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On the Legal Front: EEOC Embraces the O-Side

Rich Tonowski

Traditionally the Legal Front has had an “industrial” (I-side) focus: selection practices, statistics, and how these play out in civil rights litigation. But here is something for our “organizational” (O-side) colleagues: the transformation of organizations. The federal government is promoting the interest.

The U.S. Equal Employment Opportunity Commission (EEOC) published two documents of note this summer. The first (EEOC, 2016) summarizes where its systemic discrimination program stands after ten years since its inception. The second, on preventing harassment (Feldblum & Lipnic, 2016), hints at where it may be going.

Systemic discrimination is associated with “more bang for the buck”—and more bucks—litigation strategy. Recruitment and hiring compose the prime systemic hunting ground (Cueni-Cohen, 2016). For example, a company-wide selection procedure is likely to affect multiple applicants; attacking such a procedure if it is discriminatory would provide relief to many present and future applicants, and that relief would likely have substantial monetary value. These circumstances lend themselves to class actions, where the plaintiff sues on behalf of all those similarly situated regarding the alleged discrimination. The metric of success on EEOC’s website is dollars; that includes money for those injured by the discrimination and also the cost of implementing a new valid and nondiscriminatory procedure. Other metrics apparently include the number of employees benefitted and the extent of proactive structural change discussed below (Maatman, Janice, & Karasik, 2016). Regarding the latter, the report cites to a more nuanced view of systemic discrimination: “bias built into systems, originating in the way work is organized” and “refers to structures that shape the work environment or employment prospects differently for different types of workers” (Kim, 2015). Through footnotes and citations, Kim elaborates on this to observe that earlier discrimination cases involved discrete management actions, although now the issue is workplace interactions at all levels.

The report details the resources that the agency has put into fighting systemic discrimination and some notable outcomes. Multimillion dollar settlements and judgments are likely to get attention and influence some employment structures. But these do not necessarily break new ground regarding those structures. The following highlights areas in which EEOC might claim credit in changing how America does business.


Selection Methods

Despite having three suits tossed and only two publicized major settlements, EEOC’s litigation and guidance has contributed to a change in the use of credit and criminal history for employment selection. The report indicated only two situations involving formal selection procedures, both ending in pretrial settlement. Other hiring situations involved employers allegedly refused to hire women for “traditionally male” jobs (e.g., truck driving, warehouse operations); these apparently did not involve formal selection methods. Resolution for some of these specifically mention development of better selection procedures, and monitoring for as long as 5 years.


Disability Accommodations

An organization may have to place a person with a disability in a vacant position without requiring the person to compete for that position unless that causes the employer unreasonable hardship (EEOC v. United Airlines, 2012). There were also cases where maximum leave policies may be unlawful if they preclude further leave as a reasonable accommodation.


LGBT Rights

This is definitely a priority area, where the agency is building on precedent regarding gender stereotyping to challenge discrimination on sexual orientation and gender identity. There have been some settlements; but a federal Court of Appeals recently ruled (Hivley, 2016) that sexual orientation is not protected by Title VII. The agency lost on summary judgment in a case that pitted transgender rights against religious rights (EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 2016). The court found that transgender status was not a protected class, but gender stereotype sex discrimination theory did apply. However, the defendant had a legitimate defense under the Religious Freedom Restoration Act; EEOC should have tried for a “least restrictive” resolution before suing. A district court entered the dispute over appropriate rest rooms for transgender people in educational institutions with a nationwide injunction against the federal government (Texas v. U.S., 2016). The opinion criticized several federal agencies, including the EEOC, for equating gender identity discrimination with sex discrimination despite no support in law and contrary to indications in previous policy. The court’s action speaks to a failure to engage in proper rulemaking, not more substantive issues. However, the court covered not only Title IX issues regarding education but also Title VII regarding employment.

Conspicuous by its absence was mention of any major successful pay discrimination suit, although there were settlements, some well into multimillions of dollars. Pay equity has been a priority for the Obama Administration. Mentioned but with little success so far was the effort to strike what has been described by employer-side commentators as standard language in severance agreements regarding further legal activity by the departing employee. On the agenda is fighting employer mandatory arbitration policies for EEO complaints. Federal law, as interpreted by the U.S. Supreme Court, favors arbitration in consumer disputes. This has spurred adoption of employment arbitration policies, particularly those that specify that complaints must only be individual and not class action. See Silver-Greenberg and Gebeloff (2015) for arbitration practices that have outraged consumer and civil rights advocates; there is, of course, advocacy in favor of arbitration.

The agency came out ahead in some fights about its authority that, although not producing substantive change in applicability of EEO law, confirmed its ability to bring big and potentially costly suits. Specifically, courts can only perform a minimal review of presuit conciliation adequacy (Mach Mining, 2015). In an appellate decision, the agency can seek compensatory and punitive damages when it files a class action suit for disparate treatment.

