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The Department of the Navy's Equal Employment Opportunity Complaint Dispute Resolution Process Pilot Program: A Bold Experiment that Deserves Further Exploration

MILITARY LAW REVIEW

Volume 169 September 2001

THE DEPARTMENT OF THE NAVY'S EQUAL EMPLOYMENT OPPORTUNITY COMPLAINT DISPUTE RESOLUTION PROCESS PILOT PROGRAM:

A BOLD EXPERIMENT THAT DESERVES FURTHER

EXPLORATION

MAJOR MICHAEL B. RICHARDSON1

Time is neutral and does not change things. With courage and initiative, leaders change things.2

I. Introduction

The Department of the Navy (DON) recently completed the first phase of testing on an innovative pilot program (Pilot Program) designed to improve the way equal employment opportunity (EEO) workplace complaints are processed. The Pilot Program was the result of over a year of thorough research by the DON into complaints by employees and managers regarding perceived problems with the current EEO complaint system.3

Designed to offer a voluntary-participation alternative to the traditional EEO complaint procedure, the Pilot Program offers DON employees a significantly revamped procedure that dramatically reduces complaint processing time and encourages cooperative resolution of complaints in an attempt to build and maintain working relationships.4 To achieve these benefits, the Pilot Program requires that participants voluntarily waive their right to "opt-out" of the program, and limits the participants' appeal rights. Testing of the Pilot Program yielded dramatic improvements in processing times for EEO complaints, and was widely regarded by those utilizing the Pilot Program as a success.5

The Pilot Program was not, however, universally applauded, and met significant resistance from the Equal Employment Opportunity Commission (EEOC).6 The first phase of testing ended with the EEOC ordering the DON to suspend the use of the Pilot Program, citing concerns with the legality of a number of the Pilot Program's innovative procedures.7 Among the concerns cited were the requirements to waive the right to optout of the Pilot Program, the manner in which investigations are conducted under the Pilot Program, and the waiver of certain EEOC appeal rights.8 Undeterred, the DON initially attempted to rework the Pilot Program to address the EEOC's concerns9 and formulated a Revised Pilot Program. The Revised Pilot Program allowed participants to opt-out of the Program and return to the traditional EEO complaint-processing procedure at any time, and issued amplifying guidance addressing other concerns of the EEOC.10

Before DON implemented testing of the Revised Pilot Program, Congress initiated legislation that would have allowed a further three-year tes

ing period of the DON's Pilot Program in its original form.11 In its final version, however, the legislation that passed authorized the Secretary of Defense to select "at least three agencies" to institute pilot programs in the equal employment opportunity arena, but did not specifically mandate that the DON's Pilot Program be one of these programs.12 To date, no selections have been made, and the DON Pilot Program is currently on hold awaiting the Secretary of Defense's decision.

This article argues that the time has come to continue testing of this worthwhile Pilot Program in its original form. Background material is provided in Section II explaining the traditional EEO complaint procedure and the ongoing effort to improve this cumbersome process. Next, the article explores DON's Pilot Program and compares it to the traditional EEO complaint procedure; it further examines the conflict between the DON and the EEOC over the Pilot Program's legality. The Navy's reaction to the EEOC's ruling to suspend the program, and the subsequent introduction of legislation mandating the establishment of DOD pilot programs are then detailed. Section III addresses the legal arguments surrounding the Pilot Program, examining first other longstanding legal procedures that allow similar waivers of rights in exchange for legal consideration, and then the countervailing arguments put forth by the EEOC against the Pilot Program. Section III then moves from legal considerations to policy considerations, examining whether such a dramatic change as is involved in the Pilot Program is necessary instead of continuing with the current, less controversial course of gradual improvements. The section lastly addresses the potential effects of the recent legislation requiring the establishment of EEO pilot programs by the Secretary of Defense. The article concludes in Section IV that the nation's leadership has been presented with an ideal opportunity to take the initiative and allow the continued testing of a courageous experiment in the EEO complaint-processing arena. As the article will ful...

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