The Uses and Abuses of Informal Procedures in Federal Civil Rights Enforcement
114 Pages Posted: 27 Oct 2013
Date Written: 1987
Abstract
This Article will analyze the various procedures used by the Office for Civil Rights of the United States Department of Education (OCR) and the Equal Employment Opportunity Commission (EEOC) to resolve discrimination complaints. By analyzing those procedures in terms of a number of articulated values, this Article will suggest approaches and procedures suitable to achieving the purposes behind these nondiscrimination schemes. Part I reviews historical and contemporary discrimination and the measures Congress has taken to address such discrimination over the last quarter of a century. Part I also surveys the ADR movement from the 1976 Pound Conference to the present day, discussing the government's role in promoting ADR and the Reagan Administration's views on the use of informal processes. Part II discusses the agency as an ADR device and describes and compares the procedures used by OCR and EEOC. Part III organizes for exploration the formal and informal procedures available to OCR and EEOC, ranging from litigation and formal administrative adjudication to mediation, negotiation during investigation, and conciliation after agency findings. Part IV identifies a set of desired values and goals for civil rights enforcement, including justice and statutory intent; procedural fairness; expedience, efficiency and cost-effectiveness; and finality and enforceability of the result. Part V suggests the kinds of cases that are likely to come before the agencies. Part VI explores whether, and the extent to which, the various formal and informal procedures can achieve the identified values. The Conclusion discusses recommendations for change and suggests steps to be taken by each of the three branches of government.
Keywords: civil rights, civil rights enforcement, discrimination, dispute resolution, alternative dispute resolution, agencies, OCR Complaint, EEOC, ADR devices, OCR, Office for Civil rights, Equal Employment Opportunity Commission, EEOC, Silver, Marjorie Silver, Marjorie A. Silver
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