U.S. GOVERNMENT PRINTING OFFICE

68–877 DTP WASHINGTON : 2001

EEO DATA AND COMPLAINT PROCESSING

PROBLEMS

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CIVIL SERVICE

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

MARCH 29, 2000

Serial No. 106–177

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

For sale by the Superintendent of Documents, U.S. Government Printing Office

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Mail: Stop SSOP, Washington, DC 20402–0001

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

DAVID A. KASS, Deputy Counsel and Parliamentarian

LISA SMITH ARAFUNE, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON THE CIVIL SERVICE

JOE SCARBOROUGH, Florida, Chairman

ASA HUTCHINSON, Arkansas

CONSTANCE A. MORELLA, Maryland

JOHN L. MICA, Florida

DAN MILLER, Florida

ELIJAH E. CUMMINGS, Maryland

ELEANOR HOLMES NORTON, Washington,

DC

THOMAS H. ALLEN, Maine

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

GARRY EWING, Staff Director

SUSAN WAREN, Professional Staff Member

BETHANY JENKINS, Clerk

TANIA SHAND, Minority Professional Staff Member

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C O N T E N T S

Page

Hearing held on March 29, 2000 ............................................................................ 1

Statement of:

Blanchard, Roger, Assistant Deputy Chief of Staff, Personnel, U.S. Air

Force; Joe McDade, Assistant General Counsel, Office of the Secretary

of the Air Force; Cynthia Hallberlin, Chief Counsel of Alternative Dispute Resolution Program, National Program Manager of REDRESS,

U.S. Postal Service; and Gerald R. Reed, president, Blacks in Government ............................................................................................................... 104

Hadden, Carlton, Acting Director of Federal Operations, Equal Employment Opportunity Commission; and Michael Brostek, Associate Director, Federal Management and Workforce Issues, U.S. General Accounting Office ........................................................................................................ 16

Wynn, Hon. Albert R., a Representative in Congress from the State

of Maryland ................................................................................................... 6

Letters, statements, et cetera, submitted for the record by:

Blanchard, Roger, Assistant Deputy Chief of Staff, Personnel, U.S. Air

Force, prepared statement of ....................................................................... 107

Brostek, Michael, Associate Director, Federal Management and Workforce

Issues, U.S. General Accounting Office:

Followup questions and responses ........................................................... 98

Prepared statement of ............................................................................... 35

Hadden, Carlton, Acting Director of Federal Operations, Equal Employment Opportunity Commission:

Followup questions and responses ........................................................... 62

Prepared statement of ............................................................................... 19

Hallberlin, Cynthia, Chief Counsel of Alternative Dispute Resolution Program, National Program Manager of REDRESS, U.S. Postal Service,

prepared statement of ................................................................................... 122

Reed, Gerald R., president, Blacks in Government, prepared statement

of ..................................................................................................................... 129

Scarborough, Hon. Joe, a Representative in Congress from the State

of Florida, prepared statement of ................................................................ 3

Wynn, Hon. Albert R., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 9

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EEO DATA AND COMPLAINT PROCESSING

PROBLEMS

WEDNESDAY, MARCH 29, 2000

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CIVIL SERVICE, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The subcommittee met, pursuant to notice, at 10:15 a.m., in room

2247, Rayburn House Office Building, Hon. Joe Scarborough (chairman of the subcommittee) presiding.

Present: Representatives Scarborough, Cummings, Norton, and

Morella.

Staff present: Garry Ewing, staff director; Jennifer Hemingway,

deputy staff director; Miguel Serrano, chief counsel; Susan Waren,

professional staff member; Bethany Jenkins, clerk; Tania Shand,

minority professional staff member; and Earley Green, minority assistant clerk.

Mr. SCARBOROUGH. I call this hearing to order for the Subcommittee on the Civil Service.

I would like to welcome all of you here before this Civil Service

Subcommittee.

Today, the subcommittee is going to be conducting an oversight

hearing to examine serious shortcomings in Equal Employment Opportunity data and complaint processing. These problems were revealed in several recent reports issued by the General Accounting

Office, and we will also consider the use of alternative dispute resolution techniques to resolve employee’s discrimination complaints.

As chairman of this subcommittee I am committed, like I know

everybody else on this panel is committed, to ensuring that Federal

employees have available a procedure for resolving EEO complaints

that is fair, timely, and efficient, but that is just not simply the

case today.

I think all of us are concerned and appalled at the time it takes

for an EEO complaint to travel through the entire appeals procedure process. According to GAO, an employee who has filed an initial complaint with his or her employing agency would, on average,

have to wait 3 years until EEOC issues its final ruling. That is

simply not acceptable. EEOC and other agencies have to figure out

a way to speed this process up.

I am also concerned that EEOC cannot answer fundamental

questions about the nature and extent of workplace conflicts. Because EEOC does not collect and report the necessary data, it cannot respond to such basic questions regarding how many individuals have filed complaints, how many complaints allege discriminaVerDate 11-MAY-2000 12:51 Feb 15, 2001 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\68877.TXT HGOVREF1 PsN: HGOVREF1
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tion based on race or sex, or what kinds of actions give rise to most

of the complaints. And, to compound these problems, GAO also

tells us that the reliability of data that EEOC collects from other

agencies is also questionable. This is because the agencies don’t report the data consistently, completely, or, in my opinion, accurately.

In one example, because of a computer programming error, the

Postal Service reported that approximately 68 percent of its complaints were from white postal workers claiming racial discrimination. In fact, the correct figure was 11.4 percent.

Without solid, reliable data, neither the EEOC or employing

agencies can understand how much conflict there is in the Federal

work force or what causes it, and if they can’t do it, then certainly

Congress can’t do it.

We are going to be looking to the EEOC to assure this subcommittee that it is reducing its case inventories and processing

complaints more quickly. I also want to know what EEOC is doing

to increase the speed with which employing agencies process complaints of discrimination. And I am going to expect the EEOC to

assure us that data problems that the GAO has discovered and revealed are going to be corrected in the future.

On a more optimistic note, we are also going to be examining the

use of alternative dispute resolution, techniques to resolve workplace disputes.

Based upon work GAO has performed for this committee in the

past, we believe that ADR promises much hope. Used properly,

ADR can deliver prompt solutions for a wide variety of workplace

disputes that employees and managers, alike, perceive to be fair.

It also is generally believed to be far less costly than litigation or

a more formal redress process.

Witnesses from the Postal Service and the Air Force will describe

their successful ADR programs, and I look forward to their comments and the comments of GAO and other witnesses on this subject, as well.

[The prepared statement of Hon. Joe Scarborough follows:]

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Mr. SCARBOROUGH. With that, I would like to recognize Mr.

Cummings, the distinguished ranking member, for any opening

comments he may have.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

I do appreciate the fact that you have called this hearing. I know

we will be hearing from Congressman Wynn, but I want to thank

you for all your efforts over the years in staying on this issue and

making sure it stays at the forefront of our minds.

Mr. Chairman, you just said something that made me really

stray away from my prepared comments when you talked about the

3-year delay. Someone once said, ‘‘Justice delayed is justice denied,’’ and I think that when you think about the issues that we

are addressing here today, when you have someone who is denied

justice and they have to wait, and that justice is delayed and they

have to wait 3 years, that means that possibly a pay raise doesn’t

take effect, it means that possibly the children who were in the

first grade at the beginning of the complaint are now in the fourth

grade and have missed opportunities to do such things as have

simple things like violin lessons and simple things that make life

better, going on vacation. But it also means that someone is placed

in a position of being very frustrated over a course of 3 years, and

that frustration not only affects them but affects their families and

affects generations yet unborn.

And so it does concern me, and I guess, as I am sitting here— and I am sure you and I agree on the frustration that we so often

feel in the Congress where one group blames another group, and

then another group blames another group, but the bottom line is,

when all the dust settles, the problem is still there.

I am very, very confident and I do agree with you that we have

to get to the bottom of this, because, after all, we have been elected

to represent the wonderful people of the United States of America,

and if we can’t get to the bottom of it because an agency can’t get

to the bottom of it, we don’t need to be here.

And so I am hoping that the answers that we will get this morning are ones that will be helpful to us in getting to the bottom line.

I do thank you, Mr. Chairman, for your sensitivity with regard

to this issue. These are not in my prepared comments, but the

more I listen and I look at Congressman Wynn and I think about

all that he has gone through, and feeling, I am sure, the frustration

sometimes that everything is not—I mean, he is almost playing a

shell game. One person tells him one thing. I have been in the

room many times when that has happened. You begin to wonder

whether you are crazy or somebody else is. But at the same time

we are wondering these things, there are people who are suffering.

That is one of the good things about this hearing. As we notice—

I know you noticed coming in, there are people standing all out in

the halls. The reason why they are standing out there is because

they simply want fairness. They simply want fairness. They don’t

want anybody to do them any favors. They just want fairness in

the system. They don’t want justice delayed. They don’t want it, because they know that is justice denied.

And so with that, Mr. Chairman, I look forward to hearing from

the witnesses, and I want to thank all of them for being with us

today.

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Mr. SCARBOROUGH. Thank you, Congressman Cummings.

Thanks for your hard work on this. I know you and Congressman

Wynn have fought this issue for some time.

With that, I want to introduce our first panel. Our first witness

today is the distinguished gentleman from Maryland, Representative Albert R. Wynn. Mr. Wynn represents the 4th District and he

is well-known as an advocate for Federal employees. In addition,

he, along with the ranking member, Mr. Cummings, asked GAO to

study the EEOC’s data collection and case processing problems.

Those studies and their continued efforts are what led to today’s

hearings.

Congressman Wynn.

STATEMENT OF HON. ALBERT R. WYNN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MARYLAND

Mr. WYNN. Thank you very much, Mr. Chairman.

I sincerely appreciate your calling this hearing today. As my colleague, Mr. Cummings, indicated, this is a very, very important

issue to us.

I also appreciate your comments in your opening statement,

which reflect a fundamental understanding of the various aspects

of this problem and your sensitivity to this problem. I think all

Federal employees appreciate your leadership in this effort.

I also want to thank my colleague from Maryland, Mr.

Cummings. We have literally worked side-by-side, yoked together

on this issue, and he has been tremendous, from our first press

conversation back in 1997, when we began talking about this issue,

through today, when he has worked in his official capacity as ranking member to see that this issue is brought to light appropriately,

and he brings a great deal of not only interest but passion to the

discussion.

As he indicated, there is a human element of this that affects

people that is below the radar of our policy discussions, and it is

important that that perspective be brought to light.

Let me begin with a little history. We have always looked to the

Federal Government to intervene in civil rights issues, and it became very ironic, after I got to Congress, that there were some civil

rights issues within the Federal workplace. We had a festering

sore, so to speak, in our own back yard.

I represent more Federal employees than any other Member of

Congress. I have 72,000 active Federal employees in my constituency, so, as you might gather, these issues of the Federal employee

rights, benefits, and problems come to my desk quite frequently.

I came in in 1992. By 1993, I began to see patterns in which I

was getting enormous numbers of constituent complaints about discrimination in the Federal workplace. I had discussions with the

National Institutes of Health, I have had ongoing discussions with

the Department of Interior, Agriculture, State, Commerce, the Government Printing Office, the Library of Congress, IRS, U.S. Information Agency—the list goes on and on.

What I concluded was that these were not isolated incidents, but

rather a systemic problem, because I was hearing the same kinds

of things throughout virtually every department.

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As I indicated, in 1997 we held a press conference on discrimination in the workplace, and I stood side by side with Mr. Cummings.

We talked about three issues: the lack of diversity in senior management; second, the pervasive and discriminatory misuse of personnel laws; and, third, the enormous backlog of EEO complaints

within Federal agencies.

We asked the administration to intervene and make agencies

more accountable, and in 1997, in September of that year, this subcommittee held an unprecedented hearing to examine the issues of

discrimination—again, a standing-room-only audience. We talked

about the various problems that existed.

In 1998, I requested, along with Congressman Cummings, that

GAO analyze the information about what we call ‘‘inventories of

unresolved complaints.’’ I like to call it ‘‘backlogs.’’ And they did

this, and the report, ‘‘Equal Employment Opportunity: Rising

Trends in EEO Complaint Case Loads in the Federal Sector,’’ dated

July 1998, found the agency complaint inventories, and, even more

so, EEO’s hearing and appeal inventories had increased since 1991.

Since 1991, there has been 102 percent increase in the number

of unresolved complaints, from 16,900 in 1991 to 34,000 by the end

of 1997.

At EEO, itself, during this period, the inventory of hearing requests from complaints increased 218 percent, from 3,000 to over

10,000, and the inventory of appeals or the backlog of appeals filed

by complaints increased 581 percent, from 1,000 to almost 10,000.

As you can imagine, as the size of these inventories grow, the

length of time that you referred to in your opening statement increased, as well.

As I looked at these problems after receiving this information, I

said, ‘‘It is not enough to just handle individual complaints. We

need to begin to understand, as policymakers, what is causing

these complaints.’’

And so I asked GAO essentially two questions: one, what were

the statutory bases for discrimination? Was it race, sex, disability

discrimination? And, two, what are the kinds of problems that are

cited in these complaints? Was it non-selection for promotion, harassment, hostile work environment, whatever might be the case?

