NAACP FEDERAL SECTOR TASK FORCE
12803
STONECREST DRIVE
SILVER
SPRING, M20904-5236
Website: NAACPFSTF.ORG
September 19, 2003
Honorable Cari M. Dominguez
Chair
U.S. Equal Employment
Opportunity Commission
1801 L Street, NW
Washington, DC 20507
Dear Chair Dominguez:
As you know, the NAACP has
as its primary mission the elimination of all vestiges of racial discrimination
from our Nation. We remember the
statement that you made on the day that you were sworn as EEOC Chair regarding
your goal of working with all organizations who wished “to partner with [you]
in the race to end discrimination in the workplace once and for all.” Consequently, we would like to bring to your
attention several issues that are of substantial concern to our
organization.
MANAGEMENT DIRECTIVE
(MD) 715
● Non-federal groups/individuals have not been given an
opportunity to comment on MD 715.
Indeed, EEOC has not published MD 715 in the Federal Register, to the
best of our knowledge.
● MD 715 makes no mention of minorities and women. Considering that the goal of MD 715 is to
explain the intent of Title VII of the Civil Rights Act of 1964, we refer to 29
C.F.R. 1608.1(b) which clarifies the intent of Title VII: “Congress enacted
Title VII in order to improve the economic and social conditions of minorities
and women by providing equality of opportunity in the work place.” Thus,
to maintain the intent of Congress, we urge EEOC to add reference(s) to
minorities and women to MD 715.
● MD 715 makes no mention of the previous requirement to submit
underrepresentation analyses to EEOC.
However, MD 715 requires the submission of self-assessment studies
regarding barrier analyses. It was precisely the underrepresentation
analyses that served as the catalyst to congressional staffs, internal and
external employee organizations, and agencies’ political and career executives
to take proactive measures to enhance the diversity of their workforces.
Without these statistical analyses, there will not be any agreement regarding
what constitutes a barrier and what does not, and there will not be any
compelling justification for doing anything of substantial substance related to
affirmative action.
● MD 715 is silent about the Supreme Court decision in Adarand
Constructors Inc. v. Pena, 115 S.Ct. 2097 (1995). Consequently, EEOC via
MD-715 has provided no guidance on how to measure underrepresentation for
minorities and women. While MD 715 uses the terms “statistical disparities,”
“virtually absent,” and “negative correlation with race, ethnicity, or gender,”
it offers no definitions of what these terms mean, what benchmarks to compare them
with, or how to measure them.
● MD 715 calls for federal agencies “to accomplish established goals, to
take disability into account in selection decisions where an individual with a
disability is otherwise qualified with or without a reasonable accommodation.”
Nothing similar is provided for minorities and women.
● According to a number of respected and
reliable sources, EEOC has indicated that federal agencies will not have to
prepare reports 2003 and plans for 2004 for minorities, women, and people with
disabilities because EEOC is developing operational instructions and forms
for implementing MD 715. This will create a vacuum for diversity
initiatives in 2003 and 2004, and provide justification and cover to managers
and executives for doing basically nothing related to affirmative action.
TITLE III OF THE NO FEAR ACT (P.L. 107-174)
● Although the No Fear Act will become effective on October 1, 2003, EEOC
has not provided non-federal groups/individuals with an opportunity to submit
comments to EEOC. There has been no posting of a Notice of Proposed Rulemaking
(NPRM) or interim rules in the Federal Register. Considering that it was
the work of non-federal groups that culminated in the passage of the No Fear
Act on May 15, 2002, it is unthinkable that EEOC has failed to get their
feedback.
FEDERAL SECTOR REFORM PROPOSAL
You remain committed to implementing the following reform proposals to the
complaints process in the federal sector, which we feel would be
counterproductive to your goal of eradicating discrimination once and for all:
● Take away the investigative function from federal agencies. EEOC
lacks the resources to take over this function. More importantly,
agencies’ EEO Offices have better access to employees and files, and, thus, are
better able to negotiate settlements at the earliest stages of the complaints
process.
● Take away the right of employees to request an EEOC hearing. EEOC
will be issuing only a decision on the record, and employees dissatisfied with
these decisions will have to appeal them in a U.S. District Court. Of
course, this will provide a system of have’s and have-not’s, as only those
employees in the highest pay brackets will be able to afford the litigation
costs in a U.S. District Court. This also goes against the EEOC mission
to provide an equal opportunity to all complainants.
The NAACP and a coalition of
stakeholders have submitted a 7-step proposal that would do a better job of
improving the complaints process in the federal sector. We are somewhat baffled over your failure
to give adequate consideration to the 7-step reform proposal submitted to and
discussed with you and other EEOC Commissioners. Was the 7-step proposal defective?
Considering that the
implementation date for MD 715 and the No Fear Act is October 1, 2003, we hope
that you postpone this date and provide an opportunity to non-government
organizations to comment on both of these documents.
In closing I want to voice
our GRAVE CONCERNS that the MD-715 released on September 8, 2003, is
retrogressive and it will allow racism to feed on racism, sexism to feed on
sexism, discrimination will become more rampant and widespread, and the victims
of discrimination will have less options on October 1, 2003, than today. It seems that you basically ignore virtually
all of the concerns voiced by stakeholders in public and private dialogue with
you and the other EEOC Commissioners.
This is America and public comment is part of the political process.
Our review of MD-715 shows
that previous weak enforcement provisions in place prior to October 1, 2003,
were basically gutted via MD-715.
MD-715 is in many respects anti-victim, excessively pro-management, and
it has an excessive number of deficiencies, which will frequently be harmful to
the EEOC system, and many complainants with valid complaints.
Regarding our concerns dealing with the federal sector reform
proposal, we are requesting a meeting with you prior to October 1, 2003, to
discuss these concerns. We anxiously
await your response to our requests in a prompt and timely manner. You may reach us at xxx, or via e-mail at LeroyJr1MDFree@msn.com.
Sincerely,
Leroy W. Warren, Jr.
Leroy W. Warren, Jr., Chairman
NAACP Federal Sector Task Force
CC: EEOC Vice Chair Naomi C. Earp, Esq.
EEOC Commissioner Leslie E.
Silverman, Esq.
EEOC Commissioner Paul
Steven Miller, Esq.
Congressman F. James
Sensenbrenner, Jr., Chairman, U.S. House Judiciary Committee
Senator Joseph Lieberman
Congresswoman Shelia Jackson
Lee
Congressman Chris Van Hollen
Congressman Elijah E.
Cummings