THE BACKLOG

Now let us look at the principal issue for which these hearings were called, the build-up of cases since the Equal Employment Opportunity Commission went into business nine years ago. Let us look at the geometric growth rate of charges filed with the Commission to see what has happened to bring about the present backlog of approximately 98,000 charges.

Fiscal Year 1966

The Commission opened its doors in July 1965. Initially charges were received and investigated out of Washington, although field investigators were borrowed from other agencies. All decisions were drafted by the individual Commissioners and their staffs. Every attempt at conciliation, in every case, was also handled at Headquarters. Late in FY 1966, the first few field offices were established and charges began to be investigated in the field. However, all files were sent to headquarters for decision and the conciliation process was handled entirely in Washington.

Under this highly centralized approach in FY 1966 : 8,854 charges were received; 6,347 were resolved (6,098 were administratively closed, no cause was found in 49 instances, and 203 were conciliated)-2,507 were backlogged. Fiscal Year 1967

During this year additional district (field) offices were established bringing the total complement to 12: 9,688 charges were received; 5,134 were resolved (3,913 were administratively closed, no cause was found in 331 instances, and 870 were conciliated) -4,554 were backlogged in 1967, added to the previous backlog, totals 7,061 backlogged.

Fiscal Year 1968

During this year a Decisions and Interpretations Division was established to draft decisions for review by the Commissioners. No additional district offices were created to alleviate the investigation workload: 10,095 charges were received; 6,720 were resolved (5,002 were administratively closed, no cause was found in 474 instances, and 1,244 were conciliated)-3,375 were backlogged in 1968 added to the previous backlog totals 10,436 backlogged.

Fiscal Year 1969

The authority to sign conciliation agreements on behalf of the Commission was given to Field Directors for the first time this year. No additional district officers were created however: 12,148 charges were received; 6,342 were resolved (4,125 were administratively closed, no cause was found in 972 instances, and 1,305 were conciliated) -5,806 were backlogged in 1969 added to the previous backlog totals 16,242 backlogged.

Fiscal Year 1970

In FY 1970, district offices were permitted to draft some decisions. These were reviewed by headquarters and then approved by the Commissioners. In February 1970, new procedures were established. District Directors henceforth issued Findings of Fact to the parties and were permitted to engage in pre-decision settlement discussions prior to decision. The Commission had to approve all settlements before they became final. The field also drafted all decisions in "guideline" (generally non-systemic) cases and those where objections were raised to the finding of fact and transmitted them directly to the Commission for approval. "Non-guideline" cases were sent to the Decisions Division in Washington which prepared the decision and then transmitted it to the Commission for approval. District Directors at this point were given the authority to conciliate most cases, but had to consult with headquarters on sufficiency of remedy: 14,234 charges were received; 5,967 were resolved (3,765 were administratively closed, no cause was found in 1,023 instances, and 1,179 were conciliated)—8,267 were backlogged in 1970 added to the previous backlog totals 24,569 backlogged.

Fiscal Year 1971

Beginning in September 1970, EEOC reorganized its field structure into a two-tiered arrangement of District Offices supervised by Regional Offices. Six more district offices were established bringing the total to 18. While these were meant to improve the Commission's availability to the public as well as alleviate

the burden of backlogged cases it ultimately resulted in only providing the former which further resulted in more cases, more backlog.

The field or district offices were required to maintain a work progress system which measured productivity as a comparative office-to-office basis.

With this new procedure the administrative processing of cases should have broken the wave of the increasing backlog except for one inescapable fact-the number of complaints surged upward at almost geometric proportions: 22,920 charges were received; 11,497 were resolved (6,864 were administratively closed, no cause was found in 3,865 instances, and 768 were conciliated)-11,423 were backlogged in 1971 added to the previous backlog totals 35,932 backlogged. Fiscal Year 1972

On March 24, 1972, the President signed the Equal Employment Opportunity Act of 1972 that expanded the EEOC's jurisdiction to include 10 million employees of state and local governments and 4 million employees of educational institutions. Title VII was also broadened to apply to businesses and unions with 15 or more employees, instead of those with only 25 or more. Now the EEOC had the responsibility of assuring equal employment opportunity to more than 63 million employees in the United States.

