Meeting of September 7, 2006, Washington D.C. on Federal Sector EEO Investigations
Good morning. My name is Ernie Hadley. I am an attorney in private practice in Wellfleet, Massachusetts. For over 20 years, the focus of my practice has been representing federal employees in discrimination complaints. I am also the author of several books on federal sector employment discrimination law and I frequently conduct training sessions and seminars on federal sector employment discrimination law for EEO counselors, investigators, EEO program personnel, agency and complainant representatives and supervisors and managers.
First, I would like to thank the Commission for the opportunity to testify here today on the current state of the federal sector EEO investigatory process. Although the current process is flawed, I believe that the basic process in place can be fixed if, and only if, there is an organized, comprehensive and coordinated problem-solving approach. The Commission has identified at least three facets of the investigative process that it is examining: the timeliness of agency investigations, the quality of agency investigations, and the potential conflict of interest in having agencies investigate themselves. While each of these areas represents a distinct problem, they are interrelated and cannot be solved in isolation.
As a starting point, I do not believe that the impact of the potential conflict of interest in having an agency investigate itself can be underestimated. Whether they are ultimately right or wrong, it is extraordinarily personal and painful when someone believes that he or she did not get a job because of a disability, did not receive a promotion because of the color of his or her skin, received less favorable job assignments because of his or her religion or was deprived of training opportunities because of his or her age. The current process asks those individuals to take an enormous leap of faith in trusting that the very agency that they believe engaged in that type of conduct can now fairly investigate that conduct.
The perception of a conflict of interest that is inherent in the process is only exacerbated when an agency greatly exceeds the 180-day regulatory period for conducting an investigation, and then ultimately produces an inadequate result. The fact that the investigation takes longer than it should fuels the perception that the agency is not truly interested in fairly considering the complaint. The fact that the investigation is inadequate fuels the perception that investigators are biased toward agencies. When this happens often enough, and it has, those perceptions become widespread and affect the attitudes of complainants and their willingness to fully participate in the investigative process. Quite simply, why should a complainant lay out all of his or her evidence during the investigative stage if he or she believes that the net result is that this cooperation gives an agency a long period of time to figure out ways in which to refute that evidence? Of course, one of the effects of that type of thinking is that it may contribute to a more time-consuming investigation that results in an inadequate end-product. That's one reason why I say all of these problems are interrelated and cannot be solved in isolation.
For those who would still minimize the perceived conflict of interest in having an agency investigate itself, I think we need look no further than the EEOC's own process for handling a complaint by an EEOC employee. If that employee requests a hearing, the case is not assigned to an EEOC administrative judge. Rather, the Commission uses contract administrative judges to hear such cases. Does the Commission resort to contract administrative judges because it believes its own administrative judges cannot fairly hear and decide those cases? No, it does so because of the perceived conflict of interest in having an EEOC administrative judge preside over those cases.
This does not mean that the process of having agencies investigate their own EEO complaints cannot work. It means that in order for that process to work measures must be taken to insure that the process is both fair and perceived as fair.
Those measures must start at the top. Since October 1999, EEOC regulations at 29 C.F.R. Part 1614 have required that EEO directors report directly to the agency head. Yet, seven years later, the Commission's Federal Work Force Fiscal Year 2005 report indicates that only 70 percent of agencies are in compliance. That's unacceptable. EEOC Management Directive 715 requires that each agency head annually issue and distribute to employees a written statement expressing their commitment to EEO and a discrimination-free workplace. Yet some four years after the issuance of that directive only 54 percent of federal agencies were in compliance according to the same Work Force report. That's unacceptable. Without a demonstrated commitment from the top, the perception that agencies cannot investigate themselves is likely to persist.
The lack or perceived lack of commitment is further complicated by the fact that there are virtually no standards for EEO investigators, whether they be agency employees or contractors. In my opinion, the single largest factor in substandard investigations is not investigator bias, as I am sure many complainants believe, but a lack of understanding of EEO law and, to a lesser degree, knowledge of investigative techniques. It is time for positions in EEO, including investigator positions, to be recognized as a distinct career path that requires the development of a distinct combination of education, skills and experience.