In March 1999, GAO advised me that they could not answer

these fundamental questions. Obviously, I was quite concerned,

which gave rise to the report that you mentioned in your opening

statement, ‘‘Equal Employment Opportunity Data Collection Shortcomings Hinder the Assessment of Conflicts in the Federal Workplace,’’ which came out in May 1999.

They found that data about the basis of complaints and issues

giving rise to them can be valuable in gauging conflict in the Federal workplace; however, EEO does not collect or report relevant

data in a way that would help answer fundamental questions about

the number of complaints and the prevalence of bases and issues

in the universal complaints.

In addition, some data collected and reported by EEO have

lacked the necessary reliability, because agencies did not report

their data consistently, completely, or accurately, and because EEO

did not have procedures to ensure that the data was reliable.

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Consequently, the data did not provide a sound basis for decisionmakers, program managers, and EEO to understand the nature and extent of workplace conflict, to develop strategies to deal

with conflict, and to measure the results of these interventions.

The EEO basically agreed with these findings.

The problem came when we said, ‘‘Well, how can we correct

them?’’ They were saying, ‘‘Well, it is going to take some time. The

reports won’t come in until 2001. Then we wouldn’t have any information until about 2002.’’ I said, ‘‘Well, when can we get a body

of reliable data,’’ and they were not able to answer that question.

I was very concerned, as you might imagine. I contacted the

President. I said, ‘‘We need an inter-agency task force to deal with

all these discrimination issues, but, in particular, the issue of data

collection, which is just not acceptable.’’ A task force is, in fact,

working on this, focusing, among other things, on data collection.

One of the things we said was that, at a minimum, we should

develop requirements to ensure that all agencies have the ability

to transmit their data electronically in a format that would facilitate accurate and comprehensive analysis.

We also said that we ought to put this issue on a fast track. It

shouldn’t take a year to develop data collection techniques and

then another 2 years to collect the data and then a third year to

analyze it.

I think EEO is sincere in attempting to address this concern, but

I think there needs to be a real fire under their efforts. I think the

administration, as well, has acknowledged the problem and wants

to do the right thing, and I think the task force will be productive.

I would ask you, Mr. Chairman, in terms of the committee, to

continue aggressive oversight of this issue. You clearly understand

the problem we have in effective data collection. I think with aggressive committee oversight, we can resolve this issue, put it on

a fast track, and begin to understand the problem, because once we

understand the problem I think we can resolve some of these complaints.

Thank you. I apologize for going longer.

[The prepared statement of Hon. Albert R. Wynn follows:]

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Mr. SCARBOROUGH. That is fine, Congressman. I thank you. I certainly appreciate your comments, and I want you to know there

will be aggressive oversight here and we are going to do whatever

we can to make sure it happens.

Let me ask you just one or two very brief questions. I know we

have a vote soon.

I wanted to start out by asking you about trends. You have said,

obviously, since the early 1990’s complaints have skyrocketed. You

came here in 1993. Complaints are up since then.

What have you noticed in the past few years, just in your office,

from all the—are the complaints on the rise over the last 2 or 3

years?

Mr. WYNN. I think they are on the rise. I think part of that is

because we have been giving this issue more attention and more

people in agencies are hearing about it.

The other thing that I have said is I don’t want to be a complaint-handling office.

Mr. SCARBOROUGH. Right.

Mr. WYNN. That is what EEO is for. But if you have 15 or 16

people who are citing a problem—and most recently we had a problem in IRS where a group of people—what I am saying, bottom

line, Mr. Chairman, is groups of people are coming in and saying,

‘‘In our agency we have this problem.’’ And it is very serious.

Mr. SCARBOROUGH. Yes.

Mr. WYNN. A lot of it has to do with promotional opportunities,

people saying that minorities are being channeled into dead-end

jobs, non-minorities are being channeled into tracks where they can

gain experience and skills so they will be ready for the next promotion.

Mr. SCARBOROUGH. OK. Let me ask you, I have talked briefly

about alternative dispute resolution. What is your read on that? Is

that one way to alleviate the backlog of cases?

Mr. WYNN. I think that clearly is part of the equation. There are

some complaints that are amenable to alternative dispute resolution, and we have to include that in our processing, so I am very

pleased that we are looking at that. Some complaints aren’t valid

and some complaints can be addressed in kind of a short form fashion. So I think alternative dispute resolution provides a great opportunity.

But the problem that I have been focusing on is, where you can’t

deal with it in a relatively amicable fashion because you have a climate or you have a few perpetrators within, say, mid-management,

who are causing this problem, how can we get at that? And so if

we can find out that there are a lot of complaints dealing with harassment or a lot of complaints dealing with the denial of promotions, it enables policymakers to kind of focus in and say, ‘‘Wait

a minute. Why are we getting a disproportionate number of complaints about promotional denials from these three managers within our entire system?’’ Because it kind of casts a black eye on an

entire agency when, in point of fact, it may be a few people committing the same kinds of discriminatory acts. That is why the data

collection is important.

But, clearly, Mr. Chairman, you are on the right track with alternative dispute resolution.

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Mr. SCARBOROUGH. Let me go ahead and turn it over to you,

Congressman Cummings.

Mr. CUMMINGS. I only have two questions.

The end result that we are trying to get to is trying to reduce

discrimination—eliminate it, really, but, I mean, for all practicality,

reduce it. I was just wondering, you said that you had met with

a number of agencies. Have you found that, in meeting with these

agencies, that they were open to change? In other words, I take it

that the thing that got you to the agency was that you had a number of complaints, but once you got there I was just wondering,

have you seen any kind of action on the part of any of the agencies

that you could at least hold up and say, ‘‘Look, we saw some problems here, and we see changes taking place.’’ Mr. WYNN. That is a very good question, Mr. Cummings. It is a

mixed bag. I think there are some people who are trying, but the

first response is generally, ‘‘Well, let me tell you about all the seminars we have had and let me tell you about all the workshops we

have had and let me tell you about John Doe, who is our sole senior executive person.’’ So there is a certain resistance to acknowledging the problem. It is like alcoholism or other kinds of problems.

You first have to acknowledge the existence of the problem.

But there have been agencies that have indicated a willingness

to work. The Secretary of the Department of Agriculture, where

there are major problems, has been very positively saying, ‘‘Look,

I want to do something.’’ Oftentimes it is not the Cabinet-level person, the Secretary; it is

way down in mid-management that the Cabinet Secretary doesn’t

even see where you have a problem.

It is difficult because some of the mid-management supervisors

are not willing to acknowledge a problem.

Mr. CUMMINGS. I know that you believe in the theory of what do

you have when the dust settles, and, so that we are singing from

the same hymn book and page, when you talk about aggressive

oversight, what do you mean? I want to make sure we are saying

the same things.

Mr. WYNN. Again, a very good question. I would like to see this

committee bring in Cabinet Secretaries and Under-Secretaries,

and, after having looked at the good EEO data, say, ‘‘Look, there

appears to be a problem here. Your inventories are substantial, and

the nature of the complaints tend to be consistently about a lack

of promotions or consistently tend to be about a hostile work environment. Now, what are you doing about it, Mr. Secretary or Mr.

Under-Secretary, given this data?

So I think that is why the data aspect is so important, because,

armed with the data, the committee and others can begin to hold

Cabinet Secretaries and Under-Secretaries and agency heads accountable.

Mr. SCARBOROUGH. Thank you.

Ms. Norton.

Ms. NORTON. No questions, please.

Mr. SCARBOROUGH. Thank you.

I want to thank you, Mr. Wynn.

You said something really briefly that I think we ought to talk

about, as we try to figure out a way to fix this system.

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You talked about e-mails and the Internet and everything else.

It seems to me, at the beginning of the 21st century, we ought to

be able to figure out a way that EEOC can—that these complaints

can be put instantaneously, maybe not all the details, not all the

information, but at least basics on hat complaints are filed, in what

departments. Is it race discrimination? Is it sex discrimination? To

me, that doesn’t seem so radical. I think that would be a good first

start. At least we in Congress could at least tell what trends are

occurring in what agencies.

With that, I thank you for your testimony. We are going to have

to adjourn briefly for a vote, but we will be back in about 15 minutes.

Mr. WYNN. Thank you, Mr. Chairman and members of the committee.

Mr. SCARBOROUGH. Thank you.

[Recess.]

Mr. SCARBOROUGH. Calling the meeting back to order, I would

like to start out by asking unanimous consent that Congressman

Joe McDade be allowed to sit up here on the dais. He has a party

interested in this matter who will actually be on the third panel.

But I wanted to open this portion up by recognizing the Congresswoman from the District of Columbia for any opening statement she may have.

Ms. NORTON. Thank you very much, Mr. Chairman.

I would like to thank Chairman Scarborough for noting this

hearing and for the time and energy he has put into it, and also

the ranking member for his unfailing interest in this subject.

I have an unfailing and longstanding interest. When I first came

to Chair the Equal Employment Opportunity Commission under

President Carter, I found a backlog in the private sector complaints

of 2 years. It had paralyzed the agency.

We reduced that backlog and got to the point where we could

process cases within 3 months. We did it through the intelligent

use, essentially, of alternative dispute resolution. Our focus was on

looking for those cases which needed extended treatment, especially litigation, and recognizing that the average case filed in any

large complaint system is not of that variety.

We pioneered the use of alternative dispute resolution. We called

it ‘‘rapid charge processing.’’ And it had an extraordinary effect,

both on the remedy rate and on the reduction of time—a system

which keeps people locked into it—and the chairman has said 3

years here. I take it these are Government-sector complaints. This

is a system that does not provide relief. You cannot provide relief

by taking everybody through every step of the process. You have

got to find a way to help people who can get all the relief they can

deserve early.

In our system of law, the way to do that is to have more than

one track. There ought to be a track for very complicated cases—

and there remain such cases in the courts and at the EEOC. But

I have to tell you the average case that comes before the EEOC is

not a very complicated case.

I fear that there has been backtracking here, just as there was

in the 1980’s, after we set off a system that used alternative dispute resolution, did not depend upon the complexities of a ponderVerDate 11-MAY-2000 12:51 Feb 15, 2001 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 C:\DOCS\68877.TXT HGOVREF1 PsN: HGOVREF1
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ous system, there was huge backtracking in the 1980’s that took

every case through the system.

EEOC more recently has begun to use alternative dispute resolution, but I fear that, with the new system of greater involvement

of EEOC administrative judges, which I applaud, that the whole

notion of how to treat some complaints so that they are appropriately treated for more rapid resolution has been lost in the process.

I will be very interested to hear whether or not the EEOC has

learned to sort out cases so that cases can be treated appropriately

according to their complexity and, therefore, so that the agency

can, in fact, face the backlog and get rid of it.

I thank you very much, Mr. Chairman.

Mr. SCARBOROUGH. And I thank you, and I agree with you 100

percent that we do have what you called a ‘‘ponderous system.’’ As

proof, we were going to actually blow up the administrative process

for EEOC. Unfortunately, every time we tried to blow this up, our

computers crashed. So we are going to try again. We may go to

Kinko’s on 7th Street, and perhaps those computers will be able to

handle it a little bit better than our own. But it is an absolute mess

and, in fact, a ponderous system.

Let us go ahead and call up our second panel right now, if they

could come up and have a seat.

The witnesses on our second panel are going to be Mr. Michael

Brostek and Mr. Carlton M. Hadden.

Mr. Brostek is the Associate Director of the Federal Management

and Work Force Issues in the General Government Division of the

General Accounting Office, and Mr. Hadden is the Acting Director

of the Office of Federal Operations at the U.S. Equal Employment

Opportunity Commission.

I thank both of you gentlemen for coming, and I would ask, if

you could, please stand and give an oath.

[Witnesses sworn.]

Mr. SCARBOROUGH. Mr. Hadden.

STATEMENTS OF CARLTON HADDEN, ACTING DIRECTOR OF

FEDERAL OPERATIONS, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; AND MICHAEL BROSTEK, ASSOCIATE

DIRECTOR, FEDERAL MANAGEMENT AND WORKFORCE

ISSUES, U.S. GENERAL ACCOUNTING OFFICE

Mr. HADDEN. Thank you, Mr. Chairman.

I ask that my statement be entered into the record.

Mr. SCARBOROUGH. Without objection, so ordered.

Mr. HADDEN. And I would like to just take the time that I have

to kind of summarize some of the concerns, I think, which have

been addressed, and address some of the steps that we have begun

at EEOC.

The Commission’s mission is the eradication of discrimination.

The process that we are talking about is a shared process with

Federal agencies. The Commission has oversight responsibility of

this process. We have administrative judges in the field, we have

appellate attorneys at EEOC.

With the arrival of Chairwoman Castro in 1998, we accelerated

the process that had begun with Chairman Gilbert Casellas to

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make the Federal sector reforms. I don’t think you will find much

argument from the Commission in recognition that this is a process

that certainly needs to be improved.

The regulatory reforms which took effect this past fall certainly

are a key to making that change. One of the regulatory reforms

that we are most interested in is ADR. ADR is now required. All

agencies must make that available as part of their processes.

We also believe that another key advantage of these regulations

is the manner in which complaints are now processed. They can no

longer be fragmented complaints. They have to be a unified claim

which we look at.