In addition the 1972 Amendments gave the EEOC the authority to initiate litigation against companies or unions where conciliation efforts failed.

This added authority coupled with an increasing caseload required another review and reorganization of the Commission's procedures. This year 14 additional district offices were established to carry out the compliance process. The total number of district offices was increased to 32. The Compliance Manual issued to district offices was shared with all 706 state and local agencies. This was to assist them in developing a uniform approach in improving the determination of charges within their respective jurisdictions. A Performance Management System was also initiated to provide objectives and goals and facilitate performance monitoring and the optimum allocation of resources to meet those objectives and goals: 32,840 charges were received; 10,802 were resolved (7,576 were administratively closed, no cause was found in 1,182 instances, and 2,044 were conciliated)22,038 were backloged in 1972 added to the previous backlog totals 57,970 backlogged.

Fiscal Year 1973

The cumbersome Finding of Fact procedure, whereby facts were summarized in an Investigator's Memorandum but not sent to the parties involved, was abolished. Pre-decision settlements could now be negotiated and signed by District Directors after preliminary investigation. District Directors were also authorized to draft and issue letters of determination in precedent cases. Non-precedent cases continued to be sent to headquarters for preparation and issuance of a decision. On conciliation, final authority continued to rest with the District Director; headquarters consultation was no longer required though a quality control review system was established: 48,899 charges were received; 20,187 were resolved (11,940 were administratively closed, no cause was found in 2.963 instances, and 5,284 were conciliated)—28,712 were backlogged in 1973 added to the previous backlog totals 80,516 backlogged.

Fiscal Year 1974

My term as Chairman commenced in January 1974. This was half way through FY 1974. I will therefore comment on the situation for this year, however, let me set out the same workload data in the same form as I have done for the preceding years: 56,953 charges were received: 37,726 were resolved (23,778 were administratively closed, no cause was found in 5,270 instances, and 8,678 were conciliated)—19,227 were backlogged in 1974 added to the previous backlog resulting in a total of 97,761 to date.

You will note that this is the first time since 1968 that the number of resolved charges exceeded 51% of the total number of charges received. Also the rate of conciliated cases increased over the last two years at a far greater rate than the number of charges received.

At this juncture I want to underscore one point: success comes by way of improvement which is an evolutionary process. Realized results quite often take considerable time from initial inception to implementation. My predecessors worked long and hard to eliminate employment discrimination. I am sympathetic toward the problems confronting the Equal Employment Opportunity Commis

sion before I became its Chairman and I hope to benefit from its experiences. It is essential for all of us to appreciate the development and growth problems that are inherent with an organization charged with such an enormous task and that has the immense social and economic consequences that are involved with ferreting out discrimination in employment.

Some of the improved procedures that I outline here originated prior to my assuming the Chairmanship but nevertheless which I wish to pursue. Other improvements originated after my term began. It is my firm belief that the following steps will go a long way toward achieving the goals of the EEOC on a more timely basis.

Voluntary programs

The Office of Voluntary Programs during FY 1974 began an experiment in which attempts were made, without reference to pending charges, to obtaining voluntary agreements with employers. These agreements contain all that is included in conciliation agreements growing out of the compliance process. The basic difference is that voluntary agreements would not directly resolve charges but would, rather, deal with the change in discriminatory systems and affirmative action. In addition, as was the case in the AT&T agreement, a procedure was established for resolving pending and future charges.

Existing agreements and decrees affecting AT&T, nine steel companies, El Paso Natural Gas, and several other major firms contain expedited chargeprocessing mechanisms. Others will be developed during FY 1975. We plan to invest approximately one work-year in each of the seven regions to see if we can expand the successes of FY 1974. However, we propose to enter into such self-enforcement agreements only if the employer is willing to make them fully enforceable in the courts as contracts. If this investment proves effective, the Commission will reprogram and seek additional resources as appropriate to take full advantage of the "voluntary agreements" approach. It must be noted however that these voluntary agreements will probably only bring relief to the backlog situation over the long haul rather than as an immediate short range benefit.

