EEOC proposes changes to federal discrimination complaint process

The Equal Employment Opportunity Commission this week unveiled a wide range of changes to how discrimination complaints in federal agencies are filed, processed and decided.

The recommendations were the product of an internal agency working group, led by acting EEOC Chairman Stuart Ishimaru, and inspired by a 2002 public meeting held to solicit suggestions for improving the EEO complaint process.

Peggy Mastroianni, EEOC's deputy legal counsel, said the working group decided to proceed with incremental changes that would update the complaints process and make agencies more aware of their responsibilities.

EEOC stakeholders have in the past proposed broader overhauls -- suggesting, for example, that agencies no longer be allowed to perform initial investigations of discrimination complaints, or that the federal complaint process be modified to look more like the private sector process. But Mastroianni said the working group focused on issues on which it could reach consensus.

Among the process updates EEOC outlined in a Federal Register notice published on Monday was a requirement that agencies file responses to complaints electronically, and that federal employees be encouraged to file complaints online as well.

Gabrielle Martin, president of the American Federation of Government Employees Council of EEOC Locals, cautioned that such a process might disadvantage certain federal workers.

"If electronic submissions are to be the norm, agencies must be accountable for providing this technology to complainants," Martin said. "Otherwise, this will be another strike against complainants who paper file and whose files are not as readily [or] easily reviewable, causing dismissals."

The proposed regulations also would change the way class complaints are handled. Currently, after administrative judges render decisions in such cases, agencies can accept, reject, or modify the findings in their final decisions. The regulations would make judges' findings final, giving agencies the option only to accept or appeal them.

In addition, under the proposed regulations, if an agency failed to finish an investigation into a discrimination complaint within the 180-day time limit, it would be required to inform the employee who filed the complaint when the investigation would be finished. The agency also would have to let the employee know he or she had the right to request a hearing into the complaint or to file a lawsuit.

Colleen Kelley, president of the National Treasury Employees Union, said the EEO process required a more thorough overhaul, but praised the notification requirement.

"Everyone agrees that agency investigations go on too long," she said. The notification regulation "provides a useful reminder to employees of information provided at the initial filing of the complaint, and it may serve as an incentive to agencies to timely complete the investigation process."

In the Federal Register notice, EEOC officials also said the agency "intends to provide a mechanism for reviewing and seeking compliance from agencies that fail to comply with the requirements" of a number of EEO directives. The percentage of departments and agencies that filed mandatory reports about their diversity fell from 68 percent in fiscal 2005 to 50 percent fiscal 2006, the advocacy group Federally Employed Women told the Obama transition team in January.

Mastroianni declined to comment directly on whether a goal of the working group was to improve agency compliance with EEOC directives, but said "there definitely was a feeling that the process could be improved."

Several provisions in the proposed regulations may make things easier for agencies. One proposal, for example, gives agencies more time to pay penalties to employees who win discrimination cases. Current rules require agencies to pay 60 days after the EEOC issues a judgment against them, but the proposed rule would set the time at 120 days. That means agencies wouldn't have to pay workers before they file suit in district court, which they are allowed to do within 90 days of an EEOC ruling.

Another proposal would allow agencies to run pilot programs to experiment with almost any part of the complaint process. The Government Accountability Office reported this summer that a pilot system, coupled with strong oversight, could help find efficiencies in processing.

"We want to know if there's a better way to do anything -- to do any aspect of this process," Mastroianni said. "It's the same notion when you look at federal legislation: The states are laboratories for change. We don't have any particular mindset about pilots we expect. We're really looking forward to getting some new ideas."