Council Meeting

Held Wednesday, November 30, 2011

Host: Ms. Delia J. Johnson

INTRODUCTION

Ms. Delia L. Johnson, Co-Chair of the Council and Director, Office of Civil Rights for International Broadcasting Bureau, opened the meeting with a few remarks and then asked the attendees to give their names, agencies, and positions.

Jorge Ponce, Council’s Co-Chair, introduced the guest speaker, EEOC Commissioner Chai Feldblum. Mr. Ponce indicated that during her Senate confirmation hearing in November 2009, House Majority Leader Steny Hoyer introduced her, and indicated that she had “unsurpassed judicial temperament.” On March 27, 2010, President Obama appointed her as an EEOC Commissioner through a recess appointment. She was confirmed by the Senate in December 2010 for a term ending on July 1, 2013.

Mr. Ponce emphasized to Commissioner Feldblum that the Council’s no. 1 priority was to get EEOC to issue guidance by FY 2012 on the interference by Offices of General Counsel in the processing of discrimination in the federal sector. The Council conducted a survey on this matter in October 2003, shared the results with EEOC, and has been waiting since 2003 for EEOC to address this issue. He asked Commissioner Feldblum for her assistance, and she agreed to follow up on it.

EEOC Commissioner Chai Feldblum

Commissioner Feldblum focused her remarks on the federal sector side at EEOC. She stated that EEOC will release a new strategic plan in January 2012 – as soon as the Office of Management and Budget clears it.

Regarding pending issues, Commissioner Feldblum highlighted the following three: 1) the lack of categorization in hearings and appeals based on their complexity. If agreed to in the strategic plan, EEOC will develop some categorizations for these categories; 2) the need to develop a strategic approach to civil rights, as EEOC has fewer resources which forces the Commission to be more strategic on what it looks at. She recommended looking at what the priorities are in civil rights in the federal sector, looking and analyzing a “few” of these trends, and picking a small group of federal agencies to address the barriers found; and, 3) do a more comprehensive 1614 regulations re-write. She agreed with attorney Ernest Hadley’s position that the pending revised 1614 regulations were like putting a Band-Aid on a hemorrhaging patient. She told EEOC Chair Jacqueline A. Berrien several months earlier that these revised 1614 regulations could not be all that the Commission did to enhance the processing of discrimination complaints in the federal sector, and she asked that a sentence be added to the regulatory agenda published by the EEOC that expressly stipulated that “EEOC will continue to review the federal sector process.” Commissioner Feldblum is personally committed to seeing a new and comprehensive NPRM for the 1614 regulations issued before her term is over in July 2013. But the first step has to be the issuance of the revised 1614 regulations in 2012 before embarking on major surgery to the process. She asked Council members to e-mail her at chai.feldblum@eeoc.gov by March 2012 with suggested changes that they wanted to the administrative system to process discrimination complaints in the federal sector. She emphasized that Commissioners Ishimaru’s and Griffin’s reports on improving the processing of discrimination complaints in the federal sector already include lots of useful information to start with, and indeed those reports should be posted on the EEOC webpage.

A Council member from the Nuclear Regulatory Commission indicated that it takes time and effort to implement changes in the federal sector. Therefore, why concentrate on the Band-Aid changes, instead of on the major surgery? Commissioner Feldblum responded that she understood the frustration of EEO practitioners because just having a Band-Aid can sometimes be distracting to having the major surgery. But one has to start somewhere, although she would much better prefer having a high-powered IV to keep the patient hydrated.

Commissioner Feldblum stated that the goal of all civil rights programs was to empower employees with an environment that was free of discrimination. Co-Chair Ponce asked for her reaction to the fact that an average year has 95% no finding and only 5% finding decisions. Commissioner Feldblum responded that these data don’t capture the positive effect of pre-complaint settlements, and that EEOC should change how it reports the current data to highlight more those pre-complaint and formal-stage settlements. Focusing on the no finding/finding decisions only paints a narrow picture that detractors use to argue that there is not a problem of discrimination, when there unfortunately still is. Co-Chair Ponce stated that this conflict is referred often by detractors who question the impartiality of the current process as “the fox guarding the hen house.” Co-Chair Johnson indicated that just because EEOC issues no-finding decisions, this does not mean that federal agencies will not take corrective actions on issues that are not related to discrimination. She said that they do in most instances.

Commissioner Feldblum suggested that it would be educational for EEOC to host a public meeting in which the Commission actually heard a few federal sector cases before issuing orders in those cases. That would reinforce for the public that the Commission is an adjudicatory body with regard to the federal sector.

A Council member from the USDA asked for Commissioner Feldblum’s reaction to an incident whereby an African-American supervisor told a White employee that “he had gotten on his last black nerve.” That began an interesting dialogue, as Commissioner Feldblum facilitated a discussion with the audience regarding what was the claimed discrimination here. Commissioner Feldblum ultimately suggested that perhaps EEOC could issue further guidance on what constitutes discrimination or illegal harassment under Title VII, as compared to what are simply basic civility rules for treating employees with respect and dignity – even if not actionable harassment.

