The Department of the Navy's Equal Employment Opportunity Complaint Dispute Resolution Process Pilot Program: A Bold Experiment that Deserves Further Exploration

• Author: Major Michael B. Richardson
• Pages: 01

MILITARY LAW REVIEW

Volume 169 September 2001

THE DEPARTMENT OF THE NAVY'S EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DISPUTE RESOLUTION PROCESS PILOT PROGRAM:

A BOLD EXPERIMENT THAT DESERVES FURTHER

EXPLORATION

MAJOR MICHAEL B. RICHARDSON1

Time is neutral and does not change things. With courage and initiative, leaders change things.2

I. Introduction

The Department of the Navy (DON) recently completed the first phase of testing on an innovative pilot program (Pilot Program) designed to improve the way equal employment opportunity (EEO) workplace complaints are processed. The Pilot Program was the result of over a year of thorough research by the DON into complaints by employees and managers regarding perceived problems with the current EEO complaint system.3

Designed to offer a voluntary-participation alternative to the traditional EEO complaint procedure, the Pilot Program offers DON employees a significantly revamped procedure that dramatically reduces complaint processing time and encourages cooperative resolution of complaints in an attempt to build and maintain working relationships.4 To achieve these benefits, the Pilot Program requires that participants voluntarily waive their right to "opt-out" of the program, and limits the participants' appeal rights. Testing of the Pilot Program yielded dramatic improvements in processing times for EEO complaints, and was widely regarded by those utilizing the Pilot Program as a success.5

The Pilot Program was not, however, universally applauded, and met significant resistance from the Equal Employment Opportunity Commission (EEOC).6 The first phase of testing ended with the EEOC ordering the DON to suspend the use of the Pilot Program, citing concerns with the legality of a number of the Pilot Program's innovative procedures.7 Among the concerns cited were the requirements to waive the right to optout of the Pilot Program, the manner in which investigations are conducted under the Pilot Program, and the waiver of certain EEOC appeal rights.8 Undeterred, the DON initially attempted to rework the Pilot Program to address the EEOC's concerns9 and formulated a Revised Pilot Program. The Revised Pilot Program allowed participants to opt-out of the Program and return to the traditional EEO complaint-processing procedure at any time, and issued amplifying guidance addressing other concerns of the EEOC.10

Before DON implemented testing of the Revised Pilot Program, Congress initiated legislation that would have allowed a further three-year tes

ing period of the DON's Pilot Program in its original form.11 In its final version, however, the legislation that passed authorized the Secretary of Defense to select "at least three agencies" to institute pilot programs in the equal employment opportunity arena, but did not specifically mandate that the DON's Pilot Program be one of these programs.12 To date, no selections have been made, and the DON Pilot Program is currently on hold awaiting the Secretary of Defense's decision.

This article argues that the time has come to continue testing of this worthwhile Pilot Program in its original form. Background material is provided in Section II explaining the traditional EEO complaint procedure and the ongoing effort to improve this cumbersome process. Next, the article explores DON's Pilot Program and compares it to the traditional EEO complaint procedure; it further examines the conflict between the DON and the EEOC over the Pilot Program's legality. The Navy's reaction to the EEOC's ruling to suspend the program, and the subsequent introduction of legislation mandating the establishment of DOD pilot programs are then detailed. Section III addresses the legal arguments surrounding the Pilot Program, examining first other longstanding legal procedures that allow similar waivers of rights in exchange for legal consideration, and then the countervailing arguments put forth by the EEOC against the Pilot Program. Section III then moves from legal considerations to policy considerations, examining whether such a dramatic change as is involved in the Pilot Program is necessary instead of continuing with the current, less controversial course of gradual improvements. The section lastly addresses the potential effects of the recent legislation requiring the establishment of EEO pilot programs by the Secretary of Defense. The article concludes in Section IV that the nation's leadership has been presented with an ideal opportunity to take the initiative and allow the continued testing of a courageous experiment in the EEO complaint-processing arena. As the article will fully explain, the current EEO system is flawed beyond the point of being fixed by minor changes. The time has come to legislatively approve the DON's Pilot Program and allow the DON to fully explore the Program's potential.

