Reader responses to Ned on Feds - Dealing with discrimination

DAILY BRIEFING

Reader responses to Ned on Feds - Dealing with discrimination

Here are the responses we have received to the April 10 Ned on Feds column, "Dealing with discrimination."

"The writer concludes that few findings of discrimination mean that the majority of claims were not meritorius. This conclusion is based on the underlying assumption that the laws are fair and the burden of proof is easily carried. Nothing could be farther from the truth.

"Racial discrimination, in particular, is one of the most difficult if not impossible claims to prove given the requirement that discriminatory intent be proven. This task is nearly impossible unless the manager involved is so comfortable in his or her rascism as to utter a statement which can be used to infer intent.

"One reason we may be seeing an increase in discrimination complaints is because under this administration, filing a calaim may not be as futile as under other administrations less concerned about civil rights."

-Ana Curtis
Federal Communications Commission

"The system is not broken, however the managers responsible remain. In a number of cases I have been involved in, management lawyers are at the mercy of managers they represent in resolving employment discrimination issues.

"I believe that a simple process could be employed that would render decisions within one year. The current forum takes five years in a number of cases before a final decision is render by the [Equal Employment Opportunity] Commission. I believe we can reduce this time to one year by steamlining processing time, forcing managers and lawyers to resolve issues early on, and providing stiff penalties when it becomes obvious that the litigation was unwarranted.

"Agencies need to always look for ways to reduce expenditures. By removing the shield and funds from their pockets they would quickly resolve discrimination issues.

"I have recommended to the joint task force looking into how to manage and to speed the process, a four branch process: One review and analyst branch, a decision making branch, a review branch, and a final decision branch, all of which take no more than an entire year to complete an appeal at the commission.

"I believe your article is right on target: a system broken must be fixed or it remains broken. I further believe that individuals have abused the system on both sides for too long. Let's get back to the basics of communication, resolution, and mission."

-Charles M. Johnson
Program Marketing Analyst
U.S. Army, Fort Meade, Md.

"Ned's article stated that of the 27,200 cases closed by agencies, fewer than 6,000 of them resulted in settlements. This may be true; however, one must consider the harassment and intimidation and, don't forget the ostracism brought to bear by federal managers against a complainant when an EEO case is filed.

"Additionally, most complainants don't have the necessary funds to sustain themselves through this protracted litigation. The government should consider penalizing federal managers for so much as the thought of discrimination. Managers must become more cognizant of their actions toward subordinate staff. This should limit the number of cases filed. Managers must be so fair that there isn't the slightest thought on the part of an employee that he or she was discriminated against.

"The EEO process is so onerous, one has to be fully convinced there is discrimination, otherwise, I don't believe a person would even consider treading this course.

"I believe President Clinton is against discrimination in the federal workplace, however, if I must say, it is alive and well. I witness it everyday and it is shameful.

"You can't train managers to be fair; however, the suggestion of a penalty should force managers to think about their practices. The government should not have to spend money on litigation of discrimination. Discrimination is abominable and must not be tolerated by the government. I agree with [Blacks in Government].

"The administration needs to inflict severe penalties against managers rather than praise and promotions for managers charged with discriminating against employees. I have seen managers promoted for discriminating."

-Name withheld

"I read your article with great interest, as I find myself in the middle of an uncomfortable situation. An Administrative Judge ruled in my favor back in December and charged the agency with retaliation. At my hearing, my first and second line supervisor (both military officers) lied under oath. One of the officers was recently promoted to Lieutenant Colonel and the other (Captain) is on the promotion list.

"We had a settlement hearing, but no word yet. What these two officers did was disgraceful and in my opinion, they must be fined and/or possible jailed. If I were to do the same, I would not have a job now. After a very lengthy battle, I am still waiting. I am somewhat 'blacklisted' and probably will not be able to get another job for several years to come.

"The sad part about all of this, is that the American taxpayer will pay all the bills. I do not understand how officers can be promoted after committing federal crimes, in front of an Administrative Law Judge. The only way to curtail these offenses is to fine supervisors who lie and retaliate against employees for seeking assistance.

"It would be nice to think that the federal government has to abide by the same rules as managers in the private sector. It would certainly discourage supervisors from retaliating against subordinates in an attempt to wear them down and intimidate them. Thank you for the article."

-Name withheld

"As you are well aware, the current system for complaints of discrimination is totally ineffective as it is clogged if numerous frivolous, false and/or malicious claims.

