Combined Annual Reports Fiscal Years 1996 - 1998
(October 1, 1996, through September 30, 1998)

Table of Contents

SECTION I

EXECUTIVE SUMMARY

SECTION II

THE COMMISSION

The Commission's Authority

Historical Background

EEOC's Mission

Commissioners and General Counsel

SECTION III

BUDGET AND STAFFING

SECTION IV

NATIONAL ENFORCEMENT PLAN AND ENFORCEMENT PROGRAM RESULTS

Priority Charge Handling Procedures

Best Practices Task Force

Private Sector Enforcement Process

Alternative Dispute Resolution

Summary of EEOC Enforcement Data

SECTION V

COMMUNICATION, EDUCATION, AND TECHNICAL ASSISTANCE

Education, Technical Assistance, and Training Revolving Fund Activities

Information Dissemination

Policy Guidance

SECTION VI

LITIGATION

Litigation Program

Litigation Statistics

Appellate Services

SECTION VII

FEDERAL SECTOR PROGRAMS

Federal Sector EEO Activities

Federal EEO Enforcement Statistics

Notice of Proposed Rule Making

Federal Affirmative Employment Activities

SECTION VIII

LABOR-MANAGEMENT PARTNERSHIP

APPENDICES

STATISTICAL TABLES

APPENDIX A: All Statutes

APPENDIX B: Civil Rights Act of 1964 (Title VII) charges

APPENDIX C: Age Discrimination in Employment Act (ADEA) Charges

APPENDIX D: Americans with Disabilities Act of 1990 ADA) Charges

APPENDIX E: Equal Pay Act (EPA) Charges

APPENDIX F: Race-Based Charges

APPENDIX G: Religion-Based Charges

APPENDIX H: Sex-Based Charges

APPENDIX I: National Origin-Based Charges

APPENDIX J: Sexual Harassment Charges

APPENDIX K: Pregnancy Discrimination Charges

APPENDIX L: GLOSSARY

APPENDIX M: EEOC GENERAL COUNSELS

APPENDIX N: TERMS OF EEOC COMMISSIONERS

SECTION I
EXECUTIVE SUMMARY

This report reflects on the great strides the Equal Employment Opportunity Commission (EEOC) made during fiscal years (FYs) 1996, 1997, and 1998. During this period, we adopted a National Enforcement Plan (NEP), expanded our Alternative Dispute Resolution (ADR) program, and made significant changes in our litigation program. This report provides a detailed breakdown of these noteworthy accomplishments and illustrates how the Agency has progressed. Information in the report closely examines the EEOC's private sector enforcement activities; important EEOC litigation; federal sector programs; and communications, education, and technical assistance efforts.

The report begins with a description of the EEOC's authority and provides information about the services we provide to the public through the Agency's field offices. A brief historical background explains when, why, and how the Agency was established as well as how the Agency has evolved since it first opened its doors more than 30 years ago. Section II also gives a brief biography of the Commissioners and the General Counsel who presided during the three years covered in this report.

The report highlights the significant reforms we implemented during FY 1996, FY 1997, and FY 1998. Specifically, Section III provides a summary of budget and staffing data under which the EEOC operated. Section IV examines our comprehensive NEP and Local Enforcement Plans (LEPs) adopted in FY 1996. This section also looks at the resulting changes in the Agency's private sector enforcement program and ADR program. Section V reviews the Commission's communication, educational, and technical assistance activities during the three-year period. Section VI pays close attention to our litigation efforts, focusing on the Agency's strategic use of its litigation resources in combating discrimination and reviewing notable resolutions of individual cases and class action lawsuits. Section VII summarizes the Federal Sector Programs, and Section VIII provides a brief look at the objectives and accomplishments of the National Labor-Management Partnership Council.

As this report will demonstrate, the EEOC made substantial progress each year during this three-year period. We significantly reduced our inventory of pending charges, reduced our charge resolution time, and achieved laudable results in our litigation efforts. In fact, we obtained substantial monetary benefits for victims of discrimination through litigation, and we obtained significant benefits as well as saved time with an ADR program that allows the parties involved to decide how to resolve the charges themselves. Through our publications and our educational programs, we were able to disseminate information to thousands of Americans about the entire spectrum of employment discrimination issues. Our accomplishments during this time are impressive. Each reform we made during FY 1996, FY 1997, and FY 1998 contributes to the future of civil rights enforcement.

SECTION II
THE COMMISSION

The Commission's Authority

With its headquarters in Washington, D.C., and 50 offices nationwide, the EEOC enforces federal statutes prohibiting employment discrimination in the private, public, and federal sectors. The EEOC interprets employment discrimination laws, is responsible for the federal sector employment discrimination program, provides funding and support to state and local Fair Employment Practices Agencies (FEPAs), and sponsors outreach and technical assistance programs. The Commission is primarily responsible for enforcing the following federal statutes:

• Title VII of the Civil Rights Act of 1964, as amended, prohibiting employment discrimination on the basis of race, color, religion, sex, or national origin;
• the Age Discrimination in Employment Act (ADEA) of 1967, as amended, prohibiting employment discrimination against individuals 40 years of age and older;
• the Equal Pay Act (EPA) of 1963 prohibiting discrimination on the basis of gender in compensation for substantially similar work under similar conditions;
• Title I of the Americans with Disabilities Act (ADA) of 1990, prohibiting employment discrimination on the basis of disability in the private sector and state and local governments; and
• Section 501 of the Rehabilitation Act of 1973, as amended, prohibiting employment discrimination against federal employees with disabilities.

Each of the Commission's 24 district offices, one field office, and 25 area and local offices has an enforcement staff responsible for accepting and investigating discrimination complaints and resolving those complaints that have merit through conciliation. District offices have additional responsibilities for litigating and investigating systemic (pattern and practice) cases and providing legal advice, review, and direction to area and local offices. Field staff members also inform individuals about their rights under the laws enforced by the EEOC and conduct outreach and technical assistance programs.

Persons who believe they have been discriminated against by an employer, employment agency, or union, when applying for a job or while employed, may file a charge of discrimination at any EEOC field office. Charges may be filed by writing or telephoning the nearest EEOC office. If there is no EEOC office in the immediate area, individuals may use the toll-free telephone numbers established by the Agency to assist persons in reaching the nearest EEOC office [800-669-4000 (voice) or 800-669-6820 (TTY)].

Historical Background

The EEOC was created when Congress enacted Title VII of the Civil Rights Act of 1964 and came into operation in July 1965. Originally, the EEOC had limited authority under Title VII and could only resolve charges of discrimination against private sector employers through investigation and conciliation. Title VII in its original form limited the Commission's litigation role to that of an amicus curiae or "friend of the court" in certain suits, with enforcement authority given to the Department of Justice (DOJ). The Equal Employment Opportunity Act of 1972 expanded Title VII's coverage to educational institutions, state and local governments, and federal sector employers. The 1972 Act created an EEOC General Counsel appointed by the President and confirmed by the Senate and gave the EEOC the authority to file lawsuits in district court against private employers, employment agencies, and unions. The Pregnancy Discrimination Act of 1978 further amended Title VII and rendered employment discrimination because of pregnancy, childbirth, or related medical conditions unlawful.

Executive Order 12067 of 1978 directed the EEOC to coordinate all federal programs enforcing equal employment opportunity (EEO) statutes, executive orders, regulations, and policies that may have EEO implications. Pursuant to the Civil Service Reform Act of 1978 and Reorganization Plan No. 1 of 1978, the EEOC assumed responsibility for enforcement of the EEO laws applicable to federal employees. The EEOC issues decisions on appeals in federal EEO complaints, reviews decisions regarding collective bargaining agreement grievances where allegations of discrimination are raised, considers petitions for review of Merit Systems Protection Board decisions involving allegations of discrimination, and monitors agencies' compliance with federal affirmative employment requirements.

