[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
EEO DATA AND COMPLAINT PROCESSING PROBLEMS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CIVIL SERVICE
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
MARCH 29, 2000
__________
Serial No. 106-177
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
__________
U.S. GOVERNMENT PRINTING OFFICE
68-877 WASHINGTON : 2001
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250
Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
David A. Kass, Deputy Counsel and Parliamentarian
Lisa Smith Arafune, Chief Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on the Civil Service
JOE SCARBOROUGH, Florida, Chairman
ASA HUTCHINSON, Arkansas ELIJAH E. CUMMINGS, Maryland
CONSTANCE A. MORELLA, Maryland ELEANOR HOLMES NORTON, Washington,
JOHN L. MICA, Florida DC
DAN MILLER, Florida THOMAS H. ALLEN, Maine
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Garry Ewing, Staff Director
Susan Waren, Professional Staff Member
Bethany Jenkins, Clerk
Tania Shand, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on March 29, 2000................................... 1
Statement of:
Blanchard, Roger, Assistant Deputy Chief of Staff, Personnel,
U.S. Air Force; Joe McDade, Assistant General Counsel,
Office of the Secretary of the Air Force; Cynthia
Hallberlin, Chief Counsel of Alternative Dispute Resolution
Program, National Program Manager of REDRESS, U.S. Postal
Service; and Gerald R. Reed, president, Blacks in
Government................................................. 104
Hadden, Carlton, Acting Director of Federal Operations, Equal
Employment Opportunity Commission; and Michael Brostek,
Associate Director, Federal Management and Workforce
Issues, U.S. General Accounting Office..................... 16
Wynn, Hon. Albert R., a Representative in Congress from the
State of Maryland.......................................... 6
Letters, statements, et cetera, submitted for the record by:
Blanchard, Roger, Assistant Deputy Chief of Staff, Personnel,
U.S. Air Force, prepared statement of...................... 107
Brostek, Michael, Associate Director, Federal Management and
Workforce Issues, U.S. General Accounting Office:
Followup questions and responses......................... 98
Prepared statement of.................................... 35
Hadden, Carlton, Acting Director of Federal Operations, Equal
Employment Opportunity Commission:
Followup questions and responses......................... 62
Prepared statement of.................................... 19
Hallberlin, Cynthia, Chief Counsel of Alternative Dispute
Resolution Program, National Program Manager of REDRESS,
U.S. Postal Service, prepared statement of................. 122
Reed, Gerald R., president, Blacks in Government, prepared
statement of............................................... 129
Scarborough, Hon. Joe, a Representative in Congress from the
State of Florida, prepared statement of.................... 3
Wynn, Hon. Albert R., a Representative in Congress from the
State of Maryland, prepared statement of................... 9
EEO DATA AND COMPLAINT PROCESSING PROBLEMS
----------
WEDNESDAY, MARCH 29, 2000
House of Representatives,
Subcommittee on the Civil Service,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:15 a.m., in
room 2247, Rayburn House Office Building, Hon. Joe Scarborough
(chairman of the subcommittee) presiding.
Present: Representatives Scarborough, Cummings, Norton, and
Morella.
Staff present: Garry Ewing, staff director; Jennifer
Hemingway, deputy staff director; Miguel Serrano, chief
counsel; Susan Waren, professional staff member; Bethany
Jenkins, clerk; Tania Shand, minority professional staff
member; and Earley Green, minority assistant clerk.
Mr. Scarborough. I call this hearing to order for the
Subcommittee on the Civil Service.
I would like to welcome all of you here before this Civil
Service Subcommittee.
Today, the subcommittee is going to be conducting an
oversight hearing to examine serious shortcomings in Equal
Employment Opportunity data and complaint processing. These
problems were revealed in several recent reports issued by the
General Accounting Office, and we will also consider the use of
alternative dispute resolution techniques to resolve employee's
discrimination complaints.
As chairman of this subcommittee I am committed, like I
know everybody else on this panel is committed, to ensuring
that Federal employees have available a procedure for resolving
EEO complaints that is fair, timely, and efficient, but that is
just not simply the case today.
I think all of us are concerned and appalled at the time it
takes for an EEO complaint to travel through the entire appeals
procedure process. According to GAO, an employee who has filed
an initial complaint with his or her employing agency would, on
average, have to wait 3 years until EEOC issues its final
ruling. That is simply not acceptable. EEOC and other agencies
have to figure out a way to speed this process up.
I am also concerned that EEOC cannot answer fundamental
questions about the nature and extent of workplace conflicts.
Because EEOC does not collect and report the necessary data, it
cannot respond to such basic questions regarding how many
individuals have filed complaints, how many complaints allege
discrimination based on race or sex, or what kinds of actions
give rise to most of the complaints. And, to compound these
problems, GAO also tells us that the reliability of data that
EEOC collects from other agencies is also questionable. This is
because the agencies don't report the data consistently,
completely, or, in my opinion, accurately.
In one example, because of a computer programming error,
the Postal Service reported that approximately 68 percent of
its complaints were from white postal workers claiming racial
discrimination. In fact, the correct figure was 11.4 percent.
Without solid, reliable data, neither the EEOC or employing
agencies can understand how much conflict there is in the
Federal work force or what causes it, and if they can't do it,
then certainly Congress can't do it.
We are going to be looking to the EEOC to assure this
subcommittee that it is reducing its case inventories and
processing complaints more quickly. I also want to know what
EEOC is doing to increase the speed with which employing
agencies process complaints of discrimination. And I am going
to expect the EEOC to assure us that data problems that the GAO
has discovered and revealed are going to be corrected in the
future.
On a more optimistic note, we are also going to be
examining the use of alternative dispute resolution, techniques
to resolve workplace disputes.
Based upon work GAO has performed for this committee in the
past, we believe that ADR promises much hope. Used properly,
ADR can deliver prompt solutions for a wide variety of
workplace disputes that employees and managers, alike, perceive
to be fair. It also is generally believed to be far less costly
than litigation or a more formal redress process.
Witnesses from the Postal Service and the Air Force will
describe their successful ADR programs, and I look forward to
their comments and the comments of GAO and other witnesses on
this subject, as well.
[The prepared statement of Hon. Joe Scarborough follows:]
[GRAPHIC] [TIFF OMITTED] T8877.001
[GRAPHIC] [TIFF OMITTED] T8877.002
Mr. Scarborough. With that, I would like to recognize Mr.
Cummings, the distinguished ranking member, for any opening
comments he may have.
Mr. Cummings. Thank you very much, Mr. Chairman.
I do appreciate the fact that you have called this hearing.
I know we will be hearing from Congressman Wynn, but I want to
thank you for all your efforts over the years in staying on
this issue and making sure it stays at the forefront of our
minds.
Mr. Chairman, you just said something that made me really
stray away from my prepared comments when you talked about the
3-year delay. Someone once said, ``Justice delayed is justice
denied,'' and I think that when you think about the issues that
we are addressing here today, when you have someone who is
denied justice and they have to wait, and that justice is
delayed and they have to wait 3 years, that means that possibly
a pay raise doesn't take effect, it means that possibly the
children who were in the first grade at the beginning of the
complaint are now in the fourth grade and have missed
opportunities to do such things as have simple things like
violin lessons and simple things that make life better, going
on vacation. But it also means that someone is placed in a
position of being very frustrated over a course of 3 years, and
that frustration not only affects them but affects their
families and affects generations yet unborn.
And so it does concern me, and I guess, as I am sitting
here--and I am sure you and I agree on the frustration that we
so often feel in the Congress where one group blames another
group, and then another group blames another group, but the
bottom line is, when all the dust settles, the problem is still
there.
I am very, very confident and I do agree with you that we
have to get to the bottom of this, because, after all, we have
been elected to represent the wonderful people of the United
States of America, and if we can't get to the bottom of it
because an agency can't get to the bottom of it, we don't need
to be here.
And so I am hoping that the answers that we will get this
morning are ones that will be helpful to us in getting to the
bottom line.
I do thank you, Mr. Chairman, for your sensitivity with
regard to this issue. These are not in my prepared comments,
but the more I listen and I look at Congressman Wynn and I
think about all that he has gone through, and feeling, I am
sure, the frustration sometimes that everything is not--I mean,
he is almost playing a shell game. One person tells him one
thing. I have been in the room many times when that has
happened. You begin to wonder whether you are crazy or somebody
else is. But at the same time we are wondering these things,
there are people who are suffering.
That is one of the good things about this hearing. As we
notice--I know you noticed coming in, there are people standing
all out in the halls. The reason why they are standing out
there is because they simply want fairness. They simply want
fairness. They don't want anybody to do them any favors. They
just want fairness in the system. They don't want justice
delayed. They don't want it, because they know that is justice
denied.
And so with that, Mr. Chairman, I look forward to hearing
from the witnesses, and I want to thank all of them for being
with us today.
Mr. Scarborough. Thank you, Congressman Cummings.
Thanks for your hard work on this. I know you and
Congressman Wynn have fought this issue for some time.
With that, I want to introduce our first panel. Our first
witness today is the distinguished gentleman from Maryland,
Representative Albert R. Wynn. Mr. Wynn represents the 4th
District and he is well-known as an advocate for Federal
employees. In addition, he, along with the ranking member, Mr.
Cummings, asked GAO to study the EEOC's data collection and
case processing problems. Those studies and their continued
efforts are what led to today's hearings.
Congressman Wynn.
STATEMENT OF HON. ALBERT R. WYNN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MARYLAND
Mr. Wynn. Thank you very much, Mr. Chairman.
I sincerely appreciate your calling this hearing today. As
my colleague, Mr. Cummings, indicated, this is a very, very
important issue to us.
I also appreciate your comments in your opening statement,
which reflect a fundamental understanding of the various
aspects of this problem and your sensitivity to this problem. I
think all Federal employees appreciate your leadership in this
effort.
I also want to thank my colleague from Maryland, Mr.
Cummings. We have literally worked side-by-side, yoked together
on this issue, and he has been tremendous, from our first press
conversation back in 1997, when we began talking about this
issue, through today, when he has worked in his official
capacity as ranking member to see that this issue is brought to
light appropriately, and he brings a great deal of not only
interest but passion to the discussion.
As he indicated, there is a human element of this that
affects people that is below the radar of our policy
discussions, and it is important that that perspective be
brought to light.
Let me begin with a little history. We have always looked
to the Federal Government to intervene in civil rights issues,
and it became very ironic, after I got to Congress, that there
were some civil rights issues within the Federal workplace. We
had a festering sore, so to speak, in our own back yard.
I represent more Federal employees than any other Member of
Congress. I have 72,000 active Federal employees in my
constituency, so, as you might gather, these issues of the
Federal employee rights, benefits, and problems come to my desk
quite frequently.
I came in in 1992. By 1993, I began to see patterns in
which I was getting enormous numbers of constituent complaints
about discrimination in the Federal workplace. I had
discussions with the National Institutes of Health, I have had
ongoing discussions with the Department of Interior,
Agriculture, State, Commerce, the Government Printing Office,
the Library of Congress, IRS, U.S. Information Agency--the list
goes on and on.
What I concluded was that these were not isolated
incidents, but rather a systemic problem, because I was hearing
the same kinds of things throughout virtually every department.
As I indicated, in 1997 we held a press conference on
discrimination in the workplace, and I stood side by side with
Mr. Cummings. We talked about three issues: the lack of
diversity in senior management; second, the pervasive and
discriminatory misuse of personnel laws; and, third, the
enormous backlog of EEO complaints within Federal agencies.
We asked the administration to intervene and make agencies
more accountable, and in 1997, in September of that year, this
subcommittee held an unprecedented hearing to examine the
issues of discrimination--again, a standing-room-only audience.
We talked about the various problems that existed.
In 1998, I requested, along with Congressman Cummings, that
GAO analyze the information about what we call ``inventories of
unresolved complaints.'' I like to call it ``backlogs.'' And
they did this, and the report, ``Equal Employment Opportunity:
Rising Trends in EEO Complaint Case Loads in the Federal
Sector,'' dated July 1998, found the agency complaint
inventories, and, even more so, EEO's hearing and appeal
inventories had increased since 1991.
Since 1991, there has been 102 percent increase in the
number of unresolved complaints, from 16,900 in 1991 to 34,000
by the end of 1997.
At EEO, itself, during this period, the inventory of
hearing requests from complaints increased 218 percent, from
3,000 to over 10,000, and the inventory of appeals or the
backlog of appeals filed by complaints increased 581 percent,
from 1,000 to almost 10,000.
As you can imagine, as the size of these inventories grow,
the length of time that you referred to in your opening
statement increased, as well.
As I looked at these problems after receiving this
information, I said, ``It is not enough to just handle
individual complaints. We need to begin to understand, as
policymakers, what is causing these complaints.''
And so I asked GAO essentially two questions: one, what
were the statutory bases for discrimination? Was it race, sex,
disability discrimination? And, two, what are the kinds of
problems that are cited in these complaints? Was it non-
selection for promotion, harassment, hostile work environment,
whatever might be the case?
In March 1999, GAO advised me that they could not answer
these fundamental questions. Obviously, I was quite concerned,
which gave rise to the report that you mentioned in your
opening statement, ``Equal Employment Opportunity Data
Collection Shortcomings Hinder the Assessment of Conflicts in
the Federal Workplace,'' which came out in May 1999.
They found that data about the basis of complaints and
issues giving rise to them can be valuable in gauging conflict
in the Federal workplace; however, EEO does not collect or
report relevant data in a way that would help answer
fundamental questions about the number of complaints and the
prevalence of bases and issues in the universal complaints.
In addition, some data collected and reported by EEO have
lacked the necessary reliability, because agencies did not
report their data consistently, completely, or accurately, and
because EEO did not have procedures to ensure that the data was
reliable.
Consequently, the data did not provide a sound basis for
decisionmakers, program managers, and EEO to understand the
nature and extent of workplace conflict, to develop strategies
to deal with conflict, and to measure the results of these
interventions. The EEO basically agreed with these findings.
