Digest of EEO Law Vol X11 No. 1 - Alternative Dispute Resolution Programs in the Federal Sector

Alternative Dispute Resolution Programs in the Federal Sector

Revised EEOC Regulatory Requirements

The use of alternative dispute resolution (ADR) in the federal sector EEO process has increased dramatically in the past few years. Even before the advent of the changes brought about by the EEOC's revisions to the federal sector processing regulations, many federal agencies either had or were developing ADR programs capable of fostering resolutions in the EEO complaint process[1]. In the Civil Rights Act of 1991, Congress specifically encouraged the resolution of EEO disputes through ADR.[2]

ADR generally refers to a continuum of processes and approaches that are designed to resolve disputes in a manner which avoids the cost, delay and unpredictability of more traditional adversarial and adjudicatory processes. These include techniques such as mediation, facilitation, fact finding, early neutral evaluation, the use of an ombudsman, settlement conferences, minitrials, and peer review. Mediation has proven to be the most popular technique used by those federal agencies with ADR programs; over 87% of agencies use it as their primary ADR technique[3]. EEOC has made mediation a key component of its private sector enforcement program. In Fiscal Year 1999, the EEOC successfully resolved 4,833 private sector charges of discrimination through voluntary mediation, achieving a settlement success rate for mediated cases of 65 percent.

In light of the clear advantages realized through the use of ADR techniques, the EEOC has revised its federal EEO complaint processing regulations to require that agencies establish or make available an ADR program during both the pre-complaint and formal complaint process[4]. These changes to the regulations regarding ADR took effect on January 1, 2000. EEOC's revised Management Directive 110 (EEOC MD-110, October 28, 1999) devotes an entire chapter to the subject of ADR[5].

The provision governing pre-complaint processing[6] requires the EEO Counselor to advise that, where the agency agrees to offer ADR in a particular case, the aggrieved person may choose between participation in the ADR program and traditional EEO counseling activities. Before this choice is made, the EEO Counselor or ADR contact person must fully inform the individual about the EEO counseling process and the ADR program. The EEO Counselor must also advise the individual of his or her rights and responsibilities in the EEO complaint process, as set forth in 1614.105(b) of the revised regulations. If the agency offers ADR during the pre-complaint process and the complainant agrees to participate, the EEO pre-complaint processing period is 90 days[7].

If the agency's ADR program allows individuals to go directly into the ADR process without initially meeting with the EEO Counselor, then the meeting with the ADR contact person serves as the initial meeting with the counselor. In such a case, the 90-day pre-complaint counseling period will begin to run from that contact. The ADR contact person will be responsible for advising the aggrieved individual of his or her rights and responsibilities in the EEO complaint process and for determining the issues and bases of the matter.

If ADR takes place at a later stage, applicable complaint processing time periods may be extended by agreement for up to 90 days.[8] If the complaint is successfully resolved during ADR proceedings, the terms of the agreement must be in writing and be signed by both the aggrieved person and the agency.[9] Additionally, all written agreements must set out the procedures available under 1614.504 in the event of agency noncompliance. They also must comply with EEOC's Enforcement Guidance on Non-Waivable Employee Rights under EEOC Enforced Statutes,[10] and with any applicable requirements imposed by the Older Workers Benefit Protection Act of 1990.[11] If the matter concludes without a resolution at the pre-complaint stage of the process, the agency must ensure that an EEO Counselor's report is prepared, and that the aggrieved person receives a final interview and is given notice of the right to file a formal complaint.

Nothing said or done during attempts to resolve the matter through ADR proceedings may be made the subject of an EEO complaint, including the failure by the agency to provide a neutral.[12] All concerns with the operation of the agency's ADR program should be resolved by contacting the individual responsible for administration of the agency's ADR program. Individuals may also contact the Director of Special Services Staff at the EEOC's Office of Federal Operations concerning agency ADR program compliance with the EEOC's ADR core principles, the Part 1614 EEO complaint processing regulations, and MD-110.

Core Principles

The EEOC encourages agencies to be flexible in designing ADR programs to suit their environment and workforce, provided such programs conform to the core principles set forth by the EEOC in its policy statement on ADR.[13] The overriding requirement placed on agency ADR programs is that of fairness. Fairness requires voluntariness, neutrality, confidentiality and enforceability.[14]

Voluntariness means that the parties knowingly and willingly enter into an ADR proceeding, that they are able to end the ADR process at any time, and that they are free to reach their own self-determined resolution without coercion or duress. Employees or applicants must also be made aware that they retain the right to proceed with the administrative EEO process if they decide that they prefer to do so or if a resolution is not reached.

Neutrality means that the ADR proceeding must be impartial and independent of control by either party, in both perception and reality. Use of a neutral-- an individual with no stake in the outcome of the proceeding--as a facilitator or mediator ensures this impartiality.

In keeping with this principle, an EEO Counselor or other agency EEO official assigned to play a role in processing a particular case may not serve as the neutral in that case. Although the agency is not prohibited from using internal neutrals, agencies are strongly encouraged to go outside the agency in obtaining the services of a neutral to assure the neutrality and impartiality of the neutral. Optimally, the neutral is not an agency employee and knows none of the parties.

