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Workplace bias on the rise, EEOC says

Aug. 8, 2010 - 06:00AM   |  
By STEPHEN LOSEY   |   Comments
Federal employees filed slightly more discrimination complaints last year than the prior year the second consecutive year of increases after a decade of steady declines, according to a report released by the Equal Employment Opportunity Commission. ()

Federal employees are filing more discrimination complaints and the Equal Employment Opportunity Commission has affirmed more of those complaints as illegal discrimination.

The rise in 2009 over the previous year is not big, but it is significant because it represents the second year of an increase, reversing what has been a decade of steady declines.

Among the reasons, experts say, are a larger work force and more training for employees on what constitutes discrimination.

Federal employees filed 16,947 discrimination complaints in fiscal 2009, 195 more than in 2008, according to a new EEOC report. The increase is considerably smaller than the previous year's increase: in 2008, there were 584 more discrimination complaints than in 2007 .

Jamie Price, an attorney at the EEOC's office of federal sector programs, pointed out that the federal work force, including the U.S. Postal Service, increased by about 48,000 or about 1.7 percent during that year.

That percentage increase is not far off from the 1.2 percent increase in discrimination complaints last year.

"That's going to affect the number of complaints," Price said. "The more people you have working, the more people [you have] who understand their rights and feel like they're being treated unfairly."

But the change in complaints does not always correlate with the change in the federal work force.

Price said employees also could be feeling overstressed and be more likely to file a complaint if they feel pushed too far. The Office of Personnel Management's latest survey of the federal work force last month found growing dissatisfaction with workloads and resources.

"There's a lot of unhappiness in the workplace," Price said. "When you work through years of not hiring people, people do two or three jobs, they're tired and overworked and tend to be a little more sensitive."

And more cases that are resolved on their merits are resulting in findings of unlawful discrimination. Nearly 3 percent of the 6,905 cases closed on their merits last year resulted in discrimination findings, compared with about 2.5 percent in 2008. Another 3,394 cases resulted in a settlement, which represented an increase of 145 over fiscal 2008.

Price said agencies have done a better job training employees about their rights in recent years, which might make them more likely to file successful complaints. Better-trained employees are more likely to know whether they have genuinely been wronged and file stronger complaints as a result, she said.

Agencies' EEO staffs also may be doing a better job investigating complaints, Price said, making it more likely that an administrative judge rules the employee was discriminated against. But Price said she's not sure whether investigations are actually being done more thoroughly and wants to conduct a government-wide study to examine them further.

Price also said she wants her study to look at the trends in discrimination complaints and figure out exactly why cases took longer to investigate and close last year.

The average investigation time increased from 180 days to 186 days in 2009, and the average closing time increased from 336 days to 344 days. Fiscal 2008 marked the first increase in average investigation times in four years.

Bill Bransford, a partner at the Shaw, Bransford and Roth law firm, which specializes in federal personnel law, said that increase is a surprise, considering the success the EEOC has had in reducing investigation and processing times. In 2003, the average investigation took 267 days to complete, and the average closing time was 475 days.

"I am disappointed to see the average case processing time has been extended," Bransford said. "This reflects the lack of resources given to EEO programs in agencies."

That increase in average times also may be due to the complaint increase, Price said. Investigators from agencies' EEO offices where budgets are already tight could be stretched even thinner by having to juggle more cases, and those cases end up taking longer.

Price also said investigators get more time to finish cases where multiple complaints from a single employee are consolidated. That could be contributing to the increase in investigation and closing time, though Price said she did not have enough data to show whether consolidated cases are increasing.

She said she wants to use her planned governmentwide study to find out exactly what is causing that increase, and whether a problem needs to be addressed.

That study won't get started until next year, at the earliest, she said.

"I know I can't get started this year," Price said. "I just don't have the staff."

Bransford said one factor that could be causing longer investigation times is that federal agencies are reluctant to throw out frivolous complaints that have no chance of succeeding because they fear being accused of squashing valid complaints. Because agencies keep devoting resources to investigating meritless claims, genuine complaints also take longer. He suggested creating a board similar to the Merit Systems Protection Board, which would take EEO investigations out of agencies and because it is independent and has no conflict of interest would be more likely to reject meritless claims.

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