In overall approach, this process is what we call the ‘‘comprehensive strategic approach to enforcement’’ at the Commission, which

simply means using all the tools that we have at our arsenal, not

just relying on the administrative judges or the appeals attorneys,

but looking at certainly ADR, looking at oversight of Federal agencies, how they are managing their EEO complaint process. What

are the issues relating to glass ceiling issues?

That whole approach will hopefully get us to a much better place.

The NPR—we have an inter-agency task force that Congressman

Wynn alluded to in his prior testimony. We are very excited about

that. We believe that will be absolutely key.

This is the first time that we have all parties and players at the

table engaging in a dialog. This is a very complicated process, and

we believe that this task force holds great promise for ultimately

delivering reform to the EEO complaint process for Federal agencies.

In regard to the data, you know, what we did with the data, we

had begun a process of correcting some of the mistakes. I am

pleased to tell you that we expedited publication of the 1998 report.

I am very hopeful that we will have the 1999 report in short order.

The reason, in large part, that you don’t have it now is we want

to make sure that it is accurate data.

We know, preliminarily, that 21,847 people filed complaints in

fiscal year 1999, and those 21,847 people filed 25,177 complaints.

That is excluding the Department of the Treasury, which could not

give us a number on the number of individuals filing EEO complaints.

Preliminary data on 1999 shows us that the time it takes to process complaints continues to rise. We are very interested in using

technology. We certainly want to increase our use of technology.

We have a lot of the guidance that we give agencies and our stakeholders now on the website. Certainly, we would like to look at expanding our use of that. A lot of that is often resource driven and,

to that extent, we do the best we can with the resources we have,

but we think technology is certainly a viable way to increase our

effectiveness.

One innovation that we think will help, in terms of helping agencies understand how this process works, is what we call ‘‘computerbased training.’’ We are developing a CD which we will distribute

to all of our stakeholders—agencies, in particular—explaining this

new EEO process. That, I think, will help the agencies understand

how to move EEO complaints.

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We have done, in terms of the approach, the comprehensive approach, we have expanded the outreach. We have had town hall

meetings, in partnership with NPR. We had a town hall meeting

March 22nd in St. Louis. We are having one April 5th in Los Angeles, and having one here in Washington April 25th.

This expanded dialog and communication with our stakeholders

we believe is certainly a key to figuring a good solution to this process. As I said before, the Commission is responsible for eradicating

discrimination. This is a shared process with Federal agencies.

The Commission’s authority, in regard to the Federal agencies,

is more limited on the Federal than on the private side.

I will keep my comments brief. Thank you.

Mr. SCARBOROUGH. Thank you. We appreciate your testimony. I

am sure you will have a chance to expand in the question period.

[The prepared statement of Mr. Hadden follows:]

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Mr. SCARBOROUGH. Mr. Brostek.

Mr. BROSTEK. Mr. Chairman and members of the subcommittee,

I am pleased to have this opportunity to discuss the Equal Employment Opportunity complaint process for Federal employees and the

Equal Employment Opportunity Commission’s role in protecting

Federal workers from unlawful employment discrimination.

I will summarize my testimony and ask that the full testimony

be inserted in the record.

Mr. SCARBOROUGH. Without objection.

Mr. BROSTEK. In recent years, the complaint process and EEOC’s

role in eliminating discrimination in the workplace have been targets of criticism because of the rising number of complaints, growing backlogs of unresolved cases, and the increasing amount of

time that it has been taking to bring cases to a close.

Discrimination complaints and the workplace conflicts that underlie them not only disrupt the lives of the employees involved,

but also can undermine the efficient and effective delivery of services to the public.

The EEO complaint process depends on actions taken by both the

employing agencies and EEOC. In accordance with regulations and

policies promulgated by EEOC, agencies receive complaints, investigate them, and make decisions on their merits.

EEOC conducts hearings on complaints and adjudicates appeals.

Processing hearings and appeals, although fundamental to EEOC’s

mission, is only part of that mission, which also includes eradicating discrimination in the workplace.

With these thoughts in mind, I would like to make three brief

points.

First, the number of discrimination companies by Federal employees grew during the 1990’s, overwhelming the ability of agencies and EEOC to process cases in a timely manner. My full testimony identifies those caseload trends in more detail.

Second, we found that the kinds of data that EEOC collected did

not provide answers to such basic questions as the number of employees filing complaints, the kind of discrimination they were alleging, and the specific conditions or events that caused them to

file those complaints in the first place. We also found reliability

problems with the data that the agencies were providing to EEOC

and that were then reported to the public.

Third, although EEOC has focused considerably on the processing of complaints, the second half of their mission—going out and

investigating the causes of those complaints—has, in the past, perhaps received a little less attention, and we are encouraged to see

that there is more attention going in that direction.

That is a segue to the second portion of my statement. There is

encouraging news today. Actions have been taken or are in development, as Mr. Hadden has mentioned, that address each of these

three issues. I will briefly summarize some of those actions.

The regulations that EEOC implemented last November, are one

of the principal initiatives to try to deal with the rising case load.

Several provisions in the regulations are intended to reduce the

number of complaints, including provisions allowing agencies and

EEOC to dismiss spin-off complaints, eliminate fragmentation of

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complaints, and encourage the consolidation of complaints by the

same individual.

In addition, the regulations require agencies to make alternative

dispute resolution available during the informal and formal stages

of processing a complaint. This requirement may pay large dividends in caseload reduction.

For instance, Postal Service complaints going to EEOC have declined significantly and Postal officials attribute that reduction to

their increasing use of ADR.

EEOC data problems are also beginning to be addressed. As we

just heard, EEOC is now trying to actually get an unduplicated

count of the number of complainants that have filed, and EEOC is

working with the agencies on improving the reliability of the data

and with the NPR task force on thinking through what are the best

kinds of data to collect and to analyze in order to understand the

problems that we face.

Finally, EEOC has announced various other initiatives that may

lead to reductions in the case loads. For instance, EEOC plans to

look at their hearings and appeals and extract lessons learned from

those processes and use those lessons learned to help provide guidance and assistance to agencies and to target onsite visits to agencies.

In addition, the inter-agency task force that I mentioned has focused on examining dispute resolution strategies and best practices, with the hope of creating a model EEO climate and a model

EEO complaint system.

In conclusion, the history of rising complaints, increases in case

backlogs, and the substantial increases in the time taken to resolve

EEO complaints has been unfair to employees whose lives have

been disrupted and have distracted attention from carrying out the

missions of agencies.

Having studied these issues for some time, we are encouraged

that attention is now being paid to looking at the quality and validity of the information available. We are also encouraged about the

various initiatives to improve the processing of EEO cases and on

identifying the root causes of the conflicts that get surfaced in the

EEO complaint system.

Nevertheless, most of these initiatives are in their formative

stages; therefore, we believe that sustained attention to these

issues by EEOC and the Executive agencies is a necessity. This

hearing and similar expressions of congressional interest can help

ensure that adequate follow-through occurs to make sure that

these initiatives are successfully implemented.

That concludes my statement. I would be happy to answer questions.

[The prepared statement of Mr. Brostek follows:]

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Mr. SCARBOROUGH. I want to echo what you just said. You are

correct. You have been studying this for some time. In fact, in 1995

you testified that to EEO process was ‘‘inefficient, expensive, and

time-consuming.’’ I want to ask both of you gentlemen the following

questions:

Do you all agree with us that that is still an accurate description

of the EEO complaint process 4 years later? Mr. Hadden, would

you still term the process, what Mr. Brostek said in 1995—inefficient, expensive, and time-consuming?

Mr. HADDEN. I think the regulations which took effect in November are going to be very important. To say that, it is still the state

of affairs. The regulations took effect in November 1999, and I

think we are on the road to changing that reality and making the

process much more efficient and effective.

Mr. SCARBOROUGH. Mr. Brostek, how do you compare what you

see today in 2000 to what you saw in 1995?

Mr. BROSTEK. Well, certainly, in some regards the situation is

materially worse. It is taking considerably longer to work cases

through the entire system, and that is because the number of cases

that have been generated have been in excess of those that the

agencies or EEOC have been able to process each year. So we have

a much larger inventory of cases in place, and the average amount

of time to deal with those cases has been expanding fairly dramatically, even since 1995.

So I think that the conclusion that we reached in 1995 is still

a valid conclusion.

Mr. SCARBOROUGH. In fact, you said it takes longer and there is

a larger backlog. Let me ask you, do you agree with Mr. Hadden

that the regulations that were implemented in November may be

helpful?

Mr. BROSTEK. I think they are a step in the right direction. I

think they have attempted to address a number of the issues that

have arisen about the efficiency of the processing of cases.

I also believe that the ADR requirement, as I mentioned in the

statement, has a lot of potential to help us out here.

If other agencies are as successful as the Postal Service appears

to have been in the past year or two in reducing the number of

complaints that get into the formal system due to ADR, we won’t

have that rising case trend that we have had in the past, and that

should enable agencies and EEOC to begin working down those inventories of backlogged cases.

Mr. SCARBOROUGH. Do both of you agree that ADR is probably

the single best chance right now to make this process a bit more

streamlined?

Mr. HADDEN. I think ADR is an important component; however,

I think that—it is not just ADR, but it is in the context of what

we are doing at the Commission in terms of taking a very broad,

comprehensive approach to our mission to eradicate discrimination.

But, to answer the question and be responsive, I think ADR is

a very important tool which, used appropriately, can help us identify the cases which are most suited for an alternate process and

let us use our resources to eradicate discrimination. But I think

ADR is an important tool, but in the context of a broad-based, comVerDate 11-MAY-2000 12:51 Feb 15, 2001 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 C:\DOCS\68877.TXT HGOVREF1 PsN: HGOVREF1
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prehensive approach in partnership with Federal agencies and our

stakeholders.

Mr. SCARBOROUGH. Mr. Brostek, what do you think? Have you

seen great advances in using ADR?

Mr. BROSTEK. Well, I don’t know that we have seen great advances yet. We have a couple witnesses who will be on later who

have successful programs or appear to have successful programs. I

am not sure that that is true across the board yet. We are starting

to make progress. These requirements that are in the regulations

should help out.

I believe that ADR will, as Mr. Hadden said, be a very important

component in improving this situation, but I think another important component is using the data, as has been suggested by Mr.

Wynn, and I think by yourself, Mr. Scarborough, to help identify

where the sources of the problems we are facing are. Who is doing

the complaining? Why are they complaining?

Once we can analyze the situation, we can take corrective measures to head off complaints in the future. We might find that what

we need is an educational program of some kind, and we can target

that to the agencies who are having the biggest problems with promotion processes or unfair assignments of individuals.

The analysis of that data and follow-through I think is as important as the ADR process.

Mr. SCARBOROUGH. Now, speaking of who is filing complaints, oftentimes you hear the argument that, well complaints may be up,

but it is just a small number of people that are filing these complaints, it is based on personality conflicts and not really discrimination.

Do you all have any evidence and do the numbers bear that out,

that a small percentage of people file a disproportionately large

number of complaints, or is that really a red herring?

Either one of you want to answer this question?

Mr. HADDEN. We are pointing at each other.

Mr. SCARBOROUGH. Yes, you are you are pointing at each other.

You all can’t see it out there. What does that mean?

Mr. HADDEN. I think that clearly the point is that we do need

to have better data to answer those precise questions which are legitimate questions, and I believe those are, in fact, some of the

questions that Congressmen Cummings and Wynn asked the General Accounting Office to address.

I would be uncomfortable saying with any certainty, to you, what

the answer to that is other than we are moving in the right direction and getting the data to address that.

Mr. SCARBOROUGH. Mr. Brostek, were you able to find any evidence through your studies that a small number of people file a

large number of complaints?

Mr. BROSTEK. Nothing that we could really quantify.

Mr. SCARBOROUGH. OK.

Mr. BROSTEK. There are certainly plenty of allegations that that

is the situation. I think that the information that is now beginning

to be collected on the number of individual complaints filed each

year will help us out to try to track that.

Mr. SCARBOROUGH. I am about 45 seconds over, but I want to ask

one final question very quickly.

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You talked about the use of technology, that you thought technology could be used. Does it not seem possible to both of you that

there is some way that we ought to be able to give EEOC the resources where they can almost put instantaneously up on the Internet who is filing the complaints, what is the basis of the complaints, what are the numbers, the macro, what are the numbers

of the agencies having complaints filed, and what are the bases? Is

it race discrimination, sex discrimination, age discrimination? I

mean, that shouldn’t be so difficult, should it?

Mr. HADDEN. It should not be difficult, and I would say that the

NPR/EEOC task force, the data team, in fact, I think, has had

some very good discussions about what options are available to the

Federal Government. That is one reason why the task force is such

a great tool, because we have all the agencies at the table.

But, to answer your question very succinctly, technology is there.

I think that certainly it is something we could look at. I mean, we

have learned at EEOC, although we are coming late, because, you

know, of the resource issue, but we are improving our technological

extent and reach, and that is something. We would like to continue

that dialog with our stakeholders of how we can do that.

Mr. SCARBOROUGH. Great.

Mr. BROSTEK. We certainly haven’t analyzed that issue. It would

seem to me that it would be feasible to do that. The important

thing, I would think, is, once we are able to, that we also have the

analytic capacity to analyze it and determine what it is telling us

so that we can use it and take corrective action.

Mr. SCARBOROUGH. Thanks.

