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The head of the Equal Employment Opportunity Commission (EEOC) is considering a proposal that would sharply change how 3 million federal employees pursue workplace discrimination complaints. Cari Dominguez, chairwoman of the EEOC, is looking for ways to streamline a clogged system. The proposal would create a process for federal employees similar to the one for the private sector. But critics argue that the proposal would eviscerate the system, leaving employees with little recourse but overburdened federal courts, where workers will be hard-pressed to find lawyers who will take their cases on contingency. Currently, a worker who complains of a workplace problem is offered counseling or alternative dispute resolution. If the dispute isn’t resolved, the agency investigates and issues a report. The employee can take the report to the EEOC, which may investigate further, after which the employee can request a hearing before an EEOC administrative judge. Dominguez is weighing a proposal to eliminate the requirement that agencies investigate complaints and to abolish the administrative hearings. After counseling and attempts to resolve a dispute, employees would be left with these options: Taking a complaint straight to the EEOC, which can investigate, find discrimination and order relief; suing in federal court; or both. Though the proposal is preliminary and has not been formally adopted by the commission, a copy has been obtained by critics who are concerned about both the proposed changes and the quiet manner in which they’ve been promoted. “This would be the most significant change to federal sector civil service employment since the passage of the Civil Service Reform Act of 1978,” said Joseph Kaplan, founding partner of Washington, D.C.’s Passman & Kaplan, a plaintiffs’ firm that often represents federal employees and has spearheaded an effort to defeat the proposal. Gary Gilbert, of counsel to Kaplan’s firm and until recently the longtime chief administrative judge in the EEOC’s Baltimore district office, said of the administrative hearing the proposal would eliminate: “It’s one of the most significant rights that federal employees have.” MERELY A ‘WORKING DRAFT’ Dominguez declined to answer questions about the proposal. EEOC spokesman David Grinberg acknowledged that she is determined to change the system. However, he called the proposal “a working draft” that is merely one of several ideas under consideration. “We’ve made incremental progress in the past, which has helped to improve the process,” he said. “But it still takes way too long to resolve the typical EEO complaint.” From filing to resolution, the average case in 2001 ran longer than 15 months, he said. An appeal can double that. Private sector complaints are processed in less than six months. “The federal sector is in need of an overhaul, and EEOC has been looking at all options to further streamline the process,” Grinberg said. Joe Henderson, an attorney at the American Federation of Federal Government Employees, argued that the EEOC isn’t funded or staffed to handle its current workload. Adding cases once investigated by the employees’ own agencies will only make matters worse. He called the proposal “penny wise and pound foolish” and “an effort to take back rights from federal workers,” including the 600,000 represented by his union. To Gilbert, the biggest problem in comparing the private and public systems is that the EEOC, as a federal agency, can’t sue another federal agency, whereas it can and does sue on behalf of private employees. The proposal only exacerbates this disparity, he said. Despite Dominguez’s recent reticence, Gilbert said he heard her advocate the position embodied in the proposal in a speech she gave in February at the Maryland Bar Association. More recently, Dominguez addressed the issue directly when she visited the EEOC’s district office in Denver on June 11. According to Administrative Judge Ronald Taoka, the chairwoman spoke to approximately 50 staffers about recent developments at the commission, after which she took questions. Taoka asked about a “rumor” he’d heard concerning a proposal to abolish the hearings unit. Dominguez was forthright, Taoka said. “If she had her choice about it, this was what would happen: Federal EEO cases would be handled as private sector cases are handled. And there would not be a hearings unit. “Usually you ask somebody in her position a question like I asked and they say something like, ‘Oh, it’s just a proposal. It’s just an idea we’re kicking around.’ But I thought she was pretty direct.” Taoka doesn’t want to lose his job, but he does see merit in a proposal that would screen cases to remove the chaff. SECRECY CRITIC A longtime EEOC staffer found the secrecy behind the proposal troubling. “The development of a proposal of this importance in secret and without any broad-based input is something we haven’t seen before,” the staffer said. The last comparable project changed how the EEOC handles complaints against private employers. The chairman appointed a task force, led by the vice chairman, who solicited input. The current approach is “so closed and so secret” that it has alarmed even those who favor change, he said. “The chair wants to engage in an open and constructive dialogue of these ideas,” said the EEOC’s Grinberg. “At this point it’s extremely preliminary and nothing has been ruled in or ruled out. This is really an internal debate. When we’re ready to speak out in an open forum, we’ll do so.” Others haven’t hesitated. Delia Johnson, co-chair of the Council of Federal EEO and Civil Rights Executives, posted the proposal on the council’s Web site and, within a week, received 25 responses — all negative — from members. Grinberg counseled patience. “It’s premature for folks to be crying bloody murder,” he said. “If someone has a suggestion or an idea, send it to us. We’ll put it on the table.”

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