Fedweek Legal

We have recently obtained a copy of a document entitled, “Federal Sector Reform Proposal” under which the EEOC plans to eliminate agency investigations of EEO complaints and eliminate federal employees’ rights to a hearing before EEOC administrative judges. The plan could force employees who have been discriminated against to undertake an expensive federal lawsuit in order to have a hearing on their case. This change, if adopted, will likely be the greatest change to federal civil service employment protections since the passage of the Civil Service Reform Act of 1978.

This proposal would replace the current system with one modeled after the system in the private sector where for most individual complaints the EEOC plays little more than a pass-through role as cases are forced into federal court to be litigated. Specifically, after counseling (or attempts at resolution), the agency would immediately issue a decision informing the employee of the right to appeal to the EEOC or file a lawsuit in federal district court. If appeals are filed to the EEOC, the EEOC would perform its standard intake process, like in the private sector, and evaluate cases into three categories: A, B or C. Complaints receiving a “C” rating would be dismissed without further action. The EEOC would mediate “A” and “B” complaints “as appropriate and would investigate those complaints “as appropriate.” EEOC would then issue decisions either finding discrimination or no discrimination.

The investigations the EEOC performs in the private sector are generally regarded as perfunctory, without the affidavit gathering process currently utilized in the federal sector. Therefore, a federal employee forced into court will have to pay for expensive discovery in order to get at facts that, in some cases, are now contained in the Report of Investigation. Agencies may also have cause for concern under this change because the EEOC could find discrimination without even holding a hearing. Agencies are bound to EEOC findings of discrimination. Look for further developments on this issue in future editions of this column.

** 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. **