March
25, 2003
Hon.
Cari M. Dominguez
Chair
U.S.
Equal Employment Opportunity Commission
1801
L Street, NW
Washington,
DC 20507
Hon.
Paul Steven Miller
Commissioner
U.S.
Equal Employment Opportunity Commission
1801
L Street, NW
Washington,
DC 20507
Hon.
Leslie E. Silverman
Commissioner
U.S.
Equal Employment Opportunity Commission
1801
L Street, NW
Washington,
DC 20507
RE: Proposal
to improve the federal-sector EEO process -
7 steps for improvement
Dear
Chair Dominguez, Commissioners Miller and Silverman:
As
stakeholders in the federal-sector EEO process, we are mindful that the process
is in need of improvement. Improvement
is necessary in order to achieve the important co-existing goals of: 1) adding (or restoring) credibility to the
process; 2) making the process more
timely; and 3) preserving the EEOC’s
primary federal-sector role as the adjudicator of claims of
discrimination. To meet these goals,
various changes will have to take place, including weeding out cases which fail
to state a claim so that limited
resources can be expended on those cases that do. In reviewing the basic construct of the
federal-sector EEO process, we believe that the continuation of the two main
prongs of the process – the report of investigation (ROI) and the hearing
before an administrative judge – is essential to the maintenance of this
process. However, both of these
“prongs” are in need of improvement or reform, along with other reforms of the
process, to make the entire federal-sector EEO process more responsive to the
needs of all parties, and more importantly, to enable the EEOC to fulfill its
mission as the adjudicator of federal-sector claims of discrimination.
Of
late, there has been much discussion of possible ways to reform or improve the
federal-sector EEO process. While no
formal proposals have yet been issued, discussions have ranged from a complete
overhaul of the system, on the one hand, to suggestions that only “tweak” the
process, on the other. Neither of these
extremes serves the interests of all stakeholders. Additionally, a major overhaul of the system would be
time-consuming and likely leave many federal employees, and stakeholder groups,
questioning whether the Equal Employment Opportunity Commission had lost its
commitment to eradicate discrimination in federal employment. Any change that leaves that kind of question
in the minds of federal employees cannot be good for the federal sector as a
whole, nor to the credibility of the EEOC.
It is critical that confidence in the federal-sector process be
strengthened, and the legal and moral power of the EEOC, as the key component
to the eradication of discrimination in the federal workforce, be enhanced and
preserved.
With
that in mind, we stakeholders propose the following changes to the
federal-sector EEO process which can be accomplished quickly, with minimal
disruption yet maximum effect to achieve the goals described above. Each of these proposed changes can be
adopted or implemented separate and apart from each other. Yet, taken together, we believe they
demonstrate the adage that “the whole is greater than the sum of the parts.” In other words, each proposal taken separately
would effect only limited change. Taken
together, however, we believe these proposals will effect major change in the
processing of federal-sector EEO complaints so as to achieve the important
co-existing goals mentioned earlier, to-wit:
1) adding (or restoring) credibility to the process; 2) making the process more timely; and 3) weeding out cases which fail to state a
claim, while preserving the EEOC’s primary federal-sector role as the
adjudicator of claims of discrimination.
THE PROPOSALS:
1. Alternative dispute resolution
(including, but not necessarily limited to, mediation) should be mandatory at
the EEOC hearing stage and for managers at the informal/formal administrative
stages.
There
is no dispute that the changes to Part 1614 brought by the 1999 revisions,
requiring agencies to implement alternative dispute resolution (ADR) processes,
are invaluable and result in the successful resolution of many complaints. But more can, and must, be done. Specifically, we propose that in
addition to the current ADR processes during the counseling and/or
investigation stage, the Commission should mandate alternative dispute
resolution at the hearing stage. In any
given case, even though ADR might have been tried unsuccessfully at the
counseling or investigation stage, there is reason to try ADR yet again once
the case is at the Commission for hearing.