Mr. Cummings.

Mr. CUMMINGS. Thank you.

I tell you, this whole discussion has just been fascinating, this

back and forth here.

Let me start with the last question that Mr. Scarborough asked.

Mr. Hadden, are you saying that the capability is there to do

what he just said?

Mr. HADDEN. Technology, absolutely. Sure it is there. The question—it is there.

Mr. CUMMINGS. So if the Congress mandated it, it could be done?

Mr. HADDEN. Absolutely.

Mr. CUMMINGS. OK. Because that is what we may have to do.

See, maybe I am missing something, but, I mean, I have seen some

of these forms, and I thought the forms—now help me, but I

thought the forms—you have got to tell what your basis is, right?

Mr. HADDEN. Right.

Mr. CUMMINGS. And then basically the form is supposed to tell

what the issue is; is that right? Is that right?

Mr. HADDEN. That is correct.

Mr. CUMMINGS. And so it is a matter of gathering this information from some forms. I know I am missing something, so tell me

what I am missing.

Mr. HADDEN. Well, the forms are gathered and collected by the

Federal agencies.

Mr. CUMMINGS. Right.

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Mr. HADDEN. And the EEOC in the past would ask for those for

the data to be combined, compiled, and given to us at the end of

the fiscal year.

The problem comes that the data which agencies are giving us

we find is not always the correct data, is not reliable data, so that

is partly where the problem comes in.

One option that we certainly had considered or have thought

about that the chairwoman had alluded to is what we call a ‘‘universal docketing number,’’ which could allow the EEOC and all the

agencies to track a complaint as it goes through the system. We

think that would help us. The question is whether we want a live

data system or a static data system.

Mr. CUMMINGS. So you have the capability of doing that right

now, what you just said, that universal number?

Mr. HADDEN. The Commission does not have the capability. We

have to engage in a—our data system does not currently allow us

to do that.

Mr. CUMMINGS. But you were about to say you have to engage

in a——

Mr. HADDEN. Discussion or dialog with agencies about—— Mr. CUMMINGS. That is what I thought you said.

Mr. HADDEN [continuing]. That whole issue. We have done that

with the task force. I mean, technology will let us do pretty much

what we want to do.

The question is, as I indicated in the beginning of my testimony,

this is a shared process.

Mr. CUMMINGS. Right.

Mr. HADDEN. The Commission, its relationship with our agency

stakeholders is one in which, you know, we have to engage in dialog and the certification and reliability of data is, in large part, in

their hands.

As you know, the question is how much attention does the head

of the agency give it. That will help and hopefully determine the

accuracy of the data that we get from the agencies.

Mr. CUMMINGS. What can we do to help you help us? In other

words, is there anything that we can do? I tell you, sometimes

when I—after I got elected, sometimes I wonder about the power

that we do have. I hate to say that, as a Congressman, but I am

just wondering, is there anything that we can do to help you? Is

there something that we could pass or something that we could demand? I mean—— Mr. HADDEN. Well, I am trying to avoid the natural instinct to

say resources is clearly an issue for us, but, in all seriousness, it

is an issue for the Commission in terms of what the Congress can

do.

I know that, in the past, the Commission has been the beneficiary of an increase, but that is certainly one thing.

I think the other is this kind of dialog and attention to the problem, and I think that helps. The task force is also helpful.

Mr. BROSTEK. I would like to followup on that. I think we are

having this hearing today, in part, due to what you and Mr. Wynn

have done, by asking us to do a series of assignments, to analyze

the situation, and determine what the facts are for the situation.

I think is a reasonable expectation for you to also have of the agenVerDate 11-MAY-2000 12:51 Feb 15, 2001 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 C:\DOCS\68877.TXT HGOVREF1 PsN: HGOVREF1
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cies and EEOC provide you some fact-based analysis of what the

problems are, what their work load is, what kind of resources they

need to deal with that work load.

I think asking for that kind of information from the agencies and

EEOC will help you make more-informed decisions about what

kind of resources ought to be made available.

Mr. CUMMINGS. Well, Mr. Brostek, I am so glad you said that,

because I want to pick up where the chairman started.

He started by asking you all about some things that may have

been stated back in 1995. Here we are, going on 6 years later, and

I am just wondering—you know, I think one of the things that is

so frustrating for us a lot of times is that we don’t like to think

that we are meeting just to be meeting, and we like—in order for

us to feel that we are making some progress, it is nice to have

some type of measuring tool to figure out did we accomplish something or didn’t we or would it have been better off for us to be playing golf somewhere instead of wasting everybody’s time.

I am very serious about that.

So the question is: if we come here a year from now, I mean,

what should we expect to see? And I would like to be able to

focus—just like the chairman quoted from 1995, I would like to

have a quote so that whoever is here can sit and say, ‘‘Now, back

there in March 2000 you said.’’

Now where are we? What can we expect? You have told us about

the regulations from November in answer to the chairman’s question. I mean, you did say that the situation was worse than a few

years ago.

Mr. BROSTEK. It certainly is in terms of the number of cases and

the backlog.

Mr. CUMMINGS. Right. So now the things that you said are

worse—Mr. Hadden talked about the optimism coming from the

regulations in answer to the same question. So now the question

becomes: what should we reasonably expect within a year from now

so that we can quote you and say, ‘‘You said we would be here. We

should be here by now?’’

The reason why I am asking that question is I am not trying to

mess with you. I guess it is so that we don’t keep doing the same

things over and over again.

There was a song way back when in my younger days that said,

‘‘You have got me going in circles,’’ and in some kind of way we

have got to get off the circle because lives are being affected every

day.

So if you could tell us, give us a nice statement so that we could

have a nice measuring tool, so that, if it is you, or whoever is sitting in your position a year from now, we can take it—load the

statement up on a big screen and say, ‘‘Have we accomplished this

and where are we? And, if we haven’t accomplished it, why haven’t

we?’’

I am listening.

Mr. BROSTEK. Well, I don’t think it is really the——

Mr. CUMMINGS. I would like to hear from both of you, by the

way.

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Mr. BROSTEK. I don’t think it is really the General Accounting

Office’s role to set the goal for the EEOC or the agency, but I would

certainly think that what you have been told——

Mr. CUMMINGS. What would you hope for? And then I will ask

my friend, Mr. Hadden, another question.

Mr. BROSTEK. I would hope that the beginning decline in the

number of cases going into the system would continue to be the

trend—that we wouldn’t see it going up any longer; we would see

the number of new cases going down.

I don’t know what we can expect next year for the EEOC caseload, because they still have this huge inventory of cases out there

they have got to work on, but you certainly would want the initial

cases coming in to continue going down, and you wouldn’t want to

see too long before the trend in EEOC, itself, with the hearings and

appeals workload start going down. I just don’t know whether that

is reasonable next year.

I think you would also reasonably expect that by this time next

year there would be some clear resolution to the data problems and

clear identification of the data that EEOC and the agencies will

track to determine what the causes of the conflict are that underlie

these complaints.

Mr. SCARBOROUGH. OK.

Mr. HADDEN. I would add I agree with all of that. I think that

certainly is reasonable. But I think, in a more broad brush, what

you should see next year is, as a result of the partnerships that we

have with the stakeholders, identification of some of the best practices of Federal agencies, and also on the private side. That is one

of the teams that we have on this task force.

I think that will be very helpful to know. What are the best practices? What are the prevention strategies which we know work?

Those are, I think, important measures.

The numbers certainly, you know, count, but for the Commission

I go back to its mission of eradication of discrimination. And I hope

that we will next year this time be able to get to the point of using

ADR much more efficiently and effectively throughout the Federal

community so that we can focus on those egregious cases which we

don’t want to see. We do want to see the Federal Government truly

become a model employer.

Mr. CUMMINGS. Last question: would it be helpful for us to set

some goals so that when you go back to your task force you can

say, ‘‘Well, this is what the Congress has said they want to see

within a certain period of time?’’

I mean, I understand that there are pressures coming from all

around, and that sometimes it is helpful to go back with something

saying, ‘‘Look, I just left the Congress, and this guy, Cummings,

was going crazy, and so this is one of the things he and the chairman said and Ms. Norton, and they are very upset, and so this is

what they have asked us to do.’’ Would that help you?

Mr. HADDEN. I can only tell you that anything helps in terms of

getting the message out, but I think that we at the Commission

have been on message in terms of recognizing the flaws with this

EEO process and have been driven in short order to make some

changes in dramatic fashion. That certainly would help. But I

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think that, more importantly for us, it is a resource question in

terms of what we ultimately can deliver for the Congress.

Mr. CUMMINGS. Thank you.

Mr. SCARBOROUGH. Thank you, Mr. Cummings.

Mrs. Morella.

Mrs. MORELLA. Thank you, Mr. Chairman.

I think this is an important meeting. It is kind of like deja vu

all over again, because it is not the first hearing that we have had

on this issue. I think we assumed that we had given adequate tools

and mechanisms for streamlining the process, since we had all

heard from constituents about backlogs and not feeling that anybody was paying attention.

I was surprised also to find, up to this point—and I say ‘‘up to

this point’’ because I think we are going to look ahead at what can

be done and should be done, but I am surprised that we didn’t have

an actual analysis and statistical numbering of the number of

cases, the causes. I know you are starting to do that, but I kind

of had assumed that this was automatically being done.

All right. In July of last year, my office met with Patricia

Crawford and Ida Castro to talk about what needed to be done,

what the problems were facing the EEOC, and it was their goal to

implement the changes to the problems that I know that Congressman Wynn earlier addressed and that you have heard here today,

too.

The discussion had to do with agencies will be no longer able to

rewrite the decisions of the administrative judges. They may now

only accept or reject; improved FMLA claims—family and medical

leave claims—now they will be approached as a whole and the

agency may not fragment the claim; EEOC will take part in the

claim throughout the process, instead of coming in at the end,

which would minimize the agency’s ability to delay; and hiring 19

administrative judges and 14 appellate, because the President had

given more money for that.

Now, I am wondering, looking at some of those changes, if you

would—I know I guess they started in November, as you have said.

How successful do you see these changes as being? And are there

other remedies? I want to ask you another question after that, but

are there other remedies that you are addressing? I know you

talked about the alternative dispute resolution and the inter-agency committee.

Mr. HADDEN. Just to clarify, we do have reports to do the analysis of, agency-by-agency, the number of complaints filed, the number of cases for which discrimination is found, but we want to improve the accuracy and reliability of that data, and we want to certainly start counting the number of individuals, so we have that

data available.

In terms of the success of those things that you have mentioned,

it is—and I hate to keep saying it. I feel like I am dodging the

question, but it is March and we began in November.

We are excited and think that they will, in fact—certainly the resources which were provided us by the Congress have made a tremendous difference in terms of, if not reducing the inventory, reducing the time it takes to handle complaints.

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But when you are talking about a reduction of perhaps a month

in the inventory, it seems somewhat small, and so I don’t like to

talk too much about those, but those resources have made a tremendous difference.

I think a lot of this can hopefully be turned around with the dialog with our stakeholders—and our stakeholders include Congress—in terms of what is it that your goals are and how is it that

the Commission can go about doing those.

Mrs. MORELLA. Would you like to comment on that, Mr. Brostek?

Mr. BROSTEK. We really haven’t looked at the effect of these recent changes.

Mrs. MORELLA. So you think it is pretty early. That is what you

are both sort of saying. We have got the goals, we are going to do

it. We are going to reduce that time element, too, and that backlog.

You mentioned you have the resources, so that is not a problem.

You have the will?

Mr. HADDEN. Right.

Mrs. MORELLA. And you think you have the recommendations to

do that. Did you want to comment?

Mr. BROSTEK. If I could, just for a second. It kind of goes back

to Mr. Cummings’ point about what goals should we set. You know,

there is the Government Performance and Results Act process——

Mrs. MORELLA. Yes.

Mr. BROSTEK [continuing]. That requires agencies, themselves, to

set goals, and you are intended to be consultants with the agencies

as those goals are being set, and then it is legitimate for you to

hold the agencies accountable for reaching those goals or explaining why they haven’t done that.

I would suggest that looking at the strategic plan and the annual

performance plan of EEOC, as well as the agencies, to see whether

they set those goals and you are satisfied with them would be a

good technique.

Mrs. MORELLA. That is an excellent point, because it is a very

important law that we have and we need to do the oversight on it.

A final point. I know that mentioned in the testimony—I think

it was probably yours, Mr. Brostek—was the fact that EEOC also

has a responsibility to try to eliminate discrimination in the workplace, and I guess, from what I understand, not that much has

been done in that regard, maybe because of the backlog or bureaucratic difficulties that were faced. But I am wondering about

whether you have some programs in mind, what you are doing in

terms of a program to eliminate this discrimination, certainly reduce it significantly.

Mr. HADDEN. Our comprehensive approach, in terms of using all

the tools, we have a complaint investigation which agencies use,

and also the hearings and appeals, but what we are hoping will

happen is, through onsites of Federal agencies, where we go out

and actually visit with the agencies and employees, will lead us

and put us in the posture of preventing complaints from arising in

the first place.

I think we have had some very good successes, in terms of the

mission, itself, the appeals staff who write the cases and actually

have to make judgments, as well as our administrative judges, in

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terms of eradicating the discrimination. I mean, that is kind of a

reactive posture.