The problem came when we said, ``Well, how can we correct
them?'' They were saying, ``Well, it is going to take some
time. The reports won't come in until 2001. Then we wouldn't
have any information until about 2002.'' I said, ``Well, when
can we get a body of reliable data,'' and they were not able to
answer that question.
I was very concerned, as you might imagine. I contacted the
President. I said, ``We need an inter-agency task force to deal
with all these discrimination issues, but, in particular, the
issue of data collection, which is just not acceptable.'' A
task force is, in fact, working on this, focusing, among other
things, on data collection.
One of the things we said was that, at a minimum, we should
develop requirements to ensure that all agencies have the
ability to transmit their data electronically in a format that
would facilitate accurate and comprehensive analysis.
We also said that we ought to put this issue on a fast
track. It shouldn't take a year to develop data collection
techniques and then another 2 years to collect the data and
then a third year to analyze it.
I think EEO is sincere in attempting to address this
concern, but I think there needs to be a real fire under their
efforts. I think the administration, as well, has acknowledged
the problem and wants to do the right thing, and I think the
task force will be productive.
I would ask you, Mr. Chairman, in terms of the committee,
to continue aggressive oversight of this issue. You clearly
understand the problem we have in effective data collection. I
think with aggressive committee oversight, we can resolve this
issue, put it on a fast track, and begin to understand the
problem, because once we understand the problem I think we can
resolve some of these complaints.
Thank you. I apologize for going longer.
[The prepared statement of Hon. Albert R. Wynn follows:]
[GRAPHIC] [TIFF OMITTED] T8877.003
[GRAPHIC] [TIFF OMITTED] T8877.004
[GRAPHIC] [TIFF OMITTED] T8877.005
[GRAPHIC] [TIFF OMITTED] T8877.006
Mr. Scarborough. That is fine, Congressman. I thank you. I
certainly appreciate your comments, and I want you to know
there will be aggressive oversight here and we are going to do
whatever we can to make sure it happens.
Let me ask you just one or two very brief questions. I know
we have a vote soon.
I wanted to start out by asking you about trends. You have
said, obviously, since the early 1990's complaints have
skyrocketed. You came here in 1993. Complaints are up since
then.
What have you noticed in the past few years, just in your
office, from all the--are the complaints on the rise over the
last 2 or 3 years?
Mr. Wynn. I think they are on the rise. I think part of
that is because we have been giving this issue more attention
and more people in agencies are hearing about it.
The other thing that I have said is I don't want to be a
complaint-handling office.
Mr. Scarborough. Right.
Mr. Wynn. That is what EEO is for. But if you have 15 or 16
people who are citing a problem--and most recently we had a
problem in IRS where a group of people--what I am saying,
bottom line, Mr. Chairman, is groups of people are coming in
and saying, ``In our agency we have this problem.'' And it is
very serious.
Mr. Scarborough. Yes.
Mr. Wynn. A lot of it has to do with promotional
opportunities, people saying that minorities are being
channeled into dead-end jobs, non-minorities are being
channeled into tracks where they can gain experience and skills
so they will be ready for the next promotion.
Mr. Scarborough. OK. Let me ask you, I have talked briefly
about alternative dispute resolution. What is your read on
that? Is that one way to alleviate the backlog of cases?
Mr. Wynn. I think that clearly is part of the equation.
There are some complaints that are amenable to alternative
dispute resolution, and we have to include that in our
processing, so I am very pleased that we are looking at that.
Some complaints aren't valid and some complaints can be
addressed in kind of a short form fashion. So I think
alternative dispute resolution provides a great opportunity.
But the problem that I have been focusing on is, where you
can't deal with it in a relatively amicable fashion because you
have a climate or you have a few perpetrators within, say, mid-
management, who are causing this problem, how can we get at
that? And so if we can find out that there are a lot of
complaints dealing with harassment or a lot of complaints
dealing with the denial of promotions, it enables policymakers
to kind of focus in and say, ``Wait a minute. Why are we
getting a disproportionate number of complaints about
promotional denials from these three managers within our entire
system?'' Because it kind of casts a black eye on an entire
agency when, in point of fact, it may be a few people
committing the same kinds of discriminatory acts. That is why
the data collection is important.
But, clearly, Mr. Chairman, you are on the right track with
alternative dispute resolution.
Mr. Scarborough. Let me go ahead and turn it over to you,
Congressman Cummings.
Mr. Cummings. I only have two questions.
The end result that we are trying to get to is trying to
reduce discrimination--eliminate it, really, but, I mean, for
all practicality, reduce it. I was just wondering, you said
that you had met with a number of agencies. Have you found
that, in meeting with these agencies, that they were open to
change? In other words, I take it that the thing that got you
to the agency was that you had a number of complaints, but once
you got there I was just wondering, have you seen any kind of
action on the part of any of the agencies that you could at
least hold up and say, ``Look, we saw some problems here, and
we see changes taking place.''
Mr. Wynn. That is a very good question, Mr. Cummings. It is
a mixed bag. I think there are some people who are trying, but
the first response is generally, ``Well, let me tell you about
all the seminars we have had and let me tell you about all the
workshops we have had and let me tell you about John Doe, who
is our sole senior executive person.'' So there is a certain
resistance to acknowledging the problem. It is like alcoholism
or other kinds of problems. You first have to acknowledge the
existence of the problem.
But there have been agencies that have indicated a
willingness to work. The Secretary of the Department of
Agriculture, where there are major problems, has been very
positively saying, ``Look, I want to do something.''
Oftentimes it is not the Cabinet-level person, the
Secretary; it is way down in mid-management that the Cabinet
Secretary doesn't even see where you have a problem.
It is difficult because some of the mid-management
supervisors are not willing to acknowledge a problem.
Mr. Cummings. I know that you believe in the theory of what
do you have when the dust settles, and, so that we are singing
from the same hymn book and page, when you talk about
aggressive oversight, what do you mean? I want to make sure we
are saying the same things.
Mr. Wynn. Again, a very good question. I would like to see
this committee bring in Cabinet Secretaries and Under-
Secretaries, and, after having looked at the good EEO data,
say, ``Look, there appears to be a problem here. Your
inventories are substantial, and the nature of the complaints
tend to be consistently about a lack of promotions or
consistently tend to be about a hostile work environment. Now,
what are you doing about it, Mr. Secretary or Mr. Under-
Secretary, given this data?
So I think that is why the data aspect is so important,
because, armed with the data, the committee and others can
begin to hold Cabinet Secretaries and Under-Secretaries and
agency heads accountable.
Mr. Scarborough. Thank you.
Ms. Norton.
Ms. Norton. No questions, please.
Mr. Scarborough. Thank you.
I want to thank you, Mr. Wynn.
You said something really briefly that I think we ought to
talk about, as we try to figure out a way to fix this system.
You talked about e-mails and the Internet and everything
else. It seems to me, at the beginning of the 21st century, we
ought to be able to figure out a way that EEOC can--that these
complaints can be put instantaneously, maybe not all the
details, not all the information, but at least basics on hat
complaints are filed, in what departments. Is it race
discrimination? Is it sex discrimination? To me, that doesn't
seem so radical. I think that would be a good first start. At
least we in Congress could at least tell what trends are
occurring in what agencies.
With that, I thank you for your testimony. We are going to
have to adjourn briefly for a vote, but we will be back in
about 15 minutes.
Mr. Wynn. Thank you, Mr. Chairman and members of the
committee.
Mr. Scarborough. Thank you.
[Recess.]
Mr. Scarborough. Calling the meeting back to order, I would
like to start out by asking unanimous consent that Congressman
Joe McDade be allowed to sit up here on the dais. He has a
party interested in this matter who will actually be on the
third panel.
But I wanted to open this portion up by recognizing the
Congresswoman from the District of Columbia for any opening
statement she may have.
Ms. Norton. Thank you very much, Mr. Chairman.
I would like to thank Chairman Scarborough for noting this
hearing and for the time and energy he has put into it, and
also the ranking member for his unfailing interest in this
subject.
I have an unfailing and longstanding interest. When I first
came to Chair the Equal Employment Opportunity Commission under
President Carter, I found a backlog in the private sector
complaints of 2 years. It had paralyzed the agency.
We reduced that backlog and got to the point where we could
process cases within 3 months. We did it through the
intelligent use, essentially, of alternative dispute
resolution. Our focus was on looking for those cases which
needed extended treatment, especially litigation, and
recognizing that the average case filed in any large complaint
system is not of that variety.
We pioneered the use of alternative dispute resolution. We
called it ``rapid charge processing.'' And it had an
extraordinary effect, both on the remedy rate and on the
reduction of time--a system which keeps people locked into it--
and the chairman has said 3 years here. I take it these are
Government-sector complaints. This is a system that does not
provide relief. You cannot provide relief by taking everybody
through every step of the process. You have got to find a way
to help people who can get all the relief they can deserve
early.
In our system of law, the way to do that is to have more
than one track. There ought to be a track for very complicated
cases--and there remain such cases in the courts and at the
EEOC. But I have to tell you the average case that comes before
the EEOC is not a very complicated case.
I fear that there has been backtracking here, just as there
was in the 1980's, after we set off a system that used
alternative dispute resolution, did not depend upon the
complexities of a ponderous system, there was huge backtracking
in the 1980's that took every case through the system.
EEOC more recently has begun to use alternative dispute
resolution, but I fear that, with the new system of greater
involvement of EEOC administrative judges, which I applaud,
that the whole notion of how to treat some complaints so that
they are appropriately treated for more rapid resolution has
been lost in the process.
I will be very interested to hear whether or not the EEOC
has learned to sort out cases so that cases can be treated
appropriately according to their complexity and, therefore, so
that the agency can, in fact, face the backlog and get rid of
it.
I thank you very much, Mr. Chairman.
Mr. Scarborough. And I thank you, and I agree with you 100
percent that we do have what you called a ``ponderous system.''
As proof, we were going to actually blow up the administrative
process for EEOC. Unfortunately, every time we tried to blow
this up, our computers crashed. So we are going to try again.
We may go to Kinko's on 7th Street, and perhaps those computers
will be able to handle it a little bit better than our own. But
it is an absolute mess and, in fact, a ponderous system.
Let us go ahead and call up our second panel right now, if
they could come up and have a seat.
The witnesses on our second panel are going to be Mr.
Michael Brostek and Mr. Carlton M. Hadden.
Mr. Brostek is the Associate Director of the Federal
Management and Work Force Issues in the General Government
Division of the General Accounting Office, and Mr. Hadden is
the Acting Director of the Office of Federal Operations at the
U.S. Equal Employment Opportunity Commission.
I thank both of you gentlemen for coming, and I would ask,
if you could, please stand and give an oath.
[Witnesses sworn.]
Mr. Scarborough. Mr. Hadden.
STATEMENTS OF CARLTON HADDEN, ACTING DIRECTOR OF FEDERAL
OPERATIONS, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; AND
MICHAEL BROSTEK, ASSOCIATE DIRECTOR, FEDERAL MANAGEMENT AND
WORKFORCE ISSUES, U.S. GENERAL ACCOUNTING OFFICE
Mr. Hadden. Thank you, Mr. Chairman.
I ask that my statement be entered into the record.
Mr. Scarborough. Without objection, so ordered.
Mr. Hadden. And I would like to just take the time that I
have to kind of summarize some of the concerns, I think, which
have been addressed, and address some of the steps that we have
begun at EEOC.
The Commission's mission is the eradication of
discrimination. The process that we are talking about is a
shared process with Federal agencies. The Commission has
oversight responsibility of this process. We have
administrative judges in the field, we have appellate attorneys
at EEOC.
With the arrival of Chairwoman Castro in 1998, we
accelerated the process that had begun with Chairman Gilbert
Casellas to make the Federal sector reforms. I don't think you
will find much argument from the Commission in recognition that
this is a process that certainly needs to be improved.
The regulatory reforms which took effect this past fall
certainly are a key to making that change. One of the
regulatory reforms that we are most interested in is ADR. ADR
is now required. All agencies must make that available as part
of their processes.
We also believe that another key advantage of these
regulations is the manner in which complaints are now
processed. They can no longer be fragmented complaints. They
have to be a unified claim which we look at.
In overall approach, this process is what we call the
``comprehensive strategic approach to enforcement'' at the
Commission, which simply means using all the tools that we have
at our arsenal, not just relying on the administrative judges
or the appeals attorneys, but looking at certainly ADR, looking
at oversight of Federal agencies, how they are managing their
EEO complaint process. What are the issues relating to glass
ceiling issues?
That whole approach will hopefully get us to a much better
place. The NPR--we have an inter-agency task force that
Congressman Wynn alluded to in his prior testimony. We are very
excited about that. We believe that will be absolutely key.
This is the first time that we have all parties and players
at the table engaging in a dialog. This is a very complicated
process, and we believe that this task force holds great
promise for ultimately delivering reform to the EEO complaint
process for Federal agencies.
In regard to the data, you know, what we did with the data,
we had begun a process of correcting some of the mistakes. I am
pleased to tell you that we expedited publication of the 1998
report. I am very hopeful that we will have the 1999 report in
short order. The reason, in large part, that you don't have it
now is we want to make sure that it is accurate data.
We know, preliminarily, that 21,847 people filed complaints
in fiscal year 1999, and those 21,847 people filed 25,177
complaints. That is excluding the Department of the Treasury,
which could not give us a number on the number of individuals
filing EEO complaints.
Preliminary data on 1999 shows us that the time it takes to
process complaints continues to rise. We are very interested in
using technology. We certainly want to increase our use of
technology. We have a lot of the guidance that we give agencies
and our stakeholders now on the website. Certainly, we would
like to look at expanding our use of that. A lot of that is
often resource driven and, to that extent, we do the best we
can with the resources we have, but we think technology is
certainly a viable way to increase our effectiveness.
