No Way Out

rthur Hill, a manager for the Federal Aviation Administration and member of the Federal Managers Association, isn't taking any more chances with equal employment opportunity (EEO) complaints. He's been closely involved in several EEO complaints which, he contends, were unfounded.

As a result he's radically altered his management style, consciously distancing himself from some employees. "You meet a minority or a woman, you keep your conversations to a curt manner and that's it. You don't try to be friendly," says Hill. "Friendliness can be misconstrued, twisted out of context if you're just joking with somebody. You're better off as a manager isolating yourself from that section of the workforce."

As a government supervisor, Hill was held partly responsible for two separate complaints that his office environment was hostile to women. In both cases, employees had made inappropriate and potentially offensive remarks. But Hill said the complainants didn't confront the offenders before filing EEO complaints, and he was disappointed that top management appeared eager to settle the claims without proper investigation. Because remaining in his management position would be "counterproductive," he voluntarily took a reassignment.

Virginia Stiehl-Delgado, a former EEO officer at the Naval Facilities Engineering Command, has testified several times before Congress about her nightmarish experience with the complaint process. In 1983, she filed an EEO complaint against her manager-a Navy admiral, who was the deputy EEO officer-charging that he had created a hostile working environment by withholding information she needed to do her job and by making derogatory comments about the intelligence of women in the office.

"He zeroed in on me because I was the only one who stood up to him," she recalls. "I was called obstreperous and disrespectful." Not long after filing the complaint, Stiehl-Delgado, who had spent 35 years working for the Defense Department, was fired for "nonperformance." Her attorney dropped her case when she ran out of money. During the following five years, she developed heart problems and lost eight teeth due to stress.

Stiehl-Delgado hired another lawyer and a federal court ultimately forced the agency to award her a monetary settlement. However, the offender advanced in his career at the agency and eventually gained a reputation as an authority on sexual harassment.

Hill and Stiehl-Delgado, who represent opposite ends of the spectrum, share a common hatred of the EEO complaint process. They are worst-case scenarios in a system that most agree needs fixing.

Already this year, several prominent cases have drawn attention to the government's occasional failure to provide equal opportunity for employees:

• In January, the State Department agreed to settle a 10-year-old lawsuit, parceling out $3.8 million and granting promotions to black foreign service officers who had alleged racial discrimination.
• In June, a group of women who had won $2.5 million in back pay and attorneys fees in a 20-year-old class action suit against the Navy filed a motion for summary judgment, seeking interest on their back pay.
• In July, the Bureau of Alcohol, Tobacco and Firearms settled a 6-year-old class action discrimination lawsuit filed by black employees by agreeing to pay $4.7 million in compensatory damages and back pay.
• In July, the U.S. Court of Appeals paved the way for 1,100 women in a 19-year-old class action sex discrimination suit against the U.S. Information Agency to seek monetary damages.

Equal Employment Opportunity Commission (EEOC) legal counsel Ellen J. Vargyas says federal employees tend to be more aware of their legal rights and may be more likely to file claims because they can do so within their agency. "It's very easy to file, there's no cost involved-federal employees basically have nothing to lose," says George Nesterczuk, staff director of the House Government Reform and Oversight subcommittee on civil service.

While it is relatively easy for federal workers to file a claim, the resolution process is complicated. The system for resolving federal EEO complaints encompasses five federal agencies and involves 760 career government employees and 21 presidential appointees. According to a General Accounting Office (GAO) report, the government spent nearly $100 million in fiscal 1994 on employee complaints and appeals. EEO laws and regulations perplex both federal managers and employees-virtually everyone, it seems, who is not steeped in EEO law-and many say the system is a drag on productivity.

Managers Feel Trapped

Managers and employees have different ideas about the problems with the EEO complaint process and how they can be fixed. While managers, too, need a vehicle to file discrimination or sexual harassment claims, they believe the current system makes their job harder.

In an era of downsizing, managers are under increasing pressure to weed out employees whose performance is below par. Some say fear of being slapped with an EEO complaint discourages them from taking action against poor performers. "What might be a performance problem could come back as some kind of EEO complaint," says Nesterczuk. "We've been hearing from federal managers consistently and we sense that more and more feel intimidated by the process and exposure to false complaints."

Responding to a questionnaire on the EEO appeals process sent out by the National Academy of Public Administration, 44 human resources employees and EEO officers at federal agencies said their leading concern was the system's inability to weed out so-called "frivolous" complaints. While the number of respondents was far too small to be statistically significant, the results seem to indicate a perceived weakness in the system.

