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In an administrative proceeding, however, none of this is possible. The regulations are, in general, silent on this matter, but in practice the government always directs a government attorney to represent it and oppose the employee in any administrative complaint. No such attorney is ordered to represent the employee. While an employee is free to try to persuade a government attorney to represent him, he is limited by section 713.214(b) to attorneys who work for the defendant agency. The regulations deliberately make no provision for counsel fees if an employee wins, so that had Moody worked for the government, he would not have been able to get as his attorney expert private lawyers like those who represented him against Albemarle Paper.
6. The trial in the Moody case was preceded by many years of discovery, Moody's lawyers served and got answers to four sets of interrogatories in excess of 200 pages. They took 20 days of depositions yielding 8,000 pages of transcripts. They compelled the defendants to open for inspection and copying all their personnel files and xeroxed over 20,000 pages of documents. Moody was only won because this massive investigation revealed the discriminatory nature of Albemarle's tests and seniority practices.
Had Moody worked for the federal government, this discovery would have been impossible. The regulations do not authorize interrogatories, depositions, demands for production of documents, or other established discovery tools. Our office has in a number of instances attempted to invoke these procedures in an administrative hearing, but we are repeatedly told they are unavailable. In short, the Civil Service Commission procedures, like President Nixon did last year, deliberately makes the critical evidence against it unavailable to an employee and insists that the employee prove his case without the evidence he or she needs.
7. When Moody's case came to trial, it was decided by a United States District Judge, Frank T. Dupree. On appeal it was heard by 3 court of appeals judges and 8 members of the United States Supreme Court. None of these judges had ever worked for the defendant Albemarle Paper Co. Mr. Justice Powell disqualified himself from participating in the case because Albemarle was represented by a law firm with which he had once been associated.
In the administrative process, however the employee's case is not decided by an independent third party—the "judge” is the defendant agency itself. The counselor, who is supposed to try to bring about a voluntary end of discrimination, works for the defendant agency. § 713.213. The decision to accept or reject the complaint is made by the defendant agency. § 713.215. The facts are investigated by an investigator who works for the defendant agency. § 713.216. The final decision on the complaint is made by an official of the defendant agency.
Although in general a hearing, if held, is conducted by a hearing examiner from another agency, his recommendations are not binding on the defendant agency, and when he rules for the employee his decision is often ignored by the defendant agency. It is as if Moody had his case investigated by the General Counsel of Albemarle Paper Company and decided by the President of the Company. Obviously, as Justice Powell recognized, no one connected in any way with the defendant agency should be permitted to decide a case affecting that defendant.
8. It has long been central to all Title VII cases that, once a general practice of discrimination is shown, the burden of proof is on the defendant to establish that the policy did not injure the aggrieved employee. This rule, adopted by the Supreme Court in McDonald-Douglas v. Green, 411 U.S. 792 (1973), arises from the fact that the key facts are usually in the defendants hands. It is often difficult to reconstruct in retrospect just how an employee would have fared in the absence of discrimination. Thus, Mr. Moody was only required to prove, as he did, that Albemarle's seniority and testing system discriminatory.
The Civil Service Regulations, however, would require Moody to prove more-he would have to show just which jobs he would have gotten and how much he would have been paid had there been no discrimination in the years 1964 to 1975. § 713.271. Thus, since there is racial discrimination and if the facts show Blacks lost $2,000,000, Moody and other employees will get that money from Albemarle even if it is difficult to figure out who is owed how much. But, in an administrative complaint against the federal government, if Moody could not prove precisely how much of the $2,000,000 he and every other employee was owed, none of them would get anything. This requirement, known as the “but. for” rule, is clearly inconsistent with the Moody decision.
It is clear that, for these and other reasons, the procedures for processing complaints of discrimination established by the existing Civil Service Regulations
are entirely inconsistent with the procedures followed in and sanctioned by Moody v. Albemarle Paper Company. Under these regulations the procedural and substantive rights accorded federal employees is decidedly and inexplicably inferior to the rights accorded to private employees. No statute or policy supports such a distinction. Discrimination in federal employment is especially grievous under our constitutional system.