Specifically, by the time the case reaches the Commission for hearing,
many more facts are generally known about the complaint than were known at the
time ADR was first attempted at the agency level. Additionally, at the agency level, the agency is typically
"represented" by the very managers or supervisors against whom the
complaint was lodged. However, at the
hearing stage, agencies are typically represented by counsel who were not
involved in the facts which gave rise to the complaint, and who are
knowledgeable of issues relating to burdens of proof and risks of
litigation. These changed circumstances
at the hearing stage warrant another attempt at alternative dispute
resolution. Experience has shown that a
large percentage of cases that undergo alternative dispute resolution, after a
request for hearing has been submitted, settle.
It
is important that the process be fluid as to when the parties would be required
to participate in ADR at this stage. In
some cases, parties may benefit from ADR early in the hearing process, before
much time and expense are invested in the discovery process, while in other cases
ADR will have best chance at success if it follows discovery. The timing of the ADR effort should be made
on a case-by-case basis by the administrative judge in direct discussion with
the parties. Just as "cookie
cutter" approaches to the litigation of all cases must be avoided, so must
"cookie cutter" approaches to ADR.
Furthermore, agencies must be directed to have present at ADR sessions
agency officials who have true settlement authority.
Parties
in the EEO process are the aggrieved employee and the agency. Management officials are just witnesses in a
complaint. Thus, the voluntariness part
of ADR is fulfilled when an agency designs its own ADR Program and selects
those instances in which ADR would not be appropriate or feasible. For example, some agencies have limited ADR
geographically (if extensive travel would be required), or by issue. However, once an aggrieved employee has
invoked mediation and the complaint meets the requirements sanctioned by the
agency’s ADR program, it is inappropriate for the agency to refuse to participate
in mediation, and ADR should be made mandatory at the counseling or
investigation stage of the administrative process.
2. The EEOC should adopt a uniform
standard for what complaints “state a
claim,” which standard is acceptable to all stakeholders, consistent with law.
A
frequent complaint of the federal-sector EEO process is that complaints which
are frivolous, or lack merit, clog the system.
We stakeholders do not favor the use of a priority case handling system
analogous to the one used by the Commission in private-sector cases. The role of the Commission in the federal
sector is very different from the role the Commission plays in the private
sector. In the private sector, the
Commission acts as the prosecutor.
Given limited resources, prosecutorial discretion is a well-recognized
tool for picking or choosing those violations of law which are meritorious and
have significant impact on the community as to warrant the use of government
resources. However, in the federal
sector, the Commission does not play the role of prosecutor. Rather, the Commission plays the role of
adjudicator. Therefore, the
Commission's role is to determine whether or not discrimination has occurred
and what the remedy for that discrimination shall be.
In
the federal sector, the EEOC’s role is not to determine that some employees are
entitled to have their discrimination remedied, while other employees shall
suffer discrimination without adequate recourse, redress or remedy. The use of a system in the federal sector similar
to the priority charge handling process in the private sector would, of
necessity, result in the Commission saying, for the first time, that some
discrimination in the federal workplace must be tolerated. As stakeholders, we find such result unacceptable.
Given
the role of the Commission as adjudicator, yet recognizing the ever-increasing
scarcity of resources, and further recognizing the validity of the view that
the frivolous cases or those lacking in merit drain resources from meritorious
claims, we stakeholders propose an improvement/reform of the system which
balances these competing interests but preserves the Commission's fundamental
role as the agency charged with responsibility for eradicating discrimination
in federal-sector employment. Specifically,
we propose that the Commission adopt a uniform standard for what states a claim
of employment discrimination. Cases
could be dismissed on this grounds at either the agency stage, before the
complaint is investigated, or after a hearing request is submitted.
At
the agency level, if the complaint is dismissed for failure to state a claim,
the complainant could request review by an administrative judge, rather than
having the dismissal appealed directly to the Office of Federal Operations, as
has been done in the past. The
dismissal would then be reviewed by an administrative judge. The AJ should give the complainant notice as
to what the standard for stating a claim is and give the opportunity to present
evidence establishing a claim. The agency
would be given the opportunity to respond.
