By Ann Boehm, October 20, 2021
I started working on Federal EEO cases in 1993. From the first case I handled, I thought the process was very odd and inefficient. You probably are aware of the process, but in case you aren’t, here it is:
Informal complaint with counseling. Formal complaint. Investigation. Report of investigation. Request for a hearing with an Equal Employment Opportunity Commission (EEOC) Administrative Judge. Discovery. Summary judgment motion. Perhaps a hearing. A Decision.
But wait. There’s more.
A Final Agency Decision. Perhaps an appeal to the Office of Federal Operations. And even Reconsideration of that decision. What the EEOC says is final. No appeal to a court as an option (which is not the case for Federal Labor Relations Authority and Merit Systems Protection Board cases – those can be appealed to U.S. Courts of Appeals).
Who thought this up?
And throughout the process, the complainant can amend and add to the complaint. Plus, they will forevermore claim retaliation for anything that happens in the workplace after they file the first complaint. This can’t be the best way to handle discrimination claims. But it’s been the same for years and years.
A recent article in Government Executive gave me hope. Rep. Carolyn Maloney (D-NY) asked the Government Accountability Office to look at reforming the Federal EEO process. Finally, there’s hope. Or is there?
According to the article, Maloney thinks the process is tilted against the complaining employees. She is correct that the process is “convoluted, slow, costly,” but I’m not sure she’s correct about “unjust.”
She’s correct that discrimination is still very prevalent in the United States. She is not correct, however, in asserting that the process is pro-agency — at least not in my experience. I’d characterize it as onerous for agencies and complainants.
I teach a lot of EEO courses for FELTG. I hear from many attendees that complainants are filing multiple complaints – sometimes as many as 20 to 30. There’s supposed to be a point where that number of complaints is frivolous, but the EEOC almost never makes such findings.
There’s other abuse of the system. One attendee recently told me a complainant blatantly revealed she was filing a complaint to ensure she could claim retaliation for anything the agency might do to her in the future. According to the EEOC’s 2019 Annual Report, employees claimed retaliation in 7,176 cases. There’s either a lot of retaliation going on, or it’s just easy to claim.
The concept of hostile work environment seems to be fundamentally misunderstood. I hear repeatedly that employers who assign work to their employees are getting claims of hostile work environment filed against them. Being told to do your job is not a hostile work environment. Doing your job is, well, your obligation. Employees are filing these claims for sure. The EEOC’s 2019 report indicates that employees claimed a hostile work environment in 7,470 cases (7,044 non-sexual; 498 sexual).
My friends, these comments from practitioners all over the government and these statistics suggest to me that the process remains broken. There are way too many frivolous complaints tying up the process. The legitimate discrimination complaints are lost in a system that allows the frivolous complaints to overwhelm that system.
Here are some more fascinating statistics from the EEOC’s 2019 Annual Report that I think indicate some problems with the system.
Employees filed 36,348 informal complaints. Out of those, 14,138 filed formal complaints. Agencies spent $46,475,845 investigating those complaints. That’s an average of $5,087 per complaint.
In 2019, 4,054 of those complaints were resolved by an Administrative Judge’s decision. Are you ready for this? Out of 4,054 complaints decided by an Administrative Judge, a finding of discrimination occurred in 100 cases – 2.47 percent. That means 97.53 percent of cases resulted in a finding of no discrimination. Why are there so many cases filed and so few findings of discrimination?
Is it just too easy to pursue an EEO complaint?
According to Maloney, these statistics suggest that the EEO process is not serving those who are victims of discrimination. To me, however, these statistics suggest that something is very wrong with the process.
In the private sector, employees must file a discrimination charge with the EEOC, and the EEOC investigates. If the EEOC determines there is likely discrimination, the EEOC or Department of Justice files a lawsuit against the employer. If the EEOC is not able to determine that there is discrimination, the employee receives a Notice of Right to Sue. The employee then can proceed in court against their employer.
If the EEOC tells you it does not think there’s evidence of discrimination, that’s a significant indication that you are not a victim of discrimination. In the Federal system, the EEOC does not get involved until there’s an Administrative Judge’s decision. This comes long after other time-consuming processes – the investigation, the report of investigation, and discovery. AJ decision statistics indicate there are not many cases of illegal discrimination in the Federal sector.
The private sector system forces employees to pursue cases against their employers in court. Going to court costs money. An attorney is likely involved. There’s probably a court filing fee. An employee who wants to proceed against her employer in court has some real cost-benefit assessments to make. If she has a legitimate discrimination complaint, she has an incentive to go through the process. If she is trying to abuse the system, it’s a bigger financial risk in the private sector than in the Federal sector.
Am I cynical? Yes. But I really feel like the current system does not serve the victims of discrimination. We know it takes an enormous amount of time and energy on the part of agency counsel, EEO specialists, EEO counselors, responding management officials, and yes, the complainants too.
So FELTG nation, how can we help? If GAO goes forward with the requested review of the process, what would you tell them? There’s got to be a better way to process Federal EEO cases.
I hope GAO does a thorough review. I hope they talk to EEO counselors, EEO investigators, and agency EEO counsel. I hope people are honest. And I hope that the process can finally be improved. There I go again. Eternal optimist.
If you have any thoughts, send me an email. Boehm@FELTG.com