Attorney Morris Fischer said the controversy surrounding the CFPB's performance rating system is just one example of widespread human resources failures in federal government agencies.
"I think what leaps off the page here when I read about something like this is just the failure of government," Fischer, who runs Morris Fischer Law, a Washington-based labor and employment law firm, said. He responded to a request to share his opinion on how the CFPB handled charges of racial discrimination by retroactively awarding aggrieved employees higher scores and raises.
"I have done a number of cases and I can tell you what typically happens in the federal government is there is absolutely very little paperwork backing up what the performance rating is," he added.
Fischer said many performance evaluations usually contain subjective comments from managers about a federal employee, such as, "employee did not show enough ingenuity," for example.
"I've asked them for the documents that show how many times a manager told the employee that," he said. "Many times, there's very little paperwork backing up what the manager says on the evaluation so I think because the manager or supervisors don't do an aggressive enough job supervising people, the whole thing just becomes a very subjective situation."
Fischer called the CFPB's review process a "breeding ground" for subjectivity and favoritism.
"There should be a review every quarter or monthly," he suggested. "There's no requirement throughout the year to have federal employers document to the employee why they are going to get a 'needs improvement' unless they change."
Alexis Ronickher, senior associate at Katz, Marshall and Banks, a Washington-based law firm specializing in workplace discrimination, said the CFPB should focus on investigating how the racial disparities developed.
"Given the racial disparities revealed in the CFPB's personnel rating, it is only reasonable and proper that the agency took action to remedy that discrimination," she told CU Times. "However, this remedy does not eliminate the need to thoroughly investigate and examine how these racial disparities developed and train managers to avoid racial biases in the future," she added.
In response to the disparities, Fischer suggested the CFPB begin to implement an employee review system that focuses more on each individual's performance with thorough documentation.
Instead, Fischer said the CFPB made the ratings system worse by changing to pass/fail ratings.
"Those people are only going to try as hard at their [jobs] to pass and then you really have no incentive to do better," he said. "How many different failures do you need to see before you say to yourself, 'there's something very wrong with the system of motivating employees and promoting employees' It's a systemic problem. It's not a system based on merit."
Ronickher said a changed CFPB performance review system does not go far enough.
"The adoption of a new pass/fail rating system on its own is not likely to fully address racial biases in the agency's personnel processes. Without training and monitoring, the agency may find itself back in the same position just under a new system," she warned.
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