The judge would then issue an initial decision which is appealable like
any other decision. To the extent that
the "failure to state a claim" issue was not raised by the agency
prior to the submission of the hearing request, an agency, or administrative
judge sua sponte, should be able to
raise this issue, initiating the same type of procedures described immediately
above. In essence, this is similar to
the MSPB's practice of determining whether it has jurisdiction over an
appeal. (Under MSPB practice, when the
administrative judge, or agency, believes the Board does not have jurisdiction
over an appeal, the judge should issue a show cause notice to the employee requiring
the employee to make a non-frivolous allegation of Board jurisdiction).
It
is our proposal that in order for the complaint to state a claim the plaintiff
must demonstrate “that he/she has suffered an actual injury which involves
either a diminution in pay or benefits or some other materially adverse
consequences effecting the terms, conditions, or privileges of employment or
future employment such that a reasonable trier of fact could conclude that the
employee has suffered objectively tangible harm.” See e.g., Brown v. Brody,
199 F.3d 446, 457 (D.C. Cir. 1999). The
Commission’s own definition of “tangible harm,” found in the Enforcement
Guidance: “Vicarious Employer Liability for Unlawful Harassment by Supervisors”
(June 18, 1999) provides the roadmap for determining tangible harm that could
apply to all forms of discrimination, not just sexual harassment. In harassment cases where there is no
tangible harm, the standard for what states a claim remains unchanged by this
proposal: conduct must be "so objectively offensive as to alter the
'conditions' of the victim's employment."
“The conditions of employment are altered if the harassment culminated
was sufficiently severe or pervasive to create a hostile work environment.” See
generally, Harris v. Forklift Systems, Inc. 510 U.S. 17, 114 S.Ct. 367
(1993); Oncale v. Sundowner Offshore
Services, Inc., 118 S. Ct. 998, 1002 (1998).* For cases of reprisal, a complaint states a
claim where the complainant has engaged in protected activity, there is as
adverse action (an action reasonably likely to deter employees from engaging in
protected activity) and a causal connection between the two. See
e.g., Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000).
If
such uniform standards were adopted, the cases which are frivolous or lacking in
merit would easily and readily be dismissed from the system, leaving the
Commission with more resources to allocate to those cases which do, in fact,
state a claim of illegal employment discrimination. Moreover, adopting the standard will eliminate the potential for
disparate applications in determining which cases warrant the attention of EEOC
resources, owing to individual judge’s or Field Office’s views on what cases
are meritorious, as would occur if the priority case charge handling process is
utilized.
We
firmly believe that this approach, for determining which cases are frivolous or
should not be in the EEO system, is a fairer, more objective system than other
proposals which require EEOC administrative judges or other personnel to make
decisions about the “merits” of cases based on incomplete information and in
the absence of fact-finding hearings.
3. Cases should be assigned to one of
three “litigation tracks” depending upon the complexity and detail of the
issues involved.
A
current complaint of the hearing process is that the Commission all too often
attempts a "cookie cutter" approach to cases which approach does not
consider the actual needs of the parties with respect to discovery and other
pre-hearing processes. This often leads parties to file procedural motions
which are time intensive, costly, and can result in unnecessary adversarial
relations. On the receiving end, these
motions require the judges' time and attention. The EEO process can be improved without eliminating this most
crucial, and often dispositive, fact-finding process.
We
fully endorse the recommendation of the "tripartite" group -- agency
representatives, complainants' representatives and administrative judges, --
that, once a hearing has been requested, cases be separated into three
"litigation tracks." These
"litigation tracks" are not based on, or concerned with, the
"merits" of the case. Rather,
they concern the complexity of the case and the length of time it is expected
to be required to adequately adjudicate the claims involved. The use of "litigation tracks" to
determine the scheduling of cases is not a novel idea. Most courts now utilize "litigation
tracks" to determine the scheduling of cases. The three litigation tracks proposed are fast track, standard
track and complex track.
