Leveraging the EEO Process

Federal Employees Should Leverage the EEO Process

This article is not intended to serve as a treatise on filing and winning an EEO claim.  It is intended to serve as an introduction to why you may want to consider an EEO complaint rather than the more traditional grievance route.

The EEO process is significantly underutilized by federal employees in resolving issues not seemingly associated with EEO.  While most people automatically assume EEO complaints must be race or gender based, with a distinct and irrefutable “trigger event” such as a racial slur or physical contact, the truth is successful EEO complaints can be based on subtle actions over a period of time and on a myriad of basis such as age, retaliation, color (skin pigmentation regardless of race), disability, and others.

Why File an EEO Instead of a Negotiated Grievance?

Well, let me first start by telling you the Negotiated Grievance process will typically provide a quicker resolution to minor matters if your union representative knows what they are doing.  Notice I said resolution- not success.  Minor matters could be seniority disputes, equitable distribution of overtime, and performance disputes to name a few.  At InformedFed, we draw the line between minor and major matters when it potentially involves money.  For example, do you think any of the following recent EEO payouts (small sampling of internal Agency obtained data; some were at settlement and some were awarded at hearing) could have been achieved through the negotiated grievance procedure?  With rare exception, the answer is no, particularly in contrast to some of the claims.  Just ask your union for any examples of grievances that resulted in such outcomes.

Sampling of Confirmed EEO Payouts at Hearing or Settlement

 

 

 

Basis

Claim

Payout

 

 

 

Disability

Reasonable Accommodation, Termination

$85,804

Retaliation

Inappropriate Comments

$12,609

Age

Harassment, non-selection

$28, 976

Disability (perceived-not actual)

Harassment

$232,321

Color

Workplace Harassment

$41,783

Disability

Unlawful Disclosure of Disability

$3,000

Retaliation

Reassignment

$7,000

Disability

Reasonable Accommodation (failure)

$32,676

Age, Sex

Non-Selection

$87,545

Age

Hostile Work Environment, Harassment

$29,000

 

This is just a small sampling and does not include additional remedies provided beyond the monetary component.  For example, many of the remedies included a monetary component and additional remedies such as reassignment, promotion, relocation, etc…  The Agency documents we examined (just one agency), indicated 59 formal findings of discrimination in 2012 and an additional 196 known settlements the same year. It is difficult to assess settlement statistics since settlements typically contain terms of confidentiality and non-disclosure and are not centrally reported in the same manner as formal findings of discrimination.  However, settlements may be easily identified as they typically result in lower monetary awards since the Agency attorneys must determine a cost benefit analysis that makes sense.

In short, filing an EEO complaint affords potential for a monetary award and combined additional remedies whereas the negotiated grievance process limits a remedy to no more than “making the employee whole.” There are additional considerations that make sense for an employee to file an EEO complaint rather than a grievance.  Prime among those other reasons is the subsequent protection afforded (retaliation). Even if the employee is unsuccessful in pursuit of their EEO complaint, the mere act of engaging in statutorily protected activity places the employee in a protected status, making it far easier to file an EEO complaint in the future if the employee believes Agency actions are retaliatory and based on filing the prior complaint.

Leveraging the True Power of the EEO Process

The EEO Process is incredibly burdensome on Agencies.  Take it from someone who often responds to them!  The EEOC has Authority to compel (and sanction) agencies to produce vast amounts of documents, witnesses at all levels of the agency, all e-mails ever produced by employees, and many other items. For an agency, the EEO process is invasive, often embarrassing, costly, and unyielding.  The EEO process also requires involvement of agency LMR/ELR Specialists, the LMR/ELR Chief, local EEO program managers, an investigator, management officials at all levels, and agency attorneys.  The inside scoop from someone on the inside is that we hate EEO’s; not because we fear losing them, but because we do not have the time or resources to deal with them.  All these factors combined cause most agencies to seriously consider settlement in nearly every case, without serious regard to merits of the case.

Based on the aforementioned conditions, we believe the true power of EEO, for both parties, is yielded not at a hearing, but at settlement. During EEO settlement discussions or mediation, agencies are able to craft settlements without regard to rules and regulations and protect their decisions with confidentiality agreements.  This is far unlike the process in union grievances where the agency is bound to contract, rule, regulation, and the stated remedy contained in the grievance; a remedy that cannot violate rule, law, regulation, or contract and cannot exceed the “make whole” standard (there are no punitive awards in union grievances).  I have been in EEO settlements where employees were promoted without competition, paid back pay without the required third-party determination, paid $22,000 merely to withdraw the complaint, reassigned with full paid relocation, or had their supervisory chain changed, just to name a few.  In short, the agency can do whatever it wants in EEO settlement but cannot do so in responding to grievances.

It is important to distinguish the leverage a complainant has at settlement versus going to hearing.  Therefore it is critical any EEO complaint be well thought out in advance and even “road mapped” in consideration of a basis of claim.  In a proposed removal, it is better to convince the agency you are right and it is wrong before you are fired rather than afterwards.  The same theory holds true in EEO.  It is better to convince the agency not to go to hearing because once you go to hearing, you can quickly become mired in intricate legal complexities.  Furthermore, statistically speaking, chances of prevailing at hearing diminish significantly due to such complexities.

Preparation and Knowledge is Critical

It is our collective opinion that most employees who file an EEO complaint have no idea what they are talking about.  Statistics support our opinion.  It is critical that employees understand the process and requirements before filing and they essentially prepare their case in consideration of the process and requirements.  Relying on the EEO counselor or EEO investigator to accurately do their job is like gambling.  A consultant will establish your basis and claim and gather evidence in support.  The consultant will also brief you on what exactly to say to the counselor to establish a basis for settlement and even speak for you in settlement discussions.  Consultants can also assist the investigator in developing the Report of Investigation (ROI), determine witnesses and questions, and get testimony on the record or off.  In dealing with highly complex Acknowledgement Order’s, a consultant or representative can respond to or submit discovery requests, motions, and pre-hearing settlement offers.  All this effort is intended to settle the complaint as quickly as possible and with favorable results.  Although there is never a guarantee of success in filing and EEO complaint, a consultant can tip the odds in your favor dramatically.

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