A number of federal agencies, including the U.S. Postal Service and some components of the Department of Defense, take the position that they will not pay for “attorney’s fees for services rendered during pre-complaint processing”, including for time attending agency-offered ADR/mediation, citing the provisions of 29 C.F.R. § 1614.501(e) and EEOC Management Directive 110 Chapter 11 § III ¶ B.  This position is problematic for several reasons.  First, this position ignores the actual language of the regulation and the Management Directive that the “agency and the complainant can agree . . . that the agency will pay attorney’s fees for pre-complaint process representation.”

Second, and more significantly, this position undercuts and seriously inhibits the EEOC’s requirement that agencies establish and/or make available an Alternative Dispute Resolution (ADR) program both at the pre-complaint stage of the administrative process and the formal complaint stage and the EEOC’s direction that agencies offer ADR as early in the administrative process as possible – that is during the pre-complaint stage.  29 C.F.R. § 1614.102 and EEOC Management Directive 110 Chapter 3.  The purpose of this requirement is obvious: the earlier in the EEO process a complaint can be resolved the less expensive it is for the parties. 

Third, this position is directly at odds with the provision of EEOC Management Directive 110 Chapter 3 § ¶ II. A. 3, which grants complainants “the right to representation throughout the complaint process, including during any ADR process. . . . [I]t is important that any agency dispute resolution procedure provide all parties the opportunity to bring a representative to the ADR forum if they desire to do so.”  As the Supreme Court has recognized:  “The right to representation by counsel is not a formality. . . . It is of the essence of justice.”  Kent v. United States, 383 U.S. 541, 561 (1966).

Where an agency offers mediation as an alternative to EEO counseling – as the EEOC requires them to do – the agency accepts the possibility and likelihood that the complainant will be accompanied by an attorney at the mediation, especially if the agency is represented.  Indeed a complainant would be foolhardy to enter into a mediated settlement with his/her agency, containing a waiver and release of all claims, without legal representation to advise him/her.  See Ferguson v. Dep’t of Justice, EEOC Appeal No. 0120131614 (Aug. 15, 2013).  Further, the availability of attorney’s fees for mandatory steps in the administrative process was resolved by the Supreme Court over 30 years ago in N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 65 (1980).

The unfortunate result of an agency adamantly refusing to pay attorney’s fees for a complainant’s attorney’s services at pre-complaint ADR/mediation will be that complainants’ attorneys will advise complainants to wait until after the formal complaint is filed to request ADR/mediation, thus increasing the attorney’s fees to be reimbursed.  An agency is better advised to put a clause in a settlement agreement entered into in a pre-complaint ADR/mediation that the parties recognize that an agency is not required to pay attorney’s fees at the pre-complaint stage but is exercising its discretion to do so.

Written by June Kalijarvi