Issue Paper - September 1999 - The Department of Civil Rights: The Problem Resolution Process, Department Functions, and Caseload Trends

THE DEPARTMENT OF CIVIL RIGHTS

The Problem Resolution Process, Department Functions, and Caseload Trends

Eric Limbs, Fiscal Analyst

August 1999

ACKNOWLEDGMENTS

This paper was prepared by Eric Limbs, Fiscal Analyst with the Senate Fiscal Agency. Dan Bojalad of the Department of Civil Rights helped compile the data. Pat Stinton-Harper prepared and formatted the tables for the paper.

TABLE OF CONTENTS EXECUTIVE SUMMARY

DEPARTMENT BACKGROUND

MAJOR OFFICES AND DEPARTMENT PROGRAMS

REENGINEERED PROBLEM RESOLUTION PROCESS

A NEW OUTREACH-BASED APPROACH TO PREVENT DISCRIMINATION

CASELOAD TRENDS

CONCLUSION

EXECUTIVE SUMMARY

Beginning in 1996, the Department of Civil Rights began a reengineering initiative and some departmental reorganization to improve the management of its administrative processes. The Department began the process by analyzing the current procedures in place, assessing the needs of its constituents, and then redesigning its focus according to those needs. The primary focus of the reengineering endeavor centered around the complaint or problem resolution procedures that were in place. As a result of the endeavor, the Department developed four different methods for addressing customer needs.

Furthermore, the Department expanded its service delivery function by reshaping the Contractual and Business Services Division. In years past, this division dealt exclusively with ensuring that organizations choosing to do business with the State of Michigan complied with terms set forth in contracts with the State. Often, such contracts would require the businesses to comply with affirmative action hiring objectives. This function is no longer performed by this division.⁽¹⁾ The division was renamed the Business and Economic Services Team (BEST), and its function was broadened. Now, BEST's primary purpose is to work with both public and private organizations in a nonconfrontational manner to raise public awareness of civil rights laws, while minimizing violations of such laws.

Finally, this paper examines the trends in caseloads in the Department of Civil Rights. For this purpose, caseload data over the past seven years were compiled. This paper also delves into the procedures of how caseloads are managed within the Department.

DEPARTMENT BACKGROUND

The Department of Civil Rights was established by the Executive Organization Act (Public Act 380) of 1965 to implement the policies of the Michigan Civil Rights Commission. The Michigan Civil Rights Commission was created by the Michigan Constitution of 1963. According to Article 5, Section 29, the Commission has a mandate to:

...investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. The legislature shall provide an annual appropriation for the effective operation of the commission.

For 14 years, the Commission was limited to enforcing the Fair Housing Act (Public Act 112 of 1968) and the provisions of the Fair Employment Practices Act (Public 251 of 1955). In 1977, the Elliot-Larsen Civil Rights Act (Public Act 453 of 1976) and the Michigan Handicappers' Civil Rights Act (Public Act 220 of 1976) added age, sex, marital status, height, weight, arrest record, and handicap to the original four protected categories in the Constitution. Jurisdiction of the Commission also was expanded to include employment, housing, education, places of public accommodation and public service, and law enforcement.

In 1981, the Michigan Handicappers' Civil Rights Act⁽²⁾ was amended to require accommodation of handicappers in all jurisdictional areas of the Commission. Employers with four or more employees must comply with that Act. Employers who have one or more employees are subject to the Elliot-Larsen Civil Rights Act.

The Civil Rights Department is guided by the Civil Rights Commission. The Commission consists of eight members, no more than four of whom may be from one political party. Members are appointed by the Governor with the advice and consent of the Senate, serve four-year staggered terms, and elect officers from their membership as they deem desirable. The Commission appoints a director, to whom it delegates certain powers and duties, as the administrative head of the Department.

The Department consists of one executive office and eight district offices scattered throughout the State (Figure 1). The fiscal year (FY) 1998-99 year-to-date appropriation included $12,504,800 in General Fund money, $1,600,000 in Federal funds, and 166.5 full-time equated positions. In FY 1996-97, $1,000,000 of General Fund was appropriated as a work project to facilitate the management of a backlog and the reengineered Problem Resolution Process. As of July 1999, $282,000 of the work project appropriation had been expended.

MAJOR OFFICES AND DEPARTMENT PROGRAMS

Office of Human Resources
The major objective of the Office of Human Resources is to administer the personnel program of the Department. This involves the recruitment and selection of staff, all classification matters, training, labor and employee relations including grievance administration, contract interpretation and implementation, and policy formulation. The program also assists in developing the Department's affirmative action plan and has responsibility for monitoring all personnel actions to ensure compliance with the goals and objectives of the affirmative action plan.