A handful of complaints are patently ridiculous. In testimony before Congress, Timothy P. Bowling, associate director of federal management and workforce issues at the GAO, noted two such complaints cited in Federal Human Resources Week, an independent newsletter. In one case, an employee said he was fired partly because of his status as an "American-Kentuckian." In another, a spurned lover filed a complaint against a co-worker alleging that she "harassed him by pointedly ignoring him and moving away from him when they had occasion to come in contact."

Outlandish claims aside, does the fear of credible complaints constrain managers? In some cases, yes. In a Merit Systems Protection Board (MSPB) poll of more than 5,000 supervisors, 17 percent said they had decided not to take formal action against poor performers because they feared being accused of discrimination. Another 34 percent said they "lack confidence in the system" in dealing with lax workers. "There's an attitude that, 'I'm a government employee and I've got protections up the wazoo, and you can't get rid of me,' " says Hill.

Federal regulations do make it difficult to get rid of under-performing employees. Managers must document performance problems and monitor employees' progress after formally granting them an opportunity to improve. Faced with the cumbersome, time-consuming process, some managers continue to accept substandard work.

Others ultimately take action against poor performers, sometimes going so far as to fire them. Between 1986 and 1994, federal managers fired an average of 12,000 workers a year for poor work performance or misconduct. On average, employees appeal about 20 percent of firings and other disciplinary actions to the MSPB. But most complainants shouldn't expect to get their jobs back. In about 85 percent of such cases, the MSPB upholds managers' actions.

Not surprisingly, employee advocates say managers are too quick to blame the EEO complaint process for inefficiencies. Acting Executive Director Lynn Eppard of Federally Employed Women (FEW), an association of women employees and managers, says supervisors sometimes complain about the process rather than take responsibility for poor management procedures. "The fear comes in when managers know they're not doing things correctly,"she says.

But apprehensions about the EEO process are not confined to a handful of bad managers, says FEW President Dorothy Nelms, who conducts sexual harassment and EEO compliance training sessions with managers throughout the country. "In almost every class I have with managers above mid-level, one of the first questions I'm asked is, 'What if I'm falsely accused?' They're beginning to really believe it [can happen to them]."

Part of the fear may stem from confusion about what constitutes inappropriate behavior. On both sides of the issue, attorneys and advocates agree that offenders aren't always aware they've acted in a discriminatory fashion, or in a manner that might be perceived as discriminatory. Federal employees may also face an institutional reluctance to believe that deliberate discrimination exists. "There are very few individual discrimination cases where people can show that somebody set out to treat them badly because they were a woman or were handicapped or a minority, because people don't do that," says G. Jerry Shaw, general counsel of the Senior Executives Association, which represents high-level government managers.

In addition, employee advocates point out that supervisory appointments are sometimes made on the basis of technical rather than managerial skills, and federal managers don't always get training to bring them up to speed on issues like sexual harassment and cultural sensitivity. The government has not set minimum standards for such training, allowing agencies to design programs to meet their own perceived needs.

Even the best-intentioned training sessions can backfire. Sometimes workshop leaders take a heavy-handed approach, which alienates the very people whom training is meant to reach. One federal manager who attended a three-day cultural diversity workshop said a number of white males left after the first day and didn't come back because they believed workshop leaders were "beating up on white males."

Culture of Discrimination

In any case, training alone won't compensate for an office culture in which discrimination is implicitly tolerated. A 23-year-old employee at the Commerce Department who has experienced ongoing sexual harassment said she had attended a two-hour training session on sexual harassment at work. But while she thought the training was a positive step for the agency, she was inclined to take the advice of seasoned office veterans. They warned her not to file a complaint, lest she "screw herself out of a job."

The number of EEO claims filed annually has risen dramatically over the last few years, up 55 percent from fiscal 1991 to a fiscal 1995 total of 27,472 complaints. Lawyers attribute some of the increase to the 1991 Civil Rights Act, which gave federal employees the right to seek compensatory damages up to $300,000 in discrimination cases, and to tighter deadlines imposed in 1992 on EEO claims processing.

In 1994, 68,000 employees contacted their agency's EEO office for counseling, the step which precedes the filing of a formal discrimination complaint. In about two-thirds of those cases, the complaint was not filed or the agency resolved the problem.