II. Background

To understand fully the DON's Pilot Program, a comparison between the traditional EEO complaint-processing procedure and the DON's Pilot Program is necessary. This section first explores the traditional EEO complaint procedure, its complexities and problem areas, and the limited success to date of ongoing government efforts to improve it. Additionally, as the DON's Pilot Program relies heavily on the use of alternative dispute resolution (ADR), this section specifically examines the increased use of ADR in federal employment relations to improve the traditional EEO complaint procedure. It then examines DON's Pilot Program, looking at why it was developed, its history, and its processes. Next it explores the conflict that arose between the EEOC and the DON over the legality of the Pilot Program, and specifically where the EEOC found the Pilot Program to be faulty. This background section concludes by addressing the results of the EEOC's ruling suspending the Pilot Program, looking at both the DON's reaction and legislation introduced to continue the Program.

1. The Traditional EEO Complaint Process and the EEOC's Efforts to Improve It

   The DON's move to improve its EEO complaint process is part of a larger push by the federal government to fix an unpopular federal EEO complaint process.13 Throughout the federal government, employees and managers commonly view the traditional EEO complaint system as unnecessarily cumbersome, tedious, and disruptive to the work environment.14

   There has been a continuing government effort to improve this process, backed by both the executive15 and legislative branches, but this effort has

   yet to yield significant overall results, leading to popular and congressional dissatisfaction with the rate of improvement.16

   1. The "Traditional EEO Complaint Process"-29 C.F.R. Part 1614

   To understand the current dissatisfaction with the complicated and burdensome Part 161417 EEO complaint process, as well as the conflict

   between the EEOC and the DON over the legality of the Pilot Program, an exploration of the Part 1614 EEO complaint process is required.18

   The EEO complaint procedure is actually comprised of two distinct processes. One is referred to as a "pure EEO complaint process," where the complainant's primary remedy is sought through the EEOC.19 The other is commonly referred to as a "mixed case complaint process," where the complainant may have a remedy via either the EEOC or the Merit Systems Protection Board (MSPB). 20 A thorough understanding of the very complicated mixed complaint process is beyond the scope of this article, and unnecessary as the Pilot Program is not being used for mixed complaints. In comparing the EEO Part 1614 complaint process to the DON's Pilot Program, this article focuses on the processing of a pure EEO complaint.

   In a pure EEO complaint processed under the EEOC's Part 1614 process, a complainant has forty-five days from the date of an alleged act of discrimination to contact an equal employment opportunity counselor with a complaint.21 Once contact is made, an initial meeting is held between the complainant and the EEO counselor wherein the EEO counselor informs

   the complainant of his rights and responsibilities.22 If ADR is offered by the agency, the counselor will explain this procedure to the complainant as well.23 The complainant then chooses between ADR and the traditional counseling procedure.24 Should the complainant elect ADR, he has ninety days in which to resolve the complaint.25 If the complainant chooses the traditional counseling procedure, he has thirty days26 to resolve the complaint, with a sixty-day extension possible.27 At the end of the ADR or counseling period, if the matter is unresolved, the counselor conducts a final interview,28 during which the complainant receives notice of the right to file a formal complaint.29 At any point in the process, the complainant may also choose to withdraw the complaint.

   Once the complainant receives notice of the final interview, he has fifteen days to file a formal complaint.30 If a formal complaint is filed, the agency must dismiss the complaint in whole,31 investigate the entire complaint, 32 or notify the complainant that it will not investigate some portions of the complaint but will investigate the remainder of the complaint.33

   Agencies can dismiss complaints for a number of reasons. Common reasons include failure to state a claim or to comply with applicable time limits, filing a complaint that is already a pending civil action, or filing a complaint that is also being considered by the MSPB. 34 Additional reasons include mootness, failure to prosecute the complaint or to cooperate in the EEO process, filing a frivolous claim or abusing the EEO process, and filing complaints about the EEO process itself.35 The complainant can appeal a dismissal of its complaint to the Office of Federal Operations (OFO),36 then the EEOC itself,37 and ultimately to federal district court,38 any of which can reverse the agency's decision to dismiss the complaint and order the agency to conduct an investigation.

   For any accepted...