By Meghan Droste, August 18, 2021
The time has come, FELTG readers, for my final Tips from the Other Side. It has been a pleasure providing you with insights on what to do, and what not to do, and how to do the best job possible when handling a variety of EEO-related issues. I hope you have enjoyed the journey and picked up some valuable lessons along the way.
Before I go, here is a top ten list of sorts. These are in no particular order and the list is not meant to be exhaustive, but I hope you can use this collection of final tips as a roadmap to avoid common pitfalls.
10 – Understand timeliness issues: The EEOC is pretty clear on how long complainants have to contact an EEO counselor, file a formal complaint, request a hearing, etc. While these issues can be confusing for complainants who are unfamiliar with the process, they shouldn’t be for agencies. Remember that harassment complaints include a series of events, so employees have 45 days from any of the events — not necessarily the first one — to contact a counselor. Failure to accommodate claims can also be timely after more than 45 days. Each time an employee needs an accommodation and the agency doesn’t provide it can be a new violation, it restarts the 45-day clock.
9 – Reasonable accommodations must be effective: Speaking of accommodations, remember that agencies are required to provide effective accommodations to qualified individuals. That means that an agency’s obligations don’t end just with providing the accommodation. You need to follow up and make sure that it’s actually effective before you can consider your work done.
8 – Don’t cut corners or jump to conclusions: Far too often, agencies seem eager to dismiss complaints before they should. Don’t dismiss a complaint just because the complainant worked for a contractor; you need to gather enough information to actually do a joint employer analysis and determine whether the agency was an employer. Also, don’t look to the merits of a complaint in order to dismiss it; all you should be doing is determining whether or not the facts could state a claim for relief. Even if you don’t think the complainant will prevail, you still have to accept the complaint if it’s possible they could. You might be trying to save time or agency resources by getting rid of complaints early, but you will likely create more work for the agency in defending the dismissal and then still have to investigate the complaint in the end.
7- Know what to do with medical information: Agencies may only request medical information from employees in very specific circumstances (when it’s job related and consistent with business necessity). Be sure you don’t ask for it when you’re not entitled to it, and if you do collect, make sure you know what to do with it. Don’t share it with anyone who doesn’t need to know it, and don’t commingle medical documentation with other, non-medical, information.
6 – Retain your documents: More on documents. Make sure you don’t destroy things before you’re allowed to. The Commission’s regulations require agencies to retain documents regarding personnel actions, such as selection and removal decisions, for one year following the action. This retention requirement is extended if there is litigation. If someone involved files an EEO complaint, you will need to keep all of the documents until the end of the litigation. If you destroy them before you should, the agency could face sanctions or find itself in a situation where it cannot adequately explain its actions.
5 – Make sure your investigators create an appropriate record: Agencies are responsible for the quality of the ROIs their investigators produce, even if those investigators are contractors. Be sure to review the ROIs before finalizing them—did the investigator interview all of the relevant witnesses and collect all of the relevant documents? If not, send it back for the investigator to do so. If you don’t, you might find your agency on the end of an unfavorable decision by the Commission.
4 – Meet your deadlines: Another way to end up on the wrong side of the Commission is to miss your deadlines. Agencies have 180 days to complete their investigations and issue ROIs. This is not a suggestion. You also need to be mindful of appeal deadlines, as missing those could result in the Commission rejecting your arguments on appeal without considering them at all.
3 – Take allegations of harassment and discrimination seriously: Agencies need to act promptly when they learn of discrimination or harassment. Don’t delay in separating the individuals, starting an investigation, or issuing discipline if appropriate. Failure to act promptly can result in a finding of liability, but it may also undermine the confidence your employees have in the agency. Also, don’t forget to make the victim of harassment whole—even if you do everything else right, if you fail to address the harm they suffered, you can still be on the hook.
2 – Follow the Commission’s orders: Orders from the Commission, whether they come from an individual judge or from OFO, aren’t suggestions. Ignoring them can land your agency in (even more) hot water.
1 – Make sure your employees, supervisors, EEO staff (everyone!) is well trained: I promise I’m not saying this because I have been helping to provide that training to agencies for four years. It’s my top tip because I truly believe that if people receive the training they need, they will avoid so many of the common mistakes that end up before the Commission. I’ve been saying for years that in a perfect world I would train my way out of a job, because no one would ever violate the law again. That hasn’t quite happened, but I hope the past few years have at least made some progress towards that.
As I say at the end of all my classes, good luck out there! Droste@FELTG.com