Council Meeting
Held
Host: Ms. Bonita White
Introduction
Ms. Delia L. Johnson, Co-Chair 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. She thanked Bonita White, Director, EEO Programs, DHHS, for sponsoring this meeting.
Announcements
Ms. Johnson announced the
Council’s holiday cruise that will take place on the Spirit of Washington, on
Jorge Ponce, Council’s Co-Chair,
announced the release of GAO-09-110, “Human Capital: Diversity in the Federal
SES and Processes for Selecting New Executives” on
Mr. Ponce also announced that on
MicroPact
AJ Frickman, Commercial and Federal Sales Manager for MicroPact, gave an update on E-versity – a software program used to generate and manipulate statistical information, and that is used mostly to issue the MD-715 tables. It was originally developed for MD-713 and 714, and subsequently modified for MD-715 at no additional cost to former clients. E-versity relies on three HR files – two dealing with personnel actions and one with applicant files. There is a new feature that will be rolled out at the end of the calendar year to highlight in bold those cells where there are deficiencies or barriers.
Mr. Ponce asked whether E-versity tracked applicant-flow data. Mr. Frickman said that while E-versity did not, other systems, like Monster Quick Hire, tracked this data. E-versity can load these data dumps from third-party systems and use them to generate reports.
Mr. Ponce asked what’s the average price for E-versity. Mr. Frickman said that the average price for a 7000-employee agency would be around $35,000 to $40,000 for the first year – this includes $7,000 for the license fee.
MD-715 Report
At the October 28, 2008 meeting, Lori Grant, from EEOC, provided the following list of changes to the MD-715 reports: 1) jurisdiction - update the list of agencies that are covered; 2) submission - require electronic filing of Part G and workforce data tables by November 30; 3) submission - permit electronic filing of MD-715 report with electronic signature; 4) Part D - provide address, e-mail address, and phone number of EEO Director; 5) Part G - require the submission of an expanded Part G (website location of agency’s reasonable accommodation procedures and strategic plan); 6) Part I - include a trigger tracker chart showing the agency’s schedule for conducting barrier analysis by topic: initiated, completed, and projected; 7) all tables - change grades to salary ranges; 8) Tables A/B-1 - delete non-appropriated fund category; 9) Tables A/B 3-1 - add a subtotal for supervisors about “Other” and include relevant CLF; 10) Tables A/B 4-5 - replace with new salary table; 11) Tables A/B 6 - include salary ranges for each mission critical occupation; 12) Tables A/B 8-14 - combine into one table, include a Total row for New Hires, and expand types of separations; 13) Tables A/B 13 - expand types of awards; 14) new table - adverse action/disciplinary action; 15) B Tables: - change the proxy for people with targeted disabilities to people without targeted disabilities; and, 16) OPM survey - develop EEO survey questions for agencies to use during odd years.
Milton Belardo, Chair of the National Council of Hispanic Employment Program Managers, expressed concern and dismay at the proposed changes. Specifically, Mr. Belardo was very vociferous at the October 28, 2008 meeting citing barriers such as the unreasonable timeframe to submit data tables; the fact that not all agencies have the capabilities of reprogramming their data programs to salary ranges; the impact of conducting trend analysis or “glass ceiling” analysis; and, the making of MD 715 reporting one of the most onerous and tedious procedures in the Federal Government, with no real return-on-investment.
Mr.
Belardo reminded all those present about the major concerns of the Interagency
Work Group on MD 715 Reform. For example,
he brought up the use of different benchmarks by OPM and EEOC; the use of the
OPM
Lori
Grant came back in December 2008 to give a part two to the proposed changes to the
preparation of MD-715 reports. Rather
than a presentation, Ms. Grant opted for a question and answer session.
Nevertheless, she emphasized that the changes that she discussed at the
Following are Ms. Grant’s responses to the various questions that were asked: 1) the applicant-flow form is still with the Office of Management and Budget. The point of contact is Barbara Dougherty at 202 663-4770; 2) the status of the proposed changes has not changed as a result of the EEOC move to the new location. However, none of the changes will apply to the FY 2008 MD-715 reports; only to the FY 2009 MD-715 reports; 3) requests of extensions for the FY 2008 MD-715 reports should be sent to her at lori.grant@eeoc.gov, or to 202 663-4616 (although she prefers e-mail requests); 3) EPCA (EEO Performance Compliance Assessment) final reports will be mailed next week; 4) free technical assistance on the preparation of MD-715 reports should be forwarded to her; 5) looking at combining or elimination some MD-715 tables, and generating other tables for agencies with alternative pay systems; and, 6) the more information provided on executive summaries of MD-715 reports, the better for EEOC to react to. Lisa Guilmette, from EEOC, disagreed. She indicated that in some instances, agency executives only read the executive summary of the MD-715 report. Thus, it’s better to be brief rather than to write twenty pages.