One innovation that we think will help, in terms of helping
agencies understand how this process works, is what we call
``computer-based training.'' We are developing a CD which we
will distribute to all of our stakeholders--agencies, in
particular--explaining this new EEO process. That, I think,
will help the agencies understand how to move EEO complaints.
We have done, in terms of the approach, the comprehensive
approach, we have expanded the outreach. We have had town hall
meetings, in partnership with NPR. We had a town hall meeting
March 22nd in St. Louis. We are having one April 5th in Los
Angeles, and having one here in Washington April 25th.
This expanded dialog and communication with our
stakeholders we believe is certainly a key to figuring a good
solution to this process. As I said before, the Commission is
responsible for eradicating discrimination. This is a shared
process with Federal agencies.
The Commission's authority, in regard to the Federal
agencies, is more limited on the Federal than on the private
side.
I will keep my comments brief. Thank you.
Mr. Scarborough. Thank you. We appreciate your testimony. I
am sure you will have a chance to expand in the question
period.
[The prepared statement of Mr. Hadden follows:]
[GRAPHIC] [TIFF OMITTED] T8877.007
[GRAPHIC] [TIFF OMITTED] T8877.008
[GRAPHIC] [TIFF OMITTED] T8877.009
[GRAPHIC] [TIFF OMITTED] T8877.010
[GRAPHIC] [TIFF OMITTED] T8877.011
[GRAPHIC] [TIFF OMITTED] T8877.012
[GRAPHIC] [TIFF OMITTED] T8877.013
[GRAPHIC] [TIFF OMITTED] T8877.014
[GRAPHIC] [TIFF OMITTED] T8877.015
[GRAPHIC] [TIFF OMITTED] T8877.016
[GRAPHIC] [TIFF OMITTED] T8877.017
[GRAPHIC] [TIFF OMITTED] T8877.018
[GRAPHIC] [TIFF OMITTED] T8877.019
[GRAPHIC] [TIFF OMITTED] T8877.020
Mr. Scarborough. Mr. Brostek.
Mr. Brostek. Mr. Chairman and members of the subcommittee,
I am pleased to have this opportunity to discuss the Equal
Employment Opportunity complaint process for Federal employees
and the Equal Employment Opportunity Commission's role in
protecting Federal workers from unlawful employment
discrimination.
I will summarize my testimony and ask that the full
testimony be inserted in the record.
Mr. Scarborough. Without objection.
Mr. Brostek. In recent years, the complaint process and
EEOC's role in eliminating discrimination in the workplace have
been targets of criticism because of the rising number of
complaints, growing backlogs of unresolved cases, and the
increasing amount of time that it has been taking to bring
cases to a close.
Discrimination complaints and the workplace conflicts that
underlie them not only disrupt the lives of the employees
involved, but also can undermine the efficient and effective
delivery of services to the public.
The EEO complaint process depends on actions taken by both
the employing agencies and EEOC. In accordance with regulations
and policies promulgated by EEOC, agencies receive complaints,
investigate them, and make decisions on their merits.
EEOC conducts hearings on complaints and adjudicates
appeals. Processing hearings and appeals, although fundamental
to EEOC's mission, is only part of that mission, which also
includes eradicating discrimination in the workplace.
With these thoughts in mind, I would like to make three
brief points.
First, the number of discrimination companies by Federal
employees grew during the 1990's, overwhelming the ability of
agencies and EEOC to process cases in a timely manner. My full
testimony identifies those caseload trends in more detail.
Second, we found that the kinds of data that EEOC collected
did not provide answers to such basic questions as the number
of employees filing complaints, the kind of discrimination they
were alleging, and the specific conditions or events that
caused them to file those complaints in the first place. We
also found reliability problems with the data that the agencies
were providing to EEOC and that were then reported to the
public.
Third, although EEOC has focused considerably on the
processing of complaints, the second half of their mission--
going out and investigating the causes of those complaints--
has, in the past, perhaps received a little less attention, and
we are encouraged to see that there is more attention going in
that direction.
That is a segue to the second portion of my statement.
There is encouraging news today. Actions have been taken or are
in development, as Mr. Hadden has mentioned, that address each
of these three issues. I will briefly summarize some of those
actions.
The regulations that EEOC implemented last November, are
one of the principal initiatives to try to deal with the rising
case load. Several provisions in the regulations are intended
to reduce the number of complaints, including provisions
allowing agencies and EEOC to dismiss spin-off complaints,
eliminate fragmentation of complaints, and encourage the
consolidation of complaints by the same individual.
In addition, the regulations require agencies to make
alternative dispute resolution available during the informal
and formal stages of processing a complaint. This requirement
may pay large dividends in caseload reduction.
For instance, Postal Service complaints going to EEOC have
declined significantly and Postal officials attribute that
reduction to their increasing use of ADR.
EEOC data problems are also beginning to be addressed. As
we just heard, EEOC is now trying to actually get an
unduplicated count of the number of complainants that have
filed, and EEOC is working with the agencies on improving the
reliability of the data and with the NPR task force on thinking
through what are the best kinds of data to collect and to
analyze in order to understand the problems that we face.
Finally, EEOC has announced various other initiatives that
may lead to reductions in the case loads. For instance, EEOC
plans to look at their hearings and appeals and extract lessons
learned from those processes and use those lessons learned to
help provide guidance and assistance to agencies and to target
onsite visits to agencies.
In addition, the inter-agency task force that I mentioned
has focused on examining dispute resolution strategies and best
practices, with the hope of creating a model EEO climate and a
model EEO complaint system.
In conclusion, the history of rising complaints, increases
in case backlogs, and the substantial increases in the time
taken to resolve EEO complaints has been unfair to employees
whose lives have been disrupted and have distracted attention
from carrying out the missions of agencies.
Having studied these issues for some time, we are
encouraged that attention is now being paid to looking at the
quality and validity of the information available. We are also
encouraged about the various initiatives to improve the
processing of EEO cases and on identifying the root causes of
the conflicts that get surfaced in the EEO complaint system.
Nevertheless, most of these initiatives are in their
formative stages; therefore, we believe that sustained
attention to these issues by EEOC and the Executive agencies is
a necessity. This hearing and similar expressions of
congressional interest can help ensure that adequate follow-
through occurs to make sure that these initiatives are
successfully implemented.
That concludes my statement. I would be happy to answer
questions.
[The prepared statement of Mr. Brostek follows:]
[GRAPHIC] [TIFF OMITTED] T8877.021
[GRAPHIC] [TIFF OMITTED] T8877.022
[GRAPHIC] [TIFF OMITTED] T8877.023
[GRAPHIC] [TIFF OMITTED] T8877.024
[GRAPHIC] [TIFF OMITTED] T8877.025
[GRAPHIC] [TIFF OMITTED] T8877.026
[GRAPHIC] [TIFF OMITTED] T8877.027
[GRAPHIC] [TIFF OMITTED] T8877.028
[GRAPHIC] [TIFF OMITTED] T8877.029
[GRAPHIC] [TIFF OMITTED] T8877.030
[GRAPHIC] [TIFF OMITTED] T8877.031
[GRAPHIC] [TIFF OMITTED] T8877.032
[GRAPHIC] [TIFF OMITTED] T8877.033
[GRAPHIC] [TIFF OMITTED] T8877.034
[GRAPHIC] [TIFF OMITTED] T8877.035
Mr. Scarborough. I want to echo what you just said. You are
correct. You have been studying this for some time. In fact, in
1995 you testified that to EEO process was ``inefficient,
expensive, and time-consuming.'' I want to ask both of you
gentlemen the following questions:
Do you all agree with us that that is still an accurate
description of the EEO complaint process 4 years later? Mr.
Hadden, would you still term the process, what Mr. Brostek said
in 1995--inefficient, expensive, and time-consuming?
Mr. Hadden. I think the regulations which took effect in
November are going to be very important. To say that, it is
still the state of affairs. The regulations took effect in
November 1999, and I think we are on the road to changing that
reality and making the process much more efficient and
effective.
Mr. Scarborough. Mr. Brostek, how do you compare what you
see today in 2000 to what you saw in 1995?
Mr. Brostek. Well, certainly, in some regards the situation
is materially worse. It is taking considerably longer to work
cases through the entire system, and that is because the number
of cases that have been generated have been in excess of those
that the agencies or EEOC have been able to process each year.
So we have a much larger inventory of cases in place, and the
average amount of time to deal with those cases has been
expanding fairly dramatically, even since 1995.
So I think that the conclusion that we reached in 1995 is
still a valid conclusion.
Mr. Scarborough. In fact, you said it takes longer and
there is a larger backlog. Let me ask you, do you agree with
Mr. Hadden that the regulations that were implemented in
November may be helpful?
Mr. Brostek. I think they are a step in the right
direction. I think they have attempted to address a number of
the issues that have arisen about the efficiency of the
processing of cases.
I also believe that the ADR requirement, as I mentioned in
the statement, has a lot of potential to help us out here.
If other agencies are as successful as the Postal Service
appears to have been in the past year or two in reducing the
number of complaints that get into the formal system due to
ADR, we won't have that rising case trend that we have had in
the past, and that should enable agencies and EEOC to begin
working down those inventories of backlogged cases.
Mr. Scarborough. Do both of you agree that ADR is probably
the single best chance right now to make this process a bit
more streamlined?
Mr. Hadden. I think ADR is an important component; however,
I think that--it is not just ADR, but it is in the context of
what we are doing at the Commission in terms of taking a very
broad, comprehensive approach to our mission to eradicate
discrimination.
But, to answer the question and be responsive, I think ADR
is a very important tool which, used appropriately, can help us
identify the cases which are most suited for an alternate
process and let us use our resources to eradicate
discrimination. But I think ADR is an important tool, but in
the context of a broad-based, comprehensive approach in
partnership with Federal agencies and our stakeholders.
Mr. Scarborough. Mr. Brostek, what do you think? Have you
seen great advances in using ADR?
Mr. Brostek. Well, I don't know that we have seen great
advances yet. We have a couple witnesses who will be on later
who have successful programs or appear to have successful
programs. I am not sure that that is true across the board yet.
We are starting to make progress. These requirements that are
in the regulations should help out.
I believe that ADR will, as Mr. Hadden said, be a very
important component in improving this situation, but I think
another important component is using the data, as has been
suggested by Mr. Wynn, and I think by yourself, Mr.
Scarborough, to help identify where the sources of the problems
we are facing are. Who is doing the complaining? Why are they
complaining?
Once we can analyze the situation, we can take corrective
measures to head off complaints in the future. We might find
that what we need is an educational program of some kind, and
we can target that to the agencies who are having the biggest
problems with promotion processes or unfair assignments of
individuals.
The analysis of that data and follow-through I think is as
important as the ADR process.
Mr. Scarborough. Now, speaking of who is filing complaints,
oftentimes you hear the argument that, well complaints may be
up, but it is just a small number of people that are filing
these complaints, it is based on personality conflicts and not
really discrimination.
Do you all have any evidence and do the numbers bear that
out, that a small percentage of people file a
disproportionately large number of complaints, or is that
really a red herring?
Either one of you want to answer this question?
Mr. Hadden. We are pointing at each other.
Mr. Scarborough. Yes, you are you are pointing at each
other. You all can't see it out there. What does that mean?
Mr. Hadden. I think that clearly the point is that we do
need to have better data to answer those precise questions
which are legitimate questions, and I believe those are, in
fact, some of the questions that Congressmen Cummings and Wynn
asked the General Accounting Office to address.
I would be uncomfortable saying with any certainty, to you,
what the answer to that is other than we are moving in the
right direction and getting the data to address that.
Mr. Scarborough. Mr. Brostek, were you able to find any
evidence through your studies that a small number of people
file a large number of complaints?
Mr. Brostek. Nothing that we could really quantify.
Mr. Scarborough. OK.
Mr. Brostek. There are certainly plenty of allegations that
that is the situation. I think that the information that is now
beginning to be collected on the number of individual
complaints filed each year will help us out to try to track
that.
Mr. Scarborough. I am about 45 seconds over, but I want to
ask one final question very quickly.
You talked about the use of technology, that you thought
technology could be used. Does it not seem possible to both of
you that there is some way that we ought to be able to give
EEOC the resources where they can almost put instantaneously up
on the Internet who is filing the complaints, what is the basis
of the complaints, what are the numbers, the macro, what are
the numbers of the agencies having complaints filed, and what
are the bases? Is it race discrimination, sex discrimination,
age discrimination? I mean, that shouldn't be so difficult,
should it?
Mr. Hadden. It should not be difficult, and I would say
that the NPR/EEOC task force, the data team, in fact, I think,
has had some very good discussions about what options are
available to the Federal Government. That is one reason why the
task force is such a great tool, because we have all the
agencies at the table.
But, to answer your question very succinctly, technology is
there. I think that certainly it is something we could look at.
I mean, we have learned at EEOC, although we are coming late,
because, you know, of the resource issue, but we are improving
our technological extent and reach, and that is something. We
would like to continue that dialog with our stakeholders of how
we can do that.
Mr. Scarborough. Great.
Mr. Brostek. We certainly haven't analyzed that issue. It
would seem to me that it would be feasible to do that. The
important thing, I would think, is, once we are able to, that
we also have the analytic capacity to analyze it and determine
what it is telling us so that we can use it and take corrective
action.
Mr. Scarborough. Thanks.
Mr. Cummings.
Mr. Cummings. Thank you.
I tell you, this whole discussion has just been
fascinating, this back and forth here.
Let me start with the last question that Mr. Scarborough
asked.
Mr. Hadden, are you saying that the capability is there to
do what he just said?
Mr. Hadden. Technology, absolutely. Sure it is there. The
question--it is there.
Mr. Cummings. So if the Congress mandated it, it could be
done?
Mr. Hadden. Absolutely.
Mr. Cummings. OK. Because that is what we may have to do.
