Recommendations to Address Challenges Employees Face in the Federal EEO Complaint Program

The Coalition For Change, Inc. (C4C) recommendations report submitted to GAO dated March 21, 2023.

Transcript

1. Recommendations to Address Challenges Employees Face in the Federal EEO Complaint Program Submitted to the Government Accountability Office Prepared by Tanya Ward Jordan, President The Coalition For Change, Inc. (C4C) Meeting Date: 3/21/2023
2. BACKGROUND “We write to request that the [GAO] study how the federal government’s [EEO] complaint process and anti-harassment programs can better prevent and remedy unlawful employment discrimination and advance equal opportunity in the workplace.” Rep. Carolyn B. Maloney and Rep. Jackie Speier Committee on Government Oversight and Reform Concerns Raised in 9/22/2021Letter to Government Accountability Office Comptroller Gene L. Dodaro • Fox Guarding the Henhouse • Perpetrators Evade Accountability • Investigations Too Lengthy and Lack Substance • EEO Offices / EEOC Severely Under-resourced • No Consequences. Agencies/EEO Practitioners Miss Deadlines • EEO Practitioners Do Not Effectively Communicate With Complainants
3. The U.S. Equal Employment Opportunity Commission (EEOC) failed to achieve the goal as President Jimmy Carter and Congress intended when in 1978, "all equal opportunity the Federal employment enforcement and related functions" transferred from the Civil Service Commission to the EEOC. Today, like its predecessor, the EEOC remains lethargic in enforcing fair employment requirements in the Federal government. The EEOC-championed Federal Equal Employment Opportunity Complaint Program needs a complete overhaul. A thorough examination of the EEOC-regulated system is warranted. It is vital to grasp that the EEOC, "a Federal agency," acts as an administrative court. The EEOC's cache of Administrative Judges hears employment discrimination cases parties bring against Federal employers, including claims brought against the EEOC. Consequently, the EEOC's placement as an “enforcement” agency within the Executive Branch poses a conflict. It impedes its ability to serve as a neutral adjudicator. The EEOC rarely rules in favor of the aggrieved party alleging workplace discrimination In the infrequent cases when the EEOC finds discrimination and rules in favor of an aggrieved federal employee or job applicant, the EEOC seldom sanctions an agency commensurate with the unlawful offense. Instead, the EEOC’s practice is to exact a “lesser sanction” on an agency official who commits an unlawful act or fails to follow EEO complaint processing guidelines. Moreover, the EEOC tacitly resists framing EEO guidance reasonably. Given it will be subject to regulations it publishes. The C4C recognizes the scope of the Government Accountability Office study. We also recognize the focus areas requested by the Committee on Oversight and Reform. Therefore, we present viable recommendations to improve the Federal EEO complaint process, deliver relief for victims of retaliation, and institute accountability for civil rights violators. If implemented, these reforms will address the longstanding concerns of advocacy groups, legal scholars, lawmakers, and Federal whistleblowers who bring mixed case complaints to the EEOC’s redress system. They will also complement C4C’s EEO reform measures Congress passed into law under the Elijah Cummings Federal Employee Antidiscrimination Act. Tanya Ward Jordan, President The Coalition For Change, Inc. (C4C) Approved by: Paulette Taylor, Civil Rights Chair Edgar Dion Lee, Senior Investigator Analyst Juanita Winkey Kennedy, Communications Chair Joyce E. Megginson, Public Relations Officer RECOMMENDATIONS
4. Coverage • Discrimination Without Discipline at the Veterans Affairs • “The matters you are concerned with are preventative in nature. While EEOC orders agencies to consider discipline; we have no authority to issue discipline.” EEOC’s Todd A. Cox (May 13, 2011) Decatur v Shinseki, 0120073404.) 2. Attorney of the Day RECOMMENDATION 1 Obtain and Publish Legal Ruling-Re: EEOC’s Authority to Discipline Insight: To carry out its enforcement duties, “the Commission is authorized to issue rules, regulations, orders, and instructions governing the federal sector . . .” Section 717(b) of Title VII of the Civil Rights Act of 1964
5. RECOMMENDATION 2 Obtain Legal Opinion: “Inherently Governmental Function” Coverage • Inherently Governmental Functions • EEOC misleads the public. On its website Federal Sector Quality Practices for Effective Hearings, Appeals and Oversight under footnote 5 it reads: “EEOC maintains interagency agreements for adjudicators at other agencies to handle the hearing requests of EEOC employees.” • EEOC contracts out its critical “hearing” role given under Civil Rights Act which calls for employees to have their “compensation fixed in accordance with the Classification Act of 1949.” • EEOC pays non-federal attorneys to decide EEOC’s employee / applicant complaints filed against it. Insight: “OFO is charged with two major responsibilities. The first is the responsibility of resolving appeals filed by federal employees regarding determinations on their EEO complaints. The second is overseeing and assisting Executive Branch agencies in their efforts to comply with EEO legal requirements, . .” Statement of Carlton Hadden, Dir. EEOC’s Office of Federal Operations
6. RECOMMENDATION 3 Eliminate “Pre-Counseling” Coverage Pre-counseling . . . • Creates unjust technical barriers defending agencies use to dismiss employees’ and applicants’ viable claims of discrimination. • Fails to educate aggrieved partiers on how to frame a claim, present a basis, or proceed through the complaint process. • Compels the aggrieved party “show their hand” to the defending agency before a complaint can be filed. • Gives the defending/adjudicating agency time and insight to engineer a rebuttal. Insight: Pre-counseling is not imposed on aggrieved parties in the non-federal sector before they can file a formal complaint.
