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Lori Litchman (The Legal Intelligencer) reports that the Equal Employment Opportunity Commission has sued a law firm in federal court for terminating two clerks. The EEOC alleges that the Philadelphia law firm of Dessen Moses & Sheinoff retaliated against the two employees because they filed a complaint with the EEOC.

One would think that a Philadelphia law firm might have an inkling about the law. Now they are in an excellent position to learn about it.

“The complaint seeks a permanent injunction enjoining the firm from ‘continuing to wrongfully terminate’ employees. The EEOC is asking the court for back pay with prejudgment interest and other ‘affirmative relief for Brown and Bizzell.’ The EEOC is also asking for past and future nonpecuniary losses, punitive damages and attorneys' fees and costs.”

Mike McKee (The recorder) wrote a great article about how helpful The Equal Employment Opportunity Commission (EEOC) can be in getting a case certified as a class action. Employers chuckle up their sleeves at paying settlements to a few individuals; that only amounts to pocket change to them. But a lawsuit that is certified as class action gets their attention every time. A successful class action lawsuit can hit a corporation with the force of a bazooka! The settlements will not go to only a few plaintiffs; settlements could go to hundreds or thousands of wronged people.

The rub is that it can be difficult to meet the criteria to have the case certified as class action. The good news is that the EEOC is exempt from these strict standards. The EEOC has been known to intervene in private lawsuits and help them become class action. Employers fight hard to keep the EEOC out of private suits.

The good new for all those who have filed cash balance age discrimination charges across the United States is that the EEOC has been involved since day one! As in all legal matters, there is no guarantee of anything. The EEOC would have to determine that companies have indeed engaged in age discrimination. The EEOC would then have the option of filing lawsuits against the offending companies.

The EEOC has already offered us a “right to sue notice.” At the end of their investigation they could still just issue a right to sue notice. That is when it would be vitally important to have your own age discrimination charged filed.

It takes very little effort and no money to file an EEOC age discrimination charge. Regarding cash balance pension plans, it does not even matter what age your are! All employees who have lost pension money can get aboard this train. If you file a cash balance age discrimination charge, your file will be sent straight to Washington D. C. to be investigated. Call 1-800-669-4000 and ask to speak to an investigator. They cannot call you; you have to call them.

EEOC Intervention in Workplace Complaints

The American Bar Association Joint Committee on Employee Benefits has announced the results from a meeting with the Equal Employment Opportunity Commission.

The EEOC is still investigating the cash balance issue. All field offices are referring cash balance charges to the EEOC Washington headquarters. Actuaries have been hired to assist in the investigation.

Approximately 1,000 individual charges have been referred to headquarters. The EEOC is focussing on processing these individual charges. The EEOC is coordinating with other federal agencies on the cash balance issue.

1-800-669-4000 will connect you to the nearest EEOC field office.

This disclaimer was offered: “The responses reflect the unofficial, individual views of the government participants as of the time of the discussion, and do not necessarily represent agency policy… The questions and answers may not be relied upon or cited as legal authority for the EEOC's official position on any matter.”

WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has begun a review of its policy concerning the application of the Age Discrimination in Employment Act (ADEA) to employer-sponsored retiree health benefit plans, such as those offering extended health care coverage in the form of a Medicare bridge (coverage until Medicare eligibility at age 65). That policy had provided that retiree health plans that are reduced or eliminated on the basis of age or Medicare-eligibility violate the ADEA.

The announcement came in the form of an official rescission of portions of the Commission's Compliance Manual Chapter on "Employee Benefits" that discuss the application of the ADEA to retiree health plans. The rescission was approved on August 17 by a unanimous vote of the Commission.

Explaining the decision to rescind and review the policy, the Commission's new Chair, Cari M. Dominguez, said: "The Commission has heard from a wide range of stakeholders including employer, employee, and labor groups expressing concerns about the impact of the now rescinded policy on the future of employer-sponsored retiree health benefits. The Commission shares these concerns, and our review will focus on the development of a new policy, consistent with the ADEA, that does not discourage employers from providing this valuable benefit."

Commission Vice Chair Paul M. Igasaki observed that the agency "must carefully craft a policy which protects the rights of older retirees but does not deter employers from providing health benefits to retirees in general."