The Department's work force is distributed throughout the southern portion of the Lower Peninsula of the State. The Department has eight offices in six major cities, with the highest concentration of employees located in the Detroit area. The Office of Human Resources is located in Detroit.

The Office of Management Services
The Office of Management Services provides a range of critical support services to the Civil Rights Commission and the Department of Civil Rights. Among those services are financial management, budget development and control, operations analysis, office management, and automated word and data processing. These support functions are intended to provide for the efficient management of the Department's resources and ensure the administrative integrity of the organization. The programs of this office facilitate the day-to-day operations of the Department. The office also provides management information, reports, plans, forecasts, and the development and implementation of automated systems.

Office of Public Information & Media Relations
The Department of Civil Rights believes that an aggressive public information campaign is essential to fulfilling the statutory requirements of preventing and eliminating unlawful discrimination. Further, the Department believes that a coordinated public information campaign, designed to educate internal staff and various Commission and Department constituencies, should result in an effective approach to identifying and resolving issues of mutual concern among parties.

The Office of Public Information performs a number of duties to accomplish its goals. The Office serves as a bridge between the Department of Civil Service and the media. The Office responds to all media and public inquiries. It also initiates media and public contacts through news releases, interviews, news conferences, and various constituency contacts. Further, the Office works with the Commission and the Executive Office to respond to general inquiries through the Governor's Office of Civil Rights and related topics. It also provides information on civil rights activities for the Governor and his staff. Finally, the Office is responsible for producing departmental publications such as the Michigan Civil Rights Commission Annual Report, publications used to educate the public on new programs and to promote ongoing programs, and ongoing internal and external newsletters.

The Enforcement Bureau
The Enforcement Bureau processes and investigates complaints of unlawful discrimination. Investigating and resolving complaints of alleged unlawful discrimination are carried out in three regional centers--Detroit, Lansing, and Grand Rapids, and in three satellite offices--Flint, Kalamazoo, and Marquette. The regional centers and satellite offices are staffed by regional managers, at least one case supervisor, investigators, and administrative support staff. The Enforcement Bureau also provides technical assistance to employers relative to implementing remedial action programs and reviews employment applications for unlawful employment inquiries.

Funding to investigate cases comes, in part, from grants provided by the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Housing and Urban Development. These Federal departments provide partial funding to the Department of Civil Rights at a rate of $500 per case. Federal funding is provided to the Department conditional upon compliance with maintenance of effort clauses in Federal contracts. Since 1991, increases in Federal funds relative to cases filed, have slowed. If no Federal funds existed, the Department would still be required by State constitutional and statutory authority to process the same complaints for which it currently receives Federal funds.

Office of Legal Affairs
The Office of Legal Affairs provides legal analysis and interpretation for investigation and resolution of civil rights complaints. The office also administers conciliation conferences in order to attain an equitable settlement satisfactory to all parties on a timely basis. Where appropriate, the office uses the services of private attorneys to assist claimants in the administrative hearing process. The office also uses law students from local law schools to assist with research and special projects.

Other Programs
The Department of Civil Rights also houses the Commission on Spanish Speaking Affairs, the Michigan Women's Commission, and the Commission on Indian Affairs. These commissions are charged with identifying the needs and interests, and where necessary, recommending solutions to problems affecting their constituencies. Unique to the Commission on Indian Affairs is the provision of assistance and guidance to protect the treaty-derived rights of Native Americans.

REENGINEERED PROBLEM RESOLUTION PROCESS

The Department's reorganization has resulted in a variety of changes in how it handles customer requests. Until the Department reengineered its Problem Resolution Process, the Department relied exclusively on a single method to resolve all complaints. Now there are four different options for how the Department handles cases. The fashion in which a request is handled depends upon the nature of the complaint or issue raised by the customer. Option I is used to address oral or written information requests. Option II is used to deal with intervention, training, or educational speaker requests. Option III is the formal complaint resolution method (formerly the primary method relied on to address problems). Option IV is the Referral Method. In this instance, the Department must determine to whom and how the issue may be referred. In some instances, the issue may be referred outside the Department of Civil Rights. A broad description of each of the options follows.

Option I: Oral or Written Information Request (Figure 2)

Under Option I, the Department strives to provide or send information as requested within one day of the request made by the customer. If the Department is unable to provide requested written information on the same day, it will send a letter stating the expected date that the information will be received by the customer. This letter will be mailed within one business day. The Department also must adhere to the legal requirements of the Freedom of Information Act. The process under Option I is outlined below.

The customer places a request with the Department for brochures, reports, or other information, or makes a Freedom of Information request that may aid the individual in addressing his or her concerns.