"Sometimes these complaints are filed by poor performers, however, there are other times complaints are filed out of ignorance of what really constitutes a valid complaint of discrimination.

"While there are a considerable number of complaints which should have never been filed, there are a great deal more that are never filed. The true, legitimate complaints are never filed due to fear of reprisal.

"Numerous acts of illegal discrimination occur in the federal government every day, however the legitimate cases are never reported. The poor performer complaints and the other illegitimate complainants witness the numerous real illegal discrimination acts which are not addressed or punished by management because the victims are fearful of filing a complaint lest their careers come to an end and the system/management turns on them. Subsequently, the non-merit complaints get filed as the poor performers and frivolous complainers know that illegal discrimination exists in their workplace and attempt to exploit the managers committing the illegal acts by filing non-merit complaints.

"Consequently the offenders are never punished and the non-merits complainants have given the offenders a basis to defend themselves by highlighting the volume of frivolous, malicious, and false complaints in the system. To criminalize illegal discrimination would be a smart move, along with making folks liable for false accusations or frivolous complaints. This should legitimize the complaints filed as both the non-merit and the offending managers are held liable, which would subsequently make way for legitimate complaints thereby cleaning out both in effective/offending parties.

". . . Yes, I am a minority."

-Name withheld

"I agree that managers should be held responsible for discrimination. But let us not stop there. Everyone has a responsibility when it comes to discrimination. Employees are responsible for filing frivolous cases; however, we have not given employees many options. Presenting frivolous cases is wrong, but the employee finds no other way of being heard, that is the system. How can we punish the employee given this current state of affairs?

"An effective and workable Alternative Dispute Resolution (ADR) Program would take care of that problem, but will it? No, not as long as there is a Judgment Fund that will continue operating in the same manner as it currently does. Today, once a case gets to court, all settlement costs are no longer the responsibility of the agency, but become that of the Judgment Fund. What an incentive for agencies to settle early!

"What do I envision as a solution? Establish effective ADR programs in every agency. In the end, you will see that money is saved, but more importantly, you will gain benefits derived from better communication, more trust, and having Federal managers and employees working toward a common goal instead of pulling in opposite directions. What needs to be done:

• Make everyone accountable for making ADR work and reflect this as a critical element in supervisors' performance plans.
• Educate all players in the use of ADR.
• Support ADR efforts with knowledgeable and full-time program managers.
• Keep data to support how ADR is working and publish the findings.
• Reward those that shine and identify those that put their efforts into making it fail. Take action, if needed, against the latter.
• Establish an oversight team to visit agencies where ADR is not working, find solutions, and make it work. Make agencies accountable for their failures. Costs for such a team will be less than what is currently being spent on complaints, given today's environment.
• Change the purpose of the Judgment Fund. How can you have a system so detrimental to early resolution in existence when EEOC is putting in so much time and effort to finding ways to resolve complaints early in the process? It is like trying to empty a jar while water is constantly being poured into it. You will never accomplish your goal.
• If employees see that agencies are making an effort, they will follow. If documented evidence shows that an employee is not being cooperative and reasonable, establish a panel of co-workers to review the facts and make recommendations for changing the employee's behavior.

"ADR is not only for management and not only for employees. It is for both, but only if it is perceived by both as a fair and equitable system. BIG and other groups say ADR does not work and they are correct, not in its present state. ADR is working only in those agencies that have allocated funds, personnel, effective guidance, and most importantly, buy-in by upper management. How many agencies can make that claim? Not many."

-Name withheld

"Diversity is supposed to be a strength, but not when it is used as a weapon. I recently applied for a position as an EEO Counselor and received a formal letter telling me I was accepted and provided with the dates for the training.

"Then I found out through my union representative that I was refused because I had submitted an EEO complaint several years ago. The EEO Manager at TEC was thrilled to have me put on a Women's History Month Lunch, but is not interested in my working as a counselor. I am very pro-affirmative action and yet everyone around here is waiting on someone else to do the work. The Commander points to the EEO Manager and the EEO Manager is looking for 'volunteers?'

"I am not surprised that there are so very few EEO complaints found legitimate. My own case literally ran out of time before someone could figure out the time requirements. I could go on and on about the rude, insensitive people that I had to deal with at the time. The current manager does not feel any need to discuss the reasons for her decisions. She is not responsible to anyone in this building, and there is no one around to monitor her activities. There is no culpability for the managers involved. EEO has people that are nothing more than promotions from the Human Resources Office, i.e., no manageral training nor the ability to lead. Someone that may be a decent counselor can just as easily be a pathetic manager, yet, this is how the promotions are generated."

