Fedweek Legal

Under Equal Employment Opportunity Commission (EEOC) regulations and the agency’s management directives, agencies must compel federal employees who are alleged to have committed unlawful discrimination to fully cooperate during the processing of an EEO complaint or risk sanctions. This rule also applies to federal employees alleged to have witnessed discrimination. The federal employee need not be employed at the agency where the EEO complaint was filed.

Agencies are only required to compel current federal employees to participate in an EEOC investigation or hearing. Non-federal employees, including former federal employees and retirees, cannot be compelled to participate during the processing of an EEO complaint but they may participate voluntarily.

The sanctions that an EEOC administrative judge can levy against an agency because the employee is not cooperating during the investigation of the EEO complaint, pre-hearing discovery, or the EEOC hearing, range in degrees of severity. First, the AJ may issue a decision fully or partially in favor of the complainant-meaning that the EEOC may find discrimination merely because the employee has failed to participate the processing of the complaint. Second, the AJ may prohibit the employee from testifying on behalf of the agency at the hearing.

Third, the AJ may allow the employee to testify at the hearing but prohibit the employee from testifying on those matters for which the employee previously refused to provide information. Fourth, the AJ may prohibit the agency from presenting other evidence (including witness testimony apart from the non-cooperative employee’s testimony) in order to prove an issue or assertion.

Fifth, the AJ may consider the matters to which the employee failed to provide information to be established in favor of the complainant. Sixth, the AJ may draw an adverse inference against the agency, deducing that the employee did not cooperate in the EEO process because the employee’s testimony would have reflected unfavorably on the agency. Finally, the AJ may take such actions he or she deems appropriate to address the employee’s failure to cooperate.

The AJ will admonish the agency to compel the employee to cooperate. If the employee still refuses to do so, the agency fails to meet its obligations under the EEOC regulations identified at the outset of this article and sanctions will likely follow. Be warned, however, that complainants who do not fully cooperate with the agency during the EEO process are also subject to sanctions and the EEOC may dismiss his or her complaint of discrimination.

** 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. **