In some cases, managers grumble, agencies appease complainants to avoid damaging publicity even if complaints are questionable. "Even if there's clearly no discrimination, [the agency's] approach is, 'What can we do to make this go away?' " says Hill. One federal manager was threatened with an EEO complaint when she sought to put a poor performer on an improvement plan. "I had a lot of pressure put on me by the EEO [office] to forget it, so I ultimately did," she recalls. In 1994, about two-thirds of MSPB cases and one-third of EEOC cases were settled before they could be decided on their merits.

Many workers don't settle, though. In fiscal 1994, 24,600 filed formal discrimination complaints with their agencies. At this stage, EEO employees or agency subcontractors investigate and record an incident, explain the EEO process to complainants and, ideally, facilitate a resolution.

At this point some complainants notice subtle, or not-so-subtle, shifts in the attitudes of their managers. Reprisals against complainants are not uncommon, say employees, and may include punishments for minor infractions like tardiness, close scrutiny of time-off requests, reduced opportunities for training and arbitrary changes in work assignments. Workers may also notice a change in their work evaluations, says Eppard of FEW. "Their performance [reviews] start going down; there are sometimes dramatic swings that can't be reasonably explained." Oscar Eason Jr., president of Blacks in Government, says it is not uncommon for employees to follow up their first EEO complaint with another complaint to protest retaliation.

The investigation process is often perceived as weighted against employees, since agencies investigate their own personnel and practices. EEO employees may fear they could injure their careers by overzealously pursuing claims against the agency, and critics say they lack incentives to dig to the bottom of a case. "The system is tilted in favor of management, because the ultimate report is done by an EEO officer who answers to the head of the agency," says one former federal manager.

Also, EEO employees don't always comply with time limits. "I think agencies attempt to follow guidelines, but there's no way an employee can say, 'Time's up,' " says Joe Henderson, the supervising attorney for the Women's Fair Practices Department at the American Federation of Government Employees. "There's no great conspiracy; these agencies are just in the business of doing other things."

After completing investigations in discrimination cases, agencies turn over findings to the EEOC field office, and a complainant may attend a hearing to present his or her case before an administrative judge. After reviewing the complainant's investigative file, the judge issues a recommendation-not a ruling-to the agency, which then issues a decision on the complaint. Lawyers who have represented federal employees point out serious limitations in the authority granted to EEOC administrative judges, who can't compel witnesses to testify or require agencies to hand over incriminating documents during hearings.

Perhaps more importantly, agencies are not required to abide by EEOC recommendations, and critics say agencies disproportionately reject findings against them. In fiscal 1994, agencies accepted only 41 percent of the EEOC's findings of discrimination; they accepted 83 percent of findings of no discrimination.

Workers can appeal agency decisions, however, and an increasing number are choosing to. Between fiscal 1991 and fiscal 1994, the number of appeals to the EEOC increased by 42 percent.

A Tangle of Agencies

There are four agencies besides the EEOC which consider federal workers' appeals, though the commission handles the bulk of discrimination cases. The Merit Systems Protection Board deals with firings and other disciplinary actions. The Office of Special Counsel focuses on prohibited personnel practices like nepotism and Hatch Act violations and also considers reprisals against whistleblowers. The Federal Labor Relations Authority adjudicates disputes between agencies and unions. And the Office of Personnel and Management reviews job classifications.

Some appeals agencies have overlapping jurisdiction, which critics say contributes to systemic inefficiencies. For example, a complainant alleging he or she was fired because of discrimination would first appeal to the MSPB. If the MSPB upheld the dismissal, the complainant could appeal to the EEOC. Such cases are rare, though. In fiscal 1994, the EEOC considered appeals of 200 MSPB nondiscrimination rulings. It disagreed with the MSPB in only three cases. In each of those cases, the MSPB subsequently adopted the EEOC's position.

Others criticize the system because federal workers, unlike their private sector counterparts, are allowed both a hearing before a judge and an opportunity to appeal their complaint to the EEOC. Some say they're unfairly allowed "two bites of the apple." But federal and nonfederal workers alike can choose whether to pursue their claims in administrative or judicial forums, says Vargyas of the EEOC. "It's important not to isolate out one element" for comparison, she says.

By another measure, government employees have fewer legal protections than those in the private sector. The 1991 Civil Rights Act gave private sector employees a powerful legal weapon to brandish in discrimination cases: the right to ask for compensatory and punitive damages. Government employees can request only the former. Faced with the prospect of huge settlements, private sector employers may be more likely to deal harshly with discriminatory behavior.

