EEOC

Senate Appropriations subcommittee Chairman Barbara Mikulski (D-Md.) May 3 characterized the Equal Employment Opportunity Commission as an agency in "disarray" and said she will request an independent audit by the Government Accountability Office on the effects of the commission's recent restructuring efforts.

At a hearing of the Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Mikulski told EEOC Chair Naomi C. Earp that her criticisms were not directed personally at Earp, who has served as EEOC's head since September 2006. Instead, Mikulski questioned decisions by Earp's predecessor to close eight of 23 district offices, open a national call center staffed by private contractors, and cut commission staff while EEOC's case backlog is growing. Mikulski asked whether a "flat-funded" EEOC can keep up with the demands placed on the agency.

Earp Defends Call Center

Testifying on the administration's $327.7 million budget request for fiscal 2008, Earp said EEOC realigned its field offices and opened the National Contact Center (NCC) in response to recommendations in a 2003 National Academy of Public Administration (NAPA) report. Although Earp conceded the call center "got off to a rough start" upon opening in March 2005, she said its performance has improved because of EEOC "aggressively addressing issues in the NCC's implementation and follow-up."

Earp said the most recent report on NCC shows that in March, the call center handled more than 65,000 calls from individuals with potential bias claims, which projects to about 700,000 contacts for 2007. She emphasized that NAPA also recently found that moving the call center function into EEOC would cost $8 million for the first year and almost $5 million annually thereafter. Contracting out the call center allows EEOC investigators and legal personnel to "do the real jobs they were hired for," Earp said.

Mikulski responded that the subcommittee remains "very concerned" about the call center, noting that NCC employees receive only seven days of training and have no background or follow-up training in employment discrimination law. She added that although NCC is supposed to be a 24/7 operation, it is essentially an answering service for many of those hours.

Earp testified that the NCC is "dramatically improved," with calls now being answered on an average of one minute after being received. EEOC is using the NCC to track data on both the nature of alleged discrimination being reported and its location, Earp said. Although NCC employees cannot respond to inquiries in-depth, Earp said, "we think they have sufficient training to do that first response to callers."

Mikulski Seeks New Tone

More generally, Mikulski suggested the NAPA study is outdated and a new, independent assessment is needed on where and how EEOC should expend its resources. Remarking that she is usually "a fan of NAPA studies," Mikulski expressed doubts about NAPA's recommendations for EEOC and "the path it has put us on here."

Mikulski noted that when EEOC proposed to cut district offices, relevant Senate committees voiced "very strong opposition" to then-EEOC Chair Cari Dominguez but "we were ignored." Mikulski expressed concern that with U.S. population centers shifting and new forms of discrimination emerging, NAPA's recommendations may already be "demographically outdated."

Earp replied that for now, EEOC believes that its decision to open field offices in Mobile, Ala., and Las Vegas adequately addresses the population shifts. The call center allows EEOC to "capture information on where claims are coming from," she added.

When Mikulski asked if EEOC is analyzing call center data to determine whether new field offices are needed, Earp said the commission is not doing so now. Mikulski added that "if a call center is going to be your tool" for determining EEOC's future organizational moves, "then the call center needs to work right." "I don't have much confidence" in the call center, Mikulski said.

Mikulski said that in connection with the downgrading of the Baltimore EEOC office, "we got into a very prickly relationship with your predecessor," referring to Dominguez. She criticized the former EEOC chair's "imperial management style."

"I hear you loud and clear," Earp replied, adding that she respects "the role of the legislative branch" and intends to "operate in a spirit of transparency and comity" with Congress. Citing her 20 years as "a career civil servant," Earp said: "I don't think anyone who has worked with me would describe me as imperial."

Concerns About Staffing

Mikulski and Sen. Richard C. Shelby (R-Ala.), the panel's ranking Republican, both questioned whether EEOC has enough employees to handle its workload. Mikulski cited EEOC's estimate that it will receive 76,000 new discrimination charges this year, increasing its current 34,000 charge backlog to a projected 40,000. The backlog is expected to rise to 55,000 in 2008, Mikulski noted.

Shelby asked whether the 2,381 full-time equivalents in the fiscal 2008 budget request is EEOC's current staffing or a ceiling on commission employees. Earp replied that "we plan on hiring to our ceiling."

