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Do You Know How to EXCEL at EEO?

Equal employment opportunity (EEO) has always been a cornerstone of the federal civil service. The government prides itself on striving to be a model employer and setting an example for the private sector.

Many government agencies have a positive record of achievement on EEO issues and fostering work environments which are diverse, fair, inclusive and free of discrimination or harassment.

Nevertheless, much work remains to be done due to the prevalence of subtle and overt discrimination based on race, color, national origin, religion, age, disability, equal pay and sex (including pregnancy, sexual harassment and sexual orientation).

Another important issue for which employers should be increasingly mindful is retaliation against workers for exercising their statutory right to speak out against alleged discrimination and/or participate in an EEO investigation. Retaliation or reprisal is unlawful.

  • That’s why it’s incumbent upon all employers and employees to remain vigilant about EEO compliance, particularly as America observes the 50th anniversary of the landmark Civil Rights Act of 1964 (CRA).

Title VII of the CRA prohibits workplace discrimination in the public and private sectors. Title VII also created the U.S. Equal Employment Opportunity Commission (EEOC), which opened for business in July 1965.

EEO Training & Best Practices

As noted, while much progress has been made over the past half-century to combat employment discrimination, there remains much work to be done (as evidenced by EEOC data and anecdotal information, among other factors).

  • Thus it’s important for all employers to receive the proper training and education needed to continually foster EEO best practices and maintain discrimination-free work environments.

With this in mind, GovLoop members and others should take note of the EEOC’s 17th annual EXCEL training event for the public and private sectors, which takes place August 12-14 in San Diego, CA. EXCEL stands for Examining Conflicts In Employment Laws.

Most savvy employers should know by now that maintaining a discrimination-free workplace simply makes good business sense. This is because a healthy work environment increases bottom-line productivity, enhances employee engagement and morale, as well as having other beneficial effects in the workplace.

On the flipside, there’s usually a heavy price to pay for allowing discrimination to poison the workplace or corporate culture. The financial cost for employers is not only due to investigations and/or litigation, but also includes lost productivity, low morale and job dissatisfaction by employees.

In essence, one cannot put a price on fostering EEO best practices to create model workplaces for all employees. The EEOC’s EXCEL training event is a viable means to that end – and one that should not be missed.

DBG

* NOTE: All views and opinions are those of the author only.

David Grinberg is part of the GovLoop Featured Blogger program, where we feature blog posts by government voices from all across the country (and world!). To see more Featured Blogger posts, click here.

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Leland L. "Ted" Cogdell, Jr.

Thanks for posting another interesting topic. Your posts always get me thinking. I try to make time for the most pressing issues, as I see and understand them. Here are my thoughts on this one.

I know enough now to know that I am rather horrified by what I see, and I want to help others. That’s why I am a Founding Member of Federal Employees with Disabilities (FEDs), a mentor to a federal employee with a disability, and am an advocate at my employing agency for employees with disabilities. Please see fedsfirst.com.

I would suggest avoiding the use of “always” in your lead. This Nation has come to equal-employment opportunity and its civil-rights legislation rather slowly and painfully, when you view the scope of our 238-year history. The Nation has experienced an awful history of murder and malicious wounding (physical and psychological) on the path to civil rights. I think real pride will come when all federal agencies have the seal of approval from the EEOC as a “model employer” in the federal sector.

The EEOC didn’t open its doors until our 189th year of freedom. In your second sentence, “striving” strikes me as both painfully accurate and upsetting at the same time. I see both honest and weak striving going on in the federal sector. The EEOC’s case load reflects that, and so much more, especially the rising rate of retaliation cases, which are particularly disturbing to me. It is so weak that 41 years after the Rehab. Act of 1973, as amended, was signed into law by President Nixon, the EEOC just finished last week asking for public comments on certain specific questions relating to how it can make the model-employer mandate more clear for federal agencies in Section 501 so that they can follow it and become model employers one day.

