Discrimination complaint process improving, but slowly

Although new regulations from the Equal Employment Opportunity Commission are improving the federal discrimination complaint process, a group of lawyers and administrative judges said Thursday that the system is still far from perfect.

"Is the process we have here today better than a year ago? Yes," said Gary Gilbert, supervisory administrative judge at the EEOC's Baltimore district office. He was speaking at the D.C. Bar Association on the EEOC's new federal sector regulations.

"The new regulations are working reasonably well, and reasonably well is a dramatic step forward," said Gilbert.

The EEOC's regulations--which took effect in November 1999--were designed to improve the complaint process. They required agencies to put in place alternative dispute resolution programs and revoked a policy that gave agencies the option to ignore decisions handed down by EEOC administrative judges.

Before the new rules were adopted, agencies could reverse or modify EEOC judges' decisions if they didn't like them. That's what they did in two-thirds of decisions that favored employees.

The regulations also include a provision saying that in cases where the judge rules in favor of the complainant, agencies must provide relief for complainants in the interim between the judge's decision and a pending appeal.

Gilbert and Steve Shih, an administrative judge in EEOC's Washington, D.C. field office, agreed that the new process helps judges issue decisions faster and gives them more authority to impose sanctions on agencies that do not make good-faith efforts to comply with the regulations and complete their investigations in a timely fashion.

An agency has 180 days to complete its investigation of a complaint. After 180 days, the complainant can request a hearing before the EEOC. Once jurisdiction shifts to the EEOC, the agency cannot continue its investigation without a judge's approval.

Edward H. Passman of the law firm Passman & Kaplan argued that under the new regulations, there are not enough resources devoted to mediation and settlement. He also criticized judges for taking too long to hand down decisions and agencies for taking too long to investigate complaints.

Gilah G. Goldsmith, assistant general counsel at the Defense Department's Washington Headquarters Services office, said a lack of resources at many agencies slows down investigations, but that investigators do the best they can do to expedite the process.

Goldsmith urged agencies to do everything possible to resolve conflicts before they reach the courts.

"Don't even let lawyers get involved," she advised.

In testimony before the House Government Reform Subcommittee on the Civil Service in March, Michael Brostek, associate director of federal management and workforce issues at the General Accounting Office, said the rise in discrimination complaints during the last decade has overwhelmed the abilities of EEOC and federal agencies to process cases in a timely fashion. Brostek said case backlogs have actually increased amid a flurry of new complaint filings.