Current Litigation Trends and Goals

At the EEOC
By CLARENCE THOAAAS
Clarence Thomas is Chairman of the Equal Employment Opportunity Commission.

NDER TITLE VH and the Age Discrimination in Employment Act, the Equal Employment Opportunity Commission must receive charges of discrimination and attempt to resolve those charges before we can bring a civil action in federal court. As an agency charged with protecting the rights of all citizens, we must be aware of the social and economic context in which charges of discrimination are filed. And, as an agency charged with the responsibility for conciliating disputes, we can never underestimate the importance of the power of reason or our responsibility to reason before getting involved in a federal case. With these facts in mind, I will attempt to lay out the current litigation trends and goals at the EEOC. If anything can explain the litigation trends, the litigation successes, and the litigation failures of the EEOC, economics and history can. Economics and the state of the economy are the keys to determining the number of charges filed with the EEOC and our ability to obtain meaningful relief. In prosperous times, the number and variety of charges filed increases, and the possibility of obtaining jobs and relief for victims of discrimination increases. In times of austerity, the reverse occurs. Currently, there are at least three economic and social forces affecting EEOC litigation. First, the population is. growing older. The baby boom generation is maturing, and the parents of that generation are getting near what used to be the normal retirement age. Second, more women are entering the work force and remaining in that work force. The phenomenon of the two-income household is becoming the norm, not the exception. Third, the economy is in a recession. Recession, of course, means layoffs and reductions in force. As a result of these social and economic forces, it should not be surprising that many of our most prominent cases involve allegations
Adapted from a speech before the Equal Employment Education Programs Third Annual Litigation Programs Conference, San Francisco, California, on January 13, 1983. 208 April, 1983 Labor Law Journal

of age and sex discrimination, many resulting from reductions in force and forced retirement. This does not mean that charges of race, national origin, or religious discrimination are not filed with the EEOC and that the EEOC does not bring suit in such cases. It only means that there is now a special public and judicial sensitivity to cases involving age and women. This sensitivity also results in some special victories which, in turn, result in further prominence for those cases. As evidence of this trend, the six most prominent cases which occurred during- my first six months at the EEOC have been three age discrimination cases and three sex discrimination cases.

Cases
In EEOC V. Liggett and Myers,^ the Commission won an ADEA case alleging that age was a factor in the discharge of approximately ten percent of the employees during a reduction in force. It is estimated that the backpay recovery in this case will be Over 20 million dollars. In Higman and EEOC v. United Airlines, private plaintiffs and the EEOC won a jury verdict of 18.2 million dollars for 112 pilots who had been forced to retire at the age of 60. In EEOC v. Home Imsurance Co.^ the Commission won an age case in which 143 employees were forced to retire at the age of 62. Backpay in this case is estimated to be between six to eight million dollars. The Commission's ability to achieve such significant relief in age discrimination cases is attributable to
690 F2d 1072 (CA-4; 1982), 30 E P D II 33.083. = 672 F2d 252 (CA-2, 1982), 28 EPD f 32,423. 691 F2d 1054 (CA-2, 1982), 30 EPD f 33,072. EEOC

good trial work and the structure of the ADEA, which authorizes jury trials and liquidated damages. More important, it reflects the increasing public awareness and sensitivity toward age discrimination. In Spirt and EEOC v. Teachers Insurance and Annuity Association^ the Second Circuit held that the college retirement equities fund had violated Title VII by using sex-segregated mortality tables which resulted in women receiving lower monthly retirement benefits than similarly situated men. The magnitude and importance of this case cannot be overestimated. Currently, there are more than 200,0(X) women in more than 3,3(X) educational institutions participating in retirement plans administered by the defendants in this case. All of the plans use sex-segregated mortality tables and al! of the plans pay lower retirement benefits tc women than similarly situated men. The controversial nature of this ruling also cannot be overestimated. In fact, the Sixth Circuit* has disagreed with the Second Circuit's decision, and it is likely that the Supreme Court will review both cases. In EEOC V. Newport News Shipbuilding Co.,^ the Fourth Circuit, en bane, held that the employer violated Title VII by maintaining an insurance plan which provided lower coverage for maternity expenses than for other illnesses and disabilities incurred by spouses. The Ninth Circuit in EEOC V. Lockheed,^ however, disagreed with the Fourth Circuit's decision. The Supreme Court has granted certiorari.
' Peters v. Wayne State University, 691 F2d 235 CCA-6. 1982), 30 EPD 1133.092. "667 .F2d 448 (CA-4, 1982), 27 EPD If 32.329, rehg en bane granted (CA-4, 1982), 28 EPD 1[ 32,673. 680 F2d 1243 (CA-9, 1982), 29 EPD 1132,938.