Commissioner Feldblum stated that EEO does not mean treating everyone the same, because people are different to begin with. One must learn about diversity, and how different people react differently based on their cultural and ethnic backgrounds. She noted that we may sometimes need a translation code to interpret behaviors because of our differences. Co-Chair Ponce stated that ombudsmen were the perfect candidates to provide this translation code for behaviors that were not EEO-related – like those pertaining to bullying.

A Council member from the Federal Deposit Insurance Corporation referred to Co-Chair Ponce’s remarks about the unfairness perception of the EEO process. He indicated that this was not a perception, but it was a fact. He referred to the practice of issuing supplemental to Reports of Investigation, and how this was done consistently to make managers look good and win at all costs. This Council member identified another problem with the current practice to allow Complainants to file an unlimited number of complaints without providing a benchmark for when enough was enough. Commissioner Feldblum said that perhaps a solution to the latter challenge could be found if the EEOC were to begin a categorization process, and then a low-level categorization could be assigned to those complaints.

A Council member from Treasury complained about a recent practice at EEOC to change the MD-715 “instructions” without consulting first with federal agencies.

A Council member from the Air Force recommended the institutionalization of barrier analysis training in coming years – given the current austere budgetary environment. He indicated that the barrier analysis training provided by EEOC costs an average of $1,000, so the Air Force is developing its own training at a much cheaper price. He suggested that EEOC should consider giving free online training on barrier analysis – like OPM has done with HR-related topics. Commissioner Feldblum indicated that, in her opinion, the only paid training offered by EEOC should be the EXCEL Conference, and everything else should be offered for free. However, she said that she was sure that the EEOC’s Chief Financial Officer would disagree with her on that and that she was probably in the minority with her fellow EEOC Commissioners on this issue.

Co-Chair Ponce asked Commissioner Feldblum if President Obama won re-election in 2012 and nominated her for a position to serve in the U.S. Supreme Court, whether she would accept it. Commissioner Feldblum laughed, and she responded that this would be the “only” position that she would accept in the public sector. Otherwise, her current plan is to return to her work as a Professor of Law at Georgetown University Law Center in 2013. But she expects to continue to work on EEOC issues from that position.

A Council member Treasury indicated that her agency had invested in a state-of-the-art automated system that generated at the push of a button all the MD-715 tables and other statistical information throughout the year. Using the EEOC’s FIRES system would be a step backward for Treasury. They have reached out to EEOC on this matter, but they were not listening. EEOC is modifying the MD-715 instructions to fit the FIRES requirements – without consulting federal agencies. Commissioner Feldblum indicated that it seemed to make more sense to have FIRES limited to federal agencies that lack or have inferior automated systems to generate statistical information. She suggested that the Council should schedule a meeting with the Office of Federal Operations, and to come with a proposed solution, not just a statement of the problem. Commissioner Feldblum noted that she understood that the data people at OFO were trying to create a new and better system that could be centralized. But there should be some way to accommodate agencies that were already ahead of the curve and not make them use a less effective system. Co-Chairs Ponce and Johnson agreed to reach out to OFO for a December 2011 meeting with the Council’s Executive Board.

JJA Consultants

JJA Consultants sponsors the “premier” diversity conference, The Diversity Solutions Best Practices Conference, now in its eleventh year. The company has over 25 years of experience in addressing diversity and inclusion issues. Its staff looks at diversity beyond EEO, and focuses on accountability, recruitment, retention, succession planning, and compliance.

Dr. Johnson A. Edosomwan, Chairman and Senior Executive Consultant of the firm, indicated that he recommends the development of a 10-year diversity plan. Co-Chair Ponce asked Dr. Edosomwan for his reaction to the recent call by OPM to have federal agencies develop 1-year diversity plans. Dr. Edosomwan responded that a 1-year diversity plan was a mistake – just like it’s wrong a 1-year budget with 7 continuing resolutions.

Dr. Edosomwan stated that it is essential to have all stakeholders engaged when preparing a diversity plan and in developing metrics to determine who is going to do what, in what timeframes, how much is it going to cost you, and how are you going to measure success.

Among the performance job elements to measure diversity, Dr. Edosomwan highlighted several possibilities including: 1) mentoring (have supervisors choose ten employees of different backgrounds to mentor for three years, and measure how many got to promoted to GS-14 through SES); 2) how many employees of different backgrounds has your agency retained because of managers’ initiatives to eliminate barriers); and, 3) how many diversity projects did employees participate in, and what were the results.

For additional information in the Washington, DC area about JJA Consultants, you may call the headquarters office in Fairfax at 703-359-5969, or e-mail the Senior Vice President and General Manager, Wanda Savage-Moore at wsavagemoore@jjaconsultants.com, or browse its webpage at http://www.jjaconsultants.com.