EEOC to establish working groups on federal complaint process

By Jenny Mandel

The Equal Employment Opportunity Commission held a meeting on Thursday to gather ideas on how to address problems with timeliness, quality and an appearance of conflict of interest in federal investigations of equal employment opportunity complaints.

A series of working groups will be formed to tackle the issues in more depth, said Naomi Earp, the EEOC's new chairwoman. Thursday's meeting was the first led by Earp in her new capacity.

EEOC provides technical assistance and monitoring for agencies' in-house EEO offices, which routinely exceed a 180-day time limit to complete their processing of complaints. In fiscal 2005 the average processing time was 237 days, Earp said, marking an improvement over the previous year's level of 280 days.

EEO officials with the General Services Administration and Transportation Department testified on strategies that have reduced processing times at those agencies. Madeline Caliendo, associate administrator for civil rights with GSA, said a series of goals for turn-around times on individual parts of the process and a computerized tracking system that facilitates case monitoring have helped the agency complete 95 percent of its investigations in a timely manner over the last three years.

Michael Trujillo, director of the Transportation Department's Office of Civil Rights, agreed that intermediate deadlines were important and said a mix of well-trained in-house staff with contractor support to provide flexibility was instrumental in bringing the department's average processing time to 177 days.

Carlton Hadden, director of EEOC's Office of Federal Operations, testified that contractors have played a growing role in investigations at many agencies and, on average, complete them faster than federal employees. That edge may be due in part to assigning contractors simpler cases while putting full-time employees on more complicated ones, as Transportation does, Trujillo said.

Caliendo said GSA outsources all of its investigations, using regional EEO officers to manage contracts. She said investigative plans, which are due within days of awarding a case contract, help the agency to ensure quality.

The commission also heard testimony about serious deficiencies in the qualifications of the investigators who produce reports that are key documents in case processing.

Many are unfamiliar with common forms of discrimination cases, such as differences between a claim based on a "hostile workplace environment" and one based on an alleged failure to provide reasonable accommodation for a disability, said Ernest Hadley, a prominent attorney in the field. Many also lack a clear understanding of the standards of proof for the various cases, he said.

Hadley recommended that potential investigators be required to demonstrate their knowledge on a test.

Representatives from two contracting firms agreed with Hadley's assessment that a 32-hour training requirement for federal investigators was insufficient. In response to a suggestion that EEOC should develop reference guidelines on various forms of discrimination and best practices for information collection, Elizabeth Lytle, director of EEO counseling and special reports with Delaney, Siegel & Zorn, said that would mirror documentation that her company has developed for internal use.

The presenters differed on how to address the problem of potential agency conflict of interest, though they agreed in general that the perception of a conflict challenges the process' credibility.

Timothy Hannapel, assistant counsel to the National Treasury Employees Union, said the EEOC should try a pilot project in which the commission works on investigations of federal sector complaints, as well as the later hearings and appeals processes.

"It has become a tool of oppression -- the entire process. That's the perception," Hannapel said.

William Bransford, general counsel to the Senior Executives Association, said the appearance problem results in the system being flooded with frivolous complaints because managers are wary of throwing out those that lack merit. He opposed EEOC taking on investigations, but supported the creation of an outside process that would handle them.

Earp asked stakeholders to consider a middle ground to address the problem, warning that the commission does not have the capacity to take on agency investigations.