Council Meeting

Held Wednesday, May 30, 2007

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 V. White, Director, EEO Programs at HHS, for sponsoring this meeting.

 

GAO REPORT

 

Gerard Burke, Senior Analyst for the U.S. Government Accountability Office, gave an update on a study that GAO is conducting of the EEO complaint process for federal employees under section 206(a) of the No FEAR Act (Public Law 107-174).  GAO has just completed a Phase I web survey encompassing sixteen of the largest federal agencies, and obtained 62 responses out of the 63 EEO practitioners contacted by Mr. Burke. He attributed the outstanding response rate to the brevity of the survey (i.e., it had three questions) and interest in the subject. GAO soon will deploy the Phase II web survey and plans to interview the Council’s Co-Chairs later in its review.

 

A Council member asked Mr. Burke to identify the target audience of this report, and he responded that the target audience will include -- but not be limited to -- professionals who are closely involved with the federal EEO complaint process, such as EEO Directors, EEO investigators, EEO counselors, EEO specialists, EEOC administrative judges, EEO appellate attorneys, plaintiff’s attorneys, agency attorneys, executives from the Council of Federal EEO and Civil Rights, and officials from organizations with a similar focus on diversity related issues.

 

Mr. Burke clarified that the upcoming report will look at factors that impede the timely processing of EEO complaints, and the recommendations to improve the process.

 

The target date for releasing this GAO report is December 2007.

 

Office of Federal Operations (OFO) Presentation

 

Carlton Hadden, OFO Director, was the invited guest speaker.  Mr. Hadden proceeded to give an update on various questions that Council members had e-mailed him previously, as well as other issues of interest to EEO professionals.

 

Annual Report on the Federal Work Force for FY 2006

 

Mr. Hadden indicated that EEOC plans to mail the report to federal agencies within the next weeks.   One of the highlights of the report is the fact that federal agencies have decreased the time to complete investigations to 186 days – just six short of the 180-day statutory timeframe, and a 22% decrease from the FY-2005 completion rate (237 days).  The EEOC Chair will mail a CD-ROM version of the FY06 report to agency heads and EEO Directors.

 

Future Location of EEOC

 

Mr. Hadden stated that EEOC will be relocating its headquarters to 131 M St., NE, by June 2008.

 

Enterprise Human Resources Integration (EHRI)  

 

EEOC and OPM officials have met and discussed several issues, including EHRI.

 

A Council member asked what were the pending issues with EHRI.  Mr. Hadden responded that they deal with access to the CPDF data, the sharing of the cost to generate the MD-715 tables, and who would be responsible for billing and collecting the fees from the agencies. 

 

Workforce Initiatives

 

Mr. Hadden noted that the Office of Federal Operations developed and implemented two internal OFO groups designed to identify solutions for federal workforce issues – one focused on People with Targeted Disabilities and the other on Hispanics.  Subsequently, with the appointment of EEOC Commissioner Christine Griffin and her effort in developing and championing EEOC’s LEAD (Leadership for the Employment of Americans with Disabilities)  Initiative (http://www.eeoc.gov/initiatives/lead/index.html), the work of that group and OFO’s workgroup was coordinated. 

 

In response to a concern as to why there had not been a similar sponsorship by an EEOC Commissioner for workforce issues concerning Hispanics, Mr. Hadden noted that each EEOC Commissioner chooses the initiatives that he or she wants to get involved with.

 

E-Race Initiative

 

Mr. Hadden noted that as part of EEOC’s E-RACE (Eradicating Racism and Colorism from Employment) Initiative (http://www.eeoc.gov/initiatives/e-race/index.html), EEOC will examine its training modules to ensure that they adequately cover the prohibitions on race and color discrimination. He also noted that this was one part of a broader strategy by EEOC to ensure that workplaces are free of race and color discrimination, including federal agencies. He further stated that the federal sector EEO community had a critical role to play in this effort and that there would be more forthcoming on that.

 

OGC Intrusion In the EEO Process

 

Mr. Hadden stated that this policy document is pending  at the EEOC. In response to a question as to why this was not an enforcement issue that EEOC staff resolved, Mr. Hadden noted that policy is determined by EEOC’s Commissioners and that this particular  issue surfaced several months ago as a policy issue.

 

Considering that EEOC has discussed this policy several times over the past few years, multiple Council members shared examples as to why this is such an important issue.

Bonita V. White mentioned that HHS Operating Division Complaint Managers have issued boilerplate correspondence to witnesses in discrimination complaints informing them that the role of the OGC should be limited.  However, managers who are witnesses and/or identified as Responsible Management Officials are generally interested in having OGC staff represent them, review their affidavits and be present when they are interviewed by EEO investigators.  Recently, OGC has communicated to HHS complaint managers, who had previously interpreted the same language in EEOC Management Directive 110 to limit OGC involvement, to justify a more expansive role.  Specifically, HHS OGC’s position is that OGC involvement helps to expedite the EEO process, ensures more complete development of the record, etc.  The EEO Community and OGC perspectives on the level of involvement are significantly divergent.   Thus, Ms. White indicated the urgency in having EEOC release a position paper on this issue immediately. 

