Meeting of September 7, 2006, Washington D.C. on Federal Sector EEO Investigations
Madam Chair and Members of the Commission:
As General Counsel of the Senior Executives Association, I thank you for the opportunity to speak to you today on a subject that has been of repeated concern to our organization. As you know, the Senior Executives Association (SEA) is a professional association that represents the interests of career federal executives in the Senior Executive Service (SES) and those in Senior Level (SL), Scientific and Professional (ST), and equivalent positions. On their behalf, SEA advocates for improving the efficiency, fairness and productivity of the federal government.
SEA believes that a very significant hindrance to the efficiency, fairness and productivity of our federal workforce is the current state of the federal employee appeal and complaint process, including the federal sector EEO complaint processing system. In the case of EEO investigations and adjudication, we view the problem as particularly severe.
Surveys show that federal employees perceive that their agencies do a poor job in dealing with problem employees and in making meaningful distinctions in performance. Proposals for reform of the federal performance management system mention the linchpin of manager accountability and an expectation that managers will hold their employees accountable for their performance.
However, the complicated and seemingly endless process that currently exists once an EEO complaint is filed causes even the best manager to think carefully before deciding to take an action or even to engage in frank day-to-day conversations about performance and workplace conduct that must be a part of successful management. For a manager, the most difficult step in dealing with a problem employee is often the first step that invites adversity, often in the form of an EEO complaint.
The result is many managers come to the unfortunate and mistaken conclusion that it is better to ignore a problem employee rather than to invite potential EEO complaints that may follow from doing the right thing and confronting the employee. Yet, inaction is the worst course because future actions to deal with a continuing problem will be more difficult, and avoidance contributes to the workplace and public perception that problem employees are tolerated in the federal civil service.
The current system has made the federal manager an easy and convenient target. With pressure from both higher level management and subordinates, the federal manager is often perplexed about how and when to do the right thing.
The central problem with the federal sector EEO system is that EEO investigations are carried out by the very agency accused of discrimination. Frivolous claims clog the system because they are meticulously investigated, often unnecessarily. In my opinion, these meticulous investigations of obviously frivolous complaints are to avoid conflict of interest claims that occur because federal agencies are required to investigate themselves when an EEO complaint is filed.
The statistics bear out the existence of this problem. According to the 2005 report, just the investigation alone took an average 237 days. A case which involves an EEOC Administrative Judge takes an average of 669 days from the day the complaint is filed to the day it is resolved. Thatís almost two years. When an Administrative Judge is not involved, the average is still approximately a year and three months.
While none of these averages are acceptable, these are only averages. There are numerous EEO complaints that go on for many years. EEO professionals often candidly admit that employees sometimes misuse the EEO process to raise complaints of job dissatisfaction when they lack evidence of discrimination because it is perceived as the only forum available in which a matter can be raised effectively and heard outside the agency. This is reflected in the fact that only 1.5 percent of the total cases filed result in findings of discrimination. Thatís only 345 out of the 22,947 cases closed for the fiscal year ending last September. One of the major reasons the EEO process is so clogged is that a very high percentage of those 22,947 complaints are fully investigated, even though it is apparent to the informed observer that the complaint lacks merit. This creates gridlock in the EEO system with claims that could have been thrown out early blocking legitimate cases of discrimination from being resolved.
There is nothing more frustrating for a federal employee than to prevail in an EEO complaint many years after it has been filed and then to realize that justice cannot be attained because circumstances have so changed in the lengthy time span during which the complaint was processed. Similarly, for those managers in the approximately 17,000 EEO complaints filed annually that do not result in a settlement or finding of discrimination, the burden of managing those subordinate employees over the long period of the complaint lifespan is an unreasonable burden that should be relieved.
While most federal managers cannot recite these figures, most have a sense of what they are up against when making a management decision. These managers must weigh discussing performance with an employee and perhaps receiving some improvement with the threat of a complaint that could continue on for years, tying the managerís hands with the threat of a reprisal complaint if the manager proceeds with further action.
The litany of problems inherent in the EEO process starts with the investigation. However, the problem is notóas some might maintainósimply a lack of funding; nor is the problem due to shoddy work on the behalf of investigators. I personally know many EEO professionals, and have long been associated with the federal EEO Community. This group of professionals is motivated and capable, and unfortunately working in a system that is unnecessarily clogged.
As a start, the system should be revised so that the investigative function goes to an independent agency with a strong, efficient and professional staff. The first step of the investigative functions should be a screening process to assure that the complaint meets a threshold of seriousness before further resources are expended. This would free agencies from the conflict of interest concern and would allow for effective screening of EEO complaints, permitting greater focus and resources on the complaints that have merit. The result would be more expeditious resolution for those employees who are, in fact, victims of discrimination.
An important interim step in any reform is to consider the tenants put forth in the Government Managers Coalitionís proposed legislative reform that we have called the Federal Managers Fairness Act. This would assure managers the right to participation during the EEO process, the right to be consulted before a settlement, the right to be told when a case is filed and when it is finished, and consideration for lost benefits resulting from both frivolous EEO and whistleblower complaints. While some agencies follow such methodology already, many do not. We believe this reform will help managers overcome the unfortunate reluctance to act when confronting problem employees.
In testimony before Congress, SEA has proposed a Federal Employees Appeals Court, which would combine all the adjudication powers of the MSPB, EEOC, FLRA, and labor arbitration, as well as the investigative powers of the Office of Special Counsel and the equal employment opportunity program in federal agencies. Under this proposal, the investigative function would be removed to an independent organization and the conflict of interest problem would thus be removed. We believe this to be the best solution to correct the problem that now results in a lengthy and complicated process. While we advocate a specific solution, we stand ready to work with all stakeholders to examine other alternatives.
I conclude by thanking you for the opportunity to testify. On behalf of SEA, I applaud you for working to examine and hopefully resolve this important issue. We look forward to working with the Commission and its staff to find common sense solutions to these complex problems.
This page was last modified on September 6, 2006.
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