In 1979, Congress authorized the EEOC to enforce the ADEA, the EPA, and Section 501 of the Rehabilitation Act of 1973. Congress passed the Civil Rights Act of 1991 and thereby amended Title VII and the ADEA. The act gave plaintiffs the right to request jury trials and gave successful plaintiffs the right to recover compensatory and punitive damages in intentional employment discrimination cases. The measure also expanded Title VII's coverage to include Presidential appointees and previously exempt state employees (appointees of elected officials). Additionally, it eliminated the two-and three-year statute of limitations periods for filing private lawsuits under the ADEA. In 1990, Congress passed the Older Workers Benefit Protection Act (OWBPA), amending the ADEA to specifically prohibit employers from denying benefits to older workers.

In 1990, Congress enacted the Americans with Disabilities Act (ADA). The Act provided for the EEOC to have enforcement authority for Title I provisions, which went into effect in 1992. During the first two years of its enforcement of the ADA, EEOC's investigative jurisdiction was limited, covering employers with 25 or more employees. In 1994, the Agency's jurisdiction was extended to cover employers with 15 or more employees.

EEOC's Mission

Our mission is to promote equal opportunity in employment by enforcing the federal civil rights employment laws through administrative and judicial actions, and education and technical assistance.

Commissioners and General Counsel

Title VII provides that the EEOC consist of five Commissioners and a General Counsel appointed by the President and confirmed by the Senate. (As noted above, Title VII originally did not provide for a General Counsel; prior to amendments made in 1972, the Chairman designated an attorney to serve as General Counsel.) Title VII created the Commission as a bipartisan body with not more than three members being of the same political party. Commissioners are appointed for five-year staggered terms, while the General Counsel serves a term of four years. The President designates a Chairman, who is responsible for the administration of the Commission, and a Vice Chair. The five-member Commission has authority to make equal employment opportunity policy and to approve all litigation undertaken by the EEOC. The General Counsel is responsible for conducting EEOC litigation. Following are the Presidential appointees who served at the EEOC from FY 1996 through FY 1998:

• Gilbert F. Casellas served as Chairman of the EEOC from October 1994 to January 1998. Casellas was nominated by President Clinton on July 1, 1994, and was unanimously confirmed by the U.S. Senate on September 19, 1994. Before coming to the EEOC, Casellas served as General Counsel to the U.S. Department of the Air Force. Prior to entering public service, he was a partner in the Philadelphia law firm of Montgomery, McCracken, Walker, and Rhoads. He was also President of the National Hispanic Bar Association.
• Paul M. Igasaki was sworn in as Vice Chair in October 1994. Igasaki was nominated by President Clinton on April 19, 1994, and was unanimously confirmed by the U.S. Senate on September 29, 1994. His first term expired July 1, 1997. He received a recess appointment on December 16, 1997, and served as Acting Chairman from January 1998 to October 1998 after Casellas' resignation. Prior to his appointment at the EEOC, Igasaki was Executive Director of the Asian Law Caucus and the Washington representative of the Japanese American Citizens League. He was also the first Director of the Chicago Commission on Asian American Affairs.
• Paul Steven Miller was sworn in as a Commissioner in October 1994. He was nominated by President Clinton on May 18,1994, and unanimously confirmed by the U.S. Senate on September 29, 1994. He formerly served as Deputy Director of the U.S. Office of Consumer Affairs and was the White House liaison to the disability community. In addition, he was Director of Litigation of the Western Law Center for Disability Rights and an adjunct professor at Loyola Law School.
• Reginald E. Jones was sworn in as a Commissioner in July 1996. Jones was nominated to the Commission by President Clinton on June 5, 1996, and unanimously confirmed by the U. S. Senate on July 17, 1996. Before coming to the Commission, Jones worked as Senior Legislative Counsel to Senator James Jeffords (R- VT). He also served as Minority Counsel and Staff Director for a Senate Labor and Human Resources Subcommittee and worked on the Civil Rights Act of 1991, the Family and Medical Leave Act, and the Americans with Disabilities Act. Prior to working on the Hill, Jones was a labor and employment law practitioner and an associate and partner in the law firm of Seyfarth, Shaw, Fairweather, and Geraldson.
• Joyce E. Tucker was appointed by President Bush on October 30, 1990, and was unanimously confirmed by the U.S. Senate on August 1, 1991. Her term expired in July 1996. Before coming to the Commission, Tucker was Director of the Illinois Department of Human Rights and worked at the Illinois Department of Mental Health and the Illinois Department of Equal Employment Opportunity.
• Clifford Gregory Stewart was sworn in as General Counsel on July 5, 1995. He was nominated by President Clinton in January 1995, and unanimously confirmed by the U.S. Senate on June 30, 1995. Stewart previously served as Director of the Division on Civil Rights in the New Jersey Department of Law and Public Safety. He was also Assistant Deputy Public Advocate in the Division of Public Interest Advocacy of the New Jersey Department of Public Advocate and a staff attorney at the Lawyers' Committee for Civil Rights Under Law in Washington, D.C.

(See Appendices M and N for listings of all current and previous EEOC Commissioners and General Counsels.)

SECTION III
BUDGET AND STAFFING

Throughout the 1980s and into the1990s, the number of discrimination charges filed with the EEOC grew significantly with no commensurate increases in the Agency's limited resources. Because of limited resources, the EEOC's workforce of 3,390 full-time employees in 1980 had fallen to 2,544 by the end of FY 1998. During the same period, the Agency's enforcement obligations increased substantially because of new statutory responsibilities. The increase in the number of discrimination charges filed with the Agency was primarily a result of the enactment of the ADA in 1990, and the enactment of the Civil Rights Act of 1991. Sexual harassment charges, in particular, increased dramatically. In FY 1996, FY 1997, and FY 1998, the Commission and FEPAs received 15,342, 15,889, and 15,618 charges respectively alleging sexual harassment, compared to 10,532 charges in FY 1992. (See the accompanying chart in Appendix J.) In fact, the number of all charges filed increased from 62,135 in FY 1990 to approximately 80,000 in both FY 1997 and FY 1998.

In July 1995, Congress approved $233 million for EEOC's FY 1996 budget. Although the Commission had a $5 million budget shortfall in FY 1995, the funding for FY 1996 was at the same level as FY 1995 and 15 percent less than President Clinton's request of $268 million for the Agency. The Commission addressed the budget deficit by reducing administrative travel; eliminating field audits; delaying equipment purchases; limiting new hires; offering early-out retirement opportunities for employees; and granting extended leave without pay for special employee requests. In FY 1997, the Agency received $239.7 million, an increase of approximately $7 million over the FY 1996 spending level. The President's FY 1998 budget request for the EEOC was $246 million, an increase of $6 million compared with the FY 1997 appropriated funding of $239.7. The EEOC received $242 million $4 million less than the President's budget request for the Agency.

Summary of Budget and Staffing Data
Fiscal Years 1996, 1997, 1998

1 Full-Time Equivalent (FTE) employment refers to the number of full-time positions allotted to the agency each fiscal year.

SECTION IV
NATIONAL ENFORCEMENT PLAN AND ENFORCEMENT PROGRAM RESULTS

Throughout most of its history, the EEOC has been challenged by a lack of adequate resources to address the problem of employment discrimination in a comprehensive manner. Efficiently managing the private sector workload and developing a strategic enforcement program were the Agency's highest priorities during the mid-1990s. To address the reality of a burgeoning workload, the Commission adopted the Priority Charge Handling Procedures (PCHP) in the third quarter of 1995 to improve its private sector charge processing system, and the National Enforcement Plan (NEP)* in 1996 to enhance its enforcement activities agency-wide. After implementing the PCHP in FY 1995, the Commission's pending inventory began to drop substantially. In fact, the inventory dropped by 47 percent from 98,269 at the beginning of FY 1996 to 52,011 at the end of FY 1998.

In February 1996, the Commission approved the NEP, establishing a plan for administrative enforcement and litigation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act. The NEP is based on recommendations made by a 1995 task force led by Vice Chair Igasaki which concluded that specific policies and practices had prevented the EEOC from fully utilizing its limited resources to eradicate employment discrimination. The Commission adopted the NEP to (1) promote equal employment opportunity and prevent discrimination through education and outreach; (2) settle charges through voluntary resolution where possible; and (3) where voluntary resolution fails, employ strong and fair enforcement, including litigation where appropriate. The NEP required each district office to implement a Local Enforcement Plan that adapted the priorities of the NEP to the needs of the communities which that field office serviced.

