In this era of manager accountability under the No FEAR Act, any subordinate’s equal employment opportunity complaint against a manager should be taken seriously. The outcome of the complaint carries risk to the manager’s career.
The reality is that managers have few rights in defending themselves against an EEO complaint. For the most part, they only have those rights that an agency might extend to them, in its discretion.
To make matters worse, managers, just like other agency employees, who might be witnesses, have an obligation to cooperate fully in the agency EEO process. This means that a manager must answer questions and provide documents that might ultimately be damaging to the manager’s explanation of his or her legitimate nondiscriminatory reason for the personnel action that is being challenged by the employee.
It is not so much what rights the managers have, but rather how managers are able to protect themselves through the effective use of the personnel system. These include legal counsel; review of relevant documents; being a part of the settlement process, or at least being consulted when a settlement is contemplated; being informed when the complaint is over; and receiving sufficient information about the process and complaint.
With these protections, when the manager provides a statement or testifies at a hearing, the manager has a sense of perspective concerning the two sides of the story: the complaint being one side and the manager’s reasons and justifications being the other side.
Let’s start with legal counsel. Most general counsel attorneys are more than happy to talk to a manager about the process and the risk. There is a debate in the EEO community about how detailed the general counsel’s office should be in advising a manager if that EEO office also provides legal advice on the complaint.
At a minimum, the agency lawyer represents the agency, not the manager, and should say that to the manager.
If you are the responsible management official (RMO), you probably want to talk to your agency lawyer and gauge your comfort level. If you have a concern, you should consult private counsel.
In fact, one of the best reasons to purchase federal employee liability insurance is to make sure you can obtain objective legal advice in the EEO process.
It is important for an RMO to see the portion of the complaint and complainant’s statement that applies to him or her. There is no right to this, but insistence on seeing the allegations often results in the information being provided. This is because in the discretion of the investigator, the information can be provided.
Most EEO cases are settled with the employee continuing to work for the manager who has been accused of discrimination. An unwise settlement agreed to without the supervisor’s input can lead to a toxic work situation.
While the supervisor has no right to consultation before a settlement, early work by the supervisor with the EEO office and participation in mediation showing the supervisor wants input into resolution can help that occur.
A supervisor’s attitude of cooperation and reasonableness is more likely to result in the supervisor being a part of the settlement process than is a stubborn attitude of “I didn’t do anything wrong and that complainant isn’t getting anything.” Sometimes a supervisor’s rights are the result of careful relationship building in the agency.
EEO cases can take years, and a supervisor may never learn the outcome. Check in with the EEO office from time to time to find out the status of the complaint.
Finally, understanding the agency’s perspective and how the supervisor fits in can help the supervisor develop and maintain helpful documentation. Ask questions and make sure you understand the process and the issues. Ask to be prepared for your deposition or testimony, including a practice cross-examination. All of these activities make a difference in the outcome and should be a part of the activities during the litigation.
As a manager, you essentially have to make your own rights. You do have the right to ask questions and to be a part of the process.