The administrative complaint process was originally conceived as a way to solve problems outside the courts. Ironically, though, some federal workers now rely on lawyers to help them navigate the complex system. Nelms reported that many FEW members choose to go into debt to pay for a lawyer rather than go through the arduous process alone. Llewellyn Fisher, former general counsel for the MSPB and one-time associate general counsel for OPM, observed in congressional testimony in 1995 that "only a naive employee would proceed without the assistance of an attorney or other counsel."

Finding a lawyer who'll take an EEO case can be difficult, says attorney Joseph Sellers, who heads a coalition of civil rights groups and labor unions pressing for reforms in the process. "There are a number of lawyers in town who will not touch a case with the federal government because they believe the federal government is so immune to market pressures. It can wage a war of attrition." Jane Lang, a Washington attorney at a law firm specializing in class action discrimination cases, recently decided not to take any more federal EEO cases after settling an eight-year case against the Labor Department. During that period, a stream of U.S. attorneys came and went, and Lang was obliged to continually educate newcomers on details of the case.

But time lags are not necessarily the fault of the agencies processing cases. The spiraling number of EEO complaints has increased the amount of time it takes to resolve cases. Between fiscal 1991 and fiscal 1994, the backlog of requests for EEOC hearings increased by 65 percent. The most recent statistics reveal the average time from the filing of a complaint to the commission's decision on an appeal was more than 800 days.

The process doesn't end even when appeals agencies rule in favor of complainants. Attorneys for employees contend that agencies don't always comply with settlements. Lang was frustrated by inadequate enforcement efforts. Without a provision for a third-party enforcer, she says, federal employees end up "getting the short end of the stick."

Critics charge, too, that discriminators get off too easy in the federal government. In theory, they risk losing their jobs, but in practice, little happens to them. The EEO complaint process is focused on helping victims rather than punishing offenders. When discrimination or harassment is proven, complainants may be eligible to receive back pay, promotions, or reassignments and recover attorneys fees and costs. However, says Sellers, "Agencies are loath to discipline proven discriminators. They advance in their careers. They thrive." The Commerce Department employee who had been sexually harassed said two female predecessors who had also been harassed simply left their jobs when it became clear that no one would tell the offending manager to leave them alone. The employee recently applied for a transfer.

Finding a Fix

What can be done to improve the EEO complaint process? There's been no shortage of proposals. Sellers estimates that as many as 12 congressional hearings have been held over the last 10 years to examine problems and solutions. A task force at the EEOC is studying the need for reforms in the federal sector. In February, President Clinton issued an executive order for agencies to review their adjudicatory processes with an eye to speeding up resolution and to encourage the use of alternative dispute resolution (ADR), an increasingly popular mechanism that seeks to defuse workplace arguments before they become formal complaints.

As recently as 1992, some regulations governing EEO complaint processing were modified to streamline and impose time limits on claims processing. Those familiar with the system say the changes, while helpful, didn't go far enough.

The push for more fundamental reforms gained new momentum in 1994, when the proposed Federal Employee Fairness Act won backing from civil rights activists, labor unions and federal managers groups. The bill would give the EEOC primary responsibility for claims processing and grant administrative law judges wider latitude to weed out frivolous cases. It also would encourage the use of alternative dispute resolution. After being voted out of key committees in the House and Senate, the proposal fell by the wayside when congressional campaigns began heating up in 1994. It was reintroduced in the House in July 1995, but hasn't been voted on in committee.

A recent initiative favored by the Administration, the 1996 Federal Personnel System Reinvention Act, would give managers more latitude with a streamlined procedure for firing poor performers. It would also would eliminate the right to appeal denials of in-grade promotions and pay raises. The proposal hasn't been voted on in committee.

As originally written, an omnibus civil service reform bill in the House would have made two significant changes in the EEO process. It would have required those alleging discrimination to choose one forum for appeals, and it would have prevented them from repackaging an unsuccessful complaint and attempting to pursue it at a different appeals agency. Both those provisions were dropped last summer, due to lawmakers' objections and the protests of employee groups and unions. The House subsequently passed the bill, but the Senate didn't take it up before adjourning in October.

Nevertheless, those on both sides of the complaint process say there's growing momentum for change. In an era of federal belt-tightening, the expensive, polarizing EEO process is a clear candidate for a makeover. Waves of recent downsizing have highlighted the need to streamline disciplinary procedures for poor performers and make the federal workforce more efficient.