In developing the NEP, the Commission consulted with a broad cross section of external stakeholders and internal staff at all levels and received recommendations from representatives of the employer, employee, labor, and civil rights communities at national and local levels. After carefully considering the issues, the Commission adopted the NEP, which articulates the general principles governing the Commission's enforcement efforts, establishes national enforcement priorities, and delegates certain litigation authority to the Office of General Counsel (OGC). The plan also emphasized that the Commission strategically use its limited resources to deter workplace discrimination, guide the development of the law, resolve disputes, and promote a work environment in which employment decisions are made on the basis of employees' abilities, rather than prejudice. Members of the Commission also recognized that, regardless of resource constraints, developing the NEP was consistent with the Clinton Administration's goal of good management and reinventing government.

*NOTE: The text of EEOC's National Enforcement Plan can be found on the Internet at http://www.eeoc.gov/nep.html.

Priority Charge Handling Procedures

In 1997, then Chairman Casellas asked Vice Chair Igasaki and Commissioner Miller to lead a task force to assess the implementation of the EEOC's PCHP adopted in 1995 and to review the Agency's litigation program. The task force's goal was to develop recommendations for "mid-course corrections" necessary for improving the effectiveness of the PCHP and the NEP. The task force concluded that the PCHP and the NEP had resulted in a dramatic reduction in the inventory and an increase in the number of significant suits filed, but that the agency had a long way to go to realize its full potential. One of the task force's major recommendations was that field offices should continue the efforts they began under the PCHP to break down artificial barriers between legal and investigative staff members so each office functions as a cohesive team with investigators and attorneys working collaboratively at all levels. The recommendations also included:

• increasing collaboration and coordination of the activities of the EEOC's 50 office and headquarters by creating an advisory group composed of field and headquarters staff that will assist the Commission in further developing and implementing the NEP;
• revising Local Enforcement Plans (LEP), so that each field office will have clear and achievable goals for investigative and litigation activity tailored to the unique circumstances of each district, with a more proactive use of outreach, particularly to underserved groups;
• fine-tuning the Agency's charge process reforms to continue reducing the inventory and focusing resources on strong cases, including maintaining a balanced approach to inventory management; and
• increasing the emphasis on settlement and mediation at all stages of the charge process, as appropriate.

In April 1998, Acting Chairman Igasaki implemented the task force's recommendations.

Best Practices Task Force

In February 1997, at the request of Chairman Gilbert F. Casellas, Commissioner Reginald E. Jones headed a task force to examine how the Commission could help private sector employers develop "best" equal employment opportunity practices, policies, and programs.* The task force looked at specific employers' noteworthy business practices that complied with their EEO obligations and diversity objectives and gave them an opportunity to showcase those practices of which they were particularly proud. The task force catalogued its findings in such a way that they would be useful to all employers, especially smaller and medium-sized employers who were less likely to have the resources to employ professional human resources and legal staffs.

Additionally, the task force studied what statutory, regulatory, policy, or operational changes would better facilitate the development of best policies, programs, and practices. The study focused on (1) affirmative recruitment and hiring; (2) programs that would eliminate barriers to the advancement of minorities; (3) disability and religious accommodation programs; (4) retraining and placement, insurance, and early retirement programs for employees displaced by downsizing; and (5) early resolution of discrimination complaints and voluntary and effective ADR programs.

The task force recommended that the Commission become more involved in assisting employers in implementing best practices and engage in various communications initiatives that would, for example, allow the Commission to be more responsive to employers' needs. In addition, the task force suggested certain coordination initiatives to more effectively and efficiently deliver the Commission's programs. The task force also made the following recommendations:

*NOTE: The text of the "Best Practices" report is available on the Internet at http://www.eeoc.gov/task/prac2.html.

• continue Commissioner-led outreach activities across the country with particular emphasis in areas that historically have been underserved by the EEOC;
• provide technical assistance on site;
• collect best practices information and models and provide such information in Technical Assistance Program Seminars presentations and other Commission programs;
• establish industry liaison groups, to the extent possible, within each district jurisdiction; and
• conduct public hearings around the country and/or consider holding Commission meetings outside Washington, D.C.

Private Sector Enforcement Process

The EEOC's private sector enforcement programs focus on resolving employment discrimination charges and complaints filed under EEOC-enforced anti-discrimination laws that protect employees and applicants. Following are highlights of the EEOC's private sector enforcement activities in FY 1996, FY 1997, and FY 1998:

• The pending inventory at the time of the adoption of the PCHP in the third quarter of FY 1995 was 111,345 charges. This traditionally has been the reference point for inventory reduction calculations since PCHP was introduced.
• With the implementation of PCHP, by the close of FY 1998, the pending inventory was down to 52,011 charges.
• The number of new charges filed each year averaged 79,420 per year over the three-year period. The Agency received 77,990 private sector charges in FY 1996, 80,680 charges in FY 1997, and 79,591 charges in FY 1998.
• Field offices resolved a significant number of discrimination charges, totaling 103,467 during FY 1996, 106,312 in FY 1997, and 101,470 in FY 1998.
• The reasonable cause rate, or percentage of EEOC determinations finding that there is reasonable cause to believe that unlawful discrimination occurred based upon evidence obtained in investigation, increased from 2.2 percent in FY 1996 to 4.6 percent in FY 1998. (These determinations are generally followed by efforts to conciliate the discriminatory issues which gave rise to the initial charges.)
• The FY 1998 merit factor rate, or percentage of charges in the enforcement workload where the charging party secured some relief as a result of his/her charge filing, was over 12 percent, up from 9.1 percent in FY 1996 and 11 percent in FY 1997. (Merit Resolutions include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations.)
• The Agency's average charge resolution time continued to decline from 379 days at the end of FY 1996 to 310 days at the end of FY 1998.
• In the private sector, monetary benefits for charging parties obtained through administrative charge processing activities monies secured outside the courtroom through settlement and conciliation in individual, class, and systemic investigations totaled $145.2 million in FY 1996, $176.7 million in 1997, and $169.2 million in 1998.

Alternative Dispute Resolution

In FY 1995, the Commission adopted resolutions recommended by an internal task force on Alternative Dispute Resolution (ADR), co-chaired by Commissioners Paul Steven Miller and R. Gaull Silberman, to implement a mediation-based ADR program to supplement its investigative process. In FY 1996, the EEOC entered into a Memorandum of Understanding with the Federal Mediation and Conciliation Service to provide mediation services to supplement the Agency's in-house and pro-bono programs. In October 1996, the EEOC supplemented existing mediation efforts with pro bono services. By the end of FY 1997, the Commission had established viable ADR programs in each district office, and several district offices had expanded their mediation programs into area and local offices. By the end of FY 1998, each district office offered, to some degree, mediation services within their jurisdiction. As a result, the number of charges resolved in mediation programs increased from 67 in FY 1996, to 830 in FY 1997, to 1,631 in FY 1998. The mediation program represented a major step forward in exploring new ways to effectively and efficiently enforce anti- discrimination laws. The mediation option allowed charging parties and respondents to decide how the dispute would be resolved, which, in many instances, translated into saving time and money.

Given the growth in the mediation program, benefits received through mediation increased from more than $900,000 in FY 1996 to over $10.8 million in FY 1997 and up to approximately $17 million in FY 1998. The increase in the number of charges resolved and benefits received also may indicate a greater acceptance of mediation as an option by the parties. The growth of the mediation program is impressive given that it was accomplished without any increase in funding. In January 1998, the Clinton Administration proposed that EEOC's budget be increased by $37 million, with $13 million specifically allocated for expanding the mediation program. In response to this proposal, Acting Chairman Igasaki formed an ADR Working Group to develop a strategy for the anticipated expansion of the program in FY 1999.

NOTE: See Appendices A-K for details regarding charge receipts and resolutions for FY 1996, FY 1997, and FY 1998.

Summary of EEOC Private Sector Enforcement Data Fiscal Years 1996, 1997, and 1998

1 FEPAs are state and local agencies that have contractual worksharing agreements with the Commission to process employment discrimination charges that are dual filed under both the federal and state statutes.