A Council member indicated that attorneys, who are classified in the 905 series, work in the EEO Office at the State Dept. Thus, OGC attorneys only get involved in EEO complaints at the EEOC hearings. 

 

Delia Johnson opined that when EEO and OGC briefed agency heads on civil rights issues, it was the OGC staff that carried the day.

 

A Council member from the Dept. of Education indicated that some OGC attorneys refer to management officials who are named in EEO complaints as their clients.  Mr. Hadden stated that EEOC can address issues like this when they are brought to OFO’s attention.

 

EEO Program Compliance (EPA) Assessments

 

OFO staff will approach the Council Co-Chairs shortly about the most effective methodology that EEOC can utilize to measure the efforts of federal agencies to meet the model EEO program required by MD-715.

 

OPM Survey  

 

A Council member from the U.S. Geological Survey pointed out that the OPM survey has some EEO-related questions in it.  Mr. Hadden indicated that the OPM survey is part of the President’s Management Agenda.

 

The Council member asked Mr. Hadden if EEOC would be willing to raise with OPM the question of how OPM and EEOC might coordinate in regard to the information sought by EEO-related questions. Mr. Hadden indicated he would be willing to raise that issue.

 

Supreme Court Decision 

 

A Council member asked about the reaction of EEOC to the recent Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc.  Mr. Hadden indicated that it was under discussion at EEOC, and that it would be a timely topic to have further discussions on at the upcoming quarterly meeting of EEO Directors, scheduled for July 17, 2007.

 

1614 Regulations  

 

Jorge Ponce, Council Co-Chair, asked whether EEOC had intentions to revise the 29 CFR 1614 regulations dealing with the complaints process.  He stated that EEOC had included this item in past semiannual regulatory agendas.  Mr. Hadden indicated that this was possible.

 

Report on the Federal Sector Task Force

 

Mr. Hadden stated that he and EEOC Commissioner Christine Griffin were drafting a report on federal sector investigations which would be submitted to the EEOC Chair shortly.

 

Jorge Ponce asked whether EEOC should defer to GAO on this matter and suspend any regulatory change in federal sector EEO matters, considering that GAO officials have announced the issuance of its report in December 2007.  Mr. Hadden responded that the two were separate reports and that, while it was possible that the Commissioners would opt to delay changes to the federal EEO process, it was the prerogative of the Commissioners as to when they wanted to make regulatory changes to the federal sector EEO process.

 

Changes to MD-110 and MD-715

 

A Council member asked whether EEOC would consider changing the reporting requirement of EEO Directors in MD-110 and 715.  Mr. Hadden responded that regulatory changes would be within the province of the EEOC Commissioners.

 

Another Council member asked whether EEOC was revising the MD-715 reporting requirements for the smaller agencies.  Mr. Hadden indicated that EEOC was looking at this issue currently.  

 

Jorge Ponce pointed out that at a previous EEOC meeting on MD-715, there was a recommendation for EEOC to drop its nine occupational categories in favor of the OPM’s PATCOB categories.  Thus, he wondered whether EEOC was considering this recommendation.  Mr. Hadden responded that if this was still a concern to some agencies, EEOC would revisit it

 

Mandatory ADR

 

A Council member asked whether ADR was mandatory.  Jorge Ponce indicated that this was an item that was included in Part G of MD-715, but it was not a policy requirement by EEOC.  Mr. Hadden stated that some federal agencies preferred to make ADR voluntary.  

 

Ms. White pointed out that at HHS, managers are required to participate in ADR if the employees invoked it.  Nevertheless, the challenge for HHS is that complainants do not elect ADR as frequently as would be desirable to capture increased usage statistics.

 

A Council member suggested that EEOC should issue a policy statement that mandates usage of ADR, and make agency heads responsible for its implementation.

 

Another Council member pointed out that he is aware of EEO Counselors who, while  mentioning ADR to complainants, continue with the counseling functions before complainants have made a decision on whether they have chosen to proceed with the EEO counseling or ADR.  Thus, he suggested that EEO Counselors should give complainants at least two business days to make this election, and the EEO Counselor should wait for this decision to be made.  He pointed out that complainants are the ones who should make the election, not the EEO Counselors. 

 

Timeliness of Final Agency Decisions

 

A Council member complained that some EEOC Administrative Judges were late in issuing final orders, and federal agencies were blamed unjustly for issuing untimely  merit decisions.  Mr. Hadden pointed out that the Annual Report on the Federal Work Force already distinguished between merit final actions with AJ decisions and merit final actions without AJ decisions. 

 

EEOC Guidance on Care-Givers

 

A Council member asked whether others have had a chance to review the draft, EEOC guidance on discrimination against care-givers.  Mr. Hadden indicated that the Office of Legal Counsel had prepared this guidance, and he agreed to make it an agenda item at the next EEO Directors meeting on July 17, 2007.

 

EEOC Terminology

 

Jorge Ponce suggested that EEOC should adopt the more common term “summary judgment” rather than “final orders of AJ dismissals” in its Annual Report on the Federal Work Force.  Mr. Hadden agreed to consult the OFO staff regarding this recommendation.