Ask The Lawyer

By Debra Roth

Documents boost EEO defense

Bookmark and Share

Any manager who has ever gone to the agency’s human resources office to get help with a problem employee has heard the question, “Where’s your documentation?”

Documentation is just as important for a manager who has been or who might be accused of discrimination in an equal employment opportunity case, but there’s a twist.

In the EEO arena, the manager is in a reactive mode. There are times and methods and uses of documenting in an EEO case that can significantly decrease the likelihood that a manager will be found guilty of discrimination.

The fundamental difference between taking a disciplinary or adverse action against a problem employee and defending an EEO case lies in the burden of proof. In an adverse action, the manager must prove by a preponderance of the evidence that the adverse action was justified. In an EEO case, a manager need only state legitimate, business reasons for a decision that becomes the subject of an EEO complaint.

The manager has no burden of proof, but only a burden of articulation. The employee can prevail only if he or she can show that the manager’s articulated business reason was a pretext for discrimination. However, the manager’s credibility is demonstrated and strengthened through the effective use of documentation.

Let’s examine the use of documentation in a nonselection-for-promotion case, one of the more frequent reasons for the filing of an EEO complaint.

The first step for a manager is putting something in writing as soon as possible detailing the reason for the selection decision. The more contemporaneous a document, the more credible it will be. The initial documentation can be informal via an e-mail from the selecting manager to him or herself giving reasons for the selection. The e-mail can also be sent to the HR office. The format matters less than the timing and level of detail.

A manager who makes a controversial promotion selection decision is well-advised to put down specific reasons for the selection of one candidate over others. The following types of statements are not sufficient: “Three candidates were referred to me, and I was told I could select any of them, and I chose John” or “John interviewed better than Mary” or “In my opinion, John was more qualified than Mary.”

Instead, give detailed reasons why John’s experience, knowledge or demonstrated abilities showed him to be the better candidate. No one will argue with or dispute a truthful, detailed reason for a decision.

A manager who fails to document the reasons for a nonselection or other personnel action that is later the subject of an EEO complaint will receive a second chance. Within about a month and a half of the selection, the selecting official will receive a call from the EEO counselor requesting a meeting or telephone conference to discuss the selection decision. The manager should then prepare a detailed memo justifying the selection.

The manager need not show the memo to the EEO counselor, but in discussion with the counselor should give reasons that are consistent with the memo. The manager should prepare a document summarizing the discussion with the EEO counselor, keeping in mind that the counselor will also be preparing a report about the meeting that the manager may never see.

At later stages in the EEO process, the manager will be asked to make a statement to an investigator and to testify at a deposition and hearing or trial. A prudent manager will review the earlier documentation at each of these steps to assure consistency in testimony.

Human memories fade and change over time. A manager who makes good, well-documented decisions may, years later, remember details in a different way.

The lawyer on the other side may then impeach the manager by showing inconsistencies with earlier statements.

Remember: Early, detailed documentation that is maintained, easily located and reviewed will assure credible consistency and the likelihood of prevailing in an EEO case.

Bill Bransford is managing partner of Shaw, Bransford & Roth in Washington. He serves as general counsel to the Senior Executives Association, Federal Managers Association and other professional associations. He co-hosts the “FEDtalk” program on Federal News Radio on 1500AM in the Washington, D.C., area. E-mail your legal questions to lawyer@federaltimes.com and view his blog at blogs.federaltimes.com/federal-law.

Ask the Lawyer Changes Hands in 2010

Bookmark and Share

In 2010, the Ask the Lawyer column will be written by Bill Bransford, managing partner of Shaw, Bransford & Roth, P.C.

For more information on Bill or the law firm, please visit http://www.shawbransford.com/.

Archived columns written by Greg Rinckey will still be available on this blog in the section below.