A thorny issue over the years has been what agency personnel attorneys, employee relations/labor relations specialists, EEO specialists, management officials, EEO counselors – should or should not be involved in the processing of EEO complaints at the agency administrative level. For example, who should be the agency official with settlement authority; what role do agency attorneys play at the EEO counseling stage, during ADR/mediation, or during the investigation; and what is the role of the agency’s EEO office at all stages of the administrative process.

In an effort to provide guidelines to agencies on these matters, the EEOC has issued a draft revised EEOC Management Directive 110 Chapter 1 -specifically § IV “Avoiding Conflicts of Interest,” and § V “Delegation of Authority to Resolve Disputes.” The EEOC’ s draft makes clear that there must be a firewall between the EEO function and the agency’s defense against claims of discrimination.

Thus, agency attorneys or representative such as employee relations/labor relations specialists may not participate in the EEO counseling or investigative administrative processes other than to accompany and advise management representatives at the request of the management official. Such representatives may not question witnesses, direct the EEO counselor or investigator to interview witnesses (the representative may make suggestions, however), or be involved in the EEO office’s decision to accept or reject a complaint for investigation. On the other hand, the EEOC draft states that the agency representative may review the affidavit of a management official who is the subject of a complaint of employment discrimination but may not tell him/her how to respond to questions asked by the investigator.

The EEOC also for apparently the first time has stated that the agency’s official or officials who have settlement authority must participate in all settlement discussions and all ADR meetings and “should not be the responsible management official or agency official directly involved in the case.”

As noted above, these and the other revisions to the existing Management Directive 110 are in draft form only and have been circulated to federal agencies for comment.

written by June Kalijarvi