Confidentiality of ADR proceedings must be maintained by everyone involved in the ADR proceeding--the parties; any neutral third party; and agency employees, including any employees involved in the implementation of a resolution. This means that information concerning the underlying facts of an ADR proceeding and records generated as part of that proceeding (except the settlement agreement) may not be made part of the EEO complaint record.

Also, the individual serving as a neutral is responsible for destroying all written notes taken during the ADR proceeding or in preparation for the proceeding.[15] In recognition of the importance of this principle, the Alternative Dispute Resolution Act of 1996 [16] contains enhanced confidentiality provisions, in Section 574, which require that neutrals in ADR proceedings not voluntarily disclose or be required to disclose dispute resolution communications, with certain statutory exceptions. These provisions further exempt "qualifying dispute resolution communications" from disclosure under the Freedom of Information Act.

Settlement agreements reached through participation in agency ADR programs are enforceable. 29 C.F.R. 1614.504 sets forth specific procedures by which the EEOC enforces all settlement agreements, including those reached in alternative dispute resolution proceedings. In order to ensure enforceability of ADR settlement agreements, federal agencies must consistently provide access to agency officials with settlement authority throughout all federal sector ADR proceedings.

An agency's ADR program cannot abrogate an individual's right to pursue his or her claim under the Part 1614 regulations (e.g., cannot require waiver of the individual's right to an investigation or an administrative hearing).

Agencies are free to decide which ADR techniques to employ and whether to offer access to the ADR program in any particular case. They may also opt to limit the use of ADR in other ways, (i.e., geographically or by issue) but may not decline to offer ADR because of the particular bases involved.[17] Once an agency decides to offer access to its ADR program in a particular case, individual agency management officials have a duty to participate and to cooperate in the process.

Agencies must ensure that whatever ADR process they decide to utilize is accessible to individuals with disabilities.[18] A disability accommodation request procedure should be developed and utilized by the agency. Types of accommodation provided may include wheelchair access, written materials in alternative formats such as Braille or large print, and the provision of sign language interpreters. Disability awareness training should be provided to ADR staff and neutrals who will be involved in mediations in any capacity.

Training and Evaluation

Agency ADR programs must include training and evaluation components. To ensure the successful operation of its program, the agency should provide ADR training to all managers and supervisors, either through an agency conducted program or through an external source such as another federal agency or a private contractor.

Such training should provide information about the benefits associated with participation in ADR processes and the importance of providing full information about the ADR proceeding as soon as possible. Pursuant to the EEOC's authority set forth in 29 C. F. R. 1614.602(a) to collect federal complaints processing data, and pursuant to the agencies' obligation to report EEO activity to the EEOC, agencies are required to report information concerning the nature and operations of their ADR programs to the EEOC on an annual basis through EEOC Form 462.[19]

Neutrals: Qualifications

Any person who serves as a neutral in an agency's ADR program must have the same level of professional training in the method of dispute resolution utilized by the agency as is generally recognized in the dispute resolution profession.[20] Neutrals utilized by federal agencies in the EEO process must also be familiar with EEO law. This includes familiarity with: the entire EEO complaint process governed by 29 C.F.R. Part 1614, including its time frames; the statutes enforced by the EEOC;[21] the theories of discrimination and reasonable accommodation; and the remedies available, including compensatory damages, costs, and attorney's fees. In addition, those neutrals who will participate in cases involving Rehabilitation Act/ADA issues should receive training which specifically addresses accommodation of the needs of individuals with disabilities in the ADR process.

Neutrals: Conflict of Interest

A neutral can have no official, financial, or personal conflict of interest with respect to the issues in controversy, unless the interest is fully disclosed in writing to the parties and they agree that the neutral may serve. Neutrals utilized in EEO ADR proceedings are charged with the responsibility to ensure that ADR proceedings are conducted in accordance with EEO law, the Part 1614 regulations, and the core principles enunciated by the EEOC. These include, e.g., ensuring that parties are provided with the opportunity to be represented by any person of their choosing throughout the proceeding, ensuring the enforceability of any agreement between the parties, and ensuring confidentiality.

ADR Resources

Several organizations including Federal Executive Boards, non-profit organizations, and professional associations are developing pools of neutrals available for federal agency EEO dispute resolution. Information on such programs may be obtained by contacting the ADR representative in one of the EEOC's District offices,[22] or at web sites such as those noted below.[23]

The Office of Personnel Management (OPM) Alternative Dispute Resolution Resource Guide is a valuable tool that provides extensive information concerning many ADR programs in operation at various agencies, and lists numerous sources of training in ADR techniques.[24] The Attorney General's Interagency Alternative Dispute Resolution Working Group provides ADR resource information and information on its latest activities at its Internet web site.[25] In addition to these sources, the Special Services Staff at EEOC's Office of Federal Operations is in the process of establishing a clearinghouse for ADR information it receives from federal agencies concerning their ADR programs. Special Services Staff members are also available to provide technical assistance on compliance with the EEOC regulatory provisions and the newly revised EEOC MD-110. Special Services Staff can be contacted by telephone at (202) 663-4599, or by e-mail to ofoeeoc.gov.

