I am a lawyer for a large federal agency, which I’ll call the Department of X in order to protect the innocent, namely me. In the course of my work I review cases before the agency’s Office of Civil Rights, which exists to fight discrimination against DOX employees. Recently I received a letter from an attorney representing an employee who claimed he was the victim of age discrimination. What were the grounds? His supervisor had called him “old-fashioned.”
That, I am sorry to say, is not just a comic anecdote. A high percentage of the complaints filed with our OCR are completely ridiculous. Yet each one activates an expensive, ponderous, lawsuit-like procedure that can treat even the most mundane water-cooler spat like Brown v. Board of Education. And the source of these complaints is intriguing. Of the 120 discrimination complaints pending against DOX, 40 were filed by OCR employees against the management of OCR itself. To put that in perspective, DOX as a whole has about 10,000 employees. Its OCR has about 30 employees. So 33 percent of the discrimination complaints are being filed by less than half of one percent of the agency’s employees.
Is the OCR, by some supreme irony, a hotbed of the very discriminatory practices it was designed to stamp out? No. It seems, rather, a hotbed of the self-centered absurdity that is government at its worst, and I suspect things aren’t much different at the OCRs in other agencies.
Nowadays almost every major federal agency has an OCR. These offices were established at the beginning of the 1960s, and their mission was an honorable one—to combat the evil of discrimination. Discrimination once made it extremely difficult for minority men, and women of all races, to get equal treatment and equal career opportunities within the federal government. The situation is better now, but discrimination still holds back deserving employees in some cases. The situation is better, in part, because agency OCRs are available to act on complaints. But when real and serious instances of prejudice come up, they must wait in line behind the frivolous complaints so often generated by the OCRs themselves.
The disproportionate number of OCR employee complaints is caused, I think, by three factors. First, OCRs have traditionally been a dumping ground for incompetent or difficult employees. This is in keeping with the expansion-team theory of federal office formation. Most new offices are staffed largely by civil servants from existing offices. Naturally managers of existing offices do not want to give up their best people; on the other hand, they are dying to get rid of their nincompoops and malcontents, since under civil service rules such people can rarely be fired. So federal managers hand over their worst workers when a new agency or office is being created. In the case of the OCRs, managers also figured the anti-discrimination function would be so remote from the main mission of the agency that employees banished there couldn’t screw up anything too important. As a result, DOX’s OCR has a high number of employees who have beaten the agency in lawsuits of one kind or another (particularly anti-discrimination suits), forcing the government to provide them with high-level positions, merited or not. This doesn’t mean everyone in DOX’s OCR is either ill-tempered or incompetent. Obviously not. But the percentage of undesirable employees is dangerously high.
The second reason OCR is the source of so many discrimination complaints is that it is under such pressure to get a good affirmative-action example, it sometimes places unqualified minority people in leadership positions. Thus we have an office loaded with unqualified, litigious employees led by executives of doubtful qualifications, a deadly combination in light of the third factor: OCR employees, who administer the discrimination-complaints process, know better than anyone else how easy it is to manipulate the system.
At the risk of setting loose an avalanche of new complaints, let me describe some of the discrimination allegations that employees at DOX have filed recently. Because these complaints are treated confidentially (unless they go to full courtroom trial), I cannot give real names. They are, I assure you, not composites.
• A man I’ll call Tucker filed eight complaints in less than six months. One of them contained 17 separate allegations claiming discriminatory acts against him. One alleged act of discrimination was that, after Tucker admittedly disobeyed his supervisor’s express instructions, she came into his office and criticized him for it.
• Tucker also filed a complaint about a conference all 12 members of his office attended, the purpose of which was to help them learn to work together better. As part of the program, all participants were asked to write statements about each other, without identifying the author or the subject of the statement. During an encounter-type session, the statements were read aloud. One statement was “This person speaks another language in the office.” Although the statement could have referred to at least three people in the room—including the one Tucker believed wrote it—Tucker decided it discriminated against him and filed a complaint.
• Tucker brought another complaint because someone told him that someone said (yes, third person information) that he (Tucker) “would have a fit” if a new employee were assigned to work with him. Tucker had filed numerous complaints in the past when people were assigned to work with him.
• A woman I’ll call Hammond brought a complaint claiming she had been discriminated against because her supervisor denied her permission to take a course at government expense. Her supervisor pointed out that the course was not sufficiently related to her current responsibilities, but was directly related—in fact was a prerequisite for—a new career Hammond had announced she was going to pursue after her retirement at the end of the year.
• A man I’ll call Rogers applied for a position requiring certain college-level coursework. The personnel office rated him unqualified because he had received three Ds in the courses. It is DOX policy not to recognize coursework in which Ds are received. As it happened, even if Rogers had passed the courses he still would not have met the minimum requisite coursework. Nevertheless he claimed the “unqualified” rating resulted from racial discrimination.
• Another man filed a complaint alleging that two pages of shorthand notes from the desk of his supervisor’s secretary said something bad about him. He refused to explain how he came into possession of the notes. When translated from shorthand the notes made no reference to him at all.