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Finally, in Norris v. Arizona Governing Committee,'' the EEOC acted as amicus curiae in a case where the Ninth Circuit held that the State of Arizona violated Title VII by oflfering a life annuity computed by sexsegregated mortality tables to its employees. The Ninth Circuit held that this annuity option violated Title VII because it paid women lower benefits than similarly situated men. The court also held that the presence of other options which did not discriminate on the basis of sex did not excuse the maintenance of a retirement option which did discriminate on the basis of sex. The Supreme Court agreed to review this case, and final briefs have been fikd. Litigation Trends The cases I have cited constitute concrete evidence of definite litigation trends at the EEOC. First, the Commission is vigorously enforcing its statutes, and it is vigorously attempting to seek relief for victims of discrimination. Second, the cases demonstrate that the EEOC is willing to engage in controversial battles and that it is not fearful of controversy. These cases, however, also demonstrate that there are other factors which shape the kinds of cases we can bring and the effectiveness of litigation.

In 1980, the Commission recovered 4.S million dollars through conciliation and 21 million dollars by litigation. In 1981, the Commission recovered 92 million dollars by conciliation and 16.2 million dollars by litigation. In 1982, the EEOC recovered 101 million dollars by conciliation and 32.5 million dollars by litigation. Our increasing success rate in achieving compliance with Title V I I and the Age Act has been largely ignored. On the other hand, critics of the EEOC and the Administration are quick to point to a decrease in the number of new lawsuits filed as evidence of lax enforcement. However, there has been no lax enforcement in either administration or litigation at the Commission.

But, there are limits to the usefulness of litigation and. in my view, strict reliance on litigation in civil rights enforcement is neither good policy nor permitted by statute. The strength of the judiciary is based, in large part, on the ability of the judiciary to articulate persuasive and legitimate reasons for a decision. The degree to which an opinion is persuasive is based, in turn, on the ability of the courts to reflect the basic values and the fundamental principles of the people of this country. At the EEOC, we will continue to The E E O C has the responsibility use the power of the sword, but we to attempt conciliation before it is will not ignore the power of reason. authorized by statute to file suit in Through our efi?orts at conciliation federal court. Historically, the EEOC and through conferences, we will athas recovered more relief through tempt to act as a catalyst for adconciliation and pre-suit procedures vancing the fundamental principles than through litigation. In fact, this which inspired the passage of our trend is increasing. In 1979, the Com- statutes. mission recovered almost 24 million We will attempt to create a climate dollars through conciliation and 8.9 which encourages public support and million dollars through litigation and sensitivity toward civil rights issues. post-suit settlements. We will also attempt to act as a catalyst '671 F2d 330 (CA-9, 1982), 28 EPD 1132,584.
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for encouraging constructive debate and creative questioning which will generate better ways to achieve equal employment opportunity for all Americans.
Fundamental Principles

It is high time that someone started to articulate the fundamental principles which we all share, the principles which unite everyone in this Administration and the overwhelming majority of the American people in the area of civil rights. One of the essential functions of the federal government is to ensure that the civil rights of all Americans be protected. This is not an issue which can be compromised, and it is not an ohiigation which the federal government can shirk. In protecting the civil rights of minorities and the powerless, all branches of the federal government have pursued one policy. This policy can be stated simply as the protection of the rights of the individual and the guarantee of equal justice under law. The civil rights policy of the courts, the Congress, and every administration is built on this simple principle. Under our statutes and the Constitution, every individual is entitled to be judged on the basis of individual merit without consideration of group characteristics such as race, sex, national origin, or religion. Of course, there may be occasions when it can be argued that the longterm goal of achieving individual rights requires certain exceptions. In my view, there may be such exceptions, but these, which usually arise in the context of requests for affirmative action relief, should be closely scrutinized and subject to strict, meaningful safeguards. Finally, whenever individual rights are compromised, there is a legitimate ground for debate which
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should not be stilled by irresponsible charges of insensitivity or retrenchment in the area of civil rights. Nor is there any value in responsible officials making reckless statements against perceived civil rights gains of minorities and women, irrespective of the accuracy of that perception.
Affirmative Action

