Daily Labor Report 1/18/05

EEOC New National Call Center, Agency Reorganization Ahead for EEOC in 2005




As she looks toward a fourth year at the helm of the Equal Employment Opportunity Commission, Chair Cari Dominguez hopes to expand outreach efforts, to build on a well-established mediation program, and--after the anticipated launch of a national call center this March--to move forward with other steps in an agency reorganization.

"I feel very good about our accomplishments," she told BNA in a recent interview, reflecting on the record financial benefits the commission garnered for victims of discrimination during the last fiscal year, and looking toward plans for 2005.

Launching the Call Center The commission's national call contact center is expected to go into operation in late March. The center, which is the first step in a planned agency wide reorganization, is located in Lawrence, Kan., and operated by Pearson Government Solutions under a $4.9 million contract.

The call center, which was approved by the commission in September, will handle the approximately 1 million routine, annual telephone inquiries that currently are directed to EEOC field offices. An internal commission task force found that about 40 percent of those calls were from charging parties, while the other 60 percent were from callers seeking general information that could be given through an automated message machine or callers requesting technical assistance or other information that could be accessed through a computer database.

The project, headed by Elizabeth Thornton, a former deputy legal counsel and director of field programs for EEOC, was a top priority for Dominguez last year.

More 'Repositioning' at Agency With the call center ready to open, Dominguez said she is reviewing a final package on "repositioning" the agency. The reorganization proposal is expected to be presented to the commission for a vote in the next few months.

Although she declined to address specifics of the package, Dominguez said it will build on the reorganization plan recommended by the National Academy of Public Administration in 2003, as well as subsequent recommendations from various in-house panels and input from constituent groups. "It's time for action," she said. "We're going to keep moving forward."

Changes in the field office structure are expected to be part of the plan, as is reorganization of commission headquarters. While NAPA, an independent research organization, called for a sharp reduction in the number of field offices, EEOC employees and stakeholders have expressed skepticism about this suggestion and it remains unclear in what direction the final report will go.

Medicare, Applicant Guidance Anticipated In early 2005, the commission also is expected to publish final regulations on coordinating the Age Discrimination in Employment Act with Medicare, as well as guidance on the definition of job applicant for purposes of federal EEO reporting requirements.

The controversial ADEA regulations would allow employers to reduce or end benefits when a retiree becomes eligible for Medicare or comparable state retiree health benefits, without potentially violating the age bias law.

The regulations are intended to address a growing concern that the specter of violating the age discrimination act could encourage employers to eliminate health benefits for retirees.

Last month, the regulations were in the final inter-agency review process, prior to being sent to the Office of Management and Budget. They are "at the top of the list" and should be published shortly, Dominguez said.

However, the ultimate fate of the regulations remains unclear. The commission's position has been widely supported by both the employer community and organized labor. But AARP, the older Americans' advocacy organization, has argued that the change is contrary to the purposes of the ADEA and beyond EEOC's authority. Representatives of the organization said that AARP is prepared to challenge the regulations in court when they are published in final form.

The agency also is "far along" toward publishing final guidance on a revised definition of "job applicant" for the purposes of federal EEO recordkeeping and reporting, according to Dominguez. A final draft is being coordinated and is expected to be sent to the commission for its approval shortly, she said

The guidance, which was under development for more than three years, was issued in proposed form last March and is intended to assist employers in determining at what point the large number of electronic resumes they receive become job applications. It was jointly issued by EEOC, the Labor Department's Office of Federal Contract Compliance Programs, the Department of Justice's Civil Rights Division, and the Office of Personnel Management, and clarifies how the 1978 Uniform Guidelines on Employee Selection Procedures apply in the context of the Internet and related technologies.

The guidance states that individuals who apply for jobs through the Internet must be considered "applicants" for purposes of federal equal employment opportunity recordkeeping if they have followed an employer's standard application procedures and indicated an interest in a particular position.

