The U.S. Equal Employment Opportunity Commission

Commission Meeting of Monday, June 2, 2008 on Notice of Proposed Rulemaking - Federal Sector Regulations, 29 CFR Part 1614

PRESENT:

NAOMI C. EARP Chair
LESLIE E. SILVERMAN    Vice Chair
STUART J. ISHIMARU    Commissioner
CHRISTINE M. GRIFFIN    Commissioner

ALSO PRESENT:

RONALD COOPER     General Counsel
REED RUSSELL     Legal Counsel
BERNADETTE B. WILSON    Program Analyst
KATHLEEN ORAM     Office of Legal Counsel
CARLTON HADDEN     Office of Federal Operations

RONALD COOPER General Counsel
REED RUSSELL Legal Counsel
BERNADETTE B. WILSON Program Analyst

This transcript was produced from a video tape provided by the Equal Employment Opportunity Commission.

TABLE OF CONTENTS

Announcement of Notation Votes

Motion to Close a Portion of the Next Commission Meeting

Notice of Proposed Rulemaking Federal
Sector Regulations 29 CFR Part 1614

Motion to Approve the Notice of Proposed
Rulemaking Federal Sector Regulations 29 CFR Part 1614

Motion to Adjourn

P R O C E E D I N G S

2:01 p.m.

CHAIR EARP: Good afternoon, everyone. The meeting will now come to order.

Thank you all for being here.

In accordance with the Sunshine Act, today’s meeting is open to public observation of the Commission’s deliberations and voting.

At this time, I'm going to ask Bernadette Wilson to announce any notation votes that have taken place since the last Commission meeting, Ms. Wilson?

MS. WILSON: Good afternoon, Madam Chair, Madam Vice Chair, Commissioners, I'm Bernadette Wilson from the Executive Secretariat. We'd like to remind our audience that questions and comments from the audience are not permitted during the meeting and we ask that you carry on any conversations outside the meeting room, departing and re-entering as quietly as possible.

Also, please take this opportunity to turn your cell phones off or to vibrate mode.

I would also like to remind the audience that in addition to the elevators, in case of emergency, there are stairways down the halls to the right and left as you exit the room. Additionally, the restrooms are down the hall to the right.

During the period March 15th, 2008 through May 30th, 2008, the Commission acted on 14 items by notation vote,

Approved litigation on nine cases;

Approved the revised Privacy Act Regulations and System of Records;

Approved an IT services contract; and,

Approved resolutions honoring Federico Costales, Cynthia Pierre and Ruth Peterson.

Madam Chair, it is appropriate at this time to have a motion to close a portion of the next Commission meeting in case there are any closed meeting agenda items.

CHAIR EARP: Thank you, Ms. Wilson. Do I hear a motion?

COMMISSIONER ISHIMARU: So moved.

CHAIR EARP: Is there a second?

VICE CHAIR SILVERMAN: Seconded.

CHAIR EARP: Any discussion? Hearing none all those in favor, say aye.

(Chorus of Ayes)

CHAIR EARP: The ayes have it and the motion is carried. Thanks again, Ms. Wilson.

As a former EEO Director, I have a particular interest in, and passion for, the Federal EEO Complaint System. In all of my prior federal positions, and including my current job as EEOC Chair and prior position as Vice Chair, I've worked to improve the overall quality and efficiency of Federal Sector processes. I believe that today's vote is one step more toward that goal.

The item before the Commission is a Notice of Proposed Rulemaking pursuant to recommendations made by the Commissioners’ Federal sector Work Group. Specifically, the vote is to send the Notice of Public Rulemaking out to the agencies for coordination under Executive Order 12067. I'd like to take this time to thank my fellow Commissioners for their efforts, particularly Commissioner Ishimaru for his leadership of the work group. I will now ask Kathy Oram from the Office of Legal Counsel to make her presentation regarding the NPRM.

MS. ORAM: Good afternoon, Madam Chair, Madam Vice Chair and Commissioners. I am Kathy Oram from the Office of Legal Counsel. I will give a short summary of the changes proposed to the Federal Sector complaint processing regulations in the Notice of Proposed Rulemaking before you today.

The Commission last amended the federal sector complaint regulations contained at 29 CFR Part 1614 in 1999, making major revisions to all aspects of the process. As you may recall, in 2004, former Chair Cari Dominguez asked Commissioner Ishimaru to lead a work group to develop recommendations from the Commissioners for improvements to the discrimination complaint process for federal employees. This work group called the Commissioners’ Federal Sector Work Group, was asked to identify consensus recommendations for improvements.