No one in his right mind seriously questions the legal and moral bankruptcy of discrimination. The same unanimity of opinion does not exist for affirmative action. Affirmative action has been and will continue to be a subject of hot debate because mere mention of the term divides interest groups into two warring camps: one hotly in favor and one hotly opposed. Of late, further confusion has been added to the debate by making it a political issue. The two warring camps engage in a sharp, emotion-charged debate which results in both sides losing sight of important underlying issues. Thus, in their haste to condemn each other, the camps lose sight of the nature and purpose of equal employment opportunity laws. They lose sight of the fact that almost 30 percent of the minority families rely on incomes below the poverty level and that black teenage unemployment is near 50 percent. They lose sight of the fact that women, although heads of households in increasing numbers, earn only about 60 cents for each dollar that men earn. They lose sight of the fact that in this country 3.5 million persons of Spanish origin live below the poverty level. They lose sight of the fact that the Chairman of the EEOC spent 17 years of his life (one-half) under strict segregation. In their haste, the combatants fail to devote significant attention to the
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less dramatic, but ultimately more important, issues of devising more effective remedies which respond to the changing nature of discrimination. All of these unfortunate consequences flow from the nature of the debate over affirmative action. Even worse, this divisive debate results in general confusion and misunderstanding about affirmative action which, in turn, tends to undermine the effectiveness and legitimacy of the enforcement of civil rights laws. As the lead agency in the enforcement of federal equal employment opportunity laws, the EEOC cannot stand by and allow confusion about affirmative action to undermine our enforcement efforts. We must attempt to bring out and clarify the issues obscured by this debate. We must attempt to understand that the issue is not who is right or wrong. Rather, it is how we can effectively ensure that all persons have equal opportunity in and access to the employment arena. Discussing the issue of affirmative action is difficult, because there is a tendency to debate its propriety before defining it. The starting point in defining affirmative action is the recognition that it is a further remedy designed to place a class, not specific victims of past discrimination, in the place where it theoretically would have been but for discrimination. But. this is only a starting point. Used in this manner, any recruitment effort, successjtil or unsuccessful, which is de-

practices, is not generally considered to be affirmative action. This brings us to the concept of affirmative action developed by the courts, which combines the objective of "rightful place" relief with the component of actual success. As used in the courts, affirmative action means a future remedy which, if humanly possible, actually places classes of minorities or women in the places they would have been but for discrimination. In other words, in the courts, the objective of "rightful place" treatment for classes plus the component of actual success adds up to the use of flexible numerical goals which will serve as a yardstick for measuring an employer's progress in placing classes of minorities or women in their rightful place. Of course, any remedy which overemphasizes actual success, as opposed to good faith efforts or intent, can be criticized as a quota. Much of the heated debate and public confusion over affirmative action, in fact, stems from the confusion between flexible goals and inflexible quotas, and the use of these two distinct terms interchangeably. Use of these terms in this way not only promotes public confusion, it also tends to undermine public confidence in our system of justice, which is built on principles of flexibility and equity, not rigid, ironclad rules.
AA in Federal Contracts

signed or intended to advance a class would qualify as affirmative action. Affirmative action, unlike other future remedies such as an injunction prohibiting discrimination, also requires some means of assuring that classes of minorities or women are actually included in the mainstream of the economy. Recruitment alone, or the cessation of unlawful employment 212

So far, I have discussed the way affirmative action has been administered by the courts. Affirmative action, however, occurs out of courts as well as a result of court orders. For example, affirmative action may occur when an employer perceives that he might be in violation of federal law and then establishes affirmative action in order to undo the effects
April, 1983 Labor Law Journal

