Don’t let federal agencies judge their own discrimination cases

For more than two million federal workers nationwide, the Trump administration has proposed taking away their automatic right to request a hearing before an impartial judge when they face workplace discrimination. If adopted, the proposal would make it harder for federal workers to challenge discrimination under the 1964 Civil Rights Act, which was expressly designed to protect workers from discrimination.

Specifically, the proposed rules would eliminate federal and D.C. government employees' automatic right to have their discrimination cases reviewed by a neutral administrative judge. Instead, the worker's employer would initially decide whether discrimination occurred. The worker could then appeal that decision to the Equal Employment Opportunity Commission and request that the commission refer the case to an administrative judge, but such a referral would be discretionary.

That change would create a clear conflict of interest. The same agency accused of discrimination would investigate the complaint and initially decide whether discrimination occurred.

The impartial hearing is crucial.

The Civil Rights Act of 1964 was passed to protect people in the United States from discrimination, and Title VII of that law specifically protects workers from discrimination. To enforce these protections, the law also created the Equal Employment Opportunity Commission, whose stated mission is to "eliminate unlawful employment discrimination."

For many decades, federal workers who faced discrimination in the workplace have been able to appeal to the EEOC for relief and justice. For the past 40 years, they have had the right to request a hearing before an impartial administrative judge if they believed they were discriminated against on the basis of race, color, sex, national origin, disability, age, religion, genetic information or retaliation. The Trump administration seeks to end that automatic right and instead make an administrative judge hearing available only when the EEOC determines that such proceedings are necessary or efficient to resolve an appeal.

Under the current process, when a federal worker claims they faced discrimination in the workplace, the worker's employer is responsible for receiving the discrimination complaint, investigating it within 180 days and creating a report of the investigation.

If the employer is then in charge of deciding whether discrimination occurred and whether the employer will owe the worker restitution, federal workers are subject to a situation where the foxes are guarding the henhouse. The employer has a strong interest in deciding that the worker was not subject to discrimination. In FY 2021, agencies issued 5,604 merit final agency decisions that did not involve an administrative judge, and 109 of those decisions found discrimination. By comparison, 3,821 final orders implementing administrative judge decisions included 112 findings of discrimination.

This is why, in most circumstances, rather than have the employer make the decision, employees have a better opportunity to achieve justice by exercising their right to request a fair hearing before an administrative judge, which would be their first time engaging with a neutral party.

For example, we often represent employees who file discrimination complaints because their immediate supervisor sexually harassed them repeatedly and upper-level management knew and did nothing about it. Under the proposed rule, an agency would investigate the complaint and issue a final decision before the employee could appeal to the EEOC. The employee could request that the EEOC refer the case to an administrative judge, but the commission would decide whether such proceedings were necessary or efficient to resolve the appeal.

That means the agency that already controls the complaint and investigation process would initially decide whether the supervisor's actions constituted sexual harassment, whether management took appropriate action to stop the harassment, whether the employee is entitled to damages and, if so, the amount of those damages.

The historical data from the FY 2021 Annual Report also shows that administrative judge decisions accounted for a substantial share of findings of discrimination. Of the 221 findings of discrimination reported that year, 112 came through final orders implementing administrative judge decisions, while 109 came through final agency decisions without an administrative judge.

Furthermore, there are numerous instances when the federal agency that employs the worker does not complete its discrimination investigation within the 180-day deadline. Under the current process, when the investigation is complete, the employee can request a hearing before an EEOC administrative judge. The FY 2021 EEOC report found that agencies completed 86.4% of investigations on time, meaning thousands were not completed within 180 days.

We have represented many cases at the Department of Veterans Affairs where nurses with physical disabilities were fired or suspended for taking the same actions as employees without disabilities who were not disciplined. In many of these cases, the VA has blown through its deadlines to investigate the discrimination, and it was only through our ability to request intervention from a neutral judge that we were able to have the claims fully investigated and win relief for these nurses.

The proposed changes would remove that automatic avenue for these nurses and instead require them to wait for the agency to conduct its investigation and issue a final decision before appealing to the EEOC. Meanwhile, the nurses could be out of work and without a paycheck.

If this rule becomes final, there would also be significant practical and financial burdens placed on workers who allege discrimination. Court cases are complex and often involve significant court and attorney's fees. By taking away the automatic right to a hearing before an EEOC administrative judge and making such proceedings discretionary on appeal, the proposed rule's real effect would be to discourage employees from pursuing claims of illegal discrimination and make it harder for those who do move forward to challenge that discrimination successfully.

Every federal worker could be affected by this rule change, as the EEOC hearing process helps protect workers from discrimination as Congress intended. Although the proposed changes are currently targeted at federal and D.C. government employees, the rights of all workers are at stake and are under attack. This Trump administration has shown a malignant hunger to dismantle the Civil Rights Act of 1964, and this new proposed rule is a big, vicious bite.

Kendrick Roberson is a national vice president for the American Federation of Government Employees, which represents more than 820,000 federal employees. He leads AFGE's civil rights department, which represents members in discrimination cases through its Women and Fair Practices departments. Roberson is also a professor of labor at UCLA.