2 Includes reporting and recordkeeping violations and temporary restraining orders

SECTION V
COMMUNICATION, EDUCATION, AND TECHNICAL ASSISTANCE

The Commission's communication, education, and technical assistance activities are critical to its mission of eradicating employment discrimination. In FY 1996, FY 1997, and FY 1998, education and outreach continued to play an integral part in the EEOC's activities. Recognizing that voluntary compliance is essential to achieving its mission, the EEOC continued to emphasize education and outreach as an important part of the NEP. The NEP requires that each of EEOC's offices develops and implements an education and outreach plan tailored to the needs of its communities, with particular emphasis on reaching the underserved. Each office provides information on the Agency's operations, programs, activities, and EEOC- enforced laws through printed materials, speeches, and educational and outreach workshops. Seminars produced in the field that offered technical assistance to employers in the private sector and state and local governments drew an overwhelming response. In fact, more than 20,000 people attended EEOC seminars nationwide, with other outreach presentations reaching more than a quarter of a million people during FY 1996, FY 1997, and FY 1998.

Education, Technical Assistance, and Training Revolving Fund Activities

The Commission's outreach program has two primary components that provide education, technical assistance, and training on equal employment opportunity laws. First, the program provides no-cost education and information to audiences around the country on EEOC's activities. Staff in EEOC field offices make numerous public presentations regarding equal employment opportunity laws and policies to private employers; legal and professional organizations; law enforcement agencies; human rights and advocacy organizations; federal, state, and local government agencies; and other groups affected by the equal employment opportunity laws. Throughout FY 1996, FY 1997, and FY 1998, the Commission conducted approximately 6,000 presentations on a wide range of equal employment related topics, reaching over 400,000 persons. In addition, the Office of Legal Counsel (OLC) provides extensive guidance on these laws and policies in response to telephone calls and written inquiries from the public.

The second component of the education and outreach program consists of specialized, in-depth training provided on a fee basis through EEOC's Education, Technical Assistance, and Training Revolving Fund. Programs sponsored by the Revolving Fund augment those provided at no cost to the public. With the increase in charge filings following the passage of the ADA and the Civil Rights Act of 1991, EEOC needed additional funding to meet the growing demand for assistance. Accordingly, Congress passed the EEOC Education, Technical Assistance, and Training Revolving Fund Act of 1992 (P.L. 102-411), which enabled the Commission to provide comprehensive, specialized education, technical assistance, and training on the laws it enforces. Congress appropriated $1 million as a start-up for the Revolving Fund. The fund, which allows the Commission to charge reasonable fees to cover the costs of training and technical assistance, has helped EEOC leverage its limited appropriated funds to meet legislative mandates requiring free education and technical assistance to the public. Since FY 1993, the Revolving Fund has sponsored a series of Technical Assistance Program Seminars (TAPS) conducted by field offices. The seminars provide information to employers in the federal sector, the private sector, and state and local governments and enable them to comply more easily with laws enforced by the EEOC. From FY 1996 through FY 1998, the Commission conducted 221 TAPS and reached more than 20,000 participants.

Outreach, Education and Technical Assistance Fiscal Years 1996, 1997, 1998

* The first full year of data in the Automated Outreach Systems (AOS) was FY 1997.

Information Dissemination

The Publications Distribution Center (PDC), managed by the Office of Communications and Legislative Affairs (OCLA) under the auspices of an interagency agreement with the U.S. Environmental Protection Agency, provides cost-effective, quality service to public requests for information. In addition to outreach presentations, calls requesting publications from the PDC totaled approximately 263,000, allowing the EEOC to distribute more than 1.1 million information products between FY 1996 and FY 1998. Products produced by the Commission are available in a variety of languages and formats. OCLA also responded to more than 142,000 calls requesting information during this period.

In FY 1997, the EEOC launched its web site on the Internet to provide the public with greater access to an array of Agency informational materials and resources. The home page is located at http://www.eeoc.gov. Visitors to the EEOC web site can easily get the addresses and phone numbers of EEOC field offices; find out how to file a charge; review the text of laws enforced by the Agency; see recent press releases, fact sheets, enforcement guidance, and periodicals; and enter into other federal agency web sites. The Agency's web site is frequently updated to provide timely and accurate information to the public.

Information Dissemination at EEOC Fiscal Years 1996, 1997, 1998

*Note: The public is able to obtain EEOC materials by calling EEOC's PDC toll free (1-800-669-3362 or 1-800-800-3302 TTY).

Policy Guidance

The EEOC produces a variety of policy guidance documents that assist employees and employers in understanding their rights and obligations under the law. For example, the Commission issues regulations, substantive rules, interpretative guidance documents, and federal sector appeals decisions; provides informal advice; and files amicus briefs in the courts. The courts, including the Supreme Court, look to EEOC guidance documents for interpretation of the statutes the Agency enforces, and the Office of General Counsel cites these policies as authority in litigation to advance the position taken in the guidance. Commission staff provides advice to field offices in interpreting and applying significant court decisions and in evaluating evidence in discrimination cases. The guidance on interpreting the law in Commission decisions, regulations, and the EEOC Compliance Manual, developed by the Office of Legal Counsel, is available to the public. Informal guidance and technical assistance covering the entire spectrum of employment discrimination issues are regularly provided to the public. Some of the interpretive documents approved by the Commission during the three fiscal years represented in this report are the Enforcement Guidance on Pre-Employment Medical Examinations and Inquiries under the ADA, Enforcement Guidance on Workers' Compensation and the ADA, Enforcement Guidance on the ADA and Psychiatric Disabilities, and Section Eight of the Compliance Manual on "Retaliation."

The EEOC also published a rule on waivers of age discrimination claims under the ADEA and OWBPA, a policy statement on the Agency's position regarding testers, and a formal decision on the Title VII exemption for Indian tribes. The age discrimination rule was notable because it resulted from the EEOC's first negotiated rulemaking under the Negotiated Rulemaking Act, 5 U.S.C. .561, which provides for the participation of outside parties through an advisory committee. The EEOC convened a 20-member advisory committee representing employers, labor unions, employees, and interest groups to negotiate a proposed rule governing waivers of age discrimination claims related to retirement and severance benefits under Title II of the OWBPA. The proposed rule was submitted by the OLC to the Commission for approval and published in the Federal Register. In its guidance on testers, the EEOC stated its position that testers and organizations that send testers to employers may file charges and litigate their claims. In addition, the Agency published information defining the scope of the Title VII exemption for Indian tribes.

Policy Documents Released in FY 1996

• The Commission approved the Enforcement Guidance on Pre-Employment Medical Examinations and Inquiries under the ADA, setting forth its position on ADA provisions regarding pre-employment disability-related inquiries and medical examinations. The guidance defines disability-related inquiries, explains when a test or procedure is a medical examination, and discusses permitted inquiries and examinations at the post-offer stage and the confidentiality of medical information.
• The Commission approved the Enforcement Guidance on McKennon v. Nashville Banner Publishing Co., analyzing the Supreme Court's McKennon decision under the ADEA on the use of after-acquired evidence of employee wrongdoing to limit the remedies for employment discrimination.
• The Final Legislative Rule Covering Apprenticeship Programs under the ADEA, a final legislative rule applying the ADEA to bona fide apprenticeship programs, was published in the Federal Register. This action reversed a 27-year-old interpretative regulation excluding apprenticeship programs from coverage under the ADEA.
• The EEOC issued the Enforcement Guidance on Whether "Testers" Can File Charges and Litigate Claims of Employment Discrimination, a policy document reiterating the Commission's view that testers (persons who apply for employment for the purpose of testing for discriminatory hiring practices, but who do not intend to accept such employment) and the organizations that send testers to respondents may challenge any discrimination to which they were subjected. This guidance supersedes the Guidance on Tester Standing issued on November 20, 1990.
• The Commission issued the Enforcement Guidance on Workers' Compensation and the ADA addressing the relationship between Title I of the ADA and state workers' compensation laws and focusing on the following issues: (1) whether a person with an occupational injury has a disability as defined by the ADA; (2) disability-related inquiries and medical examinations relating to occupational injury and workers' compensation claims; (3) hiring persons with histories of an occupational injury, return to work of persons with occupational injuries, and application of the direct threat standard; 4) reasonable accommodation for persons with disability-related occupational injuries; (5) light-duty assignments; and (6) exclusive remedy provisions in workers' compensation laws.
• The Commission issued the Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., analyzing the Supreme Court's decision affirming that a prima facie showing of age discrimination in discharge does not require the plaintiff's replacement to be outside the protected age group (i.e., under 40 years of age). The document also provides guidance to field offices on how to process similar cases as they arise under the ADEA, Title VII, the ADA, and the Rehabilitation Act.

