Let's say that the mediation doesn't succeed to achieve voluntary
compliance satisfactory to both sides. What happens next? Under Sec
706(e) it appears that the complainant has to litigate himself in a
civil court, and potentially be exempt from any fees and have an
appointed attorney.
Not really. The EEOC at that point (within a certain time period) either decides to litigate the case itself, or if it chooses not to litigate itself, authorizes the employee to litigate the case at his or her own expense, and if the employee prevails, the remedy awarded by the Court includes what the court determines to be the employees reasonable attorneys' fees.
The details of the process and the relevant deadlines are available at the EEOC's website. Basically, if the case isn't resolved in mediation, the employer makes a position statement, the employee responds, the EEOC investigates (using its subpoena power, if necessary) on average for ten months, and the EEOC either prosecutes the case itself, or it issues a "Notice-Of-Right-To-Sue" which allows the private employee to hire a lawyer and sue the employer.
How often does it actually happen?
The EEOC handles about 90,000 charges per year and wins about $525 million a year in judgments and settlement awards (parallel agencies at the state level handle additional cases in a similar manner). The vast majority of the cases are settled or result in a Notice of Right To Sue letter, with only 100 to 400 lawsuits per year actually filed by the agency resulting in $22 million to $168 million a year of awards in court cases. About 25% of these cases go to trial. The rest settle before trial or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once the EEOC brings a lawsuit, settlement is the most common resolution.
So, there are a lot of cases, although there is only about one EEOC claim per 1,000 employees in the workforce subject to EEOC jurisdiction per year. Whether this is a lot of complaints or not many, is really a matter of opinion. Only about one in twenty-five people will ever file an EEOC claim in his or her entire life, although this will vary considerably based upon a person's race, national origin, religion and sex. A non-Hispanic white Christian male of European descent is much less likely to file an EEOC claim during his lifetime than someone who does not fit that description.
Realistically, a majority of cases that aren't abandoned by the employee in the administrative process (which is a significant share of the total) or found to have no factual basis (a small but significant percentage) are settled for fairly modest dollar amounts (an average of about $10,000 to $20,000 per claim).
The bigger dollar cases for a single employee usually end up being brought in a private lawsuit rather than by the EEOC itself.
About 14,000 of those charges each year result in a Notice of Right to Sue letter followed by a civil lawsuit filed by a lawyer for the employee. It isn't terribly easy to determine from official statistics what proportion of cases resulting in a Notice of Right to Sue letter rather than an EEOC lawsuit ultimately do not result in a lawsuit being filed by the employee. About 250 of these cases (not quite 2%) go to trial each year. The rest settled or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once an employee brings a lawsuit, settlement is the most common resolution. Folk wisdom in the employment litigation field is that the average settlement of a case of ordinary strength on the merits that is settled fairly early on in the process is about six months of wages.
An estimate that the employees in private lawsuits secured more than $200 million a year in settlements and money judgments is probably a gross underestimate. It could easily be $500 million to $1 billion per year. But, there are no good statistics available since settlement amounts are overwhelmingly confidential.
The EEOC sues on behalf of the employee in cases it chooses to litigate itself on a weekly basis, and likewise declines to prosecute and certifies the case to allow the individual to prosecute the case with a private attorney all the time.
Is there any relevant case law?
Yes.
Pretty much every relevant detail of the process has been litigated in case law that has produced reported decisions because there have been many thousands of employment discrimination cases litigated under the Act.
There are probably at least two dozen to four dozen new published appellate decisions in the federal circuit courts each year on these kinds of cases, if not more, and those decisions have come at a pretty steady rate for the past half century. There are hundreds of published decisions interpreting these statutes in almost every one of the federal circuits.
On quite a few issues, there are splits of authority between different circuits regarding how to interpret the law that will ultimately be resolved by the U.S. Supreme Court, or by Congress, or that may remain unresolved forever.
How will the civil court try the case? Will the judge reference the
Civil Rights Directly?
It is a little unclear what you are asking here, but I will do my best.
Regardless of whether the EEOC or the individual employee brings the case, it is filed as a Complaint in federal court like any other federal lawsuit, litigated according to the Federal Rules of Civil Procedure, and resolved in the vast majority of cases either by a judge in a pre-trial motion, by a settlement between the parties, or by a jury trial presided over by a judge.
In a jury trial, the judge tells the jury what the applicable law says and the jury decides if the employee has proved a case against the employer when applying that law after hearing the evidence presented at trial and then decides what damages award to make, on a very short jury verdict form.
