommends that the EEOC classify more Charges as „C” to reduce its backlog while at the same time noting that the EEOC doesn’t have consistent standards in this triage^[49]. In other words, the EEOC should cast aside more Charges without providing any assistance. This report also states that some offices reported being more „frontal” which involves the practice of not taking a Charge at Charge Intake because it is unmeritorious on its face as opposed to taking a procedurally or other obviously deficient Charge for the mere sake of not refusing the Charge^[50]. There is no concrete discussion by OIG of how this frontal conduct occurs, how it varies across Regions and Intake personnel, whether it involves a threshold evaluation of the case which is supposed to occur later in triage, or exactly what types of filings were being rejected at the door. It continues to be a nebulous process that EEOC uses to reduce Charge inventory. In sum, the EEOC knowingly narrowed the scope of its administrative access to justice for employees alleging unlawful discrimination via the introduction of this triage model. 

In announcing the PCHP, the EEOC abandoned the 1983 policy of Chairman Clarence Thomas’ commitment to the investigation of every Charge^[51]. Thus, the EEOC moved from not fulfilling Thomas’ promise of a full investigation to skimming Charge inventory, increasing the number of CPs denied any EEOC investigation, and diverting the other cases to pre-investigation mediation or conciliation, and then issuing the RTS letter if the case is not settled^[52].

1.3.5. The case inventory backlog reduction shenanigans keeps the appearance alive

1.3.5.1. A continuing inventory of charges

The average employee may not perceive the continuing reality that the average CP has little hope of obtaining help from the EEOC investigation. This is clearly demonstrated in a 2017 Congressional hearing where the House of Representatives Committee on Education and the Workforce Subcommittee on Workforce Protections, Chairman Bradley Byrne noted:

Take, for example, the agency’s backlog of unsettled charges. At the end of 2016, the EEOC had more than 73,000 unresolved cases. Thousands of individuals were still waiting for answers on the discrimination charges they filed. This is completely unacceptable. These are men and women who turned to the federal government for help and got lost in an inefficient bureaucracy… The investigative process could be improved with better focus on what the EEOC can and should be doing with the resources it has. Overburdened EEOC staff with a large caseload slows the process almost to a halt, with neither the employee nor the employer community served well^[53].

Lisa Ponder, a management advocate speaking on behalf of the Society of Human Resource Managers (SHRM) echoed these criticisms of the EEOC. SHRM is the leading organization for U.S. Human Resource professionals which provides extensive training and support for corporate compliance with Human Resource laws and human capital management. SHRM members regularly represent their employers before the EEOC^[54]. Ponder explains how the EEOC fails to represent the CP:

In my experience, the EEOC investigators want to do a good job and genuinely want to ensure people are not discriminated against. Unfortunately, they have too many cases to accomplish either of their endeavors. I have never had the EEOC find that the claim I have responded to had merit. About 50 percent of the claims, I have responded to have been dismissed after the initial response. The other 50 percent, the EEOC found no reasonable cause to pursue action and the complaint was finally given back to the employee with a right-to-sue letter. In my experience, if a complaint does not have merit, it can sit on a pile of claims and wait for months or even years to move forward (italicized emphasis added)^[55]. 

Rae T. Vann, Vice President and General Counsel at the Equal Employment Advisory Council (EEAC), a Washington D.C. employer advocacy and lobbying group that addresses the legal issues of civil rights law and employment, also confirmed that the EEOC is falling short in its employer view mission:

Respondents and charging parties want to and should have confidence that every charge investigation is held to the highest quality standards, but we just haven’t seen enough consistency across the regions to be certain of that. Establishing and implementing a meaningful quality control system for investigations and conciliations we believe is critical to achievement of the agency’s statutory mission. Also, relevant to effective civil rights enforcement is the ability to conduct charge investigations as promptly and as efficiently as possible, because months or sometimes years long investigations only serve to delay resolution of those bias claims, and the EEOC should be encouraged and provided with the necessary resources to improve the time it takes to conduct charge investigations and conclude its administrative proceedings^[56].

Chairman Byrne stated:

At the end of 2016, the EEOC had more than 73,000 unresolved cases. Thousands of individuals were still waiting for answers on the discrimination charges they filed. This is completely unacceptable. These are men and women who turned to the federal government for help and got lost in an inefficient bureaucracy. 

(Introductory Statement of Chairman Bradley Byrne)^[57].

1.3.5.2. Charge intake and pending inventory reduction shenanigans

In its February 2018 Strategic Plan, the EEOC reported that it lacked the ability to investigate all of the Charges filed by individual employees stating:

The EEOC received more than 90,000 individual private sector charges of discrimination and more than 12,000 federal sector requests for hearings and appeals in FY 2016. The persistently large number of individual charges of discrimination and federal sector requests for hearings and appeals that the EEOC receives has, for years, required the agency to think strategically about targeting its resources to ensure the strongest impact possible in its efforts to stop unlawful employment discrimination^[58]. 

Nevertheless, over the past few years, this private sector case backlog was reduced to 41,951 in FY 2020, the lowest in 14 years^[59]. The EEOC website reports a drop in Charges from Fiscal Years („FY”) 2015-2019^[60]. The data includes both federal and private sector filings (last accessed July 24, 2021)^[61]. This timing aligns with the EEOC OIG 2013 recommendations regarding „frontal” conduct^[62]. 

The EEOC projects future reduction in their Charge inventory^[63]. This was accomplished by classifying more cases as „C” under PCHP. This systemic adjustment further cut the flow of new cases that would be investigated so that the backlog could be reduced at the expense of enforcement of the law. Even more employees had their Charges cast aside without any EEOC investigation.

1.3.5.3. Current shenanigans in the continuing appearance of enforcement

In the fall of 2019, current EEOC Chair Janet Dhillon testified before Congress and presented what she believed was positive data showing that the EEOC Charge inventory is dropping. Chair Dhillon testified, „A continued emphasis on inventory management strategies and priority Charge handling procedures, technological enhancements, and hiring front- line staff in fiscal years 2017 and 2018, allowed us to make significant progress managing our pending workload of Charges. As a result, in fiscal year 2018, the EEOC reduced the Charge workload by 19.5 percent to 49,607, which builds on the 16 percent already realized in fiscal year 2017”^[64]. 

These data and the Chair’s testimony appear inconsistent with the opening statement of the Committee Chair, Representative Suzanne Bonamici of Oregon, who noted rising employment discrimination against her constituents in various protected classifications, including age discrimination, in the high-tech industry in Oregon^[65]. Bonamici asked how the EEOC cleared its case backlog with fewer employees^[66].

1.3.6. The EEOC gets „frontal” before the triage

Chair Dhillon explained that the EEOC case backlog was accomplished by increased focus on the Charge Intake stage^[67]. She states that the process was improved including that potential CPs were now being directed to the correct federal agency covering their claims. It is not clear why this is anything new in the Charge Intake procedure given the earlier OIG Report^[68]. The EEOC’s published statistics indicate that these class of cases that should not have been taken or were otherwise weened out early are historically about 15% of the cases administratively dismissed by the EEOC^[69]. Since this weening category included other bases for dismissing cases early in the process that would not be known at the time of Charge Intake, such as insufficient number of employees for EEOC jurisdiction, or a subsequent agreement between the parties to settle the case when the employer was informed of the Charge, one is hard pressed to understand how this Charge Intake adjustment could possibly result in such a large backlog reduction. 

Chair Dhillon stated that the second way this backlog was reduced is by explaining the Charge filing process more fully so that CPs are better aware that their employer will know they have filed a Charge which, in turn, dissuades the employee from filing the Charge.^[70] This testimony fails to explain what is new about a CP knowing that their employer will get notice when a Charge is filed and how this has changed over time. CPs have always known their employer would know that the Charge was being filed as the CP is asked to identify to whom the Charge should be mailed. Moreover, discouraging a Charge by explaining that it will be exposed to the company is inconsistent with the EEOC mission and Title VII best practices. 

Chair Dhillon was further queried by Representative Susie Lee of Nevada to further explain how the EEOC can reduce its number of investigators while simultaneously reducing its case backlog by 19.5%^[71]. Chair Dhillon’s apparent circular response noted that since the case backlog was reduced by the EEOC, which she attributes to hard work by the EEOC staff, this now reduced inventory backlog, parallels, supports and explains the backlog reduction with fewer investigators. Representative Lee entered into the record a letter from the Washington Lawyers Committee for Civil Rights alleging that the EEOC is taking Charges that have merit and then immediately assigning the Charges as „C” cases, without investigation. Thus, expert employment law counsel accused the EEOC of abandoning its obligation to investigate cases.

While the initial complaint business is booming, and more citizens believe they are experiencing unlawful discrimination in the workplace, Chair Dhillon testified that „Online access through the agency’s inquiry and appointment system launched in November 2017 and resulted in a 30 percent increase in the number of individuals submitting inquiries about potential discrimination Charges in fiscal year 2018”^[72]. This raises a different Intake question. How can the Agency have a 30 percent increase in inquiries but lower-case filings? This contradiction is also occurring in the context of anecdotal evidence from Congress (Representative Chair Bonamici) and survey data^.[73] A recent National Bureau of Economic Research Working Paper nationwide study includes a massive database base which reveals continuing discrimination against female and black job applicants within America’s largest corporations^[74]. Thus, this inventory reduction may be due to being „frontal” (i.e., no longer taking Charges that do not have merit as was discussed in the EEOC OIG Report) or it may be equally possible that persons are being dissuaded from filing Charges that would have been previously been accepted for filing. Given that the EEOC has the post-Charge Intake triage process, and given that this triage is suspect, one is left wondering what is being left out of the pre-triage by „frontal” conduct. This reduction in Charges attributed to apparent EEOC Intake „efficiency” is also highly suspect given the testimony of Congresswoman Bonamici; the AARP data; the rise of the „#metoo” movement highlighting unlawful treatment of women which contributed to more women standing up against workplace discrimination; and Dhillon’s inability to concretely identify how this near 35.5% in case backlog reduction over a two year occurred other than her general testimony about discouraging persons from filing cases due to jurisdictional issues, avoiding conflict with their employer, or a sea change in EEOC employee performance^[75]. 