Now, before the lawyers get on here and start squawking about how the police don’t really enforce federal civil-rights laws. Right, they usually don’t. They will say, “Take ‘em to court, and tell it to the judge,” if they even bother to respond at all. Well, it seems to me that they do when the act is so egregious and outrageous on its face that a riot might ensue. Riots are indeed local issues. A locally sworn officer would likely be interested in preventing a riot. Every incident, police officer, crowd, and informant (the person who calls 9-1-1) is different.

But, Eric Garner is now dead for allegedly avoiding payment of the required cigarette taxes on packs of cigarettes that he sold in the City of New York. Isn’t this a civil white-collar crime in the state of New York? If someone does not pay quarterly taxes on a small business, no police officer comes to the front door of the business and cuts off the owner’s ability to breathe. The owner would pay the fine and any late fees, the taxes owed, and life would go one. I’m not understanding this one at all. Maybe I have missed some facts, but this incident is sad and upsetting on a number of levels.

To put things into a rather clear and understandable context, a what-if scenario seems appropriate here to bring absolute focus to the advancement mandate. Even after 41 years of having the advancement mandate codified in federal law, in Management Directive 715, and elsewhere, advancement seems to be the forgotten part of the recruit-hire-retain-advance mandate. Can you imagine, for a moment, that an African-American woman goes into a restaurant in the autumn of 2005, 41 years after the signing of The Civil Rights Act of 1964, and she is told that they do not serve “colored” folks in this place of public accommodation? Can you visualize the outrage in your mind? Stop reading for just a moment, close your eyes, and think about what that would look like. In this age of pocket technology, the woman would be able to quickly call 9-1-1 with her smartphone to summons the police to come to the scene for assistance with this stuck-in-1963 restaurant. Being that it is common practice for local reporters to monitor the police radio traffic on personal scanners, a live feed to millions of television and Internet viewers could just be minutes away, too.

But, the federal employee, who just happens to have a targeted disability and is being blocked from advancement 41 years after the Rehab. Act was passed, which included the advancement mandate, does not have that just-call-the-police luxury under this civil rights legislation. To whom would she place a call? Nope, the Torfeasorbusters don’t exist (yet). That’s right! She would need to call an attorney, at somewhere between $250 and $500 an hour–and wait years for a hearing and decision, even more if there is an appeal.

David, I’m glad you mentioned the EXCEL conference next month. I would suggest a session on unconscious bias and how it is actionable under Title VII. Those on the bench in the First Circuit seem to understand that it is routine for employees to be affected by some form of conscious animus or less-conscious bias. The Jim Crow era is over. The First Circuit judges seem to further grasp the understanding that modern-day tortfeasors know that they must be slick and sly with their subtle forms of discrimination and retaliation.

The EXCEL conferences seems to be an excellent venue to inform practitioners that increased overt reliance on unconscious bias theory will help promote its further understanding and judicial acceptance. Some good case law around this issue could bring some long-awaited hope to those being hindered in their employment opportunities by a discrimination for which there is (usually) no direct evidence or proof. As always, it is wise to retain competent, experienced, and affordable counsel before stepping into these deep waters. Former Supervisory Administrative Judges seem to do well before the Commission.

To the comment about costs, it seems that your low-performing agencies that tiptoe around and bob and weave to stay off the EEOC’s radar will just continue to “roll the dice” when litigation comes knocking and continue their reactive stance to EEO, instead of the preferred and required proactive stance. They know the odds are on their side. Federal employees prevailing in their cases is in the single-digit percentages. They also know that a three-year pay freeze and being stuck in grade–some for decades–makes it harder for employees to afford competent counsel. It is indeed a long, expensive, exhausting, frustrating, and a time-consuming venture.

As I stated in my public comments, many have no faith in the process and simply take on a behavior that has little financial costs at all–they seek and find other employment. Well, for those who have reasonable accommodations so that they can keep their current jobs, such as full-time telework from home, this is not a viable option. As of right now, reasonable accommodations are not usually automatically portable to other employment. For them, especially, the system must work well.

