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As the Oct. 1 deadline for implementing a law intended to hold federal agencies more accountable for workplace discrimination approaches, the Office of Personnel Management and the Equal Employment Opportunity Commission are butting heads with civil rights advocates over regulations for putting the law into place.

Anti-discrimination groups have criticized OPM and the EEOC for failing to gather adequate input from interested parties while drafting regulations for the 2002 Notification and Federal Employee Anti-Discrimination and Retaliation (No FEAR) Act. At the same time, these agencies are under pressure to issue regulations quickly to avoid confusion when the law takes effect next Wednesday.

OPM General Counsel Mark Robbins said Thursday that he has arrived at a compromise that he hopes will please groups seeking more involvement in drafting the regulations. He will release some of the more pressing guidance on how to implement the law on Oct. 1 as scheduled, but will hold off on publishing some of the other regulations OPM is drafting.

In early July, the White House put OPM in charge of writing some rules to eliminate any confusion surrounding the No FEAR law, which requires federal agencies to use their own funds, rather than a general Treasury Department fund, to settle discrimination and whistleblower lawsuits. Under the law, agencies must also file an annual report listing the number of whistleblower cases filed against them and describing the results of the cases, amounts of any settlements involved and the number of employees disciplined for committing acts of discrimination or sexual harassment.

OPM's regulations will clear up such details as whether agencies will be responsible for paying judgments on lawsuits filed prior to Oct. 1 but closed after that date. The personnel agency is also in charge of writing rules on some of No FEAR's reporting and data collection requirements.

Robbins originally promised that the regulations would be ready when No FEAR takes effect next Wednesday, satisfying lawyers concerned that a lack of regulations would add to the confusion the law is already bound to cause.

But Marsha Coleman-Adebayo, a senior policy analyst at the Environmental Protection Agency who shepherded No FEAR into law, criticized OPM for rushing ahead with the regulations without seeking feedback from interested nongovernmental groups, including the No FEAR Coalition, an anti-discrimination group she heads. Once the interim regulations are issued, there will be a public comment period, but regulations are difficult to change once they're published in any form, Adebayo argued.

The No FEAR Coalition asked to look over the draft regulations before the interim guidelines were released, Adebayo said. In addition, the coalition asked to participate directly on the drafting committee. OPM denied both of these requests, as well as a request to hold public hearings on the regulations.

Adebayo acknowledged that the White House didn't give OPM much time to work on the guidelines.

Robbins said that because Adebayo and others have expressed legitimate concerns about the hasty process of drafting regulations, OPM and the Justice Department (which has joint responsibility for the regulations) plan to hold off on releasing rules governing reporting and data-collection requirements, as well as those on worker and management education training programs mandated by No FEAR.

OPM will proceed on schedule with a release of guidance regarding settlement payments, because agencies need to have these rules immediately on Oct. 1, Robbins said. These rules mostly deal with the "mechanics of reimbursing the judgment fund," and therefore do not necessitate as much time for outside input, he explained.

Robbins also disputed Adebayo's argument that interim regulations are difficult to alter. There are a number of cases where interim regulations have changed following a comment period, he said.

Adebayo, who was not yet aware of Robbins' compromise offer as of Thursday morning, said that the No FEAR coalition intends to organize nine or 10 public hearings across the country to gather input on whatever regulations are issued on Oct. 1. The coalition does not want the publication of interim regulations to discourage people from voicing concerns over the rules, she said.

The Equal Employment Opportunity Commission, charged with issuing separate regulations clarifying some of the terminology in the No FEAR Act, has also come under fire from a civil rights advocacy group for failing to collect adequate input on draft rules.

"Considering that it was the work of nonfederal groups that culminated in the passage of the No FEAR Act on May 15, 2002, it is unthinkable that [the] EEOC has failed to get their feedback," said Leroy Warren Jr., chair of the National Association for the Advancement of Colored People Federal Sector Task Force, in a Sept. 19 letter to EEOC Chair Cari Dominguez.

But according to EEOC spokesman David Grinberg, the EEOC is simply following standard procedures for issuing regulations. The commission has circulated draft copies of the guidelines for interagency review, and plans on publishing interim measures soon, he said, at which time interested parties will have "ample time" to review the proposed rules.

COMMENTS

• The lack of candor, irresponsibility, stalling and obfuscation manifest in the federal officials’ attitudes toward implementation of the No FEAR Act illustrate one of the worst things wrong with the federal EEO system: those charged with enforcing the anti-discrimination laws for federal workers see no reason to do so and do everything in their power to avoid having to do so. The No FEAR Act, passed in May 2002, said right in the law that it would take effect October 1, 2003. Congress built in plenty of time for stakeholder consultations and the required rulemaking procedures. Why did the President, Justice, EEOC and the entire federal government delay beginning the process until July 2003 (when OPM was directed to develop some of the regulations but not others)? Aggrieved federal employees worked for years to get the legislation enacted and then waited patiently for the No FEAR protections to kick in. Now it is clear from the federal officials’ comments that No FEAR is expected to have no effect because—like the rest of the federal EEO system—it will be virtually negated by delay, overly complex but weak regulations, and lack of enforcement. Valerie Lloyd Posted September 26, 2003 9:56 AM