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Commission yet another chance to straighten the situation out, made it crystal clear that the purpose of the new statute was to give Federal employees exactly the same kinds of rights that private employees have. That was unequivocally clear 3 years ago, and it is difficult to understand why no steps have been taken to implement that.
Mr. BUCHANAN. Are hearing examiners typically used in these cases?
Mr. SCHNAPPER. Well, they are used in a significant percentage. I don't know the exact number.
Mr. BUCHANAN. They do have some measure of independence ?
Mr. SCHNAPPER. Well, now, it is a little more complicated than that. First of all, one of the problems in this area from the committee's perspective as well as ours is that most of the relevant information is not readily available.
At the request of your staff, we submitted some very detailed questions that might be put to the Commission to get answers to specifically that kind of question: How often hearing examiners sit? What kinds of things they do?
You get from the Commission a very general statement that everything is peachy keen, but you aren't getting the sort of specific information which would allow you to evaluate that in a meaningful kind of way, and I think with regard to that question and some of the other things that I have raised it would be very helpful to the committee to ask those specific questions and get some written answers.
With regard to the specific problem you raised, hearing examiners are called in in some instances. Now, the whole procedure that is set up is a sort of fail-safe procedure. At every stage, the administrative proceedings will be cut off unless than employee takes yet another step to keep it going
In other words, there will be an investigation and they will say: "Well, OK. We will stop now unless you want us to do more.” So that in addition to filing a complaint, the employee has to make a number of additional requests for processing on the way,
on the way, including a specific request for a hearing examiner.
The hearing examiner in general does not work for the defendant agency, but he is not empowered to decide the case. All he does is sit, hear the witnesses, and then makes a recommendation as to what should be done. The decision on the recommendation is not given at that time to the employee. It is a secret. Instead of giving it to him, it is given to the defendant agency. The head of the agency then receives the recommendation and can reject it or accept, as he sees fit.
It should not surprise you to learn that the likelihood is that, if the hearing examiner recommends against the employee, his recommendation will be accepted by the defendants, with thanks.
If the hearing examiner should rule for the employee, the odds are far higher that his decision will be rejected by the defendant agency.
That system is not only bad in the instances where the decision is rejected. It obviously has a very significant deterrent effect on hearing examiners. They work for the Government. It doesn't look good for them to have their decisions overruled all the time.
There is a case in the Supreme Court now which illustrates this very well. A fellow named Salone out in Oklahoma filed a complaint saying he had been retaliated against by his supervisors for several earlier complaints of discrimination which he had filed. The earlier complaints had been sustained and he had gotten relief on them.
He now claims he is being discriminated against because of the earlier complaints. They are bringing in an investigator who is from another Air Force base. The investigator says Salone is right, he is being discriminated against, that you have got to take some specific steps, and he makes that recommendation to the head of Salone's Air Force base.
The head of the Air Force base turns him down cold, won't do anything. Then Salone's calls in a hearing examiner. The hearing examiner conducts an extensive investigation, produces a transcript running to 400 or 500 pages, makes a 30-page recommendation, which goes to Washington.
Some fellow down in the Pentagon writes a one-page letter rejecting all the important recommendations and saying: "No, there isn't any discrimination here at all.”
That is typical of the process which exists.
Mr. BUCHANAN. I have had the experience in a small way of contending against the Federal bureaucracy. I filed a class action suit against the Postal Service on behalf of the postal users of the United States last year, and we won, but I had to hire a lawyer, and they, of course, had the Justice Department. In getting information which I thought the Freedom of Information Act required them to supply generally, we had real problems.
Dealing with the bureaucracy was murderous, and, among other things, the postal service sought to have me cited for contempt of court for telling members of Congress what the post service was about to do to them in their Congressional districts.
So in a very small way I have experienced what an individual is up against when he takes on the Federal establishment, and I could imagine for an employee, especially one well down the line, it could be a very frightening prospect to take on this establishment, given present procedures.