The Commission will continue to vigorously pursue other types of age discrimination claims involving retirees, such as cash-based early retirement incentives that are reduced or eliminated with advancing age.

Cari M. Dominguez has been sworn in as the new Chair of the U.S. Equal Employment Opportunity Commission (EEOC). In her favor, she was unanimously approved by the U. S. Senate.

We appreciate the efforts that Ms. Ida L. Castro put into improving the effectiveness of the EEOC and her involvement in investigating the cash balance pension issue.

Hopefully, Ms. Dominguez will also support pension justice for millions of Americans.

The U.S. Equal Employment Opportunity Commission (EEOC) announced a $3.5 million settlement of an employment discrimination lawsuit against Quality Art LLC. The suit also included allegations of retaliation against employees who complained about discrimination.

EEOC Chair Cari M. Dominguez said: "This case is an unfortunate example of the kind of abhorrent discrimination that still exists in some of today's workplaces. This settlement also exemplifies the effective interagency coordination between EEOC and INS to protect immigrants from being targeted for abuse, exploitation, and retaliation in the workplace."

Shannon P. Duffy wrote in The Legal Intelligencer: “In an age discrimination case, the plaintiff does not need a ‘right-to-sue letter’ from the Equal Employment Opportunity Commission, but instead can proceed directly to court 60 days after filing an EEOC charge, a federal judge has ruled.” This is great news; more barriers to justice are being knocked down!

In 1999, EEOC officials informed Duke Energy employees that if they found the company had engaged in age discrimination with the cash balance pension plan conversion, several things could occur. If Duke Energy made the employees whole for any pension injustices, the matter would be resolved. The EEOC could sue Duke Energy on behalf of those employees who had filed charges. The EEOC could issue a “right-to-sue-notice” to those who had filed age discrimination charges. In fact, earlier this year, the EEOC offered to issue right-to-sue-notices to employees who had filed charges against Duke Energy. We chose to let the EEOC continue their age discrimination investigation of Duke Energy.

This court ruling gives employees even more latitude in filing age discrimination lawsuits. Things are looking up.

Plan Sponsor revealed that The Equal Employment Opportunity Commission (EEOC) is reviewing its retiree health care benefits policy. The EEOC revised its enforcement manual after the Erie County Retirees Association v. County of Erie, Third Circuit Court of Appeal ruling. This ruling found that the Age Discrimination in Employment Act (ADEA) applied to employers who provide different health care benefits for certain retirees.

The bad news is that the American Benefits Council (ABC) has met with EEOC officials to discuss the review of the policy. The ABC represents the interests of large employers. Their sole purpose in life is to separate employees from as many benefits as possible. Now EEOC policy changes seem to be on hold.

Have you heard about the EEOC meeting with any employee representatives? Is it any wonder that the rules always seem to get bent against the employees?

July 16, 2001, The U.S. Equal Employment Opportunity Commission (EEOC) announced settlement of an employment discrimination lawsuit against Salomon Smith Barney (Salomon), a subsidiary of Citigroup. The EEOC won the $635,000 settlement on behalf of 13 current or former employees of Salomon.

The EEOC brought an employment discrimination lawsuit against Ingersoll Milling Machine Company. The case was resolved with a $1.8 million Consent Decree.

A harassment lawsuit by the EEOC against Beverly Enterprises, Inc. was resolved with a $1.2 million settlement. EEOC Chairwoman Ida Castro said: "This case emphasizes that employers cannot condone racially repugnant conduct by their managers or retaliation against those employees who complain…”

A joint lawsuit was filed by the EEOC and the Office of the Attorney General for the Commonwealth of Massachusetts against Bull HN Information Systems. The suit charged discrimination against older workers regarding a series of reductions-in-force. The employees were allegedly required to sign unlawful waivers of claims in violation of the Age Discrimination in Employment Act of 1967. June 12, 2001, the EEOC announced that the U.S. District Court of Massachusetts had granted its Motion for Summary Judgment. Chairwoman Ida L. Castro said: "Unlawful waivers that strip older workers of their rights under the ADEA will be pursued by the EEOC to the fullest extent of the law. Employers will be well served to ensure that staff reductions comply with civil rights protections."

