Justice Delayed

Andrea Brooks, vice president of the women's and fair practices department of the American Federation of Government Employees, says it is an indication that the head of the Equal Employment Opportunity Commission thinks federal employees who file discrimination complaints are merely "whiners." Leroy Warren, chairman of the National Association for the Advancement of Colored People's federal task force, compares it with Jim Crow laws.

"It" is a change in the way the EEOC processes cases in only one of its 50 field offices. Under the plan, unveiled in a March memo and updated in May, two high-ranking commission managers will vet incoming claims and recommend them for dismissal, summary judgment (if the facts are not in dispute and judgment clear), or for a hearing before an EEOC administrative judge. The goal, says EEOC Washington Field Office Director Dana Hutter, is to speed processing of easy-to-resolve claims that normally would take months to decide, thus allowing the agency's administrative judges to focus on the toughest cases. The judges will remain the final arbiters, retaining the option to overrule the commission managers' recommendation.

But civil rights activists and labor union representatives blast Hutter's reform, saying it will prejudice EEOC judges before they have the opportunity to review a case. For EEOC Chairwoman Cari Dominguez, their opposition marks another trying moment in her nearly two-year quest to streamline the EEOC case-processing system. It's a goal that everyone agrees is critical, considering that simply setting up and conducting a hearing on a discrimination claim takes on average more than 400 days. But in such a charged atmosphere, compromises have proved elusive.

"The system needs to be fixed, but not gutted," says Francis Polito, an EEOC judge in Philadelphia and president of an association representing administrative judges at the agency. "In trying to separate the wheat from the chaff, we need to be sure that we don't discard the wheat."

The current EEO process in the federal sector is an intricate one, with numerous stages devised to ensure that employees have every opportunity to bring forth evidence of discrimination. But the process, despite its noble intentions, is broken. Because of the ease with which employees can file claims, they do so at a far greater rate than private-sector workers. In 2003, more than 20,000 of the 2.5 million employees in the federal government (including U.S. Postal Service workers) filed EEO complaints, compared with 85,000 of 140 million private-sector workers. Because no other forum for airing complaints is so welcoming, federal employees bring into the EEO system cases dealing with simple job frustrations that have little or nothing to do with discrimination.

At the same time, any proposed change to the process sparks intense scrutiny from civil rights groups, lawyers for complainants, unions, administrative judges and EEO counselors at agencies, who receive the claims and have the first crack at trying to resolve them. The result, unfortunately for employees and managers awaiting adjudication of discrimination claims, has been deadlock. And Congress at this time has shown little inclination to address the situation.

Breaking the logjam won't be easy. As Hutter's efforts demonstrate, any misstep can bring charges of racism. The path out of the firestorm requires leadership from the EEOC and a willingness in Congress to spend money in the short term with the expectation that long-term cost savings will materialize.

Tell It to the Judge

One way to ensure legitimacy and still speed up the process would be to let judges make the preliminary decisions. The EEOC's Dallas office already runs a process almost identical to Hutter's. But in Dallas, Chief Administrative Judge Dwight Lewis, not an EEOC field office manager, vets the cases for his colleagues. No one seems to oppose Lewis' method. "Why should a guy wait six to eight months to be told his case was filed in an untimely way?" Lewis asks.

But implementing such a system nationwide would require additional support staff to help judges manage the triage stage. "The EEOC is one of the most underfunded agencies in the federal government," says Gary Gilbert, a former chief administrative judge. The EEOC must hire more administrative judges and pay them better, he argues. Commission judges often complain that they are paid less than their counterparts at the Merit Systems Protection Board, the federal agency that adjudicates employee appeals of agency disciplinary decisions. Gilbert also notes that EEOC judges "don't have paralegals and clericals, and as a result they can't handle a simple caseload."

More detrimental, though, are limits on the judges' role in the system. In 1999, the EEOC made judges the final arbiters in the process, replacing a system in which agencies were allowed to simply reject judges' decisions. But the reforms left in place the old apparatus for dealing with discrimination claims at the agency level.

Employees' discrimination complaints are initially referred to EEO counselors employed by agencies. The counselor's job is to review claims, attempt to mediate them, or dismiss them if they do not meet procedural requirements-such as being filed years after an alleged incident. If the claim is deemed valid, then the agency must investigate it (although many agencies hire contractors to conduct such investigations). After the investigation, the employee can request either a final decision from the agency (with the further option of an appeal to the commission's Office of Federal Operations), or demand a hearing before an EEOC judge.

