Published on HamptonRoads.com
Discrimination complaints taking longer to investigate
Chantale Joseph describes the last five years of her work life as an unremitting misery.
Joseph, a revenue agent with the Virginia Beach Commissioner of the Revenue's office, said the manager of her division mocked her Haitian accent in front of colleagues and chastised her for minor errors, such as extra spaces between words in paperwork.
After she complained, Joseph said, she was transferred last summer to a lesser position, where she said she still experiences unfair treatment.
Joseph filed a complaint in October with the Equal Employment Opportunity Commission, the federal agency that investigates claims of job bias. She accused the Virginia Beach office of discrimination based on national origin and retaliation.
Phil Kellam, the city's commissioner of the revenue, said last week that he could not comment on Joseph's allegations or confirm her complaint.
Joseph said a local EEOC worker first told her the investigation could take one year to complete. Last month, she said, she was given a revised timetable: It might take up to four years.
"It would be nice if they could do something quickly," said Joseph, 51. "It affects people's health working in a hostile environment."
Local attorneys for workers and employers say Joseph's dilemma is theirs, too.
The equal-employment agency, socked with both a shrinking staff and escalating complaints, is prolonging investigations, they said, keeping their clients waiting and hobbling discrimination suits.
"It's taking a year or more for the investigators to even look at the files," said Reid Ervin, a Norfolk lawyer who represents workers. "The people that are in Norfolk are good people, but thanks to the Bush administration, they're totally understaffed. It's like fish gasping for air."
The delay, Ervin said, "prevents justice because cases just die on the vine."
The EEOC is the required starting point for any discrimination lawsuit.
David Grinberg, a Washington spokesman for the agency, last week acknowledged growing lag times in investigations. But he said the agency has begun to rebound with renewed interest and funding from President Barack Obama's administration.
"The EEOC was resource-starved during the prior administration," Grinberg said, with many job openings left unfilled. Nationwide, he said, its staff has shrunk about 24 percent, to 2,174 last year from 2,852 in 2000.
The decline was even sharper in the Norfolk office. When Herb Brown became director in 1995, the office had about a dozen investigators, he said. The number stood at four last year.
"There was a void left, which was detrimental to our enforcement efforts," Grinberg said. "Aggrieved individuals, victims of alleged discrimination, had to wait longer for their cases to be heard, did not necessarily receive the most efficient and effective customer service, and investigators were carrying historically high case loads."
Since 2000, the number of complaints to the agency has increased nearly 20 percent, to 95,402 last year from 79,896. Nearly two-thirds allege racial or gender discrimination in the workplace. The agency's backlog, or what it calls its "pending inventory," stood at nearly 74,000 cases last year.
"The good news," Grinberg said, "is that we started to receive some budget increases during this current administration.... The staff in the field is hopeful that the EEOC will be revitalized."
Obama is seeking a $23 million, or 7 percent, increase for the agency in fiscal 2010, and the EEOC is already in the midst of hiring 200 people, Grinberg said.
In Norfolk, Brown said he hired an investigator in January and will add two more this month, increasing the total to seven. That has raised morale in the office, he said. "We're looking forward to providing better customer service."
The growing backlogs have frustrated agency workers, said Regina Andrew, president of American Federation of Government Employees Local 3614 in Baltimore, which represents Norfolk EEOC employees. "They were just taking the inventory in and putting it on a shelf until they could get to it," Andrew said.
Although acknowledging the lags, Grinberg said a priority processing system allows the EEOC to focus attention on cases with the strongest evidence. The processing time for all complaints averaged 230 days last year, he said. In Norfolk, Brown estimated 389 days.
"Multiple years would be extremely rare," Grinberg said. "That is not the norm."
But David Burton, an attorney for employers at Williams Mullen in Virginia Beach, counts about two dozen EEOC complaints filed against his clients more than two years ago that remain unresolved. Arlene Klinedinst, with Vandeventer Black in Norfolk, said she represents a company that faces a pending complaint filed in November 2005.
"It's a frustrating situation for the EEOC, for employers and for charging parties," said Scott Kezman, a Norfolk attorney with Kaufman & Canoles, "but it's the reality that everybody's dealing with now."
An EEOC complaint has several possible outcomes. The worker and employer may agree to submit the case to an agency mediator. Otherwise, the agency pursues an investigation.
It might find insufficient evidence of discrimination. If it determines discrimination has occurred, it seeks to reach a settlement between the parties. If that fails, the EEOC will close the case or, in a minority of complaints, file a discrimination suit against an employer.
Last month, the EEOC's Norfolk office sued Kmart, accusing the store of firing a local worker who uses a cane.
The number of suits filed by the EEOC has declined with dwindling manpower, falling to 325 last year from 421 in 2004, said Grinberg, the EEOC spokesman.
A worker generally must file an EEOC complaint and wait for the resolution before suing a company for discrimination.
Given the ballooning time lags, Norfolk attorney Lisa Bertini, who represents workers, lately has been using an escape hatch, If 180 days elapse without a resolution, a person who filed a complaint may seek a "right to sue" letter from the EEOC, terminating the investigation and opening the way for a suit.
"These people are desperate to have a resolution," Bertini said, "and attorneys like me would prefer the evidence be fresh. Everybody loses interest in three, four years. The ability to do investigative work and call witnesses has been compromised."
Attorneys for employees typically see the drawn-out investigations as a benefit for the businesses they oppose. "Employers know they can just sit on it and do nothing," said Ervin, the Norfolk lawyer. "They hope the employees will go away."
Burton, from Williams Mullen, said it's a mixed bag.
"I agree that, in a lot of cases, it is good, to a certain extent, for my clients," he said. "As more time goes by, people who perhaps filed a charge out of a sense of anger and frustration lose interest."
On the other hand, companies must preserve a mass of electronic records. "The longer it takes, the more I become concerned, even if people are well-meaning, that something gets lost," Burton said. In a legal proceeding, a missing document "could potentially be very helpful to the plaintiff."
Klinedinst, the Vandeventer Black attorney, added: "It's not as hard for employers, but it's certainly not something they want. They have to report these things to their boards of directors, insurance companies, banks. If a charge is unresolved for two, three, four or five years, they still have to report it."
Chantale Joseph, the Virginia Beach employee, said she plans to amend her EEOC complaint this week to include an allegation of racial discrimination. She said she was the only black worker in the division where she first suffered harassment.
Joseph expressed frustration at the slow pace of the investigation. She said she's received one letter from the EEOC, in December, since she filed the complaint. But she calls herself a "warrior" who doesn't easily surrender.
"I want to leave work when it's time to leave," she said. "I came here with dignity. I want to leave with dignity."
Philip Walzer, (757) 222-3864, firstname.lastname@example.org
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