By Meghan Droste, November 17, 2020

Do you remember March 2020? I think I do, although sometimes when I think back to things I did in early March—including traveling across state lines and attending large events!—it feels like years ago, rather than just eight months or so.  Well, one thing I did in March was share an EEOC decision in which the Commission had some serious concerns about the agency’s ongoing and repeated failure to comply with the Commission’s orders.

In Alma F. v. Department of the Army, EEOC Pet. No. 2019004337 (Feb. 4, 2020), the Commission described how the agency had failed to provide evidence of compliance in 19 other cases, all with petitions for enforcement from 2019.  (You can read more here: You and What Army?)  As I noted in my article, the Commission doesn’t have an army to back it up when it orders agencies to take certain actions.  Unlike in cases in which agencies fail to comply with EEOC regulations about processing complaints or with orders from administrative judges, the Commission seems reluctant to issue sanctions, such as default judgment, when agencies fail to comply with orders on appeals.

So what can and does the Commission do?  Well, as it warned in Alma F., it can issue a show cause order to the head of an agency or certify the issue to the Office of Special Counsel.  (By the way, this warning doesn’t seem to have made much of an impact.  In a September 2020 decision, the Commission noted the same issue was ongoing in more than 20 cases.  See Calvin D. v. Dep’t of the Army, EEOC Pet. No. 2019004326 (Sept. 30, 2020).)  The Commission can also order an agency to pay interest on damages to address an agency’s failure to meet deadlines.

That is exactly what happened in Lyda F. v. Dep’t of Homeland Sec., EEOC App. No. 2020002790 (Sept. 16, 2020). In 2017, the Commission reversed the Agency’s FAD and remanded the complaint for correction and amendment to the accepted claims, and a supplemental investigation. The Commission ordered the agency to complete the supplemental investigation within 120 days and provide a copy of the ROI to the complainant no more than 30 days later.

If the complainant requested another FAD, the Commission ordered the agency to issue it within 60 days of the request.  The complainant requested a FAD on the supplemental ROI on July 11, 2018.  The agency did not issue the FAD—in which it found liability for both harassment and retaliation—until July 10, 2020, two years after the complainant requested it. The Commission found that interest on any compensatory damages award was the appropriate way to address the agency’s obvious failure to meet its deadline.  It did not label this as a sanction, but I think that is a fair way to look at it.

Depending on interest rates, the amount of the damages award, and the length of the delay, compounded interest could result in just a few hundred dollars increase in the money an agency must pay to a complainant.  But the longer the delay and the larger the award, the more likely the agency will be forced to pay thousands of dollars more because of a delay. The best-case scenario is of course to avoid violating Title VII or any of the other civil rights statutes, but if that has already occurred, make sure you don’t add to the problem by taking too long to address it. [email protected]

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