Employer-side advocates, as might be expected, have a less enthusiastic view of the agency’s aggressive stance. But there has also been a body of criticism that the systemic program does not do enough to promote more inclusive workplaces. EEOC’s report does address some of what it has sought to do in that regard under the title of “targeted injunctive relief.” These are practices in the award or settlement regarding practices that the employer will follow in the future.

Criticism of litigation as a blunt instrument to effect inclusion is not new. Selmi (2003) argued that class actions had become the mechanism of monetary transfer, not of workplace reform. Although the conclusions risks overgeneralization, research indicates general effectiveness for goal setting and accountability in increasing demographic representation in workforces. Dobbin and Kalev (2007) concluded that EEOC and Office of Federal Contract Compliance enforcement had positive effects on integrating corporate management. But more recently, Kuang and Archer (2014) noted that, for all the litigation effort 1998–2012, by the end of that period increased participation rates by women and minority groups in the officials and managers group for EEO-1 reporting has been uneven, with some slippage for African Americans. This had also been noted by Dobbin and Kalev (2016). Getting people into the workforce does not address what happens once they are there, an issue particularly salient with workplace harassment. Organizations may be achieving demographic representation without inclusion.

Litigation without follow up is unlikely to promote inclusion. The root of the problem is that litigation is an adversarial process, whereas organizational change needs to be cooperative. A “gladiatorial” contest (Schlanger & Kim, 2014) is marked by winners and losers, and the fighting can continue beyond the court’s decision. Where the employer thinks that the outcome was not fair, or there was a settlement accepted only to avoid hemorrhaging money in protracted litigation, cooperation may not be forthcoming. Terms are imposed on the employer, generally with monitoring provisions for a fixed time period, enforceable by the court. One analogy for this situation relates to the American Civil War and its Reconstruction aftermath; there are the fierce battles followed by an imposed peace, sullen compliance by the defeated regarding civil rights protection, and backsliding once the enforcement pressure is off (Dickson et al., 2016).

In contrast, the “collaboration” model featured cooperation with management and an “experimentalist” approach to solving problems of unequal treatment rather than a rigid follow-up to the litigation, possible with court supervision to ensure that the terms of settlement are fulfilled as specified. Such a model requires mutual trust and commitment, and expertise to develop possible solutions and to refine them as necessary; it likely will require the investment of resources and time. “Collaboration,” of course, has both positive and negative connotations: cooperation for the common cause and selling out the cause.

At issue is not only whether there is follow up but whether it is effective. One complication is confusion regarding a human resources management (HRM) infrastructure and structural reform to end discrimination. The critique of the “managerialist” (Schlanger & Kim, 2014) response to discrimination is that it implements management practices widely accepted regardless of civil rights impact. Although these authors acknowledge the necessity of HRM, they criticize EEOC’s injunctive practices in systemic cases as “pursuing standard, bureaucratic personnel practices.” Insofar as the critique has been applied broadly to HR management practices by others, possibly because there is no distinction between effective and ineffective managerial practices, it misses an essential point that practices such as sound personnel selection procedures exist first to maintain the organization. But besides the problem with ineffective practices as bad management, Edelman and her colleagues (Edelman, Krieger, Eliason, Albiston, & Mellema, 2011) have noted, to their dismay, that courts are influenced by the mere presence of programs intended to alleviate workplace discrimination, regardless of their effectiveness.

There is a longstanding discontent with “diversity” programs as resolving workplace inequity. The matter was discussed by Kalev, Dobbin, and Kelly (2006; see Vedantam [2008] for a summary); a decade later, there is more of the same (Dobbin and Kalev, 2016).  Kim, Kalev, and Dobbin (2012) faulted formalized hiring procedures, diversity training, grievance procedures because they treat managers as the source of the problem, rather than involving managers in solutions to increase diversity.  The critique of the managerialist position offers an explanation for this. Adoption of something that is in line with what the organization does routinely (e.g., classroom training) can be quickly implemented and signals the organization’s intent to do something about discrimination. Insofar as the point of “doing something” is defined primarily as reducing legal liability, it may work. More generally, the managerialist approach treats discrimination as a typical managerial problem with typical policy-and-procedure solutions. The alternative is a sustained postlitigation effort to get at the causes of the discriminatory behavior, perhaps with cost that appeals to neither side. (See King and Gilrane [2015] for a discussion of evidence-based recommendations for leveraging diversity as an organizational opportunity.)

Feldblum and Lipnic (2016) joined the criticism with respect to sexual harassment: training focused simply on avoiding legal liability but a third of EEOC’s charges involve allegations of workplace harassment; much more goes unreported by victims; and employers suffer decreased productivity, increased turnover, and reputational harm—and $164.5M in monetary recovery for 2015 secured by EEOC. The report’s criticism of training and highlighting of a dozen risk factors seems to have caught commentators’ attention; see Burden (2016) for one synopsis. But the detailed recommendations offer more:

  • Settlements and conciliations to include agreement that researchers will be allowed to work with the employer in assessing effectiveness of policies and practices to prevent harassment.
  • Groups of employers encouraged to offer access to researchers to assess the effectiveness of antiharassment training.
  • More compliance training for employers from EEOC.
  • Adoption of civility and bystander intervention training. The report indicates that civility training has appeared in the workplace to counteract bullying and has been used by some Federal agencies. Bystander intervention training has been more of an antiharassment intervention on college campuses.
  • Recognition of culture and climate as influencing individual behavior.