1.3.7. „Frontal” denial plus „C” classification furthers appearance without substance

The impression management, or manipulation of the appearance of law, continues. The EEOC’s recent budget justification request submitted to Congress provides cryptic support for the belief that the EEOC reduced access to its investigation services to manage its backlog. EEOC states,

Beginning in mid-2017 and continuing through FY 2019, senior leadership in the field incorporated a variety of strategies into their local management „tool kit” to meet their current workload and to maximize efficiencies in charge investigation and resolution. This included revisiting trainings on PCHP and conducting intake interviews with potential charging parties to help identify issues at an early stage and provide more information with which to categorize the charge^[76]. 

These enhancements suggests that when more information was gathered at Intake it allowed the EEOC to reduce its backlog by classifying more Charges as „C”. But this „C” reduction trend began long before mid-2017. The EEOC OIG Report identified Regional Field Office use in 2013 and EEOC communication in 1998 discussed Intake screening under the PCHP since 1998^[77]. 

These investigation statistics raise another concern. If the EEOC has been screening out more pre-filing inquiries, gathering more information at Charge Intake to be able to classify more Charges as „C” and immediately dismissing them, logic dictates that the Reasonable Cause findings should be rising given that the investigators are obtaining higher quality cases. This disconnect suggests a commitment to reducing inventory at the expense of the CP.

The Budget Justification also states that the EEOC expects to see a trend of rising Charges. The EEOC explains that it will manage this increase, stating „In spite of these conditions, we remain committed to directing efforts to manage the inventory levels by vigorously using PCHP as well as incorporating other strategies”^[78]. 

This „tool kit” language on how inventory was reduced and the evidence that the EEOC sought to reduce Charge inventory by „C” classification should be explored further to see if the EEOC should be commended for its efficiency or if it has simply implemented a triage model where few get to see the „doctor”. EEOC employees claim they are „hounded” to classify more Charges as „C”^[79]. The data that the EEOC Intake Information Group („Intake”) resolved seventy-eight (78) percent of the inquiries without taking a Charge in FY 2019 and seventy-six (76) percent of inquires in FY 2020 suggests an access to justice issue. Assuming, arguendo, that this reflects efficient screening so quality Charges are accepted at Charge Intake, particularly given the EEOC Chair’s statement that the agency has prioritized the training and efficiency of the Charge Intake threshold, there should be a higher percentage of merit (Reasonable Cause) determinations in the investigation stage^[80]. The data shows increasing classification of charges as „C” which is counterintuitive if these are „post-frontal conduct”, i.e., vetted/pre-screened filings^[81]. 

1.3.8. Frontal + „C” + reduced reasonable cause findings furthers the appearance

The EEOC statistics reflect that since FY 2017 about 70% of the Charge filings result in a No Reasonable Cause Finding.^[82] This is an increase from the FY 2015 and 2016 data with FY 2015 showing about 5% less No Reasonable Cause Findings^[83]. The 15% Administrative closures are consistently about 15% for this five-year time frame^[84]. These data doesn’t support the reduction of cases at Charge Intake prior to triage classification juxtaposed against the unmistakable trend of increased classification of Charges categorized as „C”.

The EEOC also has the role of representing employees in court for selected cases. There is a discernable trend in the reduction of EEOC case filings in federal court^[85]. Since these cases take time to develop, the 2002 statistics should not be significantly influenced by the Covid-19 pandemic. Assuming it was, we see that in the prior year of 2019 the EEOC filed only 157 cases. During the same time frame from 1992 to 2020 the EEOC budget and staffing increased from a 1992 budget of $211,271,000 and FTE staff of 2,791 to an increased FY 2020 budget of $355,800,000 and comparatively lower FTE staffing of 1,939^[86]. 

1.3.9. EEOC enforcement policy affects citizens who need legal protection promised under the law

This author’s experience as an attorney practicing before the EEOC leads him to believe that it is highly impractical for the EEOC to reduce its case backlog without exacerbating the chasm between the appearance of law enforced by a federal agency that seeks to eliminate employment discrimination and the reality that the average employee has no protection from the agency entrusted to protect her. The evidence suggests Charge filings were avoided and files closed without investigation, including for those individual Charge filers who waited sometimes over a year for a final result only to be advised that they are on their own and need to find a lawyer to take their case or file pro se within 90 days of receipt of the RTS Letter.

This author recalls a case a few decades ago where his client, an unwed mother, was unlawfully discriminated against after she announced her pregnancy. Upon learning of her pregnancy, the company president avoided her, had her desk moved to another one with no Internet access, and not assigned work. She contacted the EEOC to file a Charge and the EEOC advised her that she did not have a case and would not take her Charge. She was crying when she spoke with the author and recounted her frustration. He then filed a Charge which was immediately dumped as a „C” Charge without investigation. After filing a federal complaint, using the U.S. common law discovery tools found under the Federal Rules of Civil Procedure, including deposition of the company owner, the case ended with a settlement of $200,000. 

To date, there is no published EEOC policy advising the public on how this classification system works in practice, the percentage of the cases now culled as „A”, „B” or „C”, or chronological data as to whether this coding system was ever competent. The EEOC statistics do not report its Intake of classification of cases as either „A”, „B” or „C”, which would permit public scrutiny of EEOC case handling and whether there is an appearance of law enforcement without substance. 

1.3.10. EEOC perspective on its performance

The EEOC believes it is doing a good job. The EEOC’s 2020 Annual Performance Report advises the reader that the EEOC has performed well in its Strategic Objective I of „Combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities”, meeting or exceeding all of its performance measures^[87]. 

§2. Individual prosecution of an employment discrimination lawsuit – the Federal Courts complete the false appearance of employee rights

While obtaining justice from the EEOC may seem quixotic, it only gets worse! A second branch of the U.S. government, the judicial branch, is the next step in a system of the appearance of rights without substance. The courts were established by Congress as the final forum where an individual worker can attempt to enforce these discrimination laws. Data gathered over decades from the nation’s leading empirical legal scholars reveals that the federal courts are hostile to employment discrimination plaintiffs. A strong argument can be made that the courts have failed the citizens protected by these laws. A more sanguine view is that the judges usually do not have experience in employment law and that this and other contextual factors cause this appearance of law without substantive judicial enforcement. Some federal judges, who are usually overloaded with case work, may not be interested in the adjudication of these fact-intensive civil law discrimination cases when their criminal docket, which has priority, is overflowing. Regardless of the reason, the data establishes that the judiciary has created irrational substantive law standards and combined them with used dispositive motions prior to trial, including the summary judgment, to eliminate these types of cases. This comes at the expense of the right to trial by jury under the Seventh Amendment of the U.S. Constitution. 

2.1. Appearance of Law – the difficulty in obtaining access to the Court with legal representation

Almost all EEOC cases end up with the CP holding a Right to Sue letter but nothing more. With receipt of the Right to Sue letter, the CP is then advised that he or she has ninety (90) days to file a lawsuit in court where the case will be litigated de novo. 

The CP has ninety (90) days to find an attorney to accept the case which includes hiring an attorney, who must evaluate the case, investigate the facts, and then draft a complaint to then file in court. It is difficult to find an attorney willing to do this work unless these cases are clear winners that present little risk for counsel. Discrimination cases are often complex fact intense cases where credibility resolution and patterns of evidence are argued^[88]. 

In addition, some attorneys require payment of what is often a large amount of money for the CP. Most CPs work paycheck to paycheck and an attorney is a major cost that they simply cannot afford. While the U.S. litigation model has the contingency payment option, whereas counsel will not charge an hourly rate but rather take a percentage of the amount recovered in the lawsuit, it is often difficult to find attorneys who will defer hourly payment. Even when a contingency arrangement is reached, the CP will often be required to pay a large down payment for expenses for the lawsuit such as filing fees, expert witnesses’ fees, deposition costs, and other costs of litigation that a contingency arrangement does not cover. 

The CP who cannot find or afford a lawyer can elect to proceed representing themselves in court, known as a pro se plaintiff. Unfortunately, the average worker CP is often hopelessly outmatched by expert legal counsel on the other side. These CPs do not know how to properly conduct discovery, including the taking of depositions, draft interrogatories and document requests, use electronic discovery and other litigation skills. Even many U.S. attorneys do not have the basic litigation skills required in an employment discrimination lawsuit; yet this is what the average CP has to anticipate when prosecuting an employment discrimination case themselves. Nielsen found that the key variable associated with prevailing in federal court litigation was being represented by counsel^[89]. 

2.2. Access without justice – the inability or unwillingness of the U.S. Federal Courts to properly dispense justice under employment discrimination law

Robust empirical evidence from legal scholars, government data, and the experiences of practitioners pointing to the strong inference that while these laws promise that the Courts will enforce employment discrimination law, they usually do not. Viewed as a structural and a cultural issue – federal court judges are usually without any professional experience in employment law and often they have little interest in these types of fact intensive lawsuits. Thus, they have developed substantive law and accompanying heuristic decision making to dismiss these cases. Also, prejudice, and implicit bias, contribute to decisions made against the protected classifications. 

Retired Judge Nancy Gertner, who served on the United States District Court for the District of Massachusetts and now serves as a Professor of Practice at Harvard Law School, believes that the courts’ substantive law decisions eroded the CRA. She equates this federal judiciary hostility to repeal of this civil rights law^[90]. She argues that these judicially created rules were not required by the CRA, its legislative history or the purposes of the CRA. She observes that this erosion of workplace civil rights by the judiciary is below the radar, stating, „The patterns have garnered little attention from the popular media and as a consequence, there is little or no pressure for legislative change”. Id.