The Commissioners’ Federal sector Workgroup considered the testimony and submissions from the November 12th, 2002 Commission meeting on federal sector reform. At that meeting, the Commission received recommendations from a broad range of stakeholders on the federal sector process. The Workgroup also considered prior staff proposals for federal sector reform and numerous submissions of internal and external stakeholders with suggestions for improvements to the federal sector process. The Workgroup determined that there was not consensus within the work group for large scale revision of the federal sector EEO process at this time but, that there was agreement on several discrete changes to the existing regulations that would clarify or build on the improvements made by the last major revisions in 1999.

The recommendations of the Commissioners’ Workgroup include regulation changes, issuance of guidance documents, and program changes. The NPRM before you contains only the regulation changes recommended by the Commissioners’ Workgroup. If these regulation changes are approved and issued at the end of the rulemaking process, it is expected that they will be accompanied by the issuance of additional guidance in Management Directive 110 and other program changes at EEOC.

There are five categories of changes contained in the NPRM.

First, the Workgroup recommended several changes to the portion of the process for which the employing agencies are responsible which includes counseling, investigations and final actions.

The NPRM proposes to add a paragraph to the Agency program section of the regulation to require agency EEO programs to comply with Part 1614 and management directives and management bulletins issued by EEOC. The new section provides that EEOC will review agency programs for compliance and the Chair may issue notices to agencies when non-compliance is found.

The NPRM also proposes to add another paragraph to the same section that would permit EEOC to grant agencies variances from particular provisions of Part 1614 to conduct pilot projects for processing complaints in ways other than those prescribed in Part 1614. Such pilots would be approved by the vote of the Commission and would usually not be granted for more than 12 months. Pilots could provide helpful data for future improvements to the federal sector process.

The NPRM proposes to revise the dismissal section to clarify that complaints alleging discrimination in proposals to take personnel actions or other preliminary steps in taking personnel actions should be dismissed unless the complaint alleges that a proposal or preliminary step is retaliatory. This change would conform the federal sector dismissals section to private sector Commission guidance on retaliation claims.

Finally, in the agency process, the NPRM would add a new provision in the investigations section requiring agencies that have not completed an investigation within the 180-day time limit for investigations, to send a notice to the complainant indicating that the investigation is not complete, when it will be completed, and that the complainant has the right to request a hearing or file a lawsuit. The Commissioners’ Workgroup believed that many complainants may not be aware of their rights to request a hearing or file a lawsuit 180 days after filing a complaint or, may not be aware of when the 180-day period expires. The notice would be in writing and would describe the hearing process and include a simple explanation of discovery and burdens of proof.

The second category of recommended changes involves the portion of the process for which EEOC is responsible, which includes hearings and appeals. The NPRM proposes to require that agencies submit appeal records and complaint files to EEOC electronically. Complainants would be encouraged but not required to submit materials electronically. There are also a handful of other changes to the appeals section to clarify appeals procedures and to correct omissions and cross reference mistakes.

The third category of recommended changes involves the class complaint procedures. The Commissioners’ Workgroup made two regulatory recommendations. The NPRM proposes that an administrative judge will make a decision on the merits of a class complaint which the agency must fully implement or appeal in its final action. Currently, the administrative judge issues recommended findings and conclusions which the Agency may accept, reject or modify in the final decision. As you know, in 1999, the Commission changed administrative recommended decisions in individual complaints to decisions subject to implementation or appeal by agencies in final actions. The change in the NPRM would conform class complaint procedures to individual complaint procedures. The NPRM also proposes to provide for expedited processing of appeals of decisions to accept or dismiss class complaints, otherwise known as certification decisions, to shorten the class certification process.