Finally, Settlement Agreements are rather common in the federal sector, for agencies indeed have an interest to protect their brand image. Harming that can come between what agencies actively seek and highly desire–top talent–to help it meets its vital mission for the American taxpayers. I think they have more to do with avoiding the facts becoming public information that there was illegal misconduct at an agency than they really have to do with an effort to making an employee whole after a finding or findings by the EEOC.

Reply
Mark Hammer

As I see it, there are three eras of EE&D:

Stage 1 – Eliciting enthusiasm, deeper understanding, and buy-in for it.

Stage 2 – Figuring out how to get it done.

Stage 3 – The “post-EE era”

I used to be involved in work that had an EE side to it and attended a number of related events, guests speakers, etc., and always came away frustrated. They were all locked into a Stage 1 mentality, focussing entirely on intentions and generating buy-in. I didn’t need persuading, but appreciated that some people did. They never gave me any insight, however, into how to get it done. Discrimination in hiring and in the workplace was identified as an undesirable thing, but the mechanics of how it comes to be – even within contexts, and among people, of ostensibly good will – was rarely explored.

What I wanted was people who could explain to me how to engineer employment and management systems the same way someone might explain to me the working of an internal combustion engine, such that I could anticipate what the impact of not changing my air filter or sparkplugs would be. I wanted EE to be like an auto-mechanics challenge where someone could bend over and reach in, come up for air, wipe the grease off their hands on a rag, move the light over a bit, point, and say “You see, here’s your problem. Replace that and you’ll be alright”.

The other major historical challenge for EE&D is what I like to call the “epistemological challenge”: How do you know when you’re doing the right thing? To date, this initiative has been stymied by having to address this challenge on two fronts. On the one hand, they have to perpetually avoid defaulting to quotas, and have to persuade the public at large, as well as decision-makers and litigants, that it’s not about quotas. On the other hand those tasked with advancing the case of EE&D, and assuring that everything is on the up and up, don’t have a whole lot else to turn to, when it comes to verifying that a problem exists somewhere, or that progress is being made, other than comparing hiring and promotion rates against workforce-availability numbers. And that only makes it that much harder NOT to default to quotas, and that much harder to persuade the resistant that it’s not about quotas.

Which is what leads me to Stage 3. Imagine that the struggle for EE&D is an issue of the past, like any of a number of other social ills and “detours of ignorance” in history. Imagine we’ve had a prolonged period wherein workforces mirror the fabric of society in all of its many facets, and that promotion/progression rates are not as disparate as they once were. Let’s say, with a bit of optimism, that this era is a dozen years off in the future. What will EE&D directorates/offices do? They won’t be out of work, since we know that humans so easily slip into xenophobia, and we know that every conflict somewhere, coupled with human migration, breeds a new quarter twist in workforce and workplace demographics. We also know that there will always be groups, and subgroups within those groups, being underserved. So, business won’t dry up.

But we will have (hopefully) moved into an era in which we will not automatically default to comparing workforce versus workforce availability numbers. We will hopefully have enough understanding of the mechanics of all of this that our barometer will not be headcounts, but a deeper understanding of processes within organizations, of how recruitment campaigns work, and such. Our awareness of whether there are problems somewhere, whether progress has been made I addressing that problem, and assurances that everything is as copasetic as we believe, will be based on other indicators.

My suggestion is that we start thinking about that now. Prep yourself for Stage 3. Fifteen years from now, how will we determine that “Things are pretty much okay here”, based on what we know about practices. It will not serve us to still be fighting a battle about quotas.

Reply
David B. Grinberg

Mark and Ted,

Just a note to thank you so much for sharing your comprehensive and important insights on this topic. You both raise many excellent points which should be taken under advisement by agency leadership, management and supervisors.

I always like to remind folks that leadership and accountability start at the highest levels of any organization and flow down. Thus whether it’s an agency head or a CEO, leaders need to make it clear that fostering EEO and diversity best practices are an integral aspect of business operations — and should not be ignored or taken for granted.

Again, many thanks for your valuable feedback!

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