What we want to do is use everything—use our outreach, use our

technical assistance for all of our stakeholders to talk about these

very issues.

I think, by having a dialog with all of the parties, including the

administration and the agencies, we will make some dramatic implementations.

Mrs. MORELLA. Do you find that there is a preponderance of

cases from some agencies more than others? Do you have a record

of that?

Mr. HADDEN. Well, we know that the Postal Service is one of our

biggest stakeholders. And, generally, if you start looking at the Defense agencies, it pretty much follows where the large number of

Federal employees are.

Mrs. MORELLA. So you give the greatest interest and concern and

remediation to those agencies, I would assume?

Mr. HADDEN. We try to take an approach of not just looking

where the numbers are, but where the problems are, and what we

hear from our constituents and from our stakeholders. It may be,

in fact, a much smaller agency that may, in fact, deserve our attention.

Again, to use the question of where do we target our resources,

we have a lot of requests to come and visit an agency and do an

onsite review. We don’t have the staff, so we have to choose, and

we choose based upon an assessment of the information that we

have, looking at the reports we have gotten in the past in terms

of complaints and other information that we may have received. So

it is not necessarily the number of employees that dictates where

we go.

Mrs. MORELLA. A subsequent meeting of this subcommittee will

be great when we analyze what has happened since this meeting.

Thank you very much.

Thank you, Mr. Chairman.

Mr. SCARBOROUGH. I thank you, Mrs. Morella.

You know, hearing Mrs. Morella ask the questions, I started

thinking about the people that are up in the Civil Service panel,

and I believe all of us that are here today are probably within the

top five of Members with Federal employees in their District. I

know I come in at a strong three or four, and I know Mrs. Morella

is at the top. Ms. Norton, you probably represent one or two, yourself, don’t you, in D.C.

I would like to open it up for any questions you may have for our

panel.

Ms. NORTON. Thank you, Mr. Chairman.

First, let me say, Mr. Hadden, that I think the agency is to be

congratulated on the work it has done to improve its processes, and

particularly to begin to use ADR to look at and listen to the complaints about its processes and try to correct them.

I also recognize that there is a fatal flaw in the EEOC process,

and it is a flaw that comes from the 1960’s, and it is intolerable

this late in the day that complaints of Federal employees are processed differently from complaints of private sector employees, so

that if I happen to work for AT&T or McDonald’s, I come to the

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EEOC office and I say, ‘‘Tell me one way or the other, has there

been discrimination.’’ If I work for the FCC, or God help me if I

work for the Congress of the United States, which has even a

worse process, and I come and say, ‘‘I have to talk to the people

who I am accusing,’’ that is a fatal flaw. It is structural discrimination that is built into the process as it affects Federal employees.

Let me say to you, Mr. Hadden, nobody is going to be able to

break through that here in the Congress, as we have tried to do

for years, unless the EEOC can, first of all, show the that it can

deal with what it has got. Nobody is going to say, ‘‘OK, you can

now handle all the Federal employees’’ unless they can see that the

agency is, in fact, able to digest what it has.

I want to look at the ADR process. I agree with the rest of the

panel that it is key to moving cases in a fair and expeditious way.

I look at page 9 of your testimony, in which the EEOC seems to

me quite appropriately has used a test process. I am not sure why

you used the Census as the test process. I think it is OK, but it

seems to me that it would have been more suitable to use a section

or department of a Federal agency, since these are temporary employees, probably unrepresentative of the Federal Government.

First, let me ask you, except for the fact that they were going to

be here today and gone tomorrow, why did you use Census employees instead of employees of some Federal agency or a section of

some Federal agency?

Mr. HADDEN. We were approached by the Department of Commerce/Census to partner with them, and that is principally——

Ms. NORTON. See, that is what I mean. You have got to be

proactive, it seems to me, if you want to improve your processes.

They came to you.

Mr. HADDEN. Right.

Ms. NORTON. It seems to me that, in keeping with the concerns

about data, the first thing to do would have been to be as scientific

as possible if you are trying to implement a new system, and,

therefore, to look for some small part of an agency that was fairly

representative of Federal employees, because this is not going to

tell me whether this system works, because, if anybody is unrepresentative of Federal employees, there are people who are, many of

them, temporary people, out of work. If we try to recruit some

today at a job fair at the Convention Center, they are fine people,

but nobody would claim that they represent Federal employees.

So the first thing I would ask you is to do a real test somehow,

and you are in the best position to do this, to find us a representative group of employees from some agency. It doesn’t have to be a

lot of agencies.

I applaud your notion of going at this slowly.

Now, I look at what you say that you did. You looked—you know,

as a measure of your initial success, you say, of 192 complaints

filed to date, EEOC has identified 45 which were suitable for processing. Why is that a measure of success, that a quarter of the

cases that were filed were deemed suitable for process? Whose success does that represent, the success of the complainant, success of

the agency, success of the agency that is alleged being discriminated against? How are we judging success here?

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Mr. HADDEN. When we described that as a measure of success,

I think the question is—going back to the point that you may have

made earlier, Congresswoman, in terms of identifying and focusing

our resources on those cases for which we think there is something

there that needs to be focused on. And the statement that it is the

measure of success is an acknowledgement that there are some

issues which don’t really lend themselves to the full investigation.

For us, the attraction of the Census is that it is a neutral party

that is doing the assessment early on in the process.

Ms. NORTON. Excuse me? Any more neutral than any other Federal agency doing initial assessment?

Mr. HADDEN. Well, the question is: if the party in interest, which

is a Federal agency, is doing the intake of the complaint, is neutral,

there is a concern that a person may be more reluctant to share

what they know if they see the agency doing the intake of the complaint.

Ms. NORTON. Who is doing the intake? When filing against the

Census, itself, who is doing the intake?

Mr. HADDEN. I am sorry. The EEOC’s Washington field office is

doing the intake of the complaint.

Ms. NORTON. I see. You are doing the intake?

Mr. HADDEN. Yes, ma’am.

Ms. NORTON. In eliminating three-quarters of the complaints,

which may be entirely appropriate, what happened to the complaints eliminated?

Mr. HADDEN. They have the right to appeal to EEOC.

Ms. NORTON. No, what happened to them? Why were they eliminated?

Mr. HADDEN. The reasons may have varied. For example, timeliness—they were untimely complaints. They did not state a

claim——

Ms. NORTON. Mr. Hadden, may I ask that you submit to—you

have a small number of complaints here, 192 complaints. Would

you submit for the record to this hearing the disposition of the

three-quarters of the complaints that were deemed not suitable for

processing?

We are not going to have any sense of—you know, one question

we have is, you know, are people being discriminated against, why

are people filing more complaints. If all you give us is some bottomline figure, which is the number that you have processed, you have

told us very little.

Now, I am not suggesting that the three-quarters that were

eliminated should not have been eliminated, but I am suggesting,

with only 192 complaints, this committee should have been told

what was the reason for three-quarters not being deemed suitable

for processing so we could have some sense of how the process, in

fact, works, and it would have more credibility.

Now, I am interested in the administrative judge trying to settle

the case. You say, through the early neutral evaluation process, the

administrative judge tries to settle a case. The initial success, as

shown by this pilot, prompted the Department of Commerce to request an extension. How many cases were settled?

Mr. HADDEN. We would have to get that information.

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Ms. NORTON. Well, my goodness, Mr. Hadden. You say it is successful. We don’t know whether or not these cases were settled. I

mean, the whole point here is to try to see if ADR works. You come

with testimony that tells us it is successful, but you don’t tell us

if even one case was settled. That is very important information for

the committee to have and for the EEOC to have, and I ask that

it be submitted to us and I ask that you look at the settlement, see

what the settlement was.

[NOTE.—The U.S. Equal Opportunity Commission’s Office of Federal Operations report entitled, ‘‘Annual Report on the Employment of Minorities, Women and People with Disabilities in the Federal Government for the Fiscal Year Ending 1998,’’ may be found

in subcommittee files.]

[The information referred to follows:]

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Ms. NORTON. We ought to know whether the settlement was

some disposition within the agency, whether the settlement was for

cash. We ought to compare the kind of settlements you do with

what kind of settlements are done by the agencies.

I would have thought that the GAO would want to know the

same kind of information, and I would ask you that any work you

look at look more closely at the details of what is reported so that

we can have some basis to judge whether it is a success.

The GAO reports on a growing inventory, and it says that it is

taking—you say it is taking longer to process with a growing inventory. You also say there is a sharp increase in the average time to

process a case. Now, that is counter-intuitive. That is to say, if

there were a growing inventory, then you would expect the effect

on the agency to reduce the time to process a case. Can you explain

or can Mr. Hadden explain why, with a growing inventory, that

hasn’t amounted to some pressure for greater efficiency or innovations that might have tried to keep up with the time to process a

case?

Mr. BROSTEK. One of the things that we reported in one of our

earlier reports specifically for EEOC is they have become more efficient in the sense that their judges are processing more cases per

judge per year. The reason why the backlog is growing and the inventory and the time is growing is because there are more cases

coming in that even a more-efficient judge can process. There are

more sitting on the shelf——

Ms. NORTON. Well, that doesn’t have anything to do with efficiency. I don’t know whether the judges are more efficient because

they are not taking lunch hours or if they are more efficient because processes that increase the efficiency are being incorporated.

One would involve no more efficiency, simply more manpower, and

the other would involve greater efficiency.

What I don’t understand is what the agency is doing to meet the

greater inventory.

Mr. BROSTEK. Mr. Hadden could address that better than I.

Mr. HADDEN. The question—I want to make sure I understand

it, Congresswoman—is what is the EEOC doing?

Ms. NORTON. What I am saying, Mr. Hadden, is the pressure on

you is very great because there are more of these—you can’t do

anything about that. There are more of these complaints filed.

The normal reaction of a bureaucracy is the more—this is the

way the market is supposed to work—the more pressure I got, the

greater the incentive to incorporate measures that, for example,

shorten the time to process an appeal.

GAO reports sharp increase in the time to process appeal, even

as the number of cases has increased. That is why I say it is

counter-intuitive. It should be just the opposite—that you ought to

feel such pressure that you are looking for ways to shorten the appeal time, as there is a growing inventory, according to the GAO.

You would think that, instead of being, says the GAO, longer to

process a case, that the growing inventory would lead to a shorter

time to process a case.

I am looking for some way to explain these counter-intuitive results.

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Mr. HADDEN. I think that addresses—the question of data analysis is one of the issues of why we need to do a better job at being

able to answer those very questions.

The growing inventory is certainly a problem with agencies, as

well as the EEOC, in terms of the inventories are growing and it

takes longer.

I think what we have to do—and that is why I talked about the

computer-based training—is help the agencies understand how to

handle the cases, what is a proper investigation.

The bulk of the cases, I believe, you recalled was they are not

that complicated in terms of EEOC has expertise in investigation

of cases and we should be able to help them move those cases faster, as well as the Commission’s judges and appellate staff. We need

to study that.

Ms. NORTON. Yes. And, by the way, I am not suggesting—your

people are probably trying also to make sure that they do a proper

job. There were terrible things reported by the EEOC during the

1980’s that essentially, in order to process cases quickly, they were

essentially not processing them. That is the last thing I am suggesting.

Mr. HADDEN. Right.

Ms. NORTON. But I am suggesting that a greater inventory is a

wonderful incentive toward greater efficiency.

Now, the ranking member asked about goals and, you know,

wouldn’t quite specific goals be helpful. You did not mention that

on page 12 you have goals—— Mr. HADDEN. Right.

Ms. NORTON [continuing]. That I thought were rather modest,

and I wonder how you reached the goals you have.

Mr. HADDEN. Sure.

Ms. NORTON. You say 5 percent reduction in the number of hearings over 6 months, 20 percent total closures in the oldest group

of appeals. That must mean that it would be from the oldest, with

10 percent of appeals resolved within 180 days, etc.

How do you set goals, because it gives the appearance of just setting the most modest goal you can find in order to make sure you

can reach it.

Mr. HADDEN. Our goals are set based upon our resources, and

that is the fiscal year 2000 goals, I believe. We have to set goals

which we are hoping to achieve, and these goals were set based

upon what we know has happened and what resources we have.

Ms. NORTON. I only have one question beyond this, Mr. Chairman, but just let me say something about setting goals based on

your resources.

When I came to the EEOC, the backlog was scandalous, and the

way in which the EEOC handled its backlog was to come back to

Congress and ask for new resources, and Congress spit in the eye

of the agency, and that is because nobody—we could never give you

dollar-for-dollar to match the increase in cases.

I got a 50 percent increase in resources when I was at the EEOC,

and I am telling you nobody was handing out free money, and the

way I did that was to demonstrate that we were going to use the

process, and we put it in three separate offices, which cut the process time dramatically. We said, ‘‘If it takes you 2 years now—’’ this

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is private sector stuff—‘‘we will get it to 3 months.’’ But we said, ‘‘We can only do that if you give us the resources to do it.’’ Congress responded, because it knew it wasn’t being asked to do

the impossible, to match case for dollar. Until you are able to convince us that you are not setting such modest goals based on resources, nobody is going to be responsive with resources. You have

got to incorporate within your request for resources a showing of

efficiencies that cut the need for ever-increasing resources.