The fourth category of recommended changes covers an ADEA, Age Discrimination in Employment Act Statute of Limitations. The Commissioners’ Workgroup recommended that the Commission amend the regulations to include a Statute of Limitations for filing a lawsuit after filing a Notice of Intent to Sue with EEOC. As background, federal employees have two alternative routes for pursuing claims of age discrimination under the ADEA. An individual may file an administrative complaint with his agency under 1614 and then proceed to court after exhausting those remedies or, may bypass the administrative complaint process and proceed to court after filing a notice of intent to sue with the EEOC. The ADEA does not contain a Statute of Limitations for lawsuits by federal employees and applicants. In 1992, the Commission took the position in Part 1614 that an individual who files an administrative age complaint must file a court action within the same time limits as under Title VII, that is, within 90 days of final agency -- of agency final action or EEOC appellate action, or if no decisions are issued, after 180 days have passed since filing the complaint or appeal. Title VII does not have a notice alternative permitting bypass of the administrative process like the ADEA does and Part 1614 does not currently provide for a limitations period when individuals file notices of intent to sue with EEOC.

While two federal courts of appeals have considered this question and reached different results, we were persuaded by the reasoning of the First Circuit in Rossiter v. Potter decided in 2004. The court concluded that the Title VII limitations period does not fit instances where an individual elects to bypass the administrative process because the Title VII limitations period follows from and is dictated by the administrative process. The court concluded that the Fair Labor Standards Act offers the closest analogy to ADEA actions based on a notice of intent to sue because the FLSA creates private rights of action that do not depend on administrative process and that the act that extended protection against age discrimination to federal employees was an amendment to the FLSA. Hence, the NPRM proposes to provide that persons who file an ADEA notice of intent to sue with EEOC must file a lawsuit no later than two years after the occurrence of the alleged unlawful practice or, if the alleged unlawful practice was willful, within three years of the alleged unlawful practice.

The fifth category of proposed changes to Part 1614 in the NPRM contains a number of minor or ministerial changes, including substituting the word "disability" for handicap" throughout the regulation and changing the term "decision without a hearing" to "summary judgment".

In conclusion, I wanted to note that your vote today on the NPRM is to send it out to the agencies for coordination under Executive Order 12067. We expect that we will receive comments from many agencies and after considering the comments, would resubmit the NPRM package to the Commission for a vote before sending it to OMB under Executive Order 12866 and then to the Federal Register to solicit public comment on the proposed changes.

CHAIR EARP: Thank you, Kathy. We will now have questions and comments from my fellow Commissioners starting in order of seniority with the Vice Chair.

VICE CHAIR SILVERMAN: Thank you, Madam Chair, thank you, Kathy for your presentation. And I want to thank the Office of Legal Counsel and in particular Kathy and Tom Schlageter for your hard work on the NPRM before us today. I know this project has been in the works for quite some time and I think I can speak on behalf of the Commission when we say that we really do appreciate your efforts and your perseverance.

And I would be remiss if I didn't recognize the Commissioners’ Federal Sector Workgroup for their work in the development of many of the recommendations contained in the NPRM.

I want to thank you, Commissioner Ishimaru, for agreeing to and taking on this project. And I especially want to recognize Antoinette Eates, thank you. Antoinette, I know, worked incredibly hard on this project and tirelessly and put her heart and soul in it and she was joined by members of all of our staffs in the work group. That includes Steve Zanowic, from Commissioner Griffin; and Tony Kaminski from the Office of the then Vice Chair; Dick Roscio, who served on behalf of former Chair Cari Dominguez; and Naomi Levin who is with my office. And without them, we wouldn't be proposing some of the important changes we are today, so thank you all. Specifically, I believe that the proposed revisions to Section 1614 of the Regulations will certainly improve the processing of federal employees' complaints both by their own agencies and by ours, the EEOC.

And I'm also pleased that we are giving federal agencies an opportunity to experiment with new approaches of handling EEO complaints. As I firmly believe that innovation comes from experiment and that oftentimes the best ideas really do come from within. So I will not be surprised at all if through this pilot -- these pilot programs, that we will see and that they will ultimately provide us with some solutions that will help agencies going into the future.

I'm looking forward to hearing more from our witnesses today about these important proposals but, you've already talked to me and there's no other witness. I'm sorry.

Okay, you mentioned that we will now be able to review agencies' compliance with our Regulations Management Directives and the like and issue notices when compliance -- when non-compliance is found. I was wondering what sort of agency conduct will you be reviewing and how does that differ from, you know, what we're doing now in terms of compliance enforcement in the federal sector?

MS. ORAM: Well, currently there are compliance provisions in the regulation that allow EEOC toward the end of the process to review and order compliance with decisions and also with settlement agreements. But there’s no provisions specific to our reviewing and issuing notices about other compliance issues mainly having to do with agency programs. This came up, I think in part the Workgroup heard a lot of agencies or others talk about some of the particular provisions in the regulations and management directive that agencies don't -- not all agencies do comply with. One of the perennial ones is EEO Directors reporting directly to the head of the agency.

