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A Primer on Federal EEO Investigations

Just as it does in the private sector, the Equal Employment Opportunity Commission (EEOC) enforces laws protecting employees and applicants from employment discrimination in the federal sector as well. However, one significant difference exists between the two arenas: whereas a private-sector employee has the choice between petitioning his or her HR department or the EEOC directly regarding his or her grievances, a federal-sector employee with an employment discrimination complaint is required by federal law to follow a streamlined process within his or her agency for making a complaint. In other words, each federal agency has within it an office that is responsible for the intake and processing of Equal Employment Opportunity (EEO) complaints, and an EEO investigator working on a federal complaint works closely with this office during the course of the investigation. This article will provide an overview of the federal EEO process and will also mention some of the ways in which a federal sector EEO investigation differs from a private sector investigation.   

An Overview of the Federal EEO Process

The federal EEO process is designed to encourage the informal resolution of EEO complaints. Thus, prior to filing a formal complaint of discrimination, a potential complainant is required by law to meet with an EEO counselor within the agency’s EEO office and participate in informal EEO counseling.[1] During this meeting, the EEO counselor conducts a limited inquiry regarding the timeliness of the Complainant’s contact with the EEO counselor; collects information about the Complainant’s allegations for the purpose of identifying the legal claims and bases at issue; and attempts to facilitate an informal resolution of the allegations. The informal counseling stage must be completed within 30 days of the agency’s initial contact with the Complainant.[2] If the complaint remains unresolved, the agency then issues to the Complainant a notice informing him or her of the right to initiate a formal complaint of discrimination.[3] 

During the formal stage of the complaint, an EEO investigator (who could be an agency employee or an independent contractor) begins the process of gathering information to develop a factual record regarding the claims at issue. The EEO investigator’s goal is to gather facts upon which a reasonable fact-finder may draw a conclusion as to whether any statute enforced by the EEOC has been violated.[4] EEOC Management Directive 110 authorizes EEO investigators to use a variety of investigative techniques, including on-site visits, telephonic witness interviews, requests for production of documents, interrogatories, etc.[5] Further, the EEO investigator is tasked with collecting all relevant and material evidence from a variety of sources during the investigation, including the Complainant, the Agency, any relevant decision-makers in the alleged discriminatory action, any witnesses named by the interviewed parties, and documents provided by the Complainant and agency. The EEO investigator is required to complete the investigation within 180 days of the date the Complainant filed his or her complaint.[6] 

Upon the completion of the investigation, the Complainant receives a copy of the investigative file compiled by the EEO investigator. At this juncture, the Complainant can choose between having their complaint adjudicated by an Administrative Law Judge (ALJ) appointed by the EEOC or having the agency issue a Final Agency Decision (FAD) on the merits of the case. If the Complainant selects the ALJ route, the ALJ must conduct a hearing within 180 days of receipt of the Complainant’s case file.[7] Accordingly, the ALJ assumes full responsibility for adjudication of the complaint, including developing the factual record further, if necessary. Thus, the ALJ may issue discovery orders, call certain witnesses deemed to have direct knowledge of the facts at issue, etc. Thereafter, the agency issues a Final Order implementing the conclusion reached by the ALJ.[8] Alternatively, if the Complainant selects the Final Agency Decision route, the agency’s EEO department itself becomes responsible for reviewing the factual record collected by the investigator and determining if any federal employment discrimination laws were violated.[9] In either case, upon the conclusion of the Complainant’s administrative remedies, the Complainant is informed of their right to pursue the complaint further by filing a claim in federal district court.[10] 

Some Significant Differences between Federal and Private-Sector EEO Investigations

As evident from the aforementioned, the primary difference between federal and private-sector EEO investigations is that the former are governed by strict processes and timelines which ensure they are handled consistently and efficiently across various federal agencies. A second important distinction pertains to an investigator’s authority in conducting investigations. In the federal sector, an investigator is authorized to administer oaths, which often come in the form of a written statement that a witness signs at the end of his or her affidavit stating that the testimony he or she has provided is true and complete.[11] Relatedly, whereas in the private sector an HR Department may often guarantee a high-level of confidentiality to potential witnesses, in the federal sector an investigator conducts his or her investigation without a guarantee of confidentiality.[12] Thus, any testimony furnished by a witness is provided in written form and becomes part of the investigative file compiled by the investigator, which is later provided to the Complainant. Finally, and perhaps most significantly, in federal EEO investigations, an ALJ is authorized to issue sanctions against a federal agency for failing to adhere to mandatory timelines or otherwise failing to properly or thoroughly investigate a complaint. The available sanctions include, for instance, drawing an adverse inference against an agency by assuming any missing information would reflect unfavorably on the agency, or excluding other evidence offered by the agency.[13] 

Conclusion

An EEO investigator in the federal sector must be aware of the various stages of the EEO process and the timelines and requirements for each stage of the process. However, both federal and private-sector EEO investigations require an investigator who is able to ask pertinent questions of witnesses and collect and analyze documents to determine their relevancy in a potential discrimination complaint. This examination demonstrates that despite their differences, the most important ingredient in a successful EEO investigation in both arenas remains the same: a knowledgeable, well-trained, and highly-skilled investigator

 


 

[1] 29 C.F.R. 1614.105(a)

[2] Id

[3] 29 C.F.R. 1614.105(d)

[4] EEOC Management Directive 110, available at https://www.eeoc.gov/federal-sector/management-directive/management-directive-110.

[5] Id.

[6] 29 C.F.R. 1614.108(e).  This period may be extended by agreement of the Agency and the Complainant for a period not exceeding 90 days.  Id.  

[7] 29 C.F.R. 1614.109(i)

[8] Id. at 1614.109(d)

[9] Id. at 1614.110(b)

[10] Id.

[11] EEOC MD-110

[12] Id.

[13] EEOC MD-110 and 29 C.F.R. 1614.109(f)(3)