Policy Documents Released in FY 1997

• The Enforcement Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person is a "Qualified Individual with a Disability" under the ADA advises that representations made in connection with an application for disability benefits should not be an automatic bar to a claim under Title I of the ADA. The guidance explains that the ADA's purposes and standards are fundamentally different from those of other disability benefits programs such as social security, workers' compensation, and disability insurance. Because of these differences, representations made in connection with an application for benefits may be relevant to, but not determinative of, whether a person is a "qualified individual with a disability" under the ADA.
• The Enforcement Guidance on The Americans with Disabilities Act and Psychiatric Disabilities answers various questions concerning the application of the employment provisions of the ADA to persons with psychiatric disabilities. It addresses the issue of what constitutes a psychiatric disability that is protected by the ADA and clarifies that a qualified individual with a psychiatric disability is covered by the ADA even if medication is taken to control the effects of the disability.
• The Enforcement Guidance on Non-Waivable Employee Rights under EEOC Enforced Statutes clarifies that the right of an individual to file a charge of employment discrimination with the Commission cannot be waived. The guidance also states that an individual's right to testify, assist, or participate in a Commission proceeding cannot be waived. It further explains that such waivers are contrary to EEOC's obligation to represent the public interest in the enforcement of equal employment opportunity laws and are prohibited by the statutes enforced by the Commission.,/li>
• The Enforcement Guidance on the Supreme Court's Decision in EEOC and Walters v. Metropolitan Educational Enterprises, Inc., on Counting Employees for Jurisdictional Purposes under Title VII, the ADEA, and the ADA addresses how to determine when an employer has a sufficient number of employees to be covered under the laws enforced by the Agency. It analyzes the Supreme Court's ruling and its impact on the EEOC's processing of employment discrimination charges in the private and federal sectors.
• The Policy Statement on Mandatory Arbitration of Employment Discrimination Disputes as a Condition of Employment explains why the Commission believes that agreements that mandate binding arbitration of discrimination claims as a condition of employment are contrary to the fundamental principles of employment discrimination laws. The policy statement comes as an increasing number of employers are requiring as a condition of employment that applicants and employees give up their right to pursue employment discrimination claims in court. The Commission believes that the courts play an essential role in enforcing civil rights laws and mandatory arbitration agreements upset the Congressionally prescribed procedures for enforcement of these laws.

Policy Documents Released in FY 1998

• The Policy Guidance on Application of Anti-Discrimination Laws to Coaches' Pay at Educational Institutions clarifies how the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 apply to sex-based differences in the compensation of sports coaches in educational institutions.
• ThePolicy Guidance on Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms clarifies how employment discrimination statutes apply to individuals who are hired by temporary employment agencies, contract firms, and other staffing firms, but whose working conditions are controlled in whole or in part by the businesses to which they are assigned.
• The Final Regulations on Waivers of ADEA Rights and Claims governs waivers of rights and claims under the Age Discrimination in Employment Act of 1967. Under section 7(f) of the ADEA, added by the Older Workers Benefit Protection Act of 1990, an individual may not waive any ADEA right or claim unless the waiver is "knowing and voluntary." Section 7(f) specifies the minimum statutory requirements for determining whether a waiver is knowing and voluntary. The final regulations provide guidance to assist employees and employers in understanding their rights and obligations under the waiver provisions of the ADEA.
• Section Eight of the Compliance Manual, "Clarifying the Right to Protection Against Retaliation," explains the prohibition against retaliation aimed at individuals who file charges of employment discrimination or who participate in the investigation of an EEOC charge. The Supreme Court addressed the issue of retaliation in Robinson v. Shell Oil Company. The Court clarified that employers are prohibited from retaliating against former employees and current employees for engaging in activities protected under employment discrimination laws. The guidance also provides direction on what constitutes a protected activity, what constitutes an "adverse action" that can be challenged as retaliatory, and what evidence is necessary to prove that an adverse action was caused by a protected activity.*

*NOTE: The text of EEOC's Policy Guidance and Regulations can be found on the Internet at http://www.eeoc.gov.

SECTION VI
LITIGATION

When the EEOC finds reasonable cause to believe that discrimination has occurred, it attempts to settle the matter through conciliation, but there are instances when conciliation fails. Accordingly, EEOC Regional Attorneys, under the direction of the General Counsel, determine whether to recommend that litigation should be filed. As mentioned earlier, under the NEP, the Commission delegated to the General Counsel the authority to approve some litigation decisions that had previously been reserved for the full Commission and permitted the re-delegation of that decision-making power to the Regional Attorneys. A critical role of the attorneys in EEOC's field and Headquarters litigation units is to litigate cases that are not resolved voluntarily during the administrative process. EEOC attorneys represent the Commission in enforcement litigation in the United States District Courts and the United States Courts of Appeals. In addition to their prosecutorial function, the attorneys in the field legal units provide legal advice to field enforcement units responsible for investigating charges of discrimination.

Litigation Program

In FY 1996, FY 1997, and FY 1998, the Office of General Counsel (OGC) filed 936 actions in district court. Of these actions, 838 were direct suits and intervention, and the remaining 98 were applications for temporary restraining orders; suits to enforce compliance with record keeping or reporting requirements; or petitions to enforce administrative subpoenas. Of the 838 lawsuits on the merits, three were filed under the Equal Pay Act; 510 alleged discrimination on the basis of race, color, religion, sex, or national origin under Title VII; 85 were filed under the ADEA; 197 alleged violations of the ADA; and 43 alleged violations of two or more employment discrimination statutes.

From FY 1996 through FY 1998, the EEOC's litigation program achieved commendable results. The litigation docket increasingly reflected a broader range of individual and pattern and practice cases. In FY 1998, the Commission filed 405 suits, up from 193 in FY 1996. Historically, there had been some decline since 1990, the largest occurring during FY 1996 when the Commission implemented major reforms in its charge processing methods to address the growing charge inventory. EEOC attorneys resolved 839 lawsuits during the FY 1996-1998 period, securing more than $255.5 million in monetary benefits for victims of discrimination. Of the total resolutions, 776 involved direct suits and interventions, including 476 suits filed under Title VII, 101 suits filed under the ADEA, 162 suits filed under the ADA, one filed under the EPA, and 36 cases filed under more than one statute. Additionally, 63 suits seeking enforcement of subpoenas, compliance with recordkeeping or reporting requirements, or requesting preliminary injunctive relief were resolved. During the three-year period, OGC's Appellate Services, which represents the Commission in courts of appeals, filed 340 briefs, 133 as a party, and 217 as amicus curiae.