Elsewhere on the regulatory front, no immediate action is likely on a proposal for streamlining the process of handling federal sector EEO charges. "We're gathering information at the staff level," Dominguez said. "It's not going as fast as the other regulations, but we'll be moving forward." In the past, she has emphasized that mediation will be a key component of those regulations.

Convincing Employers to Mediate The growing EEOC mediation program has had a significant positive impact on the agency's record financial accomplishments, Dominguez said.

The commission has reached 71 national mediation agreements and more than 600 local agreements with employers that have agreed to refer all appropriate workplace disputes to alternative dispute resolution before the commission begins investigations or commences formal litigation.

Dominguez said she intends to continue her emphasis on mediation, as well as on other outreach efforts during 2005.

"The more universal agreements we execute, the better we're able to resolve charges early on," Dominguez said. "I personally believe in the advantage of national mediation agreements as a way to bring corporate attention much closer to the problems of discrimination."

In mediation, she said, the focus will be to build upon last year's results while continuing to examine ways to more effectively reach the employer community. Employers agree to participate in mediation only about 30 percent of the time, according to commission statistics.

Benefits Up, Charge Filings Down The commission reaped a record $415.4 million in benefits for victims of discrimination during fiscal year 2004, according to preliminary data provided to BNA in December. Both the number of charge filings and resolutions dropped off slightly from the previous year, however, continuing a two-year trend as far as charge filings.

The financial awards included $251.7 million obtained at the administrative level and $163.7 million obtained through litigation. Included in the administrative awards, was $112.4 million garnered through the agency's mediation program.

EEOC received nearly 79,500 charges of discrimination during the federal government's last fiscal year, which ended Sept. 30. The charge filings continue a two year decline from about 81,300 in fiscal 2003 and 84,400 a year earlier. Race continued to be the most commonly asserted type of discrimination in fiscal 2004--alleged in 35 percent of all charge filings. Sex discrimination was alleged in 30.7 percent of charges, age in 22.6 percent, disability in 19.5 percent and national origin in 10.6 percent. The breakdowns are largely unchanged from a year earlier.

The commission resolved some 85,000 charges in fiscal 2004--a drop from a record 95,000 a year earlier--and the charge processing time was slightly slower. Dominguez attributed some of the slowdown in charge processing to the resolution of a backlog of nearly 900 charges dating back nearly five years. "We put a lot of emphasis on clearing those cases," she said, and officials were given incentives to deal with them.

The commission found "merit" in about 16,700 of those charges, or 19.5 percent of the total. The merit rate generally hovers around 20 percent and was down slightly from a year earlier. Included in the charge resolutions are 8,000 that were resolved through the commission's alternative dispute resolution program--a number that continues to grow since EEOC began mediating charges several years ago.

Commission attorneys filed 378 direct suits and interventions last year--up from 361 in fiscal 2003 and 332 a year earlier. Among the suits that were filed, 124 were brought on behalf of a class or on behalf of similarly situated persons--the same number as last year and up from 109 in fiscal 2002.

The largest number of cases--279--were brought under Title VII of the 1964 Civil Rights Act. EEOC attorneys also filed 42 cases under the Americans with Disabilities Act, 40 under the Age Discrimination in Employment Act, and one Equal Pay Act case. Sixteen of the cases involved concurrent charges.

One Vacant Seat One of two Democratic seats on the fivemember panel has been vacant since last summer when long-time Commissioner Paul Steven Miller left the agency to become a law professor at the University of Wisconsin.

The commissioners hold staggered, five-year terms, with three of them--including the chair and vice chair--in the same political party as the president. Vice Chair Naomi Earp's term is the next to expire, in July 2005, followed by Dominguez, in 2006. Stuart Ishimaru, the only seated Democrat, has a term ending in 2007; and Republican Leslie Silverman's term goes until 2008.

Dominguez declined to speculate on possible candidates for the vacant seat and suggested that a nomination might be delayed until the Senate acts on the cabinet nominees.

By Nancy Montwieler