MINUTES FOR THE JUNE 30, 1999 MEETING
SPONSOR
Ventris Gibson (Deputy Assistant Secretary, Office of Resolution Management,
U.S. Department of Veterans Affairs) sponsored the
meeting.
EEOC SPEAKER
Carlton Hadden (Acting Director, Office of Federal Operations, Equal Employment Opportunity Commission) spoke on the vision
that EEOC Chairwoman Ida Castro had for the EEO process in the federal sector.
Mr. Hadden stated that rather than pontificating, he wanted to engage the EEO
community. Thus, he made brief introductory remarks, and spent the bulk of his
allotted time answering questions from Council members.
Mr. Hadden explained that Chairwoman Castro is committed to reforming
how business is conducted in the federal sector. She wants to spend more
resources in outreach and providing technical assistance. This was well
received by Luther Santiful (President of the Council), who suggested that EEOC
should be spending less money on processing complaints, and diverting more
funds on initiatives that prevent complaints.
Mr. Hadden stated that EEOC has already started to reach out to other
federal agencies. He mentioned that EEOC is running a pilot program for the
U.S. Department of Commerce to process discrimination complaints that are
related to the census process.
EEOC will be celebrating its thirty-fifth anniversary in 2000. Chairwoman
Castro wants to organize a task force to plan the activities for this important
milestone.
The Office of Management and Budget has cleared the proposed regulations for
the 1614 process. Currently, the EEOC Commissioners are reviewing them. Some
changes have been made to the regulations, and they should be released shortly.
Mr. Hadden mentioned that the National Partnership for Reinventing
Government would form a task force to deal with the data problems identified in
the recent GAO report, which is mentioned in the What’s
New directory of the Council’s webpage.
Jorge Ponce (Vice-Chair of the Council) stated that he was aware that the
National Partnership for Reinventing Government had formed a task force to
review the complaints process in the federal sector. Thus, he said that it made
more sense for EEOC to wait until this task force made its recommendations
before releasing the final regulations to the 1614 process. Moreover, Mr. Ponce
stated that the Council was strongly opposed the proposal to allow
Administrative Judges (AJs) from EEOC issue final decisions on discrimination
complaints. On the other hand, Mr. Ponce indicated that the Council agreed with
some of the proposed changes, and included a set of recommendations in its
position paper (which can be viewed in the Publications directory) to
ameliorate the complaints process.
Mr. Hadden said that Mr. Ponce’s recommendation had been mentioned at the
previous meeting of the President’s Management Council (PMC). Karen Freeman,
from the National Partnership for Reinventing (NPR) Government, stated that
Chairwoman Castro had told the PMC that she was unwilling to have the
inter-agency task force focus on the pending 1614 regulations and did not want
to delay the release of the 1614 regulations. Referring to the 1614
regulations, Ms. Freeman stated that this train had left the station when Ida
Castro became the EEOC Chairwoman. The regulations had taken five years (per
Mr. Hadden) to go through the review process and get to their current state. If
they were stopped to wait for the results of the task force, it’s very unlikely
that they would be issued before the end of this administration. Chairwoman
Castro would like the NPR task forces to focus on dispute prevention, early
dispute resolution, best practices, data collection, and the implementation of
pilots. Mr. Hadden stated that Chairwoman Castro is willing to let the National
Partnership for Reinventing Government’s Task Force suggest new regulations, or
modify existing regulations that would improve the EEO complaint process.
Bonita White (Director, EEO Programs, U.S. Dept. of
Health and Human Services) commented that regulatory revisions designed to
eliminate processing delays (by requiring that complaints shall be processed
within specified time periods) are nullified by the continued failure to
conduct a meaningful examination of the real causes for processing delays.
Specifically, Ms. White indicated that, quite often, EEO Offices are either
seriously understaffed and/or staffed with persons whose primary qualifications for working in EEO is their status as former
complainants. Additionally, many offices are staffed with persons who otherwise
lack the type of technical expertise and analytical skills or preparations
beyond on-the-job training, which would enable them to perform EEO complaints
processing responsibilities more efficiently. She stated her belief that these
circumstances negatively impact on the extent to which EEO
Offices are able to meet required timeframes. Consequently, Ms. White
urged that EEOC and the NPR Task Force would be better served by addressing such
causes of dysfunctionalism, rather than focusing so narrowly on pronouncing
revised timeframes or procedural steps as the panacea.
Mr. Hadden indicated that he was aware of the concern that EEO offices are
used as a place for problem employees. He mentioned that the new Management
Directive addressed the need to have more training for EEO staffs. In addition,
he said that the National Partnership for Reinventing Government provided a
great opportunity to deal with this challenge. Other Council members pointed
out that agencies frequently bypass EEO professionals when filling the top
positions in EEO offices, and, instead, hire employees with backgrounds in
Human Resources. Other times, attorneys with little EEO experience, get the top
positions. These practices create serious performance, quality, and
motivational problems, which have a negative impact in how the EEO offices
function. Delia Johnson (Vice-Chair of the Council) called for increased
empowerment of EEO Directors by having them report to agency heads, like the
1614 regulations call for.
Ms. White also inquired as to how EEOC will be able to meet its
responsibilities to issue final decisions under the revised 1614, since it has
frequently taken anywhere from 12-18 months after a hearing is conducted to
issue recommended decisions. Mr. Hadden responded that EEOC has increased its
staff of attorneys in the Office of Federal Operations and in other offices to
expedite the issuance of decisions.
A question was asked about the status of Management Directive 715. Mr.
Hadden said that it had not been finalized yet.
Several Council members, including Luther Santiful, noted that there had
been a abrupt change in the number of appeal decisions
issued by the EEOC’s Office of Federal Operations (OFO). They indicated that
OFO was not affirming as many decisions in which agencies rejected or modified
findings of discrimination issued by Administrative Judges. Some wondered if
EEOC had issued a new edict after the Notice of Proposed Rulemaking to the 1614
regulations was issued in 1997. Mr. Ponce indicated that the best way to deal
with this concern was for EEOC to publish this data in the annual Federal
Sector Report on EEO Complaints Processing and Appeal by Federal Agencies, or
to let the General Accounting Office deal with it. Currently, this Report does
not have the data on the number of times that OFO upholds agencies when they
(agencies) have overturned or modified AJ decisions with finding of
discrimination. Mr. Ponce indicated that just like GAO and Congress want to
know the number of individuals who have filed EEO complaints, agencies need to
know the number of times that OFO upholds their decisions. Mr. Hadden agreed
that these statistics need to be published, and stated that EEOC had not issued
a new edict to disagree more with agency decisions.
EEOC published on July 12, 1999, at 64 F.R. 37649, that in 1994 and 1996,
there were 80 Administrative Judges’ decision favorable to complainants that
were reversed by the agency, appealed to the Office of Federal Operations, and
for which the Office of Federal Operations issued a decision on the merits. Of
those 80 decision, EEOC upheld the Administrative
Judge in 53 (66%) instances, and upheld the agency in 27 (34%) instances. On
the other hand, EEOC found that in fiscal year 1998, there were 157 decisions
by the Office of Federal Operations reviewing Administrative Judges’ decisions
adverse to agencies. Of those decisions, 135 (86%) affirmed the Administrative
Judge in whole, 8 (5%) reversed in whole or in part, and 14 (9%) modified the
Administrative Judge’s decision. Thus, these findings demonstrate that the
argument made by the Council members about an abrupt change in the number of
OFO decisions that are adverse to agencies has merit.
MISCELLANEOUS
There was a suggestion to include performance standards and position
descriptions in the Council’s webpage. Mr. Ponce said that if Council members
e-mail these documents in an electronic format to eeo@fedcivilrights.org, he will
include them in the Council’s webpage.
Mr. Santiful asked Council members to let him know topics for future
meetings, and asked for volunteers to host these meetings.