Implementation of anti-discrimination law falls short, say supporters

When Congress passed the 2002 Notification and Federal Employee Anti-Discrimination and Retaliation Act, it required agencies to publicly report discrimination complaints as well as pay for the settlement and judgment costs of cases.

But it left the details of implementing the law up to the Equal Employment Opportunity Commission and the Office of Personnel Management, and the implementation effort has been the source of some controversy. In January, when the EEOC issued interim rules for the reporting of discrimination complaints, it received a slew of complaints.

Civil rights advocates said the agency did not require agencies to make their discrimination information easy enough to understand. Monday, when the EEOC and OPM published their plans to issue revised final rules in March 2005, they were met with skepticism.

"They're basically carrying out this exercise in a rote and unserious manner," said Marsha Coleman-Adebayo, a senior policy analyst at the Environmental Protection Agency and one of the driving forces behind the No FEAR Act. "We are looking for more guidance," she said.

The interim rules published by the EEOC in January require each agency to publish discrimination data, including requests for hearings and appeals, in a portable document format (PDF) online, and in printed text, in addition to specifying that agencies must post a link to the data on their Web home pages. The plan of EEOC and OPM officials to issue the final rules in a few months were printed as part of their Semiannual Regulatory Agendas, which all agencies publish in the Federal Register to tell the public what regulatory actions they are working on or have recently finished.

"The final guidance will probably look very much like the interim final. We don't anticipate there will be huge changes because the statute is pretty specific," said Thomas J. Schlageter, assistant legal counsel at the EEOC.

Coleman-Adebayo and other No FEAR supporters, including Rep. Sheila Jackson-Lee, D-Texas, want more significant changes to the interim rule. They have criticized the EEOC and OPM for not working more closely with the No Fear Coalition, the group that originally advocated for the passage of the bill, to capture what they consider to be the intent of the act.

Coleman-Adebayo said the current rules are too vague, and result in agencies publishing statistics that are hard to compare. "It makes the information useless to the average citizen or federal worker who would like to get a handle on what is happening at the agency. They have to go through 30 to 40 pages of information," she said.

Currently, the formatting for the No FEAR data varies by agency. For example, the Labor Department includes the information in PDF and HTML format. It lists the total number of complaints filed and then the bases for each complaint, such as age or sex. It also provides information about the average length of investigations and time until final actions.

The Treasury Department, on the other hand, only includes links to PDF and Excel spreadsheets of data, and has many spaces where "n/a" -- for "not available" --replaces actual numbers.

If the final rules do not provide better guidance, then Coleman-Adebayo said she and her allies will pressure Congress to adopt a No Fear Act II, which would require agencies to more clearly report their discrimination information.

An EEOC spokesman said the agency is considering all feedback, positive and negative.

Not everyone is eager for big changes to the interim rules. "I support uniformity, but the EEOC should have had a uniform way of reporting when they first came out with the interim rules. To change a year later would cause too much disruption," said Jorge Ponce, co-chair of the Council of Federal EEO and Civil Rights Executives, which represents federal EEO professionals.

He added that OPM has been too slow to respond to No FEAR. "They should have issued some guidance much, much earlier," he said, "considering that the No FEAR Act was signed by the president May 15, 2002."

OPM did not return calls seeking comment.