As
envisioned, the "fast-track" (sometimes likened to small claims
court) is for the relatively simple complaint, or cases where little to no
additional discovery is required. The
standard tracks is for the typical case where the issues are limited and the
parties' needs for discovery to supplement the record is average. The complex track would be reserved for
cases with multiple issues, such as multiple selections, amended complaints,
and class litigation.
Is
important to emphasize that for "litigation tracks" to be meaningful
ways to manage litigation and meaningful predictors of cases scheduling, the
"tracks" cannot be decided unilaterally by the administrative judge. Rather, like in the courts, a brief
"scheduling conference," which can be telephonic, must be held by the
judge with the parties. The judge first
seeks the parties' agreement as to which track the case belongs. If the parties are in agreement, the judge
would normally approve the track and schedule chosen. If the parties cannot agree, the judge may exercise his/her
authority to decide upon the appropriate track. A benefit of involving the parties in the track selection, and
seeking their agreement, is that the parties will determine the track knowing
what discovery must be done. This
should minimize the need for motions for extensions of time and motions to
compel, which are so frequent and consume so much of an administrative judge's
time and attention. In other words,
this "litigation tracks" system should help reduce the "motions
practice" currently pressing the judges.
4. Agency EEO directors must report
directly to the agency head; To ensure compliance with this requirement, in its
annual report to Congress, the EEOC should specifically identify which agencies
are not in compliance with this requirement.
The
Commission’s regulations specifically provide that
“The EEO Director shall be under the
immediate supervision of the agency head.”
29 CFR 1614.102(b)(4).
The MD-110 amplifies this requirement:
Each federal agency
shall appoint a Director of Equal Employment Opportunity (EEO Director), who
shall be under the immediate supervision of the agency head. 29 C.F.R.
§ 1614.102(b)(4). The EEO Director
shall be responsible for the implementation of a continuing affirmative
employment program to promote equal employment opportunity and to identify and
eliminate discriminatory practices and policies. The EEO Director cannot be
placed under the supervision of the agency's Director of Personnel or other
officials responsible for executing and advising on personnel actions.
MD-110, Chp 1.I.
The stakeholders believe that this is
an important requirement because it sends a message to employees and managers
about the importance of, and commitment to, the EEO program within each
agency. Moreover, the EEO Directors'
direct access to agency heads is important because it allows the EEO Directors
to report significant problems, including, but not limited to, managers'
interference in, or lack of cooperation with, the EEO process, directly to the
agency head. It is recognized that the
EEOC only has "moral" authority to enforce this provision. However, in its annual reporting to the
Congress, the EEOC should specifically identify those agencies that are not in
compliance with this regulatory requirement.
The list of agencies not in compliance should also be posted on the
EEOC’s web site. The EEOC should notify
all agencies that its annual report to the Congress will include a statement of
whether or not the agencies are in compliance with EEOC's regulations,
including section 1614.102(b)(4), and that this information will be posted to
the web.
It
should be noted that the direct-report requirement is already a part of EEOC's
regulations. However, a number of
agencies are not in compliance. This
proposal is a means for seeking compliance.
This change or addition to the EEOC's annual report to the Congress will
not impose on any agency any requirements with respect to the grade level or appointment
authority of any EEO Director.
5. Agency counsel must be prohibited from
interfering with the eeo investigation, and the EEOC should adopt minimum
standards for eeo investigations
One
of the complaints about the current federal-sector EEO process is that the
investigation of an agency by itself lacks credibility, akin to "the fox
guarding the chicken coop."
However, all stakeholders recognize that the Report of Investigation is
an invaluable tool in the ultimate settlement or litigation of cases. The importance of the Report of
Investigation cannot be overstated. The
issue is what can be improved to add credibility while not eliminating this
vital tool and depriving complainants and agencies this valuable source of
information. Too often, EEOC
investigations are not controlled by the investigator, but by agency managers
or in-house counsel. Specifically, in
some agencies, managers or counsel inform the investigator who the relevant
witnesses are and which witnesses may be contacted. It is not infrequent for agency counsel to require that all
questions posed by an investigator go through agency counsel, and
concomitantly, all responses from witnesses to the investigator be “vetted”
through agency counsel. The effects of
this interference is obvious. This
interference results is an investigation that is not designed to uncover facts
in an unbiased manner, but rather facts that are shaded by the light most
favorable to the agency. Moreover it is
often these same agency representatives or counsel, who are actively
participating in developing the contours of the investigation, who will then be
called upon to defend the agency at a hearing.