I think that Congress has been responsive in the past and can

be responsive in the future, and I cannot, in all seriousness, say

to Congress that I think that whenever EEOC comes in and says

it has got more caseload you ought to give them more money, because that, in fact, does not reward efficiency and it seems to me

that if you show efficiency you have the credibility to get resources,

but not if all you say is, ‘‘Hey, we got more cases.’’ I would like you to take that back to the chairman, a very good

friend who understands, because I have gone to bat for her at the

Appropriations Subcommittee. I tell you, the Appropriations Subcommittee tells me, ‘‘The President asks for 37 percent resources,

you have got it.’’ He negotiated it. You have got to come in now and

do a quid pro quo.

Finally, let me ask you, the Congress approved an extraordinary

new provision in title seven in 1978. It gave the EEOC jurisdiction

to coordinate, and thereby eliminate, overlap and inefficiency

among all the agencies with job discrimination responsibilities.

That meant everybody from the EEOC to anybody who had something to do with job discrimination.

At the time I was at the EEOC—talking about Inter-Action

Agency Task Force—nobody put out a regulation that you didn’t

bring to the table, so that we weren’t all having different regulations and building inefficiency, because there are a number of different agencies.

You indicate that you have a inter-agency task force here, and

I applaud that, but I must ask you: has this addition to the statue

gone moribund, or are you engaged in coordinating all the agencies

which have job discrimination jurisdiction to make them speak as

one and to avoid overlap and inefficiency?

Mr. HADDEN. I would have to say I think we certainly need to

do better, in terms of enforcing that provision of the statute.

The inter-agency task force is a wonderful vehicle and tool, but,

notwithstanding that, the Commission has responsibility to coordinate with our Federal agencies.

We need to do better.

Ms. NORTON. That would include, of course, the agencies that, of

course, feed into your system.

Mr. HADDEN. Right.

Ms. NORTON. You have the jurisdiction. It was considered one of

the great new additions to title seven of the 1964 Civil Rights Act.

May I ask that you and the chairman and the Commission provide for this committee what you intend to do to fully activate the

provision added in 1978 that gives you the authority to coordinate

across the board, including the Federal agencies that feed into your

system, all agencies having title seven or job discrimination jurisdiction?

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Mr. HADDEN. OK.

Ms. NORTON. Thank you, Mr. Chairman.

Mr. SCARBOROUGH. I thank the gentlelady and certainly appreciate her coming to this hearing, being really, obviously, an expert

from her position as heading this area up back under President

Carter.

Again, I appreciate your time.

Mrs. Morella, do you have any followups?

Mrs. MORELLA. Just one on the ADR.

I note that the Postal Service has been employing it. You mentioned they had the greatest number of complaints because they

have the greatest number of employees. They have been employing

it, and, according to the testimony, it has made a significant difference.

How do you, in discussion surrounding the concept that we are

trying to promote ADR in all the agencies—if, in fact, it is a matter

of one’s choice, what are you doing within the agencies to get people on track to employ or become part of the alternative dispute

resolution situation?

Mr. HADDEN. The requirement of ADR is relatively new for EEO.

We are looking at how each agency—we are giving them a lot of

flexibility and we will look at what works best. The REDRESS program at the Postal Service certainly has been very effective. I think

there are some broad principles that we think work—commitment

from the top level of the agency, the head of the agency, a fair process. Those are some of the hallmarks that we would look for. I

think those would encourage people to use ADR throughout the

process.

The key is integrity and fairness, I think, in large part.

Mrs. MORELLA. Should it be mandated in some way?

Mr. HADDEN. The Commission doesn’t require that, for example,

if an agency chooses to have its managers, as a requirement that

they go, that is a choice that an agency can make.

We have not given a lot of regulations on the ADR process, because we want agencies to have as much flexibility as possible in

designing their program.

Mrs. MORELLA. Yes.

I think this will probably be coming up in another panel. Thank

you, Mr. Chairman.

Mr. SCARBOROUGH. Thank you, Mrs. Morella.

Mr. Cummings.

Mr. CUMMINGS. Mr. Hadden, in light of the excellent line of questioning on the part of Ms. Norton, I hope that you all will—I mean,

I know you have got your performance goals on page 12, and for

fiscal year 2000, but I would hope that, when you develop them for

2001, you will take into consideration the things that Ms. Norton

has said. We do see her as a leader in this area. She knows her

stuff backward and forwards, and when she says that the goals are

just not up to what they ought to be, you can bet your bottom dollar that carries a lot of weight with us, and so I would hope that

you all would take those comments into consideration when you sit

down to rate your future goals.

Thank you, Mr. Chairman.

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Mr. SCARBOROUGH. Thank you, Mr. Cummings. I want to second

that. I think we all pay a tremendous amount of deference to Ms.

Norton’s insights on this issue.

Ms. Norton, any followups?

Ms. NORTON. No, Mr. Chairman.

Mr. SCARBOROUGH. OK. Thank you.

And I am just going to submit a question. You said that it appears that minorities are placed in positions that are dead-end employment tracks, while others are allowed to be put into positions

or are more likely to be put in positions that will ultimately—management spots in Federal agencies.

Again, we are going to keep it open. I want you to give us any

information you may have to substantiate that claim or refute it.

[The information referred to follows:]

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Mr. SCARBOROUGH. With that, I thank you for coming. I know,

obviously, the questions have been difficult, but, Mr. Hadden, especially you, we look forward to seeing you again next year, when I

know we are going to have some very—don’t roll your eyes—we are

really going to have some very positive, very, very positive statistic

to show that those regulations that were just, in all fairness, implemented 6 months ago, combined with other alternative dispute resolution process, will bring the number of complaints down, and I

think, more important, that we all get together and work on a bill

that will make sure that you all have the resources you need to get

immediate reporting of EEOC complaints on the Internet.

I thank both of you for coming, and we will go into the third

panel.

OK. We are going to take a 5-minute break and be right back.

[Recess.]

Mr. SCARBOROUGH. We will call the meeting back to order.

I would like to welcome our third panel here and ask that you

raise your right hands.

[Witnesses sworn.]

Mr. SCARBOROUGH. Our third panel consists of Gerald Reed, Cynthia Hallberlin, and Roger Blanchard.

Mr. Reed is president of Blacks in Government; Ms. Hallberlin

is chief counsel of alternative dispute resolution at the U.S. Postal

Service, and she is also the national program manager for REDRESS, the Postal Service’s mediation program for resolving EEO

complaints. REDRESS is an acronym for Resolve Employment Disputes, Reach Equitable Solutions Swiftly. Mr. Blanchard is the Assistant Deputy Chief of Staff for Personnel at the U.S. Air Force.

Both Ms. Hallberlin and Mr. Blanchard are accompanied by subject matter experts that will join them at the table, and I will ask

each witness to identify their expert when they testify, and we

have already sworn them in.

With that, why don’t we start with you, Mr. Blanchard, if you

could give us your testimony.

STATEMENTS OF ROGER BLANCHARD, ASSISTANT DEPUTY

CHIEF OF STAFF, PERSONNEL, U.S. AIR FORCE; JOE MC

DADE, ASSISTANT GENERAL COUNSEL, OFFICE OF THE SECRETARY OF THE AIR FORCE; CYNTHIA HALLBERLIN, CHIEF

COUNSEL OF ALTERNATIVE DISPUTE RESOLUTION PROGRAM, NATIONAL PROGRAM MANAGER OF REDRESS, U.S.

POSTAL SERVICE; AND GERALD R. REED, PRESIDENT,

BLACKS IN GOVERNMENT

Mr. BLANCHARD. Mr. Chairman and distinguished members of

the Civil Service Subcommittee, it is a great honor to be here representing the men and women of the U.S. Air Force and to report

on the subject of alternative dispute resolution.

We have been successfully using ADR to resolve Equal Employment Opportunity complaints for 6 years, and we are thankful for

the opportunity to be here and discuss it with this committee.

Joining me today is the Air Force’s recognized and unequivocal

expert on ADR, Mr. Joe McDade. Joe works as Assistant General

Counsel in the Secretary of the Air Force’s General Counsel Office,

and he is responsible for assisting in the development of the Air

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Force-wide ADR policy, plans, and programs. He has been affiliated

with our ADR program since its inception and continues to make

it the award-winning program that it is.

We would ask that our written statement be entered into the

record—— Mr. SCARBOROUGH. Without objection.

Mr. BLANCHARD [continuing]. And I will summarize the written

statement as follows:

Alternative dispute resolution works for us in the Air Force. We

have experienced approximately a 70 percent resolution rate of

cases that come before the alternative dispute resolution process.

It is not a panacea. It does help to promote communications, fosters

workplace harmony, and empowers employees and managers to

keep complaints and communication problems to a minimum and

keep formal complaints out of the EEO process.

It takes commitment. We have been at it for over 6 years. It

takes senior leadership commitment, which we have enjoyed from

the Secretary of the Air Force and the Chief of Staff. Over the last

period of time, the Secretary of the Air Force has issued five statements of support for ADR.

It takes extensive and continuing training, not only for practitioners of alternative dispute resolution, but for supervisors and

managers, as well. We have had a strong effort on that part.

Our ADR program is part of a larger effort in the conduct of our

overall EEO program of education, attention, and support. It is incorporated into our program and into our EEO personnel, who are

the main players in the administration of our ADR program.

With regard to the application of technology, we have worked on

and are developing functionality for a system that we call EO-net,

which is a data system which will provide for the collection of complaint information and, further, will provide for communication

among and between EEO practitioners across the Air Force. They

will be linked through this system, and we will be able to use this

system for policy dissemination and discussion, including chat

rooms. This is a secure, password-protected system which responds

to the sensitivity, in many cases, of EEO data.

Our ADR system is critical to the effective agency operations. As

you know, the Department of Defense has undergone significant

downsizing, and, in the context of that downsizing, every employee

performing at peak efficiency has become a premium issue.

Workplace disputes are costly to productivity, and EEO complaints are among the most contentious and difficult of workplace

disputes.

We believe that ADR returns employees to productive status

quickly, and thereby is critical to readiness and mission effectiveness in the Department of Defense.

I would like to conclude my brief statement on these two points:

ADR is working for us, and we applaud the EEOC’s efforts to require its involvement in EEO complaint resolution processes. We

have collected our experiences into what we call a compendium of

best practices, which is available to all on the World Wide Web

through our ADR World Wide Website—not to suggest that we

have all the answers, but we have collected our experiences and

made them available.

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We are in the process of building a 5-year ADR plan, which will

continue our progress and continue to refine our processes.

We would like to conclude on those comments.

Mr. SCARBOROUGH. Thank you. We appreciate the testimony.

[The prepared statement of Mr. Blanchard follows:]

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Mr. SCARBOROUGH. Ms. Hallberlin.

Ms. HALLBERLIN. Good morning, Mr. Chairman and other distinguished committee members.

I ask permission that my entire statement be entered into the

record.

Mr. SCARBOROUGH. Without objection, so ordered.

Ms. HALLBERLIN. Thank you.

REDRESS began about 6 years ago in three cities in the northern district of Florida. Today, REDRESS is available to every postal employee across the country in the U.S. Postal Service.

I am going to focus my remarks on three things: how REDRESS

works, how it is different from other mediation programs, and why

it is successful.

Here is how it works: when an employee contacts an EEO counselor, he or she is offered mediation in lieu of traditional EEO

counseling. If an employee chooses mediation, a professionally

trained mediator, not a postal employee, brings the parties together

within 2 or 3 weeks, face to face, to solve their problem.

The employee can bring any representative of their choice, which

usually is a union official. The mediator acts as a facilitator and

tries to help the parties understand each other and resolve their

problems.

The Postal Service uses exclusively mediators that are trained in

the transformative model of mediation, and this is a distinctive difference from other organizations. The best way to explain the

transformative model is to contrast it to the more-traditional model

of mediation that you might be more familiar with.

In a directive or valued mediation model, the mediator’s role is

to guide the parties toward settlement on terms that the mediator

believes are best for the parties. On the other hand, in transformative mediation the mediator supports the parties’ decisionmaking, allowing the parties to direct the process and to control

the outcome of the mediation.

Transformative mediation aims at supporting and addressing

communication problems between employees and their supervisors.

Resolving disputes is certainly an over-arching goal, but research

suggests that the process of resolving disputes in a facilitative,

transformative manner rather than directive creates better and

long-lasting upstream effects in the workplace.

Over the past 18 months since REDRESS was implemented, approximately 13,000 cases have gone through mediation, and 81 percent of these cases have been closed out.

What do I mean by ‘‘closed out?’’ They were either resolved, withdrawn, or dropped by the employee.

Another way of looking at it is that only 19 percent of mediated

cases go on to become formal EEO complaints. In contrast, when

complaints are not mediated, 44 percent—over twice as many—go

on to become formal complaints. That is a key success factor. Of

non-mediated cases, 44 percent become formal, but only 19 percent

of mediated cases become formal. This is clearly not accidental.

As highlighted in our written testimony, research studies indicate there is a strong correlation between the implementation of

REDRESS and a drop in formal EEO complaints, as has been alluded to here today during this hearing.

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Here is how the big picture looks: between 1990 and 1997, a 7-

year period, formal EEO complaints at the Postal Service doubled.

They went from 7,000 cases to 14,000 cases. Then REDRESS was

implemented and the trend reversed.