Three years of inexcusable inaction have passed since the Civil Service Commission promised Congress that these regulations would be reformed. It is inconsistent with the responsibilities of the Commission and the Administration's commitment to equality of opportunity that the regulations should deny relief in any instance where the courts would grant it. That is the case here—for the victory Joseph Moody won in the Supreme Court would have been impossible under the Civil Service Commission's procedures. A substantial number of complaints are rejected by the Commission each year for reasons no court would apply to a private Title VII standards. This disparate treatment is an unjustifiable burden on the minority employees of the federal government and on the courts which must resolve the resulting litigation. The regulations must be changed.
Mr. HAWKINS. You may either summarize from your statement or proceed to read it, as you so desire.
STATEMENT OF ERIC SCHNAPPER, ASSISTANT COUNSEL, NAACP
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, N.Y.
Mr. SCHNAPPER. Thank you. I think that I would like to address myself primarily to the impact of the Moody decision on the existing Federal regulations regarding the processing of discrimination complaints by Federal employees.
A certain amount of historical background is helpful here to understand just the problems which now exist.
Back in 1971 and 1972, this committee and the Senate Committee on Labor and Public Welfare conducted an extensive series of hearings in connection with proposed legislation to amend the 1964 Civil Rights Act.
A large part of those hearings was directed at the problems of Federal employees who felt that they were the victims of discrimination on the basis of race or sex in employment.
The hearings revealed, and both the House and Senate committees concluded, that the Civil Service Commission's regulations were completely ineffective to deal with the problems of discrimination.
The procedures were full of tricks and technicalities which allowed many, many thousands of complaints to be thrown out without regard to the merits.
In addition, the employees who were able to get hearings invariably lost and came away from the whole process with the conviction that it not only had not been worth their while, but had led to a significant number of reprisals directed against them.
The best way I can characterize the defects in the regulations as they existed in 1972 in the context of Moody is simply this. Mr. Moody, if vou remember, worked for the Roanoke Rapids Paper Co.
If that company had been owned in 1972 by the Federal Government and Moody had filed an administrative complaint, he would have been thrown out. He wouldn't have even gotten a hearing. He would have been just rejected out of hand.
Congress saw all of this back in 1972 and legislation was proposed both in the House and Senate to strip the Civil Service Commission of all responsibility for processing discrimination complaints and turn that matter over to the EEOC.
While this proposal was before the Senate committee, however, an understanding was reached between particularly, I think, Senator Williams and the Commission to leave the matter for the time being in the hands of the Commission, if the Commission would undertake to reform the regulations and procedures which were then in effect.
The Commission had in part excused its past performance on the grounds that it lacked adequate authority to deal with the problem, so the Senate committce wroto into the bill broad-reaching authority for the Commission to do whatever was necessary to create an effective procedure.
Having done that, the bill was then enacted, leaving the matter in the hands of the Civil Service Commission.
The question before us today is: What has the Civil Service Commission done since 1972 to carry out its understanding with Congress ? The answer is not a complex one. It is quite simple. They haven't done anything.
The regulations today are in most material respects precisely the same as the regulations which existed in 1972. None of the problems which Congress specifically identified both in the hearings and in its reports have been remedied, and the situation which faced Mr. Moody in 1972 would face him again today if he were working for the Federal Government.
If the complaint in the Moody case were filed today with the Civil Service Commission or with, say, GSA, if GSA were running that paper company, GSA would turn it right back and say: "We won't even process that kind of complaint.”
I would like to focus my remarks in detail on why that would happen and what changes are obviously needed in the regulations so that a case like the Moody case which the Supreme Court has said is a meritorious case in which very substantial remedies are necessary, would be a case which could be successfully processed within the administrative complaint procedures.
At the outset, before Moody ever filed his lawsuit, under title VII he was entitled to go to the Equal Employment Opportunity Commission to try to have the EEOC, an independent third party, see if the paper company could be persuaded to voluntarily comply with the law.
Although that didn't work out in Mr. Moody's case, sometimes that is a very important right, and in a number of instances EEOC has been successful in conciliating complaints under the law.
Under the regulations, though, a Federal employee doesn't have that kind of right. A Federal employee has to go to an EEO counselor. Now, the EEO counselor works not for some independent force. The EEO counselor works for the same people who are accused of breaking the law.
It is like saying that Mr. Moody could go to his supervisor at Albemarle Paper Co. to try to have him mediate a settlement.
Obviously, EEOC, if it tries to mediate, has got some muscle because it is independent. It has got some authority. If they indicate they think a settlement is appropriate, the company has some incentive to comply.
The pressure runs the opposite way in the Federal Government. The counselor is completely and necessarily responsive to the pressures from the defendant or people who would be nominally the defendants, so the pressure has a way of running in the opposite direction.
