Recommended Changes to EEOC Regulations and Procedures
This is the second of two articles on suggested changes to the EEOC federal sector regulations and procedures. Given the upcoming change in administrations, this article will recommend specific changes to improve the practice and procedure in handling federal employees’ complaints.
To save its limited resources, the EEOC should adopt a uniform standard of what is necessary to state a claim for employment discrimination although an employee is no longer required to state an adverse employment action where reprisal is alleged as a basis. Burlington Northern and Santa Fe Railroad v. White, 548 U.S. 53, 67-68 (2006). Assuming that the agencies continue to process cases, which the first article recommends against, if an agency rejects a complaint for alleged failure to state a claim, there should be an expedited review by an administrative judge (AJ) rather than the EEOC Office of Federal Operations.
Agencies or the EEOC, whichever will be responsible for EEO investigations, should be required to issue a 180-day letter informing employees of their right to request an EEOC hearing although the investigation has not yet been completed. If agencies continue to investigate complaints, they should be required to pay for the complainants’ discovery if the investigation is not completed within the 180 days.
The quality of EEO investigations should be subject to much greater scrutiny, especially if agencies continue to investigate complaints, and the EEOC should issue minimum standards for EEO investigators and their investigations. Often contract investigators fail or refuse to contact complainants’ witnesses and/or don’t allow complainants to submit a rebuttal affidavit to be included in the EEO Report of Investigation (ROI). This results in a subpar investigation which greatly hampers employees in subsequently litigating their cases and increases the cost of discovery. AJs should routinely issue sanctions forcing the agencies to pay for the cost of additional discovery where the EEO ROI is inadequate, as is often the case.
Once a case is docketed, the case should be assigned to one of three litigation tracks depending upon the complexity and detail of the issues involved after input from the parties. Now, all AJs in each EEOC office issue the same acknowledgment and order, including a fixed time to complete discovery, rather than considering the complexity of the case, the number of issues, and the length of time necessary to adequately litigate the claims. Most district courts use litigation tracks, and simple cases should be assigned to a fast track when little to no discovery is required. Most cases will fall under the standard track where the issues are limited and there is a need for moderate discovery. The complex track would be reserved for cases with multiple issues, including amended complaints and class actions, where there will be a need for more discovery over a longer period of time. The use of litigation tracks should reduce the number of motions for extensions under the present system and result in more realistic litigation schedules.