Power Shift

n May 1995, about a week after telling his supervisor that he was HIV positive, Veterans Affairs Department medical clerk Carl Mack was fired. VA managers claimed he had abused his leave privileges. But Mack protested and filed a discrimination claim. For the next two and a half years, while the case worked its way through the cumbersome federal equal employment opportunity complaint process, the unemployed Mack fell on exceedingly hard times. He lost his home and cars, began using drugs and became estranged from the daughter who had lived with him prior to his downfall.

When Mack's case finally reached an Equal Employment Opportunity Commission administrative judge for a hearing, his life began turning around. Administrative Judge Marlin Schreffler ruled that the VA had discriminated against Mack because of his HIV-positive status, and ordered the agency to pay him $185,000 in compensatory damages, as well as back pay, and to reinstate him.

In his decision, Schreffler wrote that Mack "suffered significant depression, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life with profound adverse impact on his health. Indeed, except for suicide, it is hard to imagine a more devastating impact that discrimination could have upon an individual. . . . Complainant lost all that he held valuable. . . . The evidence establishes that complainant's problems following his discharge were directly related to and caused by his unlawful termination."

But that wasn't the end of Mack's quest for justice, because under regulations then in effect, the VA didn't have to accept the judge's decision. While VA officials didn't dispute the judge's factual findings, they reduced the damage award to $15,000, says Joe Henderson, supervisory attorney at the American Federation of Government Employees' Fair Practices Department, who represents Mack. So Mack has returned to the EEOC to challenge the VA's action. But with nearly 11,000 appeals pending at the commission, final resolution could still be some time in coming.

From now on, though, the VA and other agencies won't have the option of simply overturning EEOC decisions. In July, the EEOC issued new regulations governing the federal complaint process that make the decisions of EEOC administrative judges final. Agencies will have to appeal to the EEOC to challenge the rulings. The change represents a considerable shift of control from agencies to the EEOC, something not all agency EEO officials are pleased about.

That shift in power is just one part of an overall strategy EEOC unveiled in the new regulations to streamline the federal complaint process. All parties agree the process takes too long. In fact, it takes nearly five times as long-from initial filing to completion of appeal-to resolve a federal case as it does a private-sector case, notes EEOC Chairwoman Ida Castro. The parallel systems are governed by different regulations that have evolved over more than 30 years. For example, in federal cases, agencies conduct any necessary investigations, while in private sector cases, the EEOC as an independent third party does the job. "The inequities [between the systems] are flagrant," Castro says.

Those inequities have bred a culture of distrust between federal workers and managers. Many employees feel agencies exploit the system by contributing to the delays and often spurning administrative judge decisions. Managers, meanwhile, are frustrated by the excessive number of complaints, some of which they insist have no real grounding in discrimination. The EEOC tried to address both sides' concerns in the new regulations. "We are looking to create a fair and efficient process," Castro says.

Need for Change

The federal EEO process long has been ripe for revision. The system has become so clogged with complaints in recent years that the time taken to process each one has skyrocketed. In fiscal 1998, the typical case took almost 1,200 days-more than three years-to work its way from the initial filing through hearing and appeal. That was three months longer than the previous year, the General Accounting Office noted in an August 1999 review of the federal complaint system (GGD-99-128). The increasing delays have been caused by ever-rising caseloads. Despite the fact that in recent years agencies have cut more than 300,000 jobs, complaints filed with agencies increased nearly 60 percent from 1991 to 1998. Requests for hearings before EEOC judges jumped 112 percent, while appeals to the commission of final agency decisions rose 61 percent.

These increases, GAO pointed out, are due to a number of factors. The 1990 Americans with Disabilities Act, for example, strengthened existing federal employee discrimination protections and boosted awareness of them. In addition, the 1991 Civil Rights Act gave federal employees the right to win damage awards of up to $300,000 in discrimination cases, motivating more employees to file charges. On top of that, the Clinton administration's downsizing effort led many employees to challenge their dismissals and job reassignments by claiming discrimination.

