EEO Executive Council Meeting
Held Tuesday, June 22, 2004
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 name, agency, and position.
She thanked Bonita White, Director, EEO Programs, DHHS, for sponsoring
this meeting. She then turned the
rostrum over to Jorge Ponce, Co-Chair, to address the Council's concerns and
introduce the guest speaker, Naomi C. Earp, Vice Chair of the Equal Employment
Opportunity Commission.
Mr. Jorge Ponce indicated that he wanted to inform Vice Chair Earp of the latest activities of the Council.
He indicated that the Council had written to various Navy officials regarding their linking of personnel and EEO functions. Mr. Ponce stated that the Navy was in violation of the 1614 regulations and Management Directive 110.
He
stated that the Council had sent a letter recently to the Commission outlining
several concerns regarding the Instructions to Management Directive 715. These concerns dealt with the introduction
of nine occupational categories that were at odds with the PATCOB categories
used by the Office of Personnel Management; the seven race/national origin
categories that differed from the ones approved by the Census Bureau and the
Office of Management and Budget; the EEOC’s failure to design a uniform form
for use by federal agencies to collect race/national origin applicant flow
data; and, EEOC’s failure to consult with all federal agencies prior to the
issuance of the final version of these Instructions.
Mr.
Ponce also indicated that the Council was extremely concerned with the fact
that EEOC had allowed contractors to bid on a national call center without
securing the funding from the appropriate Congressional oversight
committee.
Mr.
Ponce spoke about the March 25, 2004 memo issued by the Washington Field Office
that instituted a triage system for processing hearing cases. The system would
identify cases as red, yellow or green.
Red cases would be dismissed, yellow cases would get a summary judgment,
and green would go to Hearing. He said
that the concern of the Council was that complainants with red or yellow cases
would not get an opportunity to enhance the reports of investigations through
the discovery process.
He said
that the Council had become aware that the EEOC’s San Antonio Office was
conducting telephonic hearings after receiving approximately 500 hearing
requests from the Washington Field Office.
Considering that EEOC Administrative Judges based some of their
decisions on credibility determinations, it would be impossible to make these
determinations over the telephone and, thus, would be greatly unfair to
complainants.
In
closing, he spoke that the underlining motive for the previous reforms was an
attempt by EEOC to bridge the differences between the private and federal
sectors. However, he re-stated the
Council position that the roles of the federal and the private sectors were
different. He said that he was certain
that Vice Chair Earp, considering that she had been an EEO manager in the
federal sector, would understand the subtle, but significant, differences
between the two.
VICE-CHAIR
NAOMI C. EARP
She
stated that she would try to address some of the issues raised by Mr.
Ponce. She started off by talking about
how the Commission works. Basically she
said that all power rests with the Chair.
She said she could only react to what is put on her desk. The Chair is the Chief Administrative
Officer. She explained that some EEOC
Chairs like to share their managerial roles and rule by consensus, while others
like doing everything by themselves.
When
she was an EEO professional in the federal sector, she had more leverage that
she does now serving as the EEOC Vice Chair.
Hers is only one out of five votes.
Sometimes, EEOC proposals have 50% that is good, 50% that is bad, but
the EEOC Commissioners have to vote up or down on the entire proposals.
She
stated that she has attempted to bring an understanding of the federal sector
to EEOC. She indicated that the federal sector was only 10% of the Commission's
workload. She further stated that she
generally supports the Chair's reform of the federal sector, but that the devil
was in the details. Nevertheless, she
said that the federal sector reform was on hold until after the 2004
Presidential election. If President Bush were re-elected, the reform proposal
would be addressed immediately.
She
stated that a review of the Annual Report on the Federal Work Force for FY
2003 indicated that there had been improvements in all stages of the
federal sector processing, except in the formal complaint processing which was
controlled by federal agencies.
She
pinpointed the main problem on investigations – specifically on the
procurement, quality of investigations, and the accurate framing of
issues. GSA procurement procedures
seemed to be a problem. She stated that
the goal of EEOC would be how to reform the federal sector process without having
to issue a Notice of Proposed Rulemaking.
