close

Вход

Забыли?

вход по аккаунту

?

As discrimination complaints mount agencies' ADR needs soar.

код для вставкиСкачать
A 1t errla ives
TO THE HIGH COSTS OF LITIGATION
CPR INSTITUTE FOR DISPUTE RESOLUTION
GOVERNMENT ADR............
Page 169
Needless employment litigation
plagues federal agencies even more
than private companies, according to
Anthony P. Lofaro, a senior evaluator
at the U.S. General Accounting
Office. He explains why Washington,
D.C., needs to use more ADR
PRACTICE NOTES
..............Page 169
Afternatives publisher CPR Institute
for Dispute Resolution conducted an
advanced mediation forum and clinic
last June in addition to the regular
program at its annual Spring Meeting. The forum is summarized this
month, covering both mediation
policy and techniques.
...,...
CPR NEWS..,..
Page 170
Items about next month’s annual
Winter Meeting, which will kick off
CPR’s20th anniversary celebrations;
ADR 2000, CPR’s online seminar
series; and a new panel of distinguished neutrals focusing on sports
law disputes.
.......
INTERNATIONAL LAW
Page 171
A panel of six attorneys and policy
experts located in Washington, D.C.,
and Moscow offer suggestions for a
new legal framework that will support
mediation in Russia and Ukraine.
...........
ADR BRIEFS
Page 175
The U.S.Environmental Protecrion
Agency announces plans for developing a huge roster of neutrals, and
more in this month‘s Briefs.
FEDERAL ADR..........
Page 177
For companies conducting business
with the government, Alternatives has
’
updated its list of federal agency ADR
contacts. The new 1999 Guide to
Federal ADR Specialists also includes
E-mail addresses.
DEPARTMENTS
CPR News ..........................
Page 170
ADR Briefs ......................... Page 175
Cartoon by Chase ..............Page 175
Index Info ..............Pages 174 8 176
-
WWW.CPRADR.ORG
VOL. 16, NO. 11 DECEMBER 1998
As Discrimination Complaints
Mount, Agencies’ ADR Needs Soar
BY ANTHONY P. LOFARO
During the first half of this decade, both private sector employers and federal agencies
experienced increases in the
number ofdiscrimination cornpldinrs filed by crnployecs.
More recenrlv, however, rhst
partern has changed.
While rhe number of coniplaints filed by privare sccror
workers has declined since 1994,
according ro the U.S. Equal Employment Opportuniry Cornmission, the number of complaints federal
workers have filed has continued to climb.
T h e increase in the number of federal sector complaints has clogged the complaint
processing pipeline, and it is now taking
longer than ever to process complaints. Because many complaints are found to be witho u t merit or deal with
workplace conflicts that, however valid, do not involve unlawful discrimination, the
need for an alternative venue
is obvious.
This article will discuss
three reasons for federal agencies to adopt alternative dispute
resolution processes to deal
with discrimination allegations and some
steps that have been taken to encourage agencies to use ADR.
(continued on page 182)
Mediation Issues Grow More
Complex -as Rewards Increase
The CPR Institute for Dispute Resolution
presented a special forum and clinic at its
annual Spring Meeting, airing advanced mediation policy and practice issues.
Georgetown
University
v
School of Law Prof. Carrie
Menkel-Meadow opened the forum by noting that when CPR
was founded in 1979, “mediation was probably the least
talked about” alternative dispute
resolution technique. Adding
that big increases in mediation
use has produced “a whole host ‘
of questions” and “a whole range of practice
issues,” Menkel-Meadow led a seven-member panel through discussionson complex and
occasionally controversial mediation challenges.
In her introduction, Menkel-Meadow,
who chairs the CPR-Georgetown Commission on Ethics and Standards of Practice in
ADR, discussed mediation’s evolution. She
noted that many of the about
160 meeting attendees were
litigators used to making decisions about A D R use. But
Menkel-Meadow told the forum that “a large number of us
are also providers now, either
individually or in the choice of
others to provide those services,
’
for ourselves or our clients.”
The nearly two-hour session at the June
meeting in Sea Island, Ga., focused first on