The cash balance plan age discrimination charges, filed by many employees, are still under investigation. Those who have dealt with the EEOC before claim that a lengthy investigation is a good sign.

The Chicago Tribune reports that age discrimination charges are increasing. “16,000 people filed age discrimination complaints with the Equal Employment Opportunity Commission, up 2,000 from the year before and the highest number since 1995. Complaints for the first six months of fiscal 2001 are up 15 percent from the same period last year, the EEOC says.”

Due to recent lawsuits, the issue is getting more attention. The EEOC announced an age discrimination and retaliation settlement in a lawsuit against Wal-Mart Stores Inc. on behalf of a 51-year-old woman.

When the woman filed the age discrimination charge, Wal-Mart fired her. So the EEOC hit them with an age discrimination and retaliation lawsuit.

The strangest development in this case is that Wal-Mart management appears to accept some fault. Usually the company will pay the settlement and admit no fault at all.

“Bill Wertz, a spokesman from Wal-Mart headquarters in Bentonville, Ark., said that a large percentage of the company's associates are over age 55. He called Killian's case an isolated incident.

“‘We were not satisfied that we handled this situation properly,’ he said. ‘We didn't feel age discrimination was involved. We did feel our manager did not act consistently with our principle, which is to treat all of our associates with respect.’

“The manager who fired Killian is no longer with the company, Wertz said.”

We will have to give Wal-Mart management some credit for actually accepting accountability for their actions. That is a management rarity! It also appears that the proper head rolled.

Richard Gonzalez, Chicago-Kent College of Law legal clinic, indicated that jurors sympathize more with age discrimination victims. He said: “With judges and juries, if they're not black or a member of an ethnic group, there are some things they're never going to understand. We're all going to be old someday. These jurors are thinking `What if this happens to me?"'

The New York Times revealed that a report issued by the Equal Employment Opportunity Commission in 1999 has lead to a federal harassment lawsuit being filed against city officials of Giuliani, N. Y. One attorney charges that the Giuliani administration had refused to improve working conditions after the EEOC report was filed.

The lawsuit charges sexual and racial harassment by supervisors. Attorney General John Ashcroft approved the lawsuit.

Duke Energy has become aware of the harassment issue, and has been conducting “Harassment Training” classes. Why has Duke suddenly “seen the light”? The sole reason is that many companies are facing stiff fines because they condoned harassment in the workplace. When money talks, Duke listens!

If the courts start cracking down on cash balance pension games, Duke will suddenly see the light on this matter also. Every call made to Washington, and each age discrimination charge filed helps the cause.

Pension age discrimination charges continue to be filed with the Equal Employment Opportunity Commission (EEOC), according to The Bureau of National Affairs. 892 pension age discrimination charges were filed between August 1999 and the end of 2000. The overwhelming majority of the charges were due to cash balance plans.

The EEOC is investigating these charges and some of them have been assigned to actuaries. "We would all like to move as quickly as possible but the solution is not easy," said Diana Johnston, assistant legal counsel in EEOC's Office of Legal Counsel.

The Internal Revenue Service, Treasury Department, and Labor Department are also investigating the legality of cash balance plans. Gregory C. Braden, a management attorney with Alston & Bird in Atlanta, said: "IRS is not going to stick its neck out and bail out cash balance plans in this environment."

For companies considering converting to a cash balance plan, Mr. Braden asks: "Are you ready to take the heat, the negative publicity, the negative hit to employee relations? Are you ready to spend more on communications strategy than the company is likely to save in pension costs?"

He warns employers that if any employee files an age discrimination charge with the EEOC, they will demand "extensive documentation." They will want to know the reasons for the conversion. Mr. Braden further warns employers: "Be aware of the 'wear away' effects of any cash balance plan conversion." Many attorneys believe that "wear away" also violates age discrimination laws.

Professor Edward A. Zelinsky, Yeshiva University's Benjamin N. Cardozo School of Law, said: "The plans are probably illegal under current law."

With headquarters in an unimpressive modern building in the middle of the northwest quadrant of the capital, where it is surrounded by small businesses and lobbyists' offices, the Equal Employment Opportunity Commission seems far removed from the marble columns and sway of the White House and Capitol just a few miles away.