-Name withheld

"Do you know why so few cases reach settlement and even fewer result in a finding of discrimination?

"I was one of the 247. And it took me over six years of out-thinking, out-maneuvering, and out-lasting them. It took two trips to Washington, dozens of certified letters, weeks of documentation, a 300 page complaint with attachments, a psychiatrist, weeks of sick leave and eventually a congressional letter from my senator to break the impasse with these people. As a GS-13 with ethics and EEO responsibilities in my agency, I had somewhat of a chance, but it was an uphill battle.

"Heaven help those without the knowledge, support, financial means or stamina to endure the atrocities of the system. The process was ten times worse than the actual discriminatory action. The single parent at a GS-5 pay doesn't stand a chance. I saw a GS-12 Hispanic female last year endure unethical behavior but couldn't afford to fight city hall since she was her family's sole source of income.

"I do not sign my name because I work with management who would not take fondly to my speaking out-too embarrassing for the system, you know?

"We are all EEO conscious and diversity directed now. We've come a long way, baby!! In your dreams."

-Name withheld

"I am not a manager, but I have been in federal government for over 20 years and have seen a lot of good happen through diversity. Not only have minorities and women risen in the ranks, but we are all treated with more respect today than we were years ago.

"My comment though, is that managers are now so concerned about discrimination suits that they fail in their responsibility to take action on poor performance and improper conduct issues. A good example of this is when a mid-level manager takes action to correct poor performance in a young employee (who has good potential, but was falling into poor work habits), the young employee goes to a senior manager (the mid-level manager's supervisor) and complains that she is being persecuted. The young employee had been asked to arrive on time, stay in the work area during the work day, take the proper length of lunch break, and finish projects in a timely and accurate way (these were primarily conduct based problems).

"The mid-level manager was basically told to 'back off' and now the young employee is behaving even more unprofessionally and has adopted a belligerent attitude. Several other workers in the same work group have now adopted the attitude that 'if she can do this, why can't I?' The morale is just terrible, and mainly because the senior manager was 'afraid' to do his job as a manager.

"There has to be some balance in a situation like this. It makes those of us that aspire to management (silly fools!) wonder if we too shouldn't just sit back and 'dairy farm' (milk the job for all it's worth!)."

-Name withheld

"By the grace of God I currently have no supervisory responsibilities. I have witnessed all sorts of abuses of the system throughout my service career, from management excesses to frivilous employee claims. Seems like we have become a society of victims: Old men, Black men, women, religious sectors and, now, managers-malcontents on every hand.

"I wonder if anyone still stops to question what role they might have played in arriving at their current state. What ever happened to accepting responsibility for one's own fate? Sure, we all get kicked around sometimes. But aren't we responsible for picking ourselves up and finding ways to improve our own condition? Please."

-Richard Herrington
Navy

"Your first big mistake is to accept the Clinton mantra that discrimination in the name of diversity is legal and okay!

"First, I have nothing against equal opportunity and support it wholeheartedly, BUT that means selecting the most qualified and not meeting goals, objectives, etc.

"After nine years of filing EEO complaints against the Social Security Administration, I am convinced that the process is completely broken and cannot be repaired. How can any federal employee have any faith that his or her complaint will be fairly processed by the EEOC when you look at Jurgens vs. Thomas. The mind set at the EEOC hasn't changed one bit and never will. You should start out your education and investigation of this sorry state of affairs by asking them to provide to you the breakdown by grade of all of its employees by age, sex, race, etc. and then have them provide you with the Civilian Labor Force statistics for the equivalent job positions, NOT the national CLFs, which is what they use and includes 16-year olds. Upon receiving these statistics, you will find that they have just stated a case of disparate impact in their own agency for hiring and promotions. Again, how can any federal employee or taxpayer (the people paying hundreds of millions of dollars for this charade) believe that there is any credibility in this process.

"Back to SSA! At present, the agency employs about 65,000 people. Seventy-three percent of these employees are female! No accident! Twenty-four percent are black females. White males are 20 percent of the staff. The agency has issued Affirmative Employment Program reports since the 1980s acknowledging these statistics and reporting them to the EEOC. In not one of the reports has the agency set any 'goals' for white males and the EEOC condones and commends them on their activity. Worse yet, the agency attempts to defend this conduct by using National CLFs when it knows full well that there are no 16-year olds in the jobs equivalent to the GS-11 through SES positions. This is done to wildly inflate the target percentages for females and minorities.

