Recommendations to Address Challenges

Employees Face in the Federal EEO Complaint Program

Submitted to the Government Accountability Office

Prepared by
Tanya Ward Jordan, President
The Coalition For Change, Inc. (C4C)

Meeting Date: 3/21/2023

 BACKGROUND

“We write to request that the [GAO] study how the federal government’s
[EEO] complaint process and anti-harassment programs
can better prevent and remedy unlawful employment discrimination
and advance equal opportunity in the workplace.”

Rep. Carolyn B. Maloney and Rep. Jackie Speier

Committee on Government
Oversight and Reform

Concerns Raised in 9/22/2021Letter to

Government Accountability Office Comptroller Gene L. Dodaro
• Fox Guarding the Henhouse
• Perpetrators Evade Accountability
• Investigations Too Lengthy and Lack Substance
• EEO Offices / EEOC Severely Under-resourced
• No Consequences. Agencies/EEO Practitioners Miss Deadlines
• EEO Practitioners Do Not Effectively Communicate With Complainants
 RECOMMENDATIONS

The U.S. Equal Employment Opportunity Commission (EEOC) failed to achieve the goal as President Jimmy Carter and Congress
intended when in 1978, "all equal opportunity the Federal employment enforcement and related functions" transferred from the Civil
Service Commission to the EEOC. Today, like its predecessor, the EEOC remains lethargic in enforcing fair employment
requirements in the Federal government. The EEOC-championed Federal Equal Employment Opportunity Complaint Program
needs a complete overhaul. A thorough examination of the EEOC-regulated system is warranted.

It is vital to grasp that the EEOC, "a Federal agency," acts as an administrative court. The EEOC's cache of Administrative Judges
hears employment discrimination cases parties bring against Federal employers, including claims brought against the EEOC.
Consequently, the EEOC's placement as an “enforcement” agency within the Executive Branch poses a conflict. It impedes its ability
to serve as a neutral adjudicator. The EEOC rarely rules in favor of the aggrieved party alleging workplace discrimination In the
infrequent cases when the EEOC finds discrimination and rules in favor of an aggrieved federal employee or job applicant, the
EEOC seldom sanctions an agency commensurate with the unlawful offense. Instead, the EEOC’s practice is to exact a “lesser
sanction” on an agency official who commits an unlawful act or fails to follow EEO complaint processing guidelines. Moreover, the
EEOC tacitly resists framing EEO guidance reasonably. Given it will be subject to regulations it publishes.

The C4C recognizes the scope of the Government Accountability Office study. We also recognize the focus areas requested by the
Committee on Oversight and Reform. Therefore, we present viable recommendations to improve the Federal EEO complaint
process, deliver relief for victims of retaliation, and institute accountability for civil rights violators. If implemented, these reforms will
address the longstanding concerns of advocacy groups, legal scholars, lawmakers, and Federal whistleblowers who bring mixed case
complaints to the EEOC’s redress system. They will also complement C4C’s EEO reform measures Congress passed into law under
the Elijah Cummings Federal Employee Antidiscrimination Act.
Tanya Ward Jordan, President
The Coalition For Change, Inc. (C4C)

Approved by:
Paulette Taylor, Civil Rights Chair Edgar Dion Lee, Senior Investigator Analyst
Juanita Winkey Kennedy, Communications Chair Joyce E. Megginson, Public Relations Officer
 2. Attorney of the Day
RECOMMENDATION 1
Obtain and Publish Legal Ruling-Re: EEOC’s Authority to Discipline

I n sight: To carry out its enforcement duties, “the Commission is authorized to issue rules,
regulations, orders, and instructions governing the federal sector . . .”
Section 717(b) of
Title VII of the Civil Rights Act of 1964

C over age
• Discrimination Without Discipline at the Veterans Affairs
• “The m a t t e r s y o u a r e c o n c e r n e d w i t h a r e preventative in
nature. While EEOC orders agencies to consider discipline; we have
no authority to issue discipline.”

EEOC’s Todd A. Cox

(May 13, 2011)
Decatur v Shinseki, 0120073404.)
 RECOMMENDATION 2
Obtain Legal Opinion: “Inherently Governmental Function”

I n sight: “OFO is charged with two major responsibilities. The first is the responsibility of resolving
appeals filed by federal employees regarding determinations on their EEO complaints. The
second is overseeing and assisting Executive Branch agencies in their efforts to comply with
EEO legal requirements, . .”
Statement of Carlton Hadden, Dir. EEOC’s
Office of Federal Operations
Coverage
• Inherently Governmental Functions
• EEOC misleads the public. On its website Federal Sector Quality
Practices for Effective Hearings, Appeals and Oversight under footnote 5 it
reads: “EEOC maintains interagency agreements for adjudicators at other
agencies to handle the hearing requests of EEOC employees.”
• EEOC contracts out its critical “hearing” role given under Civil Rights Act
which calls for employees to have their “compensation fixed in accordance
with the Classification Act of 1949.”
• EEOC pays non-federal attorneys to decide EEOC’s employee /
applicant complaints filed against it.
 RECOMMENDATION 3
Eliminate “Pre-Counseling”

Insight: Pre-counseling is not imposed on aggrieved parties in the non-federal sector

before they can file a formal complaint.

