Council of Federal EEO and Civil Rights Executives

September 24, 2002 Meeting

Minutes

Jorge Ponce (Council Co-Chair) hosted the meeting at the U.S. Department of Commerce on Tuesday, September 24, 2002.

Delia Johnson (Council Co-Chair) provided welcoming remarks to all, and welcomed the new members.

Mr. Ponce introduced the guest speaker, Mr. Don Names, Director, Special Service Staff at EEOC. Mr. Names provided an overview of ADR. He stated that EEOC felt that complaints were taking too long and that ADR was a good tool to reduce the backlog. Since January 1, 2000, EEOC has required agencies to make ADR available to employees at the informal and formal levels. EEOC Chair Dominguez has made ADR a cornerstone of her five-part program. ADR is an essential management tool. It improves communication and provides control. All managers should be trained in ADR. EEOC has videos from various agencies (i.e., United States Postal Service, Veterans Affairs) for you to view and see what ADR looks like. Also, EEOC has a CD-ROM available on complaints entitled “Sailing through the Process”. Mr. Ponce suggested that EEOC should make a CD-ROM on ADR. Mr. Names thought this was a good suggestion and would take it back to EEOC. However, he indicated that there would be cost and technical challenges associated with this proposal.

Mr. Names explained that any ADR program should further the agency’s mission and have four core principles: voluntariness, neutrality, confidentiality, and enforceability. He indicated that aggrieved employees could not file an EEO complaint if ADR was not offered. Moreover, Mr. Names listed the benefits of using ADR as: 1) may improve morale; 2) saves time and resources; 3) settlements do not require an admission of liability; 4) are more durable than decision issued by a court;

5) parties to the disputes have control over the resolution; and, 6) early and mutually satisfactory resolution of workplace disputes.

Mr. Ponce stressed that the parties in the EEO process were the aggrieved employee and the agency. Management officials were just witnesses in a complaint. Thus, the voluntariness part of ADR was fulfilled when an agency designed its own ADR Program and selected those instances in which ADR would not be appropriate or feasible. For example, some agencies have limited ADR geographically (if extensive travel would be required), or by issue. Mr. Ponce pointed out that once an aggrieved employee invoked mediation and the complaint met the requirements sanctioned by the agency’s ADR program, it was inappropriate for the agency to refuse to participate in mediation. To do so would make a mockery of the agency’s ADR program. Mr. Ponce indicated that Chair Dominguez emphatically responded, when she addressed the Council at its September 14, 2001 meeting, that ADR was mandatory for managers in those instances described in the previous sentence. [See the Minutes901 file]. Mr. Ponce also stated that he had polled thirty Council members in Oct. 2001 on the issue of whether ADR was mandatory or voluntary for managers, and fourteen had responded that it was voluntary in their agencies. Mr. Ponce said that he shared this data with EEOC in November 2001, with the hope that EEOC would clarify this issue once and for all after it rolled out its mediation webpage. However, Mr. Names did not provide a definite answer to this question. He replied that guidance was provided in Chapter 3 of MD 110, and in the EEOC’s Questions and Answers file at http://www.eeoc.gov. Mr. Names stated that EEOC was working on a fuller statement regarding ADR.

