« PreviousContinue »
But if you then turn around and file a third-party complaint, they will tell you you can't file a third party complaint because you are complaining about something which affects you personally.
Well now, you put those two together and if seems like they have got a pretty airtight system, and they do.
In addition to that, if you do file a third party complaint, you have no procedural rights at all. You are allowed to send a letter to the Civil Service Commission saying:“All of us folks here at the Roanoke Paper Co. are being discriminated against on the basis of race.” That is all you can do. You are not entitled to an investigation. You are not entitled to a hearing. You are not entitled to have a lawyer represent you in any kind of way.
They do with it as they will, and they tell you what they have done when they are through. They maintain that when they are through, if you file that kind of a complaint, you can't file a lawsuit.
They admit if you file an individual complaint you can filo a lawsuit, but if you file an individual complaint and then try to file a class action lawsuit, they say:“Aha. You can't file a class action because you never told us about your class complaint."
Of course, if you try to tell them about the class complaint, they will throw it out, so it is a very neat little system to make sure that discrimination complaints against the Federal Government, which is, of course, the Nation's single largest employer, have to be processed on a one-by-one basis. I think the one thing that is clear from the development of class action law under title VII is the recognition of the fact that in the absence of class actions the remedying of employment discrimination as a practical matter is virtually impossible.
Fifth, Mr. Moody was represented in court by the North Carolina law firm of Chambers, Stein, Ferguson & Lanning, which is probably one of the best private firms of attorneys in the country handling title VII litigation.
Moody himself was, of course, unable to pay that firm a fee. The firm's work on ordinary billing rates would have cost hundreds of thousands of dollars, and neither at the Roanoke Paper Co. nor in the Federal Government do most employees have the kind of income, at least reported income, which would permit them to pay that sort of fee.
But the Chambers firm was willing to represent Mr. Moody because under the statute if Mr. Moody's case was won, the defendants were going to have to pay counsel fecs. That is a specific provision in title VII.
Moreover, if Mr. Moody hadn't been able to locate the Chambers firm, he could have gone to court and said to the judge: "I have got a title VII complaint here. I don't have a lawyer," and the court would have appointed a lawyer for him.
Now, in an administrative proceeding, the situation is completely different. Although you cannot see this on the face of the regulations, the practice is as follows.
Suppose Mr. Hawkins files a complaint against his employer, the Congress of the United States, complaining that somehow Mr. Buchanan has been discriminating against him. The Government will immediately appoint a lawyer to represent Mr. Buchanan in that proceeding. The Government will not appoint a lawyer to represent Mr. Hawkins.
If Mr. Hawkins goes out and tries to find a private firm, what that firm is going to have to tell him in all likelihood is that they can't help him because in an administrative proceeding, if you prevail and Mr. Buchanan is guilty as sin, the Civil Service Commission still won't pay your lawyer a counsel fee.
Now, the Civil Service Commission has one thing that they will offer you. They will permit a Government lawyer to represent you, if you can persuade him to do it, but not any Government lawyer. It has to be a Government lawyer who works for Mr. Buchanan or at least it has to be a Government lawyer who represents the same agency that you are suing.
Now, under ordinary conflict-of-interest laws, that is the one lawyer who could not possibly, as a matter of ethics, represent you, but that is the only lawyer that the Civil Service Commission provides.
I think that the history of the litigation in Moody illustrates the importance involved are extraordinarily complex.
This brings me to the sixth factor in Moody, and that is the problem of discovery. Moody's lawsuit was not a simple case where a complaint was filed and a motion for summary judgment was filed immediately thereafter and the case was won.
Moody involved years, literally years, of discovery. There were four sets of interrogatories filed. These are written questions that the defendant had to answer. Those answers ran about 200 pages.
The Chambers firm then conducted 20 days of depositions which yielded transcripts of approximately 8,000 pages. They then forced the defendants to open up all of their files and went in and Xeroxed 20,000 pages of documents.
That 28,000 to 30,000 pages of material was the basis on which the case was made out and Moody was able to win.
Now, if Moody worked for the Federal Government, his lawyers couldn't have gotten any of that material. There is no provision at all for discovery in the administrative process.