Coverage Pre-counseling . . .

• Creates unjust technical barriers defending agencies use to dismiss

employees’ and applicants’ viable claims of discrimination.

• Fails to educate aggrieved partiers on how to frame a claim, present a

basis, or proceed through the complaint process.

• Compels the aggrieved party “show their hand” to the defending agency
before a complaint can be filed.

• Gives the defending/adjudicating agency time and insight to engineer a

rebuttal.
 RECOMMENDATION 4
Modify Right to File Claim Formally

Insight: Agencies, at times, fail to respond to employees’ and applicants’ discrimination claims.

Coverage Recommendation 1.
• Example: OSC’s Carolyn Lerner’s 2015 Letter to President affirming
that 50% of the complaints filed against high-level officials at U.S. Dept.
of Agriculture were not acted upon timely. “Some of which were
unaddressed for up to five years.”

• C4C Recommendation : If agency EEO practitioner fails to

acknowledge aggrieved party’s report of a discriminatory claim, then
EEOC should permit the aggrieved to file formally and request an
EEOC hearing.
 RECOMMENDATION 5
Name Discriminating Officials

Insight: The EEOC provides discriminating officials with anonymity and permits civil rights
violators to escape accountability.

C over age
• Promote accountability and transparency

• Name public official found guilty of violating a law in

Federal Sector Appellate decisions where EEOC issues a final
finding of discrimination & no further recourse for appeal at
administrative level exist.

• Instead of citing S1 for Supervisor 1 name the public official who

broke a civil rights law.

• Pay data names public officials. Example: Available

https://www.federalpay.org/employees/dept-of-interior-office-of-the-
solicitor/littlejohn-craig-a
 RECOMMENDATION 6
Address Agency Non-Compliance. Use Uniform Sanctions
(i.e., Default Judgements)

Insight: The EEOC fails to enforce severe sanctions such as “Default Judgements” when agencies
clearly and/or repeatedly fail to comply with long established guidelines at 29 CFR 1614

Coverage
Example 1: In Owen L v Kiran A. Ahuja , Office of Personnel Management (OPM). Despite agency
officials’ brazen offenses, including perjury, OFO’s Dir. Carlton Hadden reversed AJ’s Decision to issue
Default Judgement against OPM. In Owens, Appeal No. 2020000990, July 15, 2021, the EEOC found:
• Agency supervisor influenced witnesses {emailed subordinates}
• Agency supervisor breached confidentiality
• Agency failed to schedule hearing for more than a year
• Agency cancelled hearing 3 times
• Agency repeatedly fail to establish communication needed to conduct an evidentiary hearing
• “S2 knowingly provided false information...” (p. 10)
EEOC makes excuses for not imposing warranted sanctions & places onus on complainant stating: “ In
neither motion did Complainant request that a default judgement be imposed as a specific sanction (p13).”
 RECOMMENDATION 6 (CONT’D)

Insight: “A commissioner noted that a double standard exists” (GAO-09-712) (p. 12)

Coverage
Example 2:
In Miquelina S. v William P. Barr Request No. 2019002953. EEOC pardoned the agency for its
non-compliance and reversed AJ’s Default Judgement made in favor of complainant.
[Decision Jan. 27, 2020-Bernadette B. *Wilson, Exec. Officer]
In Miguelina . . .
• Agency took 129 days to accept complaint
• Agency took 330 days to complete investigation
• Complainant proved a prima facie case of discrimination
• EEOC found “the Agency exceeded even an extended time limit
by a wide margin”(p.4)
C4C Recommends: If agency fails to conduct, to complete timely, to fully investigate or to forward
an investigation to EEOC with out just cause when aggrieved party requests a hearing, EEOC
should issue default judgement in favor of complainant absent AJ ORDER. The onus should be on
the agency to contact the AJ with explanation if unable to meet EEOC’s long-established guidance.
 RECOMMENDATION 6 (CONT’D)

Insight: “Within 15 days of receipt of the request for a hearing, the agency shall provide a copy of
the complaint file to EEOC and, if not previously provided, to the complainant”.
29 CFR 1614.108h

Coverage
Example 3:
• In Kennedy v Vilsack USDA failed to comply with EEOC’s
AJ’s Order to produce complaint file.