These recommendations are not a detailed proposal nor do they include a comprehensive review of the research literature. Perhaps more technical detail will be forthcoming from the task force. A concerted professional approach that might be taken by the “researchers” might discuss additional concepts and approaches. Related issues might include employee engagement and barriers to securing it, as well as dealing with microinequities and microaggressions. These terms refer to practices, with or without malicious intent, that do not rise to the level of legally cognizable harassment but have a deleterious effect on their targets and, ultimately, on the organization.

There is a touch of realism. Workplace civility training has not been evaluated as a harassment prevention tool per se. The recommendations depend on training, albeit different from the type being criticized. The authors quote the U.S. Supreme Court to the effect that Title VII is not a code of civility. They also take on potential conflict with the National Labor Relations Board (NLRB). In recent decisions the NLRB has found that it is an unfair labor practice for “civility codes” to suppress concerted activity on the part of the employees. Nasty words about supervisors and management in general might be protected.

Also, it would be a mistake to conclude that EEOC has not been concerned with postlitigation efforts to prevent discrimination. Schlanger and Kim (2014), while criticizing the agency for not doing enough, provide case studies illustrating how the agency has collaborated with employers in postlitigation organizational development. The systemic program report indicated that 81.2% of pre- and post-litigation resolutions included targeted equitable relief. Further details on the relief were not discussed; some of the footnotes provide information on specific lawsuits.

Still, this appears to be the first time that the agency has called out practices presumably intended to further EEO as ineffective. The obvious question is what happens next, and an answer has not been publicized. The executive summary in the systemic program report (EEOC, 2006) said “the agency is also studying the promising forms of remedial relief for inclusion in its resolutions to ensure they will have a tangible impact in reducing future violations.”

In June 2016 the agency held a conference for its systemic people that featured social science folks talking about, among other things, inclusion. There were several mentions that this work involves I-O psychology; interestingly, none of the presenters seems to have primary professional identification in I-O.

There are caveats for the agency regarding jumping into the O-side. Lack of resources is an obvious one. As part of the systemic effort, the agency has staffed up with social science people. But they already keep busy with helping investigations, litigation, and special efforts such as the proposed pay collection addition to EEO-1 reports. Being able to monitor a sustained effort without becoming embroiled with the employer’s management of the business is another concern. Traditional agreements specify what is to be done and when it has to be done by; this is usually soon after the case is decided or settled. But a collaborationist approach is exploratory and long lasting; 5 years has been given as a reasonable minimum time frame (Dickson et al., 2016). The caseload for EEOC also limits what systemic opportunities present themselves; most of the caseload is terminations, and generally not with a systemic underlying policy.


Implications for I-O


There are a number of attorneys well versed in the social sciences who comment on diversity and inclusion, but generally their field is not I-O psychology. Absent from much of the legal scholarship on diversity issues is the notion that employers have a nondiscriminatory interest in seeking the best qualified employees, and that qualifications sometimes do not align with protected class demographics. The “diversity-validity dilemma” is a familiar issue to I-O types, perhaps less so to legal scholars. Accordingly, it may be easy for some to dismiss management practices as “bureaucratic,” or “window dressing” that distracts from EEO problems. Our profession should be concerned about this. Lawyers have a tendency to try to make law.

There is an ongoing theme that organizational managers do not adopt effective workforce practices, where “effective” is demonstrable evidence of meeting the practice’s intended purpose. This underlies the managerialist critique. Kalev and Dobbin’s writings note in particular opposition to sound selection methods, a perennial issue; Nolan, Carter, and Dalal (2016) recently observed that managers fear becoming less valuable when technology offers a better outcome than their subjectivity. To the extent that it seems that organizations are doing just fine whether or not they have effective practices, imposition of enhanced EEO protection by law or regulation without regard to organizational effects starts looking viable.

Cumulative research on what works and does not for a given purpose also matters. This needs to be disseminated widely to practitioners.

SIOP has a task force that has been talking with EEOC about contemporary personnel selection issues. EEOC may have an interest in hearing from SIOP on dealing with workplace inclusion. If so, it is an opportunity not to be missed.

Discrimination exists, in various forms; but systemic overt discrimination seems less of a problem than previously. Pay equity and LGBT rights are current topics of discussion, not without controversy. But the discussion implies an interest in exploring what the problems and possible solutions might be. It is also a time of interest in employee engagement, performance management, and collaboration—and diversity and inclusion as well. If a federal EEO enforcement agency wants to encourage interventions that promote both EEO and organizational productivity, as well as research into evidence-based best practices, a collaborationist approach involving individual I-O psychologists a well as academic and consulting institutions should take up the invitation.

The time is ripe.




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