National Women's Law Center Issues Public Comment on EEOC Proposed Rule

WASHINGTON, Feb. 17 -- National Women's Law Center has issued a public comment on the Equal Employment Opportunity Commission's proposed rule entitled "Official Time in Federal Sector Cases before the Commission". The comment was written on Feb. 10, 2020, and posted on Feb. 11, 2020:

The comment was co-signed by Sarah David Heydemann, senior counsel for education and workplace justice; Maya Raghu, director for workplace equality and senior counsel; and Emily Martin, vice president for education and workplace justice.

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The National Women's Law Center strongly opposes the Equal Employment Opportunity Commission's ("EEOC") notice of proposed rulemaking, Official Time in Federal Sector Cases Before the Commission, RIN Number 3046-AB00 (the "Proposed Rule" or "NPRM"). The Proposed Rule would prevent federal government employees who are union representatives from using official time to serve in a representational capacity in EEO processes.

The National Women's Law Center ("the Center") has worked for over 45 years to advance and protect women's equality and opportunity--with a focus on women's employment, education, income security, health, and reproductive rights--and has long worked to remove barriers to equal treatment of women in the workplace, particularly those barriers that make it more difficult for women to gain access to justice when they have suffered from illegal and abusive treatment at work.

The Proposed Rule is a bald attempt to strip unions representing federal sector workers of their legal rights and would serve not only to weaken these unions, but also to have a chilling effect on federal sector workers who wish to pursue grievance procedures for claims of discrimination. We share Representatives Maloney and Scott's concerns stated in their January 23, 2020 letter to EEOC questioning the NPRM and requesting documents about the negative effect this Proposed Rule may have on "enforcement of antidiscrimination laws and policies affecting federal employees and fairness of the federal workplace."/1

If union representatives are prohibited from using official time for representational activities, they may be forced to use personal time to aid their coworkers in fighting discrimination and harassment on the job--and resultantly may not be able to represent their co-workers at all.

The Proposed Rule Is a Solution in Search of a Problem.

For more than 30 years, by federal regulation, federal employees have had the right to have representation by an individual of their choice during EEO complaint procedures./2

The Proposed Rule threatens to arbitrarily and capriciously carve out federal sector union representatives--and only union representatives--from the class of federal employees who are able to use their official time to represent fellow federal employees in EEO processes. EEOC argues the Proposed Rule is necessary to alleviate confusion engendered by multiple regulatory schemes. But EEOC provides no evidence that the existing regulation is in any way flawed, unworkable, or in need of revision, and EEOC's provided justification is confusing, grasps at straws to make a point, and is a solution in search of a problem.

A history of the way in which EEOC has dealt with this provision, as laid out in the Proposed Rule, illuminates the circular nature of the argument made in favor of the Proposed Rule. EEOC's original 1979 federal sector regulations were silent on any official time rule. In 1987, EEOC amended its federal regulations, in part drawing on a set of 1972 rules governing the U.S. Civil Service Commission (CSC). In that set of 1972 regulations, the CSC had set out language allowing employees to designate a fellow employee as a representative during complaint processes and allowing that representative to use official time to fulfil representational duties./3

That language was largely imported into the EEOC regulations.

The Proposed Rule argues that because the EEOC regulations were based on the CSC, they failed to instead incorporate official time regulations in a statute passed after the CSC, the Federal Service Labor-Management Relations Statute (FSLMRS). The FSLMRS was passed by Congress in 1978 to establish collective bargaining rights for most federal employees. The FSLMRS allows labor organization representatives to use official time for complaint processing both as a right and also pursuant to an agreement between the agency and the union./4

However, as the Proposed Rule continues, no subsequent EEOC regulatory revision, including the 1992 revision, has incorporated the FSLMRS official time rules or addressed the "availability of 'reasonable' official time for union officials or have other revisions addressed how the Commission's official time regulation for EEO proceedings interacts with the FSLMRS."/5

So therefore, the logic goes, the existence of multiple regulatory schemes must be causing confusion, and EEOC must now deny union representatives their right to represent their coworkers using official time for EEOC proceedings. EEOC provides no evidence other than this bare assertion that such confusion has actually occurred.

Striping away the unsubstantiated historical argument, EEOC's justification boils down to just two points: 1) without clarification, agencies and unions will be confused about which aspects of official time they need to bargain, and 2) the FSLMRS should be the agency that determines whether a union official receives official time for representing co-workers.

EEOC offers no evidence that the current regulations regarding official time are inadequate or have left any party in need of further clarification. Further, upending decades of practice in the federal government will surely cause confusion rather than alleviate it. EEOC expressly declined to incorporate the FSLMRS official time rules in 1979, 1987, and 1992. The existing rule should not now be disturbed without evidence that this is necessary.

Moreover, the FSLMRS does not address EEO matters, and the NPRM makes no attempts to explain why, in the absence of other authority over EEO matters, the FSLMRS should be tasked with deciding which EEO-related representational activities should warrant the use of official time.

Finally, the NPRM also makes no effort to calculate the potential costs of the proposed rule-- including potential costs to individuals from a loss of representation by union representatives on their official time.

The Proposed Rule Will Hurt Federal Sector Workers Challenging Discrimination.

The dry phrase "EEO complaint procedures" belies the lived reality of individuals seeking to challenge harassment and discrimination in their federal sector workplaces. At a time when more and more people are speaking out about the discrimination and harassment they face on the job, the federal government should be making it easier for people to come forward, not severely curtailing and impeding their ability to do so.