Gertner relies on social science research establishing the existence of, and importance of implicit bias. She argues that the courts are going in the opposite direction and trivializing evidence of explicit bias^[91]. Gertner also identifies an asymmetrical decision-making process in the granting of summary judgment motions in employment discrimination cases which results in decision heuristics causing federal judges to unfairly decide these cases^[92]. Gerstner believes that the process of writing opinions to justify the granting of summary judgment motions predisposes that judge, and the federal judiciary as a whole, to unfairly decide these cases^[93]. 

2.3. Who sits on the federal bench and unconscious bias?

2.3.1. Race and gender

The most recent study of the demographics of federal judges showed that of the 570 active district judges, only 194 (34%) were women. Four hundred and six (406) (71%) were white, eighty-one (81) (14%) were African American, fifty-eight (58) (10%) were Hispanic, sixteen (16) (3%) were Asian American, one (1) (.2%) was American Indian, and eight (8) (1.4%) were multiracial. Of the ten judicial districts with the highest percentage of the population that is African American, four had no currently serving African American judges (the Southern and Middle Districts of Alabama, Southern District of Georgia, and Western District of Louisiana).^[94] Data from the Center for American Progress, a non-profit advocacy group that aligns with the views of the Democratic Party, shows that the current federal judiciary does not reflect the racial and gender composition of the U.S. population but rather remains a predominately white group whose diversity retrogressed during the Trump Administration.^[95] During President Trump’s term, he favored non-minority judges, arguably perpetuating this issue^[96].

2.3.2. Employment law background

Federal Judicial Center data, which sets out the professional background and other data on judges, shows that many federal judges have no background in employment law^[97]. The author searched the professional backgrounds of judges appointed since 1964, the year the CRA was enacted. This is a somewhat arbitrary selection date given that a judge could have been appointed decades before and be active, or semi-active in Senior Status, when these cases hit the courts. The author used the discrete key word terms „employment” and „labor” to identify those judges with employment law backgrounds. The search mainly disclosed federal government agency employees at the EEOC or NLRB, state agency employees for parallel civil rights agencies such as the California Department of Fair Employment and Housing, and some Congressional and Executive Branch actors. Very few of these appointments involved attorneys with applied experience representing clients in employment litigation, save for a few who were counsel to advocacy groups and one corporate in-house counsel in charge of labor relations. The type of training that judges receive in this area is minimal and arguably superficial^[98]. 

2.3.3. Bias – conscious or otherwise

Legal scholarship suggests that federal judges bring their own personal biases into court decision making. This is important because so many employment discrimination cases are decided by how a judge addresses decisions of „law” that are made by the court as opposed to „facts” that are the province of the jury^[99]. Thornburg explains that outcome determinative legal decisions on procedural issues on motions to dismiss and for summary judgment and on the appropriate scope of discovery of evidence directly impact case outcomes^[100]. She argues that bias is endemic in the U.S. legal system and identifies the various types of bias that would directly prejudice a person seeking to enforce employment discrimination law. Research is cited that finds that Black and female judges are more sympathetic to the plaintiff in these types of cases^[101]. 

In a comprehensive examination of bias in the courtroom, an interdisciplinary team of researchers, including a federal judge, confirmed the existence of bias in employment discrimination litigation^[102]. 

Morin analyzed 3,985 individual judge votes in the U.S. Court of Appeal across a universe of Title VII employment discrimination cases (516 cases) based on race and national origin for cases reported from 2001 through 2009^[103]. He found that African American judges are four (4) % more likely than White judges to rule in favor of a claimant and nine (9) % more likely than White judges to rule in favor of Black claimants (p <.01)^[104]. Interdisciplinary empirical research from the Harvard School of Government Professor Maya Sen suggests outright racial basis by senior jurists in their reversal of opinions from lower court Black judges^[105]. 

This arguable bias is found for both jury and judge verdicts with women and minorities having lower success rates with judges and juries. Oppenheimer found similar results for cases decided in the California state court^[106]. He attributes the results to bias, citing Beiner and Eisenberg’s prior research^[107]. 

The interdisciplinary application of social science suggests that this bias can be unconscious^[108]. The application of economic theory to law, the Priest-Klein hypothesis, also known as the „case selection effect theory”, suggests that plaintiffs should win 50% of verdicts^[109]. This theory presents yet another vantage point from which one can find that courts and juries are biased. Lastly, there is first-hand observation of judicial decision-making bias from advocates and scholars.

If traditional judges are interfering with the enforcement of employment discrimination law, consciously or not, how does one explain the more obvious judicial bias corroborated when Republican Presidents appoint federal Courts of Appeal and District Court judges that do not reflect the current racial composition of the U.S. and in particular appoint less Black and female candidates than Democratic Presidents?^[110]

The Courts refuse to address implicit bias in their treatment of employment discrimination cases^[111]. In doing so, the courts are ignoring social science research establishing that this bias exists^[112]. 

2.4. Empirical legal scholarship establishes the Federal Courts’ hostility to employment discrimination claims

Decades of empirical analysis establishes that claims of employment discrimination tend to fair more poorly in court compared to that of other civil claims^[113]. Between 1978 and 1985 plaintiffs in employment discrimination prevailed at trial in 2% of the verdicts^[114]. Eisenberg reinforces Clermont and Schwab’s finding noting that „employment discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent”^[115]. They found that employment discrimination plaintiffs lose at nearly every stage of litigation, excluding the effects of settlement. They noted that plaintiffs prevailed in about 19% of bench trials where judges ruled and about 37% of jury trials^[116] compared to other types of cases which are won approximately 45% of the time regardless of judge or jury type^[117]. Federal employment discrimination plaintiffs, compared to non-civil rights plaintiffs, „manage fewer resolutions early in litigation, and so they have to proceed to trial more often. They win a lower proportion of cases during pretrial and at trial… On appeal, they have a harder time both in preserving their successes and in reversing adverse outcomes”^[118]. 

From 1988 to 2003 Eisenberg reported statistics from the American Bar Foundation, an arm of the American Bar Association, showing that in all federal court filings (n=1,672) 19% of cases were dismissed on early motions to dismiss, 50% settled early, 18% were lost on summary judgment, 8 % were settled after summary judgment, and 2% were won at trial^[119]. 

Selmi observed similar poor results for plaintiffs^[120]. These discrimination cases do not settle at the same rate as other cases litigated. Id. It is also more difficult to prevail on appeal in these types of cases^[121]. 

Nielsen et. al. used this same American Bar Foundation data from 1988 to 2003, taking a subsample of these cases and performing in-depth interviews of parties and counsel. This study addressed case details such as plaintiff demographics, statutory basis of the legal complaint, the type of alleged discriminatory practice, EEOC treatment of the case and Intake measurement of a case quality by categorization, and whether the plaintiff had legal representation in court. They then measured the stage in which the case was resolved prior to trial including Dismissal, Early Settlement, Summary Judgment Loss, and Late Settlement and Trial Win/Loss^[122]. 

The independent variables that affected outcome were whether one had legal representation and/or „collective legal mobilization”, defined as a class action with EEOC and/or public interest law firm representation. These cases were the less than 10 percent of cases and were not maintained by individuals^[123]. Nielsen, using her sociological vantage point, applied four models of analysis – formal legal perspective, a rational action/economic perspective, a legal mobilization perspective, and a critical realist perspective^[124]. She concluded that the critical realist model fit best because the critical realist perspective recognizes that employment discrimination litigation operates as a system of individualized justice, in which the overwhelming proportion of cases raise individual rather than collective claims. As a result, most plaintiffs receive cursory attention in legal process and a limited remedy. The social organization of employment discrimination litigation works against these primarily one-shot plaintiffs seeking social justice to channel and deflect these claims that seek to remedy workplace injustice^[125]. 

From an employer vantage point, they do not have the equivalent of contingency fees but rather must pay attorneys an hourly fee to represent them. Since employment litigation can be costly, employers often see cases where they believe they are being required to settle cases for payments to plaintiffs where they did not violate the law^[126]. Rather than pay for the cost of litigation, employers make a settlement payment. This concern was probably more relevant prior to the onset of employment practices insurance in the past few decades. Now more employers purchase insurance which guarantees that the insurance company will pay the attorney(s)’ fees and any legal settlement thereby removing employer exposure to any additional costs. Nonetheless, there may be a retention amount set so that the employer may be liable for the first $50,000 of cost in the case. Under the U.S. „American Rule” an employer cannot be reimbursed by the plaintiff if the employer prevails in the case. But the prevailing employee is entitled to the payment of reasonable attorneys’ fees and costs if he or she prevails^[127]. 

2.5. Four examples of Federal Court indifference to employee rights

2.5.1. Charge filing and exhaustion

The current U.S. employment model requires unsophisticated workers to file sophisticated paperwork or lose their rights^[128]. As discussed above, the CP first files a Charge of discrimination with an EEOC agent. It has been established that this process is as much about trying to dissuade the employee from filing a charge as it is in gathering information to set the charge up for dismissal as a „C” Charge. This initial activity can have tragic consequence for the CP. The quality of the content of the Charge taken is most important because the federal courts have elected to use the doctrine of exhaustion of remedies to find that in this initial encounter if the agent does not correctly identify each basis for the Charge, as well as details of the Charge, additional ancillary claims of employment discrimination cannot later be raised in federal court. If the focus and commitment of the EEOC Charge Intake person does not detail the elements of the CP’s case carefully and fully, even where the Charge Intake person is setting the case up for a „C” dismissal, the CP is then left with poor recordation in subsequent litigation that the CP engages in pro se or when an attorney is hired.

