"center"> Photo by Aadesh Thapa on Unsplash
Many civil servants prefer a hearing before a U.S. Equal Employment Opportunity Commission's (EEOC) administrative judge on their discrimination claims over a final agency decision from the employer named in their discrimination complaint. Perhaps, because the EEOC promotes itself as a fair adjudicator, federal employees tend to lean that way. Still, before formally requesting a hearing, complainants pensively ask: Is the agency created to enforce Title VII and end unlawful employment discrimination a friend or foe to civil servants?
Through its revised regulations, the EEOC answered. Through the regulations, the EEOC sent a grim message to distressed men and women who seek the enforcement agency's help when they suffer workplace discrimination. On June 11, 2020, the EEOC changed the federal sector complaint-processing regulations at 29 CFR 1614.409. Sadly, the guidance dubbed Effect of Civil Action shows up for aggrieved federal employees like a Trojan horse. It reads: "A Commission decision on an appeal issued after a complainant files suit in district court will not be enforceable by the Commission."
The EEOC officials shoddily finalized its guidance months before Congress passed the Elijah Cummings Federal Employee Antidiscrimination Act. Strikingly, when the EEOC modified section 29 CFR 1614.409 to decree: "Commission decision on an appeal... will not be enforceable," it undermined the bedrock of the Cummings law. The law emphasizes "accountability" and the need to "enforce" discipline when federal employees intentionally commit discriminatory acts.
With the intent of Congress well publicized, in 2020 the EEOC crafted regulations to limit its enforcement authority. By doing so, the Commission signaled it was OK to dig a deeper gorge in the federal-complaint process, watch accountability collapse, and bury civil servants under the bowels of litigation.
Neville vs. Lipnic, Chair of the EEOC (2018) exposes EEOC's foot-dragging when duty calls for the "so-called enforcement agency" to enforce civil rights laws in federal agencies. In Neville, a female National Guard Technician went to court. She filed a mandamus to get the EEOC to execute a Petition for Enforcement. During the administrative process, the EEOC had found the National Guard Bureau (NGB) guilty of egregious gender discrimination against Neville; but declined to compel the discriminating agency to comply with its order. [ Master Sergeant Pedro Soriano was named in Court records. ]
Objectionably, rather than make the NGB do the right thing, the EEOC argued against Neville, the victim of workplace gender discrimination. According to court records, the EEOC claimed it did "not have a clear duty to act" and "any obligation the EEOC had to enforce its decision ceased when Neville filed the instant suit " (Neville vs. Lipnic, 2018, p. 9).
The EEOC's latest pronouncement puts civil servants battling inequality in a disturbing, gut-wrenching, and Catch-22 dilemma. The question builds . What course of action should one take when the EEOC refuses to enforce its own order for relief and accountability?
In 2018, the EEOC won the case against Neville with the "no clear duty to act" premise before a Western District of Texas Court Judge. In 2020, the EEOC cagily updated the federal complaint-processing guidance to match the claim it argued in Neville.
In Neville, a mournful and illuminating twist emerged. Although an EEOC Administrative Judge delivered Neville, a National Guard Technician, a "mixed" result on her claims, Neville did not go to court on the disability claim she had lost. She merely went to court to get the EEOC to enforce the gender discrimination claim she won.
