Remarks of Elizabeth Lytle, Director of EEO Counseling and Special Projects, DSZ & Associates, Inc.

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

I. Introduction

Thank you and Good Morning. My name is Elizabeth Lytle. I am a senior member of DSZ's staff and currently serve as the Director of EEO Counseling and Special Projects. I am also a Senior Case Manager on Investigations. In my more than 20 years at DSZ, I have conducted and supervised thousands of federal sector EEO investigations for more than 50 federal agencies. On behalf of DSZ, I thank you for the invitation to testify before you today as the Commission considers ways to strengthen the quality and timeliness of federal sector EEO performance.

DSZ is a 100% women-owned small business and has been conducting EEO investigations for more than 25 years. As a profit-making, private sector firm who is wholly committed to civil rights work, we constantly consider the best ways to efficiently produce timely work of excellent quality. The challenges of balancing a commitment to excellence and remaining cost-competitive face us daily and, for this reason among others, we have given considerable thought to how to do the work and to how the Equal Employment Opportunity Commission can help agencies, contractors, and EEO-system users improve performance. We appreciate the opportunity to share our thoughts on the following topics:

• How the Commission can affect the quality of EEO investigative work purchased by federal agencies
• How to improve the quality and timeliness of investigations
• Whether the current system of investigations conducted by agencies either internally or through contractors is affected by conflict of interest.

II. How the Commission can affect the quality of EEO investigative work purchased by federal agencies

A few agencies conduct their investigations using full-time internal staff (Post Office and DOD for example). Many agencies, however, purchase EEO services using the GSA Supply Schedule 738X for Human Resources and Equal Employment Services. The Commission could greatly improve the quality of contractors represented on the Supply Schedule by working with GSA to improve technical standards for entry onto the list of approved contractors. The Commission could also review and rate samples of contractor work annually and provide GSA with a Report Card on whether the reviewed work meets reasonable performance standards. The Commission could encourage GSA to solicit evaluations from all agencies using contractors and to publish the results of these evaluations. This would create incentives for contractors to provide competent and timely work and it would set standards for what constitutes a qualitatively acceptable investigative record.

We recommend the Commission review the GSA Supply Schedule statement of work to make sure it is properly updated to reflect changes in the regulations governing investigations and/or relevant Commission guidelines affecting investigative work. For example, the Commission's changes in the amendment process reflected in the 1999 revision in the "1614" governing regulations has had an impact on investigative work, increasing the burden on investigations to be flexible in response to complaint amendments, yet the GSA Supply Schedule has no provision for agencies to amend pricing to reflect the continued acceptance of new amended issues during the course of an investigation. Time is often wasted as agencies figure out how to assign and price amended issues in order to add them to investigations in progress. In addition, the GSA Supply Schedule’s definition of what constitutes an investigation has not substantially changed for more than 10 years. Other models suggested by MD-110, such as fact-finding, exchanges of position papers and other models for investigation, are not contemplated in the definitions or pricing structure of the Schedule, thereby limiting Agency ability to use these options under the Schedule. Accuracy and consistency of the Supply Schedule definitions with the regulations and the Commission's guidelines will improve the quality of products purchased through this vehicle as would any Commission in-put into setting standards for contractor performance.

III. How to improve the quality and timeliness of investigations

The quality of investigative work would be improved by the development and publication of uniform standards for each relevant, required product that affects the investigative record. All those who work within the federal sector EEO investigative system understand the snowball effect of each step of the process: improved counseling reports should lead to improved letters of acceptance which, in turn, should help focus investigations and result in better Reports of Investigation. Expanded MD-110 standards, examples, and training in writing counseling reports and letters of acceptance, including clearer guidelines from the Commission with regard to supporting properly utilized expedited dismissals, should help improve the ultimate investigative product.

Administrative Judges see thousands of EEO investigative products and are in an excellent position to identify the impediments to providing complete records. Perhaps an AJs’ committee could gather and publish feedback on common and repetitive problems with files as well as on best practices in files. Their opinion, as with the opinion of the Commission, receives great deference in the EEO professional community, and their insight would be respected and appreciated. We know the Commission sponsors an extremely well-received federal sector conference annually. Perhaps committing a special "track day" that addresses investigative best practices would be a way to stimulate an annual discussion on how to continue to improve the quality of investigative files.

An area where the Commission's guidance has been helpful has been the addition in the Compliance Manual, in July 2005, of Revisions to Threshold Issues, addressing the impact of National Railroad Passenger Corporation v. Morgan, 536 U.S. 1001 (2002), on determining the timeliness of issues.

We find continued confusion over definitions of and standards of proof for harassment and hostile environment claims, however. This can lead agencies to accept poorly-articulated claims which in turn has an impact on the quality of the ensuing investigation.

A frequent complaint in the federal-sector EEO process is that complaints which are frivolous, or lack merit, clog the system. (In FY 2005, only 5.1 % of the decisions issued by EEOC Administrative Judges included findings of discrimination.) According to EEOC’s FY 2005 Report, the top issue in federal complaints was non-sexual harassment . Twenty five percent (4,550 of the complaints filed) included a claim of non-sexual harassment. This trend has remained unchanged for the past five years. The vast majority of these non-sexual harassment claims do not involve classic examples of hostile work environment claims, that is, overt physical or verbal conduct, racial epithets, etc. Rather, they involve allegations of discrmination in the supervisory monitoring of employee performance, time and attendance, and conduct. Frequently there is no demonstration that the employee suffered an actual injury or that the terms, conditions or privileges of employment were altered because the harassment was sufficiently severe or pervasive to create a hostile work environment. Additionally, harassment complaints are very time-consuming to investigate, and frequently involve multiple amendments, as new incidents, which the complainant considers to be harassment, arise. The high volume of harassment complaints impacts directly on an agency’s ability to control the timeliness, quality, and cost of investigations.

