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Equal employment opportunity ‘myths' need debunking

Feb. 5, 2012 - 06:00AM   |  
By DEXTER BROOKS   |   Comments

The Dec. 5 commentary, "http://www.federaltimes.com/article/20111204/ADOP06/112040303/">Three myths of the EEO process" by Maxanne R. Witkin, left readers with the impression that workplace discrimination claims made by federal workers are frivolous and do not warrant their agencies' attention.

Witkin attempted to clear up myths about the equal employment opportunity process by providing more misinformation, doing a disservice to federal employees and the public.

The author said discrimination is found in 2 percent to 3 percent of federal EEO complaints. The fact is, discrimination may occur in up to 33 percent of EEO complaints, and agencies must take allegations of discrimination seriously. Witkin's statistic only tells part of the story.

The Equal Employment Opportunity Commission strongly encourages early resolution of cases both before and after a formal complaint is filed. Of the 17,124 complaints closed in fiscal 2010, 29 percent were resolved through settlements before a formal determination. Many of these resolutions contained favorable outcomes for the complainant, including monetary and nonmonetary benefits.

Additionally, in fiscal 2010, of 40,563 instances of pre-complaint counseling, 55 percent of potential complaints were resolved by settlement or withdrawal before a complaint was formally filed.

Witkin wrote that harassment claims are increasing, and also seemed to ridicule these charges made by federal workers. Actually, two-thirds of complaints filed contain no harassment allegation. Harassment is not reported in a vacuum. Rather, EEO complaints usually involve multiple bases and issues of discrimination.

In fiscal 2010, more than 60 percent of complaints filed did not include any allegation of harassment. Fostering diversity and inclusion can help avoid harassment claims. Some allegations are based on employee misperceptions and misunderstandings that manifest in formal complaints.

Differences of gender, ethnicity, race and culture can leave employees feeling isolated and abandoned, leading to claims of hostile work environments, whether real or perceived.

It is indeed a myth that most discrimination complaints have no substance most complaints are far from "frivolous" and EEO resources pay dividends. Employees usually file complaints as a last resort.

In fact, federal-sector rules and regulations allow for dismissal of so-called frivolous complaints. However, managers should know that publicly criticizing complainants or treating them with contempt is not just a bad idea but may violate the law. Calling complainants "whiners" or "poor performers" may result in a claim of reprisal, which is already the No. 1 basis of complaints. Reprisal has a chilling effect on the EEO process, undermines the statutory rights of employees, and disserves the spirit and intent of federal anti-discrimination laws.

It is wrong to infer that agencies are flooded with complaints. Less than 0.5 percent of the nearly 3 million federal employees filed an EEO complaint in fiscal 2010. The EEO process, by encouraging early settlement, saves taxpayers money by avoiding complaints or by reaching early resolutions.

Discrimination takes a toll on the workforce through lost productivity, low morale and poor use of human resources. Conversely, a discrimination-free workplace provides benefits that cannot be explained solely through statistics.

Further, EEOC regulations allow for dismissal of complaints when complainants refuse to cooperate, despite Witkin's allegation otherwise. In fiscal 2010, 30 percent of EEO complaint closures resulted in dismissals for a number of administrative reasons, including cases in which complainants refused to cooperate or communicate.

The August 2011 decision in Kobraei v. National Security Agency affirmed the dismissal of a complaint for undue delay when a complainant failed to cooperate. The decision said: "Where the complainant has engaged in delay or contumacious conduct … the Commission [EEOC] has allowed a complaint to be dismissed for failure to cooperate." This case reflects similar decisions rendered over several decades.

Unless the government speaks with one voice on matters of employment nondiscrimination, workers may be confused as to what rights they have and how to protect them, and employers may be uncertain of their obligations.

Agencies can avoid the EEO process by working closely with EEOC to ensure equality, diversity and inclusion for all employees. Like a doctor treating a patient, prevention is still the best medicine to ensure a healthy, discrimination-free workplace.

Dexter Brooks is director of federal sector programs at the U.S. Equal Employment Opportunity Commission.

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