National programs

The National Programs Division resembles in purpose and function the district offices. This unit is currently investigating broad Commissioner's charges against five respondents on a national basis that ultimately could resolve 2,200 individual charges pending against these five major respondents. The purpose of the National Programs Division is to put an end to systemic discriminatory practices allegedly engaged in by respondents. It is clear that success in this regard wiH effect a resolution of not only those pending individual charges alleging class or systemic violations, but also it is hoped that future charges based upon such practices will be unnecesary. When one considers the ripple effect such dispositions can have upon other potential respondents, the ultimate impact of the National Programs Division could be very substantial indeed.

Organization and management survey

Over the past several years, a number of organizations including OMB, CSC, and GAO, have recommended improvements and changes in the Commission's organizational structure. To provide an objective assessment of these recommendations and to review our current situation, I have engaged the consulting firm of Booz, Allen and Hamilton, Inc.

A first draft report was submitted to us three weeks ago which we are currently analyzing. A final report is due on October 20, 1974. I am hopeful this will enable us to correct any deficiencies in our headquarters that may be limiting our ability to correct the backlog problem as well as improve our internal management generally.

Charging party contact program

EEOC will continue in FY 1975 its program of contacting charging parties whose complaints are more than two years old to update our files and ascertain whether the charging party is still interested in having EEOC pursue his or her complaint. Procedurally, this type of contact has always been made by an EEOC investigator at the time an investigation is begun. By setting up a formal contact program and utilizing special forms and procedures, we are able to reduce the staff time required for contacts and also use lower-grade personnel. We also assure that older charges are not assigned to an investigator without con

firmation that the party can be located and does wish to proceed. Through this effort which was begun in March of this year approximately 50% of the cases over two years old were administratively closed.

Scope of the charge investigations

In August 1973, the Commission authorized District Directors to investigate charges only to the scope of the complaint where there was only a single charge pending against the respondent. About 65% of the Commission's charges are in this category. Previously, Commission policy had been to investigate all charges broadly, encompassing non-alleged as well as alleged violations, issues, etc. This policy change was made because of our desire to help individuals who had filed charges in a more timely and efficient manner. Limited investigations require less time, and also are easier to conciliate since relief for the charging party is the primary issue.

During FY 1974 we implemented this program with some success, and in FY 1975 have programmed about 35% of our compliance resources in this area. Reassignment of personnel

By the end of this calendar year approximately 50 positions will have been reassigned to the field to alleviate our caseload burden. Additional assistance already provided to the six district offices with the highest pre-investigation backlog has resulted in the closing of 2,500 charges.

Redirection of State and community affairs program

The State and Community program is probably a most vital element in our achieving a zero growth rate by FY 1976. Section 706 (c) of Title VII, as the members of this Subcommittee are aware, requires the Commission to defer Title VII charges to State and local governments for processing where such governments have concurrent jurisdiction over the allegation and commensurate authority to provide relief.

When the Commission first started to administer the statutory requirement that cases be processed by the State, it learned that there were major shortcomings in the State case processing systems, e.g., while EEOC was finding discrimination in more than 50% of its cases the States as a group were finding it in less than 20% of the cases. This shortcoming meant that if the Commission automatically accepted the results of State case processing without further investigation, it would have risked abrogating federal rights in some 60% of cases where discrimination existed.

EEOC proceeded to design and implement a program that would build the technical perception and thus seek to assure that a charging party would not lose his federal rights when his case was processed by a state agency. To implement this program, the Commission in 1965 established and staffed as a district administrative unit in the Commission, the Office of State and Community Affairs. This program now has been redirected from helping to develop state and local anti-discrimination agencies to one of concentrating on charge processing by these agencies. An objective has been set of processing fifteen thousand charges according to EEOC standards by State and local agencies during FY 1975. In FY 1976 we believe 25,000 charges can be processed in this manner. This is predicated upon the Commission receiving the support requested for this program. If these agencies must rely on their own personnel and financial resources, their increased number of charge filings and increased processing costs make it highly unlikely that they will be able to afford to process the larger number of Title VII charges deferred to them.