Although the agency's mission of fighting discrimination in the workplace is central to a nation founded on the principle of equality, the E.E.O.C. has spent most of its 37-year history out of sight and of mind, and typifying the worst of government bureaucracy.

While it has become a much better-managed organization in the last eight years, the E.E.O.C. has many critics. They say it lacks the political will and the wherewithal to aggressively pursue all companies guilty of blatant discrimination and harassment.

Within weeks, a new commission chairman is expected to be confirmed by the Senate for a five-year term. President Bush has nominated Cari M. Dominguez, a workplace consultant who served in the Labor Department during the administration of Mr. Bush's father. Ms. Dominguez will replace Ida L. Castro, the chairwoman appointed by President Bill Clinton in 1998.

But President Bush's commitment to the agency is unclear, and most people who follow the agency expect the new administration to continue the pattern of previous ones, Democratic and Republican alike, in considering it a low priority. Without larger budgets and greater political influence, the new chairwoman may have as much trouble as her predecessors in transforming the agency into a powerful force.

Although it does manage to process the tens of thousands of complaints it receives each year, the agency seems passive, unable to develop a dynamic master plan to root out the worst cases of discrimination. Its enforcement efforts often seem haphazard and uncoordinated, critics say, and it is noticeably absent in many lawsuits accusing the nation's most powerful companies of widespread discrimination.

It did not join a lawsuit filed in mid-June, for example, by six female employees against Wal-Mart Stores, accusing the company of engaging in widespread discrimination against women. The suit seeks class- action status for an estimated 700,000 women - former and current employees - in what could be the largest discrimination lawsuit ever brought against a private employer in the United States. The company denies the allegations.

Throughout corporate America, complaints of discrimination and harassment remain stubbornly high, despite the decade-long economic boom that forced many employers to scramble for workers. Some 80,000 individual complaints are made annually to the commission, a number that has held steady in recent years. A growing proportion are accusations of harassment of women and minorities: factory floors where some men feel free to expose themselves and work places where supervisors don Ku Klux Klan hoods or fellow employees hang nooses. Claims of retaliation by employers against workers who have complained of discrimination have nearly tripled in the last decade, to about 22,000 a year.

"There are thousands of establishments that appear to be discriminating," said Alfred W. Blumrosen, a professor at the Rutgers School of Law in Newark, who was an official at the agency in its early years and has maintained ties there. With a Ford Foundation grant, Mr. Blumrosen is analyzing the agency's own data, without identifying specific companies, to determine the breadth of discrimination in the United States. He plans to release his results this fall.

Through much of its history, the E.E.O.C. has been plagued by a lack of resources and a combination of internal politics and inefficiencies that have prevented it from accomplishing much more than isolated victories. While it has recently taken stands on some controversial issues - it has sought to prohibit employers from using genetic testing on employees and to force companies to cover the cost of prescription contraceptives - its critics say it is too cognizant of how the political winds are blowing to pursue its mission aggressively.

"There is not a huge national will to have the agency be more effective," said John Rowe, a district office director in Chicago who has worked for the E.E.O.C. for nearly 30 years. "It shows itself not only in the want of resources and want of political appetite for radical change but also down in the trenches. It's unwise to upset anybody too much."

Since the agency gets little respect, morale has chronically suffered. Without the money to hire more lawyers and investigators or to buy computers, the agency fell further and further behind in the 1980's into much of the 1990's.

Some people hope that the new leadership can reinvigorate the agency, not least because they have better relations with corporate America. "I still want the E.E.O.C. to be a powerful player," able to work with companies and take vigorous enforcement action when necessary, said Lynn Martin, a labor secretary in the first Bush administration. But she added that now would be time for "a good look-see" at the agency.

While civil rights advocates generally praise the commitment of the new nominee, Ms. Dominguez, to ending discrimination, much of her ability to make a difference will depend on support from the White House. "Unless you have a direct line in there, you are not going to get much accomplished," said Gilbert F. Casellas, who was chairman of the agency for three years during the Clinton administration.

There is a danger that the president will not support Ms. Dominguez if she stakes out positions that are too assertive. Mr. Bush has already undercut the positions of some members of his cabinet, notably Christie Whitman, administrator of the Environmental Protection Agency, who had to back down on her support for cutting power-plant emissions.

