Has your agency faced this situation? After receiving a formal complaint, an agency fails to conduct its investigation within the timeframes set by the EEOC’s regulations. After 180 days have passed, the complainant requests a hearing with an administrative judge and requests sanctions. Now the question is -- will sanctions be granted? What is the most effective way to defend the agency against sanctions?
While some comments by management regarding the EEO process or current complaints may be made with the intention of being funny, they can violate Title VII’s prohibition against reprisal. Managers should learn that comments about EEO complaints and the EEO process are not just inappropriate, they can lead to a finding of retaliation by the EEOC.
The complainant requested a hearing and the parties have already engaged in discovery. The Administrative Judge has set a hearing date, which is closing in. With only weeks -- or even days -- to go before the hearing, the complainant submits a motion to amend. Is this proper? How should the agency respond?
As attorneys who represent both agencies and employees before the EEOC, MSPB, and other administrative forums, we understand that not all complaints filed by employees have merit and may not pose a litigation risk to agencies. However, many cases do have merit. Also, sanctions issued by an administrative judge or the Office of Federal Operations can quickly turn a case from “no way we can lose,” to “this is going to cost us how much?!?”
Those of us who have been practicing before the EEOC for many years remember when the Commission turned its attention to agencies that failed to complete investigations within the 180-day regulatory timeframe and issued default judgments in the Cox and Royal cases. Key in these decisions was the idea that failing to timely investigate these claims undermined the integrity of the EEO process. In 2018, the Commission again turned its focus towards upholding the integrity of the EEO process by issuing sanctions where agencies improperly interfered with EEO investigations by representing and advising responsible management officials.
Many federal workplaces encourage the use of telework for all employees, regardless of whether they have a disability or medical condition. And some federal workplaces actively discourage the use of telework, for reasons of confidentiality, national security, or simply managerial preference. We’ve seen the pendulum swing back and forth in recent years on telework. Although once actively discouraged, workplaces in the private and federal sector moved towards encouraging remote work to reduce commuting time for employees and to save on office space.