The Department reviews and completes the request by giving the customer the appropriate information or brochures.

In addition to receiving written information, the customer may wish to consult with a resolution team member.

The Department will use an automated system to view team schedules. The automated system will assign the next available resolution team member. The resolution team member will address the issues of concern to the customer during consultation. The team member may consult other service representatives for assistance in addressing the matter.

Upon reviewing the request, the Department may use the automated system to determine whether the customer request requires special consideration by a specific area of expertise within the Department. The Department maintains personnel in specified areas of legal affairs, enforcement, community services, and public information. Individuals in these areas may fill customer requests.

Option II: Intervention, Training, or Educational Speaker Request (Figure 3)Under Option II, the Department strives to provide or will send the requested information within one business day. If, however, a speaker is requested or trainer needed, the Department will identify the trainer within one business day and send a letter stating who that trainer will be.

The customer may request that a speaker intervene, train, or make an educational presentation before an organization represented by the customer.

If the customer requests that a speaker make a presentation, the Department will use an automated system to view team schedules. The automated system will assign the next available resolution team member to make the presentation. The Department's resolution team member may consult with other service representatives for assistance. Training and speaking presentations may be based on standardized materials, the speaker also may consult other service representatives for assistance.

Option III: Complaint Resolution Option (Figure 4)
Procedures for the investigation and resolution of a complaint are broadly outlined and are authorized by Public Acts 220 and 453 of 1976. According to these Acts, any person may file a complaint if the alleged act of discrimination occurred within the past 180 days. Any of the district offices of the Department of Civil Rights may receive a complaint. The Department investigates alleged violations of civil rights protected by State statute or the State Constitution. When a complaint is filed, the following resolution procedures are implemented under this third option.

A sworn complaint is taken from the claimant and is placed on the Department's docket. A copy of this complaint is sent to the party against whom the complaint is made (the respondent).
The complaint is assigned to a field representative for investigation. The Department, by instituting this investigation, does not make any judgment on the merits of the complaint, since at that time it does not have any statement from the respondent as to his or her version of the matter.
The respondent and claimant may be invited to an investigative/resolution conference. This meeting provides an opportunity to explore the possibility of an early settlement. If the complaint is unresolved, the conference provides a forum to clarify issues and receive evidence from the parties regarding the issues in the complaint. If the matter is still not resolved at this conference, there may be additional investigation, including the examination of witnesses and documents that were not available prior to or during the conference.
At this point, a staff determination is made, on the basis of the investigation, as to whether there is sufficient evidence to credit the claimant's allegations. If there is not sufficient evidence, the complaint is dismissed. Following a dismissal, a claimant may petition for reconsideration of the decision to dismiss and may be granted a hearing to offer proof why the decision should be changed.
If sufficient grounds have been found, after investigation, to credit the claimant's allegations, the respondent is invited to a conciliation conference, where an attempt is made in private discussions to address the matter. Discussions that take place privately in conciliation may not be discussed publicly by the Civil Rights Commission or the Department's staff, according to law.
If conciliation efforts are successful, the case is closed, and the claimant and respondent are so notified. If such efforts are not successful, the Department may issue a formal charge, requiring an answer from the respondent, and set a date for a formal public hearing.
The hearing is conducted by one or more Civil Rights Commissioners or a referee, and a transcript is made of the proceedings. All witnesses testify under oath, the rules of evidence apply, and all parties have the right to examine and cross-examine the witnesses. The burden of proof is on the Department and the claimant.
Following the hearing and the referee's report, the Commission issues an order either dismissing the complaint or directing the respondent to take remedial action.
A claimant or respondent who does not agree with any final order of the Commission may appeal to the circuit court for review of the case. The Commission may ask the circuit court to enforce an order.

Option IV: Referral Option (Figure 5)
A person referred by the Department to an outside organization for assistance (e.g., a local NAACP, Urban League, etc.) will receive a written statement informing him or her of the referral. The referral will be offered within one business day.

The Department will immediately determine the appropriate referral for the customer's request.

The Department will provide the customer with a written referral to the appropriate outside organization.

A NEW OUTREACH-BASED APPROACH TO PREVENT DISCRIMINATION

In July 1996, the Contractual and Business Services Division was reformed and became the Business and Economic Services Team (BEST). The Contractual and Business Services Division only used to direct its attention to monitoring contractual compliance of those public and private organizations doing business with the State, as well as review affirmative action plans for these organizations. Often, businesses were able to enter into business contracts with the State only under the condition that they adhere to certain affirmative action guidelines. Pursuant to Executive Order 1996-13, this division no longer reviews affirmative action plans. The reformed division now aims to provide a broader variety of services to prevent and eliminate discrimination in business. BEST works with employers, entrepreneurs, and those seeking to do business with the State, in order to enable businesses to keep pace with civil rights and equal employment opportunity legal standards. There are four major areas in which this team focuses on ways to help eliminate discrimination in business: litigation prevention through education and outreach; regulatory reduction; serving as a liaison with the business community; and standing for strong and fair enforcement.