7. Recommendation 1. RECOMMENDATION 4 Modify Right to File Claim Formally Insight: Agencies, at times, fail to respond to employees’ and applicants’ discrimination claims. Coverage • Example: OSC’s Carolyn Lerner’s 2015 Letter to President affirming that 50% of the complaints filed against high-level officials at U.S. Dept. of Agriculture were not acted upon timely. “Some of which were unaddressed for up to five years.” • C4C Recommendation : If agency EEO practitioner fails to acknowledge aggrieved party’s report of a discriminatory claim, then EEOC should permit the aggrieved to file formally and request an EEOC hearing.
8. Coverage • Promote accountability and transparency • Name public official found guilty of violating a law in Federal Sector Appellate decisions where EEOC issues a final finding of discrimination & no further recourse for appeal at administrative level exist. • Instead of citing S1 for Supervisor 1 name the public official who broke a civil rights law. • Pay data names public officials. Example: Available https://www.federalpay.org/employees/dept-of-interior-office-of-the- solicitor/littlejohn-craig-a RECOMMENDATION 5 Name Discriminating Officials Insight: The EEOC provides discriminating officials with anonymity and permits civil rights violators to escape accountability.
9. Insight: The EEOC fails to enforce severe sanctions such as “Default Judgements” when agencies clearly and/or repeatedly fail to comply with long established guidelines at 29 CFR 1614 Coverage Example 1: In Owen L v Kiran A. Ahuja , Office of Personnel Management (OPM). Despite agency officials’ brazen offenses, including perjury, OFO’s Dir. Carlton Hadden reversed AJ’s Decision to issue Default Judgement against OPM. In Owens, Appeal No. 2020000990, July 15, 2021, the EEOC found: • Agency supervisor influenced witnesses {emailed subordinates} • Agency supervisor breached confidentiality • Agency failed to schedule hearing for more than a year • Agency cancelled hearing 3 times • Agency repeatedly fail to establish communication needed to conduct an evidentiary hearing • “S2 knowingly provided false information...” (p. 10) EEOC makes excuses for not imposing warranted sanctions & places onus on complainant stating: “In neither motion did Complainant request that a default judgement be imposed as a specific sanction (p13).” RECOMMENDATION 6 Address Agency Non-Compliance. Use Uniform Sanctions (i.e., Default Judgements)
10. Insight: “A commissioner noted that a double standard exists” (GAO-09-712) (p. 12) Coverage Example 2: In Miquelina S. v William P. Barr Request No. 2019002953. EEOC pardoned the agency for its non-compliance and reversed AJ’s Default Judgement made in favor of complainant. [Decision Jan. 27, 2020-Bernadette B. *Wilson, Exec. Officer] In Miguelina . . . • Agency took 129 days to accept complaint • Agency took 330 days to complete investigation • Complainant proved a prima facie case of discrimination • EEOC found “the Agency exceeded even an extended time limit by a wide margin”(p.4) C4C Recommends: If agency fails to conduct, to complete timely, to fully investigate or to forward an investigation to EEOC with out just cause when aggrieved party requests a hearing, EEOC should issue default judgement in favor of complainant absent AJ ORDER. The onus should be on the agency to contact the AJ with explanation if unable to meet EEOC’s long-established guidance. RECOMMENDATION 6 (CONT’D)
11. Coverage Example 3: • In Kennedy v Vilsack USDA failed to comply with EEOC’s AJ’s Order to produce complaint file. • Instead of issuing a sanction to the defending agency and hearing Kennedy’s case, the EEOC returned it to USDA official to let USDA decide if the USDA engaged in discrimination. Insight: “Within 15 days of receipt of the request for a hearing, the agency shall provide a copy of the complaint file to EEOC and, if not previously provided, to the complainant”. 29 CFR 1614.108h RECOMMENDATION 6 (CONT’D)
12. RECOMMENDATION 7 Post Federal Violations on EEOC Homepage Coverage The EEOC fails to provide transparency and accountability about discrimination suits in the Federal government such as . . . • U.S. Marshal Class Action {1994- Presently pending} • Classwide Discrimination Found at SSA • Women Sue F.B.I., Claiming Discrimination at Training Academy Insight: The EEOC conceals federal agency unlawful transgressions and only posts private sector violations on its homepage
13. RECOMMENDATION 8 EEOC Attorney of the Day: Name or Issue Operator Code No accountability or transparenccy at EEOC Insight: The EEOC fails to provide transparency when responding to the aggrieved parties in the federal sector. Coverage EEOC permits public officials to dispense critical information under a veil of anonymity and sign off as “Attorney of the Day or “Officer of the Day.”