Once the Charge is filed, it is not uncommon for the case to be passed on from one investigator to another. While little investigation occurs, it is possible for the savvy EEOC agent to request amendment of the Charge to accurately reflect the scope of the employer’s unlawful practices. This can only occur if the case is an „A” or „B” case and is not guaranteed. Logic dictates that since the EEOC investigation is superficial in most cases, such amendment is unlikely. Thus, the federal case law is littered with cases where an EEOC CP, now a plaintiff in federal court, cannot raise discrimination claims not found in the Charge prepared by the EEOC Intake person. While the CP must sign this Charge, these individuals do not know about the federal doctrine of „Exhaustion” or how pleading works. Thus, the federal plaintiff is at the mercy of a quality Charge Intake – a process that has been documented by the EEOC OIG as inconsistent and in need of improvement.

The EEOC Charge contains various boxes, covering legal basis, that should be checked at Charge filing. This requires a lot of investigation at Charge Intake, where the worker strongly believes that discrimination has occurred but may not be sure as to the exact violations. For example, an older, black employee who recently missed work time due to a disability and has requested accommodation may not be sure which of the three protected areas – age, race, or disability or a combination of the three has led to his being treated differently than others with regard to terms and conditions of employment. 

While this doctrine of Exhaustion of Administrative Remedies is a bedrock legal concept, it is perverted in employment discrimination law decisions by the federal courts to deny justice. 

Research on Westlaw shows the multitude of cases where employers defeat an employee’s claim of discrimination because of the quality of the Charge filed with EEOC. For example, a worker may be terminated due to race; but also, the totality of the facts suggests that there is also retaliation for protesting racial discrimination. If the retaliation box is not checked at the EEOC, that facet of the case may not survive a lawsuit. This has important implications because the proof standard or analytical process for retaliation can be different than for disparate treatment and the facts of the case may establish retaliation but not disparate treatment^[129]. 

The Courts appear to be considerate of this bureaucratic filing complexity caused by EEOC practices. For example, in the Fourth Circuit Court of Appeals the law suggests that so long as „a plaintiff’s claims in her judicial complaint are reasonably related to her EEOC Charge and can be expected to follow from a reasonable administrative investigation”, she „may advance such claims in her subsequent civil suit”. Smith v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir. 2000). The Court has expressed concern that the exhaustion requirement should not become a tripwire for hapless plaintiffs or set up insurmountable barriers out of overly technical concerns because „Title VII … sets up a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process”. Sydnor v. Fairfax Cnty., 681 F.3d 591, 594 (4th 2012) citing Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)^[130]. Other circuits provide similar analysis. Jones v. UPS, 502 F. 3d 1176 (10^th 2007) (The exhaustion requirement is satisfied when the conduct underlying the claim of disability and the retaliation claim are based on the same facts.) Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9^th Cir. 2003) (holding that failure to check retaliation box did not bar retaliation Charge for those employer acts prior to the filing of the Charge); Tyndall v. The Berlin Fire Company, Civil Action No. ELH 13-02496 (D. Md. July 16, 2015) (… review is not limited to checkboxes alone; it also includes the facts alleged). 

While this creates the appearance of law, in most situations, the Federal District Courts are all too willing to bar legal theories due to the substance of the EEOC Charge. The Federal District Court for the District of Maryland is an example of how the courts boot plaintiffs’ cases almost exclusively based upon how the EEOC form was recorded and completed. See, e.g., Corneal v. McCurdy, No. RDB-19-3393, 2020 WL 1914809, at *3 (D. Md. Apr. 20, 2020) (finding the plaintiff failed to exhaust her retaliation claim because she did not check the retaliation box and only alleged age discrimination in her Charge); Saphilom v. Nationwide Mut. Ins. Co., No. JKB-18-1180, 2020 WL 1638415, at *9 (D. Md. Apr. 2, 2020) (finding the plaintiff failed to exhaust her retaliation claim because she did not check the box for retaliation or include any allegations reasonably related to such claim). 

Moreover, the Courts, are poorly skilled in understanding what is reasonably related to an EEOC Charge and what can be expected to follow from a reasonable administrative investigation. Instead, they refuse to allow the plaintiff to explain what they complained of to the EEOC or even conduct discovery on what constitutes the scope of such an investigation. They rule based on the Charge language and nothing else. See Niamath v. SCMD, LLC, No. GLR-14-1809, 2018 WL 9945848, at *2 (D. Md. May 30, 2018) Peters v. Baltimore City Bd. of Sch. Comm’rs, No. WMN-13-3114, 2014 WL 1682001 (D. Md. Apr. 28, 2014) (rejecting the plaintiff’s argument that he satisfied the administrative exhaustion requirement by including information about his retaliation claim on the EEOC’s Intake questionnaire); Cohens v. Maryland Dep’t of Human Res., 933 F. Supp. 2d 735, 744 (D. Md. 2013) (rejecting the plaintiff’s argument that he satisfied the administrative exhaustion requirement by circling the retaliation option on the EEOC’s Intake questionnaire).The Courts rigidly apply the Exhaustion Doctrine against an unsophisticated CP who is relying on an EEOC Charge Intake Officer with competing motives, including the importance of an employer having proper notice of the allegations. See Miles v. Dell, Inc., 429 F.3d 480, 491(4th Cir. 2005). This unrealistic approach underscores the inability of the Courts to understand what is reasonable in an EEOC investigation and also unrealistically views the employer receiving the EEOC Charge as a deer in the headlights on how the complaining party was mistreated^[131]. To be fair to the Courts, it could also be argued that it is not their job to bend the law, as they perceive it, or to clean up where the EEOC missed their responsibility.

The courts ignore the realistic scope of the EEOC investigation, given the many problems of that „investigation” discussed above, to find that obvious employer misconduct would not have been found in an „investigation”. This procedural decision making protects employers from being held accountable. Often employees know that they were treated unfairly, that there is no rational basis for the treatment, and draw conclusions based on their protected characteristics. While this may not always be correct, these inferences if properly investigated, or allowed to be litigated without the straitjacket of the EEOC Charge language, would establish and thus root out unlawful conduct.

For example, this author represented a woman who was convinced that she was terminated due to her gender. He was able to have the EEOC agent check all of the boxes on the discrimination Charge. She settled part of her case at mediation for age discrimination as she firmly believed that the discrimination was due to her gender. Later discovery produced an email stating her boss’ desire to replace her with a younger office assistant. This underscores the complexity of cases where an employee has a strong belief in unlawful discrimination but is on the „outside looking in” after termination.

In another case, the employee believed she was terminated in retaliation for taking medical leave due to her injured back. The EEOC agent checked the „Disability” box on the Charge form but failed to check the retaliation box. This occurred despite the fact that the CP’s email to the EEOC alleged retaliation, her subsequent discussions with the EEOC investigator raised retaliation, and the fact pattern that she told from the onset would permit any qualified investigator or Charge Intake Officer to see possible retaliation sufficient to preserve the issue at the Charge filing stage by merely checking the box for retaliation as well as disability since the two were inextricably linked in the fact pattern. Somehow, the agent did not connect that all of these actions added up to unlawful retaliation – an employee with a perfect record for almost a decade is fired after incurring a disability; she then confronts her employer about not accommodating her disability, and then she was later fired for conduct that no other employee at the company had ever previously been fired. The tragic circumstances of this Charge Intake is that the legal standard for retaliation is different for disability and the CP was denied an easier proof pattern by missing the box. 

2.5.2. Materially adverse employment action

The courts have also interpreted the CRA to include a requirement that there be a „materially adverse employment action” for an employee to establish unlawful discrimination, a requirement not found in the CRA^[132]. Scholars argue that this undermines the CRA so that enforcement is „anemic” and shelters invidious employment practices^[133]. 

2.5.3. Stray remarks

The federal judiciary created other substantive law that erodes plaintiffs’ employment discrimination. Courts elected to categorize statements that disclose discriminatory intent as stray remarks. This free pass is particularly broad for negative statements reflecting animus toward older workers. It is argued that the stray remarks doctrine has grown exponentially and is seriously flawed, contrary to Supreme Court case law, evidentiary standards of relevance, and Rule 56 of the Federal Rules of Civil Procedure^[134]. Courts across the country disregard such statements as evidence of intent to discriminate under certain circumstances where they find that the comments were not made in the context of the adverse action, were not made close in time to the adverse action, or were at one-time occurrence rather than a pattern.^[135] This substantive law is applied differently across federal circuits. Overall, when applied, circumstantial evidence of discrimination is barred.

2.5.4. Same actor

Another substantive theory used to bar relevant evidence is the „same actor” theory developed by the Fourth Circuit in 1991^[136]. Stone observes that the logic of the stray remark’s doctrine „fails to comport with an informed understanding of how human beings cultivate, harbor, and express bias against others”^[137]. 

2.6. The Procedural tool of summary judgment – the appearance of law without enforcement

The Seventh Amendment states „In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law”^[138]. Rule 56 of the Federal Rules of Civil Procedure provides that the federal trial court can deny a jury trial. „The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law”. Fed. R. Civ. P. 56(a). 

Scholars argue that summary judgment is unconstitutional^[139]. Contrary to the image in U.S. television shows of lawyers trying cases, plaintiff’s lawyers in federal civil law cases write briefs and try to navigate past the judiciary so that their client can have their case tried before the jury of peers and avoid the vanishing trial syndrome^[140]. After a peak in 1997 the number of employment case jury trials steadily declined for the remaining 15 years^[141]. Scholars argue that employment discrimination plaintiffs are key victims of this improper use of summary judgment^[142]. Lizzotte questioned the representativeness and accuracy of the data used for these studies, and the observations of Harvard Law scholar Arthur Miller and jurists such as Judge Patricia Wald claiming that the empirical research in this area is flawed^[143].  

Recent cases continue to raise on appeal the issue that the District Courts have overstepped their bounds and violated the Seventh Amendment. Allen v. AMBU-STAT, LLC, 799 Fed. Appx. 703 (11^th Cir. 2020). In Allen the plaintiff not only argued that summary judgment was wrong but that the entire Northern District of Georgia judiciary was abusing this procedural tool, citing to a Federal Judicial Center study. Id. at 714. 