See, maybe I am missing something, but, I mean, I have seen
some of these forms, and I thought the forms--now help me, but
I thought the forms--you have got to tell what your basis is,
right?
Mr. Hadden. Right.
Mr. Cummings. And then basically the form is supposed to
tell what the issue is; is that right? Is that right?
Mr. Hadden. That is correct.
Mr. Cummings. And so it is a matter of gathering this
information from some forms. I know I am missing something, so
tell me what I am missing.
Mr. Hadden. Well, the forms are gathered and collected by
the Federal agencies.
Mr. Cummings. Right.
Mr. Hadden. And the EEOC in the past would ask for those
for the data to be combined, compiled, and given to us at the
end of the fiscal year.
The problem comes that the data which agencies are giving
us we find is not always the correct data, is not reliable
data, so that is partly where the problem comes in.
One option that we certainly had considered or have thought
about that the chairwoman had alluded to is what we call a
``universal docketing number,'' which could allow the EEOC and
all the agencies to track a complaint as it goes through the
system. We think that would help us. The question is whether we
want a live data system or a static data system.
Mr. Cummings. So you have the capability of doing that
right now, what you just said, that universal number?
Mr. Hadden. The Commission does not have the capability. We
have to engage in a--our data system does not currently allow
us to do that.
Mr. Cummings. But you were about to say you have to engage
in a----
Mr. Hadden. Discussion or dialog with agencies about----
Mr. Cummings. That is what I thought you said.
Mr. Hadden [continuing]. That whole issue. We have done
that with the task force. I mean, technology will let us do
pretty much what we want to do.
The question is, as I indicated in the beginning of my
testimony, this is a shared process.
Mr. Cummings. Right.
Mr. Hadden. The Commission, its relationship with our
agency stakeholders is one in which, you know, we have to
engage in dialog and the certification and reliability of data
is, in large part, in their hands.
As you know, the question is how much attention does the
head of the agency give it. That will help and hopefully
determine the accuracy of the data that we get from the
agencies.
Mr. Cummings. What can we do to help you help us? In other
words, is there anything that we can do? I tell you, sometimes
when I--after I got elected, sometimes I wonder about the power
that we do have. I hate to say that, as a Congressman, but I am
just wondering, is there anything that we can do to help you?
Is there something that we could pass or something that we
could demand? I mean----
Mr. Hadden. Well, I am trying to avoid the natural instinct
to say resources is clearly an issue for us, but, in all
seriousness, it is an issue for the Commission in terms of what
the Congress can do.
I know that, in the past, the Commission has been the
beneficiary of an increase, but that is certainly one thing.
I think the other is this kind of dialog and attention to
the problem, and I think that helps. The task force is also
helpful.
Mr. Brostek. I would like to followup on that. I think we
are having this hearing today, in part, due to what you and Mr.
Wynn have done, by asking us to do a series of assignments, to
analyze the situation, and determine what the facts are for the
situation. I think is a reasonable expectation for you to also
have of the agencies and EEOC provide you some fact-based
analysis of what the problems are, what their work load is,
what kind of resources they need to deal with that work load.
I think asking for that kind of information from the
agencies and EEOC will help you make more-informed decisions
about what kind of resources ought to be made available.
Mr. Cummings. Well, Mr. Brostek, I am so glad you said
that, because I want to pick up where the chairman started.
He started by asking you all about some things that may
have been stated back in 1995. Here we are, going on 6 years
later, and I am just wondering--you know, I think one of the
things that is so frustrating for us a lot of times is that we
don't like to think that we are meeting just to be meeting, and
we like--in order for us to feel that we are making some
progress, it is nice to have some type of measuring tool to
figure out did we accomplish something or didn't we or would it
have been better off for us to be playing golf somewhere
instead of wasting everybody's time.
I am very serious about that.
So the question is: if we come here a year from now, I
mean, what should we expect to see? And I would like to be able
to focus--just like the chairman quoted from 1995, I would like
to have a quote so that whoever is here can sit and say, ``Now,
back there in March 2000 you said.''
Now where are we? What can we expect? You have told us
about the regulations from November in answer to the chairman's
question. I mean, you did say that the situation was worse than
a few years ago.
Mr. Brostek. It certainly is in terms of the number of
cases and the backlog.
Mr. Cummings. Right. So now the things that you said are
worse--Mr. Hadden talked about the optimism coming from the
regulations in answer to the same question. So now the question
becomes: what should we reasonably expect within a year from
now so that we can quote you and say, ``You said we would be
here. We should be here by now?''
The reason why I am asking that question is I am not trying
to mess with you. I guess it is so that we don't keep doing the
same things over and over again.
There was a song way back when in my younger days that
said, ``You have got me going in circles,'' and in some kind of
way we have got to get off the circle because lives are being
affected every day.
So if you could tell us, give us a nice statement so that
we could have a nice measuring tool, so that, if it is you, or
whoever is sitting in your position a year from now, we can
take it--load the statement up on a big screen and say, ``Have
we accomplished this and where are we? And, if we haven't
accomplished it, why haven't we?''
I am listening.
Mr. Brostek. Well, I don't think it is really the----
Mr. Cummings. I would like to hear from both of you, by the
way.
Mr. Brostek. I don't think it is really the General
Accounting Office's role to set the goal for the EEOC or the
agency, but I would certainly think that what you have been
told----
Mr. Cummings. What would you hope for? And then I will ask
my friend, Mr. Hadden, another question.
Mr. Brostek. I would hope that the beginning decline in the
number of cases going into the system would continue to be the
trend--that we wouldn't see it going up any longer; we would
see the number of new cases going down.
I don't know what we can expect next year for the EEOC
caseload, because they still have this huge inventory of cases
out there they have got to work on, but you certainly would
want the initial cases coming in to continue going down, and
you wouldn't want to see too long before the trend in EEOC,
itself, with the hearings and appeals workload start going
down. I just don't know whether that is reasonable next year.
I think you would also reasonably expect that by this time
next year there would be some clear resolution to the data
problems and clear identification of the data that EEOC and the
agencies will track to determine what the causes of the
conflict are that underlie these complaints.
Mr. Scarborough. OK.
Mr. Hadden. I would add I agree with all of that. I think
that certainly is reasonable. But I think, in a more broad
brush, what you should see next year is, as a result of the
partnerships that we have with the stakeholders, identification
of some of the best practices of Federal agencies, and also on
the private side. That is one of the teams that we have on this
task force.
I think that will be very helpful to know. What are the
best practices? What are the prevention strategies which we
know work? Those are, I think, important measures.
The numbers certainly, you know, count, but for the
Commission I go back to its mission of eradication of
discrimination. And I hope that we will next year this time be
able to get to the point of using ADR much more efficiently and
effectively throughout the Federal community so that we can
focus on those egregious cases which we don't want to see. We
do want to see the Federal Government truly become a model
employer.
Mr. Cummings. Last question: would it be helpful for us to
set some goals so that when you go back to your task force you
can say, ``Well, this is what the Congress has said they want
to see within a certain period of time?''
I mean, I understand that there are pressures coming from
all around, and that sometimes it is helpful to go back with
something saying, ``Look, I just left the Congress, and this
guy, Cummings, was going crazy, and so this is one of the
things he and the chairman said and Ms. Norton, and they are
very upset, and so this is what they have asked us to do.''
Would that help you?
Mr. Hadden. I can only tell you that anything helps in
terms of getting the message out, but I think that we at the
Commission have been on message in terms of recognizing the
flaws with this EEO process and have been driven in short order
to make some changes in dramatic fashion. That certainly would
help. But I think that, more importantly for us, it is a
resource question in terms of what we ultimately can deliver
for the Congress.
Mr. Cummings. Thank you.
Mr. Scarborough. Thank you, Mr. Cummings.
Mrs. Morella.
Mrs. Morella. Thank you, Mr. Chairman.
I think this is an important meeting. It is kind of like
deja vu all over again, because it is not the first hearing
that we have had on this issue. I think we assumed that we had
given adequate tools and mechanisms for streamlining the
process, since we had all heard from constituents about
backlogs and not feeling that anybody was paying attention.
I was surprised also to find, up to this point--and I say
``up to this point'' because I think we are going to look ahead
at what can be done and should be done, but I am surprised that
we didn't have an actual analysis and statistical numbering of
the number of cases, the causes. I know you are starting to do
that, but I kind of had assumed that this was automatically
being done.
All right. In July of last year, my office met with
Patricia Crawford and Ida Castro to talk about what needed to
be done, what the problems were facing the EEOC, and it was
their goal to implement the changes to the problems that I know
that Congressman Wynn earlier addressed and that you have heard
here today, too.
The discussion had to do with agencies will be no longer
able to rewrite the decisions of the administrative judges.
They may now only accept or reject; improved FMLA claims--
family and medical leave claims--now they will be approached as
a whole and the agency may not fragment the claim; EEOC will
take part in the claim throughout the process, instead of
coming in at the end, which would minimize the agency's ability
to delay; and hiring 19 administrative judges and 14 appellate,
because the President had given more money for that.
Now, I am wondering, looking at some of those changes, if
you would--I know I guess they started in November, as you have
said. How successful do you see these changes as being? And are
there other remedies? I want to ask you another question after
that, but are there other remedies that you are addressing? I
know you talked about the alternative dispute resolution and
the inter-agency committee.
Mr. Hadden. Just to clarify, we do have reports to do the
analysis of, agency-by-agency, the number of complaints filed,
the number of cases for which discrimination is found, but we
want to improve the accuracy and reliability of that data, and
we want to certainly start counting the number of individuals,
so we have that data available.
In terms of the success of those things that you have
mentioned, it is--and I hate to keep saying it. I feel like I
am dodging the question, but it is March and we began in
November.
We are excited and think that they will, in fact--certainly
the resources which were provided us by the Congress have made
a tremendous difference in terms of, if not reducing the
inventory, reducing the time it takes to handle complaints.
But when you are talking about a reduction of perhaps a
month in the inventory, it seems somewhat small, and so I don't
like to talk too much about those, but those resources have
made a tremendous difference.
I think a lot of this can hopefully be turned around with
the dialog with our stakeholders--and our stakeholders include
Congress--in terms of what is it that your goals are and how is
it that the Commission can go about doing those.
Mrs. Morella. Would you like to comment on that, Mr.
Brostek?
Mr. Brostek. We really haven't looked at the effect of
these recent changes.
Mrs. Morella. So you think it is pretty early. That is what
you are both sort of saying. We have got the goals, we are
going to do it. We are going to reduce that time element, too,
and that backlog. You mentioned you have the resources, so that
is not a problem. You have the will?
Mr. Hadden. Right.
Mrs. Morella. And you think you have the recommendations to
do that. Did you want to comment?
Mr. Brostek. If I could, just for a second. It kind of goes
back to Mr. Cummings' point about what goals should we set. You
know, there is the Government Performance and Results Act
process----
Mrs. Morella. Yes.
Mr. Brostek [continuing]. That requires agencies,
themselves, to set goals, and you are intended to be
consultants with the agencies as those goals are being set, and
then it is legitimate for you to hold the agencies accountable
for reaching those goals or explaining why they haven't done
that.
I would suggest that looking at the strategic plan and the
annual performance plan of EEOC, as well as the agencies, to
see whether they set those goals and you are satisfied with
them would be a good technique.
Mrs. Morella. That is an excellent point, because it is a
very important law that we have and we need to do the oversight
on it.
A final point. I know that mentioned in the testimony--I
think it was probably yours, Mr. Brostek--was the fact that
EEOC also has a responsibility to try to eliminate
discrimination in the workplace, and I guess, from what I
understand, not that much has been done in that regard, maybe
because of the backlog or bureaucratic difficulties that were
faced. But I am wondering about whether you have some programs
in mind, what you are doing in terms of a program to eliminate
this discrimination, certainly reduce it significantly.
Mr. Hadden. Our comprehensive approach, in terms of using
all the tools, we have a complaint investigation which agencies
use, and also the hearings and appeals, but what we are hoping
will happen is, through onsites of Federal agencies, where we
go out and actually visit with the agencies and employees, will
lead us and put us in the posture of preventing complaints from
arising in the first place.
I think we have had some very good successes, in terms of
the mission, itself, the appeals staff who write the cases and
actually have to make judgments, as well as our administrative
judges, in terms of eradicating the discrimination. I mean,
that is kind of a reactive posture.
What we want to do is use everything--use our outreach, use
our technical assistance for all of our stakeholders to talk
about these very issues.
I think, by having a dialog with all of the parties,
including the administration and the agencies, we will make
some dramatic implementations.
Mrs. Morella. Do you find that there is a preponderance of
cases from some agencies more than others? Do you have a record
of that?
Mr. Hadden. Well, we know that the Postal Service is one of
our biggest stakeholders. And, generally, if you start looking
at the Defense agencies, it pretty much follows where the large
number of Federal employees are.
Mrs. Morella. So you give the greatest interest and concern
and remediation to those agencies, I would assume?
Mr. Hadden. We try to take an approach of not just looking
where the numbers are, but where the problems are, and what we
hear from our constituents and from our stakeholders. It may
be, in fact, a much smaller agency that may, in fact, deserve
our attention.
Again, to use the question of where do we target our
resources, we have a lot of requests to come and visit an
agency and do an onsite review. We don't have the staff, so we
have to choose, and we choose based upon an assessment of the
information that we have, looking at the reports we have gotten
in the past in terms of complaints and other information that
we may have received. So it is not necessarily the number of
employees that dictates where we go.
Mrs. Morella. A subsequent meeting of this subcommittee
will be great when we analyze what has happened since this
meeting. Thank you very much.
Thank you, Mr. Chairman.
Mr. Scarborough. I thank you, Mrs. Morella.
You know, hearing Mrs. Morella ask the questions, I started
thinking about the people that are up in the Civil Service
panel, and I believe all of us that are here today are probably
within the top five of Members with Federal employees in their
District. I know I come in at a strong three or four, and I
know Mrs. Morella is at the top. Ms. Norton, you probably
represent one or two, yourself, don't you, in D.C.
