During the investigation of an EEO discrimination complaint, the EEO program should be impartial and maintain the appearance of impartiality. The EEO office and office charged with defending the agency, for example, the Office of the General Counsel (OGC), should remain entirely separate organizations. The office involved in defending the agency should have no involvement in the investigative process. The agency’s legal representative, such as an attorney from OGC, has no right to participate in any fashion in the investigation. A manger accused of discrimination is not entitled to have an agency attorney accompany her to the EEO investigation and fact-finding process. Like a complainant, a manager is allowed to hire an attorney to represent her.
EEO investigators are allowed to show accused managers information that is relevant, when the investigator decides that disclosure is necessary to obtain information from the manager. The investigator can disclose information to the extent that it is necessary in order to explain the complainant’s claims or to explain the manager’s reasons for the agency’s actions.
To ensure the separation of the EEO office and the OGC, it is inappropriate for the EEO investigator to work through OGC in speaking with the managers. The EEO investigator should talk directly with the managers, asking questions and requesting documents. It is not appropriate for the agency’s attorney to screen information that will be included in the EEO investigation, as doing so would compromise the EEO program’s appearance of impartiality.
Because it is inappropriate for the agency’s attorney to be involved in the process, the attorney is not allowed to be present during any management interviews or to recommend or identify witnesses or documentary evidence. Managers, not attorneys, are allowed to identify and recommend such sources of information and evidence to the investigator.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **
