EEO panel changes regs on complaints

The Equal Employment Opportunity Commission has changed the procedures federal employees use when pursuing equal employment opportunity complaints. The changes include restrictions on the ability of federal agencies to overturn administrative law judge decisions as well as new rules guiding the use of alternative dispute resolution (ADR) and the dismissal of complaints (see Federal Register, Vol. 64, No. 132, July 12, 1999).

"The commission has broken new ground in making the federal EEO complaint process more efficient, expedient and fair for federal employees and agencies alike," EEOC chairwoman Ida Castro said. "In particular, we have improved and streamlined the process by eliminating unnecessary layers of review and addressing perceptions of unfairness in the system."

Before the issuance of the new regulations, an agency could reject or modify an administrative law judge's decision. Although employees bringing charges could appeal further, this was an inefficient system to say the least. Because agencies are the defendants in EEO complaints, they clearly cannot be impartial in such matters and never should have been permitted to ignore the decision of a judge who has carefully and impartially reviewed all of the relevant facts.

This long-overdue realization was behind the EEOC decision. An EEOC spokesman said the organization "strongly believes that allowing agencies to reject or modify an administrative judge's findings of fact and conclusions of law and to substitute their own decision[s] leads to an unavoidable conflict of interest and creates a perception of unfairness in the federal EEO system."

Duh.

Under the new regulations - effective Nov. 9, 1999 - administrative judges will issue decisions on all EEO complaints filed by employees. Agencies then must issue a statement accepting the judge's decision or file an appeal with the EEOC.

Under the new rules, federal workers who prevail in an EEO complaint will not be forced to endure a lengthy agency appeal before getting what they are entitled to.

If an agency decides to appeal an EEO decision, it will have to honor the judge's decision regarding entitlement to back pay and benefits if these were awarded. Later, should the agency's appeal prevail, the employee would have to repay those wages and benefits.

Agencies also will be required to establish or make available an alternative dispute resolution program that employees can use during the precomplaint process and the formal complaint process. An ADR program - informal mechanisms designed to mediate disputes - can be a valuable tool in resolving EEO disputes. They don't always work out, but they can be great time-savers.

One problem that I foresee with these regulations is that agencies can withhold the ADR option on a case-by-case basis. The EEOC said it is permitting such flexibility because the ADR process is supposed to be voluntary. That's true, but I always thought the voluntary element applied to employees, not agencies. Certainly, federal employees should not be forced into an ADR program if they do not want to participate, but I fail to understand why an agency should be permitted to deny access to an employee ADR program. I predict that employees will file grievances against agencies that deny them access to an ADR program.

The EEOC rule package also includes some changes to the procedures concerning the dismissal of complaints. Previously, an agency could dismiss a complaint if an employee did not accept a certified offer of "full relief" from the agency. This was premised on the view that adjudication of a claim is unnecessary if the agency is willing to make the complainant "whole."

The EEOC, however, had been criticized because complainants risked dismissal of their complaints if they did not believe the agency's offer constituted full relief. In addition, difficulties assessing what constitutes full relief increased when, because of the Civil Rights Act of 1991, damages became available to federal employees. If a complainant makes the wrong assessment of an offer and the EEOC decides on appeal that the agency did offer full relief, the complainant is precluded from proceeding with the complaint or from accepting the offer. Doesn't make sense, does it?

However, the new EEOC regulations assert that agencies should be able to make offers of resolution to settle EEO complaints without going through the complete process.

The EEOC also has added a provision letting agencies dismiss complaints that involve an "abuse" of the EEO process. Abuse is defined as "a clear pattern of misuse of the EEO process for ends other than those that it was designed to accomplish."

I think this provision will turn into a can of worms. It is true that some employees abuse the EEO process and file frivolous complaints. However, permitting agencies to decide when abuse exists is just plain dumb. Only after a claim has been adjudicated can you determine whether a claim was frivolous.

Moreover, how can you expect agencies to act impartially in such cases? This provision is a bad one and undoubtedly will lead to much litigation.

--Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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