There also appears to be little hope that the commission will receive larger budgets under Mr. Bush. The slight increase requested for the coming year translates into a de facto cut because so much of the agency's budget represents salaries for its 2,800 employees and payments for the space it occupies in 50 field offices and 24 district offices across the country. Those costs are rising faster than the size of the budget.

Although it still has miles to go, the agency is more efficient than it used to be. Chronically short of staff and laboring under a policy of Clarence Thomas, its chairman from 1982 to 1990, to fully investigate each and every complaint, the agency was drowning in a backlog through the early 1990's.

Under Mr. Casellas and Ms. Castro, it extricated itself from the piles of complaints clogging its system.

"This agency is a viable enforcement agency," said Nancy Kreiter, the director of research at Women Employed, a nonprofit group in Chicago that evaluates the commission and, in recent years, has been chosen by the agency to monitor its settlements. "It was not eight years ago."

The agency has begun to prioritize complaints and now tosses out as many as one-fifth as having little merit. "The gunshot wound and the paper cut should never be treated the same," Mr. Casellas said. The number of unresolved claims has been slashed to 41,000 from a peak of 111,000 in 1995. The average filing is now resolved within six months.

The agency, whose responsibilities expanded significantly under the Americans with Disabilities Act of 1990, was also able to free resources by better managing its operations. "When we came in," said Paul M. Igasaki, the vice chairman, referring to his arrival with Mr. Casellas and another commissioner in 1994, "there were enough inefficiencies to wring out."

An influx of about $60 million, in addition to its usual budget, in the last three years of the Clinton administration allowed the agency to play some desperately needed catch-up. Ms. Castro hired more lawyers and investigators and made investments to upgrade the computer system. When she arrived, some offices around the country had no e-mail or access to the Internet. She was also able to spend money on formal, in- house job training for employees.

The agency also came up with some creative ways to stretch its resources. One initiative, in particular, has won universal praise: a voluntary mediation program overseen by the agency. Some 23,000 employment discrimination cases have gone through such mediation in the last two and a half years, and, for the most part, employers and employees alike have been extremely satisfied with the process.

"We think the program ought to be expanded," said Jeffrey A. Norris, the president of the Equal Employment Advisory Council, a nonprofit group in Washington with 350 member companies that seeks to influence employment law and policy through courts and regulators.

The agency also brought some lawsuits that garnered headlines and won applause from civil rights advocates. In June 1998, the Mitsubishi Motor Manufacturing Company of America agreed to pay $34 million to hundreds of women to settle a suit over accusations of sexual harassment at its plant in Normal, Ill. The previous year, the E.E.O.C. reached a $63.5 million agreement with Publix Super Markets in a sex-discrimination suit and a $13 million settlement with Martin Marietta over allegations of age discrimination.

The agency says it has won more money for aggrieved employees in recent years from settlements and other agreements with employers. That reached a peak of about $250 million in the latest fiscal year - not including $50 million awarded by courts.

"The results have been pretty much, if I may say so, astonishing," said Ms. Castro. Many would agree.

But money remains crucial to the E.E.O.C.'s ability to keep functioning at such a level, especially in maintaining its computer systems and developing innovative programs. "Without the resources, I would not have been able to accomplish half of what was done," Ms. Castro said.

A few years ago, for example, when Congress refused to provide additional money, the agency had to cut back on the mediation program. It still has not fully taken off. And when the agency began experimenting to check employers' hiring processes by sending out test applicants, Congress reacted by refusing to allocate any money for such a tool.

The agency also faces challenges quite distinct from its level of resources. One is internal politics. It is a bipartisan agency, and the chairman, who is appointed by the president, serves with four other commissioners, Republicans and Democrats, in staggered terms. When Ms. Castro leaves - her term expires in 2002 - the new agency head will inherit two Democratic commissioners, Mr. Igasaki and Paul Steven Miller; the other two seats are now empty. The president also appoints a general counsel, who is in charge of litigation efforts and who has sometimes viewed his or her position as independent of the other commissioners. (That position has been vacant since December.) Regional offices, meanwhile, have had varying degrees of autonomy…

The decision by Mr. Casellas to delegate more authority to the local level has also led to a wide variety of interpretations of the agency's mission. The offices "have had a free hand in setting their own agendas and courses," said Reginald E. Jones, a commissioner from 1996 to 2000 and now a lawyer at Ogletree, Deakins, Nash, Smoak & Stewart in Washington. In some cases, he said, one office will pursue a different strategy than another on the same issue.