I would like to open it up for any questions you may have
for our panel.
Ms. Norton. Thank you, Mr. Chairman.
First, let me say, Mr. Hadden, that I think the agency is
to be congratulated on the work it has done to improve its
processes, and particularly to begin to use ADR to look at and
listen to the complaints about its processes and try to correct
them.
I also recognize that there is a fatal flaw in the EEOC
process, and it is a flaw that comes from the 1960's, and it is
intolerable this late in the day that complaints of Federal
employees are processed differently from complaints of private
sector employees, so that if I happen to work for AT&T or
McDonald's, I come to the EEOC office and I say, ``Tell me one
way or the other, has there been discrimination.'' If I work
for the FCC, or God help me if I work for the Congress of the
United States, which has even a worse process, and I come and
say, ``I have to talk to the people who I am accusing,'' that
is a fatal flaw. It is structural discrimination that is built
into the process as it affects Federal employees.
Let me say to you, Mr. Hadden, nobody is going to be able
to break through that here in the Congress, as we have tried to
do for years, unless the EEOC can, first of all, show the that
it can deal with what it has got. Nobody is going to say, ``OK,
you can now handle all the Federal employees'' unless they can
see that the agency is, in fact, able to digest what it has.
I want to look at the ADR process. I agree with the rest of
the panel that it is key to moving cases in a fair and
expeditious way.
I look at page 9 of your testimony, in which the EEOC seems
to me quite appropriately has used a test process. I am not
sure why you used the Census as the test process. I think it is
OK, but it seems to me that it would have been more suitable to
use a section or department of a Federal agency, since these
are temporary employees, probably unrepresentative of the
Federal Government.
First, let me ask you, except for the fact that they were
going to be here today and gone tomorrow, why did you use
Census employees instead of employees of some Federal agency or
a section of some Federal agency?
Mr. Hadden. We were approached by the Department of
Commerce/Census to partner with them, and that is principally--
--
Ms. Norton. See, that is what I mean. You have got to be
proactive, it seems to me, if you want to improve your
processes. They came to you.
Mr. Hadden. Right.
Ms. Norton. It seems to me that, in keeping with the
concerns about data, the first thing to do would have been to
be as scientific as possible if you are trying to implement a
new system, and, therefore, to look for some small part of an
agency that was fairly representative of Federal employees,
because this is not going to tell me whether this system works,
because, if anybody is unrepresentative of Federal employees,
there are people who are, many of them, temporary people, out
of work. If we try to recruit some today at a job fair at the
Convention Center, they are fine people, but nobody would claim
that they represent Federal employees.
So the first thing I would ask you is to do a real test
somehow, and you are in the best position to do this, to find
us a representative group of employees from some agency. It
doesn't have to be a lot of agencies.
I applaud your notion of going at this slowly.
Now, I look at what you say that you did. You looked--you
know, as a measure of your initial success, you say, of 192
complaints filed to date, EEOC has identified 45 which were
suitable for processing. Why is that a measure of success, that
a quarter of the cases that were filed were deemed suitable for
process? Whose success does that represent, the success of the
complainant, success of the agency, success of the agency that
is alleged being discriminated against? How are we judging
success here?
Mr. Hadden. When we described that as a measure of success,
I think the question is--going back to the point that you may
have made earlier, Congresswoman, in terms of identifying and
focusing our resources on those cases for which we think there
is something there that needs to be focused on. And the
statement that it is the measure of success is an
acknowledgement that there are some issues which don't really
lend themselves to the full investigation.
For us, the attraction of the Census is that it is a
neutral party that is doing the assessment early on in the
process.
Ms. Norton. Excuse me? Any more neutral than any other
Federal agency doing initial assessment?
Mr. Hadden. Well, the question is: if the party in
interest, which is a Federal agency, is doing the intake of the
complaint, is neutral, there is a concern that a person may be
more reluctant to share what they know if they see the agency
doing the intake of the complaint.
Ms. Norton. Who is doing the intake? When filing against
the Census, itself, who is doing the intake?
Mr. Hadden. I am sorry. The EEOC's Washington field office
is doing the intake of the complaint.
Ms. Norton. I see. You are doing the intake?
Mr. Hadden. Yes, ma'am.
Ms. Norton. In eliminating three-quarters of the
complaints, which may be entirely appropriate, what happened to
the complaints eliminated?
Mr. Hadden. They have the right to appeal to EEOC.
Ms. Norton. No, what happened to them? Why were they
eliminated?
Mr. Hadden. The reasons may have varied. For example,
timeliness--they were untimely complaints. They did not state a
claim----
Ms. Norton. Mr. Hadden, may I ask that you submit to--you
have a small number of complaints here, 192 complaints. Would
you submit for the record to this hearing the disposition of
the three-quarters of the complaints that were deemed not
suitable for processing?
We are not going to have any sense of--you know, one
question we have is, you know, are people being discriminated
against, why are people filing more complaints. If all you give
us is some bottom-line figure, which is the number that you
have processed, you have told us very little.
Now, I am not suggesting that the three-quarters that were
eliminated should not have been eliminated, but I am
suggesting, with only 192 complaints, this committee should
have been told what was the reason for three-quarters not being
deemed suitable for processing so we could have some sense of
how the process, in fact, works, and it would have more
credibility.
Now, I am interested in the administrative judge trying to
settle the case. You say, through the early neutral evaluation
process, the administrative judge tries to settle a case. The
initial success, as shown by this pilot, prompted the
Department of Commerce to request an extension. How many cases
were settled?
Mr. Hadden. We would have to get that information.
Ms. Norton. Well, my goodness, Mr. Hadden. You say it is
successful. We don't know whether or not these cases were
settled. I mean, the whole point here is to try to see if ADR
works. You come with testimony that tells us it is successful,
but you don't tell us if even one case was settled. That is
very important information for the committee to have and for
the EEOC to have, and I ask that it be submitted to us and I
ask that you look at the settlement, see what the settlement
was.
[Note.--The U.S. Equal Opportunity Commission's Office of
Federal Operations report entitled, ``Annual Report on the
Employment of Minorities, Women and People with Disabilities in
the Federal Government for the Fiscal Year Ending 1998,'' may
be found in subcommittee files.]
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T8877.036
[GRAPHIC] [TIFF OMITTED] T8877.037
[GRAPHIC] [TIFF OMITTED] T8877.038
[GRAPHIC] [TIFF OMITTED] T8877.039
[GRAPHIC] [TIFF OMITTED] T8877.040
[GRAPHIC] [TIFF OMITTED] T8877.041
[GRAPHIC] [TIFF OMITTED] T8877.042
[GRAPHIC] [TIFF OMITTED] T8877.043
[GRAPHIC] [TIFF OMITTED] T8877.044
[GRAPHIC] [TIFF OMITTED] T8877.045
[GRAPHIC] [TIFF OMITTED] T8877.046
[GRAPHIC] [TIFF OMITTED] T8877.047
[GRAPHIC] [TIFF OMITTED] T8877.048
[GRAPHIC] [TIFF OMITTED] T8877.049
[GRAPHIC] [TIFF OMITTED] T8877.050
[GRAPHIC] [TIFF OMITTED] T8877.051
[GRAPHIC] [TIFF OMITTED] T8877.052
[GRAPHIC] [TIFF OMITTED] T8877.053
[GRAPHIC] [TIFF OMITTED] T8877.054
[GRAPHIC] [TIFF OMITTED] T8877.055
[GRAPHIC] [TIFF OMITTED] T8877.056
[GRAPHIC] [TIFF OMITTED] T8877.057
[GRAPHIC] [TIFF OMITTED] T8877.058
[GRAPHIC] [TIFF OMITTED] T8877.059
[GRAPHIC] [TIFF OMITTED] T8877.060
[GRAPHIC] [TIFF OMITTED] T8877.061
[GRAPHIC] [TIFF OMITTED] T8877.062
[GRAPHIC] [TIFF OMITTED] T8877.063
[GRAPHIC] [TIFF OMITTED] T8877.064
[GRAPHIC] [TIFF OMITTED] T8877.065
[GRAPHIC] [TIFF OMITTED] T8877.066
Ms. Norton. We ought to know whether the settlement was
some disposition within the agency, whether the settlement was
for cash. We ought to compare the kind of settlements you do
with what kind of settlements are done by the agencies.
I would have thought that the GAO would want to know the
same kind of information, and I would ask you that any work you
look at look more closely at the details of what is reported so
that we can have some basis to judge whether it is a success.
The GAO reports on a growing inventory, and it says that it
is taking--you say it is taking longer to process with a
growing inventory. You also say there is a sharp increase in
the average time to process a case. Now, that is counter-
intuitive. That is to say, if there were a growing inventory,
then you would expect the effect on the agency to reduce the
time to process a case. Can you explain or can Mr. Hadden
explain why, with a growing inventory, that hasn't amounted to
some pressure for greater efficiency or innovations that might
have tried to keep up with the time to process a case?
Mr. Brostek. One of the things that we reported in one of
our earlier reports specifically for EEOC is they have become
more efficient in the sense that their judges are processing
more cases per judge per year. The reason why the backlog is
growing and the inventory and the time is growing is because
there are more cases coming in that even a more-efficient judge
can process. There are more sitting on the shelf----
Ms. Norton. Well, that doesn't have anything to do with
efficiency. I don't know whether the judges are more efficient
because they are not taking lunch hours or if they are more
efficient because processes that increase the efficiency are
being incorporated. One would involve no more efficiency,
simply more manpower, and the other would involve greater
efficiency.
What I don't understand is what the agency is doing to meet
the greater inventory.
Mr. Brostek. Mr. Hadden could address that better than I.
Mr. Hadden. The question--I want to make sure I understand
it, Congresswoman--is what is the EEOC doing?
Ms. Norton. What I am saying, Mr. Hadden, is the pressure
on you is very great because there are more of these--you can't
do anything about that. There are more of these complaints
filed.
The normal reaction of a bureaucracy is the more--this is
the way the market is supposed to work--the more pressure I
got, the greater the incentive to incorporate measures that,
for example, shorten the time to process an appeal.
GAO reports sharp increase in the time to process appeal,
even as the number of cases has increased. That is why I say it
is counter-intuitive. It should be just the opposite--that you
ought to feel such pressure that you are looking for ways to
shorten the appeal time, as there is a growing inventory,
according to the GAO. You would think that, instead of being,
says the GAO, longer to process a case, that the growing
inventory would lead to a shorter time to process a case.
I am looking for some way to explain these counter-
intuitive results.
Mr. Hadden. I think that addresses--the question of data
analysis is one of the issues of why we need to do a better job
at being able to answer those very questions.
The growing inventory is certainly a problem with agencies,
as well as the EEOC, in terms of the inventories are growing
and it takes longer.
I think what we have to do--and that is why I talked about
the computer-based training--is help the agencies understand
how to handle the cases, what is a proper investigation.
The bulk of the cases, I believe, you recalled was they are
not that complicated in terms of EEOC has expertise in
investigation of cases and we should be able to help them move
those cases faster, as well as the Commission's judges and
appellate staff. We need to study that.
Ms. Norton. Yes. And, by the way, I am not suggesting--your
people are probably trying also to make sure that they do a
proper job. There were terrible things reported by the EEOC
during the 1980's that essentially, in order to process cases
quickly, they were essentially not processing them. That is the
last thing I am suggesting.
Mr. Hadden. Right.
Ms. Norton. But I am suggesting that a greater inventory is
a wonderful incentive toward greater efficiency.
Now, the ranking member asked about goals and, you know,
wouldn't quite specific goals be helpful. You did not mention
that on page 12 you have goals----
Mr. Hadden. Right.
Ms. Norton [continuing]. That I thought were rather modest,
and I wonder how you reached the goals you have.
Mr. Hadden. Sure.
Ms. Norton. You say 5 percent reduction in the number of
hearings over 6 months, 20 percent total closures in the oldest
group of appeals. That must mean that it would be from the
oldest, with 10 percent of appeals resolved within 180 days,
etc.
How do you set goals, because it gives the appearance of
just setting the most modest goal you can find in order to make
sure you can reach it.
Mr. Hadden. Our goals are set based upon our resources, and
that is the fiscal year 2000 goals, I believe. We have to set
goals which we are hoping to achieve, and these goals were set
based upon what we know has happened and what resources we
have.
Ms. Norton. I only have one question beyond this, Mr.
Chairman, but just let me say something about setting goals
based on your resources.
When I came to the EEOC, the backlog was scandalous, and
the way in which the EEOC handled its backlog was to come back
to Congress and ask for new resources, and Congress spit in the
eye of the agency, and that is because nobody--we could never
give you dollar-for-dollar to match the increase in cases.
I got a 50 percent increase in resources when I was at the
EEOC, and I am telling you nobody was handing out free money,
and the way I did that was to demonstrate that we were going to
use the process, and we put it in three separate offices, which
cut the process time dramatically. We said, ``If it takes you 2
years now--'' this is private sector stuff--``we will get it to
3 months.'' But we said, ``We can only do that if you give us
the resources to do it.''
Congress responded, because it knew it wasn't being asked
to do the impossible, to match case for dollar. Until you are
able to convince us that you are not setting such modest goals
based on resources, nobody is going to be responsive with
resources. You have got to incorporate within your request for
resources a showing of efficiencies that cut the need for ever-
increasing resources.
I think that Congress has been responsive in the past and
can be responsive in the future, and I cannot, in all
seriousness, say to Congress that I think that whenever EEOC
comes in and says it has got more caseload you ought to give
them more money, because that, in fact, does not reward
efficiency and it seems to me that if you show efficiency you
have the credibility to get resources, but not if all you say
is, ``Hey, we got more cases.''