How To Afford ADR

Agencies may contract out ADR services to another federal agency or to another appropriate organization. Two affordable ways to provide ADR services include the Economy Act, 31 U.S.C. 1535, and the General Service Administration's (GSA) federal supply schedule. The Economy Act provides that an agency may place an order with a major organizational unit within the same agency or another agency for goods or services. There are four requirements to qualify for the Economy Act: (1) sufficient funding amounts are available; (2) the ordering agency decides the order is in the best interest of the United States Government; (3) the agency to fill the order is able to provide or get by contract the ordered goods or services; and (4) the ordering agency decides ordered goods or services cannot be provided by contract as conveniently or cheaply by a commercial enterprise.

An agency may also submit a request to GSA under its Federal Supply Schedule Program, which is a simplified process for obtaining services at fair and reasonable prices. Under this program, commercial firms provide services at stated rates for given periods of time. For example, Schedule 738-X has two components, 595-13 and 595-15, which pertain to ADR services and training, respectively. The administrative costs of placing a schedule order for ADR services are significantly lower than open-market contracting and purchasing because the electronic schedule ordering system cuts through red tape and drastically reduces paperwork by avoiding the search for sources, the evaluation of bids/offers, and contract administration.

Conclusion

In conclusion, due to the initiative of federal agencies and the implementation of the EEOC's revised regulations, the development of ADR programs is moving to center stage in the EEO process. The EEOC's Management Directive 110 provides agencies with the framework for acceptable ADR programs, while agencies retain the flexibility to experiment with the design of their programs. Based on the success of ADR in the EEOC's private sector, it is reasonable to expect that federal agencies's use of ADR will significantly reduce their EEO caseload and improve morale and employee relations.

[1] A 1998 ADR Study of Federal Sector EEO Alternative Dispute Resolution Program conducted by the Special Services Staff in the EEOC's Office of Federal Operations reported that more than half of the federal agencies surveyed had active ADR programs. Another 19% of the surveyed federal agencies reported that they were in the process of developing such programs.

[2] Section 118 of the Civil Rights Act of 1991, 42 U.S.R 1981.

[3] As reported in the EEOC's 1998 ADR Study.

[4] 64 Fed. Reg. 37655 (1999)(to be codified as 29 C.F.R. 1614.102(b)(2)).

[5] The revised regulations and MD-110 are posted on EEOC's web site, www.eeoc.gov.

[6] 64 Fed. Reg. 37644, at 37656 (to be codified as 29 C.F.R. 1614.105(b)(2)).

[7] 29 C.F.R. 1614.105(f).

[8] See EEOC MD-110, 3-2 to 3-7.

[9] 64 Fed. Reg. at 37611 (to be codified as 29 C.F.R. 1614.603); EEOC MD-110 at 3-8.

[10] Posted at www.eeoc.gov,"Enforcement Guidance and Related Dcouments."

[11] See EEOC MD-110 at 3-13; Rub. L. 101-433 (1990), the Age Discrimination in Employment Act of 1967 (ADEA), subsection (f), U.S.C. 626(f) and ; 29 C.F.R. Part 1625.

[12] EEOC MD-110 at 3-8.

[13] The ADR core principles are set out in the EEOC's policy statement on ADR, Appendix H of MD-110, posted on www.eeoc.gov.

[14] EEOC MD-110 at 3-2, 3-15 through 3-17.

[15] EEOC MD-110 at 3-12.

[16] Pub. L. 104-320, 110 Stat. 3870 (1996), codified at 5 U.S.C. 551 et seq.

[17] EEOC MD-110 at 3-4; 3-16.

[18] SeeThe Americans With Disabilities Act of 1990 (ADA), Pub. L. 101-336, 42 U.S.C 12101-12213 (1994) (codified as amended).

[19] EEOC MD-110 at 3-15.

[20] EEOC MD-110 at 3-11. For example, the Interagency Program on Sharing Neutrals administered by the Department of Health and Human Services requires at least 20 hours of basic mediation skills mediation skills training; at least theree co-mediations with a qualified mediator of five independent mediation and positive evaluations form a qualified trainer/evaluator; and at least two references from two qualified mediators or trainer/evaluators.Id.

[21] Title VII of the Civil Rights Act of 1964,as amended,42 U.S.C. 200e et seq; the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et seq., the Age Discrimination in Employment Act of 1967, as amended,29 U.S.C. 621 et seq and the Equal Pay Act of 1963, as amended,29 U.S.C. 206(d);EEOC MD-110 at 3-11.

[22] The offices are listed at www.eeoc.gov, "Contacting the EEOC".

[23] Organizations include the Federal Mediation and Conciliation Service, ,http://www.fmcs.gov, the CPR Institute for Dispute Resolution, http://www.cpradr.org, the Northern Virginia Mediation Service, https://nvms.us/ and the Mediation & Information Resource Center ,http://mediate.com.

[24] This Guide is posted on OPM's web site, http://www.opm.gov/er.

[25] The web site is located at https://www.usa.gov/federal-agencies/interagency-alternative-dispute-resolution-working-group.