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Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan

Written Testimony of Patricia Randle
American Federation of Government Employees
AFL-CIO

Good morning Chair Berrien and Commissioners. I am pleased to be here today to discuss what I and many others feel is a truly important area of concern for many Federal employees, EEOC’s Strategic Enforcement Plan. Work place discrimination is indeed still a problem that many Federal employees struggle with daily. Many employees struggle to find a way to cope with what they believe is a wrong, and a violation of their rights, but see no clear way of addressing the problem.

The American Federation of Government Employees (AFGE) is the largest federal employee union representing 600,000 federal and D.C. government workers nationwide and overseas. AFGE provides legal representation, legislative advocacy, technical expertise and informational services to workers in virtually all functions of government. AFGE has been nationally affiliated with the AFL-CIO since AFGE was founded in 1932. Under the leadership of the National Vice President for Women’s and Fair Practices, the EEO Attorneys in the Fair Practices Department, legal interns, and legal assistants represent AFGE members across the country on civil, human, women, and workers’ rights issues in the Federal government, the District of Columbia government, as well as the Federation at large. We believe EEOC should focus on the following enforcement priorities as part of its strategic goals for FY 2012–2016.

Strategic Objective – Combat employment discrimination through strategic law enforcement: Recommendations for Federal Government Sector EEO Process Enforcement Priorities

1. Eliminate the inherent conflict of interest in the Federal sector.

The first step in the formal complaint process for Federal employees requires the aggrieved party to be dependent upon the employing Agency to find itself guilty of the allegation and to prove that the raised allegation is true. This creates a conflict of interest. Problems are made worse in the investigative stage of the federal sector process since Agency Counsel not only advises and represents management witnesses, they also advise the EEO office as well. This is an improper influence on the conduct and scope of the investigation.

AFGE suggests the use of a pilot project with two or three agencies to determine what impact, if any, occurs when the EEOC conducts investigations. We are aware of the practicalities of the situation and the historical tendency of Congress to underfund the EEOC when it is given new responsibilities. Therefore, AFGE recommends:

  1. The task of investigating EEO complaints in the Federal sector be reassigned from the employing agency to the EEOC; this will avoid inherent conflicts of interest;
  2. A separate unit within EEOC be established to hear Federal EEO complaints; and
  3. Sufficient funding be allocated to hire adequate staff to perform investigations and process cases in a timely manner in both the public and private sectors.

We see little downside from the agencies directly paying their investigative budget to the EEOC to insure adequate funding for the investigations EEOC performs. AFGE will continue its efforts to increase funding for pilot projects and the overall budget of the EEOC.

2. Develop a triage of cases pending at the Office of Federal Operations to enable more timely decision of appeals

A two-year pilot program can be used to assess the ability to issue decisions within a specified period of time depending on the facts and remedial relief at issue.

This pilot program can delineate case assignments based upon a review of the case file and determine which “tier” a case should be assigned. The first tier might reflect the need for expedited review of cases where the issues being challenged relate only to cases involving terminations where reinstatement is a requested remedy. OFO should expedite its review of these appeals. The second tier might include final agency decisions in lieu of a hearing or the review of cases where the agencies appeal AJ decisions in favor of complainants. Complainants should not have to wait two to four years to resolve discrimination cases when they have been adjudicated in their favor. A third tier might involve review of cases challenging AJ decisions on summary judgment. Level Four cases might involve “complex” cases that cannot be completed within 180 days.

In FY 2010, agencies appealed only 2.0% of all Administrative Judge decisions; however, they appealed 30.8% of the cases where an Administrative Judge found discrimination. http://www.eeoc.gov/federal/reports/fsp2010/index.cfm#IC1

Illustration of AFGE cases and length of time on appeal

Cp Brief Filed OFO Decision Received Special Notes
Active 11/23/2007 8/16/2011 Almost 4 years
2/23/2011 Waiting 15 months
12/8/2011 Waiting Agency appealed AJ's Decision
Closed 5/2/2011 3/27/2012 More than 10 months
12/18/2008 3/28/2011 More than 2 years
10/1/2006 5/26/2009 More than 2 years
7/30/2009 11/2/2010 More than 15 months
11/17/2008 8/25/2010 Agency appealed AJ's Decision—Almost 2 years - OFO upheld AJ Decision
8/1/2004 1/1/2007 Almost 30 months -CP died by the time OFO decided in his favor
5/31/2006 9/22/2008 More than 2 years
11/1/2006 9/9/2007 More than 10 months
11/18/2010 1/10/2012 More than 1 year
7/14/2009 1/10/2012 More than 2 years
10/31/2008 7/1/2010 Almost 3 years

3. EEOC must hire and train adequate staff. To the extent that complainants feel that EEOC’s AJs merely “rubber stamp” what the agencies have done or not done, hiring adequate staff to assist in the adjudication will help to diminish this perception.