14. RECOMMENDATION 9 EEOC - Post On-Site Field Audits, Findings and Criteria Insight: EEOC is to conduct on-site field audits to assess agency compliance with guidance. Coverage Despite C4C’s many FOIA inquiries about EEOC field audit activity, the EEOC never replied. ATF employees & other Federal employees have requested audit of agencies’ EEO offices.
15. Insight: “The head of each Federal agency’s Equal Employment Opportunity Program shall report to the head of the agency.” 2. Attorney of the Day RECOMMENDATION 10 EEOC - Issue / Post Agency Deficiency Letters Sec 403 Head of Program Supervised by Head of Agency Cummings’ Act Coverage • Despite the Cummings’ Law and EEOC’s guidance the federal government has not achieved a 100% direct reporting structure. • Based on an EEOC FY 2021 survey, only 36% of large agencies responded that they maintained a direct reporting structure.
16. RECOMMENDATION 11 EEOC – Post Referrals to Office of Special Counsel Coverage • EEOC maintains a Memorandum of Understanding with the OSC to refer disciplinary cases • C4C, Inc. uncovered via Freedom of Information Act request the EEOC seldom made referrals to the OSC • In line with C4C suggestions in Cummings law, the EEOC should post: a) Number of cases it refers to OSC b) Agency subject to OSC referral. Insight: Cummings’ Act – Title IV Sec 404 (a) addresses the EEOC’s “Referrals of Findings of Discrimination” to Office of Special Counsel (OSC) for disciplinary action.
17. Coverage • 5 USC 4313 Appraisals of performance in the Senior Executive Service shall be based on both individual and organizational performance Informal Complaints 2006 --- 34,521 Informal Complaints 2019 --- 39,038 Formal Complaints 2006 --- 16,723 Formal Complaints 2019 --- 16,947 • EEOC Average Processing Times Hearings 2000/381 days Appeals 2000/420 days Hearings 2016/500 days Appeals 2016/447 days • Rather than lead by example and resolve credible cases timely, EEOC’s OFO Director is named in complaint headed for trial. Menoken v. Janet Dhillon, EEOC No. 1-5284 (D.C. Cir., 9/15/20). RECOMMENDATION 12 Apply Performance-Based Term Limits [EEOC Leadership] Data Source: EEOC’s Annual Report of the Federal Workforce 2000, 2016, -2019 Insight: For 22+ years, Dir. Carlton Hadden has led the OFO. The EEOC’s OFO fails to curb the rise of workplace discrimination
18. RECOMMENDATION 13 Refine EEOC’s Annual Report/Strategic Plan Insight: The EEOC’s Annual Performance Report FY2022 and Strategic Plan commingles its performance measure narrative for non-federal sector and federal sector employers. Coverage  The role EEOC plays in non-federal sector differs drastically from the role it plays it federal sector  Clearly separate private sector goals from public sector goals  EEOC needs to establish : No FEAR Act Performance Measures Cummings’ Act Performance Measures
19. Coverage • Agencies post differently throughout government • Class action data is not being captured • Cummings’ Act data capture elements: General - Complaints  Affected federal agency  Date of a finding  Law violated  Whether decision has been made about disciplinary action Class action complaints  Date class action filed  Summary of allegations  # of Plaintiffs  Complaint status  Case # for civil actions - discrimination found RECOMMENDATION 14 EEOC Should Standardize Data to be Posted By Employing Agency Insight: Pursuant to Cummings Act Sec 1135 specifies data to be posted by employing Federal Agencies; however, the EEOC has not provided standardize instructions for agencies.