2.7. An opposing view of judicial decision making

Moss discounts the notice of judicial bias. He argues that the courts are not biased but rather plaintiffs lose more because of the quality of their representation^[144]. 

§3. The appearance of law – all is not lost

3.1. Employers see the appearance of law as reality

While this analysis shows that the average employee cannot vindicate their rights before the EEOC or federal courts, these employment laws are important and are more than an appearance without substance. First, the goals of these laws are ones that most Americans support. Second, companies compete for talent and if a company mistreats its minority, disabled, female, or other protected classifications, this can injure competitive advantage. As we see in the SHRM and EEAC testimony before Congress, employers are committed to the law and training their employees to comply^[145]. Today, the Environmental, Social and Corporate Governance („ESG”) investing model provides another incentive for this effective human capital management^[146]. 

The EEOC mediation program uses appearance to bring resolution

For all litigation, Eisenberg reports that „In the vast majority of cases in which plaintiffs achieve success, they do so via a payment or nonmonetary relief pursuant to a settlement agreement”^[147]. In 1999 the EEOC obtained increased use of mediation to resolve Charges prior to investigation. To date, the mediation program has been the shining jewel in EEOC vindication of employee rights, as evidenced by employee survey data^[148]. Employers also support this program^[149]. 

Within the context of a failed EEOC investigatory model, combined with the conduct of federal courts who develop substantive law theories and employ summary judgment to dismiss cases, the EEOC decided to resolve cases at the pre-investigation stage. This was brilliant because it created a financial and practical incentive for an employer to resolve a case without the investment of extensive time and legal costs, while also providing the employee with a skilled mediator to facilitate negotiation. This expert mediator was also able to help the CP understand the realities of what happens if one pursues a Charge through EEOC investigation and then to court, and thus understanding that early compromise is often a maximizing behavior. 

EEOC Chair Dhillon recently testified about the historical success of this program.^[150] She noted that in fiscal year 2018 the agency conducted more than 9,000 mediations and was successful in more than 6,700. Id. They expediently resolved the dispute in an average of 99 days and resulted in a total of $165.8 million in benefits. Id. She noted that: the program continues to receive positive feedback from participants. In fiscal year 2018, 97.2 percent of all participants indicated that they would utilize the mediation process in a future Charge filed with the EEOC. Id.

SHRM representative Ponder also testified about broad employer support for mediation suggesting that the EEOC minimize its inefficient investigation process in favor of mediation. In areas where it’s appropriate, I would recommend the Commission rely more on mediation given its limited resources and investigation delays^[151]. 

3.2. Appearance can create alternative realities – plaintiffs’ attorneys avoid Federal Court

Most states have parallel laws that mirror the CRA, ADEA, ADA and other employment discrimination law. There is not always a 100% overlap but for most cases, plaintiff’s counsel can elect to suit in state court. Judge Gertner’s analysis of bias notes that recent federal litigation statistics suggest that the federal courts are so unfair that attorneys are voting with their feet to move their lawsuits to state court^[152].

Conclusion

Congressional investigation, legal scholarship, Charge processing statistics, the EEOC’s admissions of its limitations in investigating individual Charges, and the observations of legal and Human Resource Management professionals experience representing management and employees before the EEOC, underscored by this author-practitioner’s experience representing management and employees before the EEOC, clearly establishes that the EEOC cannot effectively investigate an individual’s Charge. There is an appearance of administrative law protecting the employee without any substance. 

Empirical legal research, scholarly analysis establishing the unnecessary use of substantive law by the federal courts to undermine employee rights, evidence of judicial prejudice and bias against Title VII, ADEA, ADA and other employment law claims, the analysis of former judges, and this author’s experience as a practitioner in the federal courts establish that it is very difficult and expensive to find justice in the federal courts. From undermining lawsuits due to unnecessary adherence to the Exhaustion Doctrine; to inventing substantive law theories to defeat the plaintiff; to the abuse of summary judgment; an employee who suffers unlawful employment discrimination has little hope of obtaining justice from the federal judiciary.

It is no small wonder why many citizens have little confidence in the government and the courts, particularly those seeking social justice and a discrimination-free workplace. Scholars find that subjects often express greater concern for a fair process than for the substantive outcome of a legal encounter^[153]. Absent a fair process, respondents view legal outcomes as suspect and lose confidence in the ability of legal institutions to resolve future grievances. These findings have serious implications for the legitimacy of the law and future legal behavior^[154]. Without trust in legal institutions, citizens may be less likely to abide by the law in the future.

However, there are positive outcomes to make the best out of a situation where there is the appearance of law without substance. The EEOC recognized that mediation can provide an alternative path to a just dispute resolution. For those employees who elect mediation, it could be argued that this process permits some help from existing law, if one can negotiate successfully. If not negotiated at mediation, the employee is either out of luck with a RTS Letter and then the hiring of a personal attorney to fight another day in an unfriendly federal court.

Also, the business community, as a whole, arguably plays it part to align the appearance of law against discrimination with reality by educating its management that these laws without teeth are just and should be followed. It also helps that this appearance of law aligns with the best practices of human capital management.

Overall, the final outcome confirms the vision of Presidents Kennedy and Johnson and others who advance workplace justice. Those who opposed it, due to their prejudice to the underlying rights provided to employees or because of their free market beliefs, would today see a law embraced by private sector business, aligned with the talent management need in market competition, which has advanced the rights of all citizens. While two branches of the U.S. government have historically disappointed the people by substandard enforcement, and continue to do so, we conclude that the appearance of law has many faces and that appearance, without more, impacts behavior and causes change. 

Suggestion for further research

EEOC: Evaluation research is needed to determine if the EEOC Charge Intake model is denying access to justice. This can be done under a „tester” model where an expert crafted prima facie fact pattern is presented to Intake and there is data on whether the Charge is taken or not. Second, the EEOC Regional Offices should be interviewed to define their standards for „C” classification and analysis should be done to see if there is consistent interpretation of these standards. Also, there should be measurement on whether these standards fit all EEOC bases for Charge filing or may deny access to some protected classification. Given Nielsen’s study that found that the classifications in the one EEOC pilot office did not correlate with federal case outcomes, her research team found such quality measurement problematic. There should be an evaluation of the quality of the EEOC investigation because if found not effective to find out the quality of the employee claims, alternative methods may be considered. Finally, the EEOC should review why it is unable to find more Reasonable Cause cases with a theoretically higher quality pool of potential cases.

For improvement, the EEOC should have Charge Intake check every box in the Charge and provide a detailed essay of allegations so that no administrative exhaustion stone is unturned. 

Federal Courts: There should be a renewed dialogue on alternative models for resolving these cases. The research suggests that the Courts are not effective. The NLRB model, where cases are tried within the Agency by administrative law judges and enforcement occurs at the Courts of Appeal level, avoiding summary judgment in District Court, may advance justice and EEOC effectiveness. This could reduce the cost to employers for those cases that get to federal court. An interested party here would be insurance companies, who are underwriting more and more employer legal fees as they fight their employees over civil rights claims. Alternatively, a dedicated employment law court as a forum, or sole forum, for these cases may provide for expert decision making and expanded use of alternative dispute resolution and other tools for better quality. 

Footnotes

^[1] Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended in scattered sections of 28 U.S.C. and 42 U.S.C.). 

^[2] Age Discrimination In Employment Act of 1978 29 U.S.C. §621 et. seq. (“ADEA”); Americans With Disabilities Act of 1990, 42. U.S.C. §12011 et. seq. (ADA). 

^[3] This argument can be extended to other protective labor legislation not covered here.

^[4] There is Human Resource Management and Organizational Behavior theory that progressive practices where all employees believe that they will be treated in a non-discriminatory manner there is a competitive advantage; this requires a diverse and engaged workforce. G. Giese, L. Lee, D. Melas, Z. Nagy, L. Nishikawa, Foundations of ESG investing: How ESG affects equity valuation, risk, and performance,Journal of portfolio management, 2019, 45(5), 69-83. The turnover costs associated with the loss of an employee are estimated to be 40% to 60% of the worker’s annual salary and as much as 200% of the annual salary for key talent. Winsor, B. (2019, 11). Do you know how much employee turnover will cost your organization?HR Strategy and Planning Excellence Essentials, Retrieved from http://proxy-su.researchport.umd.edu/login?url=https://www-proquest-com.proxy-su.researchport.umd.edu/magazines/do-you-know-how-much-employee-turnover-will-cost/docview/2356814491/se-2?accountid=28711.

^[5] Recently retired New York Times labor reporter Steven Greenhouse argues that no other industrial national treats its working class as poorly as the United States. S. Greenhouse, Yes, America Is Rigged Against Workers, New York Times, August 3, 2019, https://www.nytimes.com/2019/08/03/opinion/sunday/labor-unions.html.

^[6] S.D. Schwinn, Civil Rights Act of 1964: Enduring and Revolutionary, 14 Insights ON L. & Soc’y 4 (2014). 

^[7] R. Wilkins, The Civil Rights Act of 1964: Hopes and Promises, 2005 Wis. L. REV. 957 (2005). 

^[8] R.K. Berg, Equal Employment Opportunity under the Civil Rights Act of 1964, 31 BROOK. L. REV. 62 (1964). It could be argued that this same „culture” continues to undermine civil rights in the U.S. 

^[9] 110 CONG. REC. 14,318, 14,319 (1964) (statement of Sen. Barry M. Goldwater); 110 CONG. REC. 14,318, 14,318 (1964) (statement of Sen. John J. Sparkman); 110 CONG. REC.14,507, 14,507 (1964) (statement of Sen. James Strom Thurmond). 