In 1999, for the first time in almost a decade, the number of formal EEO complaints at the Postal Service declined by 2,000 cases,

and the prediction is for a further reduction of at least another

2,000 cases this year.

Another indication of success is the satisfaction shared by all the

participants at the mediation table. We have analyzed over 26,000

exit surveys given to all participants at the end of every single mediation conducted at the Postal Service. Those surveys indicate that

over 90 percent of supervisors, employees, and employees’ representatives, who generally are union officials, are either satisfied

or highly satisfied with the mediation process.

What is truly remarkable is that there is no statistical significance in satisfaction between employees and their supervisors— both equally satisfied with the entire mediation process.

REDRESS has been a significant component in the Postal Service’s efforts to improve the workplace environment, as it has contributed to the reduction of formal complaints, it has closed out the

majority of cases, and has satisfied nearly all the people that come

to the mediation table. The Postal Service hopes to continue to expand the program and make a positive impact on the workplace.

Thank you.

Mr. SCARBOROUGH. Thank you. I appreciate your testimony.

[The prepared statement of Ms. Hallberlin follows:]

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Mr. SCARBOROUGH. Mr. Reed.

Mr. REED. Good afternoon, Mr. Chairman.

I ask that my written statement be entered into the record.

Mr. SCARBOROUGH. Without objection, so ordered.

Mr. REED. Chairman Joe Scarborough and distinguished members of the subcommittee, I would like to thank you for this opportunity to testify.

In addition, I would also like to thank the chairman and also

Congresswoman Norton and Congresswoman Morella for attending

and speaking at the Blacks in Government Policy Conference last

year.

It is my privilege to appear as the president of Blacks in Government to present the views of African American government employees. I call this testimony my ‘‘Nine Plus Nine Testimony’’—nine potential issues and nine potential recommendations.

I thank the chairman for his leadership in this vital area of public concern, and I would also like to thank the ranking member, the

Honorable Elijah Cummings, and the Honorable Albert R. Wynn,

for their leadership.

I would now like to briefly summarize my written testimony.

Discriminatory behavior is no longer sanctioned by the Government. Indeed, it is unlawful. But for a brief moment let’s forget

about the sordid history of racial oppression in America and let’s,

even for a moment, forget about African Americans, but only for a

moment, and let’s talk about unfair and wasteful government and

let’s talk about the money.

In two notable cases, which clearly documented race and sex discrimination, it cost the Government a great deal of money. The Library of Congress recently paid $10 million and the Voice of America and U.S. Information Agency are about to pay more than $520

million as the result of class action race and sex discrimination

lawsuits.

If someone stole $10 million from the Government, what should

happen to them? If someone stole $520 million from the Government, what should be their penalty?

The executives of the Library of Congress, the Voice of America,

and the U.S. Information Agency stole massive amounts of money

from the public coffers. These crimes have had no cost to the Federal agencies involved and no personal penalties have been visited

upon the offending parties. These title seven violations that result

in losses of Federal money of any amount should be treated just

like any other criminal acts and the offenders should have to pay

substantial fines and/or go to jail.

That is the big picture. Here are some details concerning what

is wrong with the system that tells us how and why we generate

these large payments of discriminate lawsuits.

No. 1, the EEOC handles complaints in a way that makes it impossible to capture the full extent of employment discrimination in

the Government.

No. 2, in particular, nefarious techniques are used by the Government to eliminate some 60 to 70 percent of the complaints alluded to by Congresswoman Norton.

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No. 3, Federal agencies sabotage employees’ EEO cases. Employees generally have no effective avenue for redress when this happens.

And, No. 4, if more Federal employees were financially able to

bear the cost of litigation, there would be a tidal wave of title seven

lawsuits in Federal court today.

And, No. 5, the programs of Government reinvention have compromised the weak EEO complaint process by providing more management autonomy, including the autonomy to discriminate without accountability.

Agencies with class action complaints awaiting certification at

the EEOC, such as the Department of Commerce since 1995, are

implementing new personnel systems. Such systems give managers

more flexibility and no accountability.

No. 6, the EEOC does not monitor agency mismanagement of the

complaint process. As an illustration, after settling the class action

complaint involved in the black farmers, a recent Office of Inspector General report on the status of civil rights efforts to reduce the

backlog of EEO complaints in the Department of Agriculture stated, ‘‘The problem we noted before in the complaint resolution process also continues. Civil rights data bases remains an unreliable repository of information, and its case files are too slovenly—means

careless in personal appearance—to ensure the availability of critical documents. A disaffected staff and a leadership vacuum have

contributed to a system that cannot ensure complainants a timely

hearing of their grievances.’’

No. 7, EEOC timeline guidelines for processing complaints are

typically ignored by the agencies, while complainants often have

their cases dismissed for similar violations.

No. 8, by failing to mandate compliance with administrative procedures to end discrimination, the entire EEO process is undermined and managers have no incentive not to discriminate.

No. 9, in a vicious assault on the whole EEO process, the Federal

Government now provides professional liability insurance to protect

Federal managers who may be charged with violating Federal employment discrimination laws.

If Congress intends to send a clear message to Federal agencies

that discrimination will not be tolerated, we urge this committee

to seriously consider the following recommendations:

No. 1, Congress should totally reinvent the EEOC and make it

responsive and accountable to regulatory timeline.

No. 2, the defendant agency should bear all expenses in cases in

which the plaintiffs prevail.

No. 3, Congress should implement a Government-wide policy

that supports employee organizations and empowers them to play

a greater role in civil rights policy within the Federal agencies. It

is called ‘‘diversity.’’

And, No. 4, Congress should require agencies’ civil rights offices

to be restructured so that civil rights directors answer directly to

the agency head.

No. 5, Congress should give the EEOC subpoena power over retired Government employees.

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No. 6, Congress should take the decisionmaking authority and

the EEO complaint process away from agencies and place it in the

EEOC.

No. 7, Congress should require the EEOC to impose sanctions

against managers and supervisors who are found to be in violation

of title seven of the Civil Rights Act of 1964.

No. 8, Congress should repeal Federal law providing for the payment of premiums for professional liability insurance for Federal

managers.

Finally, No. 9, members of the committee may wish to urge the

EEOC to write an amicus brief in support of Matthew Fall. Mr.

Fall is a Deputy U.S. Marshal who won a discrimination case

against the Department of Justice’s U.S. Marshal Service. However, the landmark $4 million jury award has been decreased to

$300,000. Mr. Fall is currently appealing the case, and rightfully

so.

Sir and committee, I thank you for your time.

Mr. SCARBOROUGH. Thank you so much.

[The prepared statement of Mr. Reed follows:]

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Mr. SCARBOROUGH. I want to begin now my questions with Mr.

Blanchard, and I want to commend you for the great work that the

Air Force has done.

Earlier I held up a chart of the administrative process for the

EEO complaint, and you had submitted that to me. Is it your testimony here today that this is actually a simplified version of this

process?

Mr. BLANCHARD. It is a reflection of the process as we understand it, without all of the footnotes and details that would be necessary to fully explain each block on the chart.

Mr. SCARBOROUGH. OK. Without objection, I am going to put this

into the record today. It is very interesting.

I wanted to ask you some questions regarding your successes.

Certainly, you have heard the testimony of Mr. Reed and heard the

testimony of others talking about how there has not seemed to be

accountability from certain Federal agencies. I know especially earlier today we had Congressman Wynn talk about problems with the

Department of Agriculture. Also, I believe Interior has been cited,

and other agencies.

I take it when the Air Force was developing their approach, their

very successful approach, you all obviously looked at what worked

and what didn’t work in other agencies. Is that an accurate statement?

Mr. BLANCHARD. Yes, sir.

Mr. SCARBOROUGH. Can you just give us a couple of examples of

the biggest differences of your program and, let’s say, Department

of Agriculture or Interior’s programs that have failed, and how has

that accounted for your successes and their failures?

Mr. BLANCHARD. Let me answer that this way. I think our experience has been developed over about a 6-year period, and we have

learned from the process as we have gone along during that 6-year

period.

These are difficult cases, as I mentioned, and they involve sensitive employee management relationships within the workplace.

We have attempted, in looking at other agencies’ experiences, to

learn what we can from them, but we have really developed what

we think works within the Air Force.

Within the Air Force, I think each agency—and I guess I would

argue for flexibility in agency ADR programs for agencies to develop ADR programs that are reflective of the culture of that agency. I think it is important within the culture of that agency for the

agency to have the flexibility to build a program that optimizes

that kind of performance.

Within the Air Force, we have tried to build a program over the

years that does reflect and promote facilitation and mediation as

the primary methods of ADR. We have had success with that. We

are learning about it as we go along, but it doesn’t stand alone. It

stands in conjunction with a very deliberate attempt to educate

managers, supervisors, and employees about the process.

We have trained and talked to over 1,000 supervisors. Joe

McDade goes out periodically and meets with line managers to educate them about the program. We issue guidance to managers and

supervisors through the formal communication process about the

program. These are all parts of the central program.

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We train people who do the mediation and facilitation work for

us. We have developed effective training courses on mediation and

facilitation in our school down in Alabama, and we continually

make those courses available to people to sharpen their skills.

Each case is different. Each case requires its own effort. But that

is the way our program works. That is the way we have been successful.

I think each agency has to really develop their own way here in

terms of the overall organization of an ADR program.

Mr. SCARBOROUGH. Ms. Hallberlin, I wanted to ask you a question. You have given the committee some remarkable numbers

about the Post Office, talking about 13,000 cases with the mediation, 81 percent closed out, only 19 percent still active. That is

down from 44 percent for those cases that did not go to mediation.

What is the biggest lesson you have learned regarding mediation,

ADR, or REDRESS, as you all call it, and what can we gain from

that as we try to apply? What would you recommend we apply to

all Federal agencies to keep their feet to the fire to make sure we

come back 5 years from now and the situation is not as bad as it

was in 1995?

Ms. HALLBERLIN. In answer to your first question, what is the

greatest lesson I learned, I am continually amazed at the remarkable transformation or shifts that happen to people when they are

brought face-to-face to talk about their problems within a few

weeks of it arising. What continually surprises me is, when you

bring someone to a table with someone who is acting as an outside

neutral, and when they start to talk to each other, how much they

can shift their impression and understand each other more and resolve what began as maybe simple and disturbing disputes, resolve

them early before they go throughout and drag in the system and

become complicated and entrenched and much larger.

So that is a lesson I have learned is the sooner you bring people

together and support them in their own conversation and dialog,

they, themselves, have tremendous capacity to resolve their problem.

What can you do for other Federal agencies? I think you can continue to support alternative dispute resolution in Federal agencies.

We have seen it in the Postal Service as a tremendous device to

resolve complaints early and to the satisfaction of those who have

the problems.

So, to the extent that other agencies are supported in this initiative, we are very similar to my colleague here, Mr. Blanchard. We

have been working at this for 6 years. It is a long process. It is

complicated.

We also do tremendous outreach efforts and training. We have

trained over 15,000 employees and supervisors. We trained outside

mediators who come in and mediate for us. We train supervisors.

We train our EEO professionals, our labor representatives. We

have invited the unions.

Just as you had said, this is a comprehensive effort. You can’t

just drop a program on an agency. You have to build it brick by

brick and always work at incorporating and partnering with all

your stakeholders who are involved.

Mr. SCARBOROUGH. OK.

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Let me ask you, Mr. Reed—I appreciate your testimony. Obviously, your testimony, the part that will cause most people to stand

up at attention is your statement that certain violations of title

seven should be criminalized. Is that an accurate reflection of your

testimony? Do you think Congress should pass a lawmaking violations of title seven and also discrimination in the Federal Government a crime punishable by jail time?

Mr. REED. Exactly.

Mr. SCARBOROUGH. OK. All right. Would you like to—for those

Members of Congress who may not agree with you and would want

to be persuaded, could you give me a couple of examples of how you

think this would help, obviously, stop discrimination in the work

force?

Mr. REED. Well, the key thing to title seven is enforcement and

accountability. If there is no incentive to enforce the mandate by

title seven, and that is the vehicle by which these managers and/

or supervisors are managing the process, then, therefore, why do

you have a process in the first place?

It is an issue, as we go now into the NPR—national partnership

for reinventing Government that started back in 1993, doing more

for less, the No. 1 criteria in 1993 was to decrease the work force.

I think the administration stated that we wanted to remove

252,000 positions, which they did. I think it is now at 386,000. But

the No. 1 vehicle within that process was called ‘‘privatization,’’ and privatization, the No. 1 vehicle is contracting out.

So when you privatize and outsource and downsize and are contracting out everyone, and not having the accountability to enforce

the process by which these folks are being hit against in terms of

discrimination, then where are you?

Mr. SCARBOROUGH. Yes. You know, we have heard today from

testimony from the first two panels the discrimination in the work

force and the EEOC’s failure to redress such discrimination has

been bad for some time. It was bad in the early 1990’s, 1995. Somebody that testified in our second panel today said it was awful back

then, inefficient, time-consuming, and he has come by and he testified a few hours ago that it is even worse today than it was in

1995.

My question is: who is to blame here? In your opinion, in this

whole reinventing process, where does the blame lie? Does it lie

specifically with the EEOC, or does it lie with managers, does it

lie in individual agencies? Who is to blame? Somebody has got to

be to blame for this. Who is it, in your opinion?