I would like you to take that back to the chairman, a very
good friend who understands, because I have gone to bat for her
at the Appropriations Subcommittee. I tell you, the
Appropriations Subcommittee tells me, ``The President asks for
37 percent resources, you have got it.'' He negotiated it. You
have got to come in now and do a quid pro quo.
Finally, let me ask you, the Congress approved an
extraordinary new provision in title seven in 1978. It gave the
EEOC jurisdiction to coordinate, and thereby eliminate, overlap
and inefficiency among all the agencies with job discrimination
responsibilities. That meant everybody from the EEOC to anybody
who had something to do with job discrimination.
At the time I was at the EEOC--talking about Inter-Action
Agency Task Force--nobody put out a regulation that you didn't
bring to the table, so that we weren't all having different
regulations and building inefficiency, because there are a
number of different agencies.
You indicate that you have a inter-agency task force here,
and I applaud that, but I must ask you: has this addition to
the statue gone moribund, or are you engaged in coordinating
all the agencies which have job discrimination jurisdiction to
make them speak as one and to avoid overlap and inefficiency?
Mr. Hadden. I would have to say I think we certainly need
to do better, in terms of enforcing that provision of the
statute.
The inter-agency task force is a wonderful vehicle and
tool, but, notwithstanding that, the Commission has
responsibility to coordinate with our Federal agencies.
We need to do better.
Ms. Norton. That would include, of course, the agencies
that, of course, feed into your system.
Mr. Hadden. Right.
Ms. Norton. You have the jurisdiction. It was considered
one of the great new additions to title seven of the 1964 Civil
Rights Act.
May I ask that you and the chairman and the Commission
provide for this committee what you intend to do to fully
activate the provision added in 1978 that gives you the
authority to coordinate across the board, including the Federal
agencies that feed into your system, all agencies having title
seven or job discrimination jurisdiction?
Mr. Hadden. OK.
Ms. Norton. Thank you, Mr. Chairman.
Mr. Scarborough. I thank the gentlelady and certainly
appreciate her coming to this hearing, being really, obviously,
an expert from her position as heading this area up back under
President Carter.
Again, I appreciate your time.
Mrs. Morella, do you have any followups?
Mrs. Morella. Just one on the ADR.
I note that the Postal Service has been employing it. You
mentioned they had the greatest number of complaints because
they have the greatest number of employees. They have been
employing it, and, according to the testimony, it has made a
significant difference.
How do you, in discussion surrounding the concept that we
are trying to promote ADR in all the agencies--if, in fact, it
is a matter of one's choice, what are you doing within the
agencies to get people on track to employ or become part of the
alternative dispute resolution situation?
Mr. Hadden. The requirement of ADR is relatively new for
EEO. We are looking at how each agency--we are giving them a
lot of flexibility and we will look at what works best. The
REDRESS program at the Postal Service certainly has been very
effective. I think there are some broad principles that we
think work--commitment from the top level of the agency, the
head of the agency, a fair process. Those are some of the
hallmarks that we would look for. I think those would encourage
people to use ADR throughout the process.
The key is integrity and fairness, I think, in large part.
Mrs. Morella. Should it be mandated in some way?
Mr. Hadden. The Commission doesn't require that, for
example, if an agency chooses to have its managers, as a
requirement that they go, that is a choice that an agency can
make.
We have not given a lot of regulations on the ADR process,
because we want agencies to have as much flexibility as
possible in designing their program.
Mrs. Morella. Yes.
I think this will probably be coming up in another panel.
Thank you, Mr. Chairman.
Mr. Scarborough. Thank you, Mrs. Morella.
Mr. Cummings.
Mr. Cummings. Mr. Hadden, in light of the excellent line of
questioning on the part of Ms. Norton, I hope that you all
will--I mean, I know you have got your performance goals on
page 12, and for fiscal year 2000, but I would hope that, when
you develop them for 2001, you will take into consideration the
things that Ms. Norton has said. We do see her as a leader in
this area. She knows her stuff backward and forwards, and when
she says that the goals are just not up to what they ought to
be, you can bet your bottom dollar that carries a lot of weight
with us, and so I would hope that you all would take those
comments into consideration when you sit down to rate your
future goals.
Thank you, Mr. Chairman.
Mr. Scarborough. Thank you, Mr. Cummings. I want to second
that. I think we all pay a tremendous amount of deference to
Ms. Norton's insights on this issue.
Ms. Norton, any followups?
Ms. Norton. No, Mr. Chairman.
Mr. Scarborough. OK. Thank you.
And I am just going to submit a question. You said that it
appears that minorities are placed in positions that are dead-
end employment tracks, while others are allowed to be put into
positions or are more likely to be put in positions that will
ultimately--management spots in Federal agencies.
Again, we are going to keep it open. I want you to give us
any information you may have to substantiate that claim or
refute it.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T8877.067
[GRAPHIC] [TIFF OMITTED] T8877.068
[GRAPHIC] [TIFF OMITTED] T8877.069
[GRAPHIC] [TIFF OMITTED] T8877.070
[GRAPHIC] [TIFF OMITTED] T8877.071
[GRAPHIC] [TIFF OMITTED] T8877.072
Mr. Scarborough. With that, I thank you for coming. I know,
obviously, the questions have been difficult, but, Mr. Hadden,
especially you, we look forward to seeing you again next year,
when I know we are going to have some very--don't roll your
eyes--we are really going to have some very positive, very,
very positive statistic to show that those regulations that
were just, in all fairness, implemented 6 months ago, combined
with other alternative dispute resolution process, will bring
the number of complaints down, and I think, more important,
that we all get together and work on a bill that will make sure
that you all have the resources you need to get immediate
reporting of EEOC complaints on the Internet.
I thank both of you for coming, and we will go into the
third panel.
OK. We are going to take a 5-minute break and be right
back.
[Recess.]
Mr. Scarborough. We will call the meeting back to order.
I would like to welcome our third panel here and ask that
you raise your right hands.
[Witnesses sworn.]
Mr. Scarborough. Our third panel consists of Gerald Reed,
Cynthia Hallberlin, and Roger Blanchard.
Mr. Reed is president of Blacks in Government; Ms.
Hallberlin is chief counsel of alternative dispute resolution
at the U.S. Postal Service, and she is also the national
program manager for REDRESS, the Postal Service's mediation
program for resolving EEO complaints. REDRESS is an acronym for
Resolve Employment Disputes, Reach Equitable Solutions Swiftly.
Mr. Blanchard is the Assistant Deputy Chief of Staff for
Personnel at the U.S. Air Force.
Both Ms. Hallberlin and Mr. Blanchard are accompanied by
subject matter experts that will join them at the table, and I
will ask each witness to identify their expert when they
testify, and we have already sworn them in.
With that, why don't we start with you, Mr. Blanchard, if
you could give us your testimony.
STATEMENTS OF ROGER BLANCHARD, ASSISTANT DEPUTY CHIEF OF STAFF,
PERSONNEL, U.S. AIR FORCE; JOE MC DADE, ASSISTANT GENERAL
COUNSEL, OFFICE OF THE SECRETARY OF THE AIR FORCE; CYNTHIA
HALLBERLIN, CHIEF COUNSEL OF ALTERNATIVE DISPUTE RESOLUTION
PROGRAM, NATIONAL PROGRAM MANAGER OF REDRESS, U.S. POSTAL
SERVICE; AND GERALD R. REED, PRESIDENT, BLACKS IN GOVERNMENT
Mr. Blanchard. Mr. Chairman and distinguished members of
the Civil Service Subcommittee, it is a great honor to be here
representing the men and women of the U.S. Air Force and to
report on the subject of alternative dispute resolution.
We have been successfully using ADR to resolve Equal
Employment Opportunity complaints for 6 years, and we are
thankful for the opportunity to be here and discuss it with
this committee.
Joining me today is the Air Force's recognized and
unequivocal expert on ADR, Mr. Joe McDade. Joe works as
Assistant General Counsel in the Secretary of the Air Force's
General Counsel Office, and he is responsible for assisting in
the development of the Air Force-wide ADR policy, plans, and
programs. He has been affiliated with our ADR program since its
inception and continues to make it the award-winning program
that it is.
We would ask that our written statement be entered into the
record----
Mr. Scarborough. Without objection.
Mr. Blanchard [continuing]. And I will summarize the
written statement as follows:
Alternative dispute resolution works for us in the Air
Force. We have experienced approximately a 70 percent
resolution rate of cases that come before the alternative
dispute resolution process. It is not a panacea. It does help
to promote communications, fosters workplace harmony, and
empowers employees and managers to keep complaints and
communication problems to a minimum and keep formal complaints
out of the EEO process.
It takes commitment. We have been at it for over 6 years.
It takes senior leadership commitment, which we have enjoyed
from the Secretary of the Air Force and the Chief of Staff.
Over the last period of time, the Secretary of the Air Force
has issued five statements of support for ADR.
It takes extensive and continuing training, not only for
practitioners of alternative dispute resolution, but for
supervisors and managers, as well. We have had a strong effort
on that part.
Our ADR program is part of a larger effort in the conduct
of our overall EEO program of education, attention, and
support. It is incorporated into our program and into our EEO
personnel, who are the main players in the administration of
our ADR program.
With regard to the application of technology, we have
worked on and are developing functionality for a system that we
call EO-net, which is a data system which will provide for the
collection of complaint information and, further, will provide
for communication among and between EEO practitioners across
the Air Force. They will be linked through this system, and we
will be able to use this system for policy dissemination and
discussion, including chat rooms. This is a secure, password-
protected system which responds to the sensitivity, in many
cases, of EEO data.
Our ADR system is critical to the effective agency
operations. As you know, the Department of Defense has
undergone significant downsizing, and, in the context of that
downsizing, every employee performing at peak efficiency has
become a premium issue.
Workplace disputes are costly to productivity, and EEO
complaints are among the most contentious and difficult of
workplace disputes.
We believe that ADR returns employees to productive status
quickly, and thereby is critical to readiness and mission
effectiveness in the Department of Defense.
I would like to conclude my brief statement on these two
points: ADR is working for us, and we applaud the EEOC's
efforts to require its involvement in EEO complaint resolution
processes. We have collected our experiences into what we call
a compendium of best practices, which is available to all on
the World Wide Web through our ADR World Wide Website--not to
suggest that we have all the answers, but we have collected our
experiences and made them available.
We are in the process of building a 5-year ADR plan, which
will continue our progress and continue to refine our
processes.
We would like to conclude on those comments.
Mr. Scarborough. Thank you. We appreciate the testimony.
[The prepared statement of Mr. Blanchard follows:]
[GRAPHIC] [TIFF OMITTED] T8877.073
[GRAPHIC] [TIFF OMITTED] T8877.074
[GRAPHIC] [TIFF OMITTED] T8877.075
[GRAPHIC] [TIFF OMITTED] T8877.076
[GRAPHIC] [TIFF OMITTED] T8877.077
[GRAPHIC] [TIFF OMITTED] T8877.078
[GRAPHIC] [TIFF OMITTED] T8877.079
[GRAPHIC] [TIFF OMITTED] T8877.080
[GRAPHIC] [TIFF OMITTED] T8877.081
[GRAPHIC] [TIFF OMITTED] T8877.082
[GRAPHIC] [TIFF OMITTED] T8877.083
[GRAPHIC] [TIFF OMITTED] T8877.084
[GRAPHIC] [TIFF OMITTED] T8877.085
Mr. Scarborough. Ms. Hallberlin.
Ms. Hallberlin. Good morning, Mr. Chairman and other
distinguished committee members.
I ask permission that my entire statement be entered into
the record.
Mr. Scarborough. Without objection, so ordered.
Ms. Hallberlin. Thank you.
REDRESS began about 6 years ago in three cities in the
northern district of Florida. Today, REDRESS is available to
every postal employee across the country in the U.S. Postal
Service.
I am going to focus my remarks on three things: how REDRESS
works, how it is different from other mediation programs, and
why it is successful.
Here is how it works: when an employee contacts an EEO
counselor, he or she is offered mediation in lieu of
traditional EEO counseling. If an employee chooses mediation, a
professionally trained mediator, not a postal employee, brings
the parties together within 2 or 3 weeks, face to face, to
solve their problem.
The employee can bring any representative of their choice,
which usually is a union official. The mediator acts as a
facilitator and tries to help the parties understand each other
and resolve their problems.
The Postal Service uses exclusively mediators that are
trained in the transformative model of mediation, and this is a
distinctive difference from other organizations. The best way
to explain the transformative model is to contrast it to the
more-traditional model of mediation that you might be more
familiar with.
In a directive or valued mediation model, the mediator's
role is to guide the parties toward settlement on terms that
the mediator believes are best for the parties. On the other
hand, in transformative mediation the mediator supports the
parties' decisionmaking, allowing the parties to direct the
process and to control the outcome of the mediation.
Transformative mediation aims at supporting and addressing
communication problems between employees and their supervisors.
Resolving disputes is certainly an over-arching goal, but
research suggests that the process of resolving disputes in a
facilitative, transformative manner rather than directive
creates better and long-lasting upstream effects in the
workplace.
Over the past 18 months since REDRESS was implemented,
approximately 13,000 cases have gone through mediation, and 81
percent of these cases have been closed out.
What do I mean by ``closed out?'' They were either
resolved, withdrawn, or dropped by the employee.
Another way of looking at it is that only 19 percent of
mediated cases go on to become formal EEO complaints. In
contrast, when complaints are not mediated, 44 percent--over
twice as many--go on to become formal complaints. That is a key
success factor. Of non-mediated cases, 44 percent become
formal, but only 19 percent of mediated cases become formal.
This is clearly not accidental.
As highlighted in our written testimony, research studies
indicate there is a strong correlation between the
implementation of REDRESS and a drop in formal EEO complaints,
as has been alluded to here today during this hearing.
Here is how the big picture looks: between 1990 and 1997, a
7-year period, formal EEO complaints at the Postal Service
doubled. They went from 7,000 cases to 14,000 cases. Then
REDRESS was implemented and the trend reversed.
