EEOC budget boosted slightly—but big backlog and wider discrimination issues remain

This week, Nathan Abse speaks with Michael H. Leroy—an attorney and professor of labor and employment relations at the University of Illinois College of Law—about EEOC 's budget, its travails and the wider issue fighting discrimination in the American workplace.

Late last year, a wave of revelations of work-related sexual misconduct by leaders in Hollywood and beyond fueled the takeoff of the #MeToo movement, a widespread grassroots pushback against those who engage in such practices—and to focus social and government power to fight workplace sex- and gender-based discrimination. Among the relevant agencies, the Equal Employment Opportunity Commission saw a predictable spike in complaints. A proposed budget cut to the EEOC has since turned into additional funding, to help the agency to deal with even more workplace sexual harassment cases. Yet many observers note that the budget bump is inadequate, as the agency still struggles with historically low staffing numbers and large case backlogs. This week, Nathan Abse speaks with Michael H. Leroy—an attorney and professor of labor and employment relations at the University of Illinois College of Law—about EEOC 's budget, its travails and the wider issue fighting discrimination in the American workplace.

Q&A with Michael H. Leroy

EEOC got a budget bump [$15 million for the year, in a budget of $379-plus million]—but more generally, can you comment on EEOC compared with the direction of this administration?

Leroy: I’ll share my views for what they’re worth. It appears to me that this agency, compared with most other agencies, has been immune to the radical makeover that this president has visited on much of the Executive Branch. I think there’s a big contrast, for instance, between this and the National Labor Relations Board, where the administration has really had a significant impact on curtailing various initiatives started under the last administration. I have followed this as part of my regular teaching duties, and I check in on EEOC with some frequency and regularity. But I don’t have a research project on this right now. In any case, the chairperson is a person who enjoys broad bipartisan support. I think that—even with a modest bump in the budget—this means that for the foreseeable future, this is a mostly status quo situation. There won’t be a breakthrough on the backlog at EEOC, but also there won’t be a crimping of the agency’s ability to enforce the law.

The EEOC does have a big backlog, on all kinds of discrimination claims. Clearly recent events might add to that. But what do you make of the additional #MeToo movement momentum?

Leroy: I think this movement will have a much greater legacy than the Anita Hill and Clarence Thomas hearings [in the early 1990s] did. That appeared to be a turning point, but it turned out to be a mirage. This does not appear to me to be a mirage, and I think that’s for a variety of reasons. For example, so many women have come forward this time. And we have social media—which didn’t exist of course back in the early ‘90s—and so on. It feels like we have hit an inflection point in public attitudes, and that’s a big change. To relate this to the EEOC and the federal courts, though, I think we are going to see renewed efforts to revisit the Supreme Court’s extreme deference to arbitration. The arbitration process is used too much on things that are not appropriate, in my observation. Arbitration is demonstrably now used to hide egregious sexual misconduct. And I think we will see a battle over this—with, on the one hand, defenders of arbitration give their usual justifications for it—of privacy, speed and efficiency. And, on the other hand, you will see the dissenting view—similar to the one in the seminal Gilmer vs. Interstate / Johnson Lane Supreme Court case [regarding age discrimination and the use of arbitration]. I think in the end you will see you can’t force people to arbitrate their federal rights, their employment discrimination claims—that’s something Congress never intended that to occur. So, I think in a way we will be back to the early 1990s, when this was all happening, I mean the Clarence Thomas hearings and the Gilmer case decision, which really insulated a lot of harassment and in many cases insulated outright sexual assault. That will have to change.

Yes, arbitration certainly took a starring role in discrimination claims, but you are alluding to arbitration elsewhere—people submit to arbitration in consumer agreements and others, right?

Leroy: Yes. Gilmer and the progeny cases that followed it have led to deference to arbitration, way too much, in too many places. And I believe this followed from a misreading of the Federal Arbitration Act of 1925. The idea that the Congress was concerned in 1925 about judicial hostility to arbitration, that was too much of all this. So, the consequence of the FAA and its very narrow grounds of review—and the Gilmer case—it was aimed at a [supposed] propensity to re-litigate arbitration outcomes. I think that is erroneous.

Why do you think the FAA law is sort of erroneous, or addressed a non-existent problem—and that it pushed real problems—ultimately discrimination and sexual assault—to arbitration?