Mr. REED. The blame should lie with the ones that are circumventing the process. When you pull out the issue of fairness in

the Federal EEO complaint process and then you have to go before

a manager and/or a supervisor that may redress the situation in

which you stated that you have an EEO case, if they come with a

basis, as the ranking member stated, a basis and an issue of a complaint, they go before their EEO managers and their EEO officers,

and they walk out of a room. When they went in there with one

issue, they come out and present another issue, and then, when he

comes before the EEOC, cases are thrown out of court.

It is just a matter of how you manage the process and how you

circumvent the process. So who is to blame? Those are the ones—

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the ones that are to blame are the ones that circumvent the process

to their own gain.

Mr. SCARBOROUGH. I am going to have some followup questions

that I can’t ask right now because of time, but followup questions

regarding, Mr. Reed, your proposal on the criminalization of title

seven violations. I am going to send it to all three of you all and

have all of you comment on the positive aspects and also what you

see as some possible problems with that. And if you could respond

within 2 weeks, that would be great.

Mr. Cummings.

Mr. CUMMINGS. Thank you very much.

Mr. Reed, as I was looking through your recommendations—and

maybe I missed it—I didn’t see anything about ADR. I don’t know

whether that would have been included in the whole revamping of

EEOC. I was just wondering, give me your opinion on ADR.

Mr. REED. Personally, I believe the ADR is a pretty good vehicle,

especially if you can satisfy the complaints early on in the process

without them becoming formalized. So in my revamping of the

EEOC I would also include the ADR. No question.

Mr. CUMMINGS. So, you know, as I listen to Ms. Hallberlin, what

you say really makes sense of why the ADR process would work,

and, coupled with what you just said, Mr. Reed, it does make some

sense.

I think if you get to people early before it festers—if something

is affecting my whole life then I get a chance to talk to my sisterin-law, and then the people on the job, and the next thing you

know all of that adds to the whole process and it becomes much

more difficult. I mean, not only that, as time goes on I see myself

losing more benefits and more opportunity, and I am talking about

it constantly, but I am never facing the very person who is accusing me or I am accusing of. I guess that can kind of lead to some

real problems.

Is that why you say that if you can get it early?

Mr. REED. Yes, sir.

Mr. CUMMINGS. So you don’t have any problem with ADR—— Mr. REED. No, I do not.

Mr. CUMMINGS [continuing]. As long as you get to it early?

Mr. REED. No, I do not. Yes, sir.

Mr. CUMMINGS. Ms. Hallberlin, just going back to some things

that you said, do you find that people—do you find the morale

higher? I mean, in other words, Mr. Reed was just talking about

how when a person faces their accuser, then the accuser—he is

talking about the hearing process—and then they go and come out

and next thing you know you have got more problems. But, I mean,

do you find the process here, when you go through the ADR, that

you are able to get beyond that and people move forward? Or do

you see—and I don’t know whether you have been working with it

long enough to even be able to answer this question—do you see

things keep coming back and forth?

Ms. HALLBERLIN. Actually, we are looking at long-term effects of

the program. We have some information now. We hope to have

more later.

But what is really encouraging is that three-quarters of the participants around the mediation table indicate that they believe that

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the experience of the mediation will have a long-term impact on

the relationship they have with the person at the mediation table.

That is very heartening to the Postal Service management, who

is——

Mr. CUMMINGS. Do you mean the mediators say that? Is that

what you mean?

Ms. HALLBERLIN. No. In the exit surveys I alluded to earlier, the

26,000 exit surveys, we track—we have questions that ask both the

employees and their supervisors at the end of mediation, ‘‘Do you

think today’s experience at mediation will have an impact, a positive impact on your long-term relationship with either the supervisor or the employee?’’ And over three-quarters of the people that

go to the mediation table respond yes, they do. That is very heartening to us.

Mr. CUMMINGS. That says a lot.

Ms. HALLBERLIN. That means that within those concentrated

hours, 3 or 4 hours in which they are allowed to freely talk to each

other with the assistance of an outside mediator, they have begun

to understand each other more. They have heard each other. They

have recognized the differences of what each other means and their

intents, and they hopefully take that with them and believe that,

yes, when they go back to the work on the floor things will be better.

Mr. CUMMINGS. Mr. Blanchard, is your experience similar?

Mr. BLANCHARD. Yes, sir, it is. We certainly believe there is a

therapeutic effect to the ADR process in the workplace. We don’t

have hard data. We have anecdotal data coming from individual

cases and individual case examinations of workplaces, but our experience has been very similar to Ms. Hallberlin’s, as she describes

it—that there is a positive effect to workplace communications, and

especially if you consider that a number of the complaints that we

deal with in the ADR process in the early stages, as has been indicated, may not be exactly in the right process, may not be exactly

EEO kinds of complaints. They may be communications problems,

but they may not be based on a protected category of activity.

The reality is that the ADR process allows those complaints to

have a hearing, to have an airing, and through that process people

go back to work feeling like they had their opportunity.

Our facilitation process, which involves our EEO counselors, has

actually enabled them to gain stature in the workplace, as well, because they become peacemakers and end up bringing parties together around a solution, which is to the good of the overall process

in the end.

Mr. CUMMINGS. You know, I would imagine that if you could

come up with a win/win situation, as opposed to, ‘‘I beat you,’’ it

has got to be better, on a long-term basis, especially when you have

got to work with that person every day.

Ms. HALLBERLIN. Exactly.

Mr. CUMMINGS. You spend more time with that person than you

spend, a lot of times, with your own family. It just seems like that

would make a lot of sense.

Let me go back to you, Mr. Reed. You had said one of your recommendations was to subpoena retired employees. Can you help us

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on that one—supervisors, or—what are your recommendations?

The ability to subpoena them in?

Mr. REED. A key thing—you just want to make sure, when you

have a bona fide case, every entity that has input to that particular

case is able to be brought to the table. And so when you have a

Government employee that is no longer with the Government and

the EEOC cannot bring that person back, then, of course, that is

knowledge and that is testimony that you do not have that could

help your particular case.

Mr. CUMMINGS. Now, when you all were here a little bit earlier,

when you heard the problems about agencies not providing sufficient information to EEOC, did you all—were you all here?

Ms. HALLBERLIN. Yes.

Mr. REED. Yes, sir.

Mr. BLANCHARD. Yes.

Mr. CUMMINGS. I mean, did that surprise you? Mr. Reed.

Mr. REED. Negative.

Mr. CUMMINGS. Why not?

Mr. REED. Well, study after study after study are saying the

same thing. And when you come to this table before this microphone and come before the committee and say the same things over

and over again, it is not that shocking, sir.

Mr. CUMMINGS. Mr. Reed, do you have any confidence in what

the gentleman from EEOC said about what we will see in a year?

The reason why I am asking you this is not to create any kind

of one person going against another; it is just that when we sit

down it would be nice for us to know what you would like to see,

too. And so I am just curious. I mean, the testimony you heard, did

it give you any confidence? And what are your concerns, if any,

that when we come back here a year from now, what are you afraid

that we will or will not see, and what can we do to make sure that

doesn’t happen? Does that make sense?

Mr. REED. Yes, sir. No. 1, I do have confidence in what the

EEOC stated in terms of what is going to happen next year, because when he did refer to the stakeholders, I would like to state

that Blacks in Government is one of the stakeholders. When they

developed their inter-agency Federal task force, I am a member of

the senior leadership committee, so I am allowed to bring issues to

the table. So the key thing is—I know he alluded to resources, he

alluded to this and he alluded to that. If we stay focused on what

we have to do, we have all the stakeholders presenting the whole

9 yards, I believe if the stakeholders on the issues and they stay

focused, in terms of what they are trying to do within the EEOC,

hopefully we will see a difference next year.

Mr. CUMMINGS. Is there anything that we can do to help make

that process get to where you are hoping that it will go? In other

words, you know, it looks like the mechanism is set up to get it

done. I am so happy to hear that you are part of the process, and

apparently you feel that you are a meaningful part and viewed as

a meaningful part of the process, along with others.

Now, is there anything that we can do from our side to help you

all be effective? I guess that is——

Mr. REED. Is that short of an enacting legislation?

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Mr. CUMMINGS. Sort of, but, I mean, if there is some legislation,

we would like to know about that, also.

Mr. REED. Well, I am quite sure with my legislative team I could

bring forth to this committee in written form some better recommendations.

Mr. CUMMINGS. Why don’t you do that?

Mr. REED. Yes, sir.

Mr. CUMMINGS. Have you looked at the goals for the EEOC

goals?

Mr. REED. On page 12?

Mr. CUMMINGS. Yes, sir.

Mr. REED. Yes, sir.

Mr. CUMMINGS. And did you have any—I mean, how did you feel

about what Ms. Norton said about those goals?

Mr. REED. Ms. Norton was right on track in terms of how she

expressed, because Ms. Norton has been in the process for a long

time.

Mr. CUMMINGS. Yes.

Mr. REED. But you have also got to bear in mind that I know Mr.

Hadden, who has only been on board for a short period of time, has

inherited this process.

The fact is that Chairwoman Ida Castro—they are now bringing

in the stakeholders, they are going to the communities, and I hope

by what we bring to the table when we make recommendations to

this committee in written form, it is taken true to light, and hopefully maybe the EEOC can act upon that.

Mr. CUMMINGS. Mr. Blanchard, last but not least, when people

get through the ADR process, do you—I mean, is there any way for

you all to measure the morale of your—I mean, is there any kind

of analysis you do?

Mr. BLANCHARD. We are sharpening our ability to do that. We do

unit climate assessments in units now that take into account the

overall EEO climate within an organization, and ADR gets picked

up, to some degree, in those kinds of assessments. But we also

asked the Air Force audit agency to conduct a comprehensive review of our ADR program, and we have got that review. We are

studying those results and looking for ways that we, as we implement our 5-year ADR program—which I have to point out applies

not only to the application of ADR in employment disputes, but

also in contract disputes and across the board of interaction kinds

of disputes—as we develop that 5-year plan, we will incorporate

metrics in that 5-year plan that will speak to measuring how ADR

affects the workplace.

Mr. CUMMINGS. But you all know we can do better at EEOC. Is

that a fair statement?

Mr. BLANCHARD. In this area, sir, we can always do better.

Mr. CUMMINGS. Ms. Hallberlin.

Ms. HALLBERLIN. We can always do better.

Mr. CUMMINGS. Mr. Reed.

Mr. REED. Yes, sir.

Mr. CUMMINGS. One other thing, Mr. Reed, I would like for you

to submit those recommendations to us on the legislation that you

talked about.

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In conclusion, Mr. Chairman, it is interesting. You know, I think

sometimes the solutions to the problems are easy. I mean, we know

the solutions. It is like when my daughter was 2 years old and she

would put her hand up to her face and play hide-and-go-seek, and

she would put her hand up to her face and say, ‘‘Daddy, you can’t

find me,’’ and she was standing right in front of me. Sometimes I

think as adults we do the same thing. The solutions are there. The

question is whether we have the will to do it. It seems like you all

have—you know, at least you are going in that direction to do it.

The last thing I would just leave us with is I think we all realize

we only have one life to live, and this is no dress rehearsal, and

people are just trying to live the best lives that they can while they

are living.

And so I would hope that, you know, maybe the things that we

do, Mr. Chairman, can continue this process of trying to—sometimes we have to almost help people get married. That is what we

are talking about here, this ADR stuff—we are actually causing

people to sit down and look at each other and, even if they start

off as being, you know, mean, by the time they end up and hear

everything out and hear why one person did something, misunderstanding there, the next thing you know, you have got some type

of resolution that is so very important for the whole agency.

The most important thing, I think the thing that we leave out

of the formula, is that when we are able to do all of those kind of

things we all benefit. The country benefits. The employees benefit.

Their children benefit. Those are things that are very important.

So I just want to thank all of our witnesses for being so helpful,

and we will do everything in our power to make sure that we pursue this matter aggressively.

Mr. SCARBOROUGH. Thank you, Mr. Cummings. I want to thank

you, also. You and Mr. Wynn have certainly moved this process

along to this point. I think it is a great start.

I want to thank our witnesses.

Let me ask you, Mr Blanchard, you had said that you have a

Website that has a collection of best practices. What is the Website

address there?

Mr. BLANCHARD. Let me ask Mr. McDade.

Mr. SCARBOROUGH. Ask Mr. McDade.

Mr. MCDADE. WWW.ADR.AF.MIL.

Mr. SCARBOROUGH. WWW.ADR.AF.MIL?

Mr. MCDADE. Right.

Mr. SCARBOROUGH. OK. We will go to that and look at that.

Mr. McDade, we thank you for all your help in this process.

Your father wanted to ask you some very difficult questions, but

we refused to let him get a microphone under oath, going back to

high school. But we want to thank you, Mr. McDade, for coming.

The Congressman, obviously, has been a great man who had a

long, proud, dignified career, and it is an honor just to have you

up here with us.

I would thank all of you for coming and thank you for your recommendations.

We are going to leave the record open for 2 weeks for any additional questions that any Members may have or any statements.

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I thank you. I thank everybody for coming today. This has been

very informative, and it is beginning a process where we are going

to fix this.

We are adjourned.

[Whereupon, at 1:31 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

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