EEOC urged to tackle conflicts of interest in federal complaint process

General counsel offices should not coach witnesses or review affidavits of management involved in discrimination cases, civil rights leaders say.

Agency attorneys interfering in the federal discrimination complaint process is still a major problem, government civil rights leaders said Thursday, urging the Equal Employment Opportunity Commission to clarify its guidance on the issue this year.

The Office of General Counsel in some agencies continues to intrude in the EEO complaint process during investigations, reviewing the affidavits of management officials involved in cases and vetting responses from witnesses before the formal hearing phase, said panelists at an event sponsored by the National Coalition for Equity in Public Service. The situation creates a conflict of interest in which an agency’s legal counsel assists managers accused of discrimination or other wrongdoing by employees during the fact-finding portion of the complaint process.

Not every general counsel is guilty of the “intrusion challenge,” said Jorge Ponce, co-chairman of the Council of Federal Equal Employment Opportunity and Civil Rights Executives, but it’s been a continuing problem in the executive and legislative branches since 2003, undermining the EEO complaint process.

Management officials are getting free legal advice from the agency while employees who lodge complaints have to pay for their own lawyer if they choose to retain counsel, according to Ponce. “It’s not fair,” he said. “You are not going to eradicate discrimination if you are doing, or trying to do this. What you are trying to do is win at all costs.”

Jo Linda Johnson, EEOC’s director of training and outreach division in the Office of Federal Operations, said such interference, including coaching witnesses and reviewing affidavits during fact-finding, was not appropriate. Johnson said guidance exists, but acknowledged it could be better. She said many EEOC officials are eager to release new and improved rules on maintaining independence during the complaint process, but an announcement is not imminent, although a draft document is circulating.

EEOC Management Directive 110 states in part: “Heads of agencies must not permit intrusion on the investigations and deliberations of EEO complaints by agency representatives and offices responsible for defending the agency against EEO complaints. Maintaining distance between the fact-finding and defensive functions of the agency enhances the credibility of the EEO Office and the integrity of the EEO complaints process.”

There are two stages in the EEO complaint process: the informal or “pre-complaint” counseling phase and the formal hearing phase, where official government bodies adjudicate a case and render a decision. A 2009 report from the Government Accountability Office identified the intrusion issue as a growing problem, noting a “lack of independence concerning the potential conflict of having agencies conduct their own EEO complaint investigations and the undue influence of some agency legal counsel and human resources officials on the EEO process.”

The participation of agency counsel should be limited, said Ernest Hadley, president of the Federal Employment Law Training Group at Hadley law offices. It’s appropriate for attorneys representing agencies to review documents or agreements involved in alternative dispute resolution, for example, but outside of that, “I see no role until there is a request for hearing,” Hadley said.

Ponce reiterated the need to clarify the rules on the issue sooner rather than later: “If you are going to have the general counsel manipulate the investigation, then what use do we have for EEO offices?”

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