By Kellie Lunney
July 24, 2012
The Equal Employment Opportunity Commission on Tuesday unveiled final rules designed to improve agencies’ compliance with the federal discrimination complaint process and also provide them with greater flexibility.
The new rules aim to expedite how claims are filed, processed and decided, although it’s unclear whether the changes have real teeth. For example, one of the revisions simply reaffirms the existing statutory requirement that agencies comply with EEOC regulations and other directives.
Other changes include tweaking language in the existing regulations regarding allegations of retaliation from federal workers with proposed personnel actions against them, as well as strengthening the authority of administrative law judges in class complaint cases.
According to EEOC, agencies should continue to dismiss complaints alleging a proposed personnel action, such as removal, as discriminatory unless the complaint specifies the proposal is in retaliation for prior EEO activity. “A number of commenters, such as the National Treasury Employees Union, point out that it is possible that a supervisor might place an employee on a performance improvement plan or propose an adverse action against an employee with the intent of deterring that employee from filing or proceeding with an EEO complaint,” stated the final rules, which will be published in Wednesday’s Federal Register. “Knowing this, an unscrupulous manager who has been accused of employment discrimination could initiate a trumped-up proposed removal in order to cause the employee to drop the complaint and avoid termination.”
NTEU President Colleen Kelley said she was “pleased to see several important improvements in the final rule revising the EEOC complaint process for federal employees,” including providing feds “with the same protections against retaliation as their private sector counterparts.” The union had raised concerns that the alternative language in EEOC’s proposed rule would subject federal employees to an unfairly high legal standard for retaliation claims.
In addition, the EEOC revisions would make the decisions of administrative judges in class complaint cases final instead of recommended. Currently, after administrative judges render decisions in such cases, agencies can accept, reject or modify the findings in their final decisions. The new regulations would allow agencies only to accept or appeal administrative judges’ decisions in class complaint cases, as is now the case with individual cases.
Those changes make sense, said Gabrielle Martin, president of the National Council of EEOC Locals No. 216, part of the American Federation of Government Employees. Martin also praised another modification that requires agencies to inform complainants in writing if an investigation isn’t wrapped up within the 180-day time limit and notify them of their rights to immediately file for a hearing and civil action. But another new rule that allows agencies to seek approval from EEOC to experiment with almost any part of the complaint process could prove more problematic for complainants and agencies, Martin noted.
“My concern is, what are they piloting?” said Martin, who noted the complexity of the current complaint process under the law and the temporary nature of a pilot program could create a quagmire for complainants and agencies. Under the final rules, the pilot programs would expire after two years, a change from the proposed 12 months. In an email, Justine Lisser, EEOC’s senior attorney-adviser in the Office of Communications and Legislative Affairs, noted complainants’ participation in pilot programs is “voluntary and optional.”
Kelley said the union has heard from federal employees over the years concerned about the lengthy EEO process and potential for conflicts of interest when agencies investigate internal complaints. “In giving agencies the authority to create pilot processes, we hope that the agencies will work closely with their workplace representatives to address these issues,” she said.
The EEO process begins when a federal employee or job applicant contacts an EEO counselor and alleges discrimination. If counseling is unsuccessful, complainants can file a formal EEO complaint with the agency, which then investigates. At the end of the investigation, complainants can request a hearing before an EEOC administrative judge, or a final decision by the agency. Complainants can appeal the decision to EEOC and can sue the agency in federal district court if they are unsatisfied with the outcome.
The final regulations also direct agencies to submit appeals and complaint files in a digital format unless they can offer a good reason for not doing so. Complainants are encouraged but not required to file documentation digitally, according to the revision.
In response to a question from Government Executive, EEOC’s Lisser said the final rule does not make the federal sector EEO complaint process harder or easier for either agencies or complainants. “The option to conduct pilot projects will benefit the process and all parties who use it,” she said. “Similarly, receiving the notice once the time period for completing an investigation has passed will focus agencies on the time limits and help complainants make good decisions on what option to pursue when investigations are not completed on time.”
The final regulations take effect 60 days from July 25; EEOC published the proposed rules in December 2009.
(Image via Viktor88/Shutterstock.com)
By Kellie Lunney
July 24, 2012