Leaders Encourage EEOC to Curb Potential Conflicts of Interest in Federal Complaint Process
Office of General Counsel attorneys in some agencies intruding in the federal discrimination complaint process continues to be a major problem, government civil rights leaders said Thursday at an event sponsored by the National Coalition for Equity in Public Service.
While not every general counsel is guilty of the “intrusion challenge,” Jorge Ponce, co-chairman of the Council of Federal Equal Employment Opportunity and Civil Rights Executives, said, attorneys in some agencies will review affidavits of management officials involved in cases and vet responses from witnesses prior to the formal hearing phase, creating a conflict of interest where the agency’s general counsel will assist managers in cases where they are accused of wrongdoing. The panelists encouraged the Equal Employment Opportunity Commission (EEOC) to clarify guidance on the issue.
JoLinda Johnson, director of the EEOC’s training and outreach division in the Office of Federal Operations, acknowledged that guidance on the topic could be better and said that activities such as witness coaching and affidavit review during fact-finding are not appropriate. Johnson said a draft document is currently in circulation which would institute new and improved rules on maintaining separation during the complaint process.
“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,” the EEOC Management Directive 110 states. “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.”
Part of the problem stems from the fact that management officials have been getting free legal advice from the agencies’ Offices of General Counsel while employees who file complaints must pay for their own attorneys’ fees if they decide to obtain counsel, Ponce said.
"It's not fair," Ponce 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."
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