Statement by Delia L. Johnson Co-Chair Council of Federal EEO and Civil Rights Executives

Meeting of September 7, 2006, Washington D.C. on Federal Sector EEO Investigations

As Co-Chair of the Council of Federal EEO and Civil Rights Executives and Director of the Office for Civil Rights at the Broadcasting Board of Governors, International Broadcasting Bureau, I thank Commissioner Griffin for inviting the Council and I welcome the opportunity to discuss ways to improve the timeliness and quality of EEO investigations, along with the perceived conflict of interest when agencies conduct internal investigations of complaints filed against their respective agencies. It is also a privilege to address the Commission on behalf of the EEO practitioners who are often forgotten and excluded from a number of the discussions that affect their daily responsibilities in the federal workplace. The improvement of the investigative process and the focus on each of the concerns which are subjects of the panel discussions today are crucial to the success of the federal sector equal employment opportunity program which has been deluged with criticisms over the length of time it takes to move complaints through the system. For the past year, a group of EEO Officials and stakeholders have been meeting with former Commissioner Earp, now the Equal Employment Opportunity Commission's (EEOC) Chair Naomi Earp concerning the topic of improving Federal Sector EEO Investigations. I would like to share my thoughts on each of the areas identified for discussion today with primary emphasis on the topic of the perceived conflict of interest when federal agencies conduct and control their internal EEO investigative process.

1. Perceived Conflict of Interest

Focusing on the perceived conflict of interest, an EEO investigation into employee complaints can raise a plethora of concerns from the complainant, supervisors/managers and the agency as a whole. EEO investigators (investigators) have a responsibility to be objective and impartial. Investigators must not be advocates for either side or take a position on the merits of the claims of discrimination. Employees should be made aware that investigators are charged with vigorously compiling a complete factual record. However, this vigor should not be colored with partiality. If an employee or manager believes a particular EEO investigator has crossed the line of acceptable behavior and is acting with a prejudice or bias for or against one of the parties, each is encouraged to contact the EEO or Civil Rights office to relay those concerns. When appropriate, the EEO investigator should be replaced.

Many of us are aware of the historical criticisms of federal agencies having direct involvement in their respective investigations and there have been recommendations to have investigations removed from the control of federal agencies. This perceived conflict of interest is fueled by untimely investigations and the incomplete records produced by many investigators. These concerns form the basis of most complaints about the investigative process and the ultimate blame lies with the EEO or Civil Rights offices to manage an efficient process. We are all aware that not all federal sector complaint processes are managed in an efficient manner. Therefore, it is important that those agencies that do not meet the EEOC's expectations, on a consistent basis, be identified and provided technical guidance to assist them in assessing their investigative process and creating steps for improvements.

As I consider the option of removing the investigative function from federal agencies, the first thing I ask myself is where the function would be placed. We all have heard the possibility of placing this function with the EEOC, we have heard of creating a separate entity to handle the federal sector investigative function and a number of other options which have been raised over the past decades. Unfortunately, for many years, resources and funding issues have affected the EEOC's efforts in eradicating backlogs in the hearing and appeal phases. However, in recent years, EEOC has made some significant improvements in reducing the backlogs in hearings and appeals. Nevertheless, I believe that the idea of moving the investigative function to the EEOC would be ineffective and more likely create another perceived conflict of interest when the same entity investigating the complaint addresses the complaint at hearing, and is later charged with responding to a possible appeal.

A major step on the part of federal agencies to eliminate this perceived conflict of interest was to implement the use of contract investigators who are not subject to internal pressures from agency management, as are in-house investigators. The elimination of in-house investigators has enhanced the neutrality and objectivity of the investigative phase, including reducing to some degree the concern over conflict of interest. When agencies conduct their internal investigations, it provides them an immediate opportunity to review the report and identify those claims that are ripe for resolution. It is only by way of adequate documentation that the EEO practitioner is able to recommend an immediate resolution of a complaint. Just as importantly, a timely and complete investigative report is a tool for expediting the process either through an amicable resolution or moving the complaint to the next phase of processing. By retaining the responsibility of investigating their complaints, agencies are capable of monitoring trends in complaint activity with the goal of identifying root causes and recommending ways to proactively address these causes which may ultimately reduce the number of complaints filed. Steps that may be taken to eliminate the perceived conflict of interest are: (a) Provide a more transparent process to employees and managers to ensure that they are comfortable with the steps in the process; (b) When necessary, take time to meet with each party to address any specific concerns; (c) Respond immediately to concerns raised by either party; and (d) Consider allowing the complainant to review the draft report before it is finalized. A timely investigative report which contains all of the relevant affidavits and documents will assist the agency in achieving an informed final decision within the mandated timeframe.

