MINUTES OF THE SEPTEMBER 2003 COUNCIL OF FEDERAL EEO AND CIVIL RIGHTS EXECUTIVES

The meeting was held on September 23, 2003, at the Smithsonian Institution.  Era Marshall, Director, Equal Employment & Minority Affairs at the Smithsonian Institutions, hosted the meeting.

Council Chairs Delia Johnson and Jorge Ponce welcomed everyone and outlined the agenda.

Ms. Johnson introduced Mona Papillon, an attorney from the Office of Legal Counsel at the Equal Employment Opportunity Commission (EEOC).  Ms. Papillon gave an update of the No Fear Act (Public Law 107-174), which was signed by President Bush on May 15, 2002. 

During her presentation, Ms. Papillon referred to a memorandum that EEOC sent to agency heads on August 5, 2003, on the interim final rules of the No Fear Act.  She pointed out that this memorandum was not available for public dissemination. Because of the time constraints associated with the October 1, 2003 implementation date of the No Fear Act, EEOC had decided to promulgate the interim rules without providing an opportunity for public comment. 

Ms Papillon indicated that EEOC would not be able to publish the interim rules by October 1, 2003.  She explained that the EEOC Commissioners still had to vote on its adoption, and afterwards, the Office of Management and Budget had up to 90 days to review them.  However, EEOC is trying to convince OMB to grant an expedited review of the interim rules, rather than take the allotted 90 days.  

The interim rules will be published as final rules in the Federal Register only after OMB approves them.  It will be at this time that EEOC invites the public to comment.  Ms. Papillon said that EEOC could adopt some of the changes received from the public. 

Mr. Ponce pointed out that if EEOC was so pressed for time, it should have allowed all the stakeholders to comment simultaneously.  Otherwise, Mr. Ponce indicated that you could have a scenario in which federal agencies spent their staffing and financial resources to collect the requested information and modify their statistical databases, only to have to change them again and again.

Ms. Papillon indicated that EEOC was responsible only for the implementation of Title III (Equal Employment Opportunity Complaint Data Disclosure) of the No Fear Act.  The Office of Personnel Management (OPM) was responsible for developing the guidelines for Titles I (General Provisions) and II (Federal Employment Discrimination and Retaliation) of the Act.  Specifically, Title II covers the reimbursement requirement.  However, she said that, to her knowledge, OPM and the Departments of Justice and Treasury had only held one meeting so far.
EEOC tried to mirror the reporting requirements of the 462 reports when developing those for the No Fear Act.  The major difference between the two is that the Form 462 reporting requirements are annual, while those of the No Fear Act are quarterly.  Agencies should keep in mind that they will be held accountable for the requirements of Act, even if the final rules have not been published in the Federal Register by October 1, 2003.  The first reporting requirement will occur thirty calendar days after December 31, 2003 -- the end of the first quarter. 

A Council member asked if EEOC would allow agencies to use their 462 filings to satisfy the previous 5-year requirement of the Act.  Ms. Papillon responded that EEOC was studying this suggestion.  However, she indicated that EEOC was concerned there were slight differences between the 462 reporting requirements and those of the No Fear Act.

Another Council member asked whether EEOC was the agency that would enforce compliance requirement with the No Fear Act.  Ms. Papillon indicated that this was a huge loophole of the Act, as it did not mention an enforcing agency.

Ms. Papillon said that EEOC had received many comments requesting that a uniform format and layout be developed for agencies to submit their data.  EEOC had decided in the interim final rules against this approach.  Several Council members indicated that EEOC should reconsider this decision, as the intent of the Act was to facilitate the comparison of statistical data among federal agencies.  Ms. Papillon indicated that although EEOC agreed with these suggestions, EEOC lacked the funds to develop a standard form. 

Ms. Papillon explained that agencies will have to put a hyperlink on their agencies’ webpages to the No Fear Act data.  EEOC will be required to do the same, but with the appeal data.  In addition to posting this data, agencies will also have to submit it to EEOC.

Ms. Papillon gave her e-mail address (mona.papillon@eeoc.gov) if Council members needed additional information on Title III of the Act.

Mr. Ponce requested that Ms. Papillon inform her EEOC counterparts about the urgent need, when there is a short due date, to have EEOC rely more on electronic-mail transmission of its documents to agencies, and less on the regular mail. He explained that after 9-11, regular mail is delayed regularly by up two weeks, which cuts down on the time that agencies have available to respond to EEOC on proposed regulations and guidelines.

Next, Ms. Johnson introduced Marty Levy (currently a consultant for the International Broadcasting Bureau), who gave an overview of Management Directive (MD) 715.  You can view Mr. Levy’s presentation, by clicking on the MD 715 Summary file.

Following are some of the concerns that Mr. Levy raised regarding MD 715:

Rather than having federal agencies retool their statistical databases to include the fourteen EEO occupation codes, OPM should develop a CPDF crosswalk file.  Otherwise, there will be inconsistencies as agencies code their databases differently.

EEOC is developing revised race/national origin categories.  No one knows what this means.  Hopefully, EEOC will abide by the categories included in OMB Directive No. 15.

EEOC will require agencies to collect race/national origin data from applicants.  OPM should develop one form, instead of asking agencies developing their own.  This will expedite the OMB approval process of the form.

EEOC will require agencies to evaluate their record regarding the employment of people with disabilities with other agencies, since there are no CLF benchmarks like those used for minorities and women.  This will be problematic as agencies have different agencies.  It would be preferable to use a governtmentwide benchmark.

Ms. Johnson said that she had received a request recently to expand the membership of the Council to EEO practitioners, whereas others wanted to keep it just for EEO Directors.   Cheryl Prejean Greaux (Civil Rights Director, Rural Housing Service, U.S. Dept. of Agriculture) indicated that Council membership should be kept only for EEO Directors or their designees because of space limitations of meeting rooms, as well to maintain the leverage and importance that the Council has obtained. 

Ms. Johnson mentioned that the Coalition for Effective Change (CEC) had issued a Performance Management report, and they wanted the Council to consider being one of the organizations to sign it.

This recent Performance Management paper includes recommendations on dealing with poor performers and on linking employee compensation to individual and organizational performance.  They are very aware of performance measures and what has been said, "one size does not fit all."  In the recommendations they have indicated they want to consider allowing employees to be involved in the creation and implementation of new approaches to performance management; communicate to employees how their jobs and specific work objectives relate to agency missions and goals; periodically review the training pool available for managers; modify the reduction in force procedures to place any employee with two or more performance ratings below fully successful within the last 3 years on a separate and lower retention register from other career employees with higher ratings; require specific retention standards only when an individual performance is not meeting expectations; and the last one is the establishment of a one year period during which a second failure to meet a retention standard can be the bases of removal without another opportunity to improve.

Ms. Johnson indicated that the next EEO Directors meeting will be held at EEOC on Tuesday, October 14, and that MD-715 will be discussed at this meeting.