Even with significantly increased productivity, the EEOC-which had an annual budget in 1999 of $279 million-simply hasn't been able to keep up. From 1991 to 1998, the number of hearing requests each judge processed and closed jumped from 95 to 135. During the same period, appeals of agency final decisions processed and closed per attorney rose from an average of 133 cases to 192. But the caseload is rising too rapidly for the commission to seriously attack the backlog, Castro says. "We have a workload right now that's pretty much unbearable."

Revising Rules

Under the old process, which will cease on Nov. 9 when the new regulations take effect, employees alleging discrimination have had to navigate a procedural labyrinth. The first step is to contact an agency EEO counselor, whose job it is to advise employees on their rights and propose ways to resolve a problem before it reaches the level of a formal complaint. If there is no resolution, the employee may file a complaint with the agency. Those whose complaints are rejected by the agency may appeal to the EEOC. Accepted complaints, however, enter an investigation phase, which by regulation should take no longer than 180 days but often extends longer.

Once an investigation is completed, employees must request either an immediate final agency decision or a hearing before an EEOC administrative judge, who later issues a ruling-with remedies, if appropriate. That ruling then goes back to the agency, which makes its final decision on the case. In effect, the hearing before the EEOC judge is part of the investigation phase, and agencies have had the option to accept, reject or modify judges' decisions. Employees may appeal final agency decisions back to the EEOC or file suit in U.S. District Court.

Under the new rules, agencies will have to make available alternative dispute resolution (ADR) services such as mediation during both the pre-complaint and complaint stages. Now, employees alleging discrimination will be able to choose ADR or counseling in the initial stage. The goal is to weed out early as many cases as possible so that the formal EEO process can focus on the most serious claims.

Cases that are not resolved through ADR will proceed to the investigation phase. If investigations have not been completed in the allowed 180 days, cases will be elevated automatically to the next stage, enabling complainants to request an administrative judge hearing and preventing further delays. Judges' decisions no longer will be merely "recommended," meaning that agencies won't be able to modify them. Agencies that disagree with a judge's ruling will have to appeal to the EEOC. And if the judge's decision includes an order for job reinstatement, agencies must rehire the employee pending appeal, something they were not required to do before.

On the other hand, to keep agencies and the EEOC from having to deal with unwarranted cases, the new regulations allow agencies and administrative judges to dismiss complaints resulting from "a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination." They also have the discretion to dismiss spin-off complaints triggered when processing deadlines are missed. EEOC's Office of Federal Operations estimates that 6,000 spin-off complaints are filed each year.

Opposing Views

Of the changes, the most significant-and controversial-is the new power of administrative judges to issue final decisions. Employee representatives view the revision as a long-overdue leveling of the playing field. They argue it's simply unfair that agencies have been able to reverse independent judges' decisions. From fiscal 1996 to fiscal 1998, agencies rejected about two-thirds of EEOC administrative judge decisions against them, according to the commission.

While some agencies accept virtually every decision, others seem to have an unwritten policy that all judge decisions are to be rejected, observers note. One agency EEO attorney says her recommendations to accept decisions often are overturned by the department's general counsel's office. They want to win the case at any cost so they won't be labeled a discriminating organization, she says. Agencies also reject judges' opinions to protect their managers, adds David Orr, associate director for human resources at the Court Services and Offender Supervision Agency, a recently created independent executive branch agency. "You kind of take [a decision against them] personally."

During the two-year rulemaking process, many agency officials opposed giving administrative judges final authority "in the strongest way," recalls Luther Santiful, president of the Council of Federal EEO and Civil Rights Executives, which represents EEO officials at 52 agencies. The change penalizes all agencies, but "not all agencies are bad," he says. Though Santiful says his members will faithfully implement the regulations now that they are final, the EEOC's arguments supporting the revision didn't change his mind. "Agency heads ought to be responsible for making final decisions," he says.

