EEOC PROPOSED REPORT ON H.R. 1012, THE "FEDERAL EMPLOYEE DISCRIMINATION COMPLAINT PROCEDURES ACT OF 1989"

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92M00732R001100020055-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 23, 2016
• Document Release Date: April 25, 2014
• Sequence Number: 55
• Publication Date: August 15, 1989
• Content Type: MEMO

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TO:
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDCifr I
INAtIHINGTON nc; PO3
August 15, 1989
LEGISLATIVE REFERRAL MEMORANDUM
Legislative Liaison Officer -
Department
Department
Department
Department
Department
Department
Department
Murphy -
Department
Department
Department
Department
Department
Department
Department
Office of Personnel Management - Jim Woodruff - 632-5524
Council of Economic Advisers - Suzanne Tudor - 395-5036
Agency for International Development - Robert Lester -
647-8371
Central Intelligence Agency - Norbert Garrett - 482-6122
Environmental Protection Agency - Henry Schilling -
382-5414
Federal Emergency Management Agency - George Watson
646-4105
General Services Administration - Al Vicchiolla
566-0563
National Aeronautics and Space Administration -
Lynn Heninger - 453-1948
National Science Foundation - Charles Her - 357-9435
Small Business Administration - Clifford Downen-653-7581
Tennessee Valley Authority - Williard Phillips -
479-4412
United States Information Agency - Walter Raymond -
485-9591
United States Postal Service - Fred Eggleston - 268-2958
OCA 2873-89
OtA FIE � .
of Agriculture - Marvin Shapiro - 382-1516
of Commerce - Michael Levitt - 377-3151
of Defense - Sam Brick - 697-1305
of Education - John Kristy -732-2670
of Energy - Bob Rabben - 586-6718
of Health and Human Services - Fran White -
245-7760
of Housing and Urban Development - Edward
755-7093
of the Interior - Ralph Hill - 343-6706
of Justice - Carol Crawford - 633-2141
of Labor - Seth Zinman - 523-8201
of State - Bronwyn Bachrach - 647-4463
of Transportation - Tom Herlihy - 366-9293
of the Treasury - Richard Carro - 566-8523
of Veterans Affairs - Donald Ivers - 233-3832
SUBJECT; EEOC proposed report on H.R. 1012, the "Federal Employee
Discrimination Complaint Procedures Act of 1989"
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The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB
Circular A-19.
A response to this request for your views is needed no later than
Wednesdays August 301 1eS9,
Questions should be referred to Lisa Fairhall (395-3923), the
legislative analyst in this office.
Enclosures
Naomi R. Sweeney for
Assistant Director for
Legislative Reference
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VS, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20607
The Honorable William D. Ford
Chairman
Committee on Post Office
and Civil Service
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
003
f)RAFT
This is in response to your request to chairman Clarence
Thomas dated February 22,1989 that the equal Employment
Oppertunity Commission provide the committee with comments on
H.R. 1012, the "Federal Employee Discrimination Complaint
Procedures Act of 1969."
We appreciate the opportunity to comment on H.R. 1012. Our
review of the revised bill raise* several major concerns which
are outlined below.
H.R. 1012 imposes on EEOC extremely unrealistic processing
time frames, especially for an untried system, given the current
volume of federal sector complaint activity, past experience in
processing federal sector complaints and the substantial
increase in complaint activity which we would expect if H.R.
1012 were enacted. H.R. 1012 would require BEOC to serve a
detailed notice of the filing of a charge on federal entity
heads not later than 10 days after the charge was filed; to
investigate complaints within 90 days of filing and to secure
conciliation agreements on cause determinations within 150 days
of filings to conduct a hearing by an administrative law judge
(AI.a) not later than 120 days after receiving a request and to
issue an ALJ determination not later than 160 days after the
conclusion of the hearing and to adjudicate appeals in 90 days.
If there is no hearing by the ALJ, the determination is to be
made within 270 days after the request.
