OPINION – Sometimes, what looks like “more” government is actually “better” government. This perspective might seem unusual coming from an advocate of limited government. But California offers a cautionary tale of what happens when the federal government fails at its job.
The Federal Equal Employment Opportunity Commission (EEOC) is supposed to be working cooperatively with its state counterpart at the California Civil Rights Department (CRD) – the two agencies have a “worksharing agreement.” This is not just more government, adding a federal agency on top of a state agency. It can also be an example of “better” government: The worksharing agreement can operate as a form of “checks and balances,” which is what we rely on to keep the federal government in check.
The problem is that the EEOC is not enforcing its agreement with the CRD, and it is allowing the CRD to run wild. The CRD’s recent pursuit of massive damages in a case against Activision is an example of the EEOC and its Chair Charlotte Burrows not doing their job.
Under a worksharing agreement, the EEOC divides responsibilities for enforcing anti-discrimination laws with the state agency that regulates in that area. In California, when reports of sexual harassment at Activision surfaced in 2018, the EEOC and the CRD agreed that that the state agency would handle claims of pay and promotion discrimination while the federal agency would handle claims of sexual harassment.
The EEOC entered into negotiations with Activision to provide a remedy for those who suffered sexual harassment. The agreement that the company and the federal agency reached provided a number of remedies for injured employees, including a pot of $18 million to cover damages. The EEOC and Activision proceeded to federal court asking the court to enter a consent decree to make the agreement enforceable.
California offers a cautionary tale of what happens when the federal government fails at its job.
Perhaps afraid that it was going to miss out on a payday for itself, CRD filed its own action alleging sexual harassment against Activision (under state law) and filed a motion in federal court to intervene in the EEOC/Activision litigation to oppose the consent decree.
The CRD was apparently so concerned about maximizing its own profit from the case that it sent letters to Activision employees urging them not to hire their own lawyers, and to report to the CRD any lawyers that attempted to solicit the employees’ business.
How did we get from a situation of cooperation between the EEOC and CRD to this case where the CRD is not only ignoring the agreement it signed, but it is also interfering with the EEOC’s resolution of employee claims against Activision? Blame the EEOC for failing to enforce its worksharing agreement.
There are provisions of the workshare agreement for resolving differences between the state and federal agencies. Ultimately, California agreed to have the EEOC Director of Field Programs resolve the dispute. Failing that, state and federal agencies agreed to “attempt to reach a resolution through a third-party neutral mediator prior to invoking other remedies.” (Emphasis added.)
California, however, did none of this. Rather than seek resolution with the help of a neutral mediator, California went straight to court to oppose the EEOC resolution of the sexual harassment claims against Activision. It appears that the California CRD does not feel obligated to abide by its promises under the worksharing agreement. Why would anybody trust the CRD to abide by any other promises it might make?
As our nation’s founders concluded, checks and balances required the authority to act and the will to exercise that authority. Without that, all the promises of the Constitution were mere “parchment barriers.”
This is the problem with the worksharing agreement between the EEOC and the CRD. Unless the EEOC and Chair Burrows have the will to enforce the agreement, it is nothing more than a “parchment barrier.” It does not provide better government, just more government. And when the state and federal agencies work at cross purposes as is the case here, more government is bad government.
It is past time for the EEOC and Burrows to act. The federal agency needs to enforce its agreement with the state to better protect California employees. It is time for the EEOC to convert that workshare agreement from simply more government into better government.
Anthony T. Caso Senior Legal Fellow at The Claremont Institute and Retired Clinical Professor of Law at Chapman University, Fowler School of Law