LITIGATION STATISTICS FISCAL YEARS 1996, 1997, AND 1998

Significant Litigation in FY 1996

• EEOC v. Mason Tenders' District Counsel Welfare Fund was the EEOC's first ADA case resolved by a consent decree. The suit challenged the exclusion of health insurance coverage for the treatment of HIV- infection, AIDS-Related Complex (ARC), and AIDS. The case was resolved through a consent decree that provided up to $1 million in monetary relief to individuals denied coverage and resulted in the retroactive amendment of the defendant's health plan to include coverage for HIV-infection, ARC, and AIDS.
• In one of the largest recoveries in a case involving age claims, the Commission resolved Billouin and EEOC v. Monsanto Co. and Chevron Chemical Co. Plaintiffs contended that the defendants discharged or failed to hire the 43 class members because of their ages, races, or disabilities. The consent decree provided $18.2 million in back pay, nonpecuniary compensatory damages, and attorneys' fees for the class.
• In EEOC v. General Dynamics Corp., a lawsuit brought on behalf of a class under the ADEA, the complaint alleged that General Dynamics violated the ADEA by providing employees who were age 50 and older with fewer benefits than it provided to employees under the age of 50 in its corporate headquarters retention and outplacement program. Pursuant to the settlement agreement, the defendant agreed to pay $2.5 million in increased pension benefits to 31 class members.
• In EEOC v. International Paper Company, the EEOC's Systemic Litigation Services (SLS) challenged the employer's policy requiring its pilots to stop flying at age 60. SLS had tried the case over a six-week period in FY 1995 before a jury, which rejected the company's defense relying on bona fide occupational qualification and found in favor of the EEOC.
• EEOC v. Southern California Edison Company, a major class action lawsuit alleging racial discrimination in promotions, assignments, and pay, and in creating a racially hostile work environment, was resolved through a consent decree providing $11.2 million in back pay, interest, and damages to the class, who also recovered an additional $4.9 million in attorneys' fees.

Significant Litigation in FY 1997

• The Commission resolved EEOC v. Publix Super Markets, a major Title VII class action lawsuit, through a consent decree. In the case, the EEOC alleged that the defendant discriminated against women in job assignments and promotions. The decree provided for $63.5 million in back pay to a class of current and former female employees at stores in Florida, Georgia, Alabama, and South Carolina. The decree also provided for promotional opportunities for females.
• In another Title VII class case, EEOC and Farmer v. Estwing Mfg. Co., the Commission alleged that the defendant, a manufacturer of high quality hammers and striking tools, discriminated against African- Americans in recruitment and hiring and against women in hiring for positions using heavy equipment. The consent decree required the defendant to pay $3 million in monetary relief to approximately 150 individuals, including $250,000 to the charging party and $75,000 to another individual.
• The Commission also won the liability phase of EEOC v. Joe's Stone Crab, Inc., a class case alleging that the defendant, a popular restaurant, failed to hire women as food servers. From 1986 through 1990, when the charge was filed, all 108 of the food servers hired by the defendant were men. The court found that the restaurant's hiring practices had a disparate impact on women and that its historical practice of not hiring women had caused women not to apply for food server positions.
• EEOC v. Management Recruiters International, Inc., a major sexual harassment case, was resolved through a settlement agreement providing $1.3 million in compensatory damages to a class of 18 individuals as well as a letter of apology from the company's president to each class member. The suit alleged that the defendant had created a sexually hostile work environment for its female employees and retaliated against those who complained about the harassment.
• In EEOC v. Martin Marietta Corp., a major ADEA class case, the Commission claimed that during a series of layoffs the company discharged nonbargaining unit employees age 40 and over in disproportionate numbers. The case was resolved by a consent decree that provided $13 million in monetary relief to approximately 2,000 claimants. As part of the settlement, the decree required Martin Marietta to hire 450 claimants and establish procedures that the defendant must follow in reductions-in-force occurring during the five-year term of the decree.
• The EEOC took a number of ADA cases to trial, including EEOC v. Complete Auto Transit. In this case, the Commission alleged that the defendant failed to accommodate the charging party's epilepsy. The charging party was removed from his truck driver position, pursuant to Department of Transportation (DOT) regulations, after he experienced a seizure at home. He then applied for a position driving cars onsite for one quarter of a mile at five to 15 miles per hour onto a railroad car. Although the position was not subject to the DOT regulations, the defendant refused to place the charging party in the position and rejected doctors' opinions that the charging party could safely perform the job. The jury awarded the charging party $191,931 in back pay, $959,655 in nonpecuniary compensatory damages, and $4.3 million in punitive damages. Because of the statutory cap on compensatory and punitive damages, the court reduced that portion of the jury's award to $300,000.

Significant Litigation in FY 1998

• EEOC v. Astra U.S.A., Inc. was resolved by a consent decree providing $9.85 million to a class of 80 to 100 women affected by the defendant's discriminatory practices of permitting its senior managers to sexually harass subordinate female employees. The decree required Astra to revise its sexual harassment policy, and an outside monitor was appointed to review the defendant's compliance with its policy prohibiting sexual harassment.
• A Title VII case, EEOC v. Chi-Chi's Restaurant, was resolved through a settlement agreement providing $57,500 to the claimant, a Jehovah's Witness, who alleged the restaurant discriminated against her because of her religious beliefs. Under the terms of the agreement, the restaurant agreed to adopt a new corporate religious policy emphasizing the company's commitment to reasonably accommodate the religious beliefs and practices of its employees, keep records of its handling of requests for accommodation, and apprize the EEOC of its accommodation efforts for two years.
• EEOC v. Mitsubishi Motor Manufacturing of America was resolved by a consent decree providing $34 million in monetary relief to a class of 300 to 400 female employees and former employees. The decree contained extensive injunctive relief, including revisions in the defendant's sexual harassment policy and complaint procedure; establishment of policies to require supervisor accountability for engaging in or permitting sexual harassment; and the appointment of three monitors with broad powers to effectuate the decree and a complaint monitor to monitor the defendant's investigation and resolution of sexual harassment complaints.
• In EEOC v. Lew Lieberbaum & Co., the Commission recovered $1.55 million for 17 victims of discrimination and $200,000 for future claimants in the case. EEOC alleged that the defendant subjected its African-American and female employees to a racially and sexually hostile environment; paid them less than other employees; failed to promote them; retaliated against those individuals who complained about the harassment and, in some instances, discharged them.
• In EEOC v. Oak Lawn Ltd., doing business as Oak Lawn Holiday Inn, the Commission recovered, through a consent decree, monetary relief of $1 million for a class of black applicants denied employment at the motel. The decree also provided for offers of employment to interested class members. The suit alleged that defendant refused to hire blacks for "front-of-the-house" positions and racially coded applications.
• The Commission won a jury trial on behalf of an individual with a disability in EEOC v. Wal-mart (Zamora). The Commission alleged that the defendant violated the ADA when it refused to hire the charging party because of his disability, which requires him to use a wheelchair. After a four-day trial, the jury returned a verdict in favor of the Commission, awarding $8,399 in back pay, $75,000 in compensatory damages, and $3.5 million in punitive damages. The compensatory and punitive damages were reduced by the court to a total of $300,000, the maximum amount available under the cap in the 1991 Civil Rights Act.
• The Commission intervened in an ADEA action alleging that Lennox Industries, a manufacturer and distributor of heating, ventilation, and air conditioning equipment, had engaged in a nationwide pattern or practice of age discrimination by terminating District Sales Managers 40 years of age and older because of their age. The case was resolved in May 1998 through a consent decree providing $6.2 million, including attorneys' fees to 11 individuals. The decree also provides for extensive affirmative relief, including monitoring and reporting for 42 months. The defendant reimbursed the EEOC for $10,161 in costs.

Appellate Services

Appellate Services represents the Commission in the courts of appeals and makes recommendations to the General Counsel concerning which cases should be appealed in litigation filed by the Commission. Appellate Services also makes recommendations to the Commission regarding whether to file amicus curiae briefs in private cases that raise important issues under EEOC-enforced statutes. In FY 1996, FY 1997, and FY 1998, OGC's Appellate Services filed 297 briefs, 107 as a party and 190 as amicus curiae. Supreme Court litigation is handled for EEOC by the Solicitor General at the Department of Justice. As authorized by the Commission, Appellate Services submits draft briefs containing the Commission's position to the Solicitor General for submission to the Supreme Court.

Supreme Court Decisions in FY 1996

• The Supreme Court ruled in O'Connor v. Consolidated Coin Caterers Corp. that a plaintiff may establish a prima facie case of age discrimination under McDonnell Douglas even if his replacement is in the protected age group. Adopting the position advanced by the Commission and the Solicitor General as amicus, the Court determined that a "substantially younger" replacement is "a far more reliable indicator" of age bias than replacement by someone outside the protected class.