Shelby expressed concern about a proposed $2 million cut in EEOC's allocation for state and local fair employment practice agencies. He asked if EEOC plans on shutting down more local offices. Earp replied that the commission has no plans either to reduce its district offices or to force state or local FEP agencies to close.

Mikulski commented on the mismatch between EEOC being "flat-funded" for the past five years while the U.S. population has expanded and more bias claims have been filed. "This flat-funding had to have taken its toll," she said. Since 2001, Mikulski said, EEOC has reduced full-time staff by 543 employees. She asked Earp what caused the staffing cuts and what EEOC is doing to address the shortage.

Reasons for the staff reductions are "multifaceted," Earp said, noting that EEOC had a number of retirement-eligible employees, "early outs," and voluntary retirements.

"Over time, we've become a smaller agency, as have others," she said. Mikulski asked whether given a charge backlog that is projected to grow, EEOC needs more employees. "We believe we can manage within the president's budget for fiscal 2008," Earp replied.

Pressed by Mikulski to identify the "top three things" EEOC must do to grapple with the backlog, Earp mentioned the commission's new national staffing model, achieving sufficient cost savings to be "flexible" through "managing our rent," attrition, and "rightsizing" field offices, and better training for EEOC employees.

When Mikulski asked if EEOC needs more staff and if Earp is "OMB-embargoed" from saying so, the EEOC chair replied: "Yes, ma'am." Earp elaborated that most of the employees lost over the past few years have been investigators and administrative support staff. Asked by Mikulski how many, Earp replied that EEOC has lost about 500 employees on the enforcement side. Mikulski remarked that given those losses, the "gateway" for submitting EEOC charges may be the "chokepoint."

Mikulski said she will be requesting a GAO audit to assess the financial impacts of EEOC restructuring as well as the effects on the commission's core enforcement functions. Mikulski said she also will seek GAO's recommendations on where EEOC needs to go to meet the challenges of a 21st-century workforce. "We want to make sure the mission stays the same" but addresses contemporary challenges, Mikulski said.

Headquarters Relocation

Mikulski questioned Earp about the plan to move EEOC's Washington headquarters, which includes the Washington field office, from its current location to another site in the District of Columbia. According to published reports, headquarters employees are angry about a proposed move to a Northeast Washington site that employees consider an unsafe location that lacks nearby amenities and may deter visits by potential bias claimants to the field office.

Earp replied that "change is always difficult" but that "in terms of managing our resources, we believe a move is necessary" to achieve rent savings. "The short answer is we need to move" because headquarters does not need as much space and EEOC's current landlord wants the commission out, Earp said.

Earp added that the General Services Administration has acted as EEOC's "agent" in searching for a new site but that because of federal procurement rules, she is "not at liberty to say where the location is." EEOC's lease expires in July 2008 but planning for the move must begin far in advance, Earp said. "We probably should have had 18 months," she remarked.

Mikulski told Earp the "street buzz" is that "you're acting on your own." She asked the EEOC chair if this is "a drive-by buying." Earp replied that she is not acting alone, but rather with GSA to secure a new headquarters location. Mikulski commented that "as long as EEOC feels it has to move and it is acting with GSA, that is all the committee wants to know."

English-Only Case Questioned

Sen. Lamar Alexander (R-Tenn.) asked why EEOC has sued the Salvation Army for allegedly firing two foreign employees for violating the employer's directive to speak only English in the workplace.

Earp replied that when an employer has an English-only rule, the question is whether the policy is a "business necessity." In the Salvation Army case, she added, the fired employees apparently had no contact with customers. "If there appears to be no legitimate reason" for applying an English-only rule, Earp explained, it may be unlawful under Title VII of the 1964 Civil Rights Act.

Alexander, however, said he found the EEOC suit "an astonishing waste of time" as well as contrary to a Senate resolution stating that English is the nation's common language. He wondered whether every employer that posts an English-only rule now needs to worry about getting sued. "If you have a 56,000 case backlog, put your attention on something other than harassing" the Salvation Army, Alexander advised Earp.

"I would just ask the chair in light of the backlog, whether this is a wise use of resources," Alexander said. When Earp suggested she meet in private with Alexander's staff to discuss the issue, the senator readily agreed.

By Kevin McGowan