To illustrate the point he was making, Mr. Ponce used the following example. Imagine that Agency X was setting up its ADR Program. After consulting with the unions, the Office of General Counsel, the Office of Human Resources, the Office of Labor Relations, and the Office of Civil Rights, Agency X finally had an ADR Program that was officially sanctioned. This ADR Program offered mediation to employees in all complaints/grievances except in class actions, nonselections, and cases outside the United States. Agency X spent $500,000 during the first year to train its managers and employees on the merits of using mediation. Employee Y approached an EEO Counselor to allege that the Director of Security had discriminated against her because of her national origin when he reassigned her from headquarters in Washington, DC, to a bureau in Rockville, Maryland. The EEO Counselor, in accordance with the 1614 regulations and after checking whether Employee Y’s grievance fell within the permissible instances in the Agency’s ADR Program when mediation was appropriate, offered Employee Y the option between mediation or the traditional EEO counseling. Employee Y invoked mediation. After the EEO Counselor informed the Director of Security that Employee Y has elected mediation for her complaint, the Director of Security refused to participate in mediation. Mr. Ponce stated that in situations like this one, a management official above the Director of Security had to send another executive to the mediation table. In other words, he stated that mediation that fell within the permissible parameters of Agency X’s ADR Program was mandatory for the agency. He made the distinction that while the agency did not have to force the Director of Security to participate in mediation, it was obliged to send another management official with authority to settle the charge on behalf of the agency. If Agency X chose the status quo and denied Employee Y the option to mediate her complaint, the Agency’s ADR Program would become dysfunctional and ineffective. It wouldn’t be long before employees alleged that the mediation process was a management’s tool and would not use it in the future. The initial $500,000 investment to market Agency X’s ADR Program would have been wasted, and complaints would be litigated through the lengthy and costly traditional EEO process. Mr. Ponce emphasized that these were the cases when EEOC had to step up to plate and be the final arbiter on the appropriateness of Agency X’s ADR Program and issue a final decision on whether mediation had to go on. Mr. Ponce said that this was what leadership was all about, and stated that agencies were in dire need of guidance and enforcement by EEOC on this issue. Rather than spend its time and resources on developing “reform proposals,” Mr. Ponce indicated that EEOC had to take care of some unfinished business.

Mr. Names was able to provide some statistics. Currently, 93 out of 95 reporting agencies have ADR programs. According to the FY 2001 462 report (Annual Report on the Federal Work Force), 31% of informal contacts opted to go to ADR, 11% of formal contacts opted to go to ADR. 96% of all reporting agencies use a form of mediation. There are many benefits to ADR, such as early resolution. There were 70,900 ADR cases completed, with 11, 661 settlements. There was a 60% resolution rate during FY 2001. Chapter 3 of the MD 110 covers ADR. EEOC has its own ADR policy statement listed as Appendix H of MD 110.

The Council Co-Chairs will meet with Chair Dominguez to discuss the controversial EEOC Federal Sector Reform Proposal on October 11, 2002.

There was discussion on how every agency calculates settlements differently. Further discussion on how some agencies calculates the dollar amount. Roslyn Brown (IRS) stated that the IRS has completed a benchmark study on the cost benefits of using ADR. Ms. Brown agreed to conduct a briefing to the Council in the near future.

Mr. Ponce stated the Council’s webpage has reached over 40,000 hits. Also, under the What’s New Directory, you can find the discussion presented at the recent Excel Conference “Challenges faced by EEO Directors”.

Mr. Marc Brenman, Senior Policy Advisor at the Department of Transportation, Office of Civil Rights, addressed the Council. Mr. Brenman stated that DOT is currently looking at the structure of its EEO, diversity and civil rights programs. They are looking at possible consolidation. Among the issues that they are looking at are the following: should EEO offices have their own attorneys? In-house versus contracting out, part-time counselors versus full-time counselor, proactive versus reactive and generalist versus specialist. He asked for Council members to provide their recommendations. To view the questions, go to the DOT Questions 2002 file. Mr. Ponce agreed to put information on the Council’s web page regarding this effort.

Ms. Johnson introduced Ms. Brenda Campbell – President/Chief Executive Officer for Unlimited Service Systems Management and Consultants, Inc. She can provide service in Strategic Planning, Tracking Systems, Affirmative Employment, etc. Ms. Campbell had information packages available for those interested, which you can also view at http://www.ussmc.com. Ms. Campbell can be reached at 301 499-5762, or at Campbell@ussmc.com.

Mr. Ponce indicated that Council members were welcomed to form subcommittees to look at various EEO issues. He indicated that this was the reason for creating the Council in 1993.

There were suggestions from the Council to have future meetings on best practices series on ADR, AEP and investigations, Title VI issues, and Diversity versus Equal Opportunity. There was additional discussion on the definition of Diversity and how it relates to EEO.

The meeting was adjourned.