2. Improving Timeliness of Investigations

The old adage, "justice delayed is justice denied," is so applicable when discussing the timely completion of investigations. Delays in the processing of federal sector EEO complaints have been a longstanding concern for not only the public, but Federal agencies, advocacy groups, and members of Congress as well. The investigation into allegations of discrimination is a key component of the formal EEO complaint process. However, lengthy delays in this process may impede the primary goal of gathering sufficient evidence to permit a determination as to whether employment discrimination has occurred. The following steps should be taken to ensure that we achieve a timely product during the investigative phase of the complaint process.

1. Create a unit that is well trained and staffed to manage the investigative process through adequate monitoring of timeframes and the skill and knowledge to conduct a quality review of the investigative reports.
2. Make the elimination of an agency's complaint backlog a top priority. Once the oldest cases are cleared from the docket, the average processing times should dramatically decline.
3. Develop one universal complaint tracking system for use by all agency components processing EEO complaints. Processing of EEO complaints may be impeded when agency components responsible for this task are unable to communicate and coordinate effectively with each other because they are using different complaint tracking systems.
4. Implicit with the development of an effective and efficient complaint processing system is the requirement to verify that all complaints have been accounted for and that their individual status is properly recorded in the agency's complaint system.
5. Establish reasonable timeframes for completing each investigation. While timeframes are, to a degree, dependent upon the complexity of the case, 45 calendar days is reasonable. According to the EEOC regulations, complaints must be investigated within 180 days of the date the complaint was filed.
6. Require investigators to submit weekly status reports, an investigative plan and all investigative questions, along with a list of witness contacts and document requests.
7. Encourage Agency Heads to issue policy requiring supervisors and managers to cooperate promptly with investigators.
8. Encourage investigators to immediately contact the EEO Office when witnesses fail to promptly respond to their request for interview.
9. Encourage investigators to immediately contact the EEO Office when Human Resource/Personnel offices and other offices in the agency fail to promptly provide requested documents, or otherwise fail to cooperate.

3. Quality of Investigations

As I remember, during the last revisions to the regulations there was a concerted effort to address the concern over the quality of investigations by including the opportunity for additional discovery during hearings. This adjustment allowed both parties to add to the record should the report of investigation fail to cover any relevant matters. I believe that with regard to the quality of investigations, it is imperative that agencies utilize the same criteria that the EEOC utilizes to measure quality investigative reports. Agencies need additional resources and must provide adequate training to EEO Specialists who are tasked with drafting letters of acceptance that include specific claims for investigation. When a claim is not properly framed, it creates problems for subsequent steps in the EEO administrative complaint process (e.g., the investigative and hearing processes). Accurately framing the claims for investigation plays an integral part in the quality of the investigative report. There are steps that can be taken to improve the quality of investigations such as: (a) Ensuring that the contract-investigators have the training, qualifications and experience required to perform the investigative function; (b) Ensuring that all of the investigators are held responsible for producing a quality product; (c) Employing well trained EEO practitioners to review the quality of the contractor's work-product; and (d) Developing a "rating system" for contract investigators which identifies which companies consistently produce timely and quality work products.

Accordingly, individuals assigned to investigate EEO complaints must be qualified, experienced and accountable. There are a number of independent investigators such as James Gee and Stuart Plotnick that consistently produce quality investigative reports. There are also companies such as Delaney, Siegel and Zorn and JDG and Associates that have produced timely and quality reports for a large number of federal agencies. When we improve the timeliness and quality of the investigations, I believe that the perceived conflict of interest will be eradicated.

In closing, it is important for me to express that although we have focused on three essential issues in the improvement of the federal sector investigative process, we must not fail to realize that the federal sector process also suffers from other conflicts of interest. EEO practitioners for decades have faced the interference of agency legal offices and human resources offices in their attempts to address EEO concerns in the federal workplace. It is reported that in many agencies, there continues to be a lack of support from Agency Heads. In addition, there continues to be the ever present historical predisposition that the processing of EEO matters are a nuisance, time consuming and should be eliminated from federal agencies. Consequently, if we improve the federal sector EEO investigative process, we will have successfully made tremendous progress in improving a critical phase of the overall EEO complaints process in the federal government which will move us closer to achieving the model EEO program

This page was last modified on September 7, 2006.