Many agencies comply but some do not. Another one mentioned by the Work Group was a requirement in Management Directive 715 that EEO Directors brief their agency heads on their programs annually, and as of 2004 I think less than half of the agencies actually were complying with that requirement. So this would allow us, EEOC, to look into these non-compliance issues and for the Chair to issue notices and try to get agencies into compliance.

VICE CHAIR SILVERMAN: Okay. The NPRM clarifies that federal employee complaints involving proposals to take personnel actions or other preliminary acts will not be dismissed if these acts were retaliatory. Could you just elaborate a bit on how this change fits in with our Commission position on retaliation and/or the Supreme Court's Burlington Northern decision?

MS. ORAM: I can elaborate just a bit. Yes, the -- right now the regulation requires agencies to dismiss complaints that allege that an agency has proposed to take a personnel action or has taken some kind of preliminary step to a personnel action. These kinds of complaints must be dismissed. And the dismissal provision does not allow for claims of retaliation that might involve proposals or preliminary steps and so we wanted to be sure that we would -- and EEOC's Retaliation Compliance Manual Section -- I mean, basically, we're making 1614 comply with our private sector guidance in the compliance manual.

VICE CHAIR SILVERMAN: Okay, thank you.

CHAIR EARP: With the Commissioners' okay, I'd like to invite Carlton to the table just in case there are other questions that might require some elaboration. Is that okay? He may have a little bit more detailed information. Thank you Carlton.

COMMISSIONER ISHIMARU: That's actually a good practice, calling up people who could answer the question. That's great.

CHAIR EARP: Well I think Kathy did just fine.

COMMISSIONER ISHIMARU: Oh, Kathy was fabulous.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. It's been a long time getting here. I remember when I first started here, the end of 2003, Chair Dominguez raised the possibility of heading up a task force on federal sector issues, and not quite knowing what I was getting into, I volunteered. And it's been an interesting process.

This started -- this work group started nearly four years ago. Our recommendations that we reached on a consensus basis, the four of us here, Commissioner Griffin coming in reasonably late into the process, but the Chair being part of the process as a Vice Chair. We worked hard to reach consensus, and reaching consensus sometimes means that what you come up with in the end isn't exactly what you do but it still works for you.

And I was pleased that we were able to work through many issues and come up with a series of recommendations now that have been there for roughly two years, nearly two years. And I'm glad we're moving forward on the regulatory piece of this.

And I guess for me, not having your experience being in the federal EEO world, Madam Chair, is what -- the one thing that I learned, the most telling thing was how important the federal EEO process is to federal workers. It's a vital piece of what we do here at this agency. And for federal employees, and I too, have been a long-time federal employee, this process is the primary tool to address discrimination in employment.

And unlike working in the private sector, federal employees don't have the ability to file complaints with state and local anti-discrimination agencies. They can't have the EEOC file litigation on their behalf and they have fewer remedies available than those in the private sector, making it harder to find private attorneys to take their cases.

For many federal workers the Federal Sector EEO Process contained in the EEOC recommendations is the only opportunity that they have to address discrimination in the workplace. And while the goal has always been for the federal workplace to be a model workplace, we know that that's not always the case and we know from the complaints we've -- we see that are filed, that we're far from that goal. And I guess one of the -- one of the conundrums that I've seen just from where we sit, is what's EEOC's role in this process? We have a role to play but EEOC itself can't do it alone. And it's a hard problem of how do you deal with discrimination on whatever basis within the federal government? Who's going to get to the nub of it? And obviously, OPM has a role, and the Administration has a role in dealing with federal employment issues and it's a very sticky wicket. It's very difficult to deal with and I think our piece of this and our regulatory changes that we're talking about here are a piece of that pie that we should move forward on but it certainly doesn't fix the issue totally. It's a start and I think that's something that we need to acknowledge at the outset.

Now, the federal government is a huge employer, maybe the largest employer in the nation. I don't know what the demographics are, but it's huge and it's reached Cari so far and I think we have an obligation as an agency to do our part in trying to deal with this.