A D R policy questions, mostly o n how
mediation’s development is affecting the le(continued on page 184)
As Discrimination Complaints Mount,
Federal Agencies' Employment ADR Needs Soar
(continued from front page)
REASON #1:
A COMPLEX A N D
LENGTHY PROCESS
One reason for federal agencies to develop
ADR capability is that the administrative redress process for federal workers who believe
they have suffered discrimination is complex
and lengthy. The multistep process begins
with the employee contacting an agency
equal employment opportunity counselor
who attempts to resolve the matter informally. If the matter can't be resolved to the
employee's satisfaction, he or she can file a
formal complaint. The agency either will
dismiss the complaint or, if it is accepted,
investigate it. Once the investigation is completed, the complainant can request a hearing before an Equal Employment
Opportunity Commission administrative
judge before the agency makes its final decision on the complaint's merits.
But the process does not end here.
Anthony P. Lofaro i s a senior evaluator with the
US. General Accounting Office's Federal Management and Workforce Issues group i n Washington,
D.C. He is responsible for conducting studies of
the federal employee redress processes and workplace ADR. Last year i n Alternotives, he wrote about
a GAO ADR study he led. "GAO Report Ventures
Inside ADR Operations," 15 Alternotives 143 (November 1997).
A complainant dissatisfied with his or her
agency's decision to dismiss a complaint or
with the agency's final decision on the merits
may appeal to EEOC, which conducts a de
novo review. If the employee is dissatisfied
with the appeal's outcome, there is a final step
in the administrative process-a request that
EEOC reconsider its decision from the appeal. Once the administrative process has
been exhausted, a still-dissatisfied complainant can start anew by filing a suit in federal
district court.
This process can-and does-take a long
time. Today, for cases that involve a hearing
and an EEOC appeal, parties can expect the
administrativeprocess to take about 1,000 days
from start to finish. EEOC itself accounts for
a large share of the processing time. In fiscal
year 1997, the EEOC took an average of 277
days to process hearing requests and 375 days
to process appeals.To make matters worse, the
EEOC projects that the time it takes to process hearings and appeals will continue to increase. By fiscal year 2002, the EEOC projects
that without additional resources, it will take
990 days to process a hearing request and 1,680
days to process an appeal.
The process is not only complex and
lengthy, but costly as well. Because of its complexity, however, no one has been able to pinpoint exactly how much it costs to process a
Downsizing
Availability of
compensatory damages
under the 1991
Civil Rights Act
Increased awareness
of protections against
disability-based
discrimination
New regulations
improving access to
complaint process
Soutce: GAO
complaint. But one ofthe most significant costs
of this adversarial process is one that can't be
readily calculated-the cost of the disruption
to the workplace that conflict brings.
(continued on following page)
_ _ 26,410
27,587
24,592
22,327
____
20,000
v)
v)
4r
a
k
15,000
=
____
4r
m
P
3
P
10.000
____
-
____
FY97
---------
5,000
Source: GAO analysis of EEOC data
I
L
‘
Federal Agencies’
ADR Needs Soar
(continued from previous page)
REASON #2:
I N CREASING N U M BERS
OF COMPLAINTS
Another reason for agencies to turn to ADR is
the steady rise in the number of federal sector
discrimination complaints. From fiscal year
1991 to fiscal year 1997, the number of complaints federal employees filed with their agencies increased by about 56% to 27,587, from
17,696. At the same time, the EEOC saw requests for hearings increase by 94% to 11,198,
from 5,773, while the number ofappeals filed
rose by about 61%, to 8,453 from 5,266.
What explains these increases?The General Accounting Office reported that they
can be attributed to four factors. See “Equal
Employment Opportunity: Rising Trends in
EEO Complaint Caseloads in the Federal
Sector” 42-43 (GAO/GAD-98-157 BR July
24, 1998). One factor was downsizing,