During fiscal year 1966, 79,903 persons received
pre-complaint counseling government-wide and 15,972 formal
complaints were filed. The government-wide average for
processing complaints from filing to decision during IPY '88 was
607 days and 418 days for all types of closures (i.e.
rejections, cancellations, withdrawals, settlements and
decisions). During FY '89, EEOC received 5/279 requests for
hearings and hearings were conducted on approximately 2,222
complaints with an average time of 100 days from hearing to
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The Honorable William D. Ford
Page two
decision. The average time for all types of closures (i.e.,
settlements, withdrawals, remands and recommended decisions) was
217 days. These figures demonstrate that the time frames in the
legislation are unworkable.
H.R. 1012 requires federal agencies to provide pre-complaint
counseling within 45 days. Presently, the majority of
pre-complaint counseling contacts do not result in formal
complaints because the matters are resolved or because aggrieved
persons are discouraged from proceeding under the Part 1613
procedures which are perceived by them as time-consuming and
biased in favor of the agencies. We would expect that under
H.R. 1012, the volume of complaints would increase
substantially, since agencies would be required to provide only
counseling, and at least initially, the perception of a new
procees ehould be optimistic.
We project more than 25,000 charges are likely to be filed
in addition to the approximately 6,000 cases assumed by EEOC
from the agencies in the first year. This assumption is based
upon our assessment that the novelty of the change, the
perception that the "fox [will no longer be guarding the
henhouse" and complainants expectation of more expeditious
processing by LEOC if they file complaints rather than resolve
them in counseling, will cause a significant increase in charges
over the current number of complaints filed per counseling
contact.
The time frame within which to issue a reasonable cause
decision is unrealistic. The bill requires EEOC to complete its
investigation and determine whether there is reasonable cause to
believe that the charge is true within 90 days after the charge
is filed. When a request for information from the agency is
called for, it could easily take half that time just to draft
and serve the request and secure a response. Although ZEOC
would make every effort to expedite this process, it is not
unreasonable for an agency to take 30 days to answer such
request and compile initial data sought by EEOC. Litigants in
court are given a minimum of 30 days to answer interrogatories.
In those instances when additional information is needed or if
the agency did not provide all of the requested information, the
remaining time could easily be expended on that task with no
time left for analyzing the information, researching or drafting
and finalizing the reasonable cause determination. Under the
current section 717 process, no federal agency has reported that
it 18 able to complete its investigations within 90 days. even
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The Honorable William b. Pord
Page three
if it Could be assumed that a reasonable cause determination
would require less investigative time and effort than a proposed
dispoaition requires under the current scheme, the 90-day time
frame i.e St112 unrealistic. In the private sector, EEOC
investigates and issues reasonable cause determinations; very
few of these reasonable cauee determinations are issued by EEOC
within 90 days.
Should Sten fail to process charges within the 90-day time
frame, a charging party would have the right to request a
hearing by an administrative law judge. This could backlog the
hearing process. On the other hand, the availability of
sufficient resources will control in large part whether charges
filed with 880C will be processed within the statutory 90-day
period. Insufficient appropriations or investigative resources
will require additional administrative law judge resources since
untimely investigated charges would result in more hearings.
The time frame within which to complete a hearing is
unreasonable. Paragraph (8)(A)ti) page 6 requires a hearing to
be completed within 180 days after it is requested. If there
are any discovery disputes or subpoena enforcement actions, the
180 days will easily pass before a hearing can take place.
The time frame within which to decide appeals is
unreasonable. Paragraph (CHIA) page 8 requires BEOC to decide
appeals within 90 days. Currently, the average time for
processing appeals by EBOC's Office of Review and Appeals is 137
days. Unless the number of appeals is greatly diminished, 860C
will be unable to comply with this time limit.
It appears the total cost of implementing H.R. 3.012 would be
almost $44 million for just the required staffing. Added to
this amount would be the cost for additional office space and
support as well as training investigators in this neW function.