In leading up to this meeting and in talking about federal sector reform, one thing that I found somewhat troubling in talking to colleagues here at the Agency is a misunderstanding that may be out there over the role of federal sector work and the work we do day in and day out. We have responsibility for both the public and the private sector. And I think both sides are very important. One should not be the stepchild of the other. As I mentioned earlier, this is -- our system is the system for federal employees that they need to come and to work through the system that we have a big role in.

And this is an important piece of the pie that we cannot lose sight of. And I get the sense at times that and certainly in other administrations, before you became the Chair, Madam Chair, that sometimes this was played off of private sector enforcement versus federal sector enforcement and it was seen as a closed pie and I don't think that's helpful. I think we need to look at this as a full pie that we have enforcement responsibilities, both in the private sector and in the federal sector and that it shouldn't be one vying against the other, that we should look to try to find resources to deal with the priorities that we want put forward.

Take for example systemic that I know the Vice Chair has worked diligently on in creating and revitalizing our systemic program. There's unanimous agreement that this should be a priority for this Commission. There's no disagreement about that. The money is tight, I know, but we need to find the resources to make sure that our priorities, like systemic, have sufficient resources to do the job.

I know in recent times, it's been hard to find the money to do it, but I think we need to find that the sufficient amount of money to fund the priorities that we, as a body, come to agreement on and, this past year, this current year that we're in, there's a very limited amount of money for systemic enforcement and it needs to be expanded. We need to figure out a way to do it somehow, to fund the priorities that we agree on unanimously.

So I don't see this as playing one side of the house off of the other side of the house. I think all of these issues are important and we need to figure out a way to improve federal sector enforcement as well as to keep all our other balls in the air. And as people have said to me who have sat in the Chair's seat, they say, "Well, it's hard to do", and I know it is. I know it's hard to do, but I think in the spirit of moving the Agency forward, we need to try to figure out how to do it both and it's not a question of do more with less. It's a question of how do we do it, how do we find the resources we need to make programs work in a viable manner. I see my time’s up.

Can I just close out with a paragraph or so? You know, one of the big questions that came out of our Workgroup, the Consensus Workgroup, is how to revitalize the hearing process and I was happy to learn that last week you, Madam Chair, set up a work group to deal with this issue and to deal with the whole question on dealing with the Hearings Program.

And as I understand it, the Vice Chair's staff will be chairing the work group. Kathy Oram, I've been told, is going to be chairing it, which I think is fabulous and it goes to show that people have picked up the ball and have run with it, which I think is good.

Quite often, federal sector has been -- people have been less interested in the federal sector and I think, you, Madam Chair, with your background in this area, and I know Commissioner Griffin's interest in this in leading an Investigations Work Group and my work dealing with these other questions earlier, and now the Vice Chair's Work Group, shows that, you know, this is this rare confluence of events where we have four interested parties interested in trying to figure out how to make this work and taking an active role in it.

And I'm looking forward to the workings of this Workgroup, the devil is in the details as always. I hope that the work group is able to get the information it needs in a timely fashion because quite often, you know, getting the information is hard and getting the information we need to make a reasoned decision is hard.

So I'm looking forward to this. I think we'll -- we will have success and hopefully, we will have another meeting at some point to deal with the recommendations of the work group. I have questions for Kathy, but I'll wait till the -- next round. Thank you, Madam Chair for your indulgence.

CHAIR EARP: Thank you, Commissioner Ishimaru. I look forward to getting your vote on federal priorities. Commissioner Griffin?

COMMISSIONER GRIFFIN: I, too, want to thank everyone, Commissioner Ishimaru, all of our staff that worked hard. Getting here today, Kathy, and certainly Carlton and the folks in the Office of Federal Operations that have been laboring under not only helping us work through some of these issues but also probably sitting there a lot of times wondering, "What are they doing to us and when are they going to do it"?

So I do appreciate that everyone has been sort of waiting for us to come to some decision on some of the changes that we've been suggesting over time. I think, you know, really, as I look around all of us, almost all of us sitting in this room and watching throughout this building and watching from our field offices, around the country are all federal employees who, some day, may need the Federal Sector Complaint Process and the protections that it affords.

And I think Stuart’s right, there's four of us up here that get that and we think it's important. Long before the Civil Rights Act of `64, which prohibited employment discrimination in the country, President Harry Truman issued an Executive Order in 1948 where he declared a policy of non-discrimination in federal employment. And every single President that followed from Dwight Eisenhower to Jimmy Carter, declared through Executive Orders their intent to further the goal of making the federal employment -- the federal government, the model employer.

