FEDERAL SECTOR REFORM PROPOSAL
Listed below is an analysis of the federal sector reform proposal presented by the EEOC. This analysis focuses on the following key points gleaned from the proposal:
- Abolishing Complainant’s Right to an Administrative Hearing; and
Federal employees would still be required to file a formal EEO complaint with the alleged discriminating agency within 45 calendar days of the alleged discriminatory act. The agency would be given 60 calendar days to provide counseling and attempt settlement through Alternative Dispute Resolution (ADR). If settlement fails the agency will issue to Complainant a Notice of Final Action. This notice will inform Complainant of his/her right to either file an appeal with the EEOC or file a lawsuit in federal district court. Agencies would no longer have the authority to conduct an investigation into the allegations raised by Complainant. This investigative function would be transferred to the EEOC which would conduct an investigation if, and only if (a) the Complainant filed an appeal with the EEOC instead of filing a lawsuit in federal district court and (b) the EEOC exercised its discretionary authority to investigate the complaint.
Removal of the investigative function from the agency precludes it from conducting an impartial investigation into the claims raised by the Complainant. Federal agencies are better equipped to investigate complaints because of their familiarity with all the files and employees. This investigation could not only result in the finding of discriminatory management practices but also practices, which though not discriminatory, if left unchecked, could lead to the filing of additional complaints by complainant and/or other employees. An agency-conducted investigation would, at minimum, provide the parties (Complainant and management) with a better understanding of each other’s position and enhance the goal of complaint resolution. It is especially important since the EEOC, as part of its reform proposal, would conduct an investigation into only those complaints it has unilaterally determined merit investigation. This selective investigation option was confirmed by the EEOC in its written federal sector reform proposal distributed to agencies. Under the sub-heading of Appeal to EEOC it states in pertinent part:
“EEOC personnel will evaluate the claim for purposes of giving it an A, B or C assessment rating, as is done for private sector charges. Complaints that receive C ratings will be dismissed with a decision indicating that EEOC has determined that further investigation of the complaint will not likely lead to a finding of discrimination, “ and
“EEOC will mediate A and B complaints as appropriate and will investigate those complaints as appropriate, as well.”
Failing to investigate a claim that, while meeting jurisdictional prerequisites, would not likely lead to a finding of discrimination is contrary to EEOC’s own historical administrative decisions. The EEOC has steadfastly maintained that an agency should not look at the merits of a claim when deciding whether or not it should dismiss the claim. If the agency has jurisdiction over the claim, it is timely filed and not subject to dismissal, it should be investigated and a final decision issued with a determination made on the merits of each claim.
Another reason why agencies should still be required to investigate complaints is the extreme financial burden that would be imposed upon Complainants should they elect to file suit in federal district court after expiration of the 60-day informal period. Complainants would be burdened with the cost of attorney and investigator fees and other legal expenses. These expenses, which currently run into the tens of thousands of dollars, are beyond the financial means of the average citizen. Thus, the end result of the EEOC’s proposal would be to create a process to litigate discrimination complaints that would benefit those in the higher salary brackets. This is not only un-American, but is contrary to the concept of providing an equal opportunity to employees/applicants who feel they have been treated in a discriminatory fashion. As a result, it is anticipated that the overwhelming majority of complainants would elect to file a complaint with the EEOC instead of proceeding into federal court. EEOC’s workload would dramatically rise and instead of expediting the complaint process, it would become further delayed. Since an investigation would no longer be mandatory, but discretionary on the part of the EEOC, there is the potential that many complaints that normally might be placed into the A or B category (with a possible resultant investigation) might be placed in the C category and dismissed. The result is that the individual complainant would become greatly disadvantaged – lacking sufficient funds to proceed in federal district court and should they elect to appeal to EEOC having to wait a protracted period of time to have their complaint processed or risk having it summarily dismissed. Only through the vehicle of a thorough in-depth impartial investigation of all timely, jurisdictional complaints can justice be served. The investigation of all timely, jurisdictional complaints assists in identifying the root causes not only for discrimination, but also for lack of communication and improper management practices, which result in the filing of additional EEO complaints.
Nor should an administrative hearing be abolished. This step, significantly less costly for complainants than a court trial, is one of the few opportunities complainants have to redress their grievances before a neutral, impartial body. Moreover, it is at the pre-hearing conference that both parties to the dispute and their representatives can obtain documents through the discovery process that are missing from the report of investigation. The report of investigation – the by-product of the agency investigation – serves as the factual foundation used by the administrative judge in rendering a recommended decision.
Another concern in the federal sector reform proposal is that agencies would no longer have the opportunity to dismiss a complaint for procedural reasons. These reasons, currently codified at 29 CFR 1614.107, permit an agency to dismiss a complaint that fails to meet certain procedural requirements (e.g. untimely, failure to cooperate, fails to state a claim, etc.). These reasons for dismissal are grounded in the common sense proposition that statutory timeframes should be set for all legal actions and aggrieved individuals must satisfy certain valid statutory requirements in order to effectively pursue their claim.
EEOC should retain its current complaint processing procedures not only for the reasons cited above, but also because of the marked rise in federal complaints. The increase reported by various organizations, including the General Accounting Office, confirm that over the past ten years complaint caseloads at both the agencies and the EEOC have dramatically risen.[1] It is extremely unlikely that any significant reduction either in the number of complaints filed or complaint processing timeframes can be achieved by abolishing an agency’s right to procedurally dismiss a complaint or by abolishing administrative hearings. Nor will removing the investigative function from agencies and transferring it to an already overworked and understaffed EEOC achieve this goal. In order to significantly reduce both complaint processing time frames and the number of complaints filed, the focus should be on preventing disputes from becoming formal complaints in the first place. This is achieved by dealing directly with their underlying causes. Steps such as more effective training for managers and supervisors, expanding EEOC’s oversight of agencies, providing additional technical assistance to agencies, and clarifying that alternative dispute resolution is mandatory for managers are just a few of the alternatives that should be explored.
[1]See publication titled, Equal Employment Opportunity Discrimination Complaint Caseloads and Underlying Causes Require EEOC’s Sustained Action, published by the U.S. General Accounting Office on March 29, 2000.