Written Testimony of Ernest Hadley, Federal Employment Law Training Group

Meeting of July 18, 2012 – Public Input into the Development of EEOC's Strategic Enforcement Plan

Madam Chair, Commissioners Barker, Feldblum and Lipnic. Thank you for the opportunity to provide comments on the EEOC's Strategic Plan for 2012-2016. Long-term strategic planning is a necessity for any organization. Without goals and objectives there can be no direction. As with all strategic plans though, the devil, as it were, is in the details.

At the outset, let me say that I have on occasion been a critic of the Commission and, perhaps at times, even a caustic critic. That doesn't mean that I do not deeply appreciate the service that you give to this Commission in its important mission and, in turn, the service that you render to our nation. I thank you for that service and for your contributions. I criticize, because like you, I care and I care deeply about enforcement of our employment discrimination laws.

Federal sector EEO has long been in need of significant reform. Last year, in an interview with Commissioner Feldblum for the preface of my annual EEO Guide, I described the latest reform effort via a proposed rulemaking as putting a band-aid on a patient who is hemorrhaging. As I recall, Commissioner Feldblum did not dispute that characterization of the federal sector process. Many of us in this field have participated in past reform efforts—most recently, a task force on the hearing process headed by former Commissioner Ishimaru and one on the quality and timeliness of investigations as well as the potential conflict of interest in agencies investigating themselves headed by former Commissioner Griffin. Suffice it to say that there has been little in the way of results from those efforts. If you sense a degree of frustration in my comments, your perception is correct. While I realize the past failures at federal sector reform did not occur on your watch, the fact that there is no specific individual to blame for those failures does little to ameliorate the frustration. Confidence in the federal sector system continues to erode and I sit before you today knowing that your best intentions will do little to abate that erosion. Immediate and concrete actions are required.

This is not the time for studies or amorphous long-range plans with lofty goals that lack detail. More studies will only reveal what past studies have already confirmed. As terms expire and appointments are confirmed, Commissioners come and go. In the past, this has meant that we study the same problems that have already been studied. Studies take time. Recommendations must be developed from those studies and, again, that takes time. Then, of course, those recommendations need to be implemented through rulemaking and the issuance of management directives and other guidance. That takes even more time. By then, we have a substantially new Commission and the process starts all over again. In the meantime, we continue to be plagued by some of the problems that have haunted the process for not just years, but decades.

Your strategic plan with an objective of developing a new case inventory system that categorizes cases is certainly a worthy objective, as is having in place a To Be Determined percentage of hearings and appeals evaluated under a new Federal Sector Quality Control Plan. However, on some level, I can't help thinking about the Bluth family from Arrested Development and their attempts at a fundraiser for a disease To Be Announced. But this is not a sit-com. Four-year plans with vague goals and objectives that leave details to be filled in later will not stop the patient from hemorrhaging. There are some things I think that can and must done immediately irrespective of any strategic plan.

I have come to believe that the most pressing issue in the federal sector is clear and definitive guidance on the role of agency counsel during the agency processing of an EEO complaint, particularly during the investigation stage. The agency head is charged under 42 U.S.C. § 2000e-16(b) with complying with all rules, regulations, instructions and orders issued by the EEOC to discharge its statutory mandate in the federal sector. By regulation at 29 C.F.R. § 1614.108(b), an agency is required to prepare an "impartial and appropriate" factual record of an EEO complaint. EEOC Management Directive 110 further makes clear that agency heads must not permit intrusion by the legal defense arm of an agency into the EEO investigative process.

Despite what is a clear prohibition on agency defense counsel intruding into the investigative process, in far too many agencies and in far too many instances agency defense counsel routinely insert themselves into the investigative process. That intrusion takes various forms from agency defense counsel determining what questions an EEO investigator can ask of agency witnesses to reviewing the under oath statements of agency managers prior to submission to the investigator to actually drafting under oath statements for agency managers to submit to investigators. When drafts of those statements are sought by complainants, agency defense counsel assert attorney-client and attorney work product privilege. In addition to both the impropriety and appearance of impropriety that these practices create, precious resources go into motions to compel discovery, motions for sanctions, and motions for reconsideration of rulings of the administrative judge.

These practices go to the very heart of the integrity of the EEO process. Little will be accomplished by improving the timeliness of case processing, including the timeliness of the completion of investigations, if this practice is allowed to continue unabated. Simply having quicker investigations will not restore confidence in the system unless we also have investigations that are fair and unbiased in fact and appearance. Because the Commission's current guidance is obviously not sufficient for those who engage in these practices, we need definitive, emphatic and crystal clear mandatory guidance on the role of agency counsel in the EEO process.