In a bench trial (i.e before a judge without a jury), the judge makes those determinations in a lengthy written ruling setting forth the factual and legal basis for the judge's determination on the merits.
Jury trials are much more common than bench trials in these kinds of cases, partially because plaintiffs want juries to make a damages determination, and partially out of a perception (not entirely inaccurate) that judges tend to be pro-employer on average.
What is a likely punishment?
Punishment is mostly the wrong term.
It is a lawsuit for money damages to compensate the employee for harm actually suffered. The jury (or the judge if the case can be decided before trial in a motion for summary judgment or if a jury trial has been waived) determines the amount of compensation, if any, which should be awarded for lost wages, non-economic compensatory damages, etc. and the judge then awards attorneys' fees and court costs based upon the submissions of the parties after the trial is over based upon a determination of what is allowed by law and what is reasonable.
To some extent, an employer's obligation to pay attorneys' fees and costs acts as a proportionate punishment for not immediately settling a case where the employer is found to be in the wrong. To some extent, non-economic damages can constitute a punishment.
But, when an employer is found to have discriminated intentionally, which is most of the time, punitive damages can also be awarded, although they must be proportionate to the amount of actual compensatory damages awarded, typical one or two times the compensatory damage award unless that award is very small. Statutory liquidated damages are sometimes awarded in lieu of certain kinds of punitive and compensatory damages awards in age and sex discrimination cases under the Equal Pay Act. There are also dollar limits on awards based upon the size of the employer.
Why is the process convoluted by adding an extra step in form of the
commission?
Mediation is allowed as a compromise to encourage negotiated resolutions that avoid litigation costs before everyone has spent a lot of money on lawyers. In practice, a surprisingly large number of cases result in pre-trial mediation resolutions, often in cases where an outcome if the case had gone forward to a trial would have been uncertain.
The involvement of the Commission is a compromise between having a system where all cases are prosecuted at state expenses and one in which all cases are brought privately with an opportunity to win attorneys' fees if one prevails.
The EEOC has usually used its authority to bring cases that are clearly cases of improper employer conduct where due to the small dollar amounts involved or the number of employees affected, an individual lawsuit would not provide an adequate remedy since private lawsuits would not be brought otherwise. It is very hard for a private attorney to justify bringing an employment discrimination lawsuit over a case where the damages are likely to be in the $5,000 to $25,000 range because the employee doesn't make much money unless liability is 100% clear (e.g. there is an admission on videotape from the employer), despite the fact that a prevailing party can get non-economic damages, punitive damages, attorneys' fees and costs. So, it is particularly hard to bring employment discrimination cases on behalf of employees who don't earn much even when they aren't discriminated against. The availability of EEOC enforcement prevents employers of low wage workers and workers in temporary employment whose damages are small from ignoring the Civil Rights laws with impunity.
A private lawyer does something on the order of $30,000 to $150,000 of billable work to bring an employment discrimination case involving a single employee-client to trial, and a lawyer defending such a case for an employer will typically incur more legal fees for their employer client than the employee's lawyers do, while the employer's lawyer defends the case all of the way through a trial, even before considering any amounts actually awarded to a prevailing employee in a case where the employee wins. Each side's legal fees, individually, will usually exceed the amount of compensatory and punitive damages awarded combined in a fairly small dollar case for an employee who wasn't paid very much, or at least didn't lose a huge amount of money economically due to illegal discrimination (for example, because the employee wasn't promoted while a less qualified candidate was promoted). This is an important reason why lots of cases settle and why the EEOC is necessary.
The EEOC process also provides a means by which arbitration agreements with individual employees can be circumvented because the EEOC is not a party to those agreements and is not bound by them.
Why isn't discrimination simply prosecuted by the state's attorney?
After all racial discrimination very much fits the definition of a
public wrong.
Government agency resources aren't unlimited, so the government can't prosecute every credible complaint, so the EEOC has to pick and choose how to get the most bang for its available resources. In practice, the EEOC can only afford to pursue about one in ten of the employment discrimination cases subject to its jurisdiction that go to trial with its own lawyers.
The cases it can't afford to bring, it delegates to the private sector rather than simply leaving those cases unprosecuted as would happen in the criminal justice system.