If enacted, this bill would create a unique transfer of
personnel from virtually every executive branch component to the
EEJC. This situation would create monumental administrative and
logistical problems for the agency, including the potential of
uneupportable grades of the transferees causing a
reduction-in-force to reduce the grades after the end of the
one-year grace period provided in the bill.
We estimate approximately 1,048 new employees would be
required to perform the functions of H.R. 1012. This figure
incorporates employees transferring into the agency as well as
new employees to make up for the ESO investigative work now
being performed under contract for various federal departments
and agengiea.
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The Honorable William D. Ford
Page five
increaeed responsibilities under the proposed legislation, e.g.,
in bringing civil.actions for appropriate temporary or
preliminary relief, in processing appeals and in conducting
�heerings and initiating enforcement proceedings in both the
district and appeals courts. The transfer of personnel and
records alone would create a personnel and recordkeeping
nightmare. Without adequate authorized personnel and the funds
necessary to fulfill commission responsibilities within the
required time frames, H.R. 1.012 will not work.
The proposed legislation limits the personnel sew will get
and does not provide for additional funds. Although the
ygencies will be losing responsibilities and personnel, no funds
will be transferred from the agencies to ZSOC under this
provision to pay these people.
With the influx of new personnel, thought must be given to
the increased space requirements imposed on the agency,
especially in the Washington, D.C. area where a high number of
federal employees work. we are including the apace 005t5 in our
overhead figures based on staffing assumptions; we also know
that the acquisition of one or more buildings to house the
greatly expanded Washington Field Office would take time, as do
all office space acquisitions.
5E:QC'S internal EEO office would be radically altered by
passage of Hifi. 1012. Special arrangements will be required to
handle complaints filed by EEOC employees to avoid conflicts of
interest.
The most serious management issues with the bill axe;
o the budgetary support required to meet the time frames of
the bill,
0
failure to transfer or provide for all the personnel
needed to perform the function;
control over and logistics of the agency
transfers;
recruiting and training efforts
short period of time; and
the need to obtain office space
a large number of new staff.
personnel
required within a
quickly for such
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The Honorable William D. Ford
Page six
The effective date of the legislation is proposed as the
first day of the second fiscal year after the date of enactment.
That is a good idea because of the complexity of implementing
the statute. However, all cases where there is no proposed
disposition before the effective date of the act will be
transferred to 8e0C. Since there will be up to two years for
agencies not to issue proposed dispositions on complex or
inadequate investigations, perhaps the legislation also could
build in an incentive for agencies to complete old cases before
the effective date, such as barring the transfer of cases older
than 180 days or requiring agencies to reimburse EEOC for
processing transferred cases. An existing backlog would further
impede the timely processing of new complaints.
It is unclear whether Congress intends to include
retaliation in the proposed federal sector process. Paragraph
0�1(3) page 3 repeals section 717(d) which incorporates the
applicable provisions of section 706(f) - (X) into section 717.
While most of these provisions have been added elsewhere by the
proposed bill, this repeal may create doubts about whether
section 717 prohibits retaliation. Section 717(a) does not
mention retaliation and some authorities have cited the
incorporation provision of section 717(d) as tne basis for
incorporating the private sector protection against retaliation
into section 717. The proposed deletion of this incorporating
provision could cast doubt upon the viability of retaliation
allegations under section 717.
The definition of "government agency" is unclear when read
with section 717(e), Paragraph (P) page 2 of the proposed bill
defines "government agency" so as to exclude any entity of the
federal government. This definition is inconsistent with
current section 717(e). Section 717(e) uses the term
"government agency" and is clearly intended to apply to federal
agencies. Section 717(e) must be amended if this definition of
"government agency" is included.
The bill contains language (e.g., if EEOC does not comply
with a provision) that makes us vulnerable to Administrative
Procedure Act lawsuits. Paragraph (5) page 5, subparagraph (A)
states that if gEoc finds reasonable cause, it shall endeavor to
eliminate the discrimination through conciliation efforts.