Supreme Court Decisions in FY 1997

• In Walters and EEOC v. Metropolitan Educational Enterprises, Inc., the Supreme Court unanimously adopted the Commission's interpretation of the "employer" coverage provision in Title VII. The Court ruled that an employer is covered by the statute if it maintains an employment relationship with at least 15 employees during 20 weeks in a relevant calendar year. On the pivotal issue of how to count the numbers of employees, the Court approved the EEOC's "payroll method" of counting all employees on an employer's payroll to determine employer coverage.
• In Robinson v. Shell Oil Co., a Title VII retaliation case, the Supreme Court unanimously adopted the EEOC's position advanced as amicus through the Solicitor General that former employees are protected by the anti-retaliation provision of Title VII.

Supreme Court Decisions in FY 1998

• In a unanimous opinion, the Supreme Court reversed the Fourth Circuit Court of Appeals in Wright v. Universal Maritime Service Corp. and held that the collective bargaining agreement (CBA) in this case was not subject to a presumption of arbitrability on the petitioner's ADA claim. The Court determined that the CBA did not contain a clear and unmistakable waiver of the employee's right to a federal judicial forum for claims of employment discrimination. The Commission, through the Solicitor General, had urged the Court to rule that an arbitration provision in a CBA cannot operate to bar an employee from pursuing a judicial remedy under an anti-discrimination statute. The Court found it unnecessary to resolve this broader question in light of its ruling.
• In the summer of 1998, the Supreme Court handed down three sexual harassment cases. In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court, in a unanimous decision, held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court stated that there was no justification in Title VII's language or the Court's precedents for a rule barring a discrimination claim merely because the person harassing the victim and the victim are of the same sex. This decision was also fully in accord with the EEOC's position advanced by the Solicitor General in a brief filed as amicus curiae in this case.

The Commission filed amicus curiae briefs jointly with the Solicitor General in Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. In Faragher, the Commission argued that employers should be liable for supervisors' harassment of their subordinate employees when the supervisors are aided in the harassment by authority delegated by the employer, regardless of whether the employer has actual knowledge of the harassment. In Burlington Industries, the Commission argued that a plaintiff can make out a claim for quid pro quo harassment when a supervisor threatens adverse job consequences if she does not submit to his sexual demands, even if the threat is unfulfilled and the plaintiff suffers no tangible economic job detriment. The Court issued decisions in both cases, holding in each that employers are subject to vicarious liability for a hostile environment created by a supervisor with authority over the employee. When a tangible employment action is taken, the employer is liable. When there is no tangible employment action, the employer may raise an affirmative defense to liability or damages, proving by a preponderance of the evidence that he or she exercised reasonable care to prevent and promptly correct any sexually harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

SECTION VII
FEDERAL SECTOR PROGRAMS

EEOC provides leadership and guidance on all aspects of the federal government's EEO program in accordance with Section 717 of Title VII; Section 501 of the Rehabilitation Act of 1973; the ADEA; the EPA; Executive Order 12067; and Executive Order 11478, as amended by Executive Order 12106. The EEOC ensures federal agency and department compliance with regulations that establish systems for fair resolution of discrimination complaints. The EEOC is responsible for the pre-appellate hearings process and provides guidance and technical assistance to EEOC Administrative Judges who conduct hearings on discrimination complaints processed by federal agencies. EEOC adjudicates appeals of federal agency decisions on discrimination complaints and ensures Agency compliance with decisions issued on those appeals. EEOC also provides case resolution assistance on a reimbursable basis to other federal agencies in connection with highly sensitive EEO matters and provides assistance to federal agencies in connection with efforts to incorporate Alternative Dispute Resolution mechanisms into EEO processes. In addition, EEOC develops and implements affirmative employment policies designed to guide agencies in their efforts to enhance the occupational status of minorities, women, and persons with disabilities in the federal sector.

Federal Sector EEO Activities

The EEOC is responsible for monitoring federal agency complaint processing programs and EEO hearings. The complaint processing regulation (29 C.F.R. Part 1614) for employment discrimination charges filed by federal employees requires that investigations conducted by federal agencies be completed no later than 180 days after they are requested. The regulations also require that hearings be concluded no later than 180 days after they are requested and that appeals be filed no later than 30 days after the complainant receives a final decision. If an agency dismisses all or part of a complaint, a dissatisfied complainant may file an expedited appeal with the EEOC within 30 days of notice of the dismissal. The EEOC may determine that the dismissal was improper, reverse the dismissal, and remand the matter back to the agency to complete the investigation. A complainant may also appeal a final agency decision to the EEOC within 30 days of notice of the decision. The EEOC will then examine the record and issue a final decision on the matter.

Requests for hearings with EEOC Administrative Judges continued to increase with 10,677 in FY 1996, 11,198 in FY 1997, and 12,218 in FY 1998. Resolutions also increased during each fiscal year from 8,760 to 9,424 and finally to10,426 in FY 1998. Resolutions per Administrative Judge increased as well, going from 117 in FY 1996, to 125 in FY 1997, and 135 in FY 1998. However, despite the increased resolutions, the end of the year inventory of hearings requests totaled 11,967. The number of appeals to process increased as well, rising from 8,001 to 8,453 from FY 1996 to FY 1997, and up again in FY 1998 to 8,480. The individual productivity of appellate attorneys continued to improve with appellate resolutions per attorney climbing to 157 in FY 1996 to 176 in FY 1997 and 192 in FY 1998. The total monetary benefits in the form of back pay, compensatory damages, and attorneys' fees achieved as a result of appellate decisions increased by 28 percent, from $4.7 million in FY 1996 to $6.6 million in FY 1997. Monetary benefits, however, were down to $5.7 million in FY 1998.

Federal EEO Enforcement Statistics Fiscal Years 1996, 1997, and 1998

The following tables depict EEOC's federal EEO enforcement statistics for fiscal years 1996, 1997, and 1998:

Federal Sector Appellate Reviews

Federal Sector Hearings

Federal Sector Monetary Benefits

Notice of Proposed Rule Making on Federal Sector Equal Employment Opportunity (EEO)

In FY 1997, a federal sector work group began studying how to change the federal sector complaint process to make it more fair, effective, and efficient. The group recommended modifications to Section 1614 regulations governing the federal sector process in FY 1997, and the suggested changes were circulated to federal agencies for comment. Stakeholder meetings were held during this process.

In February of FY 1998, EEOC announced the proposed changes to its regulations governing the procedures for federal employee discrimination complaints as part of its efforts to improve its operations. The proposed changes, published in the Federal Register as a Notice of Proposed Rule Making (NPRM), were the result of a nearly two-year long process. The Commission expected to implement the final regulations in FY 1999. In developing the NPRM, the Commission consulted with its stakeholders, federal officials, and federal employees and their representatives. The major proposed changes include:

• expanded use of Alternative Dispute Resolution to resolve complaints earlier in the complaint process;
• a provision that the decisions of EEOC Administrative Judges will be final, eliminating the ability of the agency accused of discrimination to change or reverse the decision of the judge;
• mechanisms to enhance the management of cases by creating two new bases for dismissing claims;
• a new "Offer of Resolution" provision which allows an agency to make a settlement offer to an employee and, if the employee does not accept the offer and does not recover at least as much as the agency offered, avoid liability for attorneys' fees and costs beyond the time the offer was made;
• expanded use of class actions to combat discrimination in federal employment;
• adoption of a substantial evidence standard of review for decisions of Administrative Judges following a hearing; and
• narrowing the circumstances in which the parties can seek reconsideration of an EEOC appellate decision issued after an appeal by an agency or employee.

The NPRM acknowledged a number of comments made by federal agencies during the formal interagency review process and asked for public comments on those issues. The public comment period ran from February 20 through April 21, 1998.

Federal Affirmative Employment Activities

All federal agencies are required to prepare and submit the following affirmative employment reports to the Commission:

• Multi-year affirmative employment plans (plans that outline objectives and action items for agency policies, procedures, and systems that may affect the employment of minorities, women, and people with disabilities); Annual accomplishment reports (reports that include statistical analyses of workforce trends and activities); and
• Plan updates (updates that address achieved and unachieved action items).

