Discrimination in the Federal Sector: How to Make the System Better

By Jorge Ponce, NewsTaco

I’ve often wondered at the low number of findings of discrimination in the federal sector.  According to the latest report from the U.S. Equal Employment Opportunity Commission (EEOC) – the Annual Report on the Federal Workforce, Pt. 1, for FY 2011 — there were 52 (1.17%) final agency decisions with findings of discrimination, and 160 (5.34%) final orders of administrative judge merit decisions finding discrimination.

The usual justifications offered for these low percentages are that there are many frivolous discrimination complaints filed and that federal agencies settle the majority of the meritorious complaints.  While these justifications are valid in some cases, there is another side to the story. If I had not worked in the civil rights arena for so long, I would accept these explanations readily.

But the bottom line is that I have seen many, many discrimination complaints that were meritorious that were not settled by federal agencies.  In fact, the main argument against the intrusion by agencies’ Offices of General Counsel is to steer agency attorneys from embracing a posture to win at all costs – rather than to settle meritorious complaints as early as possible and to eradicate all vestiges of discrimination from the federal workforce.

A different standard.

And, yet, I wonder at the fact that when it comes to congressional investigations for wrongdoing by public officials, the percentage of findings of improprieties is very high.  So, what are the congressional investigators doing that could be applicable to discrimination complaints?

For one, they leave no stone unturned.  They have their analysts review all the e-mail traffic of the parties involved for a relevant timeframe.  In addition, they get the metadata for the individuals involved.  This is a great asset as metadata also contains e-mails that were erased to hide any evidence of wrongdoing.  They also have access to the individuals’ phone records for a relevant timeframe.

My point is that relying on affidavits from management officials that are reviewed and modified by attorneys from Offices of General Counsel represents a David & Goliath confrontation.  It is the complainants – with little expertise in discrimination law, with less financial resources, with attorney’s fees that range from $350 to $500 in the Washington, DC area – who come out on the losing end.

So, my recommendations to make the process more equitable are:

1) Complainants’ attorneys and EEO investigators should demand from federal agencies e-mails, metadata, and phone records from alleged discriminatory officials for the relevant timeframes.

2) EEOC should issue a policy that prevents attorneys from reviewing and changing the affidavits from alleged discriminatory officials.

Currently, EEOC is accepting comments from the public through April 25, 2014, on revisions to its Management Directive 110 (MD-110), which deals with procedures that federal agencies utilize with the EEO complaints process.  I bring your attention in MD-110 to Chapter 1, Section IV(E), Question 12: “May an agency representative review the affidavit of a management official who is the subject of a complaint of employment discrimination?” And the response is “Yes.” This suggestion in the draft MD-110 is counterproductive to getting at the truth of whether the management official discriminated or not against his/her employees.

I urge all of you to take this opportunity to submit your comments by the April 25, 2014 deadline.  You’ll find everything that you need by going to http://www.eeoc.gov/eeoc/newsroom/release/2-24-14.cfm.

3) EEOC should enforce its regulation to have EEO Directors (the ones who handle the day-to-day operations of EEO offices, and not the ones listed as such in agencies’ documents but who are EEO Directors in name only) report directly to agency heads.  This way, decisions get done expeditiously, and the EEO Director is given the same clout as other managers who report directly to the agency head.

4) Have EEOC issue a stern warning to federal agencies that if they fail to adopt the recommendations to ameliorate the discrimination process in a way that makes it fairer, EEOC would look at placing all EEO offices under its jurisdiction – similar to the system already in place for Inspector Generals.

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