which resulted in appeals of job losses and
reassignments.A second factor was the Civil
Rights Act of 1991, which, by allowing for
compensatory damages, motivated some
employees to file complaints. A third factor
was the publicity surrounding the Americans With Disabilities Act, which made federal employees aware of their protection
under an earlier law. Finally, regulations governing the complaint process for federal
employees implemented in 1992 improved
access to the process.
Agencies and, in particular, the EEOC
have not been able to keep up with the influx of complaints. As a result, inventories
of unprocessed cases have piled up. Between
fiscal years 1991 and 1997, federal agencies’ complaint inventories rose by 102%
to 34,267, from 16,964. During the same
period, EEOC’s hearings inventory increased by 218% to 10,016, from 3,147,
while the number of cases pending appeal
rose by 581 percent to 9,980, from 1,466.
The surge in the backlog explains why it is
taking longer for cases to be processed.
REASON #3:
MANY CASES DO NOT
INVOLVE D I S C R I M I N A T I O N
A third reason to turn to ADR is that many
of the cases clogging the complaint process
do not involve discrimination issues. In a
1996 report, the EEOC said that a “sizable”
number of disputes in the complaint pro-
cess may not involve discrimination issues
at all. ADR Study, U.S. Equal Employment
Opportunity Commission, Office of Federal Operations, Oct. 1996, p. 10. Underscoring this point is that actual findings of
discrimination are relatively rare. In fiscal
year 1997, for example, EEOC administrative judges found discrimination in less
than 10% of the cases they decided.
This is not to say that discrimination
complaints aren’t an indication of real workplace conflicts. In its 1996 report, the
EEOC said that many cases reflect basic
workplace communications problems.
These are the types of cases, the EEOC said,
that would be especially conducive to resolution through an interest-based approach.
Certainly, the highly adversarial, positionbased discrimination complaint process
may only serve to exacerbate workplace
conflicts.
M O V I N G TOWARD ADR
Faced with a process that drains energy and
resources, an increasing number of complaints, and the realization that many of
these complaints, while not involving discrimination issues, are indicators of real
workplace conflicts, a number of federal
agencies have turned to ADR. The GAO
reported that in 1996, 49% of agencies
responding to an EEOC survey indicated
that they made ADR available for discrimination complaints. “Alternative Dispute
Resolution: Employers’ Experiences With
ADR in the Workplace” 14 (GAO/GAD97-157, Aug. 12, 1997). The GAO said,
however, that even with agencies that reported ADR capability, the availability or
use of ADR was not widespread.
In the 1990s, there have been a variety of
legislative and regulatory provisions encouraging ADR use. More recent developments
include President Clinton’s May 1998 designation of an interagency ADR workgroup,
led by Attorney General Janet Reno, to facilitate and encourage federal agency ADR
use. See, e.g., Deborah S. Laufer, “Top Oficials Meet To Boost Federal ADR,” 16 Alternatives 143 (October 1998). The work
group has established four subgroups, one
of which deals with workplace issues.
In addition, the EEOC has proposed
regulations that would require agencies to
make ADR available in the federal employees’ discrimination complaint process. Time
will tell the extent to which agencies further develop ADR capability.
i
Visit CPR‘s web site
when you want
...
To analyze a business dispute
for its ADR potential
(CLICK ON
TOOS)
-
To select a highly qualified CPR
Panelist (CLICK ON
To get a quick response to an
ADR question (CLICK ON
To download a sample clause or
mediation procedure that you
can adapt to your needs
(CLICK ON
TOQLU
To find out if parties to a dispute
are among the 4,000firms
who‘ve committed to explore
ADR (CLICK ADR PLE-)
To stay up to date in ADR
(CLICK ON YHAT’S NEYY,
PUBLICATIONS AND JNDUSTRY 4
PRACnCE)
Документ
Категория
Без категории
Просмотров
0
Размер файла
446 Кб
Теги
mount, soare, discrimination, adr, need, agencies, complaints
1/--страниц
Пожаловаться на содержимое документа