New Agreement Creates Alternative Path for Feds to Resolve Discrimination Cases

Two agencies have struck an agreement to enable federal employees to more quickly resolve cases involving alleged workplace discrimination or harassment, creating a new alternative path to a formal hearing.

The Equal Employment Opportunity Commission will begin identifying cases to send the Federal Mediation and Conciliation Service under a memorandum of understanding the agencies signed on Thursday. Employees bringing allegations against their agency to the EEOC will now have the option to voluntarily seek to resolve their cases before an FMCS mediator rather than going directly to an administrative judge. If the two sides are unable to reach a resolution through mediation, the case could then go back to the EEOC for a hearing.

While increased hiring helped EEOC slash its federal sector backlog to a 12-year low in 2018, the inventory still stands at 14,000 cases. The agreement will provide a new avenue to further cut away at those pending cases, according to Reuben Daniels, EEOC’s acting chief operating officer. EEOC’s 90 administrative judges have, on average, 155 cases pending, a number the agency would like to reduce to between 70 and 90.

EEOC is “very optimistic that we can do better,” Daniels said. The MOU will “help us expedite us that process for employees and their employing agency.”

Victoria Lipnic, EEOC’s acting chair, said further reducing the backlog is essential to providing quality customer service to the American workforce.

“Charges of discrimination in our federal workplaces are no less important than the private sector,” Lipnic said.

EEOC will only target individual, rather than class, cases for FMCS referral. Both parties—the employee and agency—would have to agree to go to mediation, Daniels said. EEOC will formally close out cases that reach a resolution, but will not attempt to alter any agreement struck between two parties during mediation.

After receiving a case, FMCS’ Office of Conflict Management and Prevention will route it to the appropriate regional manager, who will in turn assign it to a mediator. The mediators will not issue any decision, written or oral, but will establish a “safe, orderly space” for employees and their agencies to discuss their demands and the concerns underlying them, said David Thaler, senior adviser to FMCS’ office of the director.

The agreement is novel to FMCS because its 160 mediators usually help resolve cases before they reach the formal stage. They will now assist in cases already at the administrative judge stage, after an agency has already launched its own investigation without settling the employee’s concerns. EEOC will be a paying client to FMCS, which does not receive a congressional appropriation for that work.

Thaler said EEOC approached his agency to help it tackle its “tremendous backlog.” The goal, he explained, is not to reduce the backlog to zero.

“That would be impossible,” Thaler said, “but we want to make a dent.”