vicarz: (DL)
[personal profile] vicarz
The first hearing I did was in 2006.

In the Federal government, EEO is different than in the private sector. In the private sector, you can go to the EEOC and claim discrimination - they choose whether or not to investigate, find discrimination, litigate, and determine remedies. You can also go directly to court and file a lawsuit, but it's difficult to do without a lawyer. Employment law generally requires paying the lawyer up front - it's not like car crash contingency fee ambulance chasing lawyers you see advertising on daytime tv.

In the government, every Agency is required to have a civil rights department that reports to the head of the Agency. Employees are not allowed to go to court with an EEO claim; they have to "exhaust the administrative process first." This is defined by the following process: call a counselor with the civil rights group to start the complaint process (within 45 days of the act they claim was discrimination, or they found out reasons an older act was discriminatory). The counselor explains their rights, and conducts an investigation over the phone to ask the other side's (i.e. their supervisor) version of events. The counselor then reports back to the employee what they found, and asks if they want to "go formal." The answer is invariably yes.

Another part of the regs requires diversity programs for each Agency as well - endlessly. Think of it, in 20 years of my career there were a minimum of 20 black month presentations, azn month, women's, latino, native, disabled...take the hundreds of people heavily encouraged to go (they're not allowed to say mandatory, but they count) and multiple the lost time per hour for the cost for...what? Ironically since there isn't much to say, the presentations tend to involve dance numbers and old-fashioned costumes - in other words, cultural stereotypes that would be racially insensitive if other people put them on. Again, these costs to all Fed Agencies are not recorded in the EEOC's budget, but failing to abide by their mandates would result in "violations." (/end sidetrack)

When an employee decides to go formal, an outside contractor is hired to do an investigation ($$$). They gather documents they think are relevant and do phone interviews of all known witnesses and the complainant (now called "aggrieved person," or AP, which is offensive because the claim is unproven while aggrieved implies wronged). The evidence collected is put in a file, 2-500 pages on average, and provided to the complainant (the quality is often poor, as the government is required to take low-bidders to "save money)." The employee is then allowed to review the evidence and choose whether to continue their case; invariably they do. They then choose either a hearing by the EEOC or to ask the Agency staff to review the evidence and issue a Final Agency Decision (FAD) - appeal rights if they don't like the FAD below). Minor note - at any point in the process they can also select to go to "mediation," which is settlement negotiations.

Only when they ask for a hearing do they potentially have to lift a finger - up to this point with the thousands of dollars in direct costs and thousands more in payroll hours, they have only invested 20 minutes to 2 hours - all orally. When they request a hearing from the EEOC, an Administrative Judge issues an Acknowledgement and Order, which starts the discovery process. While the complainant has a right to pose questions, request documents, and depose witnesses - most don't, because they generally expect someone else to run out and find the discrimination for them - or they just figure they'll bully people into paying them off. This is where I come in - I engage in discovery, making them explain their claim, tell me what allegedly was discrimination, why they think it was, what evidence they know of, and who witnessed any alleged events. When faced with having to work, a lot of employees drop out of the hearing process.

When discovery is over, a pre-hearing conference is held in which the EEOC AJ determines what evidence will be heard, what witnesses will testify, and then holds the hearing. The AJ then issues their decision, which is issued to the Agency and the employee. The Agency then, 99% of the time, issues a statement saying they accept the finding of the EEOC AJ, and issues a final order with appeal rights to the Office of Federal Operations (EEOC-OFO). Once OFO rules, an Agency is not allowed to appeal, but the employee can appeal to "real court."

EDIT NOTE - FIND STATS OF DISC IN HEARINGS FINDING (4% ? ) and note reasons (no evidence, inference, procedure, "credibility" )
Agencies that go to hearing win >96% of the time, and that's even with these highly biased AJs on snipe hunts. How biased do you ask me presuming I am also holding a bias? I know of an AJ that an Agency actually reported to the EEOC in a complaint because she is so famous for ruling against Agencies based on "credibility determinations" (which can't be overturned even if evidence proves the Agency should have won otherwise).

Further proof the claims of discrimination are crap? The 3rd most accused Federal Agency is the EEOC itself!

The "good" part for the employee is they can get thousands of dollars in payroll and contracting costs spent for a full investigation, plus this can be used to harass their supervisory chain of command as it easily takes 40 hours of their time away. Then, whenever you file again, you also claim harassment for having used the EEO process. There are employees who file dozens of complaints. You can engage in harassment, shield your misconduct, and overtly engage in other types of misconduct in the EEO process - and be immune to prosecution. I've heard of people going into confidential mediation and openly admitting they knew there wasn't discrimination, but this was the best way to get what they wanted. Also, the EEO AJs are generally people interested in civil rights in the sense they expect to find discrimination, and like a snipe hunt, they do - rarely with any evidence of actual discrimination, but usually based on procedural problems or far-out inferences and credibility determinations. Ask a racist to rule on a he-said she-said scenario and see what result you get. Also, the entire process is designed to work without lawyers - employees represent themselves all the time, and Agency Representatives don't have to be lawyers (though they often are).

The down side is the Fed employee can't just go directly to court and sue the government. I don't see this as much of a downside as most pro-se litigants don't last a week in real court, and the judges are not as biased.

The cost to the taxpayers? The benefit?
p 61, Fed Sector cost $52 million. Note that's JUST the EEOC's budget, and they require all Agencies to maintain a full civil rights staff - billed to each Agency.
"The EEOC also secured ... $74 million in monetary relief for federal employees and applicants"
In this figure they note settlement / mediation money, which is often paid per nuisance value as it's so expensive to litigate these things. In our Dept. there is a mediation push, throwing $5k at anyone that will drop a charge because it costs $15k to investigate (and more to litigate). They claim this as a cost savings in their performance metric, when of course people who file often have filed and will file again - so they're inspired to file more claims to make more money. I would argue at these rates the return on taxpayer money spent, even if you consider deterrent effects of discrimination findings, it's not worth it and the entire program should be scrapped.

42.8 percent of all charges filed were "retaliation," which the EEOC claims is proof of discrimination! Instead, I postulate that the real issue is the same people file eeo complaints over and over again, and just as blindly as they check every box available for race, sex, NO, religion...they also claim retaliation BECAUSE THEY FILED BEFORE AND WILL AGAIN.

I recently had a coworker who felt she might be a victim of discrimination, but she didn't want to file charges because she didn't want to be associated with the creeps that were known to file discrimination claims. That's a statistic, the stigma of the free reign of eeo abusers, that the eeoc is unlikely to capture in their measures...never mind the outright waste that is obvious on review of their reports.


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