I spent a day earlier this week representing a client in an EEOC on-site investigation.  The investigator interviewed numerous company officials.  At the start of each interview, the investigator stated that the EEOC is a “neutral third-party.”

While the EEOC is supposed to be neutral, many actions and positions taken by the EEOC leave companies (and their counsel) shaking their heads over this assertion of neutrality.  While the particular investigator I dealt with this week was quite professional, personable and reasonable, most other experiences with the EEOC make it hard for her and her peers to be viewed as neutral by any employer.

For instance, just this week the EEOC tweeted the following:

When an agency has to tout how busy it is or how much money it recovers from employers — with the inference that they did something wrong — to justify its budget and its continued existence, how neutral can it really be?  Does the EEOC tweet how many of the nearly 100,000 Charges of Discrimination were found to have absolutely no merit?  Does it try to determine in which cases an employer paid some “nuisance value” amount to settle rather than spend far more defending itself against the Charge (and potential litigation)?  Does the EEOC point out that (based on its tweet) on average a Charge leads to the recovery of less than $4,600 from an employer?  Does the EEOC even compare how much it gathered ($455.6 million) against how much it spends?  [The EEOC requested more than $385 million for its FY 2011 budget, so it spent an amount equal to nearly 85% of what it recovered for employees.]

More broadly, neutrality is difficult to pull off when only one side — employees — can really seek the EEOC’s main services, and when the EEOC most often spends its resources (and even its tweets) on the alleged bad actions of a relatively few purportedly misguided employers.  When a Charge of Discrimination by an employee is found to completely lack merit does the EEOC say so?  No.  Does the EEOC take any action against an employee for filing a bogus Charge?  No.  It merely states that it did not find “reasonable cause” to believe the employer violated the law.  Hardly a ringing endorsement that an employer treats its employees respectfully, properly and in compliance with the law, which it likely does.

On the flip side, when the EEOC finds “cause” to believe the employer did discriminate, it immediately moves to “Conciliation” in which it basically demands money from the employer (for the employee).  To say the EEOC is neutral in that process is stretching any definition of “neutral” past its breaking point.  Plus, if Conciliation fails, the EEOC still may file a lawsuit against the employer.  Still neutral then?  Not one tiny bit.

The EEOC would be better off — and perhaps a bit more credible with employers — if it just told employers that it was responsible for investigating a Charge filed by an employee.  Skip the song or dance about being “neutral.”  Employers get that the EEOC has to investigate, and they know that is effectively for the sole benefit of the employee who filed the Charge.  Saying you are neutral doesn’t make it so.  For most employers, the statement of neutrality rings hollow and even comical, and just undermines any credibility the agency or its employees might have with an employer.