WORKPLACE DIVERSITY : Job Rights Enforcement Agency Comes Under Mounting Pressure : Critics of the Reagan-Bush EEOC hope for change under Clinton.

During his confirmation hearings two years ago, senators lashed out at Supreme Court nominee Clarence Thomas for gutting civil rights law enforcement during his tenure as chairman of the Equal Employment Opportunity Commission from 1982 to 1990.

Now, with a new President in the White House, the question is: What will the Clinton Administration do to remake an agency broadly viewed by employers and employees alike as poorly organized and ineffectual?

Clinton has promised better civil rights protection and is seeking additional funds to hire more investigators to enforce rights laws, but many observers say it will take more than money to fix the agency.

The EEOC “is in disarray,” said Paul Grossman, a partner at a Los Angeles law firm and co-author of a book on equal opportunity law. “It’s an inefficient organization, flooded with claims under the new disabilities law, and it’s going to take major actions to turn it around.”

The EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits job discrimination on the basis of race, color, religion, sex or national origin. The agency also enforces laws banning discrimination on the basis of age or physical disabilities.

Doug Gallegos, executive director of the EEOC, said all policies are up for discussion under the Clinton Administration.

“I think the policy on affirmative action will be reviewed,” he said. “There are a lot of new views here that may not have been heard before, and we will revisit the issue. . . . We’re looking at doing things in a more effective fashion.”

Nevertheless, EEOC officials cited areas in which the agency has improved its record. Last year, they noted, the agency recovered $65.6 million in damages and settlements--the second-largest amount in its history.

Clint Bolick, litigation director at the conservative Institute for Justice, a public-interest law firm in Washington, says the EEOC became more effective under Thomas by shifting its strategy. Under Thomas, the EEOC prosecuted to the end all individual cases in which discrimination could be proved. Previously, the agency had settled many cases under a rapid-processing policy or by filing lawsuits on behalf of whole classes of employees.

“The EEOC has made major strides in becoming an effective law enforcement agency and moved away from an era of social engineering,” Bolick said. “It has focused on relief for real victims of discrimination, rather than statistical lawsuits.”

However, critics of recent EEOC policy say the agency’s focus on individual complaints meant that it had turned its back on affirmative-action policies, by which employers set goals for hiring and promoting women and minorities.

“We’re all for turning the clock back to a time when the EEOC was a viable agency,” said Nancy Krider, research director for the Women Employed Network, a Chicago advocacy group that monitors EEOC policies. “We have some evidence there will be shift of emphasis in the EEOC’s mandate, including a broad embracement of affirmative action as a measure for relief.”

In its fiscal year 1992, the EEOC received 70,339 complaints of discrimination, the most of any year since 1988. And the agency last year predicted that complaints would increase 30% in 1993 for several reasons: the Civil Rights Act of 1991, an expected rise in the number of sexual-harassment complaints and the new Americans With Disabilities Act, which prohibits discrimination against the physically disabled.

As the number of complaints has been rising, the agency has had to operate with a shrinking staff. The EEOC now employs 2,791 people, 18% fewer than in 1980. The combination of those factors has led to a backlog of more than 60,000 cases.

Merrick Rossein, a law professor at City University in New York, said the EEOC has “turned away from addressing systemic issues that affected classes of people, treating discrimination as if it were done only by aberrant employers. They also cut back on investigators at a time when discrimination had become more sophisticated and required turning over the stones to uncover it.”

Gallegos acknowledged that the policy of full investigation has resulted in a mounting backlog, but he noted that the General Accounting Office, Congress’s watchdog, was critical of the agency before the policy was adopted. “There is a trade-off wherever you go,” he said. “We are looking at different ways to handle it. If you investigate every case, you have to have the staff. Discrimination is subtle and it takes time and resources to interview people.”

If advocates of tough enforcement prevail, employers found to discriminate illegally are likely to face stiffer fines and damage claims, Grossman said. This could compel them to put in place stronger affirmative-action plans--with specific hiring goals for minorities and women--to protect themselves from lawsuits. And employees previously discouraged by the slow pace of investigations might be more willing to pursue claims if they knew cases would be resolved faster.

Meanwhile, observers are watching closely to see whom Clinton will appoint to head the EEOC.

President Clinton has named Tony Gallegos (no relation to Doug Gallegos), a longtime commissioner, as acting chair to replace Bush appointee Evan J. Kemp. Sources said the Clinton Administration is reviewing other candidates for the permanent job.

Gallegos, a 69-year-old Democrat, was appointed by President Reagan in 1982. He said recently he did not know whether he would become permanent EEOC chairman. Before joining the commission, he spent 30 years at McDonnell Douglas.

Under Gallegos, the agency has already reversed a policy set by the commission during the Bush Administration. It decided that compensatory damages could be awarded retroactively in cases that preceded enactment of the 1991 Civil Rights Act, which made the damages available. The Supreme Court is expected to rule on that decision.