This conflict of interest is manifest.
It is this interference which, more than anything else, gives rise to
the perception and reality that some EEO investigations lack credibility.
29 C.F.R § 1614.108(b), of the
Commissions’s regulations requires that "the agency shall develop an
impartial and appropriate factual record upon which to make findings on the claims
raised by the written complaint."
Further, the MD-110 provides that
VI. Investigator Must Be Unbiased and
Objective
In whatever the mix of fact-finding activity
selected for a particular case, the investigator must be and must maintain the
appearance of being unbiased, objective, and thorough. S/he must be neutral in
his/her approach to factual development. The investigator is not an advocate
for any of the parties or interests and should refrain from developing
allegiances to them.
MD-110,
Chapter 6.
These
provisions cannot be realized if agency managers and/or counsel are permitted
to determine the scope of the investigation notwithstanding the investigator's
judgment. The Commission's regulations
and MD-110 should be changed to clearly proscribe agency actions which
interfere with the independent judgment of the investigator.
Additionally,
the scope and quality of investigations vary widely. Inadequate investigations delay the process, take up
administrative judges’ time to deal with motions for sanctions, and result in
more costly litigation due to the increased need for discovery. To ensure that investigations are as
adequate as possible, the EEOC should adopt minimum standards for EEO
investigations. These standards should
vary depending on the complaint. For
example, the requirements of a non-promotion claim, where there are multiple
comparators in a competitive process, would be different than a claim of sexual
harassment where improper touching was involved. Adoption of minimum standards will also increase employee
confidence in the agency-conducted investigation process.
6. Agencies should be required to issue a
“180-day letter”, informing the employees of their right to immediately request
to hearing.
Another
frequent complaint of the federal-sector EEO process is the length of time it
takes to investigate the complaint.
While agencies are required to complete investigation promptly within
180 days of the filing of the complaint, this is often practiced in the
breach. Although employees are given
the notice of their rights at the time they file a complaint, which notice
informs them that they have a right to request an administrative hearing after
180 days, it appears that few employees understand that once an investigation
has begun they have the right to request an EEOC hearing after 180 days have
elapsed notwithstanding the status of the investigation. In reality, complaints about delays in the
investigation process are often the product of employees not exercising their
rights to forego the remainder of the investigation process in favor of the
hearing. In other words, employees do
not realize that they have some control over the length of time a formal
complaint resides within the agency before coming to the Commission for adjudication. There is a simple cure to this issue, which
cure should significantly reduce complaints about delays in the investigation
process.
The
EEOC should require the issuance of a "180-day" letter. Specifically, on the 181st day after the
filing of a formal complaint, the agency should issue a letter to every
complainant stating that because 180 days have elapsed since the filing of the
complaint the employee has an election to make: The employee can immediately, or any time thereafter but before the
issuance of a Report of Investigation, request a hearing before the EEOC, or
allow the investigation process to continue.
There
is a model for this procedure elsewhere in federal-sector employment
disputes. Specifically, when an
employee files a complaint of reprisal for protected whistleblowing with the
Office of Special Counsel, the OSC has 120 days to investigate the complaint
before the employee may file an individual right of action (IRA) appeal to the
Merit Systems Protection Board. After
the expiration of the 120-day period, the OSC issues a letter to the employee
advising him/her that the employee may file with the MSPB or await further the
OSC’s investigation.
If
this procedure is adopted, the onus of continued delay shifts somewhat to the
employees. While this clearly does not
excuse agency delay in the investigation process, it will make employees
understand they that they are not held "hostage" to the agency’s
untimely investigation process.
Moreover, when the hearing request is submitted and an administrative
judge appointed, the administrative judge can issue appropriate orders to the
agency requiring the prompt production of a Report of Investigation.