She said she became aware recently that federal agencies using the GSA
schedule for their investigations could not charge a complaint that had more
than nine issues. This works against
cases of hostile work environment, etc. She indicated that a representative
from GSA wanted to come and speak to the Council on these issues at a later
date.
Vice-Chair
then allowed three of her guest speakers to make remarks on several topics.
Elizabeth
Lytle,
Director of Special Projects and Regional Manager for the Arlington Office for
the investigative firm of Delaney, Siegel, Zorn and Associates, Inc., spoke on
the changes to 1614 that went into effect in 1999, primarily those that allowed
amendments to ongoing investigations.
Despite the additional work that these amendments create for
investigators, the GSA schedule has not made any provisions for the extra
expenses in conducting these investigations.
Ms. Lytle stated that she thinks that GSA will address this issue shortly
because of the EEOC Vice Chair’s involvement and leadership.
She
stated that the quality of acceptance letters has a huge impact on the conduct
of investigations and on the writing of final agency decisions. She would like to see the development of
uniform standards for acceptance letters.
She noted that some agencies have trouble in differentiating between
continuing violations and discrete acts of discrimination. According to the Supreme Court’s ruling in National
Railroad Passenger Corporation v. Morgan (No. 00-1614), 536 U.S. 101
(2002), the continuing violation theory may not be applied to allow employees
to avoid the time limitation periods when they allege only discrete acts of
discrimination. On the other hand, the
Court stated that claims of hostile environment harassment are suitable for the
application of the continuing violation theory because they involve related
acts of discrimination perpetrated over an extended period of time. Thus, terminations, denials of promotions,
refusals to hire, performance appraisals, and disciplinary actions may be
considered discrete acts of discrimination.
If viewed this way, dismissal of untimely claims should increase and
investigation backlogs should decrease.
VICE
CHAIR NAOMI EARP
She introduced Betty Hickey and Dan Determan from the Office of Federal Operations (OFO).
Betty
indicated that the Commission did not like to target specific agencies, but
there were about 5 agencies that had consistently a high number of complaints
every year. OFO is working with these agencies, as well as others, under the
Relationship Management Project, to provide ongoing, specialized technical
assistance to identify and address possible causes. The evaluation of these efforts is under way and OFO anticipates
sharing results in a report that will be posted in the EEOC Web site as soon as
it becomes available.
Betty
agreed with the Vice Chair’s comment that unfortunately there was a disconnect
between policy makers and policy
implementers of MD 715. She noted that
the Relationship Management Pilot and ongoing technical assistance demonstrated
that OFO was proactive in partnering with agencies to accomplish the MD 715
requirements, rather than asking agencies to just get it done.
She
mentioned that the next meeting of the EEO Directors would be held on January
20th at EEOC.
Dan
Determan explained that EEOC had developed a new electronic document management
system for Hearing complaint files that can be downloaded to Adobe
Acrobat. This will be a time saver and
cost cutter as reports of investigations will be scanned, rather than
copied. Agencies will either download
the reports of investigations into a secured online location, or they will burn
a CD and send it to EEOC. Agencies wishing
to join the E-File Project should contact him at 202 663-4531.
He
mentioned that EEOC is finalizing the ADR Best Practices Report, as well as
another one that deals with the timing and cost of investigations.
VICE-CHAIR
NAOMI EARP
She responded to the numerous concerns that Jorge Ponce previously raised.
MD-715
Instructions. She stated that the data
collection pieces of this document had incorporated the policy issues in use in
the private sector.
Uniform
Form for Collection of RNO Data from Applicants. She said that this issue could be solved easily.
National
Call Center. She stated that EEOC would
have one shortly.
Situations
at the EEOC’s Washington Field Office and the San Antonio Office. She indicated that the reforms instituted at
these two offices were nothing more than managers managing their backlogs.
American Idol
Competition. She stated that she was
offended when the three black females were rated in the bottom three slots of
the competition, and Elton John called it discrimination. She thinks that discrimination is very
difficult to prove because the interpretation of the law has changed since
1964. She thought that the reason why
the black females were voted in the lower categories was because
thirteen-year-old girls voted in mass for the contestants of their liking. Therefore, you can't call everything
discrimination because of perception.
