Facing workplace discrimination? EEOC might put you on its low-priority list from Day 1.
A noose in the workplace and a string of racist commentary were the final straw for Los Angeles juvenile corrections worker Darren Gales.
A trained equal employment opportunity instructor, Gales gathered his evidence and lodged official complaints with the nation’s anti-discrimination agency, expecting swift accountability against his longtime employer.
That was four years ago. To his chagrin, the agency created in the image of civil rights icon Martin Luther King Jr. punted his complaint into a low-priority case management system even after he provided photos, affidavits, recordings, witness statements and a mountain of records.
Managers set up that system decades ago to triage a crush of discrimination claims that threatened to overload the mission of the Equal Employment Opportunity Commission. Since then, they’ve adopted a strategy to prioritize cases. Discrimination claims that involve new areas of employment law, including transgender discrimination, could get priority. Traditional cases based on racial discrimination can fall to the bottom of the list.
All of these factors contribute to a secret reality: Some Black workers who complain about discrimination are being discriminated against by the EEOC itself.
That reality shows up clearly in a slice of the agency's internal tracking data obtained by USA TODAY, which shows the scant attention claims from Black workers received in several regional offices. The information provides a small window into the highest priority cases from September 2019 to August 2020.
In many places, staff deemed few or no Black discrimination charges met its top categories by showing “strategic significance.” The data showed the offices in Albuquerque, Boston and Dallas only flagged one Black discrimination case each. Chicago identified none.
Combined, those regions are home to millions of Black workers.
Problems with the triage system were highlighted by interviews with 15 current and former EEOC staffers and complainants. Several people still employed within the federal government spoke on condition of anonymity for fear of retribution at their jobs. Others spoke openly, saying the Priority Charge Handling Procedure has run amok.
With dwindling staff, the EEOC has embraced employee incentives like time off and Subway gift cards, and punishments like delayed career advancement, to ensure investigators close cases as quickly as possible – to the point that EEOC workers say they are abandoning clear and winnable cases of racial discrimination.
Workers at the agency told USA TODAY the situation at EEOC has become untenable for investigators, who face a dizzying matrix of priority ranking that grew from an informal quota system with an “A, B, C” grading system – a claim backed by leaked emails – alongside the whim and idiosyncrasies of district managers and the ever-present pressure to reduce backlog.
“It’s mind-boggling and disheartening,” said Brandon Washington, the EEOC investigator tasked with investigating the Gales case.
Gales took matters into his own hands, hired a private attorney and got a settlement last week just before his case was expected to go to trial before a federal judge.
Washington felt so strongly that Gales’ case should be given the agency’s attention that he fought his supervisors – eventually lodging formal complaints with local and national officials. EEOC supervisors fired him earlier this year for “unacceptable performance” in managing his case inventory effectively. Washington, who is Black, sees it as retaliation for his complaints.
Managers throughout the organization favor emerging legal issues, staff members say, at the expense of "garden variety" discrimination.
Charles Coleman, a private attorney in New York who worked in the legal department at EEOC from 2009 to 2018, said he constantly pushed for more race cases to get attention.
“There was a very strong hesitance to pursue and litigate race-based claims,” Coleman said. “For me, as a Black man, I was disappointed. ... Our core mission was rooted in racial equality.”
EEOC leaders responded to detailed questions with a written statement from Chairwoman Charlotte Burrows, a Biden administration appointee. She wrote that “the heart of EEOC’s work is to advance equal opportunity in the nation’s workplaces.”
But she acknowledged: “Keeping up with the volume of incoming charges has always been a challenge for the agency. That challenge has become more acute as the need for our services has increased and our staffing levels have not kept pace with the increased demand.”
‘Garden variety discrimination’ cases lost
Formed in the crucible of the civil rights era, by the 1990s the EEOC became backlogged with so many cases that it created a triage system. Now, investigators and workers say that system squeezes out some of the very Black workers it was designed to protect.