"At SSA there are advisory groups to the commissioner which meet with him on a quarterly basis and which receive taxpayer funds to use as they see fit. Guess which group does not have any such representation? WHITE MALES. Worse yet, Commissioner Apfel refuses to establish such a group or even attempt to set goals for hiring white males, assuming that such conduct is legal.

"You mentioned the idea of holding management officials responsible for illegal EEO conduct. You are dreaming. Read Cones vs. Shalala. The principal violator was our very own Commissioner Apfel. They get rewarded and set an example for all other federal executive employees."

-Maurice R. duBois
Social Security Administration

"Discrimination in the workplace appears to favor only a selected few, in particular Blacks and women. However, there are many instances of discrimination that target a great many white employees, but because these allegations do not fall under the so well known discrimination policy of 'Race, Religious belief, Sex,' etc, a white male would and does have a very difficult time in initiating his case. Usually unless it falls under one of the categories listed above, the person's 'allegations" will not even get off the ground.

"The scenario is even worse when the 'discriminator' and the 'discriminatee' are both white males. What recourse does a white male have when a white supervisor/manager decides not to give him the well-deserved performance-appraisal documented promotion because the manager's jokes are not laughed at? None!

"Our federal agencies that take care of these issues, such as MER and MPSB, claim to have measures to take, but this type of discrimination administrative process usually is shot down by management before it even gets off the ground, and, let's face it; rocking the boat and complaining about a issue like such will only get the discriminatee in hotter waters by his superiors.

"Unless drastic and expensive avenues are taken, such as a law suit, then the case will probably never be heard, and the white male discriminatee better look for another job because the management 'buddy system' will target the individual and make his tenure miserable."

-David W. Mixon
Reports of Survey Administrator
HQ, 5th Sig Cmd, DCSLOG

"In the organization that I am currently employed at, a federal manager was charged with discrimination, he has gotten promoted from a GS-13 to a GS-14 (hen he was supervising only 24 employee he is now in charge of hundreds) and the EEO officer that was working the case came to work for the same manager she was investigating.

"Oh by the way, she was also promoted. I ask you, where is the justice? Oh by the way the employee that file the charge was suspend for 60 days, but the intent was to remove the employee. Now the employee has appealed the suspension to the MSPB. The EEOC still has not heard her case and this has been going on since February 1998. And the employee has still not received a promotion. Even though she has applied numerous times and is well qualified. Please do not use my name or organization for I could again be suspended for voicing my opinion."

-Name withheld

"To add to your complaints dealing with the cases here at the Library of Congress, I have stumbled across an action that the EEO system, in the Library of Congress, purposely does to the cases filed.

"Now, the EEO office knows that they have a deadline to meet when dealing with these cases. They deliberately hold the case, giving you the impression that it is being worked on; but it isn't. The LOC hires a contractor to come in and investigate and give an opinion. . . . These contractors come in near the termination deadline of the complaint that was placed to EEO, and are rushed into a decision (how can you be accurate, with little time to work with?). "Now, if there is an EEO office, with officials who are supposed to be qualified and educated in this field, then why contract out work? Why wait until the deadline nears for the case, then bring in an outside contractor? . . . An outside contractor will not bite the hand that feeds it . . . that is why the cases in the LOC have been dismissed, or discrimination is mysteriously not found. . . .

"The EEO systemis a system set up for the people, but used to protect the LOC's managers' wrongdoing."

-Name withheld

"I agree with the viewpoints made by [Blacks in Government]. However, in my 20+ years with the government, I've dicovered that there are systemic discriminatory patterns built into the government that one cannot immediately recognize while attempting to narrow it down to an individual act of discrimination. Until we truly apply Executive Order 11246 the way it was intended to be, the cycle will never stop."

-R.L. Jones

"If there has been a continued increase in discrimination complaints under the current administration, it is due to a a civil rights policy that encourages this type of complaint, and no other reason.

"The concept that diversity is ideal at all costs has caused a dilution of qualification standards for federal employees. The result is, that the very people the government is trying to target for services, minority and low income, often are the recipients of a lower level of service, as a result of less qualified federal employees delivering programs."

-Name withheld, Agriculture Department