The EEOC: At the “Vanguard” of Fight Against Discrimination

It was Clarence Thomas and Anita Hill who introduced many Americans to the Equal Employment Opportunity Commission (EEOC) in October 1991. Thomas was a Supreme Court nominee. Hill, his onetime assistant at the agency, had accused him of sexual harassment

The accusations nearly derailed the Thomas nomination. Allegations of sexual advances in the workplace by a High Court nominee were bad enough. The fact that they were said to have occurred at the federal agency established to root out such discrimination was even worse.

Thomas vehemently denied Hill’s accusations, and ultimately won confirmation by a vote of 52 to 48. Nonetheless, the nomination fight carried ripple effects for the EEOC. In the year after Thomas’s confirmation, the number of sexual harassment claims filed with the agency nearly doubled. By 1997, claims would almost triple.

CIVIL RIGHTS DEFENDER

The Thomas nomination put the work of the EEOC, albeit briefly, in the national spotlight. For the agency’s first 27 years, it operated quietly, and on a shoestring budget.

The EEOC was established under the Civil Rights Act of 1964, and charged with policing discrimination in the workplace based on race, color, national origin, sex and religion.

At first, it lacked any real enforcement ability. It had the authority to investigate claims of discrimination, but could not bring cases to court. Instead, EEOC officials would have to refer potential lawsuits to the Department of Justice.

That changed in 1972, when the EEOC won the authority to file civil charges. With that new power, the agency began to bring a variety of cases that would reshape how the nation’s courts interpreted civil rights legislation.

In 1973, for example, it laid the framework for the Supreme Court opinion McDonnell Douglas Corp. v. Green, a landmark case that has come to define what constitutes workplace discrimination in hiring decisions. In the 1986 case Meritor Savings Bank v. Vinson, the court, citing the EEOC’s policy guidance, ruled for the first time that sexual harassment is a violation of the Civil Rights Act.

More than 99,000 complaints were filed with the agency in 2012 — the bulk of which involved charges of workplace retaliation — contributing to a record $365.4 million in awards from private sector as well as state and local government employers for victims of workplace discrimination. That compares to a budget of roughly $360 million — less than the cost of a fighter jet.

SHIFTING FOCUS

As FRONTLINE reports in Rape in the Fields, the EEOC has turned its focus in recent years to the issue of sexual abuse among undocumented immigrants. That effort began in force in 2002 with a case against Coalinga, Calif.-based Harris Farms.

In the case, Olivia Tamayo, a Mexican immigrant, seasonal farmworker and mother of five, alleged she was raped at gunpoint three times by her supervisor, Rene Rodriguez. In pretrial testimony, Rodriguez insisted that their relationship was consensual, but a jury sided with Tamayo, ordering Harris Farms to pay $994,000 in damages.

Beyond the issue of rape in the fields, the EEOC has zeroed in lately on challenging employer rules that place a blanket ban on hiring anyone with a criminal conviction record. In June, it brought suit against a U.S. unit of German automaker BMW and the discount retailer Dollar General for conditioning its job offers on passing a criminal background check, a policy it says “results in a disparate impact against blacks.”

Similarly, the agency has gone after firms who use credit checks in hiring decisions, but with limited success. In 2010, it sued Kaplan Higher Education Corporation, accusing it of discriminating against black applicants through its use of credit histories in the hiring process. The case helped draw national attention to the issue, but was ultimately dismissed by a federal judge for lack of evidence.

“IN THE VANGUARD”

The Kaplan case underscores a common criticism of the EEOC — the agency aims big, but its lawsuits are frequently unsuccessful in court.

“They will try to develop federal case law in a way that conforms to their theories of sex discrimination, race discrimination, disability discrimination,” according to Michael LeRoy, a labor law expert at the University of Illinois at Urbana-Champaign. “But the federal courts have to go along with this, and if they don’t, it’s sort of a waste of energy.”

One problem, is “they were designed to be a relatively weak agency,” said Samuel Estreicher, director of the Center for Labor and Employment Law at New York University. The EEOC can’t bring criminal cases, he noted, which means the agency is often bumping up against the limits of its jurisdiction.

Consider the agency’s work with migrant workers, said LeRoy. While the EEOC may want to cut down on the exploitation of workers from particular countries, it’s hampered by regulations beyond its control, such as minimum wage laws or sheltering laws that spell out what kind of housing employers must provide workers.

“The EEOC clearly does not have jurisdiction to go after those sorts of issues,” said LeRoy.

At the same time, he said, “The EEOC has traditionally been in the vanguard of pushing for broader antidiscrimination theories.”  Leroy pointed to the agency’s work around sexual harassment as just one example.

Moreover, said NYU’s Estreicher, for a “limited-powers agency,” the EEOC has done a lot with a little. “It’s accomplished a great deal,” he said, “in large part because the statutes they enforce are generally supported by the courts.”