She stated that discrimination is often difficult to prove and people
should be very careful before they allege racism.
Jomoya
Mobutu from
the Department of Veterans Affairs. The
VA group has developed a software for constructing worktables that will be
shared with other organizations. Also,
he mentioned that the "applicant flow form" from the Department of
the Interior was still authorized by the Office of Management and Budget for
one more year.
Mr.
Ponce said that one of the main reasons why the MD 715 Instructions had caused such
turmoil in the federal sector was because they were modeled after the private
sector. He repeated again that the
mandates of the federal and private sectors were different.
He agreed with the Vice Chair that the issuance by EEOC of a uniform form to collect applicant flow data could be easily solved. All that was needed was for EEOC to display some leadership.
Regarding the national call center, Mr. Ponce said that before EEOC could get one, it had to get funds from the appropriate oversight committee.
With respect to the situations at the EEOC’s Washington Field Office and the San Antonio Offices, Mr. Ponce strongly disagreed with the Vice Chair’s assessment. He indicated that practices that these two field offices had implemented were the equivalent of changes in the regulations, which required the utilization of the Notice of Proposed Rulemaking process.
Mr. Ponce said that he defended Elton John’s statement in reference to the American Idol competition. He indicated that just like employees see an EEO Counselor when they feel that they have been discriminated against, Elton John was in the right to invoke discrimination to describe irregularities in the way the contestants were judged.
She
responded to Mr. Ponce’s claims on the situations in the Washington Field
Office and the San Antonio Office by saying that EEOC has one of the smallest
budgets in the federal sector.
She would like EEO Directors to operate independently from HR Offices and have more authority. If they had it, the birthday cake complaints would never get to EEOC. They would be handled through the mediation process.
Among others, Ramon Suris Fernandez (EEO Director, Centers for Medicare & Medicaid Services, DHHS) conveyed his concern that deleting the requirements to address manifest imbalances and conspicuous absence underrepresentation and matching Civilian Labor Force representation may have an adverse impact on the hiring of Hispanics and individuals with disabilities – the two groups that remain severely underrepresented governmentwide. Also, following Mr. Ponce’s comments on the regulatory requirement for the EEO Director to directly report to the agency head and EEOC MD-110’s prohibition to have the EEO Director under the supervision of the Personnel Director, Mr. Suris Fern«ndez agreed with Mr. Ponce that the EEO and HR offices should be kept separate from each other. Compliance with federal law and adherence to established EEOC directives is paramount to the effective/efficient implementation of the agency’s EEO program.
Charles Miller (Director, EEO, Defense Contract Management Agency, DoD) indicated that EEO offices have worked with HR offices and will continue to collaborate with HR offices. However, he also felt that the two should be kept separate for both complaints and affirmative employment. He observed that EEOC categorizes the Federal Sector professionals, i.e., those in the GS-260 series, as “Compliance Officers.” However, almost all HR offices no longer want to be perceived as having a compliance officer approach. Therefore, he argued that there are many aspects of the MD-715 programs that will only get results in terms of correcting unrepresentative workforce participation rates if they were managed from an office that was result-oriented and had a management accountability and compliance mindset.
Michael
Gautier (EEO, U.S. Army) indicated that EEOC and OPM should talk to each other
about the RNO and occupational categories.
Unlike the Department of Veterans Affairs, DoD would require extensive
system changes and a large amount of additional resources since the DoD HR
systems, like those in other agencies, are commercial products.
Betty
Hickey (OFO, EEOC) stated that EEOC had met with OPM representatives this week
and she was optimistic that they will reach a solution to the occupational
categories issue very soon. In the mean
time, she urged agencies to continue the conversion of the PATCOB categories to
the nine occupational categories.
Delia
Johnson explained that the statistics included in the letter that the EEOC
Chair sent to her agency head were wrong.
She suggested that the EEOC Chair should allow the EEO Directors to
review these letters at least five days before they are released.
Delia
Johnson and Jorge Ponce gave Vice Chair Earp a plaque of appreciation for
addressing the Council.