They also made clear their beliefs that the federal wector actually deserved a model complaint process as well, culminating in the transfer of the Federal EEO Complaint Process to the EEOC in 1978 and it's my hope and belief that the decisions we make today will be just one more step towards making and creating a model complaint process.

Like Stuart, I am looking forward to the next phase of the work that we're going to do and I want to commend the Chair and the Vice Chair for establishing another work group that will focus on how we develop some recommendations around the hearings process and the administrative judges and this Agency and how that could be structured.

I'm very pleased to move forward with the NPRM that's before us. It provides for several really positive changes that we heard Kathy talk about. Again, a lot of people worked on this and this is a piece of that, that's -- that I think will be realized today.

It's my hope that when we require agencies to provide complaint files electronically and to issue notices to employees when the agency fails to complete an investigation within 180-day time limit, informing them of their right to request a hearing, that it will result in improving timeliness and efficiency of complaint processing. I think providing the 90-day time limit for the issuance of Commission decisions on class certification appeals will expedite one of the most important steps in the class complaint process that will benefit many employees who are members of those classes being subjected to systemic discrimination.

The pilot program variance is especially useful and it's a tool which will help us provide agencies who do wish to explore other means of processing complaints, the ability to do that with the approval of the Commission and it sets out specificity about the requirements that we will expect before a pilot program is actually proposed to us. It provides for Commission approval and oversight of the project with the expectation that the agency will provide regular reports to us on the implementation. I want to thank the Chair for providing that any proposed pilot program will be reviewed and voted on by the Commissioners and I believe these pilot projects can provide useful information that we can actually look at, too, about future changes that we may want to make. It really will give us the impetus to look at things differently and I think that's always good.

But I also believe that our regulatory process is too important to have not -- to not have the direct input of Commissioners here at the EEOC whoever they may be at the time and any changes made to the process by an agency even if it is on a temporary status. I think it's very important that we're involved.

I think these are all important steps that we're making again to this soon to be hopefully model federal complaint process. And I look forward to continuing the work with the Office of Federal Operations to explore ways to improve the investigative process by the agencies. A lot of you know, this is something that we've been working on.

We're still working with the stakeholders in this process to come up with a set of recommendations to give to the Chair that we hope will advance the timeliness and quality of agency investigations. This is, again, just another piece of that federal sector puzzle that this piece along with other efforts, we hope will help us really improve all of the complaint process and really give federal employees the administrative complaint process that they justly deserve. So I look forward to working with all of you on this as we go forward and I appreciate the opportunity to say all of that.

CHAIR EARP: Thank you, Commissioner Griffin. A second round of questions and/or comments, Vice Chair?

VICE CHAIR SILVERMAN: I'm going to pass and let Stuart.

CHAIR EARP: Commissioner Ishimaru?

COMMISSIONER ISHIMARU: You're going to yield me your time, Madam Vice Chair?

VICE CHAIR SILVERMAN: No, I didn't say that.

COMMISSIONER ISHIMARU: Fabulous, thank you. Kathy, a couple of questions, either you or Carlton may be in the best position to answer. You talked about the notices from the Chair to agencies about whether they’re in -- or non-compliance, I guess. Will these notices be made public?

MS. ORAM: Gosh, I don't know if I -- I don't know that we've considered that and I don't believe that there was anything in the Work Group report --

COMMISSIONER ISHIMARU: That dealt with that either way, right.

MS. ORAM: -- that dealt with that, yeah.

COMMISSIONER ISHIMARU: You know, it's one of these hard questions, I guess, of how do you stimulate compliance but yet how do you try to move it forward as well, and that's something that we should think about, how do you best do that, how do you come up with the result that you want, that there is compliance. So you know, whether it's a notice or whether we publish it in our annual compilation of statistics of the status of the federal workforce we should be thinking about that.

You know, the whole variance and pilot project issue, I think, is interesting because quite often agencies are in a good position to tell us what works best for them and can come up with systems that work. Have pilots been done to date?

MS. ORAM: I believe we have had some experience with some pilots and

I'm going to turn the microphone over to Carlton because he knows much more about them than I do.

MR. HADDEN: There have been some pilots which have been done and while currently there is a Congressionally authorized pilot with the Department of Defense, Floyd D. Spence, and that's the most -- I think it's a concluded pilot now. Prior to that, the Department of Navy, I think, had a pilot which it involved itself in.