^[10] K.W. Mack, Foreword: A Short Biography of the Civil Rights Act of 1964, 67 S.M.U. L. REV. 229 (2014). 

^[11] Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 706(f)(1), 86 Stat. 103, 105 (codified as amended at 42 U.S.C. § 2000e-5(f)(1) (2012)). For a detailed analysis of the EEOC enforcement powers and their historical development see Michael Z. Green, Proposing A New Paradigm for EEOC Enforcement After 35 Years: Outsourcing Charge Processing by Mandatory Mediation, 105 DICK. L. REV. 305, 320-321 (2001).

^[12] 42 U.S.C. 2000e to 2000e-15 (1970). 

^[13] Document Resume, EEOC, https://files.eric.ed.gov/fulltext/ED210545.pdf (last accessed August 28, 2021).

^[14] Americans with Disabilities Act, Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. §§ 12101-12213 (2012 & Supp. V 2018)) (applying Title VII’s enforcement provisions to the ADA).

^[15] CRA at 42 USC §2000e-5(e). The deadline is complicated as it is either 180 days or 300 days depending on whether the State where the employee works has a State agency that enforces a parallel state statute, referred as a „deferral agency”. Where a State agency exists, the statute of limitations expands to 300 days. 

^[16] Id. at §2000e-9. 

^[17] Supra, §2000e-8(a).

^[18] Id. at §2000e-5(f).

^[19] The EEOC can also accommodate a person by phone using the U.S. mail for Intake form and Charge filing. 

^[20] This portal is difficult to manage and prevents an attorney from filing the charge online for the client. This is a serious problem because if the Charge is not drafted carefully, it can later unhinge a federal lawsuit under the Exhaustion Doctrine. This is fully addressed at the federal court discussion infra. 

^[21] EEOC Website, https://www.eeoc.gov/how-file-charge-employment-discrimination (last accessed August 3, 2021). 

^[22] U.S. Equal Employment Commission Website hereinafter (“EEOC website, Overview https://www.eeoc.gov/overview (last accessed August 3, 2021). 

^[23] Id.

^[24] Id.

^[25] An employer can avoid this requirement if pre-investigation mediation is offered and the employer and CP agree to mediation. If the case is not resolved in mediation the paused investigation will then restart with the production requirements.

^[26] See https://www.nlrb.gov/about-nlrb/what-we-do/investigate-charges. 

^[27] The author served as an NRLB investigator for four years. When he first represented an employer in an EEOC investigation he was shocked at the shoddy quality of the EEOC investigation where it was quite easy to prepare a position statement that read well and in return the EEOC closed the investigation. He found that, contrary to an NLRB investigation, the EEOC seldom contacted a witness identified in the investigation. 

^[28] Ponder Testimony, infra.

^[29] Id. at §2000e-5(f)(1). 

^[30] The CP can ask the EEOC to skip the investigation and issue an immediate right to sue under the expectation that the EEOC won’t investigate or do a quality investigation and thus avoid the waste of time from the case sitting at the EEOC. This is a tactical consideration. One disadvantage is that the EEOC requires the employer to file a position statement or produce evidence. This information may be important in later litigation and can be obtained by a Freedom of Information Request („FOIA”) upon issuance of the EEOC Right to Sue letter discussed infra. 

^[31] Supra at note 19, §2000e-5(f)(1).

^[32] There are many reported decisions where the unrepresented employee fails to file the federal lawsuit withing 90 days of receipt of the RTS Letter.

^[33] M. Selmi, The Value of the EEOC: Reexamining the Agency’s Role in Employment Discrimination Law, 57 OHIO St. L.J. 1, n. 2 (1996). 

^[34] Id. at p. 2, n. 2 (discussing 1990’s legal scholars’ hostility to Title VII and claims that racial discrimination was no longer an issue in the workplace). 

^[35] The EEOC case handling issues contributed to its reorganization by the President in 1978 and internally in 1984 U.S. House. Committee on Education and Labor. A report on the investigation of civil rights enforcement by the EEOC: Based on a study of selected district offices (Serial No. 99-Q). Washington, DC: Government Printing Office, 1986.

^[36] W.J. Kilberg, Whither Goest The EEOC, Employee Relations L. J. Vol. 23, No. 2/Autumn 1997. 

^[37] Id. at pp. 3-4. 

^[38] To be fair to the EEOC every once in a while, this author is advised by a client or other counsel of a case where the EEOC visited the employer and interviewed witnesses. This is the exception to the rule. 

^[39] 42 U.S.C. §1981a Pub. L. 102-166, title I, § 102, Nov. 21, 1991, 105 Stat. 1072.

^[40] The amount of total compensatory and punitive damages under the CRA are capped based on a sliding scale based on company size with a sliding scale of $50,000 – $300,000 so that the maximum recovery under the CRA for prevailing against a company of more than 500 hundred employees is $300,000. Id. at §1981(b)(3). Many persons will seek headlines of a multimillion jury award for these types and cases and not realize that the Court then reduces the amount for this, and other reasons. The appearance of great exposure is not reality. 

^[41] J. Montoya, Let’s Mediate-A Whole New Ballgame at the EEOC, Employee Relations L.J. Vol. 24, No. 2/Autumn 1998 at p. 54.

^[42] Id.

^[43] Id. This approach of using its legal resources to advance class action lawsuits continues today. 

^[44] M.B. Nielsen et. al., Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States, Journal of Empirical Legal Studies Volume 7, Issue 2, 175, 191, June 2010. This process has changed so that there is now paperwork review by EEOC Counsel of the initial classification with sign off by the Regional Director. It is not clear when this change was made. 

^[45] Id. at p. 191. Current PCHP forms call for the review and approval by EEOC legal counsel.

^[46] Id.

^[47] Id. The „B” cases are the Charges where the parties are offered to consent to mediation so that this finding is self-evident. It also suggests the value of mediation at the EEOC.

^[48] Office of the Inspector General Review of Evaluations, Contract No. GS-10F-0240U,OIG Report Number 2012-09-REV. https://oig.eeoc.gov/sites/default/files/audits/OIG Final Report Review of Evaluations 2012-09-REV pdf.pdf (last accessed on July 24, 2021) referred to herein as the „OIG Report”.

^[49] Id. at iv. 

^[50] Id. at iii-iv.

^[51] Id.

^[52] For a detailed discussion of the EEOC charge handling history up to 2000 See McDermott, et. al. Equal Employment Opportunity Commission, 2000 – An Evaluation of the Equal Employment Opportunity Commission Mediation Program. EEOC Order No. 9/0900/7632/2, September 20, 2000, https://www.eeoc.gov/evaluation-equal-employment-opportunity-commission-mediation-program at Section C „The EEOC Strategies to Timely Process Charges” (last accessed August 3, 2021); See also U.S. Equal Employment Opportunity Commission, Priority Charge Handling Task Force Litigation Task Force Report, Historical Background, March 1998, https://www.eeoc.gov/priority-charge-handling-task-force-litigation-task-force-report (last accessed August 3, 2021)(hereafter referred to as the „1998 PHP Report”).

^[53] The Need for More Responsible Regulatory and Enforcement Policies at the EEOC, Hearing Before the Subcomm. On Workforce Protections, comm. On education and the workforce U.S. House Of Representatives 115^TH Cong. 1^st. Sess. (2017) (Introductory Statement of Chairman Bradley Byrne).

^[54] SHRM website homepage, https://www.shrm.org/ (last accessed August 3, 2021).

^[55] Supra, Testimony of Lisa Ponder, Vice President and Global HR Director, MWH Constructors, Inc., Broomfield, Co, on behalf of the Society for Human Resource Management. This author had a similar experience in representing employers before the EEOC – if you presented a good story on paper, which any competent HR or legal professional should be capable of doing, the EEOC will close the case. 

^[56] Supra, Testimony of Rae T. Vann, Vice President and General Counsel, Equal Employment Advisory Council, Washington, D.C.

^[57] Id. 

^[58] U.S. Equal Employment Opportunity Commission (EEOC) Strategic Plan for Fiscal Years 2018-2022

https://www.eeoc.gov/us-equal-employment-opportunity-commission-eeoc-strategic-plan-fiscal-years-2018-2022#objective1 (last accessed July 24, 2021). 

^[59] Fiscal Year 2020 Annual Performance Report, https://www.eeoc.gov/budget-and-performance (last accessed July 24, 2021). 

^[60] EEOC website at „All Charges” at https://www.eeoc.gov/statistics/data-visualizations (last accessed August 3, 2021). 

^[61] EEOC website at Charge Statistics (Charges filed with EEOC) FY 1997 Through FY 2020, https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2020 (last accessed August 3, 2021). 

^[62] Supra note 49.

^[63] EEOC Chart Data: Fiscal Year 2022 Budget Justification, Chart 2: Private Sector Charges Pending-Ending Inventory, May 18, 2021, https://www.eeoc.gov/chart-data-fiscal-year-2022-congressional-budget-justification#chart2 (last accessed August 1, 2021).

^[64] Statement Of Janet Dhillon, Chair, U.S. Equal Employment Opportunity Commission, Before the Subcommittee on Civil Rights and Human Services Committee on Education and Labor U.S. House Of Representatives September 19, 2019, Examining the Policies and Priorities of the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), Hearing Before the Subcomm. On Civil Rights and Human Services, House of Representatives 116^TH CONG. 1ST SESS. (2019), https://edlabor.house.gov/hearings/examining-the-policies-and-priorities-of-the-equal-employment-opportunity-commission-eeoc-and-the-office-of-federal-contract-compliance-programs-ofccp (last accessed July 29, 2021). https://www.youtube.com/watch?v=Ju5bfvdOGrM last accessed August 3, 2021) (hereinafter referred to as “Youtube clip”).

^[65] Id., at Opening Statement of Chair Bonamici. 

^[66] Supra, note 65, Youtube Clip at 32:32. 