Thank you so much for your testimony.
Mr. HAWKINS. Mr. Schnapper, just one or two other questions. In connection with the Albemarle case in what way does the decision affect the testing procedures and prohibit the discriminatory ones?
Mr. SCHNAPPER. Well, it was already the law before Moody that certain kinds of testing procedures could not be used. Once it was shown that a test has a different impact on a minority group-blacks, for example—that test cannot-could not be used under the earlier decisions, unless the company could show that the test was job related, that the skill it was to test for had some connection with the job at issue.
Typically, general intelligence tests would be given for work that didn't require what the test tested. It tested your mathematical ability and then vou would be asked to lift heavy bales of cotton or something. There is just no connection at all, except that whites did very well
on the test and blacks didn't do as well, and the result was that you could go on hiring just whites for the job.
Moody elaborates to some extent on the requirements for validating a test as job related. In addition, it goes beyond that in a new and, to some extent, quite extraordinary respect in that it says that even if a test has been validated as job related, you still cannot use it if there is another way of picking out or promoting your employees which doesn't have a discriminatory impact.
For example, if you have a test on which blacks don't do as well as whites, even if in some sense you are able to validate that, if there is some other way of picking out your employees—for example on-thejob training—and that procedure does not have this kind of discriminatory effect, then you cannot use the test at all.
That is a very substantial change. It is not really a change so much as new, current Supreme Court thought. In à very substantial number of situations there is a way of hiring and promoting employees without resort to tests.
In fact, until, of course, perhaps 10 or 20 years ago, tests weren't used at all in this country by most private employers.
The litigation generally reveals that tests, particularly the Wonderlic and Alpha and Beta tests, came into existence between about 1960 and 1965. Certainly before 1950, relatively few companies used these procedures.
Obviously, the American way of life and the free enterprise system functioned perfectly well without them before, and I suggest that it probably could do so again.
Mr. HAWKINS. That went on then beyond Duke?
Mr. HAWKINS. From the viewpoint of the employee ? Moody added much more than Duke did in terms of testing. It gave some added protection.
Mr. SCHNAPPER. It added something else. I wouldn't want to get involved in saying which decision made us happier. They both made us happy.
Mr. HAWKINS. How would you say that the PACE test which is used by the Civil Service Commission stacks up against the Moody decision!
Mr. SCHNAPPER. I think PACE is in a lot of trouble. I don't think I am in a position to make a detailed evaluation of it beyond saying it is clear not only that the validation procedures haven't followed what Moody has said, but that, even if they were followed and PACE met that standard, the Government would still be faced with a problem that in many of these jobs you didn't really need a test at all, and that something like on-the-job training with a probationary period would do perfectly well. So I think PACE and the Government's whole testing procedures are in serious difficulty at this time, although they are in no difficulty in terms of internal complaints of discrimination because, for the reasons I explained, those will never get anywhere anyway. But in terms of the courts they will be in trouble.
Mr. RADCLIFFE. From my brief experience in private practice, I am astonished that Federal employees don't have such procedural safeguards as an adequate discovery process. I don't think I could have represented a client without it.
The one thing I was unclear on in your presentation is why they cannot bring—what are the barriers against bringing a class action complaint at the administrative level? I am sure you must have made that clear in your testimony and it escaped me.
Mr. SCHNAPPER. I have to sort of describe what happens.
Mr. SCHNAPPER. It is not in the regulations. Well, let me say this first. Under title VII law, you aren't supposed to have to do it in the first place. Under title VII law, if I file a complaint and say I have been discriminated against, the EEOC has to investigate all charges against all other people similarly situated to me.
Mr. RADCLIFFE. Right.
Mr. SCHNAPPER. So, that if, for example, I say I have been discriminated against on the basis of sex, they have to look at all kinds of sex discrimination problems in the appropriate department or company or whatever, depending on what seems sensible.