of discrimination before he is forced to do so by court order. It may also occur when an employer enters into a federal contract. As a quid pro quo for receiving the benefits of the contract, the employer is then required to observe OFCCP requirements that he take steps to remedy any underutilization of minorities or women. Voluntary affirmative action, or affirmative action Bowing from federal contract requirements, has triggered more controversy than court-ordered affirmative action. Because voluntary affirmative action and affirmative action developed as a result of federal contract requirements occur before there has been a finding of discrimination by a federal court, the legitimacy of such efforts is often criticized as reverse discrimination. These criticisms, of course, fuel further controversy about affirmative action. Once again, the real issue of discrimination and its debilitating effects, not only on the individual but on the. class as a whole, is overlooked. I do not mean to suggest that affirmative action is beyond question or that I agree with the way it has been used. But we must remember that affirmative action has been put in place because minorities and women have been discriminated against in the past. Debate over the general propriety of affirmative action should not obscure this fact. A good deal of the confusion caused by the debate can be explained by the fact that many minorities and women view criticism of affirmative action as prima facie evidence of insensitivity toward issues of discrimination and civil rights. On the other hand, it should be obvious to all why heated and strident criticisms of affirmative action will be misunderstood and opposed. But constructive criticisms should not be rejected out of hand.
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The Moral Debate

Further misunderstanding and confusion about affirmative action are also caused by the fact that the debate over affirmative action is being waged in moral terms. In a debate appealing to morality, all efforts to include minorities and women in the mainstream of society are lumped indiscriminately together as affirmative action and, depending upon one's point of view, branded as right or wrong. A debate where issues are drawn in terms of right and wrong has the unfortunate effect of polarizing the parties involved in the debate, thus preventing meaningful communication between the parties and hardening the opposing positions to the point where it becomes "us against them." There is no hope of meaningful discussion or dialogue at this point. The need to devise new remedies which respond to changing social and economic conditions is overlooked. And the seemingly intractable social problems, for which affirmative action was started in the first place, are pushed aside while the red herring debate forges on. At this point, it is worth remembering that the courts, the first to grapple with affirmative action, also underwent a transformation from sharp, divisive debate to a situation where affirmative action has become a matter of careful judgment and a pragmatic weighing of the equities. At one point, courts were engaged in a debate over affirmative action which was just as fierce as the popular, moral debate which is occurring today. In vigorous dissents, some judges expressed the view that the Constitution is "colorblind" and that consideration of race or ethnicity for any purpose is illegal "racism." However, since the advent of authoritative Supreme Court decisions such as Steel213

workers v. Weber^ and Fullilove v. Klutsnick,^ which upheld the legality of th ten-percent minority set-aside program, it is settled that, as a matter of law, affirmative action, including the use of numerical goals, may be used in appropriate circumstances. 'Currently, the courts are not concerned with debating the general propriety of affirmative action. Instead, courts are concerned with the pragmatic issues of: determining whether the facts of a given case require affirmative action relief; balancing the necessity for affirmative action relief against other important employer interests; and establishing effective mechanisms for monitoring compliance with affirmative action plans. It is my view that too much posturing has taken place on issues such as affirmative action, which are critical to minorities and women in this society. The problems which we face in the area of equal employment op-

portunity must be solved. For the most part, they must be solved by applying legal principles of paramount importance to me. But for them, God only knows where I would be today. I abhor any effort to twist, bend, or distort them for any reasons, whether such distortions are said to help or hurt minorities or women. No one should be permitted to turn these laws on their heads just because they have good intentions. These laws and their proper application are all that stand between the first 17 years of my life and the second. I do not believe that the available legal remedies alone are enough to solve the countless socioeconomic problems of minorities. Nor do I believe that they are always applied in a fair and just manner. But they are all we have to work with, and I do not want to see them destroyed by those with either bad intentions or good ones. [The End]

BACKPAY AWARD INCLUDES INCOME TAX COMPONENT

Backpay awarded to train porters discriminated against because of their rac included a component to offset the adverse income tax impact of receiving the award in a single year. This was equitable because backpay awards should restore victims to the positions they would have occupied had there been no discrimination, a federal trial court in Kansas held (Sears u. Afchinson, Topeka & Santa Fe R.R. Co.,
31 E P D If 33,388). Also included in the award were retirement benefits lost b y the former p o r t e r s as a result of discrimination. In addition, t h e y received a t t o r n e y s ' fees of $876,342.69. T h a t w a s based on t h e h o u r s billed by the a t t o r n e y s p l u s a 75-percent multiplier reflecting t h e c o n t i n g e n t n a t u r e of t h e case and t h e quality of t h e legal work.

'443 US 193 (US SCt, 1979), 20 EPD 1130,026. 214

"448 US 448 (US SCt, 1980), 23 EPD 131,026. April, 1983 Labor Law Journal