One frustration for complainants is that the commission does not enforce a 1999 regulation requiring agencies to immediately notify an employee of his right to request an EEOC hearing if the accused agency does not complete its review of the case within 180 days. Across government, the agency investigation process averages about 270 days.

Since the 1999 reforms, agencies' quasi-adjudicatory role has been rendered superfluous. It makes little sense for an employee who thinks he's the victim of discrimination to trust the agency to render the ultimate decision. As a result, most employees opt for an EEOC hearing.

On top of that, agencies make little effective use of their adjudicatory powers. For example, counselors often refuse to dismiss cases that don't meet basic procedural requirements out of fear that the employee will appeal the dismissal to the Office of Federal Operations. "If we dismiss a case, and the person appeals to the OFO, they may not get to it for three years," says Delia Johnson, co-president of the Council of Federal EEO and Civil Rights Executives and director of the Civil Rights Office at the International Broadcasting Bureau. "If they make a determination that the case should have been accepted, we have to go back after three years and try to find the witnesses."

Early Dismissal

Congress also could help by allowing EEOC judges to use their discretion to decide whether or not a case merits a full-blown investigation and hearing. Minor cases could be directed to mediation. The Merit Systems Protection Board benefits from a minimum threshold cases must reach to receive consideration. To appeal to MSPB, an employee must have received a suspension of at least 15 days.

But the danger of such a judge-centric process is that EEOC judges lack the incentive and inclination to improve the efficiency of the system, according to one federal manager who's followed the reform process closely. The judges, this official says, have tended to be too generous in their willingness to hold hearings on cases that should be resolved quickly with summary judgment. Someone must manage the system to ensure that the EEOC sticks to its mission of adjudicating legitimate discrimination complaints, this official argues. Otherwise, the backlog will continue to grow.

Likewise, even if judges are given more power, agency EEO counselors would continue to play an important role. They know their agencies much better than the judges do, and are well-positioned to encourage parties involved in complaints to seek mediation. Many EEOC reformers argue that the mediation process should be mandatory. "EEOC accepts nearly every case on its face, and you don't have to do that," says Jomoya Mobutu, a senior EEO specialist at the Veterans Benefits Administration. Cases that clearly don't involve discrimination should go directly to mediation, he argues.

Counselors also could provide training for federal managers on how to avoid discrimination charges by improving their communication skills. This training could be critical if it changes managers' perceptions about resolving workplace conflicts. A recent EEOC study found that federal managers often resist mediation because they believe that colleagues see participation in the process as an admission of guilt.

"Managers feel threatened from the get-go," says Professional Managers Association President Ray Woolner. "What I see is that the process doesn't seem to look for resolution as quickly as it looks for fault or blame." Counselors who could convince both parties that mediation is in their interests would be the superstars of the EEO process.

The Resource Issue

The approach also would save money, because agencies wouldn't have to conduct formal investigations of the many cases that do not reach the threshold required to prove discrimination. These investigations, of even the most minor claims, can take months to complete.

But for these changes to be implemented, civil rights groups, federal agencies, unions and Congress all would have to put aside their parochial concerns. Congress has shown little interest in reforming the EEOC process, and none in providing the commission with more resources. Last year, the commission nearly had to shut down for 16 days when its funds ran out. This year, Congress again denied EEOC funding to implement management changes recommended by the National Academy for Public Administration that would improve the agency's efficiency.

Part of the problem is that union advocates have opposed even the modest reforms NAPA has proposed, the most prominent of which was to close some EEOC field offices and open a national call center aimed at advising potential complainants. Unions oppose the move because it would presumably cost some jobs. At the same time, civil rights advocates are likely to resist any effort to fast-track certain cases and deny employees the opportunity to a full hearing before a judge.

The toughest nut to crack, however, will be the agencies that fought the 1999 reforms and have sought to protect their EEO counselors and adjudicators. It's a turf war, and agency EEO counselors argue that it is they who should be granted additional authority to dismiss cases, essentially taking on the powers of an administrative judge. But given the perception that EEO counselors are servants of the agencies that employ them, they will face an uphill battle.