• Another woman brought not just a personal complaint but a class-action complaint over DOX’s policy of giving points to job applicants with Ph.D.s. She claimed that because young people were more likely to go to graduate school than old people, giving points for Ph.D.s constituted age discrimination.
Your Decade in Court
Many of these complaints (and those of Lancaster, the complaint-filing champ described in the sidebar) were brought by high-level (GS-13 and above) employees of the OCR. These are people whose entire jobs revolve around a clear understanding of what discrimination is (and who are paid very well—$32,000 or more—for their efforts). Either these people are so far from understanding the fundamentals of their own profession that they simply do not know what a legitimate discrimination complaint looks like, or they are filing complaints for some other reason. Before we speculate as to what that reason may be, let’s look at the complaint process.
The rules governing the discrimination complaints were developed by the Equal Employment Opportunity Commission, an independent federal agency, and apply to all OCRs. Let’s say that Bayshore, an Aleutian male, applies for a promotion and is turned down. He believes it was because of his race. Bayshore must first discuss the matter with an Equal Employment Opportunity counselor. Counselors are DOX employees (not from the OCR) who perform this function in addition to their other duties. At an informal session, the counselor will try to resolve the complaint, meeting with Bayshore’s supervisor if necessary. If the complaint cannot be resolved informally, the counselor notifies the OCR, and Bayshore files a formal complaint. Federal regulations specifically prohibit the counselor from attempting to dissuade someone from filing a complaint, no matter how frivolous.
The formal process begins with the filing of a simple form, which allows Bayshore to check off the grounds on which he alleges discrimination. OCR reviews the complaint to make sure it complies with procedural rules. Then an OCR investigator is assigned to the case.
The investigator interviews Bayshore, anyone Bayshore mentions in connection with his story, and anyone else who might have something to add. A file is prepared that includes the investigator’s report, affidavits from those interviewed, evidence supplied by Bayshore or the witnesses, and other relevant documents. In Bayshore’s case, such documents would include a breakdown by race and sex of the promotions in his office during the past year.
This file is turned over to Bayshore and an adjudicator, another OCR official. The adjudicator meets with Bayshore (and, if he has one, Bayshore’s attorney) to see if there is any possibility of a settlement. If not, the adjudicator makes up his mind as to the rights and wrongs of the case, gets the approval of his supervisor and the signature of the OCR director, and sends his decision to Bayshore.
Sound reasonable? That’s just the beginning, not the end, of the process. If the adjudicator finds that no discrimination occurred, he must notify Bayshore of a right to a hearing before an examiner of the larger Equal Employment Opportunity Commission. This is a full-scale administrative hearing—with lawyers, witnesses on the stand, and a court reporter taking it all down. In this hearing the EEOC examiner goes over exactly the same material that has been reviewed by the investigator, adjudicator, supervisor, and OCR director, all of whom found that no discrimination occurred. The EEOC examiner prepares a “proposed decision,” which is sent to the Secretary of X himself for review. The Secretary of X may approve, amend, or reverse the examiner’s decision.
Now, the secretary of a major agency has more important things to do than review proposed findings about how some GS-13’s feelings were hurt at a transactional analysis session. Besides, it usually takes so long to get to this point—often years—that the events complained about happened during a previous administration when some other secretary was in charge. So what happens? The proposed decision is sent right back to the OCR, the office whose original determination is being reviewed.
Let’s say the EEOC examiner proposed a finding of no discrimination. Of course that was OCR’s position in the first place. Appeals proceed up the ladder only when each rung is a finding of no discrimination, since if discrimination is found the complainant wins and the process stops. So the office is likely to recommend concurrence. But Bayshore isn’t finished yet. He has the right to have the EEOC review the Secretary of X’s decision based on the recommendations of the OCR, based on the EEOC examiner’s proposed findings, based on a review of the OCR adjudicator’s decision, based on the OCR investigator’s report, based on affidavits, and based on evidence supplied by the witnesses. In all these there is almost certain to be some irregularity. And if even these avenues fail, Bayshore can go to court.
Needless to say, all this takes time. For example, one DOX complaint filed in 1978 finally went to a hearing in March 1981. Remember, that’s just the second stage. Completing the rest of the process could easily take another three years, and years more if the complaint goes to court. One drawback of alleging age discrimination is that you may be in a nursing home by the time your case is decided.
What offenses do all these reviewers look for? Well, the Supreme Court is still grappling with a definition of what discrimination is, and nearly every new term finds some new piece to add to the puzzle, further confusing any complaints in progress and providing the inspiration for new filings. For the purposes of simplification, it is enough to say that Bayshore must show that 1) he is a member of a protected class, like a racial minority; 2) that his performance has been satisfactory; and 3) that he was treated differently from comparable employees. Iff he proves these things, the agency must show there was some legitimate, nondiscriminatory reason or what happened—in Bayshore’s case, the denial of a promotion.
Yet, as examples show, discrimination complaints seldom involve anything so clear-cut (or important) as a promotion. Many involve highly subjective judgments about passing slights or squabbles of no consequence whatsoever. Then why do federal employees, except those who genuinely have been damaged by discrimination, bother filing all these complaints?
