Federal agencies will be able to more easily dismiss discrimination complaints against managers, under new Equal Employment Opportunity Commission regulations.
The new regulations, in the works at EEOC for two years and set to take effect in November, will help weed out frivolous discrimination charges made by people who abuse the EEO redress system, the commission hopes. But critics worry that agencies will invoke the new authority to dismiss complaints too frequently.
Under the new regulations, agencies can dismiss complaints if there is "a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination."
To address critics' concerns that agencies will use the new authority arbitrarily, the commission has set criteria for agencies to follow when determining whether to dismiss a case. Agencies can dismiss cases when it appears that an employee is:
- "circumventing other administrative processes such as the labor-management dispute process"
- "retaliating against the agency's in-house administrative machinery" or
- "overburdening the EEO complaint system"
An agency cannot dismiss a case just because an employee files a lot of complaints. But the agency can dismiss a case if the employee files numerous complaints of frivolous, identical or vague allegations, or filings of allegations that have already been resolved.
The new authority is part of the EEOC's attempt to reduce the federal government's burgeoning backlog of unresolved discrimination complaints. The average age of cases sitting in the government's backlog is now almost 15 months, according to a General Accounting Office report released this week ("Equal Employment Opportunity: Complaint Caseloads Rising, With Effects of New Regulations on Future Trends Unclear," GGD-99-128). Weeding out frivolous complaints will also help the government focus on legitimate discrimination allegations, the EEOC said.
The GAO study, however, found that the EEOC has no data to show whether the new regulations will improve the federal EEO process.
G. Jerry Shaw, a Washington, D.C. attorney who specializes in federal matters, said he is hopeful the new authority will improve the federal EEO redress system, but cautioned that it will take time for agencies to learn how to wield the authority.
"I hope agencies really do take seriously their new ability to get rid of egregious cases. They clog up the system," Shaw said. "EEOC has tried to establish some relatively objective criteria, but it will take some case law before there's agreement on what complaints ought to be gotten rid of."
Agencies can also dismiss so-called "spin-off" complaints, or complaints about how complaints are being handled. Spin-off issues should be addressed as part of the original case, rather than as unique cases, EEOC said. "The spin-off allegations are so closely related to the underlying complaint that a separate complaint would result in redundancy, duplication of time and waste of resources," EEOC said.
The new regulations also give more power to EEOC's administrative judges, making their decisions binding unless agencies want to formally appeal them. Under current rules, agencies can reverse or modify EEOC judges' decisions if they don't like them. Agencies do so in two-thirds of decisions found in favor of employees. Under the new rules, agencies will have to either accept the judges' decisions or file appeals with the EEOC.
Shaw said EEOC has to better train its judges to make the change work.
"The quality of the recommended decisions by the administrative judges has been spotty," Shaw said.
While the new rules are meant to streamline the EEO complaint process, EEOC Chairwoman Ida Castro expects the complaint backlog to rise, not fall, when the new regulations first take effect. The commission, as well as agencies, must go through the backlogs of complaints to see which ones filed by the same employee should be combined, which should be rejected under the new dismissal process and which are affected by other aspects of the new regulations.
"While we are optimistic about the long-term potential of the revised regulation to have a positive impact on the fairness and efficiency of the federal sector process," Castro wrote in response to this week's GAO report, "in the short-term we anticipate that the regulation will increase workloads at the agencies and EEOC."
Shaw also expects a surge of new cases under the regulatory changes.
"There are certainly going to be a lot more attorneys willing to file EEO complaints under these new regulations because they're going to be able to do it in a way that's going to bring cases to trial a lot earlier than previously," Shaw said. "I hope EEOC is able to handle that surge."
EEOC is hoping that agencies will develop strong alternative dispute resolution programs to prevent cases from ever being formally filed. George Washington University, the Merit Systems Protection Board and the Public Administration Forum are hosting a new training course to certify federal officials in dispute resolution techniques.
Castro asked Congress for a $4 million budget boost for the federal sector EEO program in fiscal 2000 to help implement the new regulations. But neither the Senate nor the House version of the 2000 Commerce-Justice-State appropriations bill headed toward conference when Congress reconvenes in September contains a budget increase for EEOC.
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