Many administration officials voiced strong opposition during the rulemaking period. Kay Frances Dolan, Treasury Department deputy assistant secretary for human resources, referred to the provision as "significant and troubling" in her April 1998 comments on the proposed rule. Dolan also said she believed the change would violate statutory law, which says that agencies-not administrative judges-have authority to take "final action" on discrimination complaints. The Justice Department and several other major agencies made similar arguments.

The Postal Service, which accounts for almost half of all federal EEO complaints, questioned whether administrative judges were even up to the task. The "inconsistency in the quality of the findings of administrative judges is a matter of significant concern," said Peter Garwood, Postal Service manager of EEO compliance and appeals. "The Postal Service's experience over several years has been that it is sustained by the Office of Federal Operations [on appeal] with some frequency when it rejects the recommended findings of the administrative judge."

But the EEOC wasn't swayed and stood behind the quality of its judges. After reviewing appeals data, the commission found that the "EEOC upholds administrative judges' decisions in a significant majority of all cases," the final rule says. To the EEOC, the final decision provision is a cornerstone of the revisions. "The commission strongly believes that allowing agencies to reject or modify an administrative judge's findings of fact and conclusions of law leads to an unavoidable conflict of interest and creates a perception of unfairness in the federal EEO system," the rule states.

Clearly, the reason for agencies' opposition is that they "are losing a lot of power," says Bill Bransford, federal employment attorney with the Washington law firm Shaw, Bransford, Veilleux & Roth. "I think because of their behavior in some agencies, they deserve to," he adds. "They were rejecting a lot of reasonable decisions."

Castro, however, characterizes the rule differently. "I certainly don't see it as overtaking any particular power from any particular agencies," she says. "There is no transfer of power." What the changes do, she insists, is force all parties to adhere more closely to the existing regulatory time lines so that cases can be processed faster. "It forces us all to deal with [each case] and move forward."

Broader Efforts

To complement the revised regulations, Castro announced in August a Comprehensive Enforcement Program that has been well received even by critics of the regulations. As part of the effort, EEOC and the National Partnership for Reinventing Government have formed a task force that will examine various aspects of the federal complaint process. For example, a data collection team will focus on improving the accuracy and relevancy of EEOC data, which GAO harshly criticized in June for its unreliability (GGD-99-75). With better data, the EEOC will be able to better help agencies prevent problems, Castro says.

Two other teams will focus on how to resolve disputes early in the process, as well as prevent them in the first place. And a best-practices team will help disseminate good ideas from individual agencies throughout government. The EEOC also plans to do more on-site reviews to help agencies improve their EEO programs, and beginning this month will host a series of seminars on the new regulations around the country (see the EEOC's web site at www.eeoc.gov for dates and locations).

In Castro's view, any impact the commission can have on reducing caseloads at agencies-whether via the new regulations or technical assistance-will benefit the EEOC. "I understand that my backlog has a direct relationship to whatever happens at the agency level," she says. "I encourage all the senior management throughout all the federal agencies to work with me and my staff so we can achieve success. It will only happen if we have a partnership."

Ultimately, the success of Castro's efforts will depend on several factors outside her control. First, Congress will have to appropriate enough money for the EEOC to tackle its backlog of federal hearings and appeals, which totaled nearly 23,000 in fiscal 1998. The administration requested $312 million for fiscal 2000, but as of early October it was still unclear whether the request would be granted. Second, agencies will have to fully implement the new regulations and commit themselves at the highest levels to making ADR work.

And Orr believes agencies also must go one step further to address the root causes of EEO complaints. Agencies will never prevent discrimination-perceived or real-in the federal workplace unless they focus more attention on diversifying their management ranks, he says. "Until [employees] look at their senior managers and see the same kinds of faces, I think we're going to see these problems. The good news is we're moving in the right direction. The bad news is we're moving a bit too slowly."