Paragraph (B) states that if (I.) the SSOC does not comply with
subparagraph (A/ or (ii) is unable to secure a conciliation
agreement, the charging party can file a civil action or request
adjudication by an ALJ. The meaning of paragraph (B)(i) is not
clear: it adds to paragraph (S)(ii) some notion of illegaiity on
the part of EEOC, i.e., failure to comply with the law. This
paragraph should be deleted. The language will only serve to
draw Administrative Procedure Act lawsuits against MC and
divert resources from the statutorily prescribed process. This
comment also applies to paragraph (C)Iiii)(III) on page 9.
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The Honorable William D. Ford
Page seven
We note that H.R. 1012 does not provide for the processing
of discrimination complaints under the Ave Discrimination in
Employment Act (ADEA) or for Equal pay Act (EPA) complaints.
Presumably, handicap discrimination complaints would, under
Section 505 of the Rehabilitation Act, continue to be processed
under the Title VII procedures. If not processed under Title
VII procedures, ADM and EPA complaints would have to be
processed under other existing procedures, thereby creating a
lack of consistency in the processing of all federal sector
discrimination complaints.
EBOC cannot by revelation require that ADEA complaints be
processed in the same fashion as Title VII charges under this
bill. Thie will necessitate that two separate federal charge
processes remain in effect and that agencies retain
investigators and other persons involved in the current process
to process ADM complaints. It will substantially complicate if
net frustrate the processing of complaints/charges alleging both
age and 4 Title VII basis for the alleged discriminatory action.
We note that the bill provides !MC with authority to sue
other federal agencies in three instances: for appropriate
temporary or preliminary relief pending disposition of a charge
(paragraph 2(c)(3)(A) page 4); to enforce an order of an
administrative law judge or the commission (paragraph
2(c)(6)(8)(v) pages 9-10); and to enforce a court order
(paragraph 2(f) page 14). The Attorney General opposed the
vetoed 8. 508, Whistleblower Protection Act of 1988, which
created an independent Office of Special Counsel with the
authority to litigate against other federal agencies, on the
ground that the litigation authority would have been an
unconstitutional usurpation of the president's power to
supervise and resolve disputes between his subordinates.
Memorand9M_of_DiarIpprOval of the Whietleblower Protection Act of
1988 (Oct. 26, 1965). The bill granting EsdrITETFiiIiiii
authority against other federal agencies raises the same issues
as the vetoed Whistleblower Protection Act. In addition, the
possibility of one executive branch agency such as EEOC suing
another executive branch agency raises the unresolved
constitutional issues relating to the case or controversy clause
requirement.
Paragraph (v) page 9 *flews the 850e to file suit in order
to enforce a commission or AIRY decision. Unlike paragraph (f)
on page 14 which allows either the aggrieved party or the EEOC
to file suit when an agency does not comply with a court
decision, this provision does not allow the aggrieved party to
sue when the agency does not Comply with SEOC's decisions. The
aggrieved party should be allowed to file enforcement actions.
Like paragraph (f) on page 14, it should also allow the recovery
Of attorneys fees in such actions.
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The Honorable William D. Ford
Page eight
Paragraph S(a) page 10 provides that operation of 5 e.5.C.
subsection 7121(d) governing election of grievance procedure
remains in effect. However, no corresponding provision is made
to address mixed casea, those cases over which EEOC and the
Merit Systems Protection Board (MSPB) have jurisdiction under 5
U.S.C. 7702 of the Civil Service Reform Act.
Administrative judges cannot under current civil service
regulations be converted to administrative law judges.
Bstabliehment of an administrative law judge corps has been a
major problem for agencies in the past. For example, the Civil
Service Reform Act originally proposed that MSPlit cases be heard
by A1.48. For a variety Of reasons, the ALJ requirement was
never fully implemented.