Litigation Prevention Through Education and Outreach
In order to prevent litigation due to civil rights violations, BEST works with the business community, and public and private organizations to facilitate diversity in job training and work force development programs. BEST designs equal employment opportunity strategies for business and industry, which include training on topics such as the Americans with Disabilities Act and sexual harassment. Furthermore, the team proposes industry trade agreements to assure that equal opportunity legal provisions are satisfied while skilled work force demand is met. Finally, BEST provides an awareness and exposure program for students regarding employment in the construction industry.

Regulatory Reduction
BEST works with companies to reduce paperwork and find ways to enhance values fundamental to achieving organizational and economic success. BEST will also focus efforts on the collaborative delivery of services at the State and local levels in order to promote efficiency and minimize duplication of effort. BEST services include counseling and advisory assistance related to equal employment opportunity initiatives, general business services on employment law, and guidance on procurement opportunities and feasibility studies.

Business Liaison
To help employers confront problems in their efforts to recruiting, hiring, and maintaining a diverse workforce, BEST is attempting to broaden existing networks and trying to formulate new partnerships with employer associations, trade unions, and educational institutions to achieve increased awareness of civil rights laws. Among the numerous organizations with which BEST works are the Urban League, the Michigan Business and Professional Association, the Jewish Community Council, and the International Institute.

Strong and Fair Enforcement
BEST works to eliminate public misunderstanding of civil rights violations and evaluates progress toward equal opportunity. BEST enforces corrective action when companies exhibit extensive civil rights violations. Litigating an outcome may be necessary where voluntary efforts to achieve compliance with civil rights laws fail. Litigation can provide remedies to victims of employment discrimination, as well as deter future violations.

CASELOAD TRENDS

Since 1991, case trends have fluctuated. Figures 6 and 7 (showing the number of cases filed and active cases, respectively) indicate steady increases through FY 1994-95. From FY 1994-95 through FY 1997-98, these tables indicate steady decreases. The Department experienced a backlog in its caseload because the Department was unable to decrease the number of active cases at a rate faster than the rate at which cases were filed. Reengineering the Problem Resolution Process appears to have brought about the trend in reducing active cases and the new cases filed.

Figure 8 shows the number of cases filed by gender. Figure 9 categorizes cases by the nature of the complaint. Typically, employment discrimination accounts for 90% of all complaints.

CONCLUSION
A factor that aided the Department in managing its caseload was the change in the way it addressed complaints. Prior to the revised Problem Resolution Process, every constituent request was placed in the "Cases Filed" category. No matter the nature of the request or complaint, the Department had no systematic or organized way of dealing with each problem and treated all problems as "Cases Filed". Over time, this lack of a systematic process led to a backlog in cases. The introduction of the new Problem Resolution Process (which includes the four different methods of addressing problems) enabled the Department to tailor its approach to addressing the concerns of its customers. Now, depending on the nature of the problem, the Department may address the concerns of the constituent without necessarily considering each problem a "filed" case. For example, a customer may contact the Department with a concern that could be resolved through an informational speaker, rather than through the hearing process. Due to the Department's new means of classifying and addressing problems, the Department has seen a reduction in both "Active Cases" and "Cases Filed". Under this new system, the Department's response can better reflect the nature of the constituent problems it addresses. While both Cases Filed and Active Cases were reduced, the number of active cases was reduced at a far greater rate than that of the number of cases filed. The greatest number of closed cases during the 1990s occurred in 1998. This number increased from approximately 5,500 in 1997 to 6,500 in 1998.

The initiative to improve the Department of Civil Right's administrative functions and reengineer its problem resolution procedures began in 1996. The Legislature appropriated $1,000,000 to be used for these endeavors. Approximately one-third of these work project funds have been used. In the short-term, procedures have been streamlined, and caseload has been reduced. However, the long-term success of this initiative remains to be seen.

1. Review of affirmative action plans of public and private organizations is now performed by the Michigan Equal Opportunity Workforce Planning Council pursuant to Executive Order 1996-13. The Council members are the Directors of the Department of Civil Rights and Civil Service, the State Employer, and the Lt. Governor. This Council is housed within the Executive Office.

2. Public Act 73 of 1998 amended the Michigan Handicappers' Civil Rights Act to change the wording from "Michigan Handicappers' Civil Rights Act" to "Persons with Disabilities Civil Rights Act".