Fedweek Legal

On November 12, the Equal Employment Opportunity Commission held a public meeting on the strengths and weaknesses of the commission’s processing of federal sector EEO complaints. The purpose of the meeting, according to Chair Cari M. Dominguez, was to continue a dialogue with stakeholders. Dominguez and the two EEOC Commissioners, Paul Steven Miller and Leslie E. Silverman, expressed a desire to reform the federal sector process to address concerns of lack of efficiency, costs, an appearance of bias, and delay.

The backdrop for this meeting is important. For several months, the Dominguez has apparently been engaged in “behind closed door” discussions about modifying the federal sector process. Those meetings, for the most part, have remained confidential, but rumors circulated that Dominguez was considering a radical new approach to federal sector EEO complaints that would eliminate agency conduct investigations of complaints and eliminate an individual’s opportunity to have a hearing before an EEOC administrative judge. Such reforms would leave federal employees with no redress other than the potentially expensive, intimidating and unfriendly option of going to federal court.

In the morning session, the Chair and the Commissioners heard testimony from three EEO complainants, an agency attorney, a former SES manager, and a complainant’s attorney. The witnesses emphasized that the process is too cumbersome, technical, and inefficient. The witnesses were unanimous that investigations take too long and are often conducted by individuals with close ties to the agency. This apparent conflict of interest, many testified, causes the perception that the report is biased and lacking critical information. The complainant witnesses also illustrated the agencies’ unwillingness to comply with deadlines and the seeming pattern of insufficient and incomplete reports.

However, all the witnesses supported the internal investigations. The witnesses emphasized that the resulting reports were helpful. An attorney representing federal employees called the reports “invaluable.” From management’s perspective, the opinion was voiced that the reports are helpful when management tries to evaluate a case and how to resolve it. Without the EEO investigations, she said, the agency does not have an opportunity to learn the allegations or to achieve closure on the issues. Witnesses expressed the numerous benefits of stronger mediation of EEO complaints, especially early in the process.

Commissioner Miller commented on the perceived problems of the “fox guarding the henhouse,” because agencies are charged with self-regulation of discrimination. The panelists agreed, emphasizing that in that regard the system lacks accountability. Managers are rarely disciplined for having discriminated. In addition, witnesses criticized the Commission’s failure to force agencies to comply with its regulations and rulings.

The afternoon session of the EEOC meeting consisted of two panels. These speakers included agency witnesses, including an agency’s EEO director; union representatives; and other interested groups such as the National Partnership for Women and Families, and others.

Some agency witnesses touted mandatory mediation, although other concerns were vocalized about making mediation mandatory, with no ability to opt out. Support for keeping the investigation was almost universal, although modification to the process was also discussed. More then one panelist opined that the process was too long, and one panelist supported shortening the time for investigations from 180 to 90 days, and requiring the administrative judges to issue rulings in 120 days. One panelist recommended placing cases on different litigation tracks, depending on the complexity of the case.

Panelists also spoke about the differences between the private and federal sector, and how the two complaint processes should not be the same. One panelist reminded the Commissioners that the EEOC cannot represent federal employees. One panelist cautioned that the Commission should not “throw out the baby with the bathwater.”

Concern was also voiced about having disincentives for complainants for filing frivolous complaints. One management-side panelist testified that the process is subject to abuse, is too expensive, is a weapon used by employees, and keeps managers from making decisions.

The Chair commented that there are currently no formal proposals and the Commission will issue notice of proposed rulemaking.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **