FEATURES Justice Delayed
The Equal Employment Opportunity Commission needs a traffic cop to help battle its backlog of cases.
Andrea Brooks, vice president of the women's and fair practices department of the American Federation of Government Employees, says it is an indication that the head of the Equal Employment Opportunity Commission thinks federal employees who file discrimination complaints are merely "whiners." Leroy Warren, chairman of the National Association for the Advancement of Colored People's federal task force, compares it with Jim Crow laws.
"It" is a change in the way the EEOC processes cases in only one of its 50 field offices. Under the plan, unveiled in a March memo and updated in May, two high-ranking commission managers will vet incoming claims and recommend them for dismissal, summary judgment (if the facts are not in dispute and judgment clear), or for a hearing before an EEOC administrative judge. The goal, says EEOC Washington Field Office Director Dana Hutter, is to speed processing of easy-to-resolve claims that normally would take months to decide, thus allowing the agency's administrative judges to focus on the toughest cases. The judges will remain the final arbiters, retaining the option to overrule the commission managers' recommendation.
But civil rights activists and labor union representatives blast Hutter's reform, saying it will prejudice EEOC judges before they have the opportunity to review a case. For EEOC Chairwoman Cari Dominguez, their opposition marks another trying moment in her nearly two-year quest to streamline the EEOC case-processing system. It's a goal that everyone agrees is critical, considering that simply setting up and conducting a hearing on a discrimination claim takes on average more than 400 days. But in such a charged atmosphere, compromises have proved elusive.
"The system needs to be fixed, but not gutted," says Francis Polito, an EEOC judge in Philadelphia and president of an association representing administrative judges at the agency. "In trying to separate the wheat from the chaff, we need to be sure that we don't discard the wheat."
The current EEO process in the federal sector is an intricate one, with numerous stages devised to ensure that employees have every opportunity to bring forth evidence of discrimination. But the process, despite its noble intentions, is broken. Because of the ease with which employees can file claims, they do so at a far greater rate than private-sector workers. In 2003, more than 20,000 of the 2.5 million employees in the federal government (including U.S. Postal Service workers) filed EEO complaints, compared with 85,000 of 140 million private-sector workers. Because no other forum for airing complaints is so welcoming, federal employees bring into the EEO system cases dealing with simple job frustrations that have little or nothing to do with discrimination.
At the same time, any proposed change to the process sparks intense scrutiny from civil rights groups, lawyers for complainants, unions, administrative judges and EEO counselors at agencies, who receive the claims and have the first crack at trying to resolve them. The result, unfortunately for employees and managers awaiting adjudication of discrimination claims, has been deadlock. And Congress at this time has shown little inclination to address the situation.
Breaking the logjam won't be easy. As Hutter's efforts demonstrate, any misstep can bring charges of racism. The path out of the firestorm requires leadership from the EEOC and a willingness in Congress to spend money in the short term with the expectation that long-term cost savings will materialize.
Tell It to the Judge
The criticism of Hutter's reform focuses on the fact that EEOC employees - not judges - will make initial recommendations about which cases should be fast-tracked and which simply should be dismissed. Such recommendations will be subject to the approval of judges, but Warren and Brooks argue that judges will feel pressure not to overrule EEOC managers' decisions. "Managers, charging parties, attorneys, we all agree that for the process to have legitimacy, a hearing [before an administrative judge] has to be one of the components," says Gabrielle Martin, president of the National Council of EEOC Locals, which is part of the American Federation of Government Employees.One way to ensure legitimacy and still speed up the process would be to let judges make the preliminary decisions. The EEOC's Dallas office already runs a process almost identical to Hutter's. But in Dallas, Chief Administrative Judge Dwight Lewis, not an EEOC field office manager, vets the cases for his colleagues. No one seems to oppose Lewis' method. "Why should a guy wait six to eight months to be told his case was filed in an untimely way?" Lewis asks.
But implementing such a system nationwide would require additional support staff to help judges manage the triage stage. "The EEOC is one of the most underfunded agencies in the federal government," says Gary Gilbert, a former chief administrative judge. The EEOC must hire more administrative judges and pay them better, he argues. Commission judges often complain that they are paid less than their counterparts at the Merit Systems Protection Board, the federal agency that adjudicates employee appeals of agency disciplinary decisions. Gilbert also notes that EEOC judges "don't have paralegals and clericals, and as a result they can't handle a simple caseload."
More detrimental, though, are limits on the judges' role in the system. In 1999, the EEOC made judges the final arbiters in the process, replacing a system in which agencies were allowed to simply reject judges' decisions. But the reforms left in place the old apparatus for dealing with discrimination claims at the agency level.
Employees' discrimination complaints are initially referred to EEO counselors employed by agencies. The counselor's job is to review claims, attempt to mediate them, or dismiss them if they do not meet procedural requirements - such as being filed years after an alleged incident. If the claim is deemed valid, then the agency must investigate it (although many agencies hire contractors to conduct such investigations). After the investigation, the employee can request either a final decision from the agency (with the further option of an appeal to the commission's Office of Federal Operations), or demand a hearing before an EEOC judge.
One frustration for complainants is that the commission does not enforce a 1999 regulation requiring agencies to immediately notify an employee of his right to request an EEOC hearing if the accused agency does not complete its review of the case within 180 days. Across government, the agency investigation process averages about 270 days.
Since the 1999 reforms, agencies' quasi-adjudicatory role has been rendered superfluous. It makes little sense for an employee who thinks he's the victim of discrimination to trust the agency to render the ultimate decision. As a result, most employees opt for an EEOC hearing.
On top of that, agencies make little effective use of their adjudicatory powers. For example, counselors often refuse to dismiss cases that don't meet basic procedural requirements out of fear that the employee will appeal the dismissal to the Office of Federal Operations. "If we dismiss a case, and the person appeals to the OFO, they may not get to it for three years," says Delia Johnson, co-president of the Council of Federal EEO and Civil Rights Executives and director of the Civil Rights Office at the International Broadcasting Bureau. "If they make a determination that the case should have been accepted, we have to go back after three years and try to find the witnesses."
Early Dismissal
One way to solve that problem would be to give judges control of the process from the start. If a case clearly had nothing to do with discrimination or was filed frivolously, then an impartial judge could dismiss it. Congress could help further by raising the bar for a complaint. Currently, as Dallas judge Lewis points out, an employee can bring a discrimination complaint for a minor slight, such as a job assignment that they don't like.Congress also could help by allowing EEOC judges to use their discretion to decide whether or not a case merits a full-blown investigation and hearing. Minor cases could be directed to mediation. The Merit Systems Protection Board benefits from a minimum threshold cases must reach to receive consideration. To appeal to MSPB, an employee must have received a suspension of at least 15 days.
But the danger of such a judge-centric process is that EEOC judges lack the incentive and inclination to improve the efficiency of the system, according to one federal manager who's followed the reform process closely. The judges, this official says, have tended to be too generous in their willingness to hold hearings on cases that should be resolved quickly with summary judgment. Someone must manage the system to ensure that the EEOC sticks to its mission of adjudicating legitimate discrimination complaints, this official argues. Otherwise, the backlog will continue to grow.
Likewise, even if judges are given more power, agency EEO counselors would continue to play an important role. They know their agencies much better than the judges do, and are well-positioned to encourage parties involved in complaints to seek mediation. Many EEOC reformers argue that the mediation process should be mandatory. "EEOC accepts nearly every case on its face, and you don't have to do that," says Jomoya Mobutu, a senior EEO specialist at the Veterans Benefits Administration. Cases that clearly don't involve discrimination should go directly to mediation, he argues.
Counselors also could provide training for federal managers on how to avoid discrimination charges by improving their communication skills. This training could be critical if it changes managers' perceptions about resolving workplace conflicts. A recent EEOC study found that federal managers often resist mediation because they believe that colleagues see participation in the process as an admission of guilt.
"Managers feel threatened from the get-go," says Professional Managers Association President Ray Woolner. "What I see is that the process doesn't seem to look for resolution as quickly as it looks for fault or blame." Counselors who could convince both parties that mediation is in their interests would be the superstars of the EEO process.
The Resource Issue
A system that empowers judges but also gives EEO counselors a prominent role should satisfy civil rights advocates and provide justice to aggrieved federal employees, since they would continue to have full access to an impartial judge. At the same time, it also would be fair to wrongly accused federal managers, who now often must spend years under a cloud of suspicion while a case weaves its way through the process.The approach also would save money, because agencies wouldn't have to conduct formal investigations of the many cases that do not reach the threshold required to prove discrimination. These investigations, of even the most minor claims, can take months to complete.
But for these changes to be implemented, civil rights groups, federal agencies, unions and Congress all would have to put aside their parochial concerns. Congress has shown little interest in reforming the EEOC process, and none in providing the commission with more resources. Last year, the commission nearly had to shut down for 16 days when its funds ran out. This year, Congress again denied EEOC funding to implement management changes recommended by the National Academy for Public Administration that would improve the agency's efficiency.
Part of the problem is that union advocates have opposed even the modest reforms NAPA has proposed, the most prominent of which was to close some EEOC field offices and open a national call center aimed at advising potential complainants. Unions oppose the move because it would presumably cost some jobs. At the same time, civil rights advocates are likely to resist any effort to fast-track certain cases and deny employees the opportunity to a full hearing before a judge.
The toughest nut to crack, however, will be the agencies that fought the 1999 reforms and have sought to protect their EEO counselors and adjudicators. It's a turf war, and agency EEO counselors argue that it is they who should be granted additional authority to dismiss cases, essentially taking on the powers of an administrative judge. But given the perception that EEO counselors are servants of the agencies that employ them, they will face an uphill battle.
COMMENTS
- Enough already! I appreciate the last comment from the former lawyer who was hired by a Federal agency. But the fact of the matter, alleged oficials are provided with free lawyering and legal advice. Much too often these hired guns point to the worst cases of the misuse of the federal sector redress system. However, these cases are not typical. Now, by no means do I want to push aside the fact that some people do misuse the process. But, every legal story should have two sides. I am a female with an advanced degree. However, I was employed at the Bureau of Economic Analysis (BEA) an agency in the Department of Commerce. Unfortunately, I was informed by an African American male supervisor, that the (BEA) did not have an Affirmative Action Plan. The end result was, that this manager hired less qualified and less experienced white males. Most had little if anything more than a four year degree, some college, and/or a High School Diploma? But in the meantime, the same manager was promoted on up the ranks for being an "African American." Did I file a discrimination complaint? Yes! As for my individual EEO case, it has taken four years to make its way through the federal sector redress system. In fact, after two years, I received an incomplete investigative report from the agency (the Commerce Department). The report was submitted long afer the (180-day requirement), and long after I'd requested a hearing from the EEOC. But, an administrative EEOC Judge in the Washington field Office, determined there was no discrimination? Now, can a reasonable citizen say that I am misusing the process? No, I do not believe so. However, I have made many hard decisions to hire my own lawyers out of my own pocket, because I believe that gender discrimination is wrong. And, promoting someone because they are African American is just as wrong! In the meantime, my EEO case may end-up in Civil Court. I am not misusing the system. But, I have left the agency for better opportunities. As I said at the start: Enough already. Let's fix this broken system! GovExec.com reader Posted August 6, 2004 12:03 AM
- As a former minion in the never ending federal EEO circus, I applaud the efforts to at least attempt to trim fat from the caseload. After 5 years of dealing with complaints, I decided the private sector was a better place to hang my hat. Although many problems can be attributed to poor management, or even discrimination, far too many are brought about because the employees themselves think that they are entitled to some divine right. I came across dozens of complaints alleging discrimination in which the complainant did not suffer any discrimination, but were simply using the process to "get even." For example, I once had to investigate a complaint made by an employee non-selected for a Regional Systems Administrator position. She alleged that her race and sex were factors in the selection decision. The selectee, not of her protected group, had a PhD in Systems Administration and over 20 years experience in information management systems. The complainant had a certificate from a MicroSoft Windows course, and a High School diploma. She was trying to cross over into the computer field from an admin slot and had no experience. After a complete investigation and FAD she filed yet another complaint alleging race discrimination because she was placed on a PIP for not performing to standard. We had to accept these complaints because we are not allowed to give many compainants what they truly need -- a reality check. The process was established to ensure the federal govt was a model employer, yet some use it as a possible source of retirement funds, or simply as a tool to get managers who do their jobs. This is the constant grind that many in OCR and EEO offices face on a daily basis. It leaves one numb to those who have truly been wronged. When I reached the point that I could care less about complainants I decided to pack it in and go private. The current system is way out of control and must be fixed or else those who would make great federal managers will hit the exits. Harrison Charles Posted August 4, 2004 3:02 PM
- Let's be honest. The EEO System no longer resembles a credible venue for weeding out discrimination from our federal governmental agencies and providing appropriate relief for victims of discrimination. The argument is over form not substance; over turf not process; even over invitations to be part of the show not the realization of the objectives the system was envisioned to achieve. The EEOC lacks authority over federal agency EEO programs - just look at the many incestuous variations of EEO programs in the name of unique agency "culture." The fox is in charge of the hen house, the considerable resources of agency legal departments tip the scales of fairness, and no one is willing to admit that the Emperor is naked; no new clothes - stark, raving, naked. We lost sight of the goal sometime ago, we need to be honest and admit it, then we can find the solution. A total solution that brings all components of an EEO program together so that education, prevention, ADR, affirmative employment and counseling all working toward the goal is required. EEO complaints are symptomatic of the real problem. We have become the slaves of a system gone wild. Basic solution: One EEO program (not bifurcated as in some DoD agencies) with an educational component to prevent discrimination and combat prejudice, ADR services, real affirmative employment, SEPMs, rehabilitation for offenders (aka discipline) and properly trained counselors, supported by proper funding is what the agency requires. Formal complaints against the agency should be sent to EEOC (no agency investigation - everyone knows its a sham and waste of time) for screening (jurisdiction), ADR, and hearings. Get the agency out of the business of self-investigation and refocused on being an EO Employer. All stakeholders must be heard for a credible system to be built. That isn't happening - The current path is littered behind us with ill will and frustrated expectations while the path ahead gives no comfort that we will experience a different result. It's time to chart a different path - "The true definition of insanity is to continue to repeat the same behavior and then to expect a different result." GovExec.com reader Posted August 3, 2004 8:01 PM