Ms. Johnson indicated that many agencies go through the motion of preparing the most recent MD-715 report, only to find out that when they are through, it’s time to prepare next year’s report. This does not leave a lot of time to carry out proactive initiatives throughout the year.
2009 EXCEL Conference
Veta Hurst, Acting Branch Chief, Affirmative Employment Division, Federal Sector Programs at EEOC, asked Council members to give her feedback on the training that they considered most helpful at prior EXCEL conferences. The next EXCEL conference is planned for next summer in New Orleans, LA. She has received comments that indicate that the training provided was too basic. Her preference is to have workshops that are more interactive – like the ones provided at the Hispanic Summit at the last EXCEL conference with a panel of experts. .
Ms. Hurst indicated that EEOC is looking to host a 3-4 hr. post-conference workshop at EXCEL just to discuss MD-715. Several Council members stated that they preferred that this session be held during the EXCEL conference for budgetary reasons. Ms. Johnson indicated that there could be an MD-715 track at EXCEL, while a Council member suggested that EEOC could provide/sell a videotape of the MD-715 track. Some of the topics suggested for other post-conference workshops were: the strategic plan for EEO, the business case for MD-715, metrics for success, and the state of the agency EEO briefing.
Mr. Ponce stated that he would like for speakers at the plenary session to make room for a brief question and answer session.
Era Marshall, Director of the Office of Equal Employment and Minority Affairs at the Smithsonian Institution, suggested that there should be a more robust training on barrier analysis and develop a template for conducting them. Another Council member stated that barrier-analysis training at the last EXCEL conference was too elementary, as it concentrated too much on triggers.
A Council member indicated that EEOC should provide a training on best-practices extrapolated from previous MD-715 reports.
Bonita White, Director, EEO Programs, DHHS, suggested that Ms. Hurst should get a copy of the discussion points on this topic from previous EEO Directors meetings. Ms. Hurst indicated that she had copies of the notes, but asked for further clarification of some of the suggestions offered. Ms. White and other Council members volunteered to work with Ms. Hurst as needed.
A Council member asked whether EEOC has considered having MD-715 webinars. Ms. Hurst agreed to forward this recommendation to Dexter Brooks, Acting Director, Federal Sector Programs at EEOC.
Ms. Hurst asked Council members to e-mail other suggestions to veta.hurst@eeoc.gov, or at 202 663-4498.
ADAAA
The
Americans with Disabilities Act Amendments Act (ADAAA) of 2008 becomes
effective on January 1, 2009. Gary Gilbert, former Supervisory AJ for the
EEOC's Baltimore District Office and now in private practice, gave a lecture on
this law. He indicated that EEOC does not have a definite date yet on
when it will be issuing new guidance on the ADAAA. In terms of asking for
extensions, this is the best time to ask EEOC for them because of the
challenges that it is facing with the move to the new location.
While federal agencies may opt to wait for this to happen before revising their
own policies, Mr. Gilbert suggested that agencies should consider issuing a
broadcast e-mail to all their employees to inform them of the ADAAA
provisions. Law trumps regulations and guidelines, and the ADAAA
provisions will be controlling if your agency is sued on or after January 1,
2009. Waiting for EEOC to issue the ADAAA guidelines will not be an acceptable
defense in a legal proceeding.
Mr. Gilbert indicated that the ADAAA, in terms of potential litigation, is the
most significant legislation enacted since the Americans with Disabilities Act
of 1990. He made the observation that in terms of disability law, it was
Republican Presidents who had enacted them – President Nixon signed the
Rehabilitation Act of 1973 after he had vetoed it twice; the Americans with
Disabilities Act was passed by Bush 41; and the ADAAA by Bush 43.
Mr. Gilbert explained that over 40% of disability-related cases were taken out by courts prior to the ADAAA, and more than 50% of these cases in federal courts and at EEOC hearings dealt with whether a complainant had a disability – rather than whether the person suffered discrimination, as Congress intended.
Mr. Gilbert stated that the ADAAA did not expand its reach to cover pregnancy.
To view Mr. Gilbert’s brief ADAAA presentation, click on ADAAA Brief Gilbert. To view the expanded ADAAA presentation that Mr. Gilbert prepared with Mr. Ernest Hadley, click on ADAAA Expanded Gilbert. You may contact Mr. Gilbert at Gary@GGilbertlaw.com, and Mr. Hadley at echadley@capecod.net.
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