By Deryn Sumner, September 13, 2017
Conflict is a fact of life (of course, we seem to be experiencing a bit more than usual since January 2017). And one type of conflict that sometimes can’t be avoided is a conflict of interest in processing EEO complaints. These conflicts come in a few forms and the EEOC’s Management Directive 110, Chapter 1 (as last revised in August 2015), does an excellent job in explaining an agency’s obligations with regards to them.
The first conflict arises between an agency’s role in processing EEO complaints and preventing unlawful employment discrimination and the “fiduciary obligation to defend the agency against legal challenges.” The EEOC cautions agencies that agency representatives should not be involved in the processing of complaints, or do anything to prevent impartial processing. Agencies also must ensure that EEO complaints programs are kept separate from personnel functions to avoid impermissible interference.
Now that type of conflict affects every EEO complaint. But there are some specific to particular employees who engage in the EEO complaints process. MD-110 addresses those as well and explains how agencies should handle situations where the alleged responsible management official is the head of the agency, which may lead to a real or perceived conflict of interest, or where the alleged responsible management official is the EEO Director or supervises the EEO office.
EEOC’s MD-110 also speaks to the need for a clear separation of the complaints program from the agency’s role in defending against EEO complaints, noting, “Only through the vigilant separation of the investigative and defensive functions can this inherent tension be managed.” EEOC instructs agencies to institute a firewall between the EEO function and the defensive function, that agency representatives may not conduct legal sufficiency reviews, and that agencies should not rotate agency representatives between working with the EEO office and defending against claims filed by employees.
The integrity of the EEO complaints process is of utmost importance, and addressing conflicts of interest helps preserve this integrity. Even if the conflict of interest may not be explicit, if there is even an appearance of conflict, as explained by the EEOC in MD-110, agencies are likely best served by either entering into a formal agreement to have the case processed by another agency or utilizing a private contractor to process and investigate the complaint. Sumner@FELTG.com