EEO ADMINISTRATIVE PROCESS SURVEY
(39 responses from 39 agencies, including 11 from Cabinet-level agencies)
(January 2006)
1) Do you think that ADR should be mandatory for management when a Complainant has invoked it and the complaint is suitable for ADR in the agency’s ADR program?
Yes – 37 (97%)
No – 1 (3%)
2) Should EEOC mandate ADR at the hearing stage?
Yes – 22 (58%)
No – 16 (42%)
3) Do you think that federal agencies should retain the investigative function for EEO complaints?
Yes – 31 (82%)
No – 7 (18%)
4) Do you think that federal agencies should dismiss complaints if Complainants have not made an election after receiving the letter allowing them to select between an EEOC hearing or a final agency decision?
Yes – 19 (49%)
No – 20 (51%)
(5) Do you think that the EEOC should allow federal agencies to dismiss complaints on the merits when facts available for the record prior to the start of the formal investigation show that the Complainants cannot make a prima facie showing (with appeal rights to the Office of Federal Operations)?
Yes – 24 (62%)
No – 15 (38%)
6) Do you think that requests for EEOC hearings should be filed with federal agencies instead of directly with the EEOC?
Yes – 14 (36%)
No – 25 (64%)
7) Do you think that the right to an EEOC hearing should be retained?
Yes – 36 (95%)
No – 2 (5%)
8) Do you think that EEOC Administrative Judges should dismiss complaints after Complainants have been uncooperative during the hearing process, instead of the current practice of remanding them to the federal agencies for a final agency decision?
Yes – 30 (79%)
No – 8 (21%)
9) Do you think that the EEOC should provide federal agencies more specific guidance, including stipulating the number of complaints filed by a Complainant, on when it is proper to dismiss complaints for abuse of the EEO process?
Yes – 32 (84%)
No – 6 (16%)
10) Do you think that managers who are required to respond to allegations of discrimination should be allowed to review all documents in which he/she is accused of discrimination?
Yes – 25 (64%)
No – 14 (36%)
11) Do you think that managers’ accused of discrimination should be consulted prior to any settlement or resolution of an EEO complaint?
Yes – 17 (47%)
No – 19 (53%)
12) Do you think that federal agencies should track the names of alleged discriminating officials?
Yes – 23 (61%)
No – 15 (39%)
13) Do you think that EEO officials should respond to requests from non-EEO officials regarding information on alleged discriminating officials?
Yes – 8 (22%)
No – 28 (78%)
14) Do you think that federal agencies should provide managers a letter indicating the disposition of an EEO complaint within 30 days of the closing of a discrimination complaint?
Yes – 32 (82%)
No – 7 (18%)
15) Do you think that EEOC should issue a table of penalties to allow federal agencies to consult when they receive findings of discrimination?
Yes – 24 (62%)
No – 15 (38%)
16) Do you think that EEOC should grant more deference to final agency decisions when rendering appeal decisions? [EEOC hardly mentions final agency decisions when issuing appeal decisions?
Yes – 22 (58%)
No – 16 (42%)
17) Do you think that EEOC should do more to enforce the requirement that Complainants notify the EEO Offices at federal agencies when they request an EEOC hearing?
Yes – 28 (72%)
No – 11 (28%)
18) Other comments:
o In many instances at the command/activity levels, there is a perceived conflict of interest among the Directors Civilian Personnel Programs and/or HRO Directors who also serve as the key EEO Officials/Deputy EEO Officers and accept and dismiss complaints, and in which the EEO Officials report and/or supervised by the Directors Civilian Personnel Program/HRO.
o It is absolutely essential that all parties to a formal complaint of discrimination know when the process has been completed. The named management official has a “right to know!” The system that has been constructed for too long has favored the complainant. We need to remember that the accused has due process rights.
o I also believe that the EEOC OFO should hold appellants accountable for serving appeal briefs on the agency. If the appellant’s brief is not served on the agency according to regulations, their brief should not be considered by the EEOC.
o EEOC should develop procedures for processing conflict interest cases which are filed by EEO professionals against EEO Directors.
o I feel Management/General Counsels/HR still have too much involvement in the EEO Complaint process in many of the Agencies. EEOC continues to not enforce the regulations when it comes to Agencies that want to just do it their way regardless of the rules of the game. My take on it is that the Civil Rights/EEO/Diversity Offices are underestimated, undervalued, and marginalized in too many Agencies.
o Much of what the regulatory guides direct just need enforcing. Making changes rather than enforcing makes little sense. The EEOC has to become a “partner” in the enforcement “all the way” and not just at selected times.
o It’s hard to answer yes or no for some situations, since “it depends on the situation” is often the response. For example, I think the reasons for not participating in ADR should be few but that the process should not be mandatory. Managers do have a point that they’re often left out of the process and don’t know what’s happening to the complaint against them.
o I believe that the 29 CFR 1614 is very clear about the processing of discrimination complaints and that the failure to comply lies with the agency not EEOC. I believe that EEOC must provide more resources to the Hearing and Appeal process in order to meet the deadlines outlined in MD-110.
o On question 15: A table of penalties could be a good idea, however also a possibility of misuse. On question 17: EEOC should have some measure in place to notify federal agencies that a hearing has been requested (Example: Notice of Receipt sent to complainant and federal agencies).
o
Federal agencies should be allowed to issue merit
decisions at any time prior to the complainant’s filing a hearing request. Agencies should have the discretion to
collect information or evidence or to conduct investigations as they deem
appropriate prior issuing final agency decisions. If, during a hearing or court trial, it is determined that a
final agency decision was rendered without sufficient information or evidence,
a negative inference may be drawn by the judge against the agency. The discretion for agencies to issue merit
decisions without rigid investigative requirements would greatly reduce
processing time and agency expense for complaints lacking any evidence of merit
and would not affect due process for complainants. Following an agency’s merit decision, complainants should not
have the right to a hearing but should be able to request them in lieu of
filing suit in federal court. EEOC
should review requests for hearings just as they currently do private sector
complaints. In other words, if a
complainant requests a hearing, EEOC should “certify” that the complaint merits
that level of review; this decision must be made expeditiously (60 days would
be a maximum). If not appropriate for a hearing, the complainant would still
have the option of taking the matter to court.
o
Currently the regulations state the complainant may
amend their complaint through the investigative stage of the EEO process. If the complaint is amended, the
investigation must be complete the earlier of 180 days after the last amendment
or maximum 360 days after the filing of the original complaint, which ever is
first. However the current regulations
state that the complainant may request a hearing any time after 180 days have
elapsed from filing date. A complainant
may request a hearing on an amended complaint prior to the expiration of the
extended time allowed for investigation (due to amendment). EEOC needs to revise the regulations to
allow complainants to request a hearing after the allowed time for the
investigation (maximum 360 days for amended complaints), not the blanket 180
days. For example: If a complainant
amends their complaint on day 170 of 180 and it is accepted for investigation,
the Agency is allowed another 180 days to investigate the amendment(s). Therefore, complainant should not be allowed
to request a hearing for at least another 180 days from the amendment. Currently the regulations are written where
complainant can still request a hearing after the initial 180 days, making it
impossible for the investigation to be completed if a hearing is requested on
day 181 after filing formal.