Leroy: Because when you look at the deeper history of the arbitration act, this kind of law was meant to apply to business-to-business transactions. Congress wanted businesses, in an age of transcontinental trade among strangers, to be able to trust their own private dispute resolution mechanisms—so they would not have a big dispute afterward in the courts. By the way, there were no civil rights laws back then, really, except the 14th Amendment. I am not making a new argument here. Justice John Paul Stevens made this same argument in the Circuit City vs. Adams  case—if readers want to look that up. My second argument here, and I have made this argument before, is to look into the sources of the 1925 FAA law. I did, asking what is the source of all this? And I found that Congress overstated this whole idea [of courts causing trouble for private arbitration mechanisms]. I found that most of the English common law, up to the 1700s, was already deferential to such arbitrations. I also found a copy of the [English] arbitration act of 1697. It is stunningly similar to our 1925 U.S. statute. I think it came from elements of the old law finding their way into treatises that were then consulted to write the 1925 law. So, all this was like an archaeological dig for me, to get to the original source of these ideas. To finish this thought, when you read this very old law you see that what Parliament wanted was to stabilize trade with other countries. It was not about individual disputes. It was because at the time English courts were a mess and they were losing trade as a result, so the Parliament made a law to get arbitration systems to be respected by courts. And then we, in the U.S., hundreds of years later did the same thing. All of this is about a problem that’s been over-interpreted, to be about individuals, and to include people permitting their civil rights to fall under arbitration. And that is not what any of this was intended for. The move for [arbitration protection] was for business-to-business transactions.

That’s the deep history—but, again, hasn’t arbitration exploded in general? Isn’t that how it is has supplanted our individual rights—sometimes against job discrimination?  

Leroy: It has, yes. Arbitration can include the agreements you enter into with your cell phone provider or cable TV provider. This is all on a spectrum. But, again, looking back at what the FAA law had in mind, back in the 1920s, is that this was promoted to look after the corporations, not individuals. Or unions, for that matter. In fact, a handful of unions showed up to object and they gained exceptions to falling under the law.

In the end, you’re saying that arbitration has its place—but, deferring to arbitration, the courts have given it too much space, and given away too many individual rights, sometimes including workplace rights and anti-discrimination rights—like protections against sexual harassment?

Leroy: That’s right. That states it accurately. And it’s important to note that the Gilmer case was about the securities industry, stockbrokers and the like. Basically, every broker has to agree to arbitration for any and all disputes, with other brokers all the way to customers. (And in fact they had been deferring to arbitration for a very long time, in many instances.) But at the time, very few complaints were about discrimination and workplace issues like that. So, when people signed these, they thought it would cover disagreements about transactions, not about age- or sex-discrimination complaints. Another interesting detail here, statistically these complaints were in the single digits in the 1980s, such complaints. But it has morphed from that to something different entirely. This is a very emerging use of arbitration.

Can you connect us back to the EEOC?

Leroy: The point is the EEOC can spearhead efforts on this front. The EEOC has first jurisdiction on employment discrimination claims. They are the first point of contact and review. They often do not proceed on them, and then people get a “right-to-sue” letter. But this agency is in a prime position to chip away—or confront directly—problems with these issues. Given who the chairperson is presently, I would expect that this would be a priority.

Can you relate this to the wider social movements against workplace and job discrimination?

Leroy: This brings me back to the #MeToo question you were asking. I would say that it is true that Supreme Court precedent clearly allows that sexual harassment claims can be referred to arbitration, by agreement [of the parties], and courts should not interfere with that. But there are problems that should be addressed. I have not seen a Supreme Court ruling that says sexual assault claims in a workplace can be referred to arbitration, and that a sexual assault victim has waived her rights to be heard and pursue remedies in a court of law. Yet you see that happening. Here, we are talking about egregious forms of misconduct—beyond propositions to go out on a date or exposure to pornography in the workplace and the like.

How can that even happen? The confusion of the two kinds of misconduct and areas of law?

Leroy: Sexual harassment is a broad term, and it can encompass sexual assault. But many courts have concluded that sexual assault creates independent causes of action. You will see this in non-arbitration cases, when a complainant sues for intentional infliction of emotional distress, assault and battery, false imprisonment—you see? They might have been groped, or even held in a room against their will. And what sometimes happens is they sue in tort, but an employer then says, “Oh, that’s sexual harassment, so you’re only cause of action is to go to state or federal venue, like a Title 7 forum.” But certain courts, unfortunately, have said, no, assault and battery situations like this are a separate cause of action. The idea that a person who may have waived their rights to pursue sexual harassment claims does not mean they also have given up their right to sexual assault claims, in another venue.

Federal employees mostly pursue workplace and discrimination claims first through MSPB. But as to #MeToo, which likely is adding to caseload in all complaint venues, where are we headed?

Leroy: History is a much better guide than trying to determine an answer on this kind of thing from the moment we live in. But I think the major differences of our time are the immediacy of social media, and especially posting pictures. Look at what happened to the White House staffer, Rob Porter. A picture can be worth a thousand words. Some of these stories then have corroboration, directly. And so, whatever shame a victim feels, erodes, and then there is a greater support system. And there is a sense among victims that they need to speak up, and that if they don’t someone else will become a victim. Now, looking back at the 1990s, it is disappointing what happened. Many men, mostly men, continued to [commit workplace or work-related misdeeds] and many of the women did not speak up. But now, I think it’s coming to a head. Things have changed.

Is there is a downside to the new ways we are fighting sexual and other misconduct and discrimination?  

Leroy: The flip side of what permits #MeToo to take off—openness, transparency, immediacy— is that there is now also the ability to spread falsehoods fast, too—at the speed of light, with the click of the mouse. We must guard against this too. It’s a scary aspect of our time.

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