20. (RECOMMENDATION 14- CONT’D) Insight: Agency’s post varying information EEOC Should Standardize Data to be be Posted By Employing Agency Require Notice of Discrimination Finding Down to Unit Level
21. RECOMMENDATION 15 EEOC Should Ensure Agencies Data Accessible From Main Webpage Insight: No FEAR Act/Cummings Act data is to be publicly accessible from agency home page as shown below on U.S. Dept. of Interior website. Compliance –Sec. 1133 Notification of Violation Coverage While some agencies/ department comply with No FEAR posting; many do not comply with the Cummings posting requirements pursuant to the law passed in 2021. The EEOC has failed to provide meaningful, if any, guidance in this regarding
22. Insight: Despite EEOC guidance stating:-- “There must be a firewall between the EEO function and the agency's defensive function;.” agency’s General Counsel help agency witnesses write affidavits during the investigative process; yet non-compliant offenders face no penalties. RECOMMENDATIONS 16 EEOC Should ReAffirm Position On Counsel Interference and Impose Penalty when Found Coverage Example 1: Josefina L v. SSA EEOC Appeal No. 012016760 July 10, 2018 Agency attorney directly influenced manager’s written testimony for the EEO investigator. The attorney “reviewed and revised it.” Example 2 : Tammy S. v. Dept. of Defense Appeal №0120084008 (June 6, 2014)
23. Coverage Example 3: Larraine D, et. al v Samantha Power (AID) Appeal Nos. 2020003744-2020003746 Complainants requested sanctions when General Counsel interfered in complaint process and agency found “no discrimination.” In Larraine D, et..al the EEOC remanded the case back to the agency without sanction, event after the EEOC found: • Agency’s the [Office of Civil Rights and Diversity (OCRD)] failed to maintain its impartiality in drafting the final decisions in Complainants’ cases. • “ . . .the actions by the OCRD in accepting the work product of its [General Counsel] as a starting point for issuing its final decision to impinge the integrity of the EEO decision-making process. • “ . . .we find the actions by the [Office of Civil Rights and Diversity] in this case to be improper” (p5). RECOMMENDATIONS 16 (CONT’D) EEOC Should ReAffirm Position on Counsel Interference and Impose Penalty when Found Insight: As the EEO reiterated in the Agency International Development (AID) class action case below -- “impartiality and the appearance of impartiality is paramount to the credibility of the equal employment program” (p5)
24. RECOMMENDATIONS 17 Ban “Administrative Judges” (AJ) From Using Summary Judgement Coverage Administrative Judges . . . • Use Summary Judgements as a way to reduce backlog • Dismiss cases without giving plaintiffs discovery • Sit years on cases; then dismiss with little or no explanation • Make factual findings in favor of agency absent of reliable evidence supporting defending agency’s arguments. • Credit information in agency’s brief & investigative file (Note: the investigation is controlled by / paid for by defending agency) Insight: AJs are not Administrative Law Judges. They lack autonomy to judge fairly. Yet, the EEOC empowers AJs, who have no subpoena power, to deprive an aggrieved party of a hearing if the AJ decides some or all material facts are not in genuine dispute.
25. RECOMMENDATION 18 Obtain Legal Opinion: Eliminate Preliminary Class Certification Requirement. Focus on Merits and Class Relief, if appropriate Coverage • The certification requirement holds civil servants hostage in the administrative process for years Janet Howard, et. al v Commerce Fogg v Marshals Service Taylor v Social Security Administration USDA Forest Service Firefighting Crew “Open Letter” • Dennis Turner.et al vs Bureau of Prisons (1999-Present) • To promptly address systemic discrimination impacting federal workers, and to provide class relief as soon as possible , when needed, EEOC should eliminate the “certification” process and focus on the merit(s) of a claim an aggrieve party brings that has class implications. Insight: EEOC’s regulations impose a class action “certification’ requirement that fails to carry over into court setting.
26. RECOMMENDATIONS 19 Create Civil Rights Liaison Position Coverage • A civil rights/EEO liaison position could be created to follow- up with Human Resources (HR) when an obvious personnel abuse is raised during complaint process. • At a minimum, the EEOC should instruct agency EEO practitioners to issue a referral letter to H.R. advising officials of a likely personnel infraction. Insight: EEO claims often involve personnel abuses. Yet, once an EEO case is dismissed, settled, or in court agency typically ignore credible abuses raised by the aggrieved party. Agencies fail to use their “Table of Penalties” Examples: Army, Interior, HUD
27. Recommendations to Address Key Challenges Employees Face in the Federal EEO Complaint Program “Training is not a penalty. It’s a perk the EEOC awards seasoned agency attorneys, skilled EEO practitioners, and unrepentant discriminating officials whose offenses warrant discipline.” Tanya Ward Jordan, President The Coalition For Change, Inc. (C4C)