Published: January 12, 2004

[Federal Times]

Collaborate To Fix EEOC: Rule Changes Could Make Process More Efficient

By JORGE PONCE

As Federal Times stated in its Nov. 24 editorial, “Weed Out Baseless Complaints,” only 5 percent of decisions from Equal Employment Opportunity Commission administrative judges resulted in findings of discrimination during fiscal 2002. However, there are valid reasons for this outcome.

EEO counselors and mediators have done an outstanding job in settling a record number of complaints. For example, in fiscal 2002 there were 3,162 pre-complaint settlements, 5,888 pre-complaint alternative dispute resolution (ADR) settlements, and 1,331 complaint ADR settlements for a total of 10,381. In addition, the Supreme Court has issued recent decisions that have curtailed the reach of the Americans with Disabilities Act, and this has decreased the number of findings of disability discrimination. Finally, many complainants decide to represent themselves without an attorney at the hearing stage, diminishing their chances of prevailing in this forum. Considering that the majority of complaints that get to the hearing level, after the adoption of 1999 rule changes, are very complex, having an attorney is a great asset.

I agree, however, that the administrative process in the federal sector could be further improved to allow more time to concentrate on the adjudication of meritorious complaints and to provide federal employees with more effective and efficient service. On the other hand, I strongly disagree that the private-sector system should be emulated in the federal sector. The statutory and regulatory context for each is different. While EEOC plays the role of a prosecutor in the private sector, it plays the role of an adjudicator in the federal sector. Because of these differences, I believe that federal agencies should maintain the investigatory function, and complainants should retain the right to request an EEOC hearing. Justice would not be served otherwise.

While mindful of the need to keep pushing the envelope to bring out better outcomes, I offer the following recommendations for changes to the Code of Federal Regulations (CFR):

• Complainants who are uncooperative at any stage of the administrative process should have their complaints dismissed after receiving 15 days’ notice. The code now allows such complaints to be adjudicated if there is enough information to do so. The current practice — having administrative judges remand cases involving uncooperative complainants to agencies for final decisions — is unwarranted. After all, EEOC should be striving to streamline the administrative process at all levels, not just when complaints are at EEOC.

• Add a new basis for dismissal when complaints fail to establish a prima facie case, or when it is impossible for complainants to establish a prima facie case — for example, when complainants allege race discrimination and the only similarly situated employees are of the same race as complainants. Complainants would be safeguarded by the right to appeal to EEOC. Agencies will investigate the complaints in those instances when EEOC, on appeal, overturned the dismissals.

This change would result in considerable savings to agencies, as these complaints would be dismissed prior to the investigative stage. The money saved could be spent on preventive programs.

• Add a new provision to allow the presumptive withdrawal of complaints when complainants, within 30 days of receipt of the investigative file, do not choose between a hearing before an EEOC administrative judge and a final agency decision. When a complainant fails to take action indicating his choice, presumably the complainant, upon reading the investigatory report, has decided to take no further action. The investigative report may contain information the complainant did not have when he filed the complaint and could change his mind about whether he was a victim of discrimination. In such instances, it is a waste of valuable resources to require an agency to issue a final decision.

• Instead of burdening the approximately 125 EEOC administrative judges with added responsibilities, EEOC should delegate to agencies any new authority to dismiss complaints on their merits. This change would allow EEOC to hire more clerical staff, allowing administrative judges to issue more summary judgments that, in the long run, would bring about significant savings to EEOC.

To improve the federal process, EEOC must work cooperatively with agencies and all other stakeholders. It will take a collaborative approach to improve the process.

Jorge Ponce is co-chairman of the Council of Federal EEO and Civil Rights Executives.