If you have been named as a witness in an equal employment opportunity complaint, and you are a federal employee, under the EEOC’s management directive, MD-110, you must cooperate during the EEO counseling stage of the complaint, during an EEO investigation into the complaint and if the opposing side wants to take your deposition. Further, if you have been approved as a witness for an EEOC hearing, you must testify.

It is also possible that the attorney or representative for the opposing side will want to speak with you personally, outside of an EEO investigation or a deposition, regarding your knowledge of the allegations raised in the complaint. What are your rights and obligations this situation?

First, you should know that there is nothing improper about the opposing side contacting you. Typically, the attorney or representative will ask that you submit to a witness interview, during which notes may be taken of your conversation, and you may be asked to provide an affidavit to the attorney or representative based on your conversation. If you choose, you can voluntarily agree to submit to a witness interview. However, you do not have to agree to submit to a witness interview with the attorney or representative from the opposing side, you cannot be forced to do so, and you may insist on having a union representative available if you are covered by a collective bargaining agreement.

The EEOC’s case law makes clear that a witness may not be intimidated or threatened by the opposing side. Therefore, if you feel that you are being intimidated or threatened by the opposing side in an attempt to force you to agree to a witness interview, you should immediately inform the attorney or representative for the party for which you are a witness — the agency’s representative or the complainant’s attorney. This may result in filing a motion for sanctions against the offending party. The bottom line is this: you must cooperate during the EEO counseling stage of the complaint, during the formal EEO investigation, if the opposing side wants to take your deposition, and during an EEOC hearing if you have been approved as a witness. Witness interviews by an attorney or representative are appropriate, and it is prudent to cooperate and submit to a witness interview absent intimidation or threats.

** 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. **