The Commission must hire sufficient professional and support staff to conduct timely hearings and render decisions. This will enable the AJs to use the hearing process to allow complainants and their representatives to conduct discovery and develop the record, as the hearing is intended to be a part of the investigation process. Hiring additional staff will help to ensure that the work of the AJs is not overridden by concerns about production standards and will also help ensure that perceptions of conflict can be managed. Additional staff could be hired to engage in early intervention of settlement efforts by settlement judges and other professionals that provide incentives for the parties to resolve the dispute prior to the submission of dispositive motions. At a minimum, settlement proposals should be presented to the parties and settlement judges prior to the submission of dispositive motions. Other alternative dispute resolution programs such as early neutral evaluation could also be used consistent with the EEOC ADR Factor. http://www.eeoc.gov/federal/adr/neutralevaluation.cfm

4. The EEOC should adopt standards requiring that certain types of evidence be obtained for certain types of cases. This will help resolve some of the chronic problems in the investigative process.

Many of the investigations do not include the appropriate comparative data. It appears that investigators normally rely on complainants to identify comparators as opposed to identifying the allegations and then gathering the appropriate data from the Agency. The pro se Complainant is not necessarily equipped to understand or privy to information about who is similarly situated to him or her, using the standard legal analysis. AJs often receive summary judgment motions from Agency representatives who assert that the Complainant cannot make out a prima facie case because the Complainant did not understand what a similarly situated employee was, in the context of his or her case.

Further, in non-selection cases, rarely does the ROI contain all of the data used by the panel members, selecting official, etc., for rating, ranking, interviewing, and selecting the candidates. Most important, the files fail to contain notes of interview panel members or selecting officials regarding the interviewees. Many times, the entire merit promotion packet is not included, which is the minimal requirement for a decent investigation in most non-selection cases.

AFGE is convinced that the quality of many investigations can be improved if MD-110 is amended to require investigative standards for certain types of cases such as non-selection cases and that there be written justifications for deviating from them and sanctions by the EEOC where deemed appropriate.

5. The Management Directive 110 (MD-110) should be amended to adopt investigative standards on taking affidavits. This should include requiring that affidavits not be taken through written interrogatories.

The EEOC has initiated some federal sector reform and provided training to agency personnel on how to conduct investigations. Agencies should be encouraged to use their budget to pay for such EEOC provided training. Requiring that agencies meet high investigatory standards such as tailored interviews with key witnesses, records of transactions in discipline, hiring, and termination cases will also improve concerns about conflicts of interest.

Moreover, many affidavits are now taken via written interrogatories. This leads to affidavits which are practically useless since the witness often provides vague answers or no answers to some questions. Written questions prevent follow-up questions which are critical to ensure the affidavit provides relevant testimony on the issues in the case and gathers material facts from knowledgeable witnesses.

Agencies and their investigators should not rely on “canned” interrogatories as a substitute for thorough investigations. The “canned” interrogatories do not help the agency, the Administrative Judge, or the complainant.

6. The EEOC must increase the use of sanctions against federal agencies and expand remedial relief to Complainants.

There are a number of administrative judges that have implemented additional sanctions and awarded remedies that are more closely connected to the factual issues in dispute.

The Commission could make better use of ordering interim relief that would be administrative in nature and not disciplinary as it relates to sexual harassment bi-furcated cases, awaiting decisions on damages. The interim relief might include ordering the agency to take prompt temporary personnel actions such as transfers, reassignment of duties or reporting requirements, mandatory administrative leave with pay, or other appropriate measures that do not result in reduction of pay or loss of employee benefits.

The Office of Federal Operations should make greater use of its enforcement rights under § 1614.503. The Commission should issue notice to the head of any federal agency that failed to comply with a decision to show cause why there is noncompliance. Under § 1614.503(e), this notice “may request the head of the agency or his/her representative to appear before the Commission or to respond to the notice in writing with adequate evidence of compliance or with compelling reasons for noncompliance.”

Agencies should be required to give priority to cases remanded for an investigation as a result of a Commission order and to complete it within a specified period of time. OFO should issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint.

Finally, the Commission should make greater use of “interim relief” and imposition of serious sanctions for failure to do so properly provide such interim relief. Pursuant to 29 C.F.R. §§ 1614.505(a) and (b) an agency must comply with an AJ’s order of interim relief when it appeals a case involving removal, separation, or suspension beyond the date of the appeal, and when the AJ orders retroactive restoration. In the event the agency fails to do so, the Commission should dismiss the Agency’s appeal See e.g., Coulter-Lawson v. United States Postal Service, EEOC Appeal No. 07A50081 (Jan. 11, 2006) (where Commission dismissed Agency’s appeal for failure to provide interim relief as ordered by the Administrative Judge).

7. The EEOC must increase the use of sanctions against federal agencies for substandard and untimely investigations to eliminate the perception of a conflict of interest.

Two factors help to perpetuate the perception of conflict - how quickly agencies complete the investigations of claims of discrimination and the quality of the investigations. The Agency investigator or a contract investigator compiles documents that they deem relevant. They are also charged with conducting interviews of those who have knowledge about the alleged discrimination. The complainant cannot be certain that the interviews will take place or that the documents compiled are correct.

The ROI is deemed factually impartial, but if incomplete or not factual, it can leave the complainant with a weak case. The complainant is then left scrambling to produce the evidence within the time frame allotted for discovery—if discovery is even allowed. The employee is at a disadvantage to contest the findings of the Agency when they must defend the dismissal of their case or claims against the Agency’s motions for decision without hearing or summary judgment. ROI investigations should not encourage more summary judgments than are currently filed – before the parties even talk to the judge.

The current process allows 180 days for the completion of the investigation process. The complainant cannot control this process. Agencies should be required, absent good cause, to complete timely investigations. Substandard and untimely investigations hinder and obstruct the EEO process and gives credence to the perception of a conflict. Since the investigation stage is a crucial link in the processing of federal sector complaints of discrimination and retaliation, there should be sanctions for any abuse by the Agency, and the contractor and/or Agency investigator—both of whom want to keep their jobs.

8. Complainants are not educated on the EEO process in the same fashion as the managers and EEOC’s outreach must include employees and labor organizations

Investigators rely on the complainant to identify the Responsible Management Official (RMO) for the challenged action. Because the complainants are not members of management, their understanding regarding responsibility for the challenged action is often inaccurate. For example, when a complainant believes that a particular manager made a particular decision, the investigator sends interrogatories to that manager asking why he made the decision. When the investigator approaches the wrong manager, he gets a negative response: “I didn’t make the decision.” Instead of investigating further, the investigator then concludes without identifying the RMO or obtaining an affidavit from him/her.

The on-line training that is used by many agencies to satisfy their No FEAR Act training is inadequate to meet the needs of employees who are actually complainants. For example, complainants are not aware of the fact that a request for a hearing before the EEOC Administrative Judge does not guarantee them a hearing. Many agencies build in the time to file dispositive motions upon receipt of the case file. Complainants are not educated on this fact or the process for defeating theses motions.

The Complainant should be given similar training on EEO laws and rules once they file an EEO complaint or express a desire to do so. Fear of the unknown can be paralyzing. Employees are not given the opportunities for training and education on anti-discrimination laws. Employees are not certain what may be required to prove hostile work environment or the benefits of resolving cases at an early stage to reduce the possibilities of retaliatory actions. Employees are not informed that they may not be able to obtain the relief they seek.

Moreover, because agencies ridiculously object to anything and everything in an attempt to exhaust complainants and their representatives, it is important that employees and their representatives are provided similar training as that provided to agency managers by the Agency or the EEOC. AFGE provides extensive training in which union activists and representatives throughout the country in DC federal government and numerous federal agencies. AFGE has premier training opportunities regarding anti-discrimination laws, rules, and regulations. Employees should be given official time to attend training for employees and union officials must be able to participate in and help administer training on EEO laws to employees and managers.

9. Notification of Federal Employees Anti-discrimination and Retaliation (No FEAR) Is Not Effective, Especially for Disabled Employees.