^[67] Id. Youtube clip at Dhillon Testimony at 1:52:14-1:54:18. 

^[68] The EEOC should not be screening charges where they do not have jurisdiction; but the author seriously doubts that the EEOC has been taking accepting such charges in the past. It is more likely that where a charge may involve various protected conduct enforced by different agencies such as a Family and Medical Leave Act injury that is an EEOC disability issue, the EEOC is lessening its load by passing of viable EEOC charges to another agency with an equally viable basis for enforcement. More Intake data is needed here.

^[69] See note 83 Infra.

^[70] Id.

^[71] Id. Youtube clip at 1:57:36-2:10. 

^[72] Supra note 65.

^[73] The American Association of Retired Persons („AARP”) reported for this same time frame of dropping Charges, 2018, their survey showed that nearly 1 in 4 workers age 45 and older have been subjected to negative comments about their age from supervisors or coworkers; about 3 in 5 older workers have seen or experienced age discrimination in the workplace; and 76 percent of these older workers see age discrimination as a hurdle to finding a new job. Joe Kita, Workplace Age Discrimination Still Flourishes in America, AARP, https://www.aarp.org/work/working-at-50-plus/info-2018/age-discrimination-common-at-work.html (last accessed August 28, 2021). 

^[74] P.M. Kline, E.R. Rose, Ch.R. Walters, Systemic Discrimination Among Largest U.S. Employers, NBER Working Paper 29053, National Bureau of Economic Research: Cambridge MA. (July 2021). https://eml.berkeley.edu/~crwalters/papers/randres.pdf (last accessed August 28, 2021).

^[75] Testimony from EEAC leader Vann in 2017 was that these investigators have always worked hard but are overwhelmed, supra. The 2019 Congressional hearing and Chair Dhillon’s testimony establish that the EEOC has not added additional investigators so that one is left to believe that a sea change in the performance of the same EEOC personnel occurred.

^[76] U.S. Equal Employment Opportunity Commission, Fiscal Year 2022 Congressional Budget Justification May 28, 2021, https://www.eeoc.gov/fiscal-year-2022-congressional-budget-justification#_Toc71812509 (last accessed August 1, 2021).

^[77] U.S. Equal Employment Opportunity Commission Priority Charge Handling Task Force Litigation Task Force Report, March 1998, http://purl.access.gpo.gov/GPO/LPS47698; OIG Report supra.

^[78] Supra, https://www.eeoc.gov/fiscal-year-2022-congressional-budget-justification#_Toc71812507 (Discussion of Chart 2).

^[79] American Network of Community Options and Resources („ANCHOR”) Congress Inquires About EEOC Evaluation Process for Discrimination Claims, July 15, 2019, https://www.ancor.org/newsroom/news/congress-inquires-about-eeoc-evaluation-process-discrimination-claims (last accessed August 3, 2021) („Employees are hounded to categorize more cases as „C,’’ during the initial evaluation, Rachel Shonfield, first vice president for the National Council of EEOC Locals No. 216, said. ‘Our workforce is declining. This is a way to move through cases without doing substantive processing”). 

^[80] Supra, https://www.eeoc.gov/fiscal-year-2022-congressional-budget-justification#_Toc71812507 (Section VIII(C)(3) „Public Service”). 

^[81] By immediately dismissing so many „C” cases the EEOC prevents the CP from eligibility for the highly successful EEOC mediation program because most CPs cannot find and pay for a lawyer to file a federal lawsuit and their pursuit of justice ends. It must be assumed that employers would have been willing to mediate at least some percent of these cases which often result in a reported successful outcome for both parties. See McDermott et. al., supra.

^[82] EEOC Website, Data Visualizations, All Charges, All Charge Resolutions FY 2015-2019, https://www.eeoc.gov/statistics/data-visualizations (last accessed July 30, 2021). 

^[83] Id.

^[84] Id.

^[85] EEOC Litigation Statistics, FY 1997-2020, https://www.eeoc.gov/statistics/eeoc-litigation-statistics-fy-1997-through-fy-2020 (accessed July 24, 2021). While the EEOC filed 492 lawsuits in 1992, it filed only 97 in 2020. Compare EEOC Litigation Statistics FY 1992 to FY 1996 https://www.eeoc.gov/statistics/eeoc-litigation-statistics-fy-1992-through-fy-1996 with EEOC Litigation Statistics, FY 1997-2020, https://www.eeoc.gov/statistics/eeoc-litigation-statistics-fy-1997-through-fy-2020 (last accessed July 24, 2021).

^[86] EEOC Budget and Staffing History 1980 to Present, https://www.eeoc.gov/eeoc-budget-and-staffing-history-1980-present (last accessed July 24, 2021).

^[87] Fiscal Year 2020 Annual Performance Report, Strategic Objective Performance Summary https://www.eeoc.gov/budget-and-performance (last accessed July 24, 2021).

^[88] D.S. Ramey, Calculation of Attorneys’ Fees Awards in Title VII Actions Against Private Defendants, 58 U. Detroit Mercy J. of Urban L. 609, 612 (1981) („Title VII class actions are extraordinarily complex, lengthy, risky, and costly cases”).

^[89] Nielsen, Supra, Table 1, 189. 

^[90] Gertner, Nancy, The Judicial Repeal of the Johnson/Kennedy Administration’s ‚Signature’ Achievement (March 9, 2014), available at SSRN: https://ssrn.com/abstract=2406671 or http://dx.doi.org/10.2139/ssrn.2406671.

^[91] Id.

^[92] N. Gertner, Losers’ Rules, 122 YALE L.J. F. 109 (2012-2013).

^[93] Gertner’s insights are particularly valuable because of her judicial background and understanding of the nuances of litigation.

^[94] E. Thornburg, (Un)Conscious Judging, 76 Wash. & LEE L. REV. 1567, 1636-1637 (2019) citing B.J. McMillion, Cong. Research Serv., R43426, U.S. Circuit and District Court Judges: Profile of Select Characteristics (2017) (August 1, 2017) https://fas.org/sgp/crs/misc/R43426.pdf (last accessed July 26, 2021). 

^[95] Building a More Inclusive Federal Judiciary, Center for American Progress, October 3, 2019, https://www.americanprogress.org/issues/courts/reports/2019/10/03/475359/building-inclusive-federal-judiciary/ (last accessed July 31, 2021). See also supra, Examining the Policies and Priorities of the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), Hearing Before the Subcomm. On Civil Rights and Human Services, House of Representatives 116^TH Cong. 1st Sess. (2019), https://edlabor.house.gov/hearings/examining-the-policies-and-priorities-of-the-equal-employment-opportunity-commission-eeoc-and-the-office-of-federal-contract-compliance-programs-ofccp (last accessed July 29, 2021) and Youtube clip where it is stated that then-President Trump sought to cut the EEOC budget supporting the inference that the types of judges appointed by Trump would share this hostility to the CRA. While former President Trump is considered by many Americans to be hostile to civil rights law, this judicial hostility to employment cases far predates the Trump era so he should not be considered the source of this deeper appearance of law issue.

^[96] See also B.J. McMillion, Cong. Research Serv., R45622, Judicial Nomination Statistics and Analysis: U.S. Circuit and District Courts, 1977-2020 (May 18, 2021) https://fas.org/sgp/crs/misc/R45622.pdf (last accessed July 26, 2021). 

^[97] Federal Judicial Center, Biographical Directory of Article III Judges: Export Data, Format 1, https://www.fjc.gov/history/judges/biographical-directory-article-iii-federal-judges-export (last accessed July 31, 2021).

^[98] Id. Federal Judicial Center, Employment Law, https://www.fjc.gov/subject/employment-law (last accessed July 31, 2021). Federal Judicial Center, Basics of Employment Discrimination Law, Training Video by Honorable Bernice Bouie Donald, Rebecca R. Pallmeyer, July 6, 2018, https://www.fjc.gov/content/332938/basics-employment-discrimination-law (last accessed July 31, 2021). 

^[99] Thornburg, supra note 95.

^[100] Id. at 1581-1605.

^[101] Id. at 1636.

^[102] J. Kang, M. Bennett, D. Carbado, P. Casey, J. Levinson, Implicit Bias in the Courtroom, 59 UCLA L. REV. 1124, 1152-1168 (2012).

^[103] J.L. Morin, The Voting Behavior of Minority Judges in the U.S. Courts of Appeals: Does the Race of the Claimant Matter? American Politics Research 42, no. 1 (January 2014): 34-64. https://doi.org/10.1177/1532673X13486925. 

^[104] One must be careful with generalizations given that a former Chair of the EEOC, and Black Justice, Clarence Thomas, has a record of deciding against workers and persons of color in favor of corporate and conservative interest groups.

^[105] M. Sen, Is Justice Really Blind – Race and Reversal in US Courts, 44 J. LEGAL Stud. S187 (2015).

^[106] D.B. Oppenheimer, Verdicts Matter: An Empirical Study of California Employment Discrimination and Wrongful Discharge Jury Verdicts Reveals Low Success Rates for Women and Minorities, 37 U.C. Davis L. REV. 511 (2003).

^[107] T.M. Beiner, The Elusive (But Worthwhile) Quest for a Diverse Bench in a New Millennium, 36 U.C. DAVIS L. REV. 597, 603-604 (2003) (essay on nontraditional judges and employment law bias among traditional judges); Theodore Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases, 77 GEO. L.J. 1567, 1597 (1989) (statistical data establishing the lower rates of prevailing in certain litigation including employment discrimination.).

^[108] L.H. Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1161 (1995) (explaining unconscious bias); C.R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987) (describing unconscious racism in American society). 

^[109] G.L. Priest, B. Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUDIES 1, 4-5 (1984).

^[110] Pursuant to the Appointments Clause of the U.S. Constitution, the President nominates persons to fill federal judgeships, but the appointment of each nominee also requires Senate confirmation. 