The EEOC evaluates these reports pursuant to EEO Management Directives (MD) 712 and 713, directives that cover the hiring, placement, and advancement of individuals with disabilities, and MD 714, a directive that covers affirmative employment for minorities and women. The Commission reviewed 522 agency reports in FY 1996, 643 in FY 1997, and 400 in FY 1998. Also, in FY 1996, FY 1997, and FY 1998, EEOC staff conducted 570 on-site technical assistance visits to federal agencies based on the reviews of affirmative employment workforce trends found in annual accomplishment reports and updates to multi-year plans.

EEOC equal employment specialists and attorneys conducted on-site reviews of agencies to ensure that minorities, women, and people with disabilities receive equal treatment with regard to agencies' personnel practices and are provided opportunities for advancement. In FY 1996, FY 1997, and FY 1998, the Commission conducted 14 federal agency on-site reviews. From FY 1996 through FY 1998, EEOC's Office of Federal Operations scheduled activities with federal agencies to enhance their complaint processing capabilities, including on-site consultations and briefings for EEO directors.

SECTION VIII
LABOR-MANAGEMENT PARTNERSHIP

The EEOC could not have effectively achieved significant reforms without strong support from its staff. Continuing with the efforts started in FY 1995 for a better labor-management relationship, a unique partnership was formed at the Agency. This structure provided for a national partnership council to engage all employees in creative ways to transform the work environment and implement operational changes in the most effective and efficient way possible. The objectives of the partnership were to build a new relationship between labor and management, improve employee morale and, in turn, improve the way the Agency operated.

The first meeting of the National Labor-Management Partnership Council (NLMPC) was held at EEOC Headquarters in September 1995. Shortly thereafter, Chairman Casellas, EEOC managers and employees, and representatives of the National Council of EEOC Locals, No. 216 signed a new Collective Bargaining Agreement, a significant step forward in the Agency's labor-management relationship. The agreement encouraged the development of the national partnership at headquarters and local partnership councils in field offices. The agreement also delineated Alternative Dispute Resolution procedures, summarized basic rights and responsibilities of employees, outlined plans for developing an objective performance appraisal and awards system, and described a comprehensive training and development program. August 5, 2002Less than a year later, on March 14, 1996, the EEOC received Vice President Gore's Hammer Award for implementing the partnership structure and improving the relationship between labor and management at the Agency.

In FY 1997 and FY 1998, the NLMPC listed improved labor-management relationships, the Career Enhancement Internship Program (CEIP), and the Flexible Workplace (or "flexiplace") Program among its accomplishments. The CEIP and flexiplace programs were authorized under the Collective Bargaining Agreement. The CEIP offers10 internships each year to EEOC support staff who have competitive status and demonstrate the capability of assuming more complex responsibilities in an automation, investigative, administrative, or legal career field. The program applies the team approach concept to career management and development. Interns, their supervisors, and their mentors work together to devise Individual Development Plans (IDP) that serve as blueprints for their internships. The IDP defines the intern's career goals and identifies the skills needed for him or her to successfully perform the duties of the target position. The NLMPC also established guidance and developed general parameters for the Agency's flexiplace program, which allows employees whose work can appropriately be accomplished at home to participate in the program on a volunteer basis with supervisory concurrence.

APPENDIX A

The following statistical tables depict EEOC enforcement activities for fiscal years 1996, 1997, and 1998:

All Statutes Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX B

Civil Rights Act of 1964 (Title VII) Charges Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX C

Age Discrimination in Employment Act (ADEA) Charges Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX D

Americans with Disabilities Act of 1990 (ADA) Charges Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX E

Equal Pay Act (EPA) Charges (includes concurrent charges with Title VII, ADEA, and ADA) Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX F

Race-Based Charges (Title VII) Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX G

Religion-Based Charges (Title VII) Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX H

Sex-Based Charges (Title VII) Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX I

National Origin-Based Charges (Title VII) Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System--National Data Base.

APPENDIX J

Sexual Harassment Charges EEOC & FEPAs Combined: Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX K

Pregnancy Discrimination Charges EEOC & FEPAs Combined: Fiscal Years 1996, 1997, and 1998

*The total of individual percentages may not always equal 100 percent due to rounding.

Data in this chart, compiled by the Office of Research, Information and Planning, were taken from EEOC's Charge Data System - National Data Base.

APPENDIX L

GLOSSARY

Administrative Closure - A charge closed for administrative reasons which include failure to locate the charging party, charging party failed to respond to EEOC communications, charging party refused to accept full relief, related litigation which establishes a precedent that makes further processing of the charge futile, charging party requests withdrawal of the charge without receiving benefits or having resolved the issue, no statutory jurisdiction.

Merit Resolutions - Charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations.

No Reasonable Cause - EEOC's determination that there is no reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. The charging party may exercise the right to bring private court action.

Reasonable Cause - EEOC's determination that there is reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. Reasonable cause determinations are usually followed by efforts to conciliate the discriminatory issues which gave rise to the initial charge.*

Settlements (Negotiated) - Charges settled with benefits to the charging party. In such cases, EEOC and/or a FEPA is a party to the settlement agreement between the charging party and the respondent (an employer, union, or other entity covered by EEOC-enforced statutes). These agreements are reached prior to the EEOC issuing its determination on the merits of the charge.

Successful Conciliation - A charge with a reasonable cause determination closed after successful conciliation. Successful conciliations result in substantial relief to the charging party and all others adversely affected by the discrimination. There are three parties to the agreement the charging party, the respondent, and the EEOC.

Unsuccessful Conciliation - A charge with a reasonable cause determination closed after efforts to conciliate the charge are unsuccessful. Pursuant to Commission policy, the field office will close the charge and review it for litigation consideration.**

Withdrawal with Benefits - The charge is withdrawn by charging party upon receipt of desired benefits. The withdrawal may take place after a settlement or after the respondent grants the appropriate benefit to the charging party.

* NOTE: Some reasonable cause findings are resolved through negotiated settlements, withdrawals with benefits, and other types of resolutions, which are not characterized as either successful or unsuccessful conciliations.

** NOTE: Because "reasonable cause" has been found, this is considered a merit resolution.

APPENDIX M

EEOC GENERAL COUNSELS

As originally enacted in 1964, Title VII did not provide for a General Counsel. Section 705(a) of the Act, however, permitted the EEOC Chairman to appoint attorneys, and a General Counsel's position was created. Prior to 1972, three General Counsels were appointed by the Chairman:

• Charles T. Duncan, August 1965 - October 1966.
• Daniel Steiner, December 1967 - July 1969
• Stanley P. Hebert, December 1969 - August 1971

Four persons served as Acting General Counsel prior to the creation of an independent General Counsel:

• Richard Berg, October 1966 - May 1967
• Kenneth F. Holbert, May 1967 - December 1967
• Russell Spector, July 1969 - December 1969
• John de J. Pemberton, August 1971 - June 1972

In 1972 Congress amended Title VII and passed the Equal Employment Opportunity Act of 1972. With the passage of this Act, Congress established an independent General Counsel to be appointed by the President and confirmed by the Senate. To date, eight Commission General Counsels have served in this capacity:

• William A. Carey, June 1972 - March 1975
• Abner W. Sibal, July 1975 - December 1978
• Leroy D. Clark, July 1979 - January 1981
• Michael J. Connolly, November 1981 - September 1982
• David L. Slate, January 1983 - June 1984
• Charles A. Shanor, March 1987 - June 1990
• Donald R. Livingston, November 1991 - June 1993
• Clifford Gregory Stewart, July 1995 -

Since the passage of the Equal Employment Opportunity Act of 1972, seven individuals have served as Acting General Counsel at the designation of the Chairman in the absence of a confirmed General Counsel:

• Julia P. Cooper, March 1975 - July 1975
• Issie L. Jenkins, January 1979 - July 1979
• Constance L. Dupre, June 1981 - October 1981
• Michael N. Martinez, September 1982 - December 1982
• Johnny J. Butler, June 1984 - March 1987
• Donald R. Livingston, June 1990 - November 1991,/li>
• John P. Rowe, March 1995 - July 1995

APPENDIX N

Terms of EEOC Commissioners

* Served as Acting Chairmen

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