An EEO investigator is required to understand a complex set of procedures. For example, an investigator must be able to recognize whether a complainant is presenting information that is evidence of an existing claim; evidence of a like or related claim i.e., an amendment to the existing claim; evidence that relates to a separate, but unrelated claim i.e., a claim that must be referred to counseling and subsequently consolidated with the existing claim; or evidence that is wholly unrelated to any EEO claim. When investigators fail to understand these distinctions, relevant evidence is excluded from investigations. As an example, investigators tell complainants that they may not include in their affidavits incidents that they believe are evidence of a hostile environment because they were not included in the specific instances cited by the agency in "accepting" the claim. Or worse, investigators tell complainants they must start counseling on a new complaint of discrimination that includes those instances. At best, the result is an inadequate investigation that does not fully develop the evidence and, at worst, we end up with a second complaint in the system that should not be there.
Without a good, working command of the theories of discrimination on which a complainant can proceed and the agency defenses that apply to each theory, an investigator, regardless of his or her level of dedication, cannot be expected to produce a quality investigation. The result of the lack of a working command of those theories is that we end up with investigative reports that include evidence that relates to disparate treatment when the claim involves a failure to provide reasonable accommodation, while evidence that relates to whether the complainant has an impairment that substantially limits a major life activity is not developed.
This is not an attempt to blame the investigators for the poor quality of many agency EEO investigations. There are many EEO investigators who understand the process, their role in the process and the substantive law. There are many more who are extremely dedicated and work very hard at their task. But given the lack of meaningful standards and the failure to recognize EEO as a valid and valuable career field, we simply cannot expect high quality investigations.
It is true that MD-110 imposed training standards for EEO counselors and investigators. That was a start, but those standards are presented only in summary fashion and are too vague to be meaningful. The standards need to be more fully developed to establish the specific knowledge and skills for investigators. In addition, the standards need to be enforced by developing a method through which investigators can demonstrate competence before being released into the field.
Whatever standards are developed for agency-employed investigators need to be applied equally to contract investigators. The old adage that "you get what you pay for" may be a cliche, but that doesn't mean it isn't often true. Any contractor who is paid by the job has an inherent interest in completing that job at the lowest possible cost with the least amount of effort. In addition to the development of standards for investigators, those agencies that use contract investigators need to establish rigorous quality control programs to monitor the adequacy of contract investigations.
Of course, quality investigations can also be time-consuming investigations. This is particularly true with complex cases involving multiple claims. But that does not mean that agencies cannot meet the regulatory guidelines for conducting those investigations. Agencies will not meet those guidelines, however, as long as they insist on treating every case and every investigation the same.
Part 1614 changed the standard for agency EEO investigations from "complete" and "thorough" investigations to "adequate" and "appropriate" investigations. MD-110 specifically explained that the change was intended to avoid a "cookie cutter" approach to investigations and to permit agencies to tailor investigations to specific complaints. MD- 110 specifically suggested several alternative methods of investigation. Many of those methods require minimal investigative effort. However that effort would still result in an adequate investigation if applied to the appropriate cases. In other words, agencies were given a powerful case management tool so they could commit the necessary resources in those cases that warrant them and apply fewer resources to those cases that do not.
From my experience, agencies have failed to take advantage of that tool. While I believe it is a tool that can be invaluable to agencies in meeting regulatory guidelines for investigations, it is one that needs to be applied cautiously. It cannot be fully utilized until there are adequate measures in place to insure that EEO investigations meet minimal quality standards.
As I said at the outset, I believe that all of the problems confronting the federal sector EEO investigatory process can be fixed. They just can't be fixed in piecemeal fashion. They also will not be fixed by the EEOC taking comment on the problems and then retreating into its shell only to emerge several months later with great proclamations of change. The Commission must include representatives from all of the stakeholder groups on an ongoing basis if meaningful and effective change is to occur.
Once again, I thank you for the opportunity to testify today and would be happy to respond to any questions you may have.
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