Council Meeting
Held
Host: Ms. Delia Johnson
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 then circulated a handout from the Coalition for Effective Change on the Hatch Act.
Applicant-Flow Form
Jorge Ponce, Co-Chair, announced that he had become aware of a recent OPM memo that prohibited federal agencies from collecting applicant flow data – just when EEOC had gained OMB approval for the applicant form that could be used by federal agencies. Mr. Ponce asked OPM and EEOC officials, who were present at this meeting, to share the OPM memo with him so that he could post it on the Council webpage.
He said that this was an ongoing
dispute as EEOC had published a notice in the Federal Register on
Mr. Ponce stated that the collection of applicant data was an important issue with major implications for federal agencies. It is important for agencies to have this data available to allow them to measure the return of investment of attending job fairs, and to determine the diversity of applicant pools and candidate development programs. Yet, they had received conflicting information from EEOC and OPM in the past. For example, back in June 2006, GAO issued a report (GAO-06-214), in which OPM officials indicated that federal agencies collecting data on race, national origin, and gender from applicants would expose them to significant legal risks. On the other hand, EEOC’s MD-715 requires federal agencies to collect this type of information to identify barriers that may be excluding certain groups. The GAO report specifically recommended to EEOC and OPM to resolve “policy disagreements regarding the collection and use of applicant data.”
Mr. Ponce indicated that with the applicant question, what we currently have is an impasse. If everyone agreed to collect this data, it would be collected by Human Resources Offices. Considering that HR Offices get their marching orders from OPM, it would not make one bit of difference if EEOC required EEO offices to collect it either through the MD-715 or the UGESP mandates. Using plain English, at the end of the day, it would very difficult, if not impossible, to collect this data.
Mr. Ponce stated that the purpose of GAO Report 06-214 was to get OPM and EEOC to improve their coordination with each other on civil rights issues. This has not happened. One of the crucial recommendations of the GAO report is for the EEOC Chair and the OPM Director “to work together to improve their collective guidance, feedback, and assistance to other agencies on EEO.” After two years since the report was issued, OPM and EEOC have not listened to GAO’s advice.
Moreover, under EEOC’s management and program accountability element to attain a model EEO program, EEOC mandates agencies ‘to ensure effective coordination between the agency’s EEO programs and related human resource programs.” To use MD-715 terminology, EEOC, by not coordinating with OPM on the applicant question, has created a “barrier” that prevents agencies from attaining a model EEO program.
Mr. Ponce stated that the GAO report makes other vital recommendations that remain unaddressed by EEOC and OPM. For example, it recommends that both agencies adopt “a common format for reports to EEOC under MD-715 and reports to OPM under FEORP.” To date, EEOC uses in the MD-715 report the nine occupational categories that it created in 2004, while OPM relies on the PATCOB categories in the FEORP report. In addition, EEOC uses the decennial Census data for its various statistical analyses in the MD-715 report, while OPM uses the Bureau of Labor Statistics’ Current Population Survey in the FEORP report. These differences make it impossible for EEO and HR professionals to explain statistical imbalances in their workforces to managers and executives, and, more importantly, how to address them.
Mr. Ponce also brought to light another recommendation in the GAO report that remains in limbo. The report recommends for EEOC and OPM to collaborate “to help ensure the EHRI [Enterprise Human Resources Integration] can support agencies in meeting both EEOC and OPM reporting requirements.” EHRI can provide the perfect platform to allow agencies to generate, in a matter of minutes, the approximately twenty-eight tables required for the MD-715 report. Of course, this would allow federal agencies to spend more time to implement EEO initiatives that would prevent discrimination complaints. Today, we are not any nearer to bringing cloture to this issue than we were in 2002 – a six year span.
Mr. Ponce opined that at the end of the day, agencies are not getting the assistance from EEOC and OPM on civil rights issues that the GAO called for in 2006. This could have serious consequences for employees, managers, HR and EEO professionals. In the absence of leadership, it is time for GAO, EEOC, and OPM to rise to the occasion and address these urgent challenges immediately. It would be a great start if either EEOC or OPM would share with Mr. Ponce the applicant memo so that the EEO and HR community could partake in this discussion.
OPM and the No FEAR Act Regulations
Mr. Gary Wahlert, Senior Advisor to the Deputy Associate Director, Center for Workforce Relations and Accountability Policy at OPM, gave an update on the status of the training and reporting obligations under regulations pertaining to Title II of the No FEAR Act.
Mr. Wahlert
reminded everyone that the due date for the annual No FEAR Act report, per 5
CFR 724.302, was
Mr. Wahlert stated that OPM had found out that some smaller federal agencies were not aware of the reporting requirements of Title II of the Act (5 CFR 724.302), while others did not realize that they had to submit a copy of their reports to OPM. This partly explains why OPM received only 49 reports last year, instead of approximately 100 reports.
Mr. Wahlert
pointed out that federal agencies would have to
retrain their employees again on the No FEAR Act by December 2008, in
accordance with 5 CFR 724.203. He
explained that for purposes of counting the 2-year cycle training requirement,
agencies should start counting from the date that they offered the last No FEAR
Act training, rather than the date given in the Act –
Mr. Wahlert
explained that the definition of an employee in the No FEAR Act was “an
individual employed in or under a Federal agency.” See 5 CFR 724.102. Thus, contract employees were not covered by
the Act and did not have to be trained.
Mr. Ponce asked whether foreign nationals employed by the U.S.