• Instead of issuing a sanction to the defending agency and

hearing Kennedy’s case, the EEOC returned it to USDA
official to let USDA decide if the USDA engaged in
discrimination.
 RECOMMENDATION 7
Post Federal Violations on EEOC Homepage

Insight: The EEOC conceals federal agency unlawful transgressions and only posts private sector
violations on its homepage

Coverage

The EEOC fails to provide transparency and

accountability about discrimination suits in the Federal
government such as . . .
• U.S. Marshal Class Action {1994- Presently pending}
• Classwide Discrimination Found at SSA
• Women Sue F.B.I., Claiming Discrimination at
Training Academy
 RECOMMENDATION 8
EEOC Attorney of the Day: Name or Issue Operator Code

Insight: The EEOC fails to provide transparency when responding to the aggrieved parties in the federal
sector.
Coverage
EEOC permits public officials to dispense critical information under a veil of anonymity and sign off as
“Attorney of the Day or “Officer of the Day.”

No accountability or transparenccy at EEOC

 RECOMMENDATION 9
EEOC - Post On-Site Field Audits, Findings and Criteria

Insight: EEOC is to conduct on-site field audits to assess agency compliance with guidance.

Coverage
Despite C4C’s many FOIA inquiries about EEOC field audit activity, the EEOC never replied.
ATF employees & other Federal employees have requested audit of agencies’ EEO offices.
 2. Attorney of the Day
RECOMMENDATION 10
EEOC - Issue / Post Agency Deficiency Letters

Insight: “The head of each Federal agency’s Equal Employment Opportunity Program shall report to
the head of the agency.”

Sec 403 Head of Program Supervised

by Head of Agency Cummings’ Act

Coverage
• Despite the Cummings’ Law and EEOC’s guidance the
federal government has not achieved a 100% direct
reporting structure.

• Based on an EEOC FY 2021 survey, only 36% of large

agencies responded that they maintained a direct
reporting structure.
 RECOMMENDATION 11
EEOC – Post Referrals to Office of Special Counsel

Insight: Cummings’ Act – Title IV Sec 404 (a) addresses the EEOC’s “Referrals of Findings of
Discrimination” to Office of Special Counsel (OSC) for disciplinary action.

Coverage

• EEOC maintains a Memorandum of Understanding with

the OSC to refer disciplinary cases

• C4C, Inc. uncovered via Freedom of Information Act

request the EEOC seldom made referrals to the OSC

• In line with C4C suggestions in Cummings law, the

EEOC should post:
a) Number of cases it refers to OSC
b) Agency subject to OSC referral.
 RECOMMENDATION 12
Apply Performance-Based Term Limits [EEOC Leadership]

Insight: For 22+ years, Dir. Carlton Hadden has led the OFO. The EEOC’s OFO fails to curb
the rise of workplace discrimination
Coverage
• 5 USC 4313 Appraisals of performance in the Senior Executive
Service shall be based on both individual and organizational performance
Informal Complaints 2006 --- 34,521
Informal Complaints 2019 --- 39,038
Formal Complaints 2006 --- 16,723
Formal Complaints 2019 --- 16,947

• EEOC Average Processing Times

Hearings 2000/381 days Appeals 2000/420 days
Hearings 2016/500 days Appeals 2016/447 days

• Rather than lead by example and resolve credible cases timely, EEOC’s OFO Director is named in
complaint headed for trial. Menoken v. Janet Dhillon, EEOC No. 1-5284 (D.C. Cir., 9/15/20).

Data Source: EEOC’s Annual Report of the Federal Workforce 2000, 2016, -2019
 RECOMMENDATION 13
Refine EEOC’s Annual Report/Strategic Plan

Insight: The EEOC’s Annual Performance Report FY2022 and Strategic

Plan commingles its performance measure narrative for non-federal sector
and federal sector employers.

Coverage
 The role EEOC plays in non-federal sector differs drastically
from the role it plays it federal sector

 Clearly separate private sector goals from public sector goals

 EEOC needs to establish :

No FEAR Act Performance Measures
Cummings’ Act Performance Measures
 RECOMMENDATION 14
EEOC Should Standardize Data to be Posted By Employing Agency

Insight: Pursuant to Cummings Act Sec 1135 specifies data to be posted by employing Federal
Agencies; however, the EEOC has not provided standardize instructions for agencies.