Mr. Igasaki agreed that this was a problem. "We need to be clear with the field on what is delegated and what is not," he said.

Coordination among regions also remains weak. The Chicago office, for instance, reached an agreement with the Ford Motor Company over complaints of sexual harassment at two area plants; in the deal, the company agreed to pay $7.5 million to the employees who said they were harassed. But several similar complaints about some of the company's Michigan plants have not been litigated by the Detroit office, which has taken action against Ford in other matters.

Yet the Norfolk, Va., office did sue Ford earlier this year over similar accusations at a truck assembly plant there. In that case, which is still pending, Ford said its investigation of the complaints could not find anyone who might have been responsible for any harassment. The company has said it takes complaints of sexual harassment very seriously and is aggressively educating its employees on the issue.

In its defense, the agency points to a few examples of different offices working closely together on cases, including a 1997 disability discrimination suit brought by the San Francisco and Cleveland offices against the United Parcel Service. That case, which involves drivers with vision in one eye, is still pending. U.P.S. says it does not believe that this is a matter of discrimination, but of the safety of the driving public.

The commissioners acknowledge that more needs to be done to coordinate efforts. "These are very, very hard institutional issues to work through," said Mr. Miller, the commissioner.

Even when an issue is a clear priority, like protecting disabled employees, enforcement efforts often appear piecemeal.

The commission has sued Wal-Mart 16 times, most recently in June, because of complaints that the company was violating the rights of disabled employees. Only a handful of those cases have been resolved. The E.E.O.C. says it does not know at this point if the claims of discrimination at different stores reflect some companywide policy.

Wal-Mart says it has a strict policy against discrimination of any kind. Critics also say the agency has often failed to use its full power to attack the most systemic cases of discrimination. While the agency collects information from employers that can show discrimination patterns, it does not often use the data to file suits or to warn companies that they may be discriminating. The political sensitivity over quotas has made the E.E.O.C. and other agencies "cautious about numerical guides and standards," said Professor Blumrosen, despite what he believes is their legal authority to pursue cases on that basis.

The agency also remains backward in its use of technology to look at data. While it expects to upgrade its computer system soon, for now most people outside of headquarters cannot easily look up a specific company and see all the different discrimination complaints brought against it. "We use the data we have," Ms. Castro said. "We don't use it to the maximum extent."

While the E.E.O.C. has been aggressive in bringing lawsuits on behalf of some people who might not bring them, like mentally retarded employees and illegal immigrants, it has been hesitant to use its resources to go after what may be the very worst offenders, critics say. When accusations surfaced of sex discrimination at Wal-Mart, for example, three private law firms joined forces with three nonprofit legal groups to come up with the resources to pursue the case and spent more than a year gathering evidence.

The E.E.O.C. has also stayed on the sidelines of other high-profile cases, like a lawsuit against Xerox contending racial discrimination or the recent suit accusing Microsoft of racial and sexual bias. The agency says it may at times defer to private lawyers or work with them on cases involving the public interest.

The companies involved in these lawsuits deny the accusations.

The agency says it tries to represent individuals as well as pursue suits that may have larger impact. About a third of the cases it is choosing involve groups of people or accusations of systemic discrimination.

Critics also say the agency does not adequately follow up on remedies for discrimination once it has reached an agreement with an employer to do so. While the agency monitors repeated complaints, it typically does not initiate reviews. It did take Wal-Mart to court recently, accusing it of violating a settlement; Wal-Mart said it has made a good- faith effort to comply.

With limited resources, some people at the agency say choices must be made. "There is a point at which you have to say `next case,' " Mr. Rowe said.

Without greater support from both Republicans and Democrats, the E.E.O.C. may be destined to struggle along in this state. In many eyes, that appears likely.

"It seems that continual neglect is the preferred policy," said Professor Selmi of George Washington.