COMMISSIONER ISHIMARU: So was this created legislatively, do you know, or did it -- was it just done?

MR. HADDEN: The Floyd D. Spence was a Congressional Act which authorized DOD to have an alternative process basically, you know, and I'll defer to certainly to Kathy, but the requirement that there be a hearing was not a feature of that program. They have their own program without a hearing.

COMMISSIONER ISHIMARU: Right, so this is in the DOD Authorization Bill that happens every year. Do you know if those provisions are still in force or not?

MR. HADDEN: I think that they are concluded. They're now in the process of evaluating the results of that pilot.

COMMISSIONER ISHIMARU: Which led me to my next question but they're in the process of evaluating so we have not seen the results?

MR. HADDEN: Well, we have received results from the Government Accountability Office. They were charged with looking at the pilots but also I think DOD is going to conduct its own evaluation which, I don't believe we've gotten a copy of that yet.

COMMISSIONER ISHIMARU: I see. And do you know -- having worked on past DOD Authorization Bills, do you know if there are provisions in this year's DOD Authorization Bill for I guess fiscal 2009 that would have a pilot program for any part of DOD or, for that matter, whether there's any legislative activity for any other government agency to create a pilot?

MR. HADDEN: I am not an expert on DOD legislation and authorization. I know that the DOD entities have found that pilot very interesting and I think they've been interested in getting it renewed.

COMMISSIONER ISHIMARU: Did we, at the EEOC have a role in this pilot

program? Did we evaluate it, did we monitor it? Did we -- were we consulted at any point?

MR. HADDEN: We were consulted. DOD came over at the beginning to talk about what they were thinking about, the criteria they were looking at but that was the extent of their role. There's been no monitoring, no evaluation.

COMMISSIONER ISHIMARU: Okay, I would hope that if this does get put into regulatory force that, you know, we find some way to make sure that these programs are evaluated on an ongoing basis. You know, there's that delicate balance between too heavy a hand that would stifle creativity but on the other hand, we want to make sure that the programs are being run in a vigorous manner and that rights are respected and that enforcement does happen.

So I think as the regulatory process goes forward, we need to keep that in mind. With that I'll yield back before the light turns red.

CHAIR EARP: Excellent. Commissioner Griffin?

COMMISSIONER GRIFFIN: Kathy, I have a question about the section of the NPRM that talks about, you know, the Commission reviewing programs for compliance and the Chair being able to issue a notice and then the second proposed part of that which says, you know, the Commission intends to provide a mechanism for reviewing so you're in compliance, that failed to comply with, for example, requirements of 110, 715 and 1614.

Would our Management Directives and Bulletins have the same force and effect that our regulations have under this added provision which would require agencies to comply with the management directives? So could our AJ's for example, or our appellate attorneys cite a failure to follow our management directive, our management bulletin, in a ruling against an agency, citing this new provision?

MS. ORAM: Well, Section 717 of Title VII directs that agencies must comply with regulations, rules and directives issued by EEOC. So I think we've always been of the view that our management directives and bulletins do have an equally binding effect on agency programs, equally effective as regulations and they're listed together in the statute. And I think that's probably the -- as far as I can go with an answer. I don't know that we've thought about further, you know, citing of these -- I mean, I don't know why we shouldn't.

COMMISSIONER GRIFFIN: So even currently, so we don't even -- this doesn't even strengthen it. It's -- if we don't do it now, it's our choice not to do it is pretty much what you're saying?

MS. ORAM: Well, I'd like to think that this would strengthen it and put agencies more on notice that we'll be looking for -- at program compliance and that there is this mechanism for a notice from the Chair to address non-compliance issues.

COMMISSIONER GRIFFIN: And I thought we always had that as well. I guess I'm saying, you know, beyond even a notice from the Chair, you know, shouldn't this be something we're citing and saying, you know, "You didn't follow these rules".

MS. ORAM: I don't know any reason why we couldn't.

COMMISSIONER GRIFFIN: Okay, Carlton, this may be premature, but is there any thought t

o how we would insure that the class or appeals would be dealt with within that short time frame?

MR. HADDEN: Well, we've certainly tried to make sure if it's a priority, we'd just expedite the handling of charges and complaints, so we would give it quick attention. How we would do that, the way we try to do everything else, juggle a little bit but make sure that we have to strike a nice balance but for those expedited appeals we try to make sure we move them quickly.

