After the EEO Complaint
We are often asked why we include EEO complaints as a reason for managers to secure liability protection because after all, it is really a case against the agency. While it's true that your agency's attorneys are responsible for defending the EEO complaint and working with you to further the agency's defense, the agency's attorney represents the agency’s interests -- not yours. This means that the agency is the client and the attorney's duty of loyalty is to the agency only.
Although your interests and the agency’s interest are often aligned, this circumstance could lead to a situation where the agency attorney is advancing an interest that is adverse to your own. As most managers are aware, once an EEO case goes formal, the agency conducts an investigation (usually through a contractor) of the EEO complaint. Professional liability insurance (PLI) coverage for formal EEO complaints is particularly important at this initial investigative stage because if you are the responsible management official (RMO), then it is typically your responsibility to establish for the record the legitimate non-discriminatory reason for your actions or inactions. This is an important piece of evidentiary information that the agency attorneys will use to defend the case—and it is best established during the initial investigative phase.
Another reason it is important to have access to your own attorney during this investigative stage is because the employee who filed the charge or lawsuit is often still your employee, and managing employees (particularly problem employees) in the wake of an EEO complaint can be challenging to say the least. Of the 11 types of discrimination prohibited by law and enforced by EEOC- age, disability, equal pay/compensation, genetic information (effective 11/21/09), national origin, pregnancy, race/color, religion, retaliation/reprisal, sex, and sexual harassment - retaliation/reprisal is the number one basis of EEO complaints against federal managers - and also the most damaging.
The retaliation claim is unique in that it preys on a manger’s natural feelings of anger or defensiveness lending merit to the retaliation charge. Some employees will even apply calculated strategies to provoke you into creating the appearance of reprisal. So while we recommend liability insurance for various reasons, if you are named the RMO in a formal EEO investigation having your own attorney to defend you if you are accused of any type of discrimination is invaluable.
This is all done in the name of “accountability” and such laws as the No Fear Act require agencies to report and make public the types and number of disciplinary actions taken against managers when there is an adverse EEO finding. PLI gives you the freedom to manage - without fear that your intentional or unintentional actions or inactions will result in professional or financial liability.
When it matters to federally employed managers - it matters to FEDS. FEDS Professional Liability Insurance is available for just $270 per year - or $135 after agency reimbursement. For more information on your specific exposures, how professional liability insurance protects, or how the FEDS program differs from other insurance programs, please visit the FEDS website and choose the Executives and Managers tab.
Posted in Manager Matters