The
stakeholders believe that proposals 5 and 6 above, when taken together, will enhance
the credibility and timeliness of the administrative investigation process
while preserving the objective of developing an impartial factual record deemed
important by the EEOC and crucial to the fair adjudication of employee
discrimination complaints.
7. The EEOC must take steps to regain its
prominence as the agency of the United States government responsible for
ensuring compliance with anti-discrimination laws and to become a “change
agent” for those agency cultures where discrimination is tolerated.
A
finding of discrimination should bring adverse consequences to the
discriminator. Consistent with the
spirit of the No Fear Act, which is designed to increase agency responsibility
for acts of discrimination, we propose that EEOC compliance notices require
agencies to provide two additional pieces of information: 1) What action was taken by the agency to
assure that the workplace will be free from discrimination, including, in
particular, whether any disciplinary action was taken against the discriminating
official; and 2) If the agency did not
take disciplinary action against the discriminating official, why not? These additions to the compliance
requirement will serve to deter discrimination. They will also force agencies to better confront the causes of
discrimination within their cultures, hopefully resulting in workplaces where
discrimination is reduced, if not eradicated.
Additionally, individuals who have been found to have engaged in acts of
discrimination should be specifically named in the decision. As of now, all personal information about
the Complainant, including intimate details about emotional damages, is
contained in the Commission’s decisions.
However, all identifying information about the discriminating
supervisors is omitted. Supervisors who
discriminate against federal employees should not be shielded and protected by
the Commission. Additionally, the
Commission should forward all findings of discrimination to the Office of
Special Counsel (OSC) for that office’s consideration of appropriate action
toward the discriminator, consistent with its own jurisdiction to remedy
prohibited personnel practices. Naming
these individuals in the Commission’s decisions, and referral to the OSC, will
act as a deterrent to future discrimination and will assist the Commission in
pressing the message that discrimination will not be tolerated.
CONCLUSION:
The
three goals we have identified are those which, if kept in mind while framing
improvements, will preserve and enhance the integrity and credibility of the
processing of EEO complaints, and perforce the credibility and prestige of the
Commission. We stakeholders are
committed to working with the Commission to seek the improvement of the federal-sector
EEO process. We look forward to a
discussion of these proposals and to working with the Chair, the Commissioners
and the Commission staff to help make the federal-sector EEO process the best
possible to eradicate discrimination from the federal workforce.
In
order to discuss these proposals, we request a meeting with the Chair, and each
of the Commissioners. Our contact
person for scheduling the meeting is Ms. Delia Johnson, Co-President, Council of Federal EEO and Civil Rights
Executives. Ms. Johnson may be reached
at: 202-619-5151. We would appreciate
scheduling this meeting as soon as possible.
Sincerely
(on behalf of the following organizations that have authorized
consent to this letter),
Andrea
E. Brooks, National Officer, Director Leroy
W. Warren, Jr.
Women’s
and Fair Practices Departments Chairman
American Federation of Government
Employees, AFL-CIO NAACP
Federal Task Force
(The
Following stakeholders, in alphabetical order):
American Federation of Government
Employees
Blacks in
Government, Region XI Council
California
Employment Lawyers Association
Council of
Federal EEO and Civil Rights Executives
Delany, Siegel, Zorn & Associates,
Inc.
Florida Employment Lawyers Association
JDG Associates, Inc.
Kator, Parks & Weiser, PLLC
Kalijarvi, Chuzi & Newman
Law Office of Mary Dryovage
Law Office of Kitty Grubb
Metropolitan Washington Employment
Lawyers Association
National Association for the Advancement
of Colored People
NAACP, Federal Sector Task Force
National Congress of Vietnamese Americans
National Employment Lawyers Association
National Employment Lawyers Association,
Federal Rights Committee
Passman & Kaplan, PC.
Workplace Fairness
*The definition of the standards for what states a claim in our proposal is admittedly general, and will need to be expanded upon in any final issuance. However, the proposed standards are a framework for the final definitions.