The following articles were written by Tim Kauffman and published in the Federal Times on August 11, 2003.

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Leaders Debate Whether Process Needs Fresh Reforms

For a year, the Equal Employment Opportunity Commission has been developing a proposal to reform the way federal discrimination complaints are processed. But some experts say there is no need for further reforms when data show steady improvements in how agencies handle employee bias complaints.

EEOC Chairwoman Cari Dominguez has said the system is "overburdened, time-consuming, self-serving and costly" and could learn lessons from how private-sector complaints are handled. And she plans to release a reform proposal before the end of the year, an EEOC spokesman said.

But some officials say EEOC should let the last wave of reforms — which took effect January 2000 — take hold first. Those reforms included requiring agencies to offer early intervention programs, allowing multiple complaints from the same employee to be consolidated, and banning complaints related to the processing of complaints.

Since then, the number of complaints filed has dropped and agencies are completing their investigations and closing cases more quickly.

"One of the things we have been saying is the long-overdue reforms that went into effect in January 2000 would have an impact if people were patient," said Joe Henderson, supervising attorney of the fair practices department at the American Federation of Government Employees, the largest federal employee union.

Henderson and others say that there is room for improvements but that EEOC should focus its efforts on improving the way it handles hearings and appeals — the two areas outside agencies' control.

AFGE and other employee associations are particularly concerned about one proposal that has been circulated that would eliminate agency investigations of employee complaints and hearings before administrative judges. They fear such changes would discourage employees from making discrimination complaints and discourage agencies from settling complaints.

"Considering that federal agencies have improved their complaints process, EEOC should not be looking to reform the complaints process at all," said Jorge Ponce, co-president of the Council of Federal EEO and Civil Rights Executives, an independent group of EEO and civil rights directors from most federal departments and agencies. "Instead, EEOC should be looking at getting its own house in order."

Ponce notes that the number of days to close complaints with a hearing before an EEOC administrative judge climbed from 772 in 2000 to 883 in 2002, while the average processing time for EEOC hearings and appeals also rose.

"Federal agencies have improved their complaints process since the new regulations went into effect . . . whereas the EEOC process has gotten worse," Ponce said.

EEOC said its focus on closing older cases in the system caused processing times for hearings and appeals to rise in 2002.

Both Ponce and Henderson said any reforms should focus on expanding the use of alternative dispute resolution programs, which have helped agencies resolve complaints early in the process. Options include requiring managers to participate at the agency level and requiring ADR at the hearings stage.

EEOC agrees that mediation and other ADR programs should be expanded but sees room for further improvements, said Carlton Hadden, EEOC's director of federal operations.

"There clearly have been some areas that we've done a little bit better on, in terms of the processing time and the number of complaints. But there are areas in which there's much improvement we need to make," Hadden said.

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A KINDER WORKPLACE?

Counseling, Early Intervention Cited for Decline in Bias Complaints

The number of federal employees who filed discrimination complaints against their agencies dropped for the third consecutive year in 2002, due in large part to complaint process reforms and improved workplace relations.

Employees filed 10.6 percent fewer complaints governmentwide in 2002 than they did in 2000, when reforms to the federal complaints process took effect, according to a July 17 report by the Equal Employment Opportunity Commission.

But the number of counseling requests — which is the first step in the complaints process — has fluctuated during the three-year period and was up 5.4 percent overall.

Agencies made less use of alternative dispute resolution (ADR), which attempts to resolve complaints without formal hearings, in 2002 than in previous years. Beginning in January 2000, EEOC required agencies to establish or make available ADR programs at both the pre-complaint and complaint stages, although agencies can decide what cases are suitable for ADR.

Despite the reduction in ADR attempts, agencies that employed the intervention technique reported they resolved disputes more quickly than through the normal EEO process.

"We're pleased to see there are improvements being made, but we recognize we still have a ways to go," said Carlton Hadden, EEOC's director of federal operations.

Resolving Disputes

One of the main factors contributing to the reduction in complaints filed appears to be the increased use in recent years of ADR techniques, such as mediation, and the residual benefits of ADR on workplace relations, officials say.

Agencies made fewer attempts overall to resolve complaints using ADR in 2002, but they continued to report successful outcomes when they did use the process. Sixty-two percent of informal disputes and 59 percent of formal complaints that used ADR were either settled or withdrawn in 2002, according to EEOC data. That compares to the 56 percent of informal disputes and 64 percent of formal complaints that used ADR and were settled in 2001.

