On a quiet evening in 2016, Jose the night supervisor was tickled by a funny animal meme. He printed the picture and taped it to the office fridge. The next morning, when Jackie the day supervisor arrived, she took one look and proclaimed the picture “racist.”
Coworkers from a variety of ethnic backgrounds argued over whether the meme had some hidden racial meaning. Certainly, Jose was horrified to discover that he had offended anyone. After a quick consultation with Human Resources, the picture was tossed, and everyone went back to work.
Just kidding! Jackie decided to file a complaint with the Equal Employment Opportunity Commission (EEOC). Her claim: unlawful, hostile work environment and harassment, based on an ambiguous picture posted for less than 24 hours. Meanwhile, the ordeal for my client—the company employing Jose, Jackie, and their co-workers—continues to this day.
The Mission of the EEOC
More than half a century ago, as part of his Great Society speech President Lyndon Johnson pledged to end racial injustice. Shortly afterwards, Johnson signed the Civil Rights Act of 1964, creating the EEOC. The EEOC is tasked with enforcing federal laws prohibiting workplace discrimination. Officially protected categories include race, color, religion, sex (including pregnancy, arguably gender identity, and sexual orientation), national origin, age (40 or older), disability, and genetic information. The EEOC also protects employees who make complaints about unlawful discrimination.
So how is the EEOC doing? According to Jacqueline Berrien, chair of the EEOC under President Obama, “the goals of Title VII and the Civil Rights Act of 1964 in its entirety are not yet achieved… The EEOC receives nearly 100,000 charges of discrimination each year… too many women are paid less… too many people are forced to choose between their jobs and religious beliefs… too many persons with disabilities are excluded… too many older workers are screened out… too many LGBT employees suffer harassment.”
Sounds like the mission is not going well at all. Yet Berrien recommends that “this generation… continue the unending search for justice.” In other words, the EEOC intends to keep doing more of the same. Barring further government shutdown, of course.
The Methods of the EEOC
At its core, the EEOC is a complaint-based system. If you believe that you have been discriminated against at work based on any protected category, you are encouraged to file a complaint against your employer. An EEOC investigator will then contact your employer to request documents and witness interviews to determine whether discrimination actually took place. Because this process is intimidating, most companies retain a lawyer to respond.
The EEOC has quite a backlog of cases (see Berrien’s comment above re: 100,000 charges each year). Investigations linger for years. Notably, the vast majority of EEOC cases—more than 97 percent—close without a finding of discrimination. Yet investigating those cases still requires a massive amount of public and private resources.
Back to Jackie and the ambiguous animal meme. As the company’s attorney, I was responsible for responding to the EEOC complaint. I conducted my own investigation and prepared an 8-page position statement, complete with exhibits A-F. Several months later, the EEOC requested additional documents, which I provided. Another several months later, the EEOC requested more documents, which I provided.
Twenty-seven months into the investigation, the EEOC requested witness interviews, which I facilitated. To this very day, the EEOC has not determined whether unlawful harassment actually took place. Yet my client has paid thousands of dollars in attorneys’ fees, not to mention lost time and productivity.
Whether the EEOC admits it or not, investigating juvenile workplace disputes is a drag, perhaps for the investigator as much as the employer. As an alternative, the EEOC offers a “mediation program” where the employer and the employee can settle their differences without an investigation. In other words, the employer can pay money to the employee (without any finding of discrimination) and the EEOC will dismiss the complaint. Although the arrangement smacks of extortion—especially when the EEOC itself does not find discrimination 97 percent of the time—many employers are happy to pay and move on.
The EEOC’s complaint-based system has become self-perpetuating. Employees can allege discrimination and receive money as a result, without ever having to prove that discrimination actually took place. This encourages more employees to file more complaints. When you multiply this effect by all of the other complaint-based agencies and programs (including workers’ compensation, the Department of Labor, the National Labor Relations Board, etc.) employees can actually make more money complaining than working.
The Mistake of the EEOC
As described by Israel Kalman, a top-down, law enforcement paradigm is irrational for governing human social behavior. Like anti-bullying programs, the EEOC’s anti-discrimination programs encourage helplessness and victimhood.
Instead of learning to shrug off boorish comments, we run to an agency that will translate our hurt feelings into a payoff. Employee and employer are trapped in a seemingly endless cycle of escalation, especially once lawyers become involved. (Important caveat: law enforcement should be involved in criminal behavior, such as assault).
Obviously, our legal system must treat all people equally and fairly. It goes without saying (but I will say it anyway) that Jim Crow laws were an abomination. Yet at the same time, we must admit that the Great Society is an unattainable utopia. Today, instead of racial harmony, we have an intrusive bureaucracy, complete with thousands of pages of regulations, that restricts our freedom and perversely perpetuates the problem.
No government agency can regulate or investigate away prejudice. Bigotry is bound up in each individual human heart. But this does not mean racial reconciliation is hopeless. Each of us has the ability to implement the Golden Rule in our lives, to build meaningful relationships with people who are different from us. Each of us has the ability to forgive, and to ask forgiveness.
These abilities, unlike the EEOC, do not depend on the president cutting a deal with Congress.