We have in a number of instances tried to invoke those procedures although they don't exist. We file an administrative complaint. We serve an interrogatory and they look at it as though it were in Chinese and they hand it right back to us. There is nothing like that authorized.
Now, what this means is that the Civil Service Commission says to an aggrieved employee: “We have the information. We aren't going to give it to you, and you have the burden of proof of showing that you have been discriminated against.” Obviously that is the kind of situation where the Commission can rarely lose and rarely does.
I think if you were to review the record in Moody that you would see the importance of this. For example, the testing issue turned on what was called the differential impact of the Wonderlic and the Alpha and the Beta tests on employees, and the way we were able to establish that was that we went through the records of every employee who had ever taken the test, computed by hand the average scores of the whites and the blacks for each of these three different tests and showed that they were different.
If you were attacking a similar procedure in the Federal Government, you couldn't look at those files. You couldn't get that information. You would have no way of establishing what was going on, and
that has a lot to do with why no one is ever able to establish that they were being discriminated against.
Finally, Moody's case, when it came to trial, was, of course, decided by a U.S. district judge. On appeal it was heard by court of appeals judges and ultimately by the Supreme Court.
Interestingly enough, only eight members of the Court say. Justice Powell disqualified himself apparently because a law firm with which he had once been associated was representing the Albemarle Paper Co.
Now, in the administrative process you don't have that kind of right to an unbiased judge. The judging is all done by the defendants. The counselor to whom you go at the outset works for the defendant whom you have accused of discrimination. The decision whether or not to accept the complaint as adequate on its face is made by the defendant.
The facts which are investigated are looked at by an investigator who works for the defendant, and the final decision which is made within the agency itself is obviously made by the defendant.
The whole process is as if Mr. Moody's complaint was investigated by the general counsel of Albemarle Paper Co. and decided by the president of Albemarle Paper Co.
That is not a process which imbues one with a feeling of confidence in the system. It has long been a principle of Anglo-American jurisprudence that a man or—now we would say a “person," I think, is not allowed to judge his or her own case. Yet, that is precisely the system which exists within the Federal Government today.
I think I have gone on a bit, and I think I would like to close at this juncture. As I said, in summary the problem which we face today is that a case like the Moody case, if brought against the Federal Government in the context of the internal complaint procedure, could not be won, and under most circumstances wouldn't even be heard on the merits.
We think that the regulations which bring about this inappropriate result should have been changed many years ago and in the face of Moody certainly should be changed now.
Mr. HAWKINS. Thank you, Mr. Schnapper. I think you have been most helpful to the committee. I am sure there are many questions we would like to ask.
First of all, may I ask this by way of a followup of these hearings? I don't know whether you are aware that the Civil Service Commission has come before the committee, and their testimony, of course, sharply different from that which you have presented to us today.
I am wondering whether or not we could prevail on you in some way to assist the committee in the drafting of model regulations which the Civil Service Commission might be asked to consider, and hopefully to adopt, that would correspond with Moody.
I am sure that we have other witnesses who will be testifying today who also might assist us in the drafting of those model regulations
It just seems to me that one of the tasks of this committee is to follow up on these hearings and to get some meaningful change in the procedures. I think
have developed that thought today. What I am asking is: Can we in any way prevail on you to assist in the drafting of such model regulations?
Mr. SCHNAPPER. We would be happy to help with that, and I think perhaps we can get together and work in harness with your staff on that project. I think that would be helpful.
Mr. HAWKINS. That would be a great contribution. Perhaps we can have the Civil Service Commission come back before this committee to give us the reasons why they may not be able to follow the recommendations that have been made, because I think those which you have discussed today are so eminently clear that it is surprising that the Government itself would engage in some of these practices.
I have just one or two questions, Mr. Schnapper. Is the Civil Service Commission limited in any way in its drafting of regulations by the law? Do they deviate from the law itself? Are they compelled to follow administrative procedures in such a way as to limit them and to give rise to the type of practices which they seem to have uniquely developed for themselves?
Mr. SCHNAPPER. No. On the contrary. We believe that the law requires that the procedures fashioned by the Civil Service Commission at the least be congruent with the procedures which would exist in a title VII action against a private employer.