We have received large numbers of complaints from Federal employees that they are put under pressure, either indirectly or directly, by the EEO counselor not to go forward with their complaint, rather than pressure being put on the agency to comply with the law.
Second, once Moody had gone to the EEÒC and raised whatever kind of complaint he had in vain, he was then entitled to go and file a complaint in court, and the complaint that he could file need only involve discrimination which was, in the technical term, "like or related” to the discrimination of which he had complained to EEOC, and wouldn't have to be completely identical.
Under the law, virtually all forms of racial discrimination, for example, are regarded as "like or related.” Now, that rule was very important to Mr. Moody. Mr. Moody, when he went to EEOC, had complained primarily about discrimination in promotions and work conditions, but when he got into court he was primarily concerned with different kinds of discrimination, discrimination in testing, and discrimination in seniority system. That was no problem under title VII.
But under the regulations that would have been a fatal defect because the regulations require that the form of discrimination in your formal complaint be exactly the same as the type of discrimination in your informal complaint to the EEO counselor.
For example, if you complained to the EEO counselor about vacation pay and then when it comes to your formal complaint you think on second thought that your problem may really be a promotion problem, the Government won't handle that complaint. They will reject it out of hand.
For an uniformed employee, who very often doesn't have a lawyer, those are distinctions which are obviously not readily apparent on the surface, and clearly an employee may only learn after some time just why it is that he hasn't been getting any relief and what the nature of the problem is.
Third, title VII provides certain deadlines for filing a complaint of discrimination. The base rule under the statute is that the charge, which goes normally to EEOC has to be filed within 180 days of the act of discrimination.
In addition, there is a very important caveat that if you are concerned with a continuing violation of the law with an ongoing policy that exists on a day-to-day basis, then you can file a complaint any time that policy is in force or within 180 days of when it ends.
For example, Mr. Moody was complaining about the testing program, and the seniority program. Well, those were ongoing policies at Albemarle Paper Co. and he could file a complaint any time he wanted.
The Federal Government has a completely different rule. First of all, out of whole cloth they have created a 30-day deadline for filing
discrimination complaints, which, of course, is one-sixth of the time that exists under the statute.
Second, the Government doesn't recognize what every court in the land recognizes, which is the doctrine of continuing violations. If, for example one wants to challenge a test, a Federal testing program, although the program remains in effect over a period of time, you have to act immediately after you have been affected by that particular test or you cannot complain about it.
I think it is clear that the experience of the courts with the 180day rule and provision for continuing violation is that it is eminently workable and eminently fair, and it doesn't appear to us that the regulation in setting a very different and extremely restrictive standard either comports with law or makes sense in terms of remedying employment discrimination.
Fourth, and perhaps most significantly in the light of Albemarle, is the problem of class actions. Moody, of course, didn't file a lawsuit just for himself. He brought the lawsuit for all other blacks who were employed at the Roanoke Paper Mill.
Now, not all of those employees—and there were about 300 of them-had-themselves filed an individual charge of discrimination. Some of them had, but the vast majority had not.
Albemarle claimed that only employees who had filed individual charges were entitled to get any relief under the lawsuit, but the Supreme Court rejected that contention and held that Moody could represent—any black employee at the company.
The civil service regulations are drafted so as to deliberately preclude this from happening, and the situation is almost Kafkaesque in its nature.
If Moody had filed an administrative complaint, which said: “This is a class action. I want to represent all Federal employees with the same problem," it would be rejected. Our office had done that.
What it would mean would be that if there was an agency like Roanoke Paper with 300 black employees, every one of the 300 employees would have to file his own or her own administrative complaint.
Now, I have to touch on another provision of the regulations here because you are undoubtedly going to be told by the Commission that there is another way of dealing with this.
The 1972 the Commission set up something which it called a thirdparty complaint procedure. This is a procedure pursuant to which an employee not directly affected by a form of discrimination can send a letter to the Civil Service Commission complaining about some general practice of discrimination.
That procedure is nominally in lieu of a class action procedure, but it is seriously defective in two respects. First of all, Mr. Moody couldn't have done that. What I am going to say to you is going to sound a little implausible to believe, but this is the rule.
If you are an individual and you are being discriminated against and you include within your complaint a statement that you want class relief, they will reject it on the grounds that you cannot seek class relief in an individual complaint, and they may well tell you to file a third party complaint.