The Virginia Business Litigation Blog
As you may know from past posts, the U.S. Equal Employment Opportunity Commission (EEOC) enforces five federal laws that prohibit employment discrimination against applicants for federal employment, current federal employees, or former federal employees: Title VII of the Civil Rights Act of 1964, as amended (prohibiting discrimination on the basis of race, color, religion, sex, or national origin); the Equal Pay Act of 1963 (prohibiting agencies from paying different wages to men and women performing equal work in the same work place); the Age Discrimination in Employment Act of 1967, as amended (prohibiting discrimination against persons age 40 or older); Sections 501 and 505 of the Rehabilitation Act of 1973, as amended (prohibiting discrimination on the basis of disability); and Title II of the Genetic Information Nondiscrimination Act of 2008 (prohibiting discrimination based on genetic information).
But what if the individual discriminating against a federal employee is the head of the agency or division wielding vast influence not only in the employee’s division but the entire agency? What if the alleged discrimination is inflicted by the head of the EEO office? Federal employees may fear that the EEO office is not investigating thoroughly such claims of discrimination and/or is predisposed not to find that any discriminatory conduct occurred.
The EEOC recently addressed this type of situation when earlier this month, it issued an update of its Management Directive governing federal processes known as “MD-110.” The new Directive provides federal agencies and contractors with updated EEOC policies, procedures, and guidance relating to the federal sector complaint process. The revision is significant because it is the first major revision to MD-110 since 1999 and reflects new developments in case law and other changes in the federal sector. MD-110 can be found here.
The revised directive provides some much-needed guidance about conflicts of interest or the appearance of conflicts that can occur when EEO or senior-level agency officials are named in complaints. Complaints that present potential conflicts of interest include when the responsible management official alleged to have engaged in discrimination is the head of the agency or occupies a high level position within the agency or when the alleged responsible management official alleged to have engaged in discrimination is the EEO director or supervisor in the EEO office.
The motivation for the revised directive on this issue, in my opinion, is for the complaining employee not to feel intimidated to file a complaint against “the boss” or the head of the very agency who is supposed to be investigating an employee’s discrimination complaint. A real or even perceived conflict may occur as a result of the undue influence that the high-level official may have over the EEO Director and other involved agency personnel. I can’t tell you how many times I’ve heard employees fear complaining to the EEO office for fear of retaliation against them.
Further, if an employee wishes to file a complaint alleging discrimination by the EEO Director or another supervisor in the EEO office, a real or perceived conflict may exist because the interests of the responding official would challenge the objectivity or perceived objectivity of the EEO office. In both cases, to ensure the integrity of the complaint process and ensure the implementation of the discrimination laws, MD-110 provides guidance to address such matters such as recusal of the alleged offender. Indeed, the new directive requires agencies to develop procedures for investigating complaints in which it is perceived that the EEO office would have an actual or perceived conflict of interest. The agency may even be required to contract with a third party, such as a private contractor, to handle such matters or even utilize EEO personnel from other divisions to handle such an investigation.
There is plenty more guidance in MD-110, but this is the biggest one we hear about so federal employees, take heart that the EEOC is addressing these conflict of interest concerns.
By: Amy Epstein Gluck, Contributor