The position of administrative law judge is much different
than the administrative judges (attorneys) we now employ in the
hearings units. ALJs are selected from QPM registers generally
at the GS-15/16 level and carry with them virtual autonomy with
respect to their duties and responsibilities. If ALJ5 are
required by H.R. 1012, personnel costs will increase
significantly and operational oversight of the hearings
functions will decrease in similar proportion. We would
recommend that from a budgetary viewpoint the ALJ position be
changed to administrative judge or attorney in the language of
the bill.
Paragraph liv)(III) page 11 provides that a court of appeals
shall sustain the EEOC's or an AL's findings if they are
supported by a preponderance of the evidence. This ie an
unusual appellate standard of review because it allows the
reviewer to substitute its own opinion for that of the lower
tribunal, in essence allowing de novo review.
The meaning of the bill's reference to standards and
procedures in 706(b) is unclear. Paragraph (n) page 6 states
that the standards and procedures applicable under section
706(b) shall also apply to reasonable cause determinations in
federal sector cases. The intent and meaning of this provision
is not clear. Section 706(b) does not contain or mandate any
specific standards or procedures governing reasonable cause
determinations other than requiring EEOC to accord substantial
weight to the findings of state and local agencies, a provision
which is obviously inapplicable to federal sector complaints.
If the intent is to require EDOC to use the same standards and
procedures for federal complaints as it uses for private sector
complaints, this is not possible within the time frames mandated
by the bill. The private sector provisions of Title VII do not
provide any maximum amount of time during which the &LOC must
act. In fact, it provides at least 180 days during which EF;OC
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Ore 1C101
The Honorable William D. Ford
Page nine
can process the charge before a charging party can go tc;$ court.
None of the procedures currently in use by the esoc would permit
the investigation and issuance of reasonable cause
determinations within 90 days. If the intent of this provision
is to require eBOC to use the identical standards and
procedures, the provision would require the use of procedures
which would violate the section of the bill requiring action
within 90 days.
The requirement that judgments be paid from agency funds
would discourage settlements. Paragraph IV page 15 requires
that all judgments be paid from agency funds. This provision
could discourage settlements by agencies seeking to prevail in
litigation to avoid diminution Of agency funds.
einally, we believe that if Congress amended section 717 in
only two respects, the commission's stature and authority in
federal sector cases would be enhanced Sufficiently to render
unnecessary any extensive changes in the process. Specifically,
section 717(c)(6)(C)(vi) of the proposed legislation provides
authority for the commission to order withholding of pay in
enforcing it orders and could be added to section 717; and
section 717(j) of the proposed legislation should be revised to
provide for settlement at the administrative level to be paid
from the judgment fund, and payments of orders to be paid from
agency appropriations, and then incorporated into current
section 717.
Sincerely,
Deborah J. Graham
Director of Communications
and Legislative Affairs
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LA ID 1.-rx.vf Ltur UU1
TO:
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUOCA I
WASHINGTON, D.C. 20503
August 16, 1989
LEGISLATIVE REFERRAL MEMORANDUM
Legislative Liaison Officer -
Department
Department
Department
Department
Department
Department
Department
Murphy -
Department
Department
Department
Department
Department
Department
Department
Council of
Agency for
SPECIAL
of Agriculture - Marvin Shapiro - 382-1516
of Commerce - Michael Levitt - 377-3151
of Defense - Sam Brick - 697-1305
of Education - John Kristy -732-2670
of Energy - Bob Rabben - 586-6718
of Health and Human Services - Fran White -
245-7760
of Housing and Urban Development - Edward
755-7093
of the Interior - Ralph Hill - 343-6706
of Justice - Carol Crawford - 633-2141
of Labor - Seth Zinman - 523-8201
of State - Bronwyn Bachrach - 647-4463
of Transportation - Tom Herlihy - 366-9293
of the Treasury - Richard Cerro - 566-8523
of Veterans Affairs - Donald Ivers - 233-3832
Economic Advisers - Suzanne Tudor - 395-5036
International Development - Robert Lester -
647-A371
Central Intelligence Agency - Norbert Garrett - 482-6122
Environmental Protection Agency - Henry Schilling -
382-5414
Federal Emergency Management Agency - George Watson
646-4105
General services Administration - Al vicchiolla
566-0563
National Aeronautics and Space Administration -
Lynn Heninger 453-1948
National Science Foundation - Charles Herz - 357-9435
Small Business Administration - Clifford Downen-653-7581
Tennessee Valley Authority - Williard Phillips -
479-4412
United States Information Agency - Walter Raymond -
485-9591
United States Postal Service - Fred Eggleston - 268-2958
SUBJECT: OPM proposed letter to Senator Wilson, sponsor of S. 38,
the "Federal Employees Long-term Care insurance Act of
1989.0
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The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB
Circular A-19.