We at the Commission know that cooperation between the Commission and the state and local equal employment opportunity agencies must continue to grow if the hopes that Title VII raised and the progress made under its mandate are to continue.

To aid the State and local agencies and to assist in the review of cases handled by these agencies one position has been allocated to each of the fifteen district offices with the largest work load in this area.

Fiscal Year 1975

This brings us to where we are today. Historically, the Commission has always received more new charges in a month than it has completed and so the backlog has continued to grow. The number of charges resolved each month however has been steadily increasing. In January 1974, 3,000 were resolved. This has in

creased to 5,200 in July. At the same time, however, charges received have increased from 4,600 in January to 5,300 in July. The monthly backlog growth in July was the lowest in the history of the Commission with the backlog increasing by only 100 charges. This was due to an exceptionally large number of charges being resolved in July, probably as a result of the Charging Party Contact Program.

I believe that by FY 1976 charges resolved each month will at a minimum, equal charges received. Progressive inroads on the backlog must continue at an improved rate until we can process cases at a greater rate than we receive them. This can be done under certain circumstances.

My forecast, or course, is based on the assumptions that we will receive no more than 70,000 charges in FY 1975 and 85,000 in FY 1976, and that requested resources for FY 1976 will be received. They are subject to change should better data on the costs of processing older charges become available. It should be noted that pressing for the achievement of current charge processing status over too short a time frame may conflict with other charge processing objectives which the agency has established. A strategy of giving priority to the processing of older charges may work against charge consolidation and may reduce efficiency. Older charges are harder to investigate because of stale records, and generally cost more per charge. Consolidating more recent charges with older charges will absorb resources that could be put into processing additional older charges. Commission investigation process

A number of changes are now being made in the Compliance Manual to provide better instructions and guidance to district offices which should improve their productivity and effectiveness. The following improvements will be in the hands of the EEOC District Directors by December 31, 1974:

A completely standardized "request for information" package that is currently being developed. This will minimize on-sight investigations and the amount of time expended by district personnel in drafting requests for information.

I believe that limited charges can be investigated more efficiently with greater probability of settlement if done shortly after filing rather than later. Guidelines are being developed to determine which limited charges (e.g., discharge) should be scheduled for immediate investigation. Specific guidance is being developed on when and how to narrow the investigations of a charge and to clearly identify the file and evidentiary requirements which apply to charges which do not have important class implications.

Restructure the pre-investigation analysis unit

The Pre-Investigation Analysis Unit is the initial point of contact for anyone bringing a charge to the Commission. It is essential for those working in this unit to be fully conversant not only with the jurisdiction of the Equal Employment Opportunity Commission but all agencies dealing with discrimination so that recognition of the jurisdiction of the appropriate federal agency can be made as soon as possible.

Development is underway to convert the pre-investigations analysis unit into a more effective investigations unit to identify and categorize charges for various methods of processing. This unit will also undertake the processing of simple charges upon receipt as well as more complex charges which require immediate processing, such as retaliation, etc. This conversion should be implemented by October 1, 1974.

Training unit

This fall the EEOC will implement a training academy to introduce a new effort toward professionalism. This effort is aimed towards standardized administration and increased Commission productivity. A detailed outline of the operation of the training program is provided in our answer to question 10 of Chairman Hawkins' letter addressed to me July 18, 1974.

Improved information system

One of the principal problem areas within EEOC has been the inability to apply a consistent management technique throughout the national field network of district offices where the backlogs exist and where the conciliation and compliance monitoring efforts must take place.

Instructions on conciliation methods and management techniques are ineffective without a feedback mechanism that reflects the degree to which those respon