The Cívil Service Commission won't do that, and it goes beyond not doing it. If, for example, an investigator finds class-wide discrimination, he or she—but I have to say it is really he, because the investigators are generally all men-is forbidden to recommend that it be corrected.
If the hearing examiner finds classwide discrimination, he is forbidden to recommend that it be corrected, even if the Government finds out that it is going on in this process. They aren't supposed to do anything about it.
Mr. RADCLIFFE. That doesn't appear on the face
Mr. SCHNAPPER. Doesn't appear on the face of the regulations. It can be divined from practice and from the handbooks of instructions that are given to the investigators and the hearing examiners.
If you were to try to file, as we have, a complaint which said not just what is normally adequate, but you also said: “And I want this to be class action,” they would refuse to process it, and they simply write you a letter back and say: "We disregard that language. There is no such animal in this procedure."
If you try to file-
Mr. SCHNAPPER. In addition, if you try to file this third party complaint, which is a separate procedure under section 251 of the regulations, if you are a victim of the kind of discrimination you are complaining about, they won't process it on the grounds this is a sneaky way of filing an individual complaint.
Now, bear in mind often these are the same people. The official puts on his individual complaint hat and says: "You can't send this here. It is really the other kind of problem.” He doesn't say:“And, therefore, I will deal with it in my other capacity.” He dismisses it.
By now, of course, you have missed the deadline for going to file someplace else, but if by any chance you haven't missed the deadline, you go out of his office, you come back into his office, and say: "OK. Here is a third party complaint.” He says: "No, no. Nothing I can do for
you. It is related to your individual complaint.” Mr. RADCLIFFE. Sort of a catch-22.
Mr. SCHNAPPER. Yes. I think that one senses that that particular book, rather than title VII, is the primary source of ideas in terms of processing these complaints.
Mr. RADCLIFFE. Thank you, Mr. Chairman.
Mr. SCHNAPPER. Could I just indicate one thing further? One of the problems that exists here over and above the regulations is that the critical people who are charged with carrying out the regulations not only are the defendants, but they are a group which is generally limited to white males, and with deference to everyone here, older white males.
I don't think we have ever seen a black or female investigator or hearing examiner. It would certainly be our impression that this is not coincidental, and obviously that is a very serious problem.
That would not be dealt with directly by changing the regulations, but it is something I think the committee might find appropriate to look into.
Mr. HAWKINS. I understand that question specifically has been directed to the Civil Service Commission in a series of questions which we have submitted to them. We hope to be able to get the answer to that.
Mr. Schnapper, we certainly appreciate your testimony before the committee, and we want to thank you and also commend the work that you are doing. Hopefully we can look forward to your participation with us in drafting the model regulations to which we have already referred.
Mr. SCHNAPPER. Thank you.
Mr. HAWKINS. Thank you very much. The next witness is William L. Taylor, director of the Center for National Policy Review, Catholic University Law School, Washington, D.C.
Mr. Taylor, I am delighted to welcome you before the committee. You have been here before and you have contributed a great deal. We miss you in Government service, however; we certainly
commend you on the job that you are doing in your new capacity, and it is a pleasure to have you as a witness before this subcommittee today. STATEMENT OF WILLIAM L. TAYLOR, DIRECTOR, CENTER FOR
NATIONAL POLICY REVIEW, CATHOLIC UNIVERSITY LAW SCHOOL, WASHINGTON, D.C.
Mr. TAYLOR. Thank you very much, Mr. Chairman. I might say that my hopes of somebody serving my Government again have not been completely extinguished.
I want to express my appreciation for the opportunity to participate in these hearings which, I think, are serving a very important purpose.
Ever since the enactment of the basic civil rights law by Congress in the 1960's, the executive branch has become as critical an arena for the vindication of the right to equal treatment under law as the other two branches of Government.
Yet critical decisions affecting the rights of minorities are often made by Federal departments and agencies, or they go by default, with very little public scrutiny.