There is, in my estimation, no role whatsoever for agency defense counsel in an EEO complaint prior to the request for a hearing with one exception. Management Directive 110, Chapter 3, VII, A, already contains an exception that "both parties" are entitled to representation during Alternative Dispute Resolution. I believe that there is a proper role for agency defense counsel, and indeed a highly beneficial role, in ADR and other resolution efforts. During settlement discussions both the complainant and the agency benefit from legal advice on the proper scope of remedies, the proper parameters of settlement and the legality of any resulting agreement.

I want to be clear that this is not some campaign against agency defense counsel. I hold many I have worked with over the years in the highest regard. Their integrity is beyond reproach. But as with all things a few bad apples can spoil the barrel. It's time to rid the barrel of those apples before all confidence in the system is lost.

It is my understanding that draft guidance on this subject has existed for years but has never been issued. That guidance should be issued without delay.

I also believe that we need to revise the manner in which the EEOC issues decisions in federal sector cases. Quite simply, the Office of Federal Operations issues too many written decisions. We have seen vast improvements in the quality and consistency of federal sector decisions issued by OFO under the direction of Carlton Hadden. Yet, we still see OFO issue decisions, which at times are conflicting and other times contain muddled and unclear analysis. This is not, in my estimation, a quality problem. It's a quantity problem. By the time a case reaches OFO, the parties already have a written decision in the form of a Final Agency Decision or a decision of an EEOC Administrative Judge. In the majority of cases, another written decision does nothing to clarify or advance the law. There is, in my opinion, no reason to expend precious resources writing yet another decision when the decision below is correct. A short-form decision affirming the decision below would suffice. Utilizing short-form decisions would allow OFO to free up resources to write decisions that are concise and focus on those cases that would resolve conflicts in existing Commission case law or advance the existing case law. Greater precision in the case law translates into improved predictability as to the outcome of cases for those of us involved in the process. In my opinion, improved predictability would result in fewer complaints being filed, fewer complaints being pursued whether it's by the complainant or the agency and more cases being settled.

While the Commission has now issued several decisions imposing default judgment on agencies as a sanction, it continues a practice of not imposing a similar sanction on complainants who engage in contumacious conduct during the processing of their complaints. The harshest sanction levied against such complainants is a cancelation of their hearing request and a remand to the agency for a final decision on the record. Of course, that decision also comes with appeal rights to the EEOC. It makes no sense that an agency's resources should continue to be expended on a complainant who engages in contumacious conduct. Dismissal of the complaint should be the sanction. Yes, that complainant would still have EEOC appeal rights but we would eliminate the unnecessary step of having the agency issue a final agency decision on the record. This is particularly an unnecessary step given the fact that such complainants have little or no chance of succeeding on the merits of a final decision on the record.

The federal sector EEO process is significantly different from the private sector EEO process. Yet, those who administer the federal sector process are split between the Office of Federal Operations and the Office of Field Programs. Notably, the Commission's Administrative Judges are assigned to the Office of Field Programs even though it is the Office of Federal Operations that, in a sense, monitors the quality of the work of those Judges through the appellate process. One way to achieve greater consistency in the Commission's processing of federal sector complaints is to have one organizational entity that contains all federal sector functions. I fully understand the organizational "turf wars" that such a move can engender. But, organizational "turf wars" and internal resistance are not sufficient reasons to sacrifice improving the quality and consistency of federal sector operations.

Finally, I return to the recommendations of Commissioners Ishimaru and Griffin and the notion that we don't need more studies. What we need are actions. The Commission should appoint a task force with an outside deadline of no more than six months to work from those recommendations and bring forward a comprehensive proposal for reform of the federal sector process. In turn, the Commission must impose a similar deadline on itself to bring forward the necessary proposed rulemaking, management directives and other guidance to fully implement significant federal sector reform.

As Commissioners, you must disabuse yourselves of the notion that general consensus can be achieved on these reforms. This notion has continually derailed past reform efforts. The interests represented in the federal sector are simply too diverse to achieve general consensus. Can we achieve consensus on some issues? Certainly. In other areas what is needed is not consensus, but leadership. Leadership sometimes requires making hard decisions that will make some people unhappy. It is, however, the commitment you made when you took the oath of office. We look to you now for that leadership.

I genuinely thank you for the opportunity to share my views with you.