It certainly would be within the power of the Civil Service Commission to fashion rules which were even better than that, and we would certainly hope that they would, but it is our contention that to the extent that the rules now in existence are different from and inferior to the procedures available to a private employee, that difference is not only inappropriate in terms of the commitment of the administration to remedying discrimination, that distinction is also unlawful.
If I might be more specific for example, we would maintain that the failure of the Commission to fashion an effective procedure for dealing with class actions is simply a violation of the law.
Mr. HAWKINS. To your knowledge has that been tested ?
Mr. SCHNAPPER. It has not. I would like to respond to that in a little detail.
Mr. HAWKINS. Why do you think that it has not been tested ?
Mr. SCHNAPPER. Without letting any cats out of the bag, I would think a test would be very likely in the near future if something isn't done. I think it has taken everyone involved a little time to realize just how bad the system was.
It doesn't appear on the face of the regulations, for example, that you couldn't file a class action, but when we have gone and done it we have had it turned down.
Some of the history of this is rather amusing in a sad sort of way. If you file an individual complaint with the Civil Service Commission and it is ultimately rejected and you go and file a class action lawsuit, the Justice Department will come in and argue that you can't file a lawsuit in court for the class because you didn't pursue a class action back in the administrative process. That is squarely in conflict with the laws that exist with regard to the EEOC where you don't have to file a class action charge with the EEOC.
When that first started happening, a bunch of aggressive young lawyers saw that and they said: "OK. We will do that. We will file a class action.” And so we turned around and we filed a class action just the way the Government said we had failed to do before.
Then we found out that we couldn't do that. Then came along another lawsuit, and the Justice Department said: “Well, no, you can't file a class action lawsuit because you haven't filed a third party complaint with the Government.” That is a different kind of complaint.
So we went back and filed one of those and found that they were being rejected by the administrative process on the grounds that they were related to the individual complaint.
It has taken us a while to realize the general picture we have gotten in court about what the process is like is very different from the process itself. I don't say that to suggest anyone is necessarily proceeding in bad faith. I just think that it has taken us a while to recognize just how serious this is.
Mr. HAWKINS. Let me ask you this: Do you think that it is worthwhile to explore that possibility or that alternative for bringing the Civil Service Commission in line with correct administrative procedure, certainly in line with the EEOC, or do you believe that the better solution would be to just simply put Federal employment discrimination under the Equal Employment Opportunity Commission as it was originally designed, assuming it is politically feasible to do so?
Mr. SCHNAPPER. That question raises ramifications in terms of internal government procedures with which I am not sufficiently familiar to comment.
I think that the one thing that is clear is that the regulations for processing these types of complaints have to be changed. Mr. HAWKINS. I guess what I am asking you is this: Do yoll
think that all employment discrimination should be under one agency, one umbrella, and whether or not there is any advantage in having Federal employment discrimination treated by a different agency from that which treats private employment and other governmental agencies?
Mr. SCHNAPPER. Well, certainly the experience of the last decade or two, when we have had that type of system, doesn't suggest any reason at all for the present system.
The job that the Civil Service Commission has done has been, in my judgment, clearly inadequate and inadequate in a way that should have been apparent to them all along.
It is clear that the Civil Service Commission faces an inherent conflict of interest, that at the same time they are supposed to be in a way adjudicating these kinds of problems they are also given the task of appointing the supervisor who is the defendant in creating the system that is under attack, and there is no way that that conflict of interest could be avoided under the present system which makes the Civil Service Commission in a sense both judge and defendant in all of these cases.
Mr. HAWKINS. Mr. Buchanan.
Mr. BUCHANAN. Thank you, Mr. Chairman. I would like to join the chairman in thanking you for your statement. You make a very forceful case, and it would appear that Federal employees are less equal than others in some very specific ways you mention, so I would join the Chair in his request that you assist us and give us your ideas of what would be model regulations.
Mr. SCHNAPPER. Could I just interject here one note? The disparate nature of the rules involved is not a new problem. Both in the House and Senate reports back in 1972, when you gave the Civil Service