The Impartial Processing Of Discrimination Complaints by Federal Agencies – Myth or Reality?

By Jorge E. Ponce, NewsTaco

According to the regulations found in the Code of Federal Regulations, “it is the policy of the Government of the United States to provide equal opportunity in employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, age, disability, or genetic information …” and each agency shall “provide for the prompt, fair and impartial processing of complaints …” These are important protections for employees to ensure that everyone gets hired and promoted according to their performance record, rather than on prohibited personnel practices where merit takes a back seat.

But is the “impartial processing of discrimination complaints” a reality for employees? The answer to this question is “it depends.”  This is an important issue for Hispanics considering that they have been underrepresented in the federal workforce since 1970 – a 44-year challenge.  According to reports from the U. S. Office of Personnel Management, Hispanics represented 8.2% of the federal permanent workforce and 4.1% of the Senior Executive Service position in fiscal year 2012, while they were concentrated at the lower grades (GS 5-12) of a 15 grade-level pay system.  The 2006-2010 EEO Tabulation, prepared by the U.S. Census Bureau, shows Hispanics – including those who are U.S. citizens, and those from the island of Puerto Rico – as making up 10.8% of the Civilian Labor Force. The underrepresentation is for real.

One of the key factors for employees to enhance their chances of getting a finding of discrimination is to hire an attorney.  But this is an expensive proposition that is suitable only for those in the higher income brackets.  The rate for a competent attorney in employment law in the Washington, DC Metropolitan Area is $500 per hour, and the legal fees for the successful prosecution of a discrimination complaint could go up as high as $50,000.  Not many employees at the lower pay grades can afford these fees.

So, what normally happens to save money is that employees who think that they’ve been discriminated against request a final agency decision on the merits of the complaint and bypass the need to retain legal counsel.  It is only those employees who request a hearing before an administrative judge from the U.S. Equal Employment Opportunity Commission (EEOC) who normally get an attorney to represent them – as a hearing is similar to a judicial trial.  But, to ensure the fairness of the process when a final agency decision is at play, neither the employee nor the manager should get an unwarranted advantage.  This is not what typically happens.

Some agency attorneys are in the habit of reviewing, editing, and changing the affidavits submitted by management officials accused of discrimination during the investigation of these complaints.  This onerous practice tilts the balance of fairness in the managers’ favor and exceeds the role that agency attorneys should be playing.  The goal of these attorneys becomes winning at all cost, rather than what they were hired for by agencies (to eradicate discrimination by all means necessary).  The end result is that some of these managers who may be guilty of discrimination are exonerated not because of their innocence, but because the intervention of agency attorneys.  And everyone comes out on the losing end – except the manager who discriminated against his/her employees and feel emboldened to continue doing so in the future.

On March 25, 2003, the Council of Federal EEO and Civil Rights Executives and a coalition of civil rights, employee advocate, and other stakeholder groups submitted a letter to EEOC with the thought of improving the Federal EEO process.  Among the recommendations was one to prohibit agency counsel from interfering with the EEO investigation.  On August 12, 2009, the Government Accountability Office issued report GAO-09-712, where it addressed the necessity to get a handle on this challenge, and the Acting EEOC Chair went as far as writing a letter stipulating that “we are finalizing a document on the appropriate relationship between agency EEO offices and agency defense counsel.”

To document this issue even further, I turn to the statistics reported in the EEOC’s Annual Report on the Federal Work Force, Part I, EEO Complaint Processing for Fiscal Year 2011.  Agencies issued 52 (1.17%) final agency decisions with findings of discrimination, as compared to 160 (5.3%) final orders of EEOC administrative judge merit decisions with findings of discrimination.  Put differently, employees who request a final agency decision had a 98.83% of getting a decision where discrimination was not found, while those requesting an EEOC hearing had a 94.7% rate of getting a final order where discrimination was not found.  Getting a finding of discrimination from the agency or from EEOC is not an easy proposition, but it is much more difficult to get one when requesting a final agency decision.

I posit that one of the reasons for the lower rate of findings of discrimination when dealing with final agency decisions is because of the role that agency attorneys play in reviewing and editing the affidavits from managers accused of discrimination.

After 11 years of waiting for a solution to this challenge, it is time for the EEOC “embrace the fierce urgency of now” and clarify this issue once and for all. But let’s be clear about one thing.  What employees have been waiting for 11 years is for the EEOC to revise its Management Directive 110 to keep agency attorneys from revising, editing, and changing the affidavits of affidavits of management officials who have been accused of discrimination.  This is the change that they can believe in and have waited for so long.  If, on the other hand, the EEOC revises its Management Directive to allow this practice to go on, it will prove once again that it is a toothless tiger.

Jorge E. Ponce is a Civil Rights Champion who has worked for the Federal Government for over 30 years. 

[Photo by Scott*]

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