Hadden speculated that agencies might not be offering ADR as much now as in previous years because they may feel less compelled over time to comply with EEOC's mandate that agencies establish or offer ADR to employees. Still, he said the benefits to those agencies that do offer it are clear.

The most popular form of ADR — mediation — requires the complaining employee to sit down with the person who is the subject of the complaint. The result, Hadden said, is often improved communication between the two parties that sometimes continues beyond the formal ADR process.

"ADR has really assisted employees and managers in how they communicate one with the other, and that has had a good effect on reducing the number of EEO disputes," Hadden said.

But the use of ADR techniques does not fully explain the difference between the number of employees who report acts of discrimination and those who file formal discrimination complaints.

One area that sometimes gets overlooked by EEOC is the use of trained counselors, who are often an aggrieved employee's first contact with the EEO process, said Delia Johnson, co-president of the Council of Federal EEO and Civil Rights Executives.

Counselors explain to employees their rights and responsibilities in the EEO process and attempt to resolve disputes within 30 days of their initial contact with employees.

In fiscal 2002, counselors resolved 58 percent of the informal disputes that were brought before them outside the ADR process, and 33 percent of the formal complaints that proceeded outside ADR.

"Counseling is not recognized as it should be," Johnson said. "When you have a full-time EEO counselor that's actually an EEO specialist and is able to work with an individual, you then have an opportunity to try to work and resolve these matters."

Good counseling and ADR programs succeed because they help open lines of communication between employees and managers that can not only help resolve immediate disputes but prevent further misunderstandings from becoming full-fledged complaints.

"Where you do have a diverse population, it's often a miscommunication issue," said Doris Hausser, senior adviser to Office of Personnel Management Director Kay Coles James. "Having a resource to smooth the air and get some better communication going can often do a lot of good and save everybody those next steps that become more problematic."

A Better Place To Work?

One reason employees are filing fewer complaints could be that they are happier in their workplaces, some say.

Indeed, many agencies have worked hard to hire diverse work forces and provide employees and managers with training in such areas as sexual harassment, sensitivity and diversity awareness.

The U.S. Postal Service claims to be one of those agencies. It historically accounts for the majority of EEO complaints filed governmentwide each year, and the number of complaints filed this year at the agency is lower than in recent years.

The Postal Service does a better job than most agencies of resolving disputes before they become formal complaints through an ADR program that has been praised by EEOC.

Tony Vegliante, the Postal Service's vice president for labor relations, said the agency's aggressive use of mediation has resulted in a cultural change.

Employees and managers are more open to raising disputes outside the EEO system, he said. Having fewer disputes and complaints to handle allows the agency to focus on more proactive measures, such as employee training and educational programs.

"What you get in a good [ADR] process is it doesn't have to be a formal process," Vegliante said. "People have open lines of communication and can talk more. . . . The initial thrust in ADR was to get to a point where everything didn't have to get to ADR."

The largest-ever survey of federal employees also revealed encouraging attitudes toward openness in federal offices. The 2002 Federal Human Capital Survey, in which OPM surveyed more than 106,000 employees governmentwide, found that most employees give their bosses and agencies high marks for encouraging and promoting a diverse work force.

Almost two-thirds of respondents agreed that their managers, supervisors and team leaders work well with employees of different backgrounds and that workplace diversity is promoted through training, mentoring, recruitment efforts and other programs and policies. More than 56 percent said their immediate supervisors and team leaders are committed to a work force that represents all segments of society.

Forty-four percent of employees agreed that complaints, disputes and grievances in their offices are resolved fairly, while 28 percent of employees disagreed.

The Veterans Affairs Department, which has had a troubled history of resolving EEO disputes, is trying to be more proactive in how it deals with employee-management relations, said James Jones, VA's deputy assistant secretary for resolution management.

EEO staff this year will visit hospitals, regional offices and other VA organizations to gauge employees' perceptions on a variety of work-force relations issues. The results of those surveys then will be shared with managers.

"If you want your employees working on their job rather than being involved in the complaint process, we need to create an environment where they don't have a reason to file complaints," Jones said.

Not everyone believes employees are filing fewer complaints because of improved work environments, however.

Rawle King, president of the Washington chapter of Blacks in Government, said he believes employees are afraid to report instances of abuse because of the administration's push to give managers more control of pay and personnel decisions and to let the private sector compete for more federal jobs.