It turns out the advantages of filing a complaint are many, and the disadvantages, if any, are few. The complaining employee literally has nothing to lose.
When Bayshore files his complaint, he lays the groundwork for future complaints. Complaints can be based on allegations of discrimination because of race, sex, origin, age, or handicap. But they can also be based on allegations of reprisal—that is, allegations that the complainant was harassed because he had brought previous complaints.
Remember, Bayshore’s complaint about being denied a promotion takes a few years to wend its way through the system. You would think that during this period, the complaint does Bayshore no good. But as soon as his complaint has been filed, anything Bayshore doesn’t like can be the excuse to file a complaint of reprisal. Employees have filed reprisal complaints protesting the terrible injustice of being assigned work, alleging that work interferes with the time they need to prepare evidence of their original complaint. Let me run that by you one more time to make sure you heard it correctly. Federal employees earning a full salary have claimed that assigning them work—any work—constitutes discrimination, and have demanded years of exemption from any responsibilities. Discrimination complaints become a form of extortion.
Filing complaints is so tempting because government personnel management has so many complications. The Federal Personnel Manual is six volumes long, constantly changing, and internally inconsistent. Agencies add another layer of confusion by developing their own rules. Thus there are few events which occur in federal personnel management that are completely in accord with all applicable rules. This is especially true of the kinds of actions likely to give rise to discrimination claims—promotions, selections, and reorganizations. An error in promotion or reorganization may not mean the official responsible is prejudiced; the error could be, well, just an error. But officials are afraid to expose themselves to the years of tedious procedures and j’accuse-class scrutiny of fighting a discrimination complaint. Most complainants understand this, and lodge frivolous complaints even though they know the actions involved do not represent any meaningful offenses.
To add injury to insult, the process is skewed substantially in favor of the complainant. By characterizing the process as “non-adversarial,” the EEOC was able to get away with procedural rules that are almost draconian in their denial of due process to those accused of discrimination.
Agency employees who are the target of complaints are called “alleged discriminating officials,” or ADOs. (It may not be a scarlet A, but it’s almost as stigmatizing.) The discrimination process places the ADO on “trial,” for the adjudicator, EEOC examiner, or agency head can order actions taken against him—ranging from further training to a reprimand or dismissal. Of course, we would all want a truly prejudiced official dismissed from the government. But it’s the innocuous-sounding “reprimand” that does the most damage. In the civil service system one “reprimand” on an official’s record can close off any hope of promotions or choice assignments; the official is doomed to a dead-end career. Yet the ADO in danger of such punishment because of the “trial” has little right to defend himself.
DOX lawyers normally represent agency management in discrimination proceedings. We refer to them as “clients,” but in the context of the complaints process, we can’t offer them meaningful representation. Since the process is officially “non-adversarial,” we are not permitted to advocate the ADO’s position; that is, we cannot say, “But consider my client’s side of the story.” In discrimination hearings ADOs are told that the action is against the agency, not them personally, but they may be personally damaged by the outcome. If an ADO wants legal advice about his position, he must hire private counsel. The extortion value here is obvious. A federal worker can file an unlimited number of complaints at no cost or risk to himself, but each complaint an accused official chooses to fight costs him money for lawyers and puts him in jeopardy of severe damage to his career.
Originally, ADOs were not even permitted to see the allegations which had been made about them. Now they are allowed to see any portion of the investigative file which mentions their names, but they are not allowed to review the charges, or even be present at the hearing when the complainant speaks about them. Furthermore, the right to pursue the complaint through the many stages described above is given only to the complainant. Neither the ADO (nor the agency) has any right to appeal a finding against him (or it) at any stage. So if there is a mistake about evidence or a blunder by an examiner, the judgment stands; apparently, you can add discrimination to the system but you cannot subtract it.
Real Complaints, Take a Number
OCR encourages informal resolution of discrimination complaints, as it should. But it often does so by telling the ADO that OCR will propose a finding of discrimination if management does not settle. Since OCR will not allow agent management to review the file to see if the complaint is a buff or represents a real injustice, it’s impossible for management to determine what a fair reparation would be. This slant in favor of the complainant has tipped the scales of justice so far that basic constitutional guarantees may not be provided to the “accused.” A system that protects rights for some by denying rights to others is no system worth preserving.
But the cost, the wasted time, and the shabby treatment of ADOs are not the biggest problems of the system. The biggest problem is the suffering it causes for those who really have been shackled by prejudice. Real, substantive complaints take years to resolve because the system is so choked with phony complaints. The whiners and the manipulators not only slow the system down, they pollute it—fortifying the cynicism of all those involved in the process and scaring legitimate victims of discrimination away. Legitimate victims of discrimination are usually people with pride and self-respect, and they fear the embarrassment of being associated with a process widely viewed as a refuge for losers. So the complaints of legitimate victims are delayed or go unheard, while millions of dollars and thousands of hours are wasted on a process known by all its participants to have little, if any, meaning.
As it stands the OCR process is a practical joke, useful mainly to inept or malicious employees obsessed with selfishness. Only when both bigotry and selfishness are expelled from government can the system truly achieve its goals, public service and the spreading of justice. I hope these ideas don’t strike you as old-fashioned.