COMMISSIONER GRIFFIN: Okay, thank you. Thank you.

CHAIR EARP: Vice Chair, anything? Commissioner Ishimaru?

COMMISSIONER ISHIMARU: Thank you, Madam Chair. Let me follow up on Commissioner Griffin's last question. The other night I was having dinner with a friend who was telling me that she was working on a case involving federal employees against their agency that dated back to 1973, I think, that was still active, still ongoing. And you know, when I talked earlier about passage of time, never in my mind did I envision that we'd have cases going on that date back that far.

And when you talk about class complaints, one of the recommendations that came out of our work group, came out on a consensus basis was to have expert administrative judges, those with the needed training and experience to handle class complaints so you have a body of expertise there and this will make it possible, I think, for the Office of Federal Operations to expedite the class certification discussions.

I hope, Madam Chair, that we're able to deal with this issue some time in the near future. I think it's an important piece of the pie that we should not let go, that these things need to move forward in a timely fashion. And because we were able to reach consensus in our work group, a consensus that the four of us came to, and I know you, as Chair, sit in a different position than being the Vice Chair and we appreciate that, but that this is an important piece that we should not let fall by the wayside.

So I'm hopeful that in some form in the near future, that we'll be able to deal with that issue as well, and I just -- you know, I hear the frustration of federal employees when they see something happening on a class-wide basis, that they should have recourse to redress and that as we've talked many a time, both in the public sector and in the private sector, how does the EEOC have as much bang for the buck, if you will, that we can bring the important cases, that we will move the important cases along that impact large numbers of people and I think that the class certification issue is an important one that we should try to address while we have a consensus that it needs to be addressed.

I think this is one of those rare moments where we should be dealing with it. So with that, I thank you, Madam Chair.

CHAIR EARP: Thank you. I would like to bring the discussion to a close but will ask one final time at some risk that we won't be able to bring it to a close right now, are there any further questions or comments?

COMMISSIONER ISHIMARU: Can I make one final comment? I just want to -- I think the piece on the ADEA Statute of Limitations makes good sense. That it sets out a fair Statute of Limitations and again, Madam Chair, I commend you and your staff for, you know, going the good way on this. This is the right thing to do and we want to make sure that federal employees who have an ADEA claim can bring it and so they aren't precluded by arbitrary time limits that weren't intended. I think this will go a long way towards improving that.

So again, Madam Chair, I commend you.

CHAIR EARP: Thank you, Commissioner Ishimaru. Vice Chair, Commissioner Griffin and again, Commissioner Ishimaru, I think that it is clear we are all in agreement that we need to spend some time and attention, put some focus on the federal sector. We, perhaps, are not able to move as quickly as we would like or as comprehensively as we like, but we have it as a priority and we move methodically pushing forward.

With that, I ask, is there a motion to approve the Notice of Proposed Rule Making Federal Sector Regulations 29 CFR Part 1614?

COMMISSIONER ISHIMARU: So moved.

CHAIR EARP: Is there a second?

VICE CHAIR SILVERMAN: Second.

CHAIR EARP: Is there a discussion? Hearing none, all those in favor, please signify by saying aye.

(Chorus of Ayes)

CHAIR EARP: The ayes have it. This item is approved, three votes in favor -- four votes in favor, none against. I count myself in the ayes.

COMMISSIONER ISHIMARU: I thought you were announcing an abstention.

CHAIR EARP: No, no, no, abstentions. Now that we have voted to approve the regulation to allow agencies to conduct pilot programs, I want to make sure that we are in agreement regarding the manner in which the Commission grants authorization. Per the regulation, the Agency shall address the request for variances to the Director, Office of Federal Operations, to OFO. The Director submits the request with his or her recommendation to the Executive Secretariat for distribution to the Commissioners for the Commission's consideration. Subsequently, the Commissioners will vote on whether to approve the requested variance.

Again, I want to thank everyone here for joining us today. We appreciate your interest in the federal sector. There being no further business, do I hear a motion to adjourn the meeting?

VICE CHAIR SILVERMAN: So moved.

CHAIR EARP: Is there a second?

COMMISSIONER GRIFFIN: Seconded.

CHAIR EARP: All in favor? All in favor?

(Chorus of Ayes)

CHAIR EARP: Opposed? The ayes have it. The meeting is adjourned, thank you.

(Whereupon, at 2:52 p.m. the above-entitled matter concluded.)

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