EEOC answers complaints

The Equal Employment Opportunity Commission, long criticized for its bureaucratic and weak enforcement, has streamlined the way it processes discrimination complaints.

Federal workers, managers and labor representatives have complained that the EEOC's process for reviewing charges of discrimination is too long and contains too many layers of review and that agencies could revise administrative judges' decisions about whether an agency had violated the law, which led to widespread perceptions that the decisions were not impartial. They also have complained that the EEOC process led to the fragmentation of complaints - the practice of breaking cases down into constituent parts and then processing the parts separately - which bogged down the system and made it difficult for federal employees to prove they had been discriminated against.

EEOC chairwoman Ida Castro has tried to improve EEOC claim processing, making it one of her highest priorities. The substantive legal protections for federal employees are the same as for workers in the private sector, but the procedures for resolving complaints in the federal government differ considerably. The rules approved by the EEOC update and improve the process that governs how discrimination claims of federal employees are handled.

These changes go a long way toward improving the process, 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," she said. The regulation changes were published in the Federal Register on July 12 and apply to federal employees and applicants for employment in the federal government as well as to agencies that employ and hire them. The regulations will take effect Nov. 9.

Some of the major changes to the process include a requirement that agencies develop alternate dispute resolution (ADR) programs, which will be used to informally resolve disputes both before and after formal complaints are filed. In the private sector, these types of programs are widely used, but they have yet to catch on in the federal workplace. Agencies will have flexibility in how they structure their ADR programs as long as they make them confidential, neutral, voluntary and enforceable.

Agencies no longer will have the authority to issue final decisions if a hearing was held before an administrative judge. Under the previous rule, judges recommended a decision on whether an agency had violated the law, but the agency could reverse or modify this decision. Although agencies won most hearings, they not surprisingly reversed or modified the administrative judges' decisions in about two-thirds of the cases they lost.

Under the new rule, an agency will have 40 days to determine whether it will fully comply with the administrative judge's decision. If it chooses not to, it will be given another 20 days to file an appeal with the EEOC. This corresponds to the 60-day period that agencies previously had to review a judge's decision and issue their final decision.

If the administrative judge's decision requires an agency to restore an employee to his former job, the agency must comply with the order pending the appeal. The agency may refuse to return the individual to his job if the agency determines that the individual's presence in the workplace would be unduly disruptive. However, the agency must provide the employee with pay and benefits until the appeal is completed. The agency is not required to pay any other monetary benefit ordered by the judge pending the outcome of the appeal, but the agency must pay interest on that amount if the complaining party ultimately prevails.

Other new provisions introduced by the rule will reduce the fragmentation of cases, eliminate multiple appeals and update the grounds for dismissal of cases.

Fragmentation substantially adds to the number of cases and the overall workload in the system and makes it more difficult to prove some cases, such as harassment cases, which are dependent on a "critical mass" of facts.

The final regulation includes a number of provisions that address the problem of fragmentation, such as eliminating appeals from partial dismissals. Under the new rule, the case will continue to be processed and appeals will be held until the rest of the case is ready for appeal.

Administrative judges will no longer remand issues to agencies for counseling or other processing. Once a case is before a judge, the judge is fully responsible for processing the case to completion. Also, complaining parties will have greater latitude to amend their complaints with similar and/or related claims. Independent claims brought by the same complaining party will be consolidated for processing so they can be handled together.

Also, a new provision allows the dismissal of "spin-off" complaints, which are complaints about the processing of existing complaints. Spin-off complaints will have to be brought up as part of the original complaint.

A new "offer of resolution" provision, modeled on the Federal Rules of Civil Procedure, will encourage settlements. Under this provision, an agency may make a settlement offer to a complaining party and, if the complainant does not accept the offer and does not subsequently recover at least as much as the agency offered, the agency avoids further liability for attorney's fees and costs. In addition, reforms to how class actions are treated, will make it more feasible for class claims to be brought and resolved in the administrative process.

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

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