Good training and precise knowledge is required to properly frame such complaints; additionally, time spent on training staff and writing precise letters of acceptance is competing with both other workload issues and the ticking of the "180" day clock. We believe that with the application of a uniform standard on what complaints “state a claim,” diminishing investigative resources can be spent on complaints which do, in fact, state a claim of illegal discrimination.

The Commission knows that even a 10% drop in claims would have a huge impact on both the Commission's workload and on agency workloads. Improved understanding of claims will result in increased but ethical and equitable expeditious dismissals at perhaps the level of a 10% decrease in accepted claims. The Commission has properly provided the means for such dismissals in the "1614" regulatory provisions. Agencies must truly understand how to use these tools and must know they can depend upon the Commission to train them in such usage and to support them when they properly perform these functions. It is in the interest of complainants, as well as the Commission and the agencies, that scarce resources be directed to viable claims. Even contractors like us would prefer to see fewer and more precise claims though it might well cost us work!

In addition, we believe that the following improvements would result in a demonstrable increase in the quality and timeliness of investigations:

1. Reduction in delays between agency receipt of complaint and the issuance of letter of accept/dismiss. Agencies generally take between two weeks and six months to issue a notice of acceptance. As the EEOC’s Office of federal Operations pointed out in its June 23, 2004 report to federal agencies, high levels of inefficiency and delays in issuing letters of acceptance can result in serious time and cost ramifications. Delays in issuance of the letter of acceptance severely reduces the time for the investigation and agency review of the file for quality control, and may actually cause the investigation to exceed the regulatory time frames.
2. Enforcement by agencies and the EEOC in the legal requirement, under 29 CFR 1614.102(b)(6), that employees cooperate in the investigation and provide requested testimony and documentation in a timely fashion. This means that EEO Directors must have the authority to compel agency employees to cooperate in the process. Agencies should include cooperation in any official investigation as a requirement in the standards of employee conduct and discipline employees who refuse to cooperate. While the EEOC’s regulations specifically require that the EEO Director shall be under the immediate supervision of the agency head, only 70% of federal agencies (with 100 or more employees) actually are. And our experience is that a fair number of EEO offices do not have the authority (or perhaps the support) to compel the testimony of reluctant or uncooperative witnesses or ensure that the investigator receives the necessary documentation in a timely manner. This has huge implications for both the quality of the investigative record and the ability of the investigator to complete the investigation in a timely fashion.
3. Specific guidance and training from the Commission on the use of the variety of fact-finding models and devices available for investigation, to include identification of the types of claims that lend themselves best to each model and to the incorporation of a dispute resolution plan. Too often federal agencies adopt a “cookie-cutter” approach to investigations, when a thorough review of the circumstances under which an allegation of discrimination occurred amd a comparison of the complainant’s treatment with that of similarly situated employees might be accomplished through a variety of fact finding models, such as straightforward requests for and exchanges of information. The use of “mini-investigations” and other alternatives to the standard investigastive process, where approporiate, can save valuable time and resources for our agencies.

We know the Commission's resources are stretched to and beyond reasonable limits, but its engagement in setting standards for the investigative process through which so much of federal sector EEO investigative work is purchased would be an investment with tangible and swift results in the up-grading of the investigative product. We, and other reputable contractors, would welcome seeing standards set for the performance of this important work.

IV. Whether the current system of investigations conducted by agencies either internally or through contractors is affected by conflict of interest

One of the long-standing complaints about the current federal-sector EEO process is that an EEO investigation conducted by the agency itself lacks impartiality and credibility, akin to "the fox guarding the chicken coop." We understand that some advocates believe that contractors, who receive their payments from the agency and are selected by EEO offices, may be influenced by the agencies that, after all, pay them. We have worked with more than 50 federal agencies for more than 25 years. We have found, overwhelmingly, that, at the investigative stage, agencies do not interfere with fair investigative practices or attempt to influence the content of the investigative record.

However, we do believe that it is important that agency EEO investigations be controlled by the investigator, and not by agency managers or in-house counsel.

We have encountered, in a few agencies, some practices we don't agree with, and we do think these practices create the appearance of an agency conflict of interest. In a few agencies, management representatives or legal counsel are involved in determining who the relevant witnesses are and which witnesses may be contacted. In-house counsel have required that management interviews not be taken under oath or affirmation and then “vet” all management affidavits and documents before they are provided to the investigator. This apparent conflict of interest conveys a message that the agency is not interested in generating a full and fair record in order to meet its obligation of determining whether discrimination occurred, but is in fact "skipping" the neutral phase of the process and going right to "defense" mode. We would certainly support the Commission's restricting this practice.

That said, we do want to reiterate that most agencies support fair and complete investigations and take real pains to insure they receive truly neutral files.

CONCLUSION

The Commission's guidance to federal sector EEO professionals, including contractors, is welcome and respected. As our testimony indicates, setting and clarifying standards, sponsoring best practice forums, and publishing Commission positions on key substantive issues such as non-sexual hostile environment claims, helps increase the quality and consistency of investigations. Strong Commission in-put into the technical and quality criteria of the GSA Supply Schedule or any other technical contract vehicle might help keep the discussion of what constitutes competence in federal sector EEO performance vibrant and competitive. We appreciate the opportunity to share some of our ideas and concerns and thank you for inviting us.

This page was last modified on September 6, 2006.