Federal Legal Corner: Proposed Revisions to EEO Procedures

The EEOC is seeking public comment on proposed revisions to the Management Directive 110 (MD-110) which provides guidance on EEO policies and procedures related to the EEOC regulations in 29 CFR Part 1614 that govern the processing of federal sector EEO complaints. http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001.

The revised MD-110 includes a detailed history of the federal sector EEO process, which provides an historical perspective beginning in the 1940s, through the late 1970s when the EEOC obtained authority over the federal sector EEO process, the 1980s when there were significant revisions to the federal sector regulations, the introduction of alternative dispute resolution to the informal EEO process in the 1990s, and other significant changes up to the present.

One proposed significant revision is the addition of a section that advises how to avoid conflicts of interest and the appearance of such conflicts in the processing of federal sector EEO complaints. These revisions discuss the need to maintain a separation of the agency’s personnel function from the EEO function; how to handle a complaint where the responsible management official is the agency head or is a high-level official who reports to the agency head; how to process a complaint where the responsible management official is the EEO director or a supervisor in the EEO office; the option of contracting out to third parties the processing of EEO complaints and the formal investigation function to avoid an actual conflict or a perception of a conflict of interest; and the importance of maintaining a separation of the EEO process from the agency’s defense function.

With respect to the separation of the EEO and the agency’s defense functions, the revisions emphasize the fact that the EEO investigative process is a non-adversarial fact-finding process and is, therefore, not a litigation process. However, the revisions specifically allow for the presence of agency counsel during the EEO investigator’s interview of management officials and for the review of management officials’ affidavits by agency counsel.

Another section addresses the processing of complaints of class discrimination in the federal sector and has been revised to make an administrative judge’s decision on the merits of the class complaint a final decision, rather than a recommended decision, which the agency can implement or appeal. The section on remedies has been expanded to include all kinds of remedial relief including back pay, front pay, attorney’s fees and costs, compensatory damages, and equitable relief. The section on back pay includes an explanation of how workers’ compensation benefits and unemployment compensation factor into back pay calculations. A section on compensatory damages has been added, which includes an explanation of pecuniary and nonpecuniary damages.

Interested parties may submit their comments on the proposed revisions by April 25.

* 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.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.