EEOC investigators, who fielded more than 67,000 formal charges nationwide last year, are supposed to collect evidence and then determine if labor laws were broken. The agency has just under 2,000 employees and a budget of $390 million – the smallest it has been in three decades.
The Priority Charge Handling Procedure seeks to prioritize cases most likely to find provable discrimination but puts extra emphasis on employers with systemic problems or those that can set precedents in employment law.
It can mean prioritizing “sizzle” or “hot button” cases over yet another instance of Black or brown workers being discriminated against in the workplace, investigators said.
The EEOC’s case intake personnel are the gatekeepers for aggrieved employees. Anyone who wants to file a federal lawsuit alleging discrimination against their employer must first file a charge with the agency.
About a third of the claims receive top priority help from investigators or a legal filing on their behalf. Most of the rest are given a “Notice of Right to Sue” letters and the go-ahead to pursue private litigation on their own. Employees can file a suit before EEOC concludes its investigation and they have 90 days to file suit after the letter arrives.
By law, EEOC can’t turn someone away at the door. But in reality, the moment a charge is filed the ‘equal’ part of the agency’s name can disappear for some.
The priority rankings for which cases get EEOC help and which don’t have strayed from their original mission, said Rae Vann, an employment lawyer who testified before Congress on behalf of the Equal Employment Advisory Council, a labor law nonprofit now known as the Center for Workplace Compliance.
“It’s obviously important to set enforcement priorities, but it’s crucially important to train investigators so that garden variety charges don’t fall through the cracks,” Vann said.
She said the EEOC also has long prioritized charges as a means to develop case law that could help protect the next generation of workers nationwide.
That can mean pushing the boundaries of LGBTQ discrimination in the wake of the Supreme Court’s 2020 Bostock ruling, which extended workplace protection to employees based on sexual orientation and gender identity.
While Black workers may receive less attention in any given region, the deprioritization also could leave Asian, older or Hispanic workers without much help.
It can mean putting employers with name recognition and cache on the front burner because those cases are more likely to gain attention from the public, she said, and in turn drive wider changes.
“The name of an employer shouldn’t matter, but they’re looking at impact across an organization, industry or community,” Vann said. “Kate and Ray’s mom and pop bodega is not going to have the same impact from a deterrent standpoint as going after a highly publicized action against Whole Foods.”
Several current and former EEOC investigators say decisions on where to focus also often reflect the whim of individual district managers.
Internal EEOC data from Dallas shows that from 2015 to 2019, Black workers in the area – which includes San Antonio, El Paso and parts of New Mexico – have formally filed more than 7,100 discrimination claims with the agency. The district investigated and substantiated the claims in 13 of those cases, about 1 in 550.
For context, data shared with Congress and posted online on all national claims – not just Black claims – for 2019 shows the agency investigated and substantiated about 1 in 70.
A former EEOC attorney said the triage system is well-intentioned because the faster cases move, the fresher evidence is for attorneys that could take the case.
“The reality, though, is that cases that have a lot of merit get ignored or dismissed when they should be investigated more thoroughly,” said the attorney, who spoke on condition of anonymity for fear of retribution at their current job.
She also said one district manager had a reputation for not pursuing LGBTQ investigations based on his personal priorities.
A case came in with a gay drag performer who was locked inside a walk-in cooler by co-workers, part of an alleged pattern of discrimination. The staff, the attorney said, chose to hide the case from the manager for fear he would derail it.
“EEOC is full of good, smart people who stick around because the work matters,” the attorney said.
Referencing the Stockholm syndrome, in which hostages develop a psychological bond with their captors, she added, “But it’s a little ‘Stockholmy’ because you’re massively under-resourced on time and money.”
ABCs of EEOC mark end of road for some
In 1995, the EEOC adopted the first version of the Priority Charge Handling Procedure, calling for case triage based on “the likelihood of an investigation resulting in a finding of reasonable cause to believe discrimination occurred.”
Cases in the A bucket would mean discrimination likely occurred; B's needed further investigation; and C's would be those that likely won’t result in a finding of discrimination even with more investigation – the same rankings that exist today.