^[111] S.R. Bagenstos, Implicit Bias, „Science” and Antidiscrimination Law, 1 HARV. L. & POL’Y REV. 477(2007); The Structural Turn and the Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1 (2006); and L. Hamilton Krieger, S.T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CALIF. L. REV. 997 (2006). 

^[112] J.T. Jost et al., The Existence of Implicit Bias is Beyond Reasonable Doubt: A Refutation of Ideological and Methodological Objections and Executive Summary of Ten Studies that No Manager Should Ignore, 29 Res. Organizational Behav. 39 (2009) (providing meta-analysis of studies demonstrating implicit bias with respect to race, ethnicity gender, and social class). 

^[113] An analysis of employment discrimination cases in one federal court in Georgia suggest outright racial bias (whites prevail on reverse discrimination while blacks lose on their claims), some judges who always rule against plaintiffs, and a very high percentage of rulings in favor of employers. Amanda Farahany & Tanya McAdams, Analysis of Employment Discrimination Claims for Cases in Which an Order was Issued on Defendant’s Motion for Summary Judgment in 2011 and 2012 in the U.S. District Court for the Northern District of Georgia, http://ssrn.com/abstract=2326697 (September 16, 2013).

^[114] Th. Eisenberg, Litigation Models and Trial Outcomes in Civil Rights and Prisoner Civil Rights Litigation, 12 J. EMPIRICAL LEGAL Stud. 4, 6 (2015). 

^[115] Id. citing K.M. Clermont, S.J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? 3 HARV. L. & POL’Y REV. 103, 103 (2009); K. Clermont, S.J. Schwab S (2004), How employment discrimination plaintiffs fare in federal court, Journal of Empirical Legal Studies, 1, 429-458, 429. 

^[116] Id. at 442.

^[117] Id.

^[118] Id.

^[119] T. Eisenberg, Four decades of federal civil rights litigation, 2015, Journal of Empirical Legal Studies 12(1): 4-28. This piece was published posthumously. Professor Eisenberg and his decades long work in this area will be sorely missed. 

^[120] M. Selmi, Why are Employment Discrimination Cases So Hard to Win, 61 LA. L. REV. 555 (2001). 

^[121] Th. Eisenberg, Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes, 1 J. Empirical Legal Stud. 659 (2004) („Courts of appeals reversal rates in appeals from employment discrimination trials are asymmetric and unfavorable to plaintiffs who prevailed at trial”); Th. Eisenberg, H.S. Farber, Why Do Plaintiffs Lose Appeals? Biased Trial Courts, Litigious Losers, or Low Trial Win Rates? 15 AM. L. & ECON. REV. 73 (2013).

^[122] Nielsen Supra, Table I. 

^[123] Id. at 189.

^[124] Id. at 176.

^[125] Id. at 180, 196.

^[126] McDermott et. al., An Investigation of the Reasons for the Lack of Employer Participation in the EEOC Mediation Program, https://www.eeoc.gov/investigation-reasons-lack-employer-participation-eeoc-mediation-program (last accessed August 3, 2021).

^[127] Whether the Courts are biased in review of prevailing counsel fees and reducing a certain amount as not reasonable is an issue that will not be explored here.

^[128] Job Bias Case Turns on Filing Right Form, New York Times, ProQuest Doc. No. 2222866455, November 7, 2007 reporting that „The age discrimination case that was argued before the Supreme Court on Tuesday turned on a hyper-technical issue that only an employment lawyer could love”.

^[129] Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

^[130] See also Chacko v. Patuxent Institution, 429 F.3d 505 (4th Cir. 2005).

^[131] Recent cases that tell the same story across federal courts include Voss v. Manitowoc Cranes, LLC 2021 WL 1174498 (M.D. Pa. March 29, 2021); Felder v. TD Bank US Holding Company, 2021 WL 1940567 (D. S.C. May 14, 2021); Clerk v. Select Specialty Hospital-Jackson Inc. 2021 WL 969194 (S.D. Miss. March 15, 2021); Braunstein v. Sahara Plaza, LLC, 2021 WL 2650369 (S.D.N.Y. June 28, 2021); Jones v. Mister “P” Express, Inc. 2021 WL 2454450 (S.D. Ind. June 16, 2021); Suvak v. Caterpillar Financial Services Corp., 2021 WL 3291991 (July 30, 2021); Ivey v. Savannah-Chatham Public Schools, 2021 WL 3549901 (S.D. Ga. August 11, 2021). 

^[132] E.N. Sanchez, Note: Analytical Nightmare: The Materially Adverse Action Requirement in Disparate Treatment Cases, 67 CATH. U.L. REV. 575, 578 (2018) (Courts interpret CRA to require proof of impermissible motive to discriminate; and adverse employment action against him although the „adverse employment action” requirement is not found in the statutory language).

^[133] Id. See also Gertner, supra notes 91,93; M.L. McCormick, Let’s Pretend that Federal Courts Aren’t Hostile to Discrimination Claims, 76 Ohio ST. L.J. Furthermore 22, 28 29 (2015) (criticizing federal courts for, among other things, downplaying the importance of evidence such as blatantly racist and sexist speech that a reasonable jury would think is indicative of employment discrimination); H.L. Chambers, The Supreme Court Chipping Away at Title VII: Strengthening It or Killing It?, 74 LA. L. REV. 1161 (2014); E.F. Lidge III, The Meaning of Discrimination: Why Courts Have Erred in Requiring Employment Discrimination Plaintiffs to Prove that the Employer’s Action Was Materially Adverse or Ultimate, 47 U. KAN. L. REV. 333, 373-375 (1999) (arguing the materially adverse reasoning contradicts the „breathtakingly simple” language of Title VII). R. Berger Levinson, Parsing the Meaning of ‚Adverse Employment Action, in Title VII Disparate Treatment, Sexual Harassment, and Retaliation Claims: What Should Be Actionable Wrongdoing?, 56 OKLA. L. REV. 623, 624 (2003) („Unfortunately, when discrimination takes on more subtle, less tangible forms, courts have faltered in enforcing Title VII’s goal of achieving equal employment opportunity”).

^[134] C. Ventrell-Monsees, It’s Unlawful Age Discrimination – Not the Natural Order of the Workplace, 40 Berkeley J. EMP. & LAB. L. 91, 123 (2019).

^[135] Id.; See also K.L. Stone, Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law, 77 MO. L. REV. 149, 159 (2012).

^[136] Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) („[l]n cases where the hirer and firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer”).

^[137] Stone, supra. See also Ventrell-Monsees, supra; V.D. Quintanilla, C.R. Kaiser, The Same-Actor Inference of Nondiscrimination: Moral Credentialing and The Psychological and Legal Licensing of Bias, 104 CALIF. L. REV. 1, 24-25 (2016) (arguing that this theory is not supported by social science theory of prejudice and bias).

^[138] U.S. CONST. amend. VII. 

^[139] S.A. Thomas, Why Summary Judgment Is Unconstitutional, 93 VA. L. REV. 139 (2007) (arguing that the right to trial by jury of common law cases does not permit use of summary judgment in civil lawsuits).

^[140] S.B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. Empirical Legal Stud. 591, 592 (2004). M. Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 Empirical Legal Stud. 459 (2004).; R. Moog, Piercing the Veil of Statewide Data: The Case of Vanishing Trials in North Carolina, 6 J. Empirical Legal Stud. 147 (2009).l; Stud. 591, 592 (2004). 

^[141] Eisenberg, supra.

^[142] T.M. Beiner, The Misuse of Summary Judgment in Hostile Environment Cases, 34 Wake Forest L. REV. 71, 71 (1999); R. Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 HARV. C.R.-C.L. L. REV. 99, 101-02 (1999); A.C. McGinley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. REV. 203, 206-07 (1993).

^[143] B.N. Lizotte, Publish or Perish: The Electronic Availability of Summary Judgments by Eight District Courts, 2007 WIS. L. REV. 107 (2007). It is time to retest Lizotte’s claim on the quality of the empirical data used to argue that summary judgment is not being abused. 

^[144] S.A. Moss, Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs’ Briefs, Its Impact on the Law, and the Market Failure It Reflects, 63 Emory L.J. 59 (2013). This would also be an interesting study to retest though it has significant methodological hurdles. This author was taught early in his career to „know your judge” and that various biases exist; he has had this experience to date in litigation, but such anecdotal evidence needs to be tested with data. 

^[145] Ponder SHRM testimony, supra („The goal of employers, along with the Commission, is to prevent discrimination before it happens”). Vann EEAC testimony, supra („EEAC is a nationwide association of employers whose mission since 1976 has been to promote sound approaches to promoting equal employment opportunity and compliance with nondiscrimination and other workplace rules… EEAC’s members are firmly committed to the principles of nondiscrimination and equal employment opportunity, and thus fully support the EEOC’s mission to investigate and correct discriminatory employment practices”). 

^[146] Supra, note 4.

^[147] Th. Eisenberg, Ch. Lanvers, What Is the Settlement Rate and Why Should We Care?, 6J. Empirical Legal Stud. 111, 119 (non-civil-rights cases), 120 (tort cases) (2009).

^[148] McDermott, supra.

^[149] Id.

^[150] Dhillon testimony, supra.

^[151] Supra, Testimony of Lisa Ponder, Vice President and Global HR Director, MWH Constructors, Inc., Broomfield, Co, on behalf of the Society for Human Resource Management.

^[152] Gertner, supra.

^[153] E.A. Lind, T.R. Tyler, The Social Psychology of Procedural Justice, New York: Plenum Press, 1988.

^[154] E.A. Lind, R. MacCoun, P.A. Ebener, W.L.F. Felstiner, D.R. Hensler, J. Resnick, T.R. Tyler, In the Eye of the Beholder. Tort Litigants’ Evaluations of Their Experiences in the Civil Justice System, Law And Society Review, 24, 1990, 953-996.