The National Women's Law Center Fund houses and administers the Time's Up Legal Defense Fund, which includes a network of attorneys and intake infrastructure where, since 2018, we have heard from over 4,000 people looking for an attorney because of the sex harassment they faced at work. Federal government workers are one of the groups of working people who commonly contact us for assistance - the third-most common group we hear from behind only workers in arts and entertainment and healthcare./6

Despite this, we know that harassment and discrimination are also severely underreported. Many workers refrain from coming forward with claims of discrimination because they fear retaliation, or because they lack information about their rights and workplace policies and procedures. In its most recent release of charge data, EEOC revealed that retaliation made up the largest percentage of all charges filed--over half of all charges./7

Union representatives can play a critical role in helping their co-workers understand their rights and pursue redress when violations occur. By undermining the ability of union representatives to play this role as representatives in EEO processes, this proposal could prevent federal sector workers from coming forward with claims about violations of their rights.

Federal workers who are women, people of color, people with disabilities, and/or LGBTQ will be disproportionately harmed by this proposal because these communities are especially vulnerable to workplace discrimination, including harassment, and they may feel less empowered to come forward when subjected to discrimination./8

All workers, but especially workers who may experience multiple forms of discrimination benefit immensely from the experienced representation that union representatives are able to provide to navigate the grievance process.

This Proposed Rule Will Weaken Federal Sector Unions.

This proposed rule will weaken federal sector unions by denying them a legal right to engage in representational activities. Strong unions, including federal sector unions, are crucial to the economic security and equality of working women. Women represented by public sector unions enjoy greater economic stability compared to public sector workers not represented by unions, as the result of higher wages and increased participation in employer-based health insurance plans. This means increased economic security for their families. They also experience greater equality in wages and health benefits compared to their male counterparts, especially when contrasted with public sector workers not represented by unions./9

Stripping federal employee union representatives of the ability to use official time for EEOspecific representational activities will also impact workplace conditions for all workers, not just those who may have experienced discrimination. Grievance and arbitration processes are important to setting shop-floor standards and establishing clear procedures for addressing inequities in the workplace. Preventing union representatives from using official time for these proceedings will impair advocacy for policies and procedures that benefit the workplace as a whole.

Discrimination and harassment thrive in workplaces with stark power disparities, and strong unions able to engage in representational activities on these matters are key countervailing forces to help ensure that supervisors are not able to abuse their power over workers.

The National Women's Law Center opposes this harmful and unnecessary Proposed Rule and strongly urges EEOC not to proceed with it. We ask EEOC to continue to allow union representatives in the federal sector to use official time to address discrimination on the job by representing their fellow federal employees. We strongly oppose any attempt to institute a standard that deprives working people of the ability to challenge discrimination at work.

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Footnotes:

1/ U.S. Representatives Maloney & Scott, Letter to EEOC Chair Janet Dhillon, (Jan. 23, 2020), https://federalnewsnetwork.com/wp-content/uploads/2020/01/012320_maloney_scott_EEOCofficialtime_FNN.pdf.

2/ Since 1987, the EEOC has followed 29 C.F.R Sec.1614.605, which grants federal sector complainants, at any stage of the complaint process, to "have the right to be accompanied, represented, and advised by a representative of complainant's choice."; Official Time in Federal Sector Cases Before the Commission, 84 Fed. Reg. 67683 (proposed Dec. 12, 2019) (to be codified at 29 C.F.R. pt. 1614), https://www.federalregister.gov/documents/2019/12/11/2019-26545/official-time-in-federal-sector-cases-before-thecommission/.

3/ See U.S. Civil Service Commission, Part 713--Equal Opportunity; Filing and Presentation of complaint, Sec.713.214(b), 37 Fed. R 22717, 22719 (Oct. 21, 1972).

4/ FLRA.gov, The Statute: 5 U.S.C Sec. 7131. Official time https://www.flra.gov/resources-training/resources/statuteand-regulations/statute/statute-subchapter-iv-administrative-0.

5/ 84 Fed. Reg. 67683.

6/ Times Up Legal Defense Fund, Stats and Numbers (Nov. 18, 2019), https://nwlc.org/resources/times-up-legaldefense-fund-stats-numbers/; to further illuminate the point, in fiscal year 2015, federal employees filed 6,741 complaints alleging harassment as all of, or part of, alleged discrimination. These complaints made up 43% of all complaints filed by federal employees that year. EEOC, SELECT TASK FORCE ON THE STUDY OF HARASSMENT IN THE WORKPLACE, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (June 2016), available at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.

7/ EEOC Releases Fiscal Year 2019 Enforcement and Litigation Data (Jan. 24, 2020) https://www.eeoc.gov/eeoc/newsroom/release/1-24-20.cfm.

8/ 47 percent of federal government employees are women, 40 percent are people of color, and 5 percent are workers with disabilities. Source: NWLC calculations based on 2019 Current Population Survey (CPS), using IPUMS.

9/ Women's Community Letters to House and Senate: Pass the Public Service Freedom to Negotiate Act, (Jul 24, 2019) https://nwlc.org/resources/womens-community-letters-to-house-and-senate-pass-the-public-service-freedomto-negotiate-act/; Kayla Patrick, Nat'l Women's Law Center (NWLC) Public Sector Unions Promote Economic Security and Equality for Women (Jan 19, 2018), https://nwlc.org/resources/public-sector-unions-promoteeconomic-security-and-equality-for-women/; see also Brief of the National Women's Law Center, The Leadership Conference on Civil and Human Rights and 85 Additional Organizations Committed to Civil Rights and Economic Opportunity as Amici Curiae in Support of Respondents, AFSCME Council 31, et al. (Jan. 19, 2018), https://nwlc.org/press-releases/nwlc-and-the-leadership-conference-submit-amicus-brief-in-supreme-court-caseseeking-to-undermine-public-sector-unions/.

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=EEOC-2019-0004-0001

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