DOES AN EEOC FINDING IN FAVOR OF THE PLAINTIFF IN AN ACADEMIC DISCRIMINATION CASE MEAN ANYTHING?

by Pat Washington, Ph. D.

I was denied tenure in the Women’s Studies Department at San Diego State University in May 2001 and fired in May 2002. I experienced classic forms of race/sex discrimination and retaliation from my senior colleagues in Women’s Studies, including shifting standards, hyper scrutiny, ridicule and devaluation of my work and accomplishments, negative stereotyping, shunning and ostracism. I filed a complaint with the Equal Employment Opportunity Commission (the federal civil rights enforcement agency) in July of 2001. After a 14-month investigation, the EEOC issued findings against San Diego State University, stating there was “reasonable cause” to believe the university discriminated against me by denying me tenure and promotion and terminating me “on the basis of race/sex combined and in retaliation for previous complaints.” The EEOC’s proposed remedies were reinstatement with tenure, promotion, back pay and benefits.

My partner and I literally danced around my office when the EEOC findings came over the fax. We thought that—whether or not university officials acknowledged wrongdoing—they would avoid further embarrassment by immediately implementing the EEOC’s proposed remedies. After all, a “reasonable cause” finding is quite rare—out of the approximately 80,000 cases filed per year, the EEOC finds for the complainant less than 10% of the time.

We also thought we would avoid a protracted, expensive and emotionally grueling legal battle, and that the attorneys representing me at that time would consider the EEOC findings a major coup.

We were in for a surprise on all counts. The ridicule, contempt, negative stereotyping, and devaluation started all over again—only this time it was aimed at the EEOC. SDSU’s spin doctors discounted the favorable findings, stating that the EEOC had not given the university a chance to “tell its side of the story” and intimating that the EEOC case manager, also a Black female, was inherently biased against the university. As for my then-current attorneys, after some initial glee at the prospect of opposing counsel’s “eating his shorts” upon learning that the EEOC found in my favor, they also downplayed the significance of the findings (“the EEOC can’t make a state agency do anything”; “we’re filing in state court, not federal court—so the EEOC findings can’t be introduced at trial”; etc.)

That’s when I really had to digest some hard lessons about the “just us” system. The EEOC findings—especially the recommendation that I be restored to the position I would have had, absent discrimination and retaliation—provoked not only the university’s attorneys, but also my own. Both their attorneys and mine began talking about how I had absolutely no chance of getting my job back (which is all I wanted), telling me instead that I needed to cut my losses, take a cash settlement, and start fresh somewhere else. Never mind that I had spent six years getting my Ph.D. and another six jumping through all the hoops I was told I needed to jump through to get tenure—only to have myself and my work demeaned and devalued because of my race/sex and my unwillingness to be silent about disparate treatment. Never mind that after getting no administrative relief from the university and spending over $30,000 seeking legal help, I finally got the federal civil rights enforcement agency to weigh in on my side. Both sets of attorneys wanted me simply to shut up, settle for what I could get, and go away. In their parlance, that would be a “win/win” for the university and for me. Somehow, I could never get past seeing it as a win for the university (buying itself out of discrimination charges rather than stopping the discrimination) and a win for my former attorneys (walking away with a non-returnable $20,000 retainer and a hefty portion of the settlement, with little “front end” work)—but a loss to me (allowing the university to harm me twice).

Getting back to the question opening this piece…. Imagine: You have a “reasonable cause” finding from the EEOC and a letter from the Department of Justice giving you a right to file a lawsuit in federal court (but the DOJ is “too busy” to litigate on your behalf). Your attorneys are threatening to walk if you don’t accept the latest incarnation of an unreasonable settlement offer that you turned down several times before you even hired them.

Have you really gained anything from your EEOC “reasonable cause finding”?

Yes, indeed. You have.

After going through one university-sponsored review after another—each one upholding the university’s action against you—you finally get the satisfaction of knowing that the federal civil rights enforcement agency (the experts on discrimination) doesn’t think you are lying or crazy. Regardless of the fact that the EEOC’s powers are limited in cases involving state agencies (they can only conciliate, not litigate in such cases), you have just withstood one the most impartial reviews of your case to date—and this impartial body has told you, “Yeah, we believe you were wronged, and we believe you should be made whole.”

Not only do you get some psychic relief from this development, you get to tell other people. An EEOC reasonable cause finding is very useful in the “court of public opinion”—it helps demystify the arcane realm of academe, translate the technicalities of tenure and promotion, and illuminate the illusory nature of the ivory tower. After getting the EEOC finding, you may not need to respond so often to the question, “So… why do you think you were discriminated against?” Just saying that the EEOC found in your favor serves as a kind of Morse Code—a shortcut through skepticism—that renders both legitimacy and credibility to your lived experience. This can add to the number of people who are prepared to take your allegations seriously and to help you.

An EEOC reasonable cause finding also serves as personal vindication. It gives you the stamina to continue standing up for yourself, even as you are assailed by the reality that “justice” all too often means “just us” (i.e., the gatekeepers and powerbrokers who excluded you in the first place).

Finally, an EEOC reasonable cause finding forces some modicum of accountability on the institution that discriminated against you. The university may puff itself up in denial and righteous indignation when the finding is issued, but that is all part of a well-rehearsed strategy to hide oppression under the cover of victimhood.

This fact was borne in upon me several months ago when I was making “small talk” with a fellow traveler at the Oakland airport. The conversation got around to my tenure and promotion battle. When I mentioned the EEOC reasonable cause finding, my new acquaintance stopped me and said, “Wait. Let me tell you how the university responded. The university said that the EEOC didn’t do a thorough investigation, that the investigator didn’t interview the appropriate campus individuals, that they didn’t get a chance to present all of their evidence, and that the investigator was biased for whatever reason.”

I was stunned. His summary was right on target. When I asked how he knew what my institution had said, he told me that he had worked for the EEOC until retiring a few years ago, and that the response SDSU had made regarding the EEOC findings in my favor was the standard response to a favorable finding for the plaintiff. He then commented wryly, “If the finding is for the university, it’s a press opportunity, but if it’s for the charging party, then it’s a flawed investigation.”

Go figure.