In 1999, for the first time in almost a decade, the number
of formal EEO complaints at the Postal Service declined by
2,000 cases, and the prediction is for a further reduction of
at least another 2,000 cases this year.
Another indication of success is the satisfaction shared by
all the participants at the mediation table. We have analyzed
over 26,000 exit surveys given to all participants at the end
of every single mediation conducted at the Postal Service.
Those surveys indicate that over 90 percent of supervisors,
employees, and employees' representatives, who generally are
union officials, are either satisfied or highly satisfied with
the mediation process.
What is truly remarkable is that there is no statistical
significance in satisfaction between employees and their
supervisors--both equally satisfied with the entire mediation
process.
REDRESS has been a significant component in the Postal
Service's efforts to improve the workplace environment, as it
has contributed to the reduction of formal complaints, it has
closed out the majority of cases, and has satisfied nearly all
the people that come to the mediation table. The Postal Service
hopes to continue to expand the program and make a positive
impact on the workplace.
Thank you.
Mr. Scarborough. Thank you. I appreciate your testimony.
[The prepared statement of Ms. Hallberlin follows:]
[GRAPHIC] [TIFF OMITTED] T8877.086
[GRAPHIC] [TIFF OMITTED] T8877.087
[GRAPHIC] [TIFF OMITTED] T8877.088
[GRAPHIC] [TIFF OMITTED] T8877.089
Mr. Scarborough. Mr. Reed.
Mr. Reed. Good afternoon, Mr. Chairman.
I ask that my written statement be entered into the record.
Mr. Scarborough. Without objection, so ordered.
Mr. Reed. Chairman Joe Scarborough and distinguished
members of the subcommittee, I would like to thank you for this
opportunity to testify.
In addition, I would also like to thank the chairman and
also Congresswoman Norton and Congresswoman Morella for
attending and speaking at the Blacks in Government Policy
Conference last year.
It is my privilege to appear as the president of Blacks in
Government to present the views of African American government
employees. I call this testimony my ``Nine Plus Nine
Testimony''--nine potential issues and nine potential
recommendations.
I thank the chairman for his leadership in this vital area
of public concern, and I would also like to thank the ranking
member, the Honorable Elijah Cummings, and the Honorable Albert
R. Wynn, for their leadership.
I would now like to briefly summarize my written testimony.
Discriminatory behavior is no longer sanctioned by the
Government. Indeed, it is unlawful. But for a brief moment
let's forget about the sordid history of racial oppression in
America and let's, even for a moment, forget about African
Americans, but only for a moment, and let's talk about unfair
and wasteful government and let's talk about the money.
In two notable cases, which clearly documented race and sex
discrimination, it cost the Government a great deal of money.
The Library of Congress recently paid $10 million and the Voice
of America and U.S. Information Agency are about to pay more
than $520 million as the result of class action race and sex
discrimination lawsuits.
If someone stole $10 million from the Government, what
should happen to them? If someone stole $520 million from the
Government, what should be their penalty?
The executives of the Library of Congress, the Voice of
America, and the U.S. Information Agency stole massive amounts
of money from the public coffers. These crimes have had no cost
to the Federal agencies involved and no personal penalties have
been visited upon the offending parties. These title seven
violations that result in losses of Federal money of any amount
should be treated just like any other criminal acts and the
offenders should have to pay substantial fines and/or go to
jail.
That is the big picture. Here are some details concerning
what is wrong with the system that tells us how and why we
generate these large payments of discriminate lawsuits.
No. 1, the EEOC handles complaints in a way that makes it
impossible to capture the full extent of employment
discrimination in the Government.
No. 2, in particular, nefarious techniques are used by the
Government to eliminate some 60 to 70 percent of the complaints
alluded to by Congresswoman Norton.
No. 3, Federal agencies sabotage employees' EEO cases.
Employees generally have no effective avenue for redress when
this happens.
And, No. 4, if more Federal employees were financially able
to bear the cost of litigation, there would be a tidal wave of
title seven lawsuits in Federal court today.
And, No. 5, the programs of Government reinvention have
compromised the weak EEO complaint process by providing more
management autonomy, including the autonomy to discriminate
without accountability.
Agencies with class action complaints awaiting
certification at the EEOC, such as the Department of Commerce
since 1995, are implementing new personnel systems. Such
systems give managers more flexibility and no accountability.
No. 6, the EEOC does not monitor agency mismanagement of
the complaint process. As an illustration, after settling the
class action complaint involved in the black farmers, a recent
Office of Inspector General report on the status of civil
rights efforts to reduce the backlog of EEO complaints in the
Department of Agriculture stated, ``The problem we noted before
in the complaint resolution process also continues. Civil
rights data bases remains an unreliable repository of
information, and its case files are too slovenly--means
careless in personal appearance--to ensure the availability of
critical documents. A disaffected staff and a leadership vacuum
have contributed to a system that cannot ensure complainants a
timely hearing of their grievances.''
No. 7, EEOC timeline guidelines for processing complaints
are typically ignored by the agencies, while complainants often
have their cases dismissed for similar violations.
No. 8, by failing to mandate compliance with administrative
procedures to end discrimination, the entire EEO process is
undermined and managers have no incentive not to discriminate.
No. 9, in a vicious assault on the whole EEO process, the
Federal Government now provides professional liability
insurance to protect Federal managers who may be charged with
violating Federal employment discrimination laws.
If Congress intends to send a clear message to Federal
agencies that discrimination will not be tolerated, we urge
this committee to seriously consider the following
recommendations:
No. 1, Congress should totally reinvent the EEOC and make
it responsive and accountable to regulatory timeline.
No. 2, the defendant agency should bear all expenses in
cases in which the plaintiffs prevail.
No. 3, Congress should implement a Government-wide policy
that supports employee organizations and empowers them to play
a greater role in civil rights policy within the Federal
agencies. It is called ``diversity.''
And, No. 4, Congress should require agencies' civil rights
offices to be restructured so that civil rights directors
answer directly to the agency head.
No. 5, Congress should give the EEOC subpoena power over
retired Government employees.
No. 6, Congress should take the decisionmaking authority
and the EEO complaint process away from agencies and place it
in the EEOC.
No. 7, Congress should require the EEOC to impose sanctions
against managers and supervisors who are found to be in
violation of title seven of the Civil Rights Act of 1964.
No. 8, Congress should repeal Federal law providing for the
payment of premiums for professional liability insurance for
Federal managers.
Finally, No. 9, members of the committee may wish to urge
the EEOC to write an amicus brief in support of Matthew Fall.
Mr. Fall is a Deputy U.S. Marshal who won a discrimination case
against the Department of Justice's U.S. Marshal Service.
However, the landmark $4 million jury award has been decreased
to $300,000. Mr. Fall is currently appealing the case, and
rightfully so.
Sir and committee, I thank you for your time.
Mr. Scarborough. Thank you so much.
[The prepared statement of Mr. Reed follows:]
[GRAPHIC] [TIFF OMITTED] T8877.090
[GRAPHIC] [TIFF OMITTED] T8877.091
[GRAPHIC] [TIFF OMITTED] T8877.092
[GRAPHIC] [TIFF OMITTED] T8877.093
[GRAPHIC] [TIFF OMITTED] T8877.094
[GRAPHIC] [TIFF OMITTED] T8877.095
[GRAPHIC] [TIFF OMITTED] T8877.096
[GRAPHIC] [TIFF OMITTED] T8877.097
[GRAPHIC] [TIFF OMITTED] T8877.098
[GRAPHIC] [TIFF OMITTED] T8877.099
[GRAPHIC] [TIFF OMITTED] T8877.100
[GRAPHIC] [TIFF OMITTED] T8877.101
Mr. Scarborough. I want to begin now my questions with Mr.
Blanchard, and I want to commend you for the great work that
the Air Force has done.
Earlier I held up a chart of the administrative process for
the EEO complaint, and you had submitted that to me. Is it your
testimony here today that this is actually a simplified version
of this process?
Mr. Blanchard. It is a reflection of the process as we
understand it, without all of the footnotes and details that
would be necessary to fully explain each block on the chart.
Mr. Scarborough. OK. Without objection, I am going to put
this into the record today. It is very interesting.
I wanted to ask you some questions regarding your
successes. Certainly, you have heard the testimony of Mr. Reed
and heard the testimony of others talking about how there has
not seemed to be accountability from certain Federal agencies.
I know especially earlier today we had Congressman Wynn talk
about problems with the Department of Agriculture. Also, I
believe Interior has been cited, and other agencies.
I take it when the Air Force was developing their approach,
their very successful approach, you all obviously looked at
what worked and what didn't work in other agencies. Is that an
accurate statement?
Mr. Blanchard. Yes, sir.
Mr. Scarborough. Can you just give us a couple of examples
of the biggest differences of your program and, let's say,
Department of Agriculture or Interior's programs that have
failed, and how has that accounted for your successes and their
failures?
Mr. Blanchard. Let me answer that this way. I think our
experience has been developed over about a 6-year period, and
we have learned from the process as we have gone along during
that 6-year period.
These are difficult cases, as I mentioned, and they involve
sensitive employee management relationships within the
workplace. We have attempted, in looking at other agencies'
experiences, to learn what we can from them, but we have really
developed what we think works within the Air Force.
Within the Air Force, I think each agency--and I guess I
would argue for flexibility in agency ADR programs for agencies
to develop ADR programs that are reflective of the culture of
that agency. I think it is important within the culture of that
agency for the agency to have the flexibility to build a
program that optimizes that kind of performance.
Within the Air Force, we have tried to build a program over
the years that does reflect and promote facilitation and
mediation as the primary methods of ADR. We have had success
with that. We are learning about it as we go along, but it
doesn't stand alone. It stands in conjunction with a very
deliberate attempt to educate managers, supervisors, and
employees about the process.
We have trained and talked to over 1,000 supervisors. Joe
McDade goes out periodically and meets with line managers to
educate them about the program. We issue guidance to managers
and supervisors through the formal communication process about
the program. These are all parts of the central program.
We train people who do the mediation and facilitation work
for us. We have developed effective training courses on
mediation and facilitation in our school down in Alabama, and
we continually make those courses available to people to
sharpen their skills.
Each case is different. Each case requires its own effort.
But that is the way our program works. That is the way we have
been successful.
I think each agency has to really develop their own way
here in terms of the overall organization of an ADR program.
Mr. Scarborough. Ms. Hallberlin, I wanted to ask you a
question. You have given the committee some remarkable numbers
about the Post Office, talking about 13,000 cases with the
mediation, 81 percent closed out, only 19 percent still active.
That is down from 44 percent for those cases that did not go to
mediation.
What is the biggest lesson you have learned regarding
mediation, ADR, or REDRESS, as you all call it, and what can we
gain from that as we try to apply? What would you recommend we
apply to all Federal agencies to keep their feet to the fire to
make sure we come back 5 years from now and the situation is
not as bad as it was in 1995?
Ms. Hallberlin. In answer to your first question, what is
the greatest lesson I learned, I am continually amazed at the
remarkable transformation or shifts that happen to people when
they are brought face-to-face to talk about their problems
within a few weeks of it arising. What continually surprises me
is, when you bring someone to a table with someone who is
acting as an outside neutral, and when they start to talk to
each other, how much they can shift their impression and
understand each other more and resolve what began as maybe
simple and disturbing disputes, resolve them early before they
go throughout and drag in the system and become complicated and
entrenched and much larger.
So that is a lesson I have learned is the sooner you bring
people together and support them in their own conversation and
dialog, they, themselves, have tremendous capacity to resolve
their problem.
What can you do for other Federal agencies? I think you can
continue to support alternative dispute resolution in Federal
agencies. We have seen it in the Postal Service as a tremendous
device to resolve complaints early and to the satisfaction of
those who have the problems.
So, to the extent that other agencies are supported in this
initiative, we are very similar to my colleague here, Mr.
Blanchard. We have been working at this for 6 years. It is a
long process. It is complicated.
We also do tremendous outreach efforts and training. We
have trained over 15,000 employees and supervisors. We trained
outside mediators who come in and mediate for us. We train
supervisors. We train our EEO professionals, our labor
representatives. We have invited the unions.
Just as you had said, this is a comprehensive effort. You
can't just drop a program on an agency. You have to build it
brick by brick and always work at incorporating and partnering
with all your stakeholders who are involved.
Mr. Scarborough. OK.
Let me ask you, Mr. Reed--I appreciate your testimony.
Obviously, your testimony, the part that will cause most people
to stand up at attention is your statement that certain
violations of title seven should be criminalized. Is that an
accurate reflection of your testimony? Do you think Congress
should pass a lawmaking violations of title seven and also
discrimination in the Federal Government a crime punishable by
jail time?
Mr. Reed. Exactly.
Mr. Scarborough. OK. All right. Would you like to--for
those Members of Congress who may not agree with you and would
want to be persuaded, could you give me a couple of examples of
how you think this would help, obviously, stop discrimination
in the work force?
Mr. Reed. Well, the key thing to title seven is enforcement
and accountability. If there is no incentive to enforce the
mandate by title seven, and that is the vehicle by which these
managers and/or supervisors are managing the process, then,
therefore, why do you have a process in the first place?
It is an issue, as we go now into the NPR--national
partnership for reinventing Government that started back in
1993, doing more for less, the No. 1 criteria in 1993 was to
decrease the work force. I think the administration stated that
we wanted to remove 252,000 positions, which they did. I think
it is now at 386,000. But the No. 1 vehicle within that process
was called ``privatization,'' and privatization, the No. 1
vehicle is contracting out.
So when you privatize and outsource and downsize and are
contracting out everyone, and not having the accountability to
enforce the process by which these folks are being hit against
in terms of discrimination, then where are you?
