What’s Equal About the Equal Employment Opportunity Commission (EEOC)?
The Civil Rights Act of 1964 (Title VII) created the Equal Employment Opportunity Commission (EEOC). The EEOC is to explain and apply federal laws barring workplace discrimination. However, many workers say the federal agency flops at achieving its mission. As President of The Coalition for Change, Inc. (C4C), an advocacy group with individuals harmed due to federal workplace discrimination, I often hear about the EEOC’s shortcomings. Present and former federal employees repeatedly raise the following three concerns that prompt the question: “What’s equal about Equal Employment Opportunity Commission (EEOC)?
1. The EEOC Unequally Applies Federal Sector EEO Complaint Guidelines.
The EEOC’s Federal Sector Equal Employment Opportunity (EEO) complaint guidelines are in the Code of Federal Regulations (CFR). Specifically, 29 CFR 1614 sets the guidelines federal employers and federal employees are to follow when one raises an employment discrimination claim. However, the EEOC enforces the guidelines lopsidedly.
For example, the EEOC’s guidelines require agencies to investigate and issue a report to the complainant “within 180 days” of the complaint filing. Yet, agencies commonly ignore the 180-day fact-finding requirement; and the EEOC commonly ignores when agencies fail to comply. Notably, the Office of Special Counsel (2015) wrote: “. . . 50 % of civil rights complaints filed against high-level USDA Agriculture officials were not acted on the legally required timeframe.” The EEOC is fully aware that a double standard exists. According to a Government Accountability Office (GAO) 2009 report, an EEOC Commissioner once admitted “complaint would be dismissed if a complainant missed any of the deadlines” (GAO-09-712, Equal Employment Opportunity, August 2009, p.12).
2. The EEOC Routinely Fails to Refer Discrimination Cases For Disciplinary Action.
In 1988, the EEOC created a Memorandum of Understanding (MOU) with the Office of Special Counsel (OSC). The MOU states: “the EEOC shall refer to the OSC enforcement action cases in which the EEOC finds that an agency or an officer or employee thereof has discriminated against any employee or applicant for employment.” The C4C spoke with EEOC’s Carlton Hadden, Director-Office of Federal Operations, about the enforcement agency’s failure to use the MOU. In reply Director Hadden, said the “EEOC does not have the authority to discipline.” However, Hadden said: the “EEOC has the authority to refer cases to the OSC for potential employee disciplinary action. The C4C made a Freedom of Information Act (FOIA) inquiry to both the OSC and the EEOC to assess how often, if at all, the EEOC referred cases to the OSC. The C4C uncovered the “enforcement agency” had made “0” referrals to the OSC for the period of inquiry.
3. The EEOC Unfairly Subjects Its Workforce to Hearing Judges Under Its Paid Control.
Federal employees in the Executive Branch may request a hearing with an EEOC Administrative Judge to rule on discrimination claims against their employer. But, what if your employer is the EEOC? The EEOC says independent administrative judges preside over hearings for its employees. In fact, the EEOC’s website states: “EEOC maintains interagency agreements for adjudicators at other agencies to handle the hearing requests of EEOC employees.” The EEOC’s public statement; however, sorely conflicts with the agency’s practice. According to the EEOC’s internal handbook, the EEOC pays Contract Administrative Judges to hear claims lodged against it from employees and applicants for employment (EEOC, Employee’s Guide to the Commission’s Internal EEO Programs, p. 15).
Against all odds, former EEOC Administrative Judge Elizabeth Bullock successfully filed and won a retaliation claim against the EEOC (Bullock v Berrien). Bullock, however, expresses deep concern about the EEOC’s use of contract judges. She says, “If the contract attorney wants a permanent relationship with the EEOC, he or she will do what the enforcement agency wants it to do regardless of the case merits.”
Given the serious concerns EEO practitioners, federal employees, and others raise about the enforcement agency, the Coalition For Change, Inc. (C4C), recently launched its #EXPOSEEEOC campaign. The campaign focuses on promoting accountability with in the EEOC and is discussed further at https://www.exposeeeoc.com/