Coverage
• Agencies post differently throughout government
• Class action data is not being captured
• Cummings’ Act data capture elements:
General - Complaints
 Affected federal agency
 Date of a finding
 Law violated
 Whether decision has been made about disciplinary action
Class action complaints
 Date class action filed
 Summary of allegations
 # of Plaintiffs
 Complaint status
 Case # for civil actions - discrimination found
 (RECOMMENDATION 14- CONT’D)

Insight: Agency’s post varying information EEOC Should Standardize Data to be

be Posted By Employing Agency Require Notice of Discrimination Finding Down to Unit Level
 RECOMMENDATION 15
EEOC Should Ensure Agencies Data Accessible From Main Webpage

Insight: No FEAR Act/Cummings Act data is to be publicly accessible from agency home page as
shown below on U.S. Dept. of Interior website. Compliance –Sec. 1133 Notification of Violation

Coverage
While some agencies/ department comply with No FEAR posting; many do not comply with the
Cummings posting requirements pursuant to the law passed in 2021. The EEOC has failed to
provide meaningful, if any, guidance in this regarding
 RECOMMENDATIONS 16
EEOC Should ReAffirm Position On Counsel Interference and
Impose Penalty when Found

Insight: Despite EEOC guidance stating:-- “There must be a firewall between the EEO function and the
agency's defensive function;.” agency’s General Counsel help agency witnesses write affidavits during the
investigative process; yet non-compliant offenders face no penalties.

Coverage
Example 1: Josefina L v. SSA
EEOC Appeal No. 012016760 July 10, 2018
Agency attorney directly influenced manager’s written testimony for
the EEO investigator. The attorney “reviewed and revised it.”

Example 2 : Tammy S. v. Dept. of Defense

Appeal №0120084008 (June 6, 2014)
 RECOMMENDATIONS 16 (CONT’D)
EEOC Should ReAffirm Position on Counsel Interference and
Impose Penalty when Found

Insight: As the EEO reiterated in the Agency International Development (AID)

class action case below -- “impartiality and the appearance of impartiality is
paramount to the credibility of the equal employment program” (p5)

Coverage
Example 3: Larraine D, et. al v Samantha Power (AID) Appeal Nos. 2020003744-2020003746
Complainants requested sanctions when General Counsel interfered in complaint process and agency found
“no discrimination.” In Larraine D, et..al the EEOC remanded the case back to the agency without
sanction, event after the EEOC found:
• Agency’s the [Office of Civil Rights and Diversity (OCRD)] failed to maintain its impartiality in
drafting the final decisions in Complainants’ cases.
• “ . . .the actions by the OCRD in accepting the work product of its [General Counsel] as a starting point
for issuing its final decision to impinge the integrity of the EEO decision-making process.
• “ . . .we find the actions by the [Office of Civil Rights and Diversity] in this case to be improper”
(p5).
 RECOMMENDATIONS 17
Ban “Administrative Judges” (AJ) From Using Summary Judgement

Insight: AJs are not Administrative Law Judges. They lack autonomy to judge fairly. Yet, the
EEOC empowers AJs, who have no subpoena power, to deprive an aggrieved party of a
hearing if the AJ decides some or all material facts are not in genuine dispute.

Coverage
Administrative Judges . . .
• Use Summary Judgements as a way to reduce backlog
• Dismiss cases without giving plaintiffs discovery
• Sit years on cases; then dismiss with little or no explanation
• Make factual findings in favor of agency absent of reliable evidence
supporting defending agency’s arguments.
• Credit information in agency’s brief & investigative file (Note: the
investigation is controlled by / paid for by defending agency)
 RECOMMENDATION 18
Obtain Legal Opinion: Eliminate Preliminary Class Certification Requirement.
Focus on Merits and Class Relief, if appropriate

Insight: EEOC’s regulations impose a class action “certification’ requirement that fails to
carry over into court setting.

Coverage
• The certification requirement holds civil servants
hostage in the administrative process for years

Janet Howard, et. al v Commerce

Fogg v Marshals Service
Taylor v Social Security Administration
USDA Forest Service Firefighting Crew “Open Letter”
• Dennis Turner.et al vs Bureau of Prisons (1999-Present)

• To promptly address systemic discrimination impacting

federal workers, and to provide class relief as soon as
possible , when needed, EEOC should eliminate the
“certification” process and focus on the merit(s) of a
claim an aggrieve party brings that has class implications.
 RECOMMENDATIONS 19
Create Civil Rights Liaison Position

Insight: EEO claims often involve personnel abuses. Yet, once an EEO case is dismissed,
settled, or in court agency typically ignore credible abuses raised by the aggrieved party.
Agencies fail to use their “Table of Penalties” Examples: Army, Interior, HUD

Coverage

• A civil rights/EEO liaison position could be created to follow-

up with Human Resources (HR) when an obvious personnel
abuse is raised during complaint process.

• At a minimum, the EEOC should instruct agency EEO

practitioners to issue a referral letter to H.R. advising officials of
a likely personnel infraction.
 Recommendations to Address Key Challenges Employees
Face in the Federal EEO Complaint Program

“Training is not a penalty. It’s a perk the EEOC awards seasoned agency attorneys, skilled EEO
practitioners, and unrepentant discriminating officials whose offenses warrant discipline.”

Tanya Ward Jordan, President

The Coalition For Change, Inc. (C4C)