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.
The EEOC’s Management Directive 110 was last revised in 2015 and these revisions made clear that agencies must keep a firewall between the arm of the agency that processes and investigates EEO complaints and the arm of the agency that defends against EEO complaints.
Specifically, Chapter 1 of MD-110 charges agencies with “ensuring a clean separation between the agency’s EEO complaint program and the agency’s defensive function” as it is “the essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaints process.”
Why is this so important? Well, as one of our instructors, former EEOC Chief Administrative Judge Dwight Lewis, has said, the sworn statements contained in Reports of Investigation must be, as much as possible, free of outside interference as they are relied upon by factfinders to draw inferences of fact. This sworn testimony may be the only evidence available to someone writing a Final Agency Decision, or to an EEOC Administrative Judge issuing a decision under the EEOC’s Pilot Programs, which encourage disposition of cases either without hearings or with focused hearings.
In Josefina L. v. Social Security Administration, 118 LRP 30430 (EEOC OFO 2018) and Annalee D. v. GSA, 118 LRP 44347 (EEOC OFO 2018), the Commission sanctioned agencies for improper intrusion by agency counsel into the complainant’s EEO complaints. In Josefina L., agency counsel reviewed and provided feedback on an EEO affidavit to a supervisor. In Annalee D., agency counsel assisted with the affidavits and accompanied the supervisor to the EEO interview. Although the sanction issued in both cases was four hours of training (which seems to contradict the Commission’s prior holdings that training is not considered disciplinary action), we think these cases serve as a warning to agencies that failure to adhere to MD-110 will lead to more severe sanctions.This is not to say that agency counsel cannot play any role in an EEO investigation. In fact, we encourage legal counsel for agencies to provide training to supervisors and managers on the EEO process, their role and responsibilities, and best practices for responding to EEO affidavits and requests for documents. There is nothing wrong with providing general guidance on how the process works and why providing specific explanations for actions taken that are at issue in an EEO complaint are important. However, per the Commission’s Directive, legal counsel cannot serve as personal representatives for the supervisors and managers during the investigation and cannot revise affidavit responses or advise a witness how they should respond to a specific question.