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Bias cases increase in 2008

A decade of declining federal discrimination complaints has come to an end.

A new report by the Equal Employment Opportunity Commission shows that bias complaints rose slightly — 2.4 percent — in 2008.

"It does seem to have leveled off," said Dexter Brooks, director of federal sector programs in EEOC's Office of Federal Operations. He called the increases "statistically insignificant" when compared to declines throughout the decade, and said he wasn't sure what caused the increase.

The average time it took agencies to investigate discrimination claims also increased last year for the first time in four years.

Linda Bradford-Washington, the EEO director at the Housing and Urban Development Department, suspects training more employees about their rights could have something to do with the increases. At HUD, the number of bias cases filed increased from 91 in 2007 to 98 in 2008. And the number of days on average to investigate those cases increased from 171 to 275 in the same period. Many of those complaints had multiple amendments and supplemental investigations, requiring longer investigation times.

"When we conduct EEO training, we do get a spike in cases," Bradford-Washington said. "We attribute that to the fact that people are more aware of their rights and more educated in the process."

Brooks could not say if HUD's experience was true for the entire government. But he said EEOC wants federal employees to be educated about their rights and doesn't want the government doing quick, shallow investigations for the sole purpose of clearing complaints.

"That doesn't answer the question of, is there discrimination?" Brooks said. "That's why we have training requirements."

Brooks said now that investigation times are down and agencies regularly use counseling and other methods to resolve disputes before they become full-blown complaints, EEOC wants agencies to improve how they investigate and rule on discrimination complaints.

After an agency investigates and decides a discrimination case, the complaining employee can appeal that ruling to EEOC. Brooks said EEOC has been overturning an increasing percentage of agency decisions brought on appeal. In 2004, EEOC overturned 1 out of every 5 agency decisions that were appealed to the commission. Last year, the figure was 1 out of 3.

"It's going to take a lot of work on our part to grab this quality issue. We can't do it with one stroke of the brush, and we must look at each agency," he said.

The problem may be poor investigations or poor decisions, Brooks said.

But overall, the EEOC report shows that the government is having success in resolving EEO complaints faster and quicker than it has in years, he said.

Brooks pointed to two developments in particular that contributed to that. One was the introduction of alternative dispute resolution (ADR) methods in 1999 to resolve conflicts before an employee files a formal complaint. The other was a 2003 EEOC rule, called Management Directive 715, that requires agencies to report each year on steps they are taking to prevent discrimination and efficiently process complaints.

"Now that we're four or five years into it, we may have seen the effects of ADR level off complaints," Brooks said.

At least one agency is still rebuilding a sorely neglected EEO office. John Swain, a spokesman for the Small Business Administration, said the agency's EEO office had no administrator for two years until Margareth Bennett was appointed in July 2007.

"When she came on board, no one was doing investigations," Swain said. SBA's EEO office had no investigators, and all of its investigative contracts had lapsed. Bennett re-established the office's investigative contracts, cleared out a case backlog, and has since hired three in-house investigators.

SBA's average investigation time of 302 days in 2008 is above the governmentwide average, but improved from the 2007 rate of 359 days.

Other agencies are lagging. The Education Department took 296 days to finish an average investigation. The State Department took an average of 307 days to finish investigations. And the Interior Department took 331 days. Officials at those agencies were not available for comment.

Agencies are also increasingly relying on contract investigators to handle discrimination complaints. In fiscal 2007, 33 percent of cases were investigated in house, but in fiscal 2008, that had dropped to 31 percent.

Contract investigators are also faster and cheaper than in-house investigators, according to EEOC statistics.

But Brooks said one reason contract investigators may be cheaper is that agencies can stop paying them when they don't have work.

And in some cases, agencies may give contract investigators the simpler cases and save the more complex cases for in-house, he said.

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