This also provides a way for an employee who has a lazy or unenthusiastic government lawyer assigned to their case at the EEOC who doesn't take what the employee sees as a strong case seriously a way to get relief for employment discrimination despite the fact that the EEOC isn't willing to back them up. Private lawsuits are a check and balance against bad EEOC decisions about how strong cases are as well as a way for the EEOC to avoid financing the legal fees of people who can afford to sue on their own.
Is the enforcement any good?
Lots of employees over the years have gotten lots of money, although probably not 100% of the amount of the economic harm they suffered (and, of course, employee and employer attorneys have gotten paid a lot of money in the process as well, which is good if you are a lawyer, but is dead weight loss from an economist's point of view). But, more importantly, the behavior of employers has changed greatly as a result.
In practice, most lawsuits, and almost all lawsuits not brought by the EEOC itself, involve either wrongful termination or failure to promote someone, rather than discriminatory hiring, since it is hard to show an individual right to be hired for which an individual is entitled to compensation.
Even in EEOC cases, most are brought for discriminatory advertising or openly admitted discrimination in hiring, rather than covert discrimination by an employer in hiring on a non-permitted basis.
The EEOC brings a handful of cases alleging covert discrimination in hiring against medium or large employers each year, in part, just to provide a credible threat to anyone considering doing so, often with a combination of tips from insiders (particularly those from hiring officials who are fired in retaliation for not following a discriminatory hiring policy) and with undercover "test applicants" who submit functionally identical resumes for the same job when many job openings are available. But, this is usually a tiny share of the total volume of employment litigation brought under the Civil Rights Acts.
There is a certain irony in this, because employers who are willing to hire someone who belongs to a "protected class" in the first place, who hence, are probably not the most discriminatory employers in the market, are more exposed to a realistic risk of a discrimination lawsuit, than employers who refuse to hire anyone in a "protected class" in the first place, so long as the employer keeps its mouth shut about this practice and is willing to lie and come up with false pretexts for its actions. Dishonest gross racists and clear misogynists are under punished, while less culpable employers who are more honest but still a little bit discriminatory in the cases of a few well paid employees are over punished relative to more culpable employers.
Also, employment discrimination laws provide the most monetary compensation to the most competent and well paid employees who probably have the greatest capacity to mitigate their damages by seeking other employment from less discriminatory employers, while providing the least compensation to the marginal employees for whom discrimination in employment most impacts their quality of life. Indeed, often the most marginal employees aren't even willing to risk filing a complaint with the EEOC for fear of being blacklisted in the future in a manner that is impossible to prove.
Still, at a minimum, by making it illegal to publicly state a discriminatory reason or to state a discriminatory reason to someone who could testify against you in court, the laws in question have changed the internal normative standards that managers of medium and large sized business apply on a day to day business such that at least lip service and public commitment is given to the requirements of the civil rights laws. This change in corporate culture has probably had more of a real world effect than actual suits for damages have in regard to discrimination in hiring. The benefits of the voluntarily discontinuation of discrimination in employment as employers internalized the norms established by the civil rights laws for the most part has provided far more benefit to employees who were previously discriminated against than litigation and settlements resulting from the EEOC process.
For example, when Sandra Day O'Connor (future Supreme Court justice) was a young lawyer, fewer than 5% of attorneys were women and she was often mistaken for a secretary or receptionist by clients. Now, about half of all young associate lawyers (even at very large firms who graduated from very prestigious law schools) are women. Almost all of this change was due to a change in professional norms that were a direct result of the Civil Rights Act of 1964 (women had legally been allowed to be lawyers since the 1920s almost everywhere and earlier in some places), rather than through case by case litigation. The Civil Right Act opened up a huge new lucrative profession to women and minorities, and the experience of the legal profession was the norm and not the exception. Before the act, women were pretty much limited to school teaching, being librarians, nursing, secretary work, food service, day care, piece work sewing and laundry work. After the Civil Rights Act, their employment opportunities dramatically increased. The Civil Rights Act of 1964 is likewise, more or less single handedly, responsible for today's black middle class which would have been an order of magnitude smaller otherwise.
There are economic arguments that discrimination laws do or do not do much good, but those arguments rarely consider the fact that the law, when it was first enacted, dramatically changed corporate culture and the moral viewpoints and norms of the middle and upper middle class who act as employers making hiring decisions across the nation. Until the Civil Rights Act was enacted, tradition and prejudice kept a huge share of the population out of most of the marketplace in a manner completely contrary to what a naive Economics 101 analysis would predict.