A rating of C “does not necessarily mean the claims have no merit; it is a determination about where best to apply the EEOC’s limited law enforcement resources,” a spokeswoman wrote to USA TODAY. Employees with that grade can still file a private lawsuit.
But in practice, investigators say, C's are the end of the road for most workers.
“What does it mean to get a C? It means you’re done. We’re crushing your soul,” one current EEOC investigator told USA TODAY on the condition of anonymity for fear of retaliation from his supervisors.
“You fought traffic downtown ... paid $20 for parking, came upstairs and waited an hour to speak with me,” he said. “Now you have to explain a ‘prima facie’ case even though you work at Lowe’s or do construction. And you’re facing an investigator trying to keep their inventory low. ‘Oh, you don’t have witnesses for your case? Oh, you never complained formally to your boss?’ Nothing we can do.”
The investigator said the case handling procedure has slowly created a class divide that the public never sees. For workers who lack the financial resources to hire an attorney to prepare an EEOC complaint, not getting help from the agency is a dead end.
In training material released under the Freedom of Information Act, investigators are told to prioritize cases through the system according to the national and local guidelines, but provided a key reminder: “Although (the Priority Charge Handling Procedure) must take into account the agency’s limited resources, it should not be applied in a way that deprives charging parties of a fair opportunity to present their case.”
In August, EEOC officials posted the first public glimpse of the A-B-C charge categorization after pressure from Congress. Those statistics show that the commission reduced its backlog of cases by 45% in five years – from 76,000 in 2015 to 42,000 in 2020.
It also revealed that B and C charges represented 70% to 80% of all cases over the past five years. That means only a fraction of all charges receive any type of meaningful investigation by EEOC staffers.
EEOC spokeswoman Christine Nazer pointed out that even after the commission decides not to investigate, workers are free to “exercise their rights to bring a private court action.” In all, EEOC statistics show it helped resolve about 3,000 charges of race discrimination in fiscal year 2020, resulting in about $75 million in settlements and conciliations for workers.
USA TODAY requested summary priority charge data for each district, which would not have included names or identifying information. The commission withheld those records on grounds they would harm the confidential and sensitive EEOC investigative process. The newspaper appealed the denial, and the commission again declined this month, saying releasing detailed information on the internal system would reveal too many of the agency’s investigative techniques.
“If this information became public, it is likely that respondents engaged in the EEOC’s conciliation process would modify their behavior,” a commission attorney wrote, “based upon the likelihood that their particular charge would be selected by the EEOC for litigation.”
Quotas are unspoken, or emailed
Esaid Olvera was labeled an “all-star” investigator at EEOC offices in Seattle and Dallas. His supervisors loved him because he closed cases faster than all his peers. Now, he says, the system was rigged against those it was meant to protect.
“Hell yeah I feel guilty,” Olvera said. “I remember sitting there with these grown men in their 60s that just lost their marriage and were fired by a 26-year-old, and I’m having to explain I’m doing ‘aggressive’ (handling procedures) and close his case while he’s sitting across from me crying.”
There was an unwritten quota at the Dallas office to close cases, he said. His supervisor tracked closures with a sign on her door, and he’d be rewarded with Subway gift cards.
“I would close a stack every day; sometimes 15 or 20 a day,” Olvera said.
Records released to USA TODAY under the Freedom of Information Act show that some investigators push through many more cases than their peers.
Data from 2016 to 2020 show that of the 865 investigators who handled charges of discrimination, eight handled more than 1,000 each. The top-performing investigator cleared more than 1,200 – nearly 250 a year on average.
Internal incentive programs also have grown over the past decade in step with the push to reduce backlogs, other released documents show. Managers gave out 650 “individual time off” and 706 “individual cash” awards in 2020, the most on record. Supervisors can give group awards or raises.
The concerns over case expediency drew the attention of Congress in 2019, which called commission chair Janet Dhillon before a House committee. In response to written questions about quotas, Dhillon said there were no quotas.