A response to this request for your views is nee4e0 no later than
11.4ta.21�1151.111tAlLA!!!.
Questions should be referred to Lisa Fairhall (395-3923), the
legislative analyst in this office.
(SI14d) Ulainii R. Sys ensy
Naomi R. Sweeney for
Assistant Director for
Legislative Reference
Enclosures
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WA0111.1* RN
COMICS Cal tiliefseiVbit
TEL N. Jul 21.89 0:25 P.02
Inirtso *TATS
Orris* OP imailOPIPISS. 1114441411ftlitaPre
WASIMPOTOX. S.C. 110411.
HOnOrable Pete Wilson
United States Senate
Washington, VC 22510�0502
Dear Senator Wilsoni
Thank you for your kind latter of June 25. .L very much
appreciate the support you have given me as I enter upon my
new responsibilities as Director of this agency, and I look
forward to working with you in this capacity. I also
Appreciated your discussion concerning how your "Federal
smployess Long-term Care Insurance Act of 1909,6 S. 32, would
complement the Administration's goals of providing both more
effective Federal personnel programs and better access to
essential health services for all americans.
6, 36, would amend the Federal amployees Group Lite Ineur-
enoe (rsoLI) law to offer Federel employees an opportunity to
elect long-term care (LTC) -insurance coverage for themselves
and their spouses at group insurance rates and, if an employ-
ee so chooses, to trade oft a portion of basic YEGL1 coverage
to offset some of the LTC premium oust. The new LTC insur-
ance would provide benefits under one or more plans to offset
expenses associated with extended periods of nursing home
confinement, or similar home health services, required by
chronic, debilitating illnesses. OPM hes been working in
support Of this proposal for more than 2 years, and continues
to strongly support its enactment.
Four features distinguieh s. 38 from the proposal oFm submit-
ted to the last Congress: (1) a short title for the bill is
inserted as part of the enacting clause; (2) a definition of
"Iong-term care Insurance," based on model LT(.: legislation
prepared by the national Association of lnsurance Commie-
'loners, would be included in the law; (3) starting 5 years
after the new program's inception, employees under age 50
would be able to qualify for LTC insurance in accordance with
OFM regulations; and (4) insurance carriers would be required
to reinsure portions of their LTC liability with other
interested insurance companies under conditions oFM would
determine. oFm agrees that these modifications to our
earlier proposal ars desirable.
In summary, 8. 38 would a000mplish several highly desirable
objectives, without any additional Coat to taxpayers. It
would allow Federal Employees to protect themselves and thelr
spouses against the potentially catastrophic financial impact
J-.41 /Te.
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Ormil.E6 AM
TEL No. Jul 21.99 0:25 P.03
lonoreble Pomo Wilson 2
Moreover, it would permit the Federal Government, as an
employer, t9 provide leadership to other employers in con-
fronting and resolving a growing national health care
problem. I commend you, Senator, for your prompt action to
introduce this bill in the 101st Congress and for your con-
tinuing efforts to gain ever-widening support for it. OPM is
hopeful that Congress will take early and gavorahle action on
this bill.
The office of Management and Budget advises that, from the
standpoint of the Administration's program, there Ls no
objection to the submission of this letter.
Sinoerely,
- Constance Derry Newman
Director
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