Government in foreign countries were covered by the No FEAR Act training
requirement, as the Civil Rights Act of 1991 only offered protections to
employees who were
Mr. Wahlert stated that federal agencies did not take a lot of disciplinary actions against management officials who had been found to have violated the antidiscrimination and whistleblower laws last year. He explained that discipline was defined in the regulations as “any one or a combination of the following actions: reprimand, suspension without pay, reduction in grade or pay, or removal.” See 5 CFR 724.102. While oral admonishments were considered as possible disciplinary actions in the proposed regulation to be reported, OPM decided in the final regulation not to expand the definition of discipline to include unwritten actions such as oral admonishments.
Mr. Wahlert indicated that OPM plans to issue advisory guidelines by September 2008 to incorporate the best practices that agencies may follow when taking disciplinary actions against employees for conduct that is inconsistent with federal antidiscrimination and whistleblower laws. Mr. Ponce indicated that if these advisory guidelines would be based on an OPM review of agencies' discussions of their policies for taking such disciplinary actions and if a review of agencies’ previous reports showed that few disciplinary actions were taken for violations of these laws, he questioned how reliable these guidelines would be.
Mr. Wahlert stated that within 30 days of issuance of the advisory guidelines from OPM, agencies would have to prepare a written statement that showed adoption or rejection of the guidelines. Under the No FEAR Act, these written statements would need to be submitted to Congress, EEOC, DOJ, and OPM – actually, the same distribution as the annual reports. See 5 CFR 724.404. A Council member from the Treasury Department opined that it might be helpful if OPM gave federal agencies an opportunity to review and submit comments on the advisory guidelines. Mr. Wahlert said that he would at least try to give the Council a heads-up when the guidelines were about to be issued.
Pending No FEAR Act Legislation
Presenter Mr. Matthew Fogg -- a renowned U.S. Marshal Service employee who won a landmark $4million Title VII verdict in 1998, president of chapters in Blacks In Government and Federally Employed Women, Inc., and Co-Chair of the No FEAR Coalition -- explained that Congressman Sensenbrenner (R-WI) and Congresswoman Sheila Jackson Lee (D-TX) were instrumental in the passage of the Notification and Federal Employee Antidiscrimination and Retaliation (No FEAR) Act in 2002, after Dr. Marsha Coleman-Adebayo won her discrimination complaint in federal court against the Environmental Protection Agency. Mr. Fogg explained that it was the ultimate and concerted effort by several social justice organizations that protested on Capitol Hill under the No FEAR Coalition banner that generated bipartisan support for passage of the bill signed into law by President Bush in May 2002.
Mr. Fogg expressed his displeasure with the current implementation of the No FEAR Act. For example, he stated that agencies were not reporting to Congress as mandated in the Act and were not being held accountable for delays in paying back the funds to the Judgment Fund after losing in U.S. District Courts. He attributed this nonchalant attitude to the fact that this money came from the taxpayers, rather than from their own pockets. He said that federal agencies were given some leeway regarding paying back these funds within a “reasonable time,” rather than right way. Consequently, Mr. Fogg stated that members of the No FEAR Coalition were working with Congresswoman Sheila Jackson Lee (D-TX) to pass a No FEAR Act II.
Among the proposed provisions of the No FEAR Act II are: 1) posting the names of all management officials in a complaint, not just the name of agency heads; 2) requiring “mandatory” disciplinary actions against management officials who were found guilty of violating the antidiscrimination and whistleblower laws; and, 3) changing the $300,000 cap on compensatory damages to make it possible for prevailing plaintiffs to collect it for each issue – rather than for the entire case. In addition, Mr. Fogg stated that it was unfair to see agencies comply with the disciplinary action requirements of the No FEAR Act by sending managers in finding decisions to sensitivity training and, even worse, often promote them.
Mr. Fogg gave vivid examples of why stronger legislation is needed by mentioning egregious violations in his own case and other cases in which he had represented employees and had favorable adjudications before the Equal Employment Opportunity Commission.
In addition, Congressman Wynn (D-MD) introduced the Congressional Disclosures Protections Act of 2007 (H.R. 4650), which on February 8, 2008 was referred to the House Subcommittee on Federal Workforce, Post Office, and the District of Columbia – chaired by Congressman Danny Davis (D-IL). The major provisions of this bill, which is designed to protect covered whistleblower disclosures to either House of Congress, are: 1) allowing government employees to seek de novo review in federal courts within one year of filing; 2) ensuring government employees are provided counsel, upon request, through the Office of Special Counsel; and, 3) increasing the awards available to victims by re-defining the current 300,000.00 damage cap in Title VII cases and tripling attorney’s fees for successful plaintiffs.
Mr. Fogg
said the No FEAR Coalition is also working in concert with other organizations
to amend the Internal Revenue Code of 1986 to exclude EEO and whistleblower
awards from being taxed. Senator Jeff Bingaman (D-NM) and Congressman John
Lewis (D-GA) have introduced similar bills – S. 1689 and HR 1540. S. 1689 was referred to the Senate Committee
on Finance on
Mr. Fogg
opined that he does not think the EEOC can rule objectively on discrimination
complaints because its employees are part of the U.S. Government and are
directed by the President of the
In closing Mr. Fogg asked the audience to attend and support the NOFEAR Washington Whistleblower week from May 12 -15, 2008 located on the web at http://web.mac.com/kbstreetlevel/iWeb/nofearinstitute/Home.html and to further contact him on any NOFEAR and Title VII issues. Mr. Fogg can be reached on 301-899-8153 or at u.s.marshal@writeme.com.