“We have not imposed charge closure quotas on EEOC staff,” she wrote the committee, “and there is no quota on the number of charges that must be categorized as A, B, or C.”
That belies what’s happening behind the scenes, investigators say.
An internal email provided to USA TODAY sent from the EEOC’s Miami district director to investigators just months before Dhillon’s testimony spelled out his expectations of case closure and grading.
“We have an extraordinarily inflated number of ‘A’ cases at intake and a dramatically lower number of ‘C’ cases than the rest of the county. This is unacceptable,” then-director Michael Farrell wrote, calling an “emergency 1-hour meeting” to address the issue.
National officials did not respond to questions about Farrell’s emails. The agency found he failed to follow up on complaints and “incidents of harassment not only continued but have escalated," according to a news report in Law360. He’s now a program manager for the agency’s intake information group.
Weeks after USA TODAY pressed the commission about reports of quotas, investigators shared notes with reporters from managers who had changed their tune, directing their staff not to hit specific numeric quotas.
One in Dallas, sent in August, read: “This is a reminder that there are no agency mandated C charge targets, goals, or quotas.”
A California man waiting for his time to be heard
Darren Gales said the year-and-a-half process for the EEOC to deprioritize his claim left him dejected. He expected the agency to help investigate and litigate his claims. Instead, he had to hire a private attorney to file suit and begin the slow process that culminated in his out-of-court settlement this month.
“I’ve been dealing with these types of behaviors for a long time – and my grandmother used to say you have to pick your battles,” Gales said before the settlement. “Now I have the opportunity to go to court and have these taken seriously and show how the system could have done a better job protecting me.”
Gales hired Warren Astbury, a Michigan attorney. Astbury criticized the EEOC’s lack of action on the case.
“Unfortunately, a case as shocking as Mr. Gales’ where his life was threatened and a noose was hung didn’t pass their very high bar,” Astbury said. “It’s unfortunate you need a set of shocking facts to even get the EEOC’s attention.”
Los Angeles County officials defended their actions, saying they acted swiftly when notified of the discriminatory conduct by investigating it and disciplining the co-worker Gales said harassed him.
Washington, the former EEOC investigator, effectively ended his career over the Gales case. He has kept tabs on the civil suit and even offered to testify for Gales, and he has appealed his own firing.
He says the rating system and pressure to churn through charges has led to a culture of case-dumping that rewards those offices that have become the most efficient at the practice. The Los Angeles EEOC, he charges, is among them.
“His case fit every single part of our manual. This is a slam dunk,” Washington said. “But instead of protecting the rights of people who come to us for help, we’re prioritizing the employer.”
EEOC officials declined to respond to specific allegations about district offices. In her statement to USA TODAY, the chairwoman said given resource limits, the agency must choose cases with “the most law enforcement potential.”
“Our overarching mission is to examine each charge carefully, determine whether we can remedy or prevent further discrimination, and ferret out charges where the EEOC can have the greatest impact in advancing the public interest,” Burrows wrote.
Washington also went against his boss’ guidance back in 2018 when he notified Gales that his case was being deprioritized through the case handling procedure, typically a confidential process. Employees who file charges are even barred from asking their investigator what path they’ve been given.
EEOC spokesman Brett Brenner said investigators can have open lines of communication on many topics – but not categorizations, which are not only secret but also subject to change.
“First, due to the nature of our law enforcement work, we cannot share specifics about the deliberative process,” Brenner wrote. “Second, charge categorization is an internal tool used by EEOC staff to prioritize charges as they move through the investigative process.”
Contributing: Brett Murphy, USA TODAY
Nick Penzenstadler is a reporter on the USA TODAY investigations team, focusing primarily on firearms and consumer financial protection. Contact him at npenz@usatoday.com or @npenzenstadler, or on Signal at (720) 507-5273.
This article originally appeared on USA TODAY: EEOC’s secret triage system means Black discrimination is deemphasized