"A lot of people are scared because their jobs are on the line," King said. "There is uncertainty, and federal employees tend to be risk averse."

One federal human resources official who asked not to be identified said the economy might have some employees thinking twice about raising EEO complaints.

"When the job market gets tight, people don't put themselves at risk. They just hunker down. They've got a job; they're going to keep it," the official said.

Hearings, Appeals Backlogs Down

At the same time agencies are seeing fewer complaints filed and resolving more quickly those that are, EEOC is shrinking its backlog of cases. EEOC addresses cases that are resolved by agencies and appealed by employees or that agencies cannot resolve.

Administrative judges at EEOC cut their pending inventory of hearing requests by 14 percent between fiscal 2001 and 2002, while the commission's Office of Federal Operations cut its backlog of appeals 37 percent in the same time.

The agency established program targets as part of its annual performance-improvement plans to ensure older hearings and appeals were tackled while offices kept up with new cases coming in, said Paula Choate, EEOC's director of field coordination programs.

One result was a 77 percent reduction in appeals older than 500 days in fiscal 2002.

"We've made an effort recently to try to focus on some of the older cases and get those out of the inventory," Choate said.

At the appeals stage, some minor investments in new technology played a major role in expediting case reviews, said Hilda Rodriguez, director of the EEOC's appellate review program.

As late as the mid-1990s, attorneys who are responsible for reviewing appeals requests and writing decisions had to share computers. Each attorney now has his or her own computer, which means each can turn around decisions faster, Rodriguez said.

In addition, the agency invested in a popular software program about a year and a half ago that allows attorneys to type key information into templates and generate written decisions more quickly than writing entire decisions from scratch.

"We already had a group of good working attorneys. We just decided to work smarter," said Robbie Dix, an EEOC appeals division director.

Read EEOC's "Annual Report on the Federal Work Force, Fiscal Year 2002,'' at www.federaltimes.com.

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EEOC To Study Why Some Employees Resist ADR

Employee resistance appears to be one of the biggest stumbling blocks to resolving more discrimination cases earlier in the process.

Agencies offered alternative dispute resolution, which attempts to resolve complaints without formal hearings, to employees in more than 26,000 disputes in fiscal 2002, but employees refused to participate 47 percent of the time, according to data from the Equal Employment Opportunity Commission. By comparison, managers declined only 7 percent of ADR offers.

EEOC did not compile refusal rates for ADR in fiscal 2001, so it is difficult to say whether the percentage of employees and managers declining use of ADR went up or down. But agencies made fewer attempts to resolve complaints using ADR in fiscal 2002 than they did the prior year.

EEOC is working on a study that will look at a variety of issues related to the use of ADR, including the benefits of ADR and the reason some agencies are more successful than others at using it, said Carlton Hadden, the EEOC's director of federal operations.

EEOC also will study trends in ADR usage, including this year's decline in the number of ADR attempts and the high number of employees who rejected offers to participate in ADR, he said.

"We really want to begin to get a handle on why that's going on," he said. EEOC hopes to release the report next year.

Whether employees think the system is impartial appears to play a part in whether they agree to attempt ADR.

The U.S. Postal Service, for example, accounts for about half of the complaints filed governmentwide, but it accounts for nearly three-fourths of all ADR attempts at the pre-complaint stage, according to EEOC data.

One reason for the high acceptance rate could be the Postal Service's exclusive use of third-party mediators, who experts say ensure the process remains objective and independent of the agency.

On the other hand, the Veterans Affairs Department — which uses internal mediators exclusively — has had far less participation from employees. In 2002, 83 percent of employees rejected VA's ADR offers.

James Jones, the VA's deputy assistant secretary for resolution management, said the agency fully supports ADR and hopes to increase its use through improved education and outreach.

"There is a great misunderstanding about what ADR really is," Jones said. "Some people believe ADR is arbitration, where someone else makes a decision or where you have to walk away with an agreement. You don't."

In fact, using ADR usually gives employees a better chance of resolving their complaints than the traditional EEO process, where most judicial rulings favor the agency.

"When [ADR] is used, it's very effective. But increasing the use of it is where work needs to be done," said Romeo Garcia, manager of the ADR program at Lackland Air Force Base in San Antonio.

Some employees resist mediation, the most popular form of ADR, because it requires them to sit face-to-face with the person who is the subject of their complaint, Garcia said.

But once they agree to participate, most employees and managers find that simply sitting across from each other and sharing their feelings helps resolve the underlying complaints, Garcia said.