Congress passed the No FEAR Act in 2002, calling for federal agencies to be model EEO employers. No FEAR is designed to hold federal agencies accountable for violations of antidiscrimination and whistleblower protection laws. Federal employees, former employees, and applicants for employment are covered under this Act, which imposes reimbursement, reporting, and training requirements on the agencies. Unfortunately, No FEAR’s ambitious goal has not been met.

Disabled employees remain in fear of discrimination and managers are not held accountable for their actions, as evidenced by the continuing litany of EEO complaints filed. See Tables 1 and 2. Timely resolution of their claims of discrimination should be a priority for EEOC.

Table. 1 Top Three issues for EEO Complaints based on Mental Disability

FY 2002 FY 2003 FY 2004 FY 2005 FY 2006
Harassment – 434 Harassment - 387 Harassment - 407 Harassment – 431 Harassment – 430
Discipline – 201 Discipline – 232 Discipline – 284 Discipline – 296 Reasonable Accommodation - 287
Terms of Employment – 178 Reasonable Accommodation - 180 Reasonable Accommodation - 177 Reasonable Accommodation - 228 Discipline - 254

Table 1. Source (Improving the Participation Rate of People with targeted disabilities in the Federal Work force): EEOC, January 2008.

Table. 2 Top Three issues for EEO Complaints based on Physical Disability

FY 2002 FY 2003 FY 2004 FY 2005 FY 2006
Harassment – 1,119 Harassment – 1,006 Harassment – 1,022 Harassment – 1,101 Harassment – 1,172
Terms of Employment – 844 Reasonable Accommodation - 747 Reasonable Accommodation - 801 Reasonable Accommodation - 846 Reasonable Accommodation - 849
Discipline – 544 Terms of Employment - 605 Discipline - 696 Discipline - 700 Terms of Employment - 675

Table 2. Source (Improving the Participation Rate of People with targeted disabilities in the Federal Work force): EEOC, January 2008.

10. MD-715 Lacks Proper Oversight and Enforcement

In 2003, the EEOC developed Management Directive (MD) 715, which set new procedures for establishing and maintaining equal employment opportunity (EEO) programs under Section 717 of Title VII and affirmative action programs under Section 501 of the Rehabilitation Act.

In July 2011, AFGE commented on EEOC’s review of this eight-year old directive. Those comments were reported in BNA. BNA Government Employee Relations dated July 5, 2011, Vol. 49, No. 2410. http://op.bna.com/gr.nsf/r?Open=lfrs-8jbm2d.

AFGE requested the EEOC be more proactive in instructing agencies to work with labor organizations and constituency groups to assist agencies in analyzing data and crafting plans to eliminate barriers to equal employment opportunities. Also, the union encouraged the EEOC take on a more vigorous role to enforce agency accountability for reports of their annual action plans to achieve the stated interest of the MD-715.

AFGE requests changes that should require agencies to: (1) involve labor unions, constituent groups, and communities to assess barriers and determine action plans instead of merely reviewing communications that may have occurred in the past. The annual reporting requirement should mandate annual contact with these groups; (2) impose a two-year limit on barrier plans with no improvement; (3) allow the EEOC to have an advanced role in overseeing MD-715 and monitoring agency compliance with agency plans and EEOC directives. The EEOC should post in its directive best practices or sample plans associated with specific barriers that have produced positive results in the past; (4) include age as a reporting requirement, as age discrimination cases are of increasing relevance in today’s workplace and; (5) post MD-715 in its entirety on both the agencies’ and the EEOC’s public websites and the agencies’ intranet.

Conclusion

As we know the number of EEO cases filed does not reflect the number of employees who believe they are victims of discriminatory practices in the federal sector. Unfortunately, many federal workers are intimidated by the EEO process. The intimidation continues when retaliation occurs because an employee filed an EEO complaint, served as a witness in the EEO process, or spoke out against a perceived discriminatory practice.

Retaliation is often committed by the same managers who are perceived to be responsible for the work place environment; the same managers who are charged with creating a work place free from discrimination; and the same agency managers who now hire investigators to review EEO complaints. The EEOC must strengthen its enforcement powers and oversight responsibilities to eliminate discrimination and retaliation in the Federal government.

AFGE is committed to helping the EEOC obtain the appropriate funding to focus on serious enforcement efforts and we hope to continue to be involved in the efforts to eliminate conflicts of interest and improve the federal hearing process.

Thank you. I am available to answer any questions you may have.

For more information, please see AFGE’s website at www.afge.org.