Fedweek Legal

Pursuant to its regulations, and prior to any finding of discrimination, the EEOC has been awarding monetary sanctions against agencies that do not comply with discovery or other orders issued by administrative judges. For example, if an agency does not comply with a judge’s order to produce a complaint investigation in a timely fashion, the judge may award the attorney’s fees to conduct the discovery and take written depositions in place of the investigation. Fees and costs have also been awarded for an attorney’s efforts to secure compliance by the agency, even when the employee does not ultimately win his or her case.

This practice came under attack by the Department of the Navy, who asked the Department of Justice for a legal opinion as to whether the EEOC has authority to impose attorney’s fees and costs as a sanction. The DoJ issued an opinion on Janaury 6, 2003 stating that the EEOC did not have the authority under the EEO statutes to issue such sanctions. The DoJ found that there was no waiver of Congress of soverign immunity which allows the EEOC to impose monetary sanctions against federal agencies in the absence of a determination that the complainant was a “prevailing party” under the EEO statutes. The DoJ also found that the EEOC does not have the power to impose such sanctions against federal agencies due to its inherent power to investigate and remedy violations of the EEO laws.

According to Richard Roscio, an EEOC attorney quoted in the Federal Equal Opportuniy Reporter, adminstrative judges have been asked not to impose monetary sanctions while the EEOC decides what its next step in relation to the DoJ’s opinion will be. The EEOC is deciding whether it must comply with the DoJ’s opinion. Motions for sanctions that have already been filed are on hold until the EEOC reaches a decision.

** 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. **