Mr. Scarborough. Yes. You know, we have heard today from
testimony from the first two panels the discrimination in the
work force and the EEOC's failure to redress such
discrimination has been bad for some time. It was bad in the
early 1990's, 1995. Somebody that testified in our second panel
today said it was awful back then, inefficient, time-consuming,
and he has come by and he testified a few hours ago that it is
even worse today than it was in 1995.
My question is: who is to blame here? In your opinion, in
this whole reinventing process, where does the blame lie? Does
it lie specifically with the EEOC, or does it lie with
managers, does it lie in individual agencies? Who is to blame?
Somebody has got to be to blame for this. Who is it, in your
opinion?
Mr. Reed. The blame should lie with the ones that are
circumventing the process. When you pull out the issue of
fairness in the Federal EEO complaint process and then you have
to go before a manager and/or a supervisor that may redress the
situation in which you stated that you have an EEO case, if
they come with a basis, as the ranking member stated, a basis
and an issue of a complaint, they go before their EEO managers
and their EEO officers, and they walk out of a room. When they
went in there with one issue, they come out and present another
issue, and then, when he comes before the EEOC, cases are
thrown out of court.
It is just a matter of how you manage the process and how
you circumvent the process. So who is to blame? Those are the
ones--the ones that are to blame are the ones that circumvent
the process to their own gain.
Mr. Scarborough. I am going to have some followup questions
that I can't ask right now because of time, but followup
questions regarding, Mr. Reed, your proposal on the
criminalization of title seven violations. I am going to send
it to all three of you all and have all of you comment on the
positive aspects and also what you see as some possible
problems with that. And if you could respond within 2 weeks,
that would be great.
Mr. Cummings.
Mr. Cummings. Thank you very much.
Mr. Reed, as I was looking through your recommendations--
and maybe I missed it--I didn't see anything about ADR. I don't
know whether that would have been included in the whole
revamping of EEOC. I was just wondering, give me your opinion
on ADR.
Mr. Reed. Personally, I believe the ADR is a pretty good
vehicle, especially if you can satisfy the complaints early on
in the process without them becoming formalized. So in my
revamping of the EEOC I would also include the ADR. No
question.
Mr. Cummings. So, you know, as I listen to Ms. Hallberlin,
what you say really makes sense of why the ADR process would
work, and, coupled with what you just said, Mr. Reed, it does
make some sense.
I think if you get to people early before it festers--if
something is affecting my whole life then I get a chance to
talk to my sister-in-law, and then the people on the job, and
the next thing you know all of that adds to the whole process
and it becomes much more difficult. I mean, not only that, as
time goes on I see myself losing more benefits and more
opportunity, and I am talking about it constantly, but I am
never facing the very person who is accusing me or I am
accusing of. I guess that can kind of lead to some real
problems.
Is that why you say that if you can get it early?
Mr. Reed. Yes, sir.
Mr. Cummings. So you don't have any problem with ADR----
Mr. Reed. No, I do not.
Mr. Cummings [continuing]. As long as you get to it early?
Mr. Reed. No, I do not. Yes, sir.
Mr. Cummings. Ms. Hallberlin, just going back to some
things that you said, do you find that people--do you find the
morale higher? I mean, in other words, Mr. Reed was just
talking about how when a person faces their accuser, then the
accuser--he is talking about the hearing process--and then they
go and come out and next thing you know you have got more
problems. But, I mean, do you find the process here, when you
go through the ADR, that you are able to get beyond that and
people move forward? Or do you see--and I don't know whether
you have been working with it long enough to even be able to
answer this question--do you see things keep coming back and
forth?
Ms. Hallberlin. Actually, we are looking at long-term
effects of the program. We have some information now. We hope
to have more later.
But what is really encouraging is that three-quarters of
the participants around the mediation table indicate that they
believe that the experience of the mediation will have a long-
term impact on the relationship they have with the person at
the mediation table. That is very heartening to the Postal
Service management, who is----
Mr. Cummings. Do you mean the mediators say that? Is that
what you mean?
Ms. Hallberlin. No. In the exit surveys I alluded to
earlier, the 26,000 exit surveys, we track--we have questions
that ask both the employees and their supervisors at the end of
mediation, ``Do you think today's experience at mediation will
have an impact, a positive impact on your long-term
relationship with either the supervisor or the employee?'' And
over three-quarters of the people that go to the mediation
table respond yes, they do. That is very heartening to us.
Mr. Cummings. That says a lot.
Ms. Hallberlin. That means that within those concentrated
hours, 3 or 4 hours in which they are allowed to freely talk to
each other with the assistance of an outside mediator, they
have begun to understand each other more. They have heard each
other. They have recognized the differences of what each other
means and their intents, and they hopefully take that with them
and believe that, yes, when they go back to the work on the
floor things will be better.
Mr. Cummings. Mr. Blanchard, is your experience similar?
Mr. Blanchard. Yes, sir, it is. We certainly believe there
is a therapeutic effect to the ADR process in the workplace. We
don't have hard data. We have anecdotal data coming from
individual cases and individual case examinations of
workplaces, but our experience has been very similar to Ms.
Hallberlin's, as she describes it--that there is a positive
effect to workplace communications, and especially if you
consider that a number of the complaints that we deal with in
the ADR process in the early stages, as has been indicated, may
not be exactly in the right process, may not be exactly EEO
kinds of complaints. They may be communications problems, but
they may not be based on a protected category of activity.
The reality is that the ADR process allows those complaints
to have a hearing, to have an airing, and through that process
people go back to work feeling like they had their opportunity.
Our facilitation process, which involves our EEO
counselors, has actually enabled them to gain stature in the
workplace, as well, because they become peacemakers and end up
bringing parties together around a solution, which is to the
good of the overall process in the end.
Mr. Cummings. You know, I would imagine that if you could
come up with a win/win situation, as opposed to, ``I beat
you,'' it has got to be better, on a long-term basis,
especially when you have got to work with that person every
day.
Ms. Hallberlin. Exactly.
Mr. Cummings. You spend more time with that person than you
spend, a lot of times, with your own family. It just seems like
that would make a lot of sense.
Let me go back to you, Mr. Reed. You had said one of your
recommendations was to subpoena retired employees. Can you help
us on that one--supervisors, or--what are your recommendations?
The ability to subpoena them in?
Mr. Reed. A key thing--you just want to make sure, when you
have a bona fide case, every entity that has input to that
particular case is able to be brought to the table. And so when
you have a Government employee that is no longer with the
Government and the EEOC cannot bring that person back, then, of
course, that is knowledge and that is testimony that you do not
have that could help your particular case.
Mr. Cummings. Now, when you all were here a little bit
earlier, when you heard the problems about agencies not
providing sufficient information to EEOC, did you all--were you
all here?
Ms. Hallberlin. Yes.
Mr. Reed. Yes, sir.
Mr. Blanchard. Yes.
Mr. Cummings. I mean, did that surprise you? Mr. Reed.
Mr. Reed. Negative.
Mr. Cummings. Why not?
Mr. Reed. Well, study after study after study are saying
the same thing. And when you come to this table before this
microphone and come before the committee and say the same
things over and over again, it is not that shocking, sir.
Mr. Cummings. Mr. Reed, do you have any confidence in what
the gentleman from EEOC said about what we will see in a year?
The reason why I am asking you this is not to create any
kind of one person going against another; it is just that when
we sit down it would be nice for us to know what you would like
to see, too. And so I am just curious. I mean, the testimony
you heard, did it give you any confidence? And what are your
concerns, if any, that when we come back here a year from now,
what are you afraid that we will or will not see, and what can
we do to make sure that doesn't happen? Does that make sense?
Mr. Reed. Yes, sir. No. 1, I do have confidence in what the
EEOC stated in terms of what is going to happen next year,
because when he did refer to the stakeholders, I would like to
state that Blacks in Government is one of the stakeholders.
When they developed their inter-agency Federal task force, I am
a member of the senior leadership committee, so I am allowed to
bring issues to the table. So the key thing is--I know he
alluded to resources, he alluded to this and he alluded to
that. If we stay focused on what we have to do, we have all the
stakeholders presenting the whole 9 yards, I believe if the
stakeholders on the issues and they stay focused, in terms of
what they are trying to do within the EEOC, hopefully we will
see a difference next year.
Mr. Cummings. Is there anything that we can do to help make
that process get to where you are hoping that it will go? In
other words, you know, it looks like the mechanism is set up to
get it done. I am so happy to hear that you are part of the
process, and apparently you feel that you are a meaningful part
and viewed as a meaningful part of the process, along with
others.
Now, is there anything that we can do from our side to help
you all be effective? I guess that is----
Mr. Reed. Is that short of an enacting legislation?
Mr. Cummings. Sort of, but, I mean, if there is some
legislation, we would like to know about that, also.
Mr. Reed. Well, I am quite sure with my legislative team I
could bring forth to this committee in written form some better
recommendations.
Mr. Cummings. Why don't you do that?
Mr. Reed. Yes, sir.
Mr. Cummings. Have you looked at the goals for the EEOC
goals?
Mr. Reed. On page 12?
Mr. Cummings. Yes, sir.
Mr. Reed. Yes, sir.
Mr. Cummings. And did you have any--I mean, how did you
feel about what Ms. Norton said about those goals?
Mr. Reed. Ms. Norton was right on track in terms of how she
expressed, because Ms. Norton has been in the process for a
long time.
Mr. Cummings. Yes.
Mr. Reed. But you have also got to bear in mind that I know
Mr. Hadden, who has only been on board for a short period of
time, has inherited this process.
The fact is that Chairwoman Ida Castro--they are now
bringing in the stakeholders, they are going to the
communities, and I hope by what we bring to the table when we
make recommendations to this committee in written form, it is
taken true to light, and hopefully maybe the EEOC can act upon
that.
Mr. Cummings. Mr. Blanchard, last but not least, when
people get through the ADR process, do you--I mean, is there
any way for you all to measure the morale of your--I mean, is
there any kind of analysis you do?
Mr. Blanchard. We are sharpening our ability to do that. We
do unit climate assessments in units now that take into account
the overall EEO climate within an organization, and ADR gets
picked up, to some degree, in those kinds of assessments. But
we also asked the Air Force audit agency to conduct a
comprehensive review of our ADR program, and we have got that
review. We are studying those results and looking for ways that
we, as we implement our 5-year ADR program--which I have to
point out applies not only to the application of ADR in
employment disputes, but also in contract disputes and across
the board of interaction kinds of disputes--as we develop that
5-year plan, we will incorporate metrics in that 5-year plan
that will speak to measuring how ADR affects the workplace.
Mr. Cummings. But you all know we can do better at EEOC. Is
that a fair statement?
Mr. Blanchard. In this area, sir, we can always do better.
Mr. Cummings. Ms. Hallberlin.
Ms. Hallberlin. We can always do better.
Mr. Cummings. Mr. Reed.
Mr. Reed. Yes, sir.
Mr. Cummings. One other thing, Mr. Reed, I would like for
you to submit those recommendations to us on the legislation
that you talked about.
In conclusion, Mr. Chairman, it is interesting. You know, I
think sometimes the solutions to the problems are easy. I mean,
we know the solutions. It is like when my daughter was 2 years
old and she would put her hand up to her face and play hide-
and-go-seek, and she would put her hand up to her face and say,
``Daddy, you can't find me,'' and she was standing right in
front of me. Sometimes I think as adults we do the same thing.
The solutions are there. The question is whether we have the
will to do it. It seems like you all have--you know, at least
you are going in that direction to do it.
The last thing I would just leave us with is I think we all
realize we only have one life to live, and this is no dress
rehearsal, and people are just trying to live the best lives
that they can while they are living.
And so I would hope that, you know, maybe the things that
we do, Mr. Chairman, can continue this process of trying to--
sometimes we have to almost help people get married. That is
what we are talking about here, this ADR stuff--we are actually
causing people to sit down and look at each other and, even if
they start off as being, you know, mean, by the time they end
up and hear everything out and hear why one person did
something, misunderstanding there, the next thing you know, you
have got some type of resolution that is so very important for
the whole agency.
The most important thing, I think the thing that we leave
out of the formula, is that when we are able to do all of those
kind of things we all benefit. The country benefits. The
employees benefit. Their children benefit. Those are things
that are very important.
So I just want to thank all of our witnesses for being so
helpful, and we will do everything in our power to make sure
that we pursue this matter aggressively.
Mr. Scarborough. Thank you, Mr. Cummings. I want to thank
you, also. You and Mr. Wynn have certainly moved this process
along to this point. I think it is a great start.
I want to thank our witnesses.
Let me ask you, Mr Blanchard, you had said that you have a
Website that has a collection of best practices. What is the
Website address there?
Mr. Blanchard. Let me ask Mr. McDade.
Mr. Scarborough. Ask Mr. McDade.
Mr. McDade. WWW.ADR.AF.MIL.
Mr. Scarborough. WWW.ADR.AF.MIL?
Mr. McDade. Right.
Mr. Scarborough. OK. We will go to that and look at that.
Mr. McDade, we thank you for all your help in this process.
Your father wanted to ask you some very difficult
questions, but we refused to let him get a microphone under
oath, going back to high school. But we want to thank you, Mr.
McDade, for coming. The Congressman, obviously, has been a
great man who had a long, proud, dignified career, and it is an
honor just to have you up here with us.
I would thank all of you for coming and thank you for your
recommendations.
We are going to leave the record open for 2 weeks for any
additional questions that any Members may have or any
statements.
I thank you. I thank everybody for coming today. This has
been very informative, and it is beginning a process where we
are going to fix this.
We are adjourned.
[Whereupon, at 1:31 p.m., the subcommittee was adjourned.]
[Additional information submitted for the hearing record
follows:]
[GRAPHIC] [TIFF OMITTED] T8877.102
[GRAPHIC] [TIFF OMITTED] T8877.103
